summons. The East River Bank v.12. When no such motion is before the
Cutting and Caldwell.
Court at General Term, the finding of
the jury upon the questions of fact
submitted to them, must be regarded
as conclusive, and the duty of the
Court, as it is upon a special verdict, is
merely to declare the law arising upon
the facts as found. Negligence, when
the facts upon which the charge de-
pends are disputed, is a mixed question
of law and fact. The jury must ascer-
tain the facts, and the Judge must
instruct them as to the rule of law
which they are to apply to the facts as
they shall find them.
On an appeal from a judgment in an
action tried before a jury, the action
will not be examined, as to its general
merits, upon the whole evidence; whe-
ther the verdict is against evidence can
only be considered by the Court at
General Term, upon an appeal from an
order granting or refusing a new trial.
Brown v. Richardson.
402
Vide DEBTOR and CREDITOR, 3.
ANSWER, 2.
ABATEMENT, 2; and ante, 629.
not been taxed, or the right to answer 1. An order of arrest will not be vacated,
is gone. Ford v. David.
1. Where, upon a trial, facts have been
specially found by the jury in answer
to questions submitted by the Judge,
and a verdict directed subject to the
opinion of the Court at General Term;
a motion cannot be entertained at
General Term to set aside the finding
of the jury, upon one or more of the
questions submitted, as against evi-
dence. Such a motion must be made
in the first instance at Special Term,
and it is only upon an appeal from an
order there made, that such a motion
can be considered by the Court at
General Term. Purvis v. Coleman. 321
on a motion made after the defendant
has answered; on the mere ground
that, the summons is erroneously en-
titled, especially when that defect is not
specified in the notice, as a ground of
the motion. Bedell v. Sturta. 634
When the cause of action is one, which,
of itself, gives the plaintiff a right to
an order of arrest, the order will not
be vacated, merely because the moving
affidavits deny the existence of the
cause of action.
id.
1. A defendant whose family is occupy-
ing, and for several years has been oc-
cupying, a dwelling-house in another
State, hired by him, and who habitu-
ally passes the night of each day, and
the Sabbath, with his family, is a non-
resident of the State of New York,
within the meaning of the statutes of
the latter State, authorizing an attach-
2. On such a state of facts, he is a non-
resident, although he is in business as
a merchant in New York city, and
passes eight hours of every business
day there, (unless sick, or absent on
business of his firm,) and has all his
business capital in such business, keeps
his bank account there, and bad select-
ed such family residence on account of
its proximity to the city, and for eco-
nomy in living, and although he might
be served with process in such action,
any day, during business hours.
3. Whether a man's absence from his fa-
mily be for eight hours in each day, or
six days in each week, if he has a
family living in a neighboring State,
for whom he provides, to whom he re-
sorts for comfort, relaxation and re-
pose, and with whom he abides when-
ever the immediate demands of his bu-
siness upon his attention will permit;
whenever sickness disables him from
conducting that business; and when
those days successively return on which
business ceases, and man rests from his
labor; he resides in such neighboring
State, where (in every proper sense, as
understood no less by those who are
learned in the law, than by the com-
mon intelligence of every-day life,) is
his home.
id.
4. Where one has a home, as that term is
ordinarily used and understood among
men, and he habitually resorts to that
place for comfort and rest, relaxation
from the cares of business and restora-
tion to health, and there abides in the
intervals when business does not call;
that is his residence, both in the com-
mon and legal meaning of the term:
When a man has such a home, and ha-
bitually uses it as such, and a place of
business in another State, such place
of business is not his residence, within
any proper definition of the term.
5. It is not enough that one intends to
change his place of residence: The in-
tent and the fact of such change must
concur. Nor is it enough that he in-
tends to change his residence, and sin-
cerely believes that what he has done
amounts in law to a change of his resi-
dence. His opinion will not produce
8. When a Special Term order, which
overrules a demurrer to the amended
complaint, is, on appeal, reversed, and
judgment is ordered in favor of the de-
fendant, but leave is given, to the
plaintiff, to amend his complaint, on
paying the costs of the demurrer at
Special Term, to be taxed, the defen-
dant is entitled to a charge of $10, for
proceedings before notice of trial, and
a like charge, for proceedings after no-
tice and before trial, although the same
sum has been once paid, for the latter
class of services, on sustaining a de-
murrer to the original complaint. Con-
siderant v. Brisbane.
A defendant who has demurred to the
complaint, and whose demurrer has
been overruled, cannot, on an assess-
ment of damages, be permitted to prove
matters in their nature giving a right
to reduce the amount of the plaintiff's
claim, and as such constituting a partial
defence. To give a right to prove, and
be allowed the benefit of them, they
must be set up by answer, as a defence.
Ford v. David
569
11. Examination of a Party.
1. Where a party to an action is made a
witness by his adversary, he is as much
entitled to witness's fees, as a condition
to creating it his duty to attend and be
sworn, as any third person. Hewlett v.
Brown.
655
2. A six days' notice to appear and be
examined, and notifying him that, if
he fail to do so, he will be liable as for
contempt, and to have his answer
stricken out, are not sufficient to au-
thorize an order, (on his default to
appear,) striking out his answer, or to
punish him for contempt.
id.
for their regularity and validity upon
the construction of a statute, which has
not received any judicial interpreta-
tion in relation to proceedings like
those in question, and the grant of such
relief can be made upon terms, which
will not present any matter to be liti-
gated except, the existence, amount,
and relative priority of the applicant's
claim, and he consents, as a condition
to being relieved, to pay to the other
parties their just costs of the further
litigation as to his claim.
id.
1. Whether an injunction may rightfully
be issued to restrain a defendant from
working, pendente lite, for any other
person than the plaintiff, in violation
of a contract with the plaintiff, is, upon
the authorities, a doubtful question, but
the precedents in this State seem to
be against the exercise of the power.
Admitting, however, that the power of
granting such an injunction, pendente
lite, exists, it is certain that its exercise
must, in many cases, be a harsh and
oppressive proceeding, since it may de-
prive the defendant of his only means
of gaining a subsistence or of support-
ing his family during the continuance
of a litigation that may last for months
or years. Frederick v. Mayer. 227
1. In an action, brought by the owner of
property on which each of the several
defendants claim to have a lien (under
the Mechanics' Lien Law), to ascertain
the amount and priority of their liens
upon such property, and upon a fund
produced by a judicial sale thereof, and
to procure a discharge of such liens,
and to determine the extent of the
personal liability of such owner; a de-
fendant, whose claim was not attempted
to be proved on the trial of such action,
further than to prove the pendency
and condition of a proper proceeding
in another Court to establish it; will
be permitted, even after trial and judg-
ment, to have the case so far opened,
as to enable him to establish his claim,
its amount, and its relative priority,
when the omission to prove it at the
trial occurred under such circumstances,
as make it a case of excusable neglect,
provided such relief can be granted
without subjecting the other parties to
any loss or damage, beyond the mere
delay to which they will be thereby
subjected, and provided also, that the
party seeking such relief shall submit
to such conditions as it may be proper
to impose in order to protect fully the
rights of the other parties to the action. 3. These views ought to govern the Court
Levy v. Joyce.
622
even upon a final hearing: Much more
should they be deemed controlling when
the application is for an injunction pen-
dente lite, and the grounds of the appli-
cation are controverted and the facts
are involved in serious doubt.
2. Especially will such relief be granted,
when a refusal to grant it will cause a
loss to the moving party of his entire
claim, and it is clear that the proceed-
ings on his part have been conducted
in good faith, and the proceedings are 4.
novel in their character, and depend|
There are certain rules that ought to
govern a Court of Equity in the exer-
cise of its summary, and in a degree,
arbitrary power of granting injunc
tions, and these rules forbid the exer-
cise of the power where it will operate
oppressively or work an immediate in-
jury, or when the right of the plain-
tiff is doubtful, or the facts are not
clearly ascertained. An injunction
should not be issued unless the right
is clear, and it will not be awarded in
doubtful cases, nor in new ones not
coming within established principles. id.
Held, that the plaintiff, upon the papers
before the Court, had failed to establish
3. When the action has been tried on its
merits, as if both defendants had ap-
peared, if no error was committed at
the trial, the plaintiff should not have
a new trial, merely because the unau-
thorized notice is allowed to be cor-
rected, and the recitals in the judgment
made to state the truth in that behalf.
If error was committed at the trial, the
judgment would be reversed on the
plaintiff's appeal, as well with the
recital of the non-appearance of Palmer
in it, as if it recited the fact of his
actual appearance.
id.
1. When an action, in form, against two
persons jointly liable, is commenced by
a service of the summons on one de-
fendant alone, and a notice of appear-
ance, by the latter as attorney for both,
is served, and he puts in an answer
for himself only, and a trial is had on
the merits, and a judgment dismissing
the complaint is rendered; and on 2.
proof, that notice of appearance for
both defendants was served by mistake
and without authority, a motion is made
to have the judgment, which has been
A statement made for the purpose of
entering a judgment under sections 382
and 383 of the Code, which states as
the facts out of which the debt arose;
"that heretofore at the City of New
York, I (Hodgins,) made my certain
promissory note for the sum of two
thousand dollars, payable on demand,
and that I have not paid said note, and
that I am justly indebted to the plain-
tiff, (Kendall,) thereupon, in the said
sum of two thousand dollars," is wholly
insufficient to authorize a judgment to
be entered upon it. Kendall v. Hod-
gins.
A judgment entered on such a state-
ment, and an execution issued on such
a judgment may be set aside, on the
motion of a bona fide purchaser of lands,
on which the judgment is an apparent
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