Digest averment. (Gardner agt. Scovill, 2. This is so even though the requests be unreasonable in number. 272.) 3. Where in a complaint in replevin to recover the possession of personal property it was averred (1), that the defendant detains the property set out in the schedule from the plaintiff; (2), that one Emma N. Scovill (not the defendant) executed and delivered to the plaintiff a chattel mortgage upon the property; (3), that by the terms of the mortgage the plaintiff had become entitled to the possession of the property; (4), that the defendant had its possession; and (5), refused to deliver it to the plaintiff on demand: Held, that the complaint is fatally defective, because it is not averred that the plaintiff is the owner or has title to the property, nor that he had the right of possession by virtue of a special property therein, as required by section 1720 of the Code of Civil Procedure. (Id.) REPLY. 1. In an action against an assessment insurance company, brought by a beneficiary to recover on a certificate of membership, where the defendant's answer alleged new matter, i. e., the making and non-payment of an assessment: Held, that, under section 516 of the Code of Civil Procedure, on motion of defendant's counsel, the court will require the plaintiff to reply to the new matter set up in defendant's answer. (Rogers agt. Mutual Reserve Fund Life Associ ation, ante, 194.) REQUESTS TO CHARGE. 1. A refusal of the court to pass upon a question of law requested by a counsel to be charged is an error for which the judgment should be reversed. (De Bost agt. Albert Palmer Company, ante, 501.) 1. 2. (Id.) SET-OFF. Where plaintiff had a verdict for forty-four dollars and nine cents, and judgment was entered for that sum, the defendant being entitled to costs, another judgment was entered for seventy-four dollars and ninety-four cents costs in his favor. The judgment in favor of the plaintiff, after its entry, and before the judgment was entered in favor of the defendant, was, by the plaintiff assigned to his attor neys in the action in consideration of their services as such attorneys: Held, that there were two judg ments entered in this action, where properly there could be only one, and that based upon the verdict, and in such case the lesser amount should be set off as against the larger of the sums to which the respective parties are entitled, and the judgment be effectual for the difference in favor of the party entitled to it. This right is one of the incidents of the action, and is superior to the lien of the attorneys or to the effect of an assignment. (Warden agt. Frost, ante, 364.) Right of the executor to set off against a legacy a claim due from a firm of which the legatee was the sole surviving partner. (Ferris agt. Burrows, 34 Hun, 104.) SHERIFF. 1. Where a sheriff makes a levy, Digest. no adjudication as to the ownership of the property levied on, the sheriff ought not to surrender it to a person whose claim the bond of indemnity makes it his duty to contest. Section 709 of the Code of Civil Procedure does not apply to such a case. (Id.) 3. A demand is not necessary before bringing an action where the sheriff levies upon the goods of a party not named in the process. (Id.) 4. Even if it had been the duty of the sheriff to surrender the goods on the setting aside of the attachment, notwithstanding he had received a bond of indemnity, his retention of the goods was ratified by the attaching creditors inasmuch as they subsequently appealed from the order vacating the attachment, and thereby manifested an intention to hold the goods, if possible; and they ratihed the sale of the goods under an execution, issued at their instance in the attachment suit, by accepting the proceeds of the execution sale. (Id.) 5. The stay under section 170 of the new Code, which stays proceedings against the sheriff until he can collect from the bondsman of an escaped judgment debtor, is discretionary and the court will not grant it where the sheriff has not proceeded with diligence. (Potts agt. Davidson, ante, 215.) 6. A third party order, before the return of execution need not contain the matters requisite to an affidavit and order to examine the judgment debtor himself before the return of an execution. It seems that supplementary proceedings can be maintained against the sheriff when he is a judgment debtor. (Potts agt. Davidson, ante, 216.) 7. In an action against the sheriff for an alleged tresspass in seizing 8. and converting plaintiff's property, it is a fatal objection to an order discharging the sheriff from liability, and substituting in his place as defendants several persons who claim to have indemnified him for his acts, that the moving papers fail to show that the applicants became indemnitors to the sheriff before the commencement of the action. (Hayes agt. Davidson, ante, 310.) The provisions of the Code restricting the remedy of a party to the indemnitors of the sheriff, would seem to contemplate a seizure by that officer of property under a single execution or attachment, and the substitution of indemnitors liable upon a single bond, where the liability of the obligors is necessarily co-extensive with that of the officer whose position as defendant they seek to occupy, and not the substitution of numerous indemnitors liable for distinct and separate levies where each applicant is made joint defendant with numerous applicants, applying by other attorneys, and in separate proceedings, although the individual consents of each of the several indemnitors appearing in the record authorize only an order making the applicant alone a party defendant in the action. (Id.) 9. A sheriff and his indemnitors, sued for trespass in levying upon personal property, the legal title to which is in plaintiff, under an execution against the person from whom plaintiff acquired title, may not attack the transfer for fraud without proving a judgment against the transferrer. (McKin ley agt. Bowe, 97 N. Y., 93.) SPECIAL PROCEEDINGS. 1. An application for an order re. quiring the receiver of an insolvent bank to pay over a fund held in Digest. trust by it is not a motion as defined by the Code of Civil Procedure (sec. 768), but a special proceeding "for the enforcement or protection of a right" (sec 3334) in which costs may be awarded in the discretion of the court as in an action. (People agt. City Bank of Rochester, 96 N. Y., 32.) STAY OF PROCEEDINGS. 1. The stay under section 170 of the new Code, which stays proceedings against the sheriff until he can collect from the bondsman of an escaped judgment debtor, is 2. Summary proceedings to recover land by a purchaser at a sale under execution Code of Civil Procedure, sec. 2232-the validity of the judgment cannot be collaterally attacked therein. (Gettings agt. Mohr, 34 Hun, 340.) 3. Parties- A new trial cannot be had in the county court on an appeal from a judgment in summary proceedings- Čode of Civil Procedure, secs. 2260, 3068 (See Brown agt. Cassady, 34 Hun, 55.) SUMMONS. discretionary and the court will 1. Action for penalties in a jus not grant it where the sheriff has not proceeded with diligence. (Potts agt. Davidson, ante, 215.) tic's court a proper reference to the statute must be indorsed upon the summons- Code of Civil Procedure, sec. 1897. (See Hitchman agt. Baxter, 34 Hun, 271.) SUPPLEMENTARY PRO- 1. A receiver may be appointed on the conclusion of the examination of a third person in supplementary proceedings, either before or after the return of the execution against the judgment debtor. (De Vivier et al. agt. Smyth, ante, 48.) 2. A third party order, before the return of execution need not contain the matters requisite to an affidavit and order to examine the judgment debtor himself before the return of an execution. It seems that supplementary proceedings can be maintained against the sheriff when he is a judgment debtor. (Potts agt. Davidson, ante, 216.) 3. In proceedings supplementary to execution, after examination, a motion was made to compel defendant to pay $215 to a receiver theretofore regularly appointed, Digest. which sum plaintiff claimed defendant was entitled to receive from a third party, and which defendant claimed to have disposed of by delivering to his attorney before service of the second order. An order was made 1. referring this question of fact to a referee, who took testimony and made his report in substance that defendant's claim was true, which report was confirmed: Held, that under section 2456 of the Code the justice properly allowed defendant his costs and disbursements and charged plaintiff therewith. Held, also, that a provision in said order that defendant first pay the fees of the referee and stenographer amounted in effect to a direction that said judgment be satisfied pro tanto, and in this said order was without authority of law, and that under section 2447 of the Code the justice was vested only with power to direct the application of any money or property in the possession or under the control of the defendant belonging to him to a sheriff designated in the order or to a receiver, if one was appointed. (Boelger agt. Swivel, ante, 372.) 4. Objections to the proper service of an order for the examination of a judgment debtor must be raised at the first opportunity. His appearance and submission must be regarded, if the order was null, as voluntary, whereby he waived objection if any to the jurisdiction of the person. (The Methodist Book Concern and Company agt. Hudson, ante, 517.) 5. Where defendant, a judgment debtor, was examined under an order which was set aside on the ground that the execution had not been returned at that time: 1. 2. considered as a second examination or as harassing. (ld.) SUPREME COURT. The supreme court has power, notwithstanding an appeal to this court, to make its record declare the truth as to its judgment, and so may, after an appeal, amend an order reversing a judgment entered on the report of a referee by adding a statement that the reversal was upon the facts as well as the law. (Nat. City Bank agt. Gold Ex. Bank, 97 Hun, 615.) SURETIES. In an action against the sureties on an undertaking ou arrest, where the nature of the cause of action and the right to the order of arrest are identical, commenced upon the vacating of the order of arrest, but before the termination of the action in which the order of arrest was granted: Held, that the sureties were not liable on the undertaking until judgment was rendered in the action for defendant. (Staab agt. Shupe et al., ante, 4.) After two sureties, A. and B., had executed a joint and several undertaking under sections 334 and 338 of the old Code for a stay of proceedings on appeal, A. justified, but when subsequently B. was examined, the justice before whom the examination took place filed a memorandum that he was not qualified, and that defendant in that action must produce another surety. Meantime, intermediate the filing of the memorandum and the entry of an order thereon, the defendant executed the undertakings upon which this action was brought, which were approved: Held, that by the memorandum and order referred to, the justice approved of A. as one of the sure 1. The surrogate has jurisdiction, Matter of Several Accountings, etc., of William Tilden, deceased, ante, 409. TAXES AND ASSESSMENTS. In a proceeding by the receiver of taxes to enforce the payment of a tax of $2,620, in the year 1881, on an assessment of $100,000 legally imposed upon an administrator of a deceased person, the administrator set up that the deceased resided and died out of the state, but had some personal effects here when he died; that he had no notice of any tax upon the lists in this city, supposing the deceased could not be taxed in this state; that the inventory of the estate, filed in the surrogate's office in New York county, showed $49,068.81 of assets after payment of debts upon which the tax legally chargeable would be $1,310: Held, that the tax having been imposed before the estate had been settled by the surrogate's decree, it was the duty of the respondent, before making the distribution under it, to ascertain what the liabilities under it were, whether for taxes or otherwise; that it was too late to question the quantum of tax, and that no cause was shown for either legal or equitable interference (Affirming S. C., 67 How., 113). (McMahon agt. Jones, ante, 270.) |