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had been a partner, and supposed
that he then was, provided it was
also a matter of public notoriety,
on and after the formation of the
new firm, that it had been formed
by such co-partner and third per-
son, in a new name, and that it had
in fact transacted its business in
such new name. Holdane et al. v.
Butterworth,

.1

2. In the taking and stating of an
account between partners, in an
action brought for that purpose, the
mere fact that certain items were
charged after the dissolution of the
firm, upon its books, to profit and
loss, by some of the partners, is not
of itself prima facie evidence against
the other partners that they are
items of loss properly chargeable
to the firm. Boyd v. Foot &
Cole,....

..110

3. Where, on such a stating of an
account, it appears that all of the
partners, except one who with-
drew, continued the same business
in the name of the old firm, and,
subsequently to the dissolution, took
a judgment from a dealer with the
old firm as security for the whole
sum then owing to the firm, and
after that, settled with him and gave
him a receipt in full. Such facts are
prima facie evidence that they were
paid in full the balance owing to
the old firm at the time it was dis-
solved.

.id

4. Where the capital contributed by
the retiring partner consisted in part
of a note made by a third person,
and the continuing partners subse-
quently recovered a judgment on
such note, and issued an execution
which was returned satisfied, the
presumption is that the continu-
ing partners collected such judg-
ment.

.id

though there be no specification of
it, or of the facts in respect to it,
contained in the pleadings.......id
Vide PRACTICE, title AMENDMENT, 2.

PARTY WALL.

Vide PRACTICE, title INJUNCTION.

PASSAGE MONEY.

1. Insurance the on, what is the
contract, and what constitutes a loss
within the policy. Howard et al. v.
The Astor Mutual Insurance Com-
pany, ,

..38

PAYMENT IN ADVANCE.
1. Freight when not recoverable back
although the goods are not trans-
ported.....

.460

PLEADINGS.

1. Generally.
2. Complaint.
3. Answer.
4. Demurrer.

1. Pleadings Generally.

1. Where, in an action by the indor-
see of a note against the makers, the
complaint alleges the making by the
defendants of a note payable by its
terms, to the International Insu-
rance Company, or order, that such
Company afterwards and before its
maturity "duly indorsed the said
promissory note, and the same was,
thereupon, duly transferred and des
livered to the plaintiff;" and where
the answer merely avers that said
Company never had “any legal
existence as a corporation," and de-
nies that "it had any legal power
or capacity to transfer said note to

5. On an accounting between part-
ners, the defendants have the right
to have each partnership trans-
action investigated, and its results
embraced in the account to be stated

the plaintiff by its indorsement or
otherwise;" the making of the note
by the defendants, and its actual
and due indorsement and transfer
by the Company, are admitted if
proof be given of the incorpora-
tion of such Company under a
charter authorizing it to transfer
by indorsement promissory notes
which it may own. Ogden v. Ray-
mond et al.,

16

2. Under such pleadings the defend-
ants cannot show that the note,
with others, amounting in all to
over $1,000, was transferred with-
out a previous resolution of the
Board of Directors of the Company
anthorizing such transfer........il

3. Nor can they under such pleadings
show that some of the original sub-
scribers, whose subscription notes
were taken as the capital stock on
its commencing business, were irre-
sponsible and minors..

.id

loan, or were held at the time of
the trial.

...id

2. Complaint.

6. A complaint which states that
the defendants, as agents for the
plaintiff, purchased stock, and on
a settlement of the contract of
purchase the vendor was found in-
debted in a sum specified, for which
the vendor gave notes to the de-
fendants as such agents, which they
received for the plaintiffs, and which
have since been paid to them, and
that they refuse to pay over the
same to the plaintiff, states facts
sufficient to constitute a cause of
action, although it does not state
how the vendor of the stock did
or could become indebted to the
vendee. Bates v. Cobb et al., ... 29

4. Nor can they show under such
pleadings that the corporation was
dissolved and a receiver of its effects
appointed, by due judicial proceed-
ings, subsequent to the transfer by
the Company of the note thus sued
upon....

...id

7. It would, it seems, have been
sufficient if it had stated that the
defendants, as agents of the plain-
tiff on a settlement with a third per-
son received a note for the plaintiff
which was paid to them at maturity
and they refuse to pay over the
money....

...id

5. Where, in such an action, and up-
on such pleadings, the pleadings
alleging no other defense except that
the note was an accommodation
note and was known to the plaintiff
to be such when he took it, and
that it has been paid from other
collaterals transferred with it as se-
curity for a loan made to the Com-
pany, and where it has been proved
that a loan of $15,000 was made on
the security of $19,000 of collaterals
including the note in suit, and that
only $12,000 of the loan has been
repaid; it is not error to reject evi-
dence of the whole number of col-
laterals; or that judgments have
been obtained upon some of the
collaterals, or of what securities
were at any time received for the

8. A complaint in an action brought
to set aside a conveyance of land as
fraudulent, as against the plaintiff,
a judgment creditor, does not state
facts sufficient to constitute a cause
of action, if it does not state that
an execution has been issued on
the plaintiffs' judgment. Mc Cullough
v. Colby et al.,

.477
9. Where an action is brought by
several creditors of a limited part-
nership as plaintiffs, against the
members of such partnership and
their general assignee, under an
assignment made for the benefit of
creditors, to remove such assignee,
procure the appointment of a Re-
ceiver, and compel a distribution of
the assets, and the complaint merely
states that one of such plaintiff's is
a creditor in a sum specified, “on
several promissory notes of said

PLEDGE.

1. Of Goods.

firm made before the execution of
said assignment," and that another
plaintiff is "a creditor in the sum
of $1,900 and upwards," the com-
plaint, will be ordered to be made
more definite and certain, so as to
state the several causes of action as
particularly as is requisite in an ac-
tion to recover a judgment in per-
sonam for the same causes of action.
Gray et al. v. Kendall et al., ....666

10. A complaint which seeks to charge

the separate estate of a married wo-
man upon her promise must show
that the consideration of the promise
was some benefit to her separate
estate, or that there was a distinct
intention on her part to charge her

separate estate. Palen v. Lent, 713
11. It is not necessary that a corpo-

ration, plaintiffs, should in the com-
plaint allege that the plaintiffs are
a corporation. Lighte v. The Ev-

erett Insurance Company, .....71€
12. Nor is it necessary, in declaring

against a corporation, to allege that
the defendants are a corporation. id

1. When an advance of money is
made on the security of wheat re-
presented to be shipped, with the
understanding that the lender shall
thenceforward have the control
thereof, and that the bill of lading
shall be issued to him, and it is so
issued making the wheat delivera-
ble to his order, the pledge is valid,
the advance is to be deemed made
on the credit of the wheat and the
lender is entitled to retain the wheat
notwithstanding the pledgor has
broken the condition upon which
the wheat was delivered to him.
Durbrow et al. v. McDonald et
al.,

.130

2. Of Stock.

2. A bank that receives shares of it
own stock as security for a note
discounted and causes it to be trans-
ferred to its president, does not by
merely neglecting to sell the stock,
extinguish it nor lose the right to
collect the note. The delay is not
an acceptance of the stock in satis-
faction. Butterworth, Receiver, v.
Kennedy,

.143

3. Answer.

13. An answer which professes to set

up a counterclaim, to be sufficient as
a pleading, must state facts which
constitute a cause of action in favor
of the defendant against the plain-
tiff. Merritt v. Millurd, .:.645

3. Of Notes.

Vide COUNTERCLAIM.

3. A moneyed corporation may trans-
fer notes as security for moneys
loaned to it, for the purposes of its
business. Holbrook v. Basset et
al.,

...147

4. Demurrer.

14. An answer which professes to set

up new matter as a defense, and
does not state facts which constitute
one, may be demurred to for insuffi-
ciency, if pleaded after chapter 723,
of the Laws of 1857, took effect.
(Laws of 1857, vol. 2, p. 554, § 153.)
Merritt v. Millard,

4. On a pledge of notes as such se-
curity, with power to sell the same
at public or private sale for the re-
payment of the loan, a sale is not
the only mode in which the securi-
ty may be available—the notes may
be collected—the pledge of pro-
missory notes as security er vi ter-
mini imports power to collect, and
to collect by suit if necessary. Nel
son et al v. Wellington,.. .178

.645

Vide PARTNERS, 5.

1. Amendment.

1. Where, on the trial of an action
of ejectment, the defendant is per-
mitted to amend his answer, and
allege that his possession is that of
a mortgagee in possession, the plain-
tiff may, in the discretion of the
Court, amend his complaint so as to
convert the action into one to redeem
from the defendant as a mortgagee
in possession. (Per HOFFMAN, J.)
Stoddard v. Rotton,

..378

2. A. & W. being partners, A., with
the consent of W., transferred all his
interest to D.; D. and W. cove-
nanting with A. to continue the
same business, and to collect and
apply the assets of the old firm,
(except such as was necessary to
pay current expenses,) to pay the
debts of the old firm. The new firm
becoming embarrassed, D. instituted
a suit against W. to obtain a disso-
lution of his partnership, an account-
ing between them and a proper ap-
plication and distribution of the
assets : Held, that A. could not, upon
petition, obtain an order that he be
made a party to the action, and that
the complaint be so amended as to
bring him before the Court on
pleadings presenting his alleged
right to an equitable application of
the property of the new firm, ori-
ginally belonging to the old firm, to
the end that his rights in such
property might be determined, and
the property distributed accordingly.
Dayton v. Wilkes,..... ...655

3. Such an action is not one for the
recovery of personal property with-
in the meaning of § 122 of the
Code.

id

5. The pledgee in such case may sue
in his own name, notwithstanding
the notes are indorsed to him in
this form, Pay- for account of
A. B." (the pledgor)-such indorse-
ment is not inconsistent with the
right to collect and apply the pro-
ceeds to the account of the pledgor
by discharging his debt.........id
See same point. Smith et al. v.

.319

Hall,..

POLICY OF INSURANCE.

1. In an action to recover the pre-
mium fixed in the policy neither
parol evidence of an agreement nor
evidence of usage not to require pay-
ment of the amount so fixed, can
be received. St. Nicholas Insurance
Company V. Mercantile Insurance
Company,

.238

PRACTICE

1. Amendment.
2. Appeal.
3. Clerk.
4. Contempt.
5. Counterclaim.
6. Discovery
7. Erceptions.
8. Joinder of Causes of Action.
9. Injunction.
10. Judgment.
11. Judgment Roll.
12. Jurisdiction of General Term.
13. Mistrial.
14. New Trial.
15. Order Appealable.
16. Parties.
17. Reference.
18. Service of Papers.
19. Stay of Proceedings.
20. Time.
21. Trial.
22. Undertaking.
23. Verdict.
24. Verification.

2. Appeal.

1. When an action is tried before the
Court without a jury, and the de
cision does not dispose of all the
questions in controversy but directs
a reference to state an account, no
appeal regularly lies to the General

Term from the order or decree until
after such reference and final judg-
ment thereon. Griffin v. Cranston
et al., ...

.658

5. The proceedings on the appeal to
the General Terin in the case, as last
stated, were not without jurisdiction
in such sense that the order of the
General Term was void; nor will
those proceedings embarrass the
plaintiff in prosecuting his case on
the new trial and subsequent pro-
ceedings to final judgment. .....id

2. But when the trial of an action is
begun all the issues should be tried
and disposed of, so far as the rere-
rence ordered to take the account
does not embrace them.

There are
not to be two trials, one before and
one after the reference. Where a
reference is ordered on a trial, in
order to enable the Court to give
judgment, the hearing which may
be had on the coming in of the re-
port of the Referee is not to be a
trial, but a mere review of what has
been done before the Referee, and
its confirmation or the contrary, and
the application of the decisions al-
ready made on the trial to the ac-
count stated.

..id

6. Where a defendant has a verdict
against him at the trial, and makes
a case to which amendments are
served, and judgment is entered on
the verdict while the case and
amendments are with the Judge to
be settled, the Court has the power,
after the time to appeal has expired,
to relieve the defendant from the
judgment, and permit him to be
heard on the case. Jellinghaus v.
The New York Insurance Com-
pany,

.678

3. If the trial begun before the Court 7. But in order to justify the granting
is terminated without deciding all of such relief, the case should be
the questions which onght to be de-

one of unquestionable mistake on
termined before the reference is

the part of the defendant, and evince
directed, and is left so unfinished

perfect good faith, and should be
that it should properly be deemed a meritorious. ..

...id
mistrial, then an order made on such
a trial, ordering a reference and ap-
pointing a Receiver, may be ap-

8. Granting such relief even in such
pealed from. Such a case is not a case is going to the extreme verge
within section 268 of the Code, of judicial discretion. ...id
forbidding the review of what is
done on a trial before a Judge,

9. If granted, it should be upon terms
except by appeal from the judg-

of securing to the plaintiff payment
ment.

id

of his verdict and costs, if a new

trial is denied; and an election to
4. And where an appeal to the Gene- admit service of notice of appeal as
ral Term was taken from an order

of the time that it might have been
made on a trial without a jury, ap- served as a matter of course, and
pointing a Receiver and directing a

thus restrict the defendant to a
reference to state an account be-

hearing, upon such appeal, of any
tween the parties, and such appeal

exceptions he may have taken at
was argued and decided upon the

the trial...

..id
merits, all of the proceedings on the
trial being reviewed and considered
and a new trial ordered, the Court 10. An order requiring the prevailing
refused to vacate the order granting party to cause the judgment roll to
a new trial and so reinstate the order be filed, and to pay costs of the
of reference and appointment of a motion, is an appealable order, and
Receiver, which they have decided will be reversed. Heinemann r.
to be erroneously made. ...id Waterbury, ·

.686

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