Vermeule agt. Beck and wife-Smith agt. Same. Mrs. Beck; or if the two liens are to be deemed within section 167 of the Code, several causes of action, they both may be considered as on contract, or both as injuries to property, or clearly both as on transactions connected with the same subject, viz: the land. (Subd. 1 of sec. 167.) They are also both on contract; for the mortgage is on contract and so is the agree ment to pay $850 for the land. They are both for injuries to the plaintiff's property, as they both are based also on the fraud by which the deed was obtained in the one case, and the mortgage was cancelled in the other. The remedy for those frauds is, that the deed and the mortgage should be reestablished, or that the land should be declared subject to the payment of the value of the plaintiff's share in the land, and of the loan of $1,000: and, therefore, Beck's wife, who claims an interest in the land, is a necessary party. The plaintiff may rely on fraud as the basis of her relief, in both cases; then the agreement to pay the $850 after the first fraud was detected, is but part of that one transaction, and does not merge the cause of action founded on the first fraud, as it is not an executed agreement, until it is performed. Beck cannot set it up as a bar to the first cause of action. It is not necessary that various causes of action in one complaint should affect all the parties equally, it is enough that they affect all, though in unequal degrees. That is the case wherever there are various incumbrances in a foreclosure suit, or persons having diverse interests as the owner of the fee, and dowress, or lessees, &c. The demurrer should be overruled with costs of the argument. The defendants may, when the order is settled, elect to answer on payment of costs. Hotchkiss agt. Crocker, &c. SUPREME COURT. DAVID HOTCHKISS agt. OLIVER C. CROCKER. JOHN W. HOLDEN agt OLIVER C. CROCKER and DAVID HOTCHKISS. Where the summons and complaint are served together, and the summons states the name of the county, but no place of trial is stated in the complaint, held, that the complaint is defective; but may be amended. This defect is not cured by a reference to the summons, as the statement in the summons does not necessarily show that it is put there to indicate where the place of trial is to be. The plaintiff may indicate any county as the place of trial, notwithstanding the name of a county may be mentioned in the summons. Besides, the Code does not require the county to be stated in the summons, as it establishes nothing if inserted. (The decision in the case of Merrill agt. Grinnell, 10 How. 31, approved, and that in Davison agt. Powell, 13 id. 287, disapproved.) A motion to strike out such defective complaint may be made in a judicial district where the action in fact is triable. Tioga Special Term, March, 1858. IN this case the summons and complaint were served together. MR. RICHARDS, for motion. MASON, Justice. These are two motions made by the defendants in each of the entitled causes, to strike out the complaints for the reason that no place of trial is stated in the complaint. The 142d section of the Code, declares that the complaint shall contain the name of the county in which the plaintiff desires the place of trial to be had, and I think that the case of Merrill agt. Grinnell and others, (10 How. Pr. R. 31,) was rightly decided. That case holds that the complaint is defective when no place of trial is stated in the complaint, Hotchkiss agt. Crocker, &c. and that the complaint will be regarded as irregular on a motion to strike out. This defect is not cured by a reference to the summons, as the statement of the name of the county in the summons does not necessarily show that it is put there to indicate where the place of trial is to be. The plaintiff may indicate any county as the place of trial, notwithstanding the name of a county may be mentioned in the summons. (10 How. R. 32.) The plaintiff lives in Cayuga county, and defendants live in Broome county, and the summons states Cayuga county, and this motion is made at the Tioga special term. The plaintiff claims and insists upon the authority of the case of Davison agt. Powell, (13 How. Pr. R. 287,) that the place of trial is sufficiently indicated by the summons to require the defendant to make his motion in the seventh judicial district, or in some county adjoining Cayuga. I cannot concur in the decision in that case; and besides, the case before us is distinguishable from that. In that case the summons stated that the complaint would be filed in the office of the clerk of the city and county of New-York, at the city hall. The sum mons in the cases under consideration, does not state where the complaint will be filed, and the only statement of any county, is in the following form and manner: "Sup. court, county of Cayuga." This does not aid the complaint, for the Code does not require the county to be stated in the summons, and it establishes nothing when it is inserted. It cannot aid the complaint. This action is triable either in the county of Cayuga or Broome, and as the plaintiff has not indicated any county in his complaint in which he desires the trial to be had, I see no reason why the motion may not be made in the district where the defendants reside, as well as those where the plaintiff resides. These motions must be granted unless the plaintiff elects to amend his complaint in ten days after service of a copy of this order, and pay $10 costs of these motions; $5 in each suit. Green agt. Wood. SUPERIOR COURT. HENRY GREEN agt. FERNANDO WOOD. Section 391 of the Code, gives to either party to an action an option to have an adverse party examined before, instead of examining him at the trial. It is error to deny, to the party claiming it, the right to have such an examination, on the mere ground that the party sought to be examined, prefers to be examined at the trial, and offers to stipulate to then attend, so that his examination can then be had. The fact that other suits, against the party sought to be examined, are pending, which are brought by other plaintiffs, and depend upon the same general facts, is not such cause as will justify an order exempting a defendant from examination before the trial. To refuse to compel a defendant to submit to an examination before the trial, merely because he prefers to be examined at the trial, would make it optional with the defendant, whether he would be examined before the trial or not, whereas the Code gives the option to the party who wishes to examine his adversary, whether the examination shall be had before or at the trial. Before BOSWORTH, HOFFMAN, WOODRUFF and PIERREPONT, Justices. THIS action is brought to recover damages for an assault and battery committed on the plaintiff, on the 16th of June, 1857, by persons alleged to have done the wrong at the instance of and by the direction of the defendant. It was put at issue on questions of fact on the 27th of July. On an affidavit of these facts, and that the defendant resides in the city of New-York, an order was made that the defendant appear before one of the justices of this court, on the 9th of March, 1858, to be examined as a witness in the action. The defendant appeared pursuant to such order, before Mr. Justice PIERREPONT, and offered to stipulate to attend at the trial, and be examined as a witness, and showed that there are eleven other actions pending against him, by other parties, for assaults and batteries committed on the same occasion, and moved that the order for his examination before the trial be, therefore, discharged. Green agt. Wood. The justice made an order thereupon, on the 12th of March 1858, that the said order for the examination of the defendant, be discharged. From the order of the 12th of March, 1858, the plaintiff appealed to the general term. On the argument of such appeal, MR. D. D. FIELD, for the plaintiff, insisted, First. The plaintiff has the option of examining the defendant before the trial. That option is his and not the court's, and the court cannot take it from him. The qualification in the 391st section of the Code, applies to the time, place and manner of its exercise, and not to the right itself. (Reed agt. Brown, 5 Abbott, 418.) Second. If the court had, however, a dispensing power, and could relieve the defendant from the operation of the 391st section, "for good cause shown," yet, in this case, there is no good cause shown, for not examining the defendant. The rule established by the Code is, that the plaintiff has a right to examine the defendant before the trial. This was introduced, because the discovery which would, in most cases, have been obtained by a bill in chancery was abolished, and a more searching and comprehensive substitute was provided. This defendant must completely show that he comes within. a just exception. (1.) The fact that there are eleven other actions pending for other outrages perpetrated on the same occasion, upon eleven other persons, so far from diminishing, really increases the importance of examining the defendant. After he has been once examined, if the court can relieve him from a future examination, they may then do it with far more propriety than they can do it now. (2.) The defendant's stipulation to attend at the trial, and be examined as a witness, is not "a good cause shown." If it be, a defendant can always relieve himself from an examination, by offering the stipulation, and the statute will be so far repealed |