tiff to pray for the precise relief to which he is entitled is not a ground for demurrer, yet the character and nature of the relief demanded may properly be considered by the court, when passing upon a demurrer interposed to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. (Swart agt. Boughton, 35 Hun, 281.)

4. Where all of the allegations of the complaint are made for the purpose of procuring equitable relief, and that relief alone is asked for, the complaint cannot be sustained as a complaint in an action for legal redress, where no legal redress is asked for and where no answer has been served. (Id.)

5. The complaint in this action after stating, among other things, that the plaintiff was one of the children of one Schermerhorn, who had died intestate, seized in fee of a certain piece of real estate, alleged that the county treasurer of Monroe county executed, under his hand and official seal, as treasurer of the county, for the people of the state of New York, a deed or conveyance of the said premises to the supervisors of that county, and that the supervisors of that county subsequently conveyed the same to one of the defendants; that these deeds were recorded in the office of the clerk of the said county, and that the defendant was in possession of the premises thereunder; that the deed to the supervisors is by an act of the legislature made presumptive evidence of the regularity of the proceedings; that the proceedings are regular upon their face, and that the defects claimed by the plaintiff to exist can only be made to appear by extrinsic evidence and will not necessarily appear in any proceedings at law by the

force his rights under the conveyance. (Id.)

6. The complaint then alleged in general terms that the assessment, levy and sale were illegal and void, and that the acts required by the charter to be done prior to the assessment and conveyance had not been done, and that the deeds above mentioned were a cloud upon the title of the plaintiff and the other heirs-atlaw of said Schermerhoin, and asked that such deeds be adjudged inoperative and void and generally for other relief: Held, that as the complaint itself showed a prima facie title in the defendant, and as no specific facts establishing the invalidity of this title were alleged, but mere conclusions of law, the complaint did not state facts sufficient to constitute a cause of action and that a demurrer thereto should be sustained. (Id.)

7. The summons in this action was served upon the defendant in the state of Virginia. An answer, verified by himself, was served by R. L. Harrison, who subscribed it as "attorney for defendant." The first defense in the answer alleged that the defendant was not at the time of the commencement of the action or the service of the answer a resident of the state of New York, and that he had no property therein, and had not been served with a summons therein: Held, that as the facts showing that the court had no jurisdiction over the defendant did not appear from the face of the complaint the defendant properly set them up in his answer, and that the service of such answer so subscribed by his attorney could not be regarded as a general appearance rendering him amenable to the jurisdiction of the court. (Hamburger agt. Baker, 35 Hun, 455.)

separate defenses to the action: Held, that the old rule preventing a defendant from joining a plea in abatement with one in bar was no longer in force, and that the addition of the other defenses to the first did not prevent the defendant from insisting upon the latter. (Id)

9. In this action, brought by the plaintiff, a charitable corporation, to recover damages for a libel alleged to have been published by the defendants, the complaint alleged, among other things, that by reason of the publication persons, who otherwise would have done so, had ceased and refused to contribute or make donations to it. Two of these persons were named in the complaint, and others were referred to as John Doe and Richard Roe and others whose names were unknown to the plaintiff: Held, that it was proper for the court to grant an order requiring the plaintiff to furnish a bill of particulars stating the names of the persons who, by reason of the matters alleged in the complaint, had ceased or refused to make contributions to or for the benefit of the plaintiff. (N. Y. Infant Asylum agt. Roosecelt, 35 Hun, 501.)

10. The complaint in this action alleged, among other things, that on the 26th day of September, 1883, the plaintiff was the owner and entitled to the immediate possession of certain leaf tobacco; that on that day the defendant wrongfully took, carried away and sold the same. The present defendants, the indemnitors of the sheriff, the original defendant, having been, upon their own application, substituted as defendants in his place, served an answer containing a general denial and an allegation that at the time named Klinger Brothers were the owners of the tobacco. Upon the trial the plaintiff proved that she had purchased the propVOL. II

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erty at a sale upon executions issued upon judgments recovered by herself and a daughter against Klinger Brothers, and that thereafter the sheriff seized and sold the property under attachments issued against Klinger Brothers. The defendants offered to prove that the judgments under which the plaintiff claimed were fraudulent, and entered for the purpose of defrauding the creditors of Klinger Brothers, and also that the levy and sale upon the execu tions were irregular: Held, that the court properly excluded the evidence as inadmissible under the answer. (Klinger agt. Bondy, 36 Hun, 601.)

sold or given away by the said | Ames, his agents or servants, at and upon said place;" that while | so intoxicated, and in consequence thereof, her husband was drowned, and by reason thereof the plaintiff was injured in her prop- | erty and means of support, for which latter she was wholly dependent upon said Amos Ford: Held, that the complaint sufficiently alleged a sale or giving | away of intoxicating liquors by the defendant to the husband to justify the co art in overruling a demurrer interposed to the complaint upon the ground that the facts stated therein did not constitute

a cause of action. (Ford agt. Ames, 36 Hun, 571.)

13. In this action, brought by the plaintiff's intestate to recover a life estate in land, which she alleged she had been induced, by the defendants' fraud, to convey to them, no demand for damages for the detention thereof was made in the complaint. After her death her administrator, alleging that the action had been pending for several years, during which time a large amount of rents and profits had accrued, procured an order reviving the action in his name and allowing him to serve a supplemental complaint, in which he sought to recover the damages resulting from such detention: Held, that the order was a proper one and should be affirmed. (De Lisle agt. Hunt, 36 Hun, 620.)

14. Motion to make a complaint more definite and to state causes of action separately-within what time it must be made - Code of Civil Procedure, sec. 546-General Rule No 22-when the right to make such a motion is waived, by procuring an extension of the time to answer or demur. (Sec Brooks agt. Hanchett, 36 Hun, 70.)

15. No reply is necessary when a claim, on the part of a defendant, is set up simply as a defense and

19. It is not essential that the complaint in an action for negligence shall allege absence of contributory negligence on the part of plaintiff; such an allegation is substantially involved in the averment that the injury complained of was occasioned by defendant's negligence. (Le agt. Troy C. G. L. Co, 98 N. Y., 151.)

20. A party is under no obligation to state in his pleading the theory of law upon which his claim is based; he is required only to state the facts, and if sufficient to constitute a cause of action or defense, the pleading is not demurrable because the legal effect of the facts is not stated, or even because the proper form of relief is not demanded. (Hemmingway agt. Poucher, 98 N. Y., 281.)

21. It is not necessary for defendant in an action to recover damages for negligence causing death, to allege that the wrong was committed in another state; it is for the plaintiff to allege and prove that the cause of action arose

within the jurisdiction. (Debevoise agt. N. Y., L. E. and W. R. R. Co., 98 N. Y., 377.)

22. The practice of referring in an answer to parts of the complaint which the pleader intends to admit or deny, as "at" or "between" certain folios, does not conform to the spirit of the provision of the Code of Civil Procedure (sec. 22), which requires pleadings to be made out "in words at length and not abbreviated," and serves no useful purpose on appeal where original folios do not appear in the case. (Caulkins agt. Bolton, 98 N. Y., 5.1.)

PRACTICE.

1. On February 14, 1884, the National Bank of Port Jervis, as plaintiffs, by its attorneys, recovered a judgment against J. C. H. and J. H., as defendants. The recovery was upon a promissory note of which J. C. was maker and J. accommodation indorser. An execution was issued to the sheriff of Sullivan county, and on April 14, 1-74, J. H. paid full amount to attorneys of plaintiff, who then withdrew the execution. The payment was not to extinguish the judgment, but it was to be kept in life and to be assigned to wife of said J. H. On January 24, 1883, such assignment was made to C. S. H., wife of J. H.

The judgment-roll was filed in clerk's office of Orange county. A transcript was filed in office of clerk of Ulster county July 11, 1883, and judgment thereon entered in such county, the residence of J. C., and on same day execution issued to sheriff of such county, which was returned unsatisfied to Orange county clerk's office July 18, 1883. The execution was subscribed "A N. C., Atty. for Pltff.," and stated in body thereof the assignment to C. S. H. on January 24, 1883. The direction to sheriff was to collect

execution and judgment out of property of defendant J. C. H. Such execution did not issue at request of plaintiff in the judg ment, nor was any leave to issue obtained or granted by order of this court. Several orders for examination of J. C. H. in supplemental proceedings have been ob tained by assignee of judgment and are pending before county judge of Ulster county. On re turn day of first order J. C. II. appeared and claimed that he had paid the judgment in full to J. H., producing receipt, dated December 11, 1880, purporting to be signed and executed by said J. H. J. C. moved at special term to vacate the order for examination, and to set aside the execution and return upon the ground that the judgment had been paid to .). and was extinguished by said receipt. Such motion being resisted by J. H. and wife it was referred to a referee, who found that J. H. did not make nor execute such receipt, and that no payment had been made to J. H. or his wife. The report was confirmed by special term and motion to set aside execution and return with supplemental proceedings based thereon was denied, and $179.02 costs, &c., upon such motion was directed to be paid by said J. C. H. to J. H. On appeal to general term the order of special term was affirmed, with ten dollars costs. The order of general term was granted upon default of J. C., who by order of special term was permitted to move at general term to open such default on payment of ten dollars costs. such order J. has not availed himself. The costs of the previous motions of special and general term, have not been paid. (The National Bank of Port Jervis agt. Hansee, ante, 200.)

Of

On motion by J. C. H. to set aside the execution and return and the various orders in supplemental proceedings, upon the grounds

that leave of the court to issue such execution was not obtained, and that the payment by J. to the attorneys of the plaintiff extinguished the judgment, and he avers that when he made the previous motion he was not aware of the existence of the grounds upon which he now moves: Held,, first, that the prior motion is a bar upon the principle of res adjudicata. It is a bar not because the points now made were made, but because they might and should have been made. The moving party, had he used ordinary diligence, could have ascertained the facts upon which he now moves, and this want of diligence would defeat a motion for leave to re

new.

Second. The costs imposed upon the first motion made in this matter by the party now moving remaining unpaid, the court is powerless to entertain the present motion, as by the non-payment of such costs all proceedings on the part of the party required to pay them are stayed.

Third. As the orders of the special term and general term adjudging the judgment unpaid are unreversed the motion has no equity to sustain it.

Fourth. The payment of J. H. to the attorneys of the plaintiff did not extinguish the judgment. J. H. was the surety and J. C. II. the principal debtor. Payment by the former did not extinguish the debt, and he could have taken an assignment to himself and enforced it for his own benefit. (Id.)

3. Where a judgment by default is opened on condition that the lien of the judgment shall stand as security, the plaintiff, if he finally succeeds, must enter a new judg ment by filling a fresh roll containing all the papers in the case, the same as if no former roll had been filed. The order opening the default in legal effect modifies the judgment by depriving it of its

4.

5.

ordinary character as a res adjudicata, but leaves it in full force as a lien or collateral security. If the plaintiff fails in the action the security is returned by canceling the collateral judgment, which loses its legal vitality and effect when the action fails. But if the plaintiff succeeds the security judgment is not impaired, but may be enforced, if necessary, by the plaintiff in aid of the final judg ment. (Negley agt. The Counting Room Company, ante, 237.)

In case of appeal the trial or final judgment is the one to be appealed from, and no reference need be made to the security judg ment. (Id.)

The court of appeals will entertain a motion to dismiss an appeal for which there is no foundation, without waiting until the case is reached in its regular order on the calendar. (Stoughton agt. Lewis, ante, 331.)