PAGE Pleading-Alternative allegations in.. in actions for lands.. Pleadings-Construction of... denials which only go to mitigation of damages raise no issue 7 832 234 87 distinction between what is ground of demurrer, and what of motion...... 5,7 Pledge-rights of parties under...... 845 .... 305 Proceedings against one, after judgment against another joint debtor, not a new Security for costs-Non-resident plaintiff who afterwards becomes a resident not .... 840 Service-who is a managing agent of a corporation upon whom it may be made... 427 Set-off-in proceedings against stockholders of insolvent corporations. ... Stipulation-of assignor of judgment not to be vacated for fraud on motion of Supplementary proceedings-cannot reach after-acquired property may be had on justice's judgment for less than $25.. Surrogate-cannot award costs not specially authorized by statute. has no jurisdiction to try disputed claims.. 123 193 428 193 851 193 354 878 .170, 177 843 435 407 336 425 T. Taxation-Duty and power of...... Trial-Place of, when may be changed when verdict subject to opinion of the court is irregular.... U. Undertaking-What is not defence to action on....... V. Verification-by attorney deemed an affidavit.. when may be dispensed with in answer. W. Waiver-proceeding to new trial waives objection to order for it.. Witness-mode of impeaching..... when may refer to books of account.. limits of his privileges from arrest.. 25 147 284 68 422 59 802 895 416 ABBOTTS' PRACTICE REPORTS. NEW-YORK. HAVEMEYER a. CUNNINGHAM. Supreme Court, First District; General Term, September, 1858. MISTRIAL. VERDICT SUBJECT TO THE OPINION OF THE COURT. On the trial of an action upon a written contract, questions arose as to its construction as to the admissibility of evidence-as to whether the acts of the parties did not amount to an abandonment of it—and as to the rule of damages if a recovery were allowed; and a motion to dismiss the complaint was made, and denied. Exceptions were taken upon either side to the rulings of the court upon these points. The court directed a verdict for the plaintiff for the amount claimed, subject to the opinion of the court at general term. Held, a mistrial, and that a new trial must be had. Motion, at general term, for judgment on a verdict taken subject to the opinion of the court. Charles O'Conor, for plaintiffs. Daniel Lord, for defendants. BY THE COURT.*-HOGEBOOM, J.-This was an action to recover damages for not delivering a cargo of sugars, which it was alleged the defendants had agreed to sell and deliver to * Present, DAVIES, P. J., and SUTHERLAND and HOGEBOOM, JJ. VOL. VIII-1 Havemeyer a. Cunningham. the plaintiffs. The defence was, that the contract was conditional, and that the contingency had never occurred which required the delivery of the sugars; and also, that by mutual consent, as established by the correspondence of the parties, the parties had abandoned the contract. The principal question in the case arose upon the proper legal construction to be given to the written contract or sale note upon which the plaintiffs' claim was founded. But there were also questions of evidence in the case; and, as before stated, the question of abandonment of the contract, as evidenced by the correspondence of the parties, to the introduction and admission of which the plaintiff's objected and excepted. The defendant also excepted to the rule of damages and mode of calculating damages adopted in the case, and to the allowance of interest. A witness, Horatio Hawes, had also been examined by consent, before the trial, on the part of the defendant, and his deposition was read on the trial. It contains several objections by the plaintiffs to questions put to and answered by the witness, and one objection by the defendant to a question put by the plaintiffs to the witness on the cross-examination, and answered by him. These objec tions do not distinctly appear to have been passed upon by the commissioner who took the deposition, nor by the judge who presided at the trial, nor was any formal exception taken in reference thereto. A motion was made to dismiss the complaint, and it was denied, the judge reserving the questions as questions of law; and the defendants excepted. The judge directed a verdict for the plaintiffs for the amount of damages claimed by them, and according to the mode of computation adopted by them, subject to the opinion of the court at general term. The defendants excepted to such direction and disposition of the cause. Upon the authority of the case of Cobb a. Cornish (16 N. Y. R., 602; S. C., 6 Abbotts' Pr. R., 130), I am of opinion that there has been a mistrial of this cause, and that the judgment should be reversed, with costs to abide the event of the action. The case does not seem to be in a situatión to render final judgment. It does not present only questions of law. (Code, § 265.) Aside from the objections taken to the evidence of the witness Hawes, and the question, what would be the amount of damages if the defendant's mode of estimating them were adopted, the letters Martin a. Mattison. of the parties to each other were admitted under the plaintiffs' exception, and are claimed by the defendants, both in the case itself and in the points, to furnish material evidence tending to show the plaintiffs' abandonment of the contract. As the case was disposed of at the circuit, there is no mode that I can discover by which he can obtain the benefit of that exception, in case the court at general term pronounce judgment in favor of the defendant. Such judgment is final, subject only to the right of appeal. A new trial cannot be granted. The exception to the evidence cannot, that I see, be reviewed. And yet that evidence may possibly furnish a material element in leading the mind of the court to the judgment which it shall ultimately give. To dispose of the case finally in its present shape might therefore work serious injustice to one or the other of the parties; and therefore, to obviate the effects of the mistrial, the judgment of the court below should be reversed, and a new trial granted, with costs to abide the event of the action. MARTIN a. MATTISON. Supreme Court, Sixth District; Special Term, November, 1858. PLEADING.-INJURIES TO CHARACTER. If a complaint containing several causes of action is demurred to, on the ground that the several counts do not state facts sufficient to constitute a cause of action, the demurrer must be overruled unless all the statements are insufficient, Causes of action for libel, slander, and malicious prosecution in behalf of the people, for a crime, may be joined in one action. They are all injuries to character. Demurrer to the complaint. The complaint contained statements of four causes of action: one for malicious prosecution in behalf of the people, before a justice of the peace, for a crime; one for libel; and two for slanderous words spoken. |