Page images
PDF
EPUB

$ 544. {Amended, 1877.] Supplemental pleadings Upon the application of either party, the court may, And, in a proper case, must, upon such terms an are just, permit him to make a supplemental complaint, answer or reply, alleging material facts which, occurred after his former pleading, or of which he was ignorant when It was made; including the judgment or decree of a competent court, rendered after the commencement of the action, determining the matters in controversy, or a part thereof. The party may apply for leave to make a supplemental pleading, either in addition to, or in place of, the former pleading. In the former event, if the application is granted, å provisional remedy, or othor proceeding already taken in the action, is not alfected by the supplemental pleading; but the right of the adverse party to have it vacated or set aside, depends upon the case presented by the original and sup. plemental pleadings.

Co. Proc., & 177, am'd. Tiffany u. Bowerman, 6 T. & O. 169; 9. C., 3 Ban, 643; Loher v. Fargo, 1 14. 312; Stewart v. James, 38 N. Y. Supr. 866; Muller o. Earle, 37 id. 388; Bostwick v. Menck, 4 Daly, 68; Lyono. Isett, 12 How. 155;

8. C., 11 Abb. N. $. 353; 34 N. Y. Supr. 31; Medbury .. Swan, 46 N. Y. 200; Lolyoke r. Adams, 59 id. 233; Haddow t. Londý. I. 320; Beach v. Reynolds, 53 id. 1-7; Corbin v. Knapp, 5 Nun, 197; Robinson o. Brisbane, 7 1d. 180; Wilson v. Lawrence, 8 íd. 593.

$646. (Amended, 1877.) Motion to strike out irrelevant, etc., matter. — Irrelevant,(1) redundant,(2) or scandalous(3) matter, contained in a pleading, may be stricken out, upon the motion of a person aggrieved thereby, Where scandalous matter is thus stricken out, the at torney whose name is subscribed to the pleading may be directed to pay the costs of the motion, and his fail. are to pay them may be punished as a contempt of the court.(4)

Id., : 160. am'd. (1) Fettretch o. McKay, 17 N. Y. 426; Briggs v. Ber gen, 2 id. 162; Thompson v. Erie Railway Co., 45 id. 468; Strong n. Sproal, 53 Id. 497 ; Town v. N. Y., etc., R. R. Co., 8 Hup, 36); Hollenbeck v. Clow, 9 id. 292; Smith o. Trafton, 3 Rob. 709. (2) Bowman o, Aheldon, 5 Sandf. 660; Brockleman v. Brandt, 10 Abb. 141; Post r. Ilarrie, 12 Id. 46; Benedict i. Seymour, 6 How. 303. (3) Mussina v. Clark, 17 Abb. 189; Opdyke v. Marble, 18 10. 266, 375; Bowman v. Sheldon, 5 Sandt. $50; Carpenter v. West, 5 How. 53;

and see notes to Voorbies' and Waita Codes. (4) McVey v. Cantwell, 8 Hun, 522.

$ 546. (Amended, 1877.] Indefinite or uncertain al. legations. Where one or more denials or allegations, contained in a pleading, are so indefinite or uncertain that the precise meaning or application thereof is not

apparent, the court may require the pleading to be made definite and certain, by amendment.

Co. Proc., part of $ 160, am'd. Tilton v. Beecher, 59 N. Y. 176; Fete tretch v. McKay, 47 id. 426; Hale v. Omaha Nat. Bank, 49 id. 626; Jones v. Norwood, 37 N. Y. Super. 276. See elaborate note to Voorhies’ Code, & 160.

$ 647 [Repealed in 1877.]

CHAPTER VII.

GENERAL PROVISIONAL REMEDIES IN AN

ACTION. TITLE I. – ARREST, TENDING THE ACTION, AND PRO

CEEDINGS THEREUPON. TITLE II. - INJUNCTION. TITLE III. - ATTACHMENT OF PROPERTY. TITLE IV.- OTHER PROVISIONAL REMEDIES; GENE

RAL AND MISCELLANEOUS PROVISION

TITLE I. Arrest, pending the action, and proceedings thereupon. ARTIOLE I. Cases where an order of arrest may be granted, and persons

liable to arrest. 3. Granting, executing, and vacating or modifyiug the order of

arrest. 3. Discharging the defendant upon ball or deposit; jurisdiction

of the ball and disposition of the deposit. 4. Charging and discharging bail.

ARTICLE FIRST.* CASES WHERE AN ORDER OF ARREST MAY BE GRANTED,

AND PERSONS LIABLE TO ARREST. Sec. 348. No person to be arrested in clvll proceedings, without a stat.

utory provision. Ne exeat abolished. 549. When the right to arrest depends upon the nature of tho

action. 550. When the right to arrest depends partly upon extrinsic faots. 631 Order, when and where granted; when of right, and when

discretionary. 852. Toreign judgment not to affect right to arrest. 563. Woman not to be arrested, except, etc. 384. Idiot, lunatic, or infant under fourteen, if arrested, to be die

charged. 885. Person sued in a representative capacity, not to be arrested. & 548. [Amended, 1877.) No person to be arrested La civil proceedings, without a statutory provision No exeat abolished. • A person shall not be arrested

See Laws 1886, chap. 672.

in a civil action or special proceeding, except as prescribed by statute.(1) The writ of ne exeat is hereby abolished.(2)

Substitute for Co. Proc., & 178. (1) Goodale v. Finn, 4 T. & O. 432; People v. Clark, 45 How. 12: People v. Tweed, 5 Hun, 382. Smith o. Meyers, 1 T. & C. 665; Adriance v. Lagrave, 59 N. Y. 110: Farmer d. Robbins, 47 How. 415; Thomp. Pro. Rem. 10. (2) See 6 Alb. L. J. 315; Brownell v, Alken, 6 Hun, 378; Vladero v. Viadero, 7 id. 313; For rest v. Forrest, 10 Barb. 48. Sce Walt's Practice, 272; Thomp. Pro. Rem. 567.

$ 549. (Amended, 1877 and 1886.] When the right to arrest depends upon the nature of the action. - A defendant may be arrested in an action, as prescribed in this title, where the action is brought fi ther of the following causes:(1)

1. To recover a fine or penalty.

2. To recover damages for a personal injury;(2) an injury to property, including the wrongful taking, detention or conversion of personal property;(3) breach of a promise to marry;(4) misconduct or neglect in office,(5) or in a professional employment;(6) fraud; or deceit,(7) or to recover a chattel where it is alleged in the complaint that the chattel or a part thereof has been con. cealed, removed or disposed of so that it cannot be found or taken by the sheriff and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof; or to recover for money received, or to recover property or damages for the con. version or misapplication of property where it is alleged in the complaint that the money was received or the property was embezzled or fraudulently misapplied by à public officer' or by an attorney, solicitor or counselor, or by an officer or agent of a corporation or banking association in the course of his employment, or by a factor, agent, broker, or other person in a fiduciary capacity. Where such allegation is made, the plaintiff cannot recover unless he proves the same on the trial of the action; andya judgment for the defendant is not a bar to the new action to recover the money or chattel.

3. To recover money, funds, credits, or property, held or owned by the State, or held, or owned, officially or otherwise, for or in behalf of a public or governmental interest, by a municipal or other public corporation, board, officer, custodian-agency, or agent, of the

State or of a city, county, town, village, or other divis. ion, subdivision, department, or portion of the State, which the defendant has, without right, obtained, re. ceived, converted, or disposed of, or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same. (8)

4. (Added, 1879; amended, 1886.] In an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability, or that he has since the making of the contract, or in contemplation of making of the same, removed or disposed of his property with intent to defraud his creditors, or is about to reinove or dispose of the same with like intent; but where such allegation is made, the plaintiff cannot recover unless he proves the fraud on the trial of the action; and a judgment for the defendant is not a bar to a new action to recover upon the contract only.

Co. Proc., & 179, am'd. For definitions seo a Temporary Act," post. (1) Elwood v. Gardner, 45 N. Y. 349; Rockford, etc. v. Boody, 66 id. 56; Goodale t. Finn, 4 T. & C. 432; Toffey v. Williams, 5 10. 294; Ma Govern d. Payn, 32 Barb. 83; Lambert v. Snow, 2 Hilt. 501; Smith . Knapp, 30 N. Y. 581; Clailin v. Frank, 8 Abb. 412; Townsend v. Bogart, 11 id. 355; Coman v. Allen, 21 How. 114. Order discretionary: Knickerbocker Life Ins. Co. v. Ecclesine, 42 How. 201; 8. c., 11 Abb. N. S. 9; Davis o. Scott, 15 Abb. 127. (2) See post, “ Temporary Act," & 2, subd. 8, for definition of libel. Britton v. Richards, 13 Abb. N. S. 258, Blakele 0. Buchanan, 44 How. 97; Knickerbocker Life Ins. Co. v. Ecclesine, 6 Abd. N. S. 9; affirmed, 11 id. 385: 8. c., 42 How. 201. Seduction: Delamater 0. Russell, 4 How. 234. Crim. Con.: Strauss v. Schwarzwal den, 4 Bosw. 627; Taylor v. North, 3 Code R. 9; and see McIntosh v. McIntosh, 12 How. 289. False imprisonment: Grodon v. Upham, 4 E D. Sunith. 9; Von Latham v. Rowan, 17 Abb. 238. Assault and battery ; Davis v. Scott, 15 Abb. 127. (3) Brush v. Mullen, 12 Abb. 242; Gris wold v. Sweet, 49 Kow. 171; Goldsmith v. Jones, 43 id. 415; Robbins t. Seithel, 20'id. 366: Chappell v. Skinner, 6 d. 338. (4) Shief o. Tuppey, 3 Code R. 23. (5) Crook v. Jewett, 12 How. 19; Peel v. Elliott, 16 1d. 481. (6) Smedes v. Elmendorf, 3 Johns. 185; Yates v. Blodgett, 8 How. 278; Stage v. Stevens, Denio, 267. (7) Fraud and deceit: Woodruff v. Valentine, 19 Abb. 93; Sherman v. Brantley, 7 Robt. 55; Goodale v. Finn, 4 T. & C. 432: Toffey v. Williams, 5 id. 294, Sherman v. Smith, 42 How. 198; Hathaway v. Johnson, 55 N. Y. 93; Elwood v. Gardner, 45 id. 349; Kern v. Rachow, 34 N. Y. Supr. 239; Wheeler v. Frenche, 33 id. 63; Claflin v. Frank, s Abb. 412; Birchell v. Straus, 28 Barb. 293. (8) Peel v. Elliott, 16 How. 485• s. C., 28 Barb. 200.

$ 550. (Amended, 1877 and 1886.] When the right to arrest depends partly upon extrinsic facts.- A de. fendant may also be arrested in an action wherein the judgment demanded requires the performance of an act, the neglect or refusal to perform which would be punish. able by the court as a contempt, where the defendant is not a resident of the State, or, being a resident, is about to depart therefrom, by reason of which non-residence or departure there is danger that a judgment or an

« PreviousContinue »