DIGEST OF ALL POINTS OF PRACTICE EMBRACED IN THE STANDARD NEW YORK REPORTS, Issued during the period covered by this Volume: Viz.-24 NEW YORK; 37 BARBOUR; 7 BOSWORTH; 15 ABBOTTS' PR. R., and 24 HOWARD PR. R.; and in the LAWS OF 1863. ABATEMENT AND REVIVAL. 1. Supplementary proceedings under the provisions of the Code of Procedure, taken before a county judge, and proceedings therein to punish for a contempt by a fine for the benefit of the party, do not abate upon the expiration of his term of office, but may be continued before his successor. If such proceedings are considered as a part of the orderly progression of the action itself, as they may properly be regarded, the death, or expiration of the term of office, of the officer before whom they are conducted, ought not to affect the proceedings. If, however, they are regarded as special proceedings, a liberal construction of the provision of 2 Rev. Stat., 284, § 51,-that such proceedings may be continued, in case of the death, &c., of an officer, by his successor in office, or by certain other officers, &c.,—would apply it to such a case; for the expiration of the term of office may be deemed a removal from office, or a disability, within the meaning of that section. Supreme Ct., 1862, Holstein a. Rice, Ante, 307. 2. That provision of the Revised Statutes is intended of all those proceedings which cannot, with propriety, be classed under ordinary proceedings in an action. It is not confined to what are defined by the Code as special proceedings. Ib. VOL. XV.-31 ACTION. ACCOUNTING. EXECUTORS AND ADMINISTRATORS; GUARDIAN AND WARD; JOINT LIABILITY. ACKNOWLEDGMENT OF DEEDS. Any vice consul or commercial agent of the United States, resident in s foreign port or country, may take and certify acknowledgments or proof. Former acknowledgments, &c., confirmed. Laws of 1863, 449, ch. 246, §§ 1, 2; and see NOTARIES, infra. ACTION. 1. An action to obtain a construction of a municipal charter, and declare void an assessment made for the expense of a local improvement, and restrain the municipal officers from enforcing it against the plaintiff's personal property, by levy and sale, cannot be maintained. It is an action of purely equitable nature, and the plaintiff has adequate remedies of a legal nature. Supreme Ct., 1860, Von Beck a. Village of Rondout, Ante, 48. 2. The holder of a mortgage may maintain an action against a grant of the mortgaged lands who has assumed its payment; and without foreclosing the mortgage, or joining the mortgagor as co-defendant. Ct. of Appeals, 1861, Burr a. Beers, 24 N. Y., 178. 3. Under the Code no trouble arises as to the form of an action, whether on the case, or directly on contract. If the facts stated in the complaint give a right of action, the plaintiff may recover on that complaint. Supreme Ct., 1861, Scott a. Pilkington, Ante, 280. 4. The statute (1 Rev. Stat., 768, §§ 8-10)-making a promise in writing to accept a bill of exchange an actual acceptance in favor of those who, on the faith of such promise, have drawn or negotiated such bill-does not take away the common-law remedy to which the facts of any particular case may entitle a party. Ib. 5. Such a promise made here, though to be performed in England, is to be governed in its obligations and interpretation by the laws of this State. Ib. 6. Where the complaint prays for the specific performance of a contract to convey lands or for damages, but shows that the defendant is incapable of conveying, and the parties go to trial, the court, under the Code, is not to dismiss the complaint, but to retain the case for the purpose of awarding damages. It was a well-settled rule under our former judicial system, that a court of equity, where such relief only is attainable, would not have retained the suit for the purpose of award AFFIDAVIT. ing a compensation in damages, for the non-performance of a contract to convey; for the reason that actions for damages only were properly cognizable in courts of law in which a perfect remedy could be had. Under our present arrangement, the same court has both legal and equitable jurisdiction, and if the facts stated by a party in his complaint are sufficient to entitle him to any of the relief asked, and an answer is put in putting these facts in issue, it would be erroneous to dismiss the complaint on the trial merely because improper relief is primarily demanded. [2 Kern., 333; 17 N. Y., 270; 2 Seld., 165; 3 Paige, 314; 4 Ib., 77; 21 How. Pr., 296.] Ct. of Appeals, 1861, Barlow a. Scott, 24 N. Y., 40. 7. A subscriber for stock in a corporation, not fully paid, on making a sale of property to the corporation, was credited on its books for a part of the price, and the residue was credited to another person, who held as collateral some stock also partly unpaid. Held, that the relation between the corporation and the former was that of debtor and creditor, and did not entitle the former to maintain an action against the corporation and such pledgee, to have the credit transferred. Supreme Ct., Sp. T., 1863, Craig a. Hyde, 24 How. Pr 313. 8. An action of a purely equitable nature cannot be retained for the sole purpose of giving dainages which the complaint does not demand. Supreme Ct., 1860, Van Beck a. Village of Rondout, Ante, 48. 9. Subdivision 2 of section 136 of the Code,-which provides if the action be against defendants severally liable, the plaintiff may proceed against the defendants served, in the same manner as if they were the only defendants,-is not restricted to common-law actions on contract. Supreme Ct., 1862, Billhofer a. Heubach, Ante, 143. CAUSE OF ACTION; PARTIES, 2. AFFIDAVIT. 1. An affidavit stating that a notice was left with another person to be posted up, "which was done,"-Held, sufficiently to aver that it was posted. Ct. of Appeals, 1861, People a. Carpenter, 24 N. Y., 86. 2. Where, upon a claim being disputed, the claimant offers to be satisfied if the other party will swear that nothing is due, and the latter makes an affidavit to that effect, such affidavit is a bar to an action upon the claim, irrespective of its truth. It is not necessary, in such case, that the affidavit should be given up to the claimant. A mere inspection of it is all to which he is entitled. N. Y. Com. Pl., 1862, Rourke a. Duffy, Ante, 340. Оатн. AMENDMENT. ALIMONY. The rule as to the payment of alimony, is that the same is to be paid up to the entry of the final judgment, even if the decision at the trial should be adverse to the wife. Supreme Ct., 1862, Moncrief a. Moncrief, Ante, 187. AMENDMENT. 1. A plaintiff, within twenty days after service of his complaint, containing several causes of action, may amend his complaint, of course, without costs, by striking out a cause of action. Watson a. Rushmore, Ante, 51. 2. An amended complaint need not be so designated on its face. Hurley a. Second Building Association, Ante, 206, note. 3. In an action both for equitable relief and for damages, after plaintiff has lost the right to settle the issues by suffering his time to pass, he is not entitled to amend on the trial, and to proceed to recover the damages before a jury, nor to put the cause over to enable him to move for leave to amend, without showing sufficient cause therefor. Supreme Ct., 1861, McCarty a. Edwards, 24 How. Pr., 236. Compare Barlow a. Scott, 24 N. Y., 40. 4. An amended complaint, made for the purpose of adding new parties, cannot be treated as a new action, so as to set up the original complaint as a former action. Hurley a. Second Building Association, Ante, 206, note. 5. It is irregular for a plaintiff to amend his complaint as to one defendant, without notice to the other. Fassett a. Tallmadge, Ante, 205. 6. A mistake in giving notice of appeal to the adverse party only, and not also to the clerk, is not amendable. Supreme Ct., Sp. T., 1862, Ellsworth a. Fulton, 24 How. Pr., 20. 7. What defects in an execution are amendable? Abels a. Westervelt, Ante, 230. 8. By the settled practice of the Surrogates' Courts, the original decree of the surrogate is a paper signed by the surrogate; and the record or minutes, which the statute requires to be kept, is regarded merely as the enrolment, which may at any time be amended to conform to the decree itself. Munro's Estate, Ante, 363. 9. When a judge of the county acts as surrogate, pursuant to the statute, his signature, if affixed in his own name, without an official addition, may be amended by supplying that addition. Ib. 10. Amendment allowed in mandamus cases as in actions. Laws of 1863, ch. 392; amending Code of Pro., § 471. JUDGMENT, 3. ANSWER. ANSWER. 1. The Code permits any material allegation of a complaint to be put in issue, by an answer that the defendant has no knowledge or information thereof sufficient to form a belief as to its truth. N. Y. Superior Ct., 1860, Livingston a. Hammer, 7 Bosw., 670. 2. An answer, denying knowledge or information sufficient to form a belief as to the allegation of a material fact not presumptively within the defendant's knowledge, cannot be treated as frivolous. N. Y. Com. Pl., 1862, Richter a. McMurray, Ante, 346. 3. In an action for false imprisonment, the defendants cannot deny knowledge or information as to the allegation that they caused to be issued the writ on which the plaintiff was arrested; and an answer to a verified complaint, making that the issue, may be struck out as sham, upon motion, without any additional affidavit in support of the motion. N. Y. Superior Ct., Sp. T., 1862, Lawrence a. Derby, Ante, 346, note. 4. To require a domestic corporation plaintiff to prove its corporate organization, the defendant must specially plead the non-existence of such corporation, as required by 2 Rev. Stat., 458, § 3. Supreme Ct., 1863, Park Bank a. Tilton, Ante, 384. 5. An allegation in an answer in an action brought by a corporation, that defendant is informed and believes that the plaintiffs are not a corporation, does not amount to a plea that they are not a corporation, within 2 Rev. Stat., 458, § 3. It should be pleaded expressly. N. Y. Superior Ct., 1860, East River Bank a. Rogers, 7 Bosw., 493. 6. A claim for recoupment against the cause of action, though it be not a full defence to the whole cause of action, may be set up by answer as a defence; and, if it were otherwise, the plaintiff could not disregard such an answer as therefore frivolous, and enter judgment as of course. Supreme Ct., 1862, Ross a. Longmuir, Ante, 326. 7. A defence that in action by one K. against plaintiffs, they set up the same matter and cause of action, and that K. had verdict and judg ment,-Held, bad, as not showing privity between K. and defendants. N. Y. Com. Pl., 1862, Goddard a. Benson, Ante, 191. 8. In an action on an undertaking to pay any sum which might be recovered against A. and B., the complaint alleged that, "on or about" a day named, judgment was "duly rendered and docketed," &c. The answer denied that judgment was "entered on" the day named, &c. Held, frivolous. N. Y. Superior Ct., 1860, Livingston a. Hammer, 7 Bosw., 670. 9. On a motion for judgment, on account of the frivolousness of an an |