under other allegations, and an order compelling a bill of particulars with respect to such averments is improper. Appeal from Special Term, Franklin County. Action by Sanford A. Child and another against John O'Rourke. From an order denying a motion for a bill of particulars, defendant appeals. Affirmed. Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ. A. J. Nellis and Thomas Cantwell, for appellant. COCHRANE, J. The action is for a partnership accounting. January 1, 1900, the three parties formed a copartnership for the purpose of carrying on a lumber business. They purchased and lumbered timber lands, manufactured the timber into lumber, and sold it at wholesale and retail. Each agreed to contribute one-third of the capital and to share alike in the profits and losses. There are other details unnecessary to state. In 1906 the firm sold out to a third party for $25,000 and went out of business. The answer admits the copartnership, and that the firm continued in business until 1906, when it sold out for $25,000, and "that the defendant as a member of said firm received the same and has not accounted for the same, but has used the greater part of said money in payment of the debts of said firm." The answer also admits: "That the defendant did substantially all the selling, handled a large part of the receipts, paid out the larger part of the moneys of said firm, and kept all the books and accounts of said firm during the latter part of its continuing in business, and to a large extent acted as manager of the business of said firm." The right of the plaintiffs to an accounting, therefore, stands admitted by the answer. The defendant seeks a bill of particulars of the fifth, sixth, seventh, tenth, and twelfth paragraphs of the complaint. These paragraphs allege that the defendant wrongfully and unlawfully took partnership capital, lumber, and building material, and used the same for his own purposes, and used money in payment of fictitious notes, and otherwise used partnership money and property, without accounting for the same. Defendant demands minute particulars of these allegations. Those paragraphs of the complaint are clearly immaterial and unnecessary to the cause of action alleged. Without them plaintiffs could prove the same facts under the other allegations of their complaint. They do not stamp the action as one in tort, or affect the plaintiffs beneficially or the defendant prejudicially. They are merely. surplusage. Had defendant made an appropriate motion to strike those paragraphs from the complaint, such motion would be entitled to serious consideration. But the court should not order a bill of particulars as to allegations clearly immaterial, and which neither benefit nor prejudice either party, and which, if omitted from the com and 140 New York State Reporter plaint, would nevertheless be provable under the other allegations appropriate to a partnership accounting. The order should be affirmed, with $10 costs and disbursements. All concur. (55 Misc. Rep. 553.) GITLER et al. v. RUSSIAN CO. et al. (Supreme Court, Special Term, New York County. August, 1907.) 1. CREDITORS' SUIT-DEFENSES. In an action by a judgment creditor to reach property of his debtor, it is no defense that the judgment was obtained by perjury; the remedy of defendant being by a motion for new trial. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Creditors' Suit, § 95.] 2. CONTRACTS-OUSTING JURISDICTION OF COURTS-VALIDITY. The courts of the state are not ousted of jurisdiction by an agreement between the parties to a contract not to sue therein on it. [Ed. Note. For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 608-615.] 3. CREDITORS' SUIT-ANswer-Demurrer. In an action by a judgment creditor to reach property of the debtor, allegations that plaintiffs do not own the judgment, but have assigned it, with a prayer for its cancellation, though insufficient when pleaded as a counterclaim, are not demurrable when pleaded as a defense and counterclaim. [Ed. Note. For cases in point, see Cent. Dig. vol. 14, Creditors' Suit, § 89.] Action by Abraham Gitler and others against the Russian Company and others. On demurrers to separate defenses and counterclaims in answer. Sustained in part, and overruled in part. Alfred D. Lind, for plaintiffs. Howard T. Kingsbury and Paul Fuller, Jr., for defendants. BISCHOFF, J. The plaintiffs, judgment creditors of the defendant the Russian Company, a foreign corporation, have brought this action to reach moneys belonging to the debtor in the hands of parties within the jurisdiction. For a first defense and counterclaim it is alleged, in substance, that the judgment was obtained upon default and upon an inquest, and that testimony given by the plaintiffs was willfully false. The second defense and counterclaim is based upon the averment that for a valuable consideration the plaintiff agreed not to sue upon the judgment in New York, and that suit had been brought upon it in Russia. For a third defense and counterclaim it is asserted that the plaintiffs do not own the judgment, but have assigned it to a third person, who is now maintaining an action upon it. Affirmative relief for the cancellation of the judgment and to restrain. further suits by the plaintiffs is prayed. The first defense and counterclaim is insufficient, within the rule that equity will not set aside judgments at law upon the ground of perjury. The remedy is by motion, in the action at law, for a new trial upon that ground; and, if this relief is refused, the judgment is conclusive upon the parties for the purpose of subsequent proceed ings. In theory of law, the truth of the testimony has been determined, whether given upon an inquest or upon a trial; and a rehearing is to be had, if at all, in the original action. See Krekeler v. Ritter, 62 N. Y. 372; Woodruff v. Johnstone, 61 Super. Ct. 348, 19 N. Y. Supp. 861; Ross v. Wood, 70 N. Y. 8; Smith v. Lowry, 1 Johns. Ch. 320; 23 Cyc. 1027. Assuming, therefore, that the defendant has exhausted its relief at law, still this defense and counterclaim may not be made available, since the ground of relief is exclusively legal. The demurrer is properly interposed to the second defense and counterclaim, for the agreement not to sue in this state offends against the rule that the parties cannot, by contract, oust the court of jurisdiction. Home Ins. Co. v. Morse, 20 Wall. (U. S.) 445, 22 L. Ed. 365; Hart v. Lauman, 29 Barb. 410, 419; Haggart v. Morgan, 5 N. Y. 422, 55 Am. Dec. 350; Greenh. Pub. Policy, p. 466, c. 4, rule 397. So far as this portion of the answer avers that a suit was brought in Russia, it presents no defense, since there is no allegation that the action is for the same cause and is pending. Moreover, it is quite apparent that the Russian court could not grant the relief sought by the plaintiffs-the discovery of assets here and their application to the payment of the judgment. The matter alleged for a third defense and counterclaim is sufficient for the purpose of a defense, in that it attacks the plaintiffs' title to the judgment upon which the action is founded. As a counterclaim, it may be deemed insufficient; but, since the demurrer must necessarily be to the allegations generally, in the absence of a separation of the defense and counterclaim upon motion to correct the pleading, the sufficiency of the defense is an answer to the demurrer. Cuyler v. Trustees, 12 Wend. 165; Ross v. Duffy, 12 N. Y. St. Rep. 584. Demurrer, upon the ground of insufficiency, sustained as to first and second defenses and counterclaims, but overruled as to third defense and counterclaim, with leave to defendant to amend upon payment of costs within 20 days. Demurrer sustained as to first and second defenses and counterclaims, and overruled as to third defense and counterclaim, with leave to defendant to amend upon payment of costs within 20 days. SLADE v. DELAWARE & H. CO. (Supreme Court, Appellate Division, Third Department. November 13, 1907.) 1. JUDGMENT-FAILURE TO ANSWER IN TIME-OPENING DEFAULT-PROCEED INGS. Where the court made an oral order authorizing defendant, in default, to serve his answer within 10 days, though there was no application for the order or notice of motion and affidavits of the facts, and though plaintiff did not waive such requirements, a subsequent order requiring plaintiff to accept the answer served, based on defendant's right to serve an answer, was improper. 2. SAME. A defendant who fails to answer in time is not entitled to an order opening the default on a summary determination of the grounds therefor and 140 New York State Reporter on statement of counsel, unless plaintiff waives the requirement of application, notice of motion, and affidavits of the facts. Kellogg, J., dissenting. Appeal from Special Term, Saratoga County. Action by Frank W. Slade against the Delaware & Hudson Company. From an order requiring plaintiff to receive the answer, he appeals. Reversed. The action is in ejectment. The complaint alleges that the defendant has unlawfully entered upon a portion of his land, and is occupying the same without right, and asks that it be ejected from the same. The land in question constitutes a right of way, which is occupied by the defendant for a trolley road in the town of Saratoga. A strip of land adjoining the land in controversy was purchased by the defendant of the plaintiff, and the land in question is included in a deed from the owner of land adjoining the same upon the other side from that upon which is situated the land deeded to the defendant by the plaintiff. An option was obtained by the defendant upon the land which was afterwards deeded by the plaintiff. When the deed was presented to plaintiff to sign under that option, it seems that it included this land, which was not, however, included in the option. This deed the plaintiff refused to sign. It is claimed by the defendant that the plaintiff stated that the land was owned by a Mrs. Hodges, who was the owner of adjoining land, and in whose deed to the plaintiff this place of land is included. The claim of the plaintiff, however, is that no such representation was made, but that the plaintiff refused to sign the deed upon the ground that this piece of land was not included in the option. After the commencement of the action and the service of the complaint, the defendant defaulted in answering. There were some negotiations between the parties. Finally at a Trial Term, when the plaintiff insisted upon an inquest, some conversation was had before the judge, who put the case over the term, and authorized the defendant to serve his answer within 10 days. This authority was orally given, and was not entered upon the minutes of the court, or included in any order thereafter entered. The defendant tendered an answer within the 10 days, which was refused by the plaintiff, upon the ground that it was too late. Thereafter a motion was made to require the plaintiff to receive this answer. Upon this motion the facts hereinbefore stated appeared by affidavit, and an order was made that the plaintiff be required to receive the answer of the defendant which was served. Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ. Stiles & Bradley (Fred B. Bradley, of counsel), for appellant. SMITH, P. J. Whether or not the court might have made an order opening defendant's default without terms, no such order has been made. The order in fact made required the plaintiff to accept the defendant's answer, thus assuming a right to serve the same when it was tendered. This assumption, we think, was erroneously made. At the Trial Term, when the trial justice made the oral order, authorizing the defendant to serve his answer within 10 days, no application had been made therefor, no notice of motion served, and no affidavit stating facts upon which such an order could be made. Nor does it appear that the plaintiff in any way waived these requirements to the granting of an order relieving the defendant from its default. Upon the claim of the defendant as to what representation was made when the original deed was offered to the plaintiff to sign, the plaintiff had the right to be heard upon affidavit in answer thereto. The matter could not be summarily determined upon the statement of counsel simply, unless the waiver by plaintiff's attorney of the formalities required in the making of motions for relief from default be clearly shown. We are of the opinion, therefore, that the defendant can only have relief upon a formal application to open his default, and that the order made should be reversed. Order reversed, with $10 costs and disbursements, and motion denied, without costs. All concur, except KELLOGG, J., who dissents. In re AVENUE D IN CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. November 22, 1907.) 1. MUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS-STREET-ASSESSMENT OF BENEFITS. In a street opening proceeding under New York City Charter, tit. 4, c. 17 (Laws 1901, p. 405, c. 466), relating to the opening of streets, where the testimony as to values shows that the witnesses all assumed the whole tract to be of equal value, and testified of its value, without discrimination in favor of the parcels left as against the portion taken, and the commissioners assessed the land not taken for the improvement at more than one-half its value on that basis, the court may assume that the part taken was of the same character as the balance of the land, and that the commissioners, in making the assessment, took into consideration the increased value of the remaining parcels by reason of the street extension. 2. SAME STATUTORY PROVISIONS. New York Charter, Laws 1901, p. 411, c. 466. § 980, provides that in a street opening proceeding the commissioners of estimate and assessment shall not assess any lands for benefits more than one-half the value thereof as valued by them. Held that, for the purpose of assessing benefits, the value of property not taken must be determined on the basis of what it is worth after the street extension is made and the title to the land has vested in the city. [Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporation, § 1053.] 8. SAME-REPORT OF COMMISSIONERS-SUFFICIENCY. Where the commissioners certified in their report that they had complied with the statute under which they acted, and limited their assessment for benefit to one-half the value of the lots lying within the district of assessment as valued by them, pursuant to section 980 of the charter, it will be presumed to be true, in the absence of anything in the record to the contrary. Appeal from Special Term. Application by the city of New York to open Avenue D, from Rogers avenue to East Thirty-Fourth street, in the borough of Brooklyn. From an order confirming the report of commissioners of estimate and assessment, so far as it confirms the assessment on property of George Fulling and others, they appeal. Affirmed. Argued before WOODWARD, JENKS, HOOKER, RICH, and MILLER, JJ. |