Civil Procedure Reports: Containing Cases Under the Code of Civil Procedure ...

CIVIL

Jg1 30

PROCEDURE REPORTS.

CONTAINING CASES UNDER THE

CODE OF CIVIL PROCEDURE

AND

THE GENERAL CIVIL PRACTICE

OF THE

STATE OF NEW YORK.

REPORTED WITH NOTES

BY

HENRY H. BROWNE

OF THE NEW YORK BAR.

WITH A REFERENCE TO THE SECTIONS OF THE CODE CONSTRUED OR
CITED IN THE REPORTS ISSUED BETWEEN JULY 1, 1882,
AND DECEMBER 31, 1882.

VOLUME II.

NEW YORK:

S. S. PELOUBET & CO.,

LAW PUBLISHERS AND BOOKSELLERS,

80 NASSAU STREET.

1883.

COPYRIGHT.

8. S. PELOUBET,

1883.

Kec. Feb. 12, 1883

Party as witness against executor, etc., of deceased

person.

620, 3268 MCCALL 2. FRITH.....

Undertaking given on procuring injunction applies

only to damages sustained by reason of the injunc-

tion; does not affect defendant's right to security

for costs.

ESTATE OF MOLLOY...

Limited letters of administration: limitation to be

removed or modified by order of surrogate made on

further security; proper practice under § 2667.

ANDREWS v. SCHUITZLER...

Costs on dismissing complaint where case has been

noticed for trial.

KLEINPETER v. ENELL....

Court cannot destroy defendant's right to require an

infant's guardian ad litem, to give security for costs

by permitting him to sue in forma pauperis.

In re Daly (note)......

453 et seq.,

469

191, 2231,

Infant cannot sue as poor person.

Sпaw v. McCarTY. . . . .

23

2260, 2261

Summary proceedings; when, cannot be maintained;

appeal lies from marine court, general term, to gen-

eral term of court of common pleas.

Supplementary proceedings; affidavit proving fail-

ure to appear necessary in proceedings to punish for

contempt.

[iii]

Answer to verified complaint in action for libel need

not be verified; laches waives failure to verify

MCINTYRE v. STRONG...

36

1326

Withdrawing or changing deposit made in lieu of

undertaking on appeal.

1464, 1466 NEHRBOSS . BLISS...

39

Redemption by judgment debtor of real property

of his debtor sold under execution.

542

CLIFTON . BROWN.

44

Serving notice of trial does not waive right to

amend pleading.

755, 760

HOLSMAN v. ST. JOHN.....

48

1778

Action cannot be revived where both parties dead.

BRADLEY V. ALBEMARLE FERTILIZING Co.........

By joining cause of action on note with one for

goods sold and delivered, in an action against a

corporation. a plaintiff waives his right to an order

directing that the issues be tried.

50

2091

PEOPLE ex rel. BROWN v. MCADAM

52

438, 439

Summary proceedings; writ of prohibition will

not lie where justice has jurisdiction.

SMITH V. MAHON....

55

155, 587

Service by publication: absence of proof of dili-

gence in effort to serve, where it may be inferred,

does not deprive court of jurisdiction.

COSGROVE v. Bowe.

61

In action for escape, complaint must show prisoner

went beyond jail liberties; may be maintained where

prisoner is held under mesne process. Sheriff may

avail himself of every defense prisoner would have

had.

3047

SHERWOOD v. THE TRAVELERS' INs. Co...................

67

Clerk of district court not to pay costs on appeal

to respondent until judgment is affirmed.

3271

SULLIVAN v. Remington MF'G Co.....

68

No security for costs required in action revived by

administrator.

803

MARTINE . ALBRO....................

70

Discovery of books of copartnership in action

against one partner.

Sections of the

Code of Civil Procedure.

Discovery not allowed unless it relates to maintain-

ing applicant's case.

Action for causing death; person entitled to dam-

ages may release claim.

2067, 2070 THE PEOPLE. THE N. Y., LAKE ERIE AND WEST-

ERN RAILROAD COMPANY.

604

When writ of mandamus will not be issued; will

not be issued in doubtful cases, or where there is a

complete remedy at law; must distinctly state the

acts or duties by it commanded to be performed.

CASSELL v. FISK....

Injunction to restrain summary proceedings should

not be granted unless necessity for, and right to,

are very clearly established.

82

94

2650, 2672,

ESTATE OF RIEGELMANN....

98

2717, 2718,

2719

When surrogate may direct payment of legacy;

cannot do so pending appeal from decree admitting

Denial of motion for security for costs does not

affect liability of attorney; mode of enforcing at-

torney's liability for costs.

1946

111

DECKER V. KITCHEN........

When judgment against one joint debtor does not

extinguish cause of action against the other.

HURLBURT v. DURANT...

Proceedings in surrogate's court to compel executor

to pay legacy; petition should be dismissed if veri-

fied answer shows petitioner's claim to be doubtful;

duties of executor and testamentary trustee sepa-

rable.

MACK. COHN.....

Attorney cannot be imprisoned for non-payment of

costs of appeal from order unless they were awarded

in a proceeding prosecuted by him with improper

motives.

417, 1897 THE MAYOR v. EISLER....

Summons in action for penalty given by city ordi-

nance must have a general reference to ordinance

indorsed upon it, if complaint is not served with it;

attorney's signature to summons may be printed.

115

122

125

Books

Civil Procedure Reports: Containing Cases Under the Code of Civil ..., Band 2