Mathis agt. Vail. other words, he is to make an order that the plaintiff is entitled to judgment, notwithstanding the answer. The decision is not the determination of an issue. On the contrary, it is determined that no issue, such as the law authorizes, has been joined. (See Gould agt. Carpenter, 7 Howard, 97.) The effect of the decision is, to deprive the defendant of the benefit of his answer, and to declare that the plaintiff is entitled to the same judgment as if no answer had been interposed. The decision is not a judgment, but it authorizes the plaintiff to proceed to obtain judgment. The application is not for judgment in the action, but for judgment upon the pleading alleged to be frivolous. The judge pronounces "judgment thereon," and thus the unauthorized obstruction in the way of the plaintiffs' obtaining a final judgment in the action is removed. Such a decision is an order, and not a judgment, as these terms are defined in the Code. It also involves the merits of the action. The question decided is, whether the answer does or does not contain a defence to the action, or some part thereof. It follows, that the decision is appealable under the provisions of the 349th section of the Code. The motion to dismiss the appeal should therefore be denied, but I think it should be without costs. SUPREME COURT. MARSHAL A. MATHIS agt. DAVID P. VAIL. A motion noticed for chambers in the first district, if not heard on the day for which it is noticed, stands over, as a matter of course, to such day as it can be heard, or is disposed of by one party or the other. What applications to be heard at chambers, how, when, &c. At Chambers, New-York, Feb., 1855. THE defendant had noticed a motion at chambers for Monday, February 5th. On that day plaintiff appeared, to oppose Mathis agt. Vail. the motion; but, finding there was no judge at chambers on that day, left, supposing another notice must be given before the motion could be made. On Tuesday, February 6th, the defendant appeared; but, on account of the press of business, was unable to make the motion. On Wednesday, February 7th, the defendant again appeared, and took his motion by default. The plaintiff now moves to set aside the order so taken by default, for irregularity. I. T. WILLIAMS, for plaintiff. T. FESSENDEN, for defendant. CLERKE, Justice. All special motions are to be heard before the court, and not before a judge out of court; with a few exceptions such as the proceedings under § 247 of the Code. The judge sits at chambers, principally, to attend to the latter out of court business, consisting of ex parte orders, not requiring notice, the issuing of writs of habeas corpus, and the hearing on the return to such writs, the examination of witnesses de bene esse, the examination of judgment debtors under supplementary proceedings, &c. These, when not heard, require to be separately and specifically set down for a particular day. In addition to this business, frequently, in fact, daily, while sitting at chambers, he holds a special term, to hear short contested motions, and applications for judgment in certain cases. All such motions that are not heard on the day for which they are noticed, in consequence of the inability of the court to hear the same, stand over, as a matter of course, until the next day, unless a different disposition should be made by the direction of the judge, or the consent of parties. The fact, that a calendar of motions is not made at chambers, is no reason why this practice should not obtain. The calendar is employed in the Saturday chambers of the court, to apprise the judge of the titles of the actions, and to arrange the order in which the causes should be heard, or tried. It is not at all essential to the continuance of the cause before him; and when he adjourns, all matters before the court on that day, Oothout agt. Rhinelander. on notice, and not heard, stand over without further order, whether he has, or has not a calendar, until the day to which he adjourns. I see no reason, therefore, for vacating the order obtained in this case. SUPREME COURT. ОоTHOUT agt. Rhinelander. The expression, "at his place of residence,” used in § 411 of the Code, in reference to service of papers by mail, is to be deemed to relate to the postoffice, and not to any particular locality in a town or city-(street and number.) Therefore, held, that service of a copy complaint, mailed at Fonda, N. Y., di rected to the defendant's attorneys, “New-York,” was good, although it appeared that the latter attorneys signed their notice of appearance, &c., "No. 52 Grove-street, in the city of New-York." Essex Special Term, March, 1855. THIS was a motion to dismiss the complaint, because a copy of it had not been served on the attorneys of the defendant, pursuant to demand. Messrs. Morris & King gave notice of appearance, and demanded that a copy of the complaint should be served upon them at their "office, No 52 Grove-street, in the city of New-York." They never received a copy of the complaint; but by the affidavits of the attorney for the plaintiff, and the deputy post-master at Fonda, it appeared that a copy was mailed in season, directed to "Morris & King, Esqs., Counsellors, &c., New-York." On that fact appearing, the defendant insisted that the service was insufficient. F. W. KING, for defendant. R. S. HALE, for plaintiff. HAND, Justice. I think the service sufficient, notwithstanding the address did not state the number of the street, or even La Cliaise and Fauche agt. Lord, Brown, and Marks. the street; but was merely directed to the attorneys of the defendant in "New-York." The latter required the direction to include the street and number designated by them. This is safer; and sometimes, when directed to a person in a city, has been deemed necessary on service of notice of non-acceptance of bills of exchange, &c., at least in England. (Chit. on Bills, 474; Bayl. on Bills, 280, 283; and see 3 M. & W. 166; Ry. & Mood. 149, 249; Story on Bills, § 298, and note.) And, probably, the package in this case was lost for want of more particularity. Still, I think it is better to have a uniform rule; and I believe the expression, "at his place of residence," used in § 411 of the Code, has been deemed to relate to the postoffice, and not to any particular locality in a town or city. (See Rowell agt. M'Cormick, 5 How. Pr. R. 337.) That will generally be sufficient. Had the attorney for the plaintiff been informed there were other firms of the same style, or of any other circumstance rendering further designation necessary, a non-compliance with the request to specify the locality might have been evidence of bad faith. The motion to dismiss must be denied; but the plaintiff must serve another copy, or file the complaint with the clerk. LAW SCHOOL HARVARD LIBRARY. NEW-YORK COMMON PLEAS. ARMAND LA CLIAISE & VICTOR FAUCHE agt. GEORGE P. LORD, Limited partners, having a special partner, on dissolution, after purchasing the interest of the special partner in the concern, and transferring to a new firm of general partners, composed of themselves, (not including the special partner,) all the assets of the limited partnership, and assuming all its debts and liabilities, and on failing, from subsequent insolvency, to pay the debts of the limited partnership, cannot compel the creditors of the limited partnership to rely upon the individual liability of the members of the new firm. No such arrangement can deprive the creditors of the limited partnership of their right La Cliaise and Fauche agt. Lord, Brown, & Marks. to insist upon the application of the assets still remaining in the hands of that firm, to the payment of their debts. If, upon a dissolution of a firm, one partner may sell to the other partner all his interest in the assets of the firm, and if such transaction is bona fide, and for the purpose of winding up the affairs of the firm, a creditor cannot take such property from liens obtained against it by the creditors of the partner making the purchase (1 Barb. Ch R. 480;) such a doctrine can apply in the case of a limited partnership-Quere? A simple contract creditor is not entitled to an injunction and receiver in an action in his own behalf, against an insolvent firm. It is otherwise where the action is brought, not for the benefit of the plaintiff solely, but of all the creditors of such firm. A judgment creditor can only have an order allowing a receiver to take sufficient of the assets of the firm to obtain the means of discharging his debt; and, until he is a judgment creditor, there is no propriety in giving him a receiver, unless in a case where the effect of such receivership will operate to secure all the creditors of the firm. A motion for injunction and receiver will not be granted where all the defendants, sought to be made liable as partners, do not admit the indebtedness. The power of appointing a receiver should only be exercised when the claim is undisputed, and where the property will, as speedily as possible, be applied to the use of the creditors. The mere pendency of an action in behalf of all the creditors against an insolvent firm, whether prior or subsequent in its commencement, affords no ground to stay proceedings in other like actions against them, until after judgment has been entered in a case in which the other creditors can come in and make themselves parties. Special Term, January, 1855.-MOTION for an injunction and a receiver. Lord & Brown had formed a limited partnership, and Marks, as special partner, advanced $20,000. The partnership was to continue five years. During the first three years, Marks drew out a large part of his advance as interest and profits, the firm believing the partnership solvent; and before its termination he sold out his interest in the concern to Lord & Brown. Lord & Brown thereupon transferred to a new firm, composed of themselves, all the assets of the limited partnership, and assumed the debts; and, after paying about one half of the debts so assumed, became insolvent. The plaintiffs commenced this action against the members of the limited partnership for a debt they held against the firm, and also against the special partner, seeking to charge him as |