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occupation his cause of action. In either case the lease may
be given in evidence to establish the relation of landlord and
tenant, and to show the amount of the debt........

ACTION. Interest is recoverable on rent due in an action for use and oc-
cupation.....

Where a plaintiff dies after judgment, the only remedy to get execu-
tion is by an action, by his legal representatives, under the Code,
to obtain the relief formerly reached by the writ of scire facias
executionem non. Such a proceeding may be brought without
leave of the court...

How an action to be brought on a judgment

523

523

537

537

The rule that the complaint must show a joint cause of action against
all of the defendants, is only applicable at law, and never did
apply in equity.....

547

A good cause of action stated in the complaint, in an equity suit, as
to one of several defendants, although not as to the others, does
not authorize a joint demurrer by all the defendants. A de-
fendant who is unnecessarily made a party, may for that reason
demur....

AFFIDAVIT. An affidavit for an attachment, which omits the title of the
cause, does not state who "deponent" is, whether plaintiff or
defendant, and in no part of which is either plaintiff or defend-
ant individually named, nor is it anywhere stated who is plain-
tiff, or who is defendant, is entirely insufficient......

547

.... 401

AMENDMENT. Plaintiff's right to amend his complaint should be "with-
out prejudice to the proceedings already had." An amendment
of a complaint, after motion papers served for change of venue
for convenience of witnesses, does not preclude the motion, al-
though no amended answer is served-where the amendment
merely destroys the issue, without changing the merits........ 79
Slight mistakes, by officers of the court and attorneys, in proceedings
on confession of judgment, may be amended even on a motion
to set aside the proceedings. Otherwise, where there are ma-
terial departures from the statute....
.... 156
When complaint may be amended at the trial, by inserting a claim
for damages, for time spent and expenses incurred in searching
for personal property, for which the action was brought........ 203
Pleadings may be amended, by substituting a party as defendant, at

any stage of the proceedings, to further the ends of justice..... 293
When a complaint, in an action of assault and battery, may be
amended by inserting an additional injury ....

322

A defective undertaking may be amended on a motion to discharge
from arrest.....

381

Leave to put in an amended answer cannot be given, on an applica-

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ion to a judge at chambers for judgment, on account of the frivolousness of the answer. A motion for such leave is neces

sary

AMENDMENT. It is not a valid objection to the amendment of a clerical error in an answer, that the answer sets up the defence of usury. Nor, it seems, would it be any objection that it was a motion to put in such a defence....

399

408

37

ANSWER-When will be struck out as evasive and frivolous, verified, by one defendant, sued as a partner with another When defendant, sued as endorser of note, he must answer positively, not on information and belief, as to whether he did or not endorse the note, and whether he did or not transfer it....... 153 Where defendant alleges that "there is another action now pending between the same parties, for the same identical cause of action mentioned in the complaint in this action," it is sufficiently definite and certain........

193

A denial of a cause of action to the full extent claimed by the plain-
tiff, such as the payment of a large portion of the promissory
note sued upon, is not a counter-claim, and needs no reply.... 310
Allegations that the plaintiff is not the owner and holder of the note,
and that AB is the owner and real party in interest,
create no issue; and are bad for duplicity ...

When a defence may be hypothetically pleaded, &c...
What facts and evidence must be established to show that the de-
fence has been unreasonably and unfairly conducted, to entitle
the plaintiff to extra costs. When extra costs will be allowed,
&c. (§ 308.)...

313

313

317

When defendant would be privileged from answering as a witness,
to the truth of an allegation in the complaint; he may deny the
allegation in pleading, and omit to verify his answer.......... 319
Omitting to deny such an allegation, defendant admits it for the
purposes of the action .....

In an action of assault and battery, where defendant has appeared,
on assessment of damages, the defendant will not be allowed to
put in an answer which merely alleges there was a provocation,
which would mitigate damages. It can be shown on the assess-

ment

319

342

Now, a defence purely equitable in its character may be interposed
to a cause of action strictly legal, for it is no longer allowable
to bring an action, merely for the purpose of restraining the
prosecution of another action, pending in the same court...... 355
In an action against husband and wife, to set aside a deed of lands
made to the wife, the answer of the defendants should be veri-
fied by the wife as well as the husband

On a motion by the plaintiff to strike out the defendant's answer, the

395

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defendant cannot set up the objection of multifariousness, or that several causes of action are improperly joined in the complaint. The defendant's remedy is to move to strike out or demur..... 395 ANSWER. Where judgment is ordered for the plaintiff by reason of the

frivolousness of the answer, by a judge at chambers, leave should not be given to amend the answer, or interpose a new one. The defendant should be put to his motion at special term, for such leave......

.... 399

On a motion to put in an answer, or amended answer, the defendant
should embody it in his moving papers......

.... 399

It is not a valid objection to the amendment of a clerical error in an
answer, that the answer contains the defence of usury. Nor, it
seems, would it be any objection that it was a motion to put in
such a defence

Where the complaint alleges that the defendant is now indebted,
&c., for the goods sold, and the answer avers they were sold on
a credit of six months, which has not expired, it is not new mat-
ter, requiring a reply, but a special denial
A sham answer must be understood now as a sham plea was for-
merly, which was a special plea, false and specious, one which
set up new matter.

408

.... 455

..... 500

Where a supplemental complaint is made under § 177, after answer, it
is not allowable to a defendant as a general rule, without special
permission, to answer anew, or further the original complaint.. 521
In the first judicial district, it is a rule to give a preference on the
circuit calendar to the causes in which there is reason to believe
that the defence is put in for delay ......

Slight evidence of merits in a defence is sufficient to prevent the an-
swer from being struck out, on motion, as sham or frivolous-
it will be sent to the circuit .....

A defendant cannot demur and answer to the same matter.

APPEARANCE. The meaning of the statute stated, of the phrase, "entering his appearance in the state court," where a cause is sought to be removed to the United States court......

563

563

563

.... 176

Where the defendant has given notice of appearance in an action of
assault and battery, it is irregular to apply ex parte for assess-
ment of damages.....

.. 342

APPEAL-From special term to the general term of the supreme court,
does not lie from an order at special term, confirming the report
of commissioners for opening and extending streets in the city
of New-York.....
An appeal from one court to another lies only from the branch of re-
view, or last resort of the inferior court, if it have a branch of
review. From the marine court, N. Y., lies to the common pleas,

....

97

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only from the judgment of the general term of the marine

court.

APPEAL. Where the general term of the court, on appeal, review the report of referees upon exceptions taken on the trial, they cannot, in the settlement of the case upon their judgment, embrace any special finding of facts......

377

... 417 The court of appeals cannot regard any finding of facts, except such as shall be stated by the referees according to the provisions of the Code; but the general term may abridge a voluminous statement of the evidence, so as to give a better understanding of the exceptions taken on the trial...

An appeal to the general term, from an order under § 349 of the Code, is per se a stay of proceedings; and no undertaking or security is required...

Upon an appeal by executors, a statement of a want of assets sufficient to pay the judgment, is a reason why the security on the undertaking should be limited to the amount of assets disclosed, &c......

Manner of excepting to, and reviewing decisions of the court, reports

417

435

466

of referees, making case and bill of exceptions, &c., &c. . 451, 567, 571 When the appellate court will presume that sufficient evidence was given to warrant the judgment rendered in a justices' court, although the return does not show that it contains all the evidence given, &c.

In causes arising in justices' courts in the city of Buffalo, an appeal lies only from the county court to the superior court of that city, whose decision is final. And in such causes arising out of the city of Buffalo, and in the county of Erie, an appeal lies from the county court to the supreme court, whose decision is final

ARREST. The officers and directors of a company, when liable to an action for illegal and fraudulent acts, may be arrested at the suit of a stockholder...

An execution against the person of the defendant cannot be issued, unless the action was one in which the defendant might have been arrested....

495

559

19

25

A motion to vacate an order of arrest, must be made, if at all, before the justification of bail, &c ...

...97, 197

On an application for an order of arrest, the plaintiff must specify and
establish the particular fraud relied on......
Plaintiff cannot, under § 205, set up a ground for arrest, not put forth
as the original ground of the order ...

.... 197

..... 197

A defendant may be arrested in an action for money received or property embezzled, or fraudulently misapplied, as an agent of the plaintiff's, or while he was acting for the plaintiff in a fidu

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ciary capacity. Such as a pedler of goods for the plaintiff. It is immaterial whether the facts authorizing the arrest are or are not inserted in the complaint......

..

ARREST. On granting an order of arrest, the undertaking may be executed by the plaintiff with sureties, or without the plaintiff, and one or more sureties on his behalf. It is a matter resting entirely in the discretion of the judge...

A defective undertaking may be amended on a motion to discharge from arrest......

208

381

..... 381

If a warrant is not valid on its face, the justice who issues, and the
officer who executes it, are liable for assault and battery and
false imprisonment, at the suit of the party arrested. What
damages may be recovered. Every officer is responsible, where
he acts under an unconstitutional law. Prohibitory liquor law. 456
If a defendant believes his representations which he makes as to his
ability to pay, before or at the time he purchases goods of the
plaintiff, are true when he makes them, he is not guilty of any
fraud, however false they may be in fact......
A defendant cannot, on motion, have

516

after his bail have become perfect.
fect.......

an order of arrest vacated, When bail do become per

516

Where no bail is given, the defendant may move to vacate the order of arrest at any time before he pays the judgment..

.... 516

ASSESSMENT OF DAMAGES. In an action of assault and battery, where defendant has given notice of appearance, it is irregular for plaintiff to apply ex parte for assessment of damages...... 342 Any matter which can properly mitigate damages, in an action of assault and battery, may be shown on assessment of damages.. 342

ASSIGNMENT FOR THE BENEFIT OF CREDITORS-Which authorizes the assignee to sell on credit, is fraudulent and void as against the creditors of the assignor, &c.......

... 107

A supplementary assignment, after the original is executed, cannot change the rights of the parties, or creditors, &c...

A receiver, in proceedings supplementary to execution, may maintain an action to recover real as well as personal property of the debtor, &c....

107

... 107

The same rule of liability for costs applies to an assignee, for the
benefit of creditors, as is applicable to executors or administra-
tors. When he is not chargeable personally for costs in an ac-
tion prosecuted by him .....
305

When an action against a judgment-debtor and his assignee may be

resorted to, to set aside an assignment made by the judgment-
debtor, though it was never delivered, nor any property passed
under it, &c.

307