MOTIONS AND ORDERS. 52.) Supreme Ct., Sp. T., 1856, Dewey a. Field, 13 How. Pr. R., 437. 17. A plaintiff cannot move for judgment for frivolousness of counterclaim after it is too late to demur. N. Y. Superior Ct., Sp. T, 1856, Van Valen a. Lapham, 13 How. Pr. R., 240. 18. The Supreme Court is not authorized to review and vacate upon motion made at special term, a judgment entered upon the report of a referee to whom the whole issue has been referred, upon the ground that the judgment is erroneous in law. Where the defect is that the judgment is erroneous in point of law, an appeal upon the law to the general term is the appropriate and only mode in which the party affected can seek relief. 1855, Dana a. Howe, 3 Kern., 306. 19. A sale on foreclosure was set aside for fraud on the part of the purchaser in procuring the sale; and a resale was ordered, and was made. The first purchaser, however, had, after taking the sheriff's deed, and before the resale, given several mortgages, and afterwards a deed of the premises, which were recorded; and judgments had also been docketed against him. Held, on motion that the encumbrancers be declared bound by the order for resale,-1. That the judgments against the purchaser were merely a lien on his interest in the premises; and ceased to encumber it, on the sale to him being set aside for fraud. 2. That the court had power to inquire into the circumstances under which the mortgages and the deed were given; and that they formed no answer to the motion, unless they were taken in good faith, for value, and without notice. Colby a. Rowley, Ante, 361. 20. What degree of laches in moving to set aside a judgment for irregu larity, will authorize the court to deny the motion. Martin a. Lott, Ante, 365. 21. A variance between the order of dismissal of the complaint made at the circuit, as entered in the minutes by the clerk at the time, and the order as drawn up and inserted in the judgment-roll, is a matter of mere irregularity, which can only be taken advantage of, if at all, within a year from the time of perfecting the judgment. Martin a. Lott, Ib., 365. 22. Where the right to arrest the defendant is derived from the nature of the action-e. g., in an action to recover moneys received by defendant in a fiduciary capacity-the defendant will not be allowed, upon a motion to discharge from arrest, to introduce affidavits to show that there is no cause of action. Geller a. Seixas, Ante, 103. 23. But where the arrest is founded upon extrinsic facts wholly independent of the cause of action, and the defendant satisfies the court by MOTIONS AND ORDERS. - his own affidavit, or otherwise, that there was no foundation for the arrest, he is entitled to be discharged. Ib. 24. An order for the examination of a defendant upon supplementary proceedings, was made by one of the judges of the court, and afterwards, the same judge, sitting at special term, made an order entitled at special term, punishing defendant for a contempt in disobeying the first order. Held, 1. That the second order was valid as the order of the court. 2. That it might also be sustained as the order of the judge before whom the proceedings were commenced. The mere fact that it was made while he was holding special term, and was entitled as made at special term, did not render it irregular, if it were an order which he had power to make out of court. Wickes a. Dresser, Ante, 93. 25. Where the court at special term makes upon default an order which it had no authority to make, the party prejudiced may move at special term to set aside the order for irregularity, or may appeal from the order to the general term. Wilkinson a. Tiffany, Ante, 98. 26. Where an order of arrest is granted on plaintiff's own affidavit, and a discharge is moved for solely on the original papers, the affidavit of plaintiff, being uncontradicted, is to be taken as true; but it is to be strictly construed against plaintiff. Hathorn a. Hall, Ante, 227. 27. It is not usual, and is rarely proper, to try upon affidavits the question whether defendant has a good defence, arising on a motion, by defendant, after judgment to be let in to defend. Catlin a. Latson, Ante, 248. 28. But where it clearly appears that the defence suggested has no foundation in fact, that may be taken into view in disposing of the application. Ib. 29. Every allegation essential to the granting of an attachment may be disproved on a motion to set it aside. Boscher a. Roullier, Ante, 396. 30. Where the indebtedness is averred and denied by the affidavits, as a conclusion of law, that point may be left to be determined at the trial. Ib. 31. In the Superior Court a motion denied by one justice cannot be renewed before another justice upon the same facts, unless upon leave to renew given in the order denying the first motion. But this would not prevent a motion to modify or vacate, founded in matters arising or discovered since the first motion, when no laches are imputable to the moving party. Cazneau a. Bryant, Ante, 402. 32. There is no doubt of the impropriety of one single judge sitting in review of the rulings of another single judge of the same court. Ryle a. Harrington, Ante, 421. MUNICIPAL CORPORATION. The rule of the Superior Court that no alleged error of law on the trial before the jury would be considered at special term, that is, by a single judge, "unless by the express direction of the justice before whom the cause was tried" (4 Sandf., 701), approved in the Supreme Court. Ib. 33. Whether, under section 265 of the Code, the motion for a new trial, or application for judgment, there prescribed to be made "at the circuit or special term," can be made before any judge other than him before whom the case was tried,-Query? Ryle a. Harrington, Ante, 421. 34. Where a suit against a religious corporation was commenced in the Superior Court, by service upon certain parties claiming to be officers, but not in possession of the offices,— Held, upon motion of the officers de facto, after judgment by default-1. That all the proceedings must be vacated as irregular. 2. That the title of the acting trustees could not be investigated upon the motion. 3. That if they were intruders, the Superior Court had no jurisdiction to determine the question. Berrian a. The Methodist Society in New York, Ante, 424. 35. The power conferred by the Code of prescribing a shorter notice of motion than eight days, or dispensing with notice altogether, should be confined to exceptional cases. Androvette a. Bowne, Ante, 440. 36. The examination of a judgment debtor disclosing grounds for arrest,— e. g., a disposal of property with intent to defraud creditors,—may be used as the basis of an application for an order of arrest in a subsequent action upon the judgment. McButt a. Hirsch, Ante, 441. 37. It seems that where in a complaint for libel there is a defect in an innuendo, properly so called,—such as that it is not supported by the prefatory extrinsic facts, or that it enlarges the meaning of the words charged, or alters them, or substitutes other words in their place,—the proper remedy is by motion. Blaisdell a. Raymond, Ante, 446. ANSWER, 5, 10, 11; APPEAL, 11, 13-18; ARREST, 7, 8, 9; COMPLAINT, 7; COSTS, 24, 25, 26; EXECUTION, 4, 5, 6, 7, 8; FORMS, 3. MUNICIPAL CORPORATION ATTORNEYS, 2; COMMON COUNCIL; COMPLAINT, 5. NEW TRIAL. DAMAGES, 5. NEW YORK COMMON PLEAS. APPEAL, 20. NEW YORK DISTRICT COURTS. NEW YORK DISTRICT COURTS. By the act to reduce the several acts relating to the district courts in the city of New York into one act, passed April 13, 1857, a thorough and complete provision is made for the jurisdiction, powers, and course of procedure in those courts. And by section 81 of that act, it is provided that all statutes, laws, and rules heretofore in force in this State, in any case provided for by this act, or inconsistent with its provisions, are hereby repealed and abrogated, nor is any such statute, law, or rule to be deemed retained because it is consistent with provisions upon the same subject in this act, but such repeal does not affect any right already existing or accrued, or any proceedings already taken, except in this act provided. Laws of 1857, ch. 344, Pub. Acts, 211. NEW YORK MARINE COURT. 1. Hereafter all summonses issuing out of the Marine Court of the city of New York may be served by the sheriff of the city and county of New York, or by any other person not a party to the action; the service shall be made and the summons returned, with proof of the service, to the clerk of said court within the time now prescribed by law for the service and return of summonses in said court; all other process issuing out of said court shall be directed to and served by the sheriff of the city and county of New York. Laws of 1857, ch. 295, § 1, Pub. Acts, 232. 2. Same fees to be paid for service as now. Ib., § 2. 3. When the summons shall be served by any other person than the sheriff of the city and county of New York, the like affidavit of such service shall be made by the person making the same as is now required by the rules of the Supreme Court of this State. Ib., § 3. 4. The plaintiff in the action shall cause to be served with the summons a copy of his complaint, which complaint shall be duly verified and shall state the amount for which he demands judgment; and if the defendant shall fail to answer on the return of said summons, and the action be upon contract, the clerk of the said court, or one of the justices thereof, shall render judgment against the said defendant for the amount demanded in said complaint, together with costs. Ib., § 4. 5. On the return of said summons, if the defendant shall appear he shall put in a written answer to the complaint, duly verified. The clerk may thereupon adjourn the cause, by consent of parties, to any day they may designate. Ib., § 5. 6. Appointment of clerks provided for, and certain fees prescribed. Ib., §§ 6, 7. 1 NEW YORK SUPERIOR COURT. 7. Under the act relating to the organization of the New York Marine Court (2 Rev. Laws, 383, § 111), it is the duty of the clerk, and of the clerk alone, to issue process. It is purely and exclusively a ministerial duty, to be performed manually by the clerk, and, upon his refusal, against him alone will a mandamus issue. Supreme Ct., Sp. T., 1856, The People on rel. Debenetti a. Gale, 13 How. Pr. R., 5. 8. Appeals from the Marine Court of the city of New York to the Common Pleas can only be taken from decisions of the general term of the Marine Court. (The People on rel. Figaniere a. The Justices of the Marine Court, 11 How. Pr. R., 400.) Supreme Ct., Sp. T., 1856, The People on rel. Debenetti a. Gale, 13 How. Pr. R., 5. 9. The general term of the N. Y. Marine Court has no power, on appeal from a judgment rendered at special term, to direct that it be modified by increasing the amount. Murphy a. Long, Ante, 476. APPEAL, 20; SERVICE AND PROOF OF, 1, 20, 21, 22. NEW YORK SUPERIOR COURT. In all actions of which the New York Superior Court has jurisdiction by Notes of issue should always show the nature of the issue, that issues of NOTICE. 1. It is a general rule that the possession of land is notice to others of the possessor's title. (Tuttle v. Jackson, 6 Wend., 213; Wright v. Douglass, 10 Barb., 97; Troup v. Hurlbut, Ib., 354; Merritt v. The Northern Railroad Company, 12 Ib., 605; 4 Kent, 7 ed., 179, and notes.) But this is not universally true. The notice is merely an inference; it may not arise in some cases; it may be repelled in others; and in others it may be restricted to some particular title or claim. The rule, like all rules of circumstantial evidence, must be governed by the particular circumstances of each case, and have a reasonable operation. (McMechan v. Griffing, 3 Pick., 156; Scott v. Gallagher, |