against this defendant unless said persons executed it, and that it was not so executed by them. the bank to continue business. In an action to foreclose the mortgage. Held, That defendant did not become a suretyor obligor for money loaned; that the seal was presumptive evidence of a consideration; that from the fact that the mortgage was given on the requisition of the bank superintendent, and to discharge a personal liability, a consideration might be presumed, and that defendant was estopped from denying its validity. It was not alleged who made the representations, or that they were made by the bank, or by any one acting for it, and there was no allegation that any condition was annexed to the execution and delivery This was an action for the foreof the bond by defendant. An offer was made to show that the bond defendant and wife to one H., and closure of a mortgage executed by was delivered upon the considera- by him assigned to the savings bank tion that certain other persons of which plaintiff has been appointshould execute it, and that this con- ed receiver. Defendant was one o dition was not performed. The offer the trustees of the bank, and there was rejected. Held, No error; that the allega tions of the answer were insufficient to show that the bond was delivered in escrow or on condition that it should be executed by other par ties. Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed. Opinion by Andrews, J. All concur, except Folger, J., absent. being a deficit in its assets, executed Defendant claims that the mortgage could not be enforced, because MORTGAGE. CONSIDERATION. it was given in violation of section' ESTOPPEL. N. Y. COURT OF APPEALS. 21 of chapter 371, Laws of 1875, which prohibits a trustee of a savings bank from becoming a surety Best, recr., respt., v. Thiel, impl'd, or obligor for moneys loaned or borapplt. Decided Nov. 25, 1879. rowed of such corporation, and also There being a deficit in the assets of a savings bank of which defendant was a trustee, the superintendent of the banking department informed the trustees that they were all liable, Held, That defendant did not beand that their personal liability would be en- come a surety or obligor for money forced unless the deficit was made up. De- loaned, and the statute above re fendant thereupon executed a mortgage, and caused it to be assigned to the bank for the ferred to was not applicable; that purpose of making up the deficit, and enabling the mortgage being under seal, the County Court had power to order the refunding of the tax paid thereon. This was a proceeding by petition on behalf of W., the appellant, for an order directing the respond seal was presumptive evidence of a consideration, 3 R. S. (6th ed.), 672 § 124; 55 N. Y., 68; 58 id. 186; that in view of the circumstance that the mortgage was given upon the requisition of the bank superin- ent to refund to W. a tax claimed. tendent, and to discharge a personal to have been illegally assessed and liability, a consideration might be presumed, although there was no finding upon the question of such personal liability. levied in Wayne County in this state, in 1871.. The petition showed that W., at the time of the assessment, was a resident and taxpayer Also held, That defendant is es- of this state, and had in his hands topped from denying the validity of as agent bonds, mortgages and dethe mortgage, it having been given mands to the amount of $10,000, to make up a deficit in the assets of which belonged to one C., who was the bank, and to enable it to go on a resident of the State of New with its business, and having been Jersey, and that W. was assessed reported to the department as part that sum as the agent of C. W. of the assets, and in consequence of made affidavit before the assessors, this and other securities given by at a time appointed by them for rethe other trustees, the bank having viewing the assessment, that such been allowed to continue its business and depositors induced to make and leave deposits with it. 3 Dillon, property belonged to C., a non-resident, and consisted wholly of bonds and mortgages and demands which had been sent to or deposited in this state for collection, and that the petitioner had no property in or the control of any of said securities. The petition also showed that W. had paid the tax under duress and protest. Before a referee appointed by the County Court W. testified to the facts stated in the affidavit, the same having been lost, and added that the securities were deposited with him for collection; that he transmitted the collections made by him to C. or deposited them in the bank in his name and to his credit; that he reloaned some of the moneys for him; that he advised with C. and took his directions about loaning, and that he had no interest whatever in said moneys, and they were at all times subject to the order of S. K. Williams, applt. in person. Held, That the assessment was illegal; that the property in the hands of W. as agent for C. was exempt from taxation under the provision of the Revised Statutes relieving from taxation moneys of non-resident capitalists in the possession of or under the control of their agents in this state, transmitted to them for investment or otherwise (1 R. S., 390, § 5), and INFANTS. JUDGMENT. N. Y. SUPREME COURT. GENERAL Joseph H. Nevins, as County Decided December, 1879. A judgment entered against an infant before the expiration of twenty days subsequent to the appointment of guardian is not void under sec. 1218 of the Code, where the infant has appeared and answered by guardian. Said section applies to judgments taken by default only. The plaintiff foreclosed a mortalso under the provisions of section gage against George W. Townsend 3, 1 R. S., 419, exempting bonds, and others. Townsend was an inmortgages, &c., of non-residents, fant owning two equal undivided sent here or deposited for collection, from taxation. Chapter 37, Laws of 1855, subjecting to taxation capital invested in business by non-residents, carried on by them in this state, is not in conflict with the provisions of the Revised Statutes above referred to. Also held, That the property assessed being exempt from taxation, the assessors had no jurisdiction, and the tax was not merely erroneous, but illegal, and in such a case the County Court had power to order the refunding of the tax. In re N. Y. Cath. Protectory, Court of Appeals, May 20, 1879. thirds of the property. Upon due application of the infant, he being over fourteen years of age, a guardian ad litem was appointed, who put in a general answer. The case was tried and judgment entered before the expiratiou of twenty days subsequent to the appointment of the guardian. The guardian appeared upon the trial, and no objection was made to the judgment, and no appeal taken; no injury to the infant's interest was claimed. The purchaser refuses to take title upon the ground that the judgment was void as against the infant, for the reason that twenty days did Order of General Term, reversing not elapse after the appointment of order of County Court reversed, the guardian before the entry of and order of County Court affirmed. judgment. Opinion by Rapallo, J.; Andrews, Miller and Danforth, JJ., concur; Earl, J., reads for affirmance; Church, C. J., and Folger, J., con cur. Section 1218 of the Code provides that a judgment shall not be taken against an infant defendant until twenty days have expired since the appointment of a guardian ad litem. Held, That section 1218 had no reference to judgments taken against Vol 9-No. 12*. infants other than those by default; that if the infant appears by guardian and makes an issue, it may be noticed at once like other issues, and that a guardian ad litem had the right to control the due and orderly management of the action; he could accept short notice of trial, but could admit nothing to sustain the action. that none is necessary or allowed, Held, That under § 5.6 of the new Code the court, may in certain specitied cases, in its discretion, on the defendant's application, direct the That section 1218 did not imply plaintiff to reply to the new matan entire judicial inaction for twenty ter. That the reply referred to in days after a guardian is appointed when issue is joined. Opinion by Barnard, P. J. STRIKING OUT REPLY WHEN § 517 is the same that may be directed by the court in its discretion, as referred to in § 516. That as this reply was served without any application to the court, and no direction or leave to make it was obtained, the order appealed from should be reversed and the reply N. Y. SUPERIOR COURT. GENERAL stricken out, without costs, as the TERM. Decided Feby. 2, 1880. Where the answer does not contain a counterclaim, but only contains new matter which will release or discharge the cause of action, a reply put in without an order or direction of the court should be stricken out on motion, as it is unauthorized. Appeal by the defendant from an order denying defendant's motion to strike out the plaintiff's reply. The plaintiff sues to recover damages alleged to have been sustained through the defendant's negligence. The defendant sets up as a distinct defense that the plaintiff has released the cause of action. The plaintiff replies that the release was obtained by fraud and undue influence and without consideration. The defendant moved to strike out the reply on the ground practice is new. Opinion Curtis, Ch. J.; Speir, J., concurred, on ground that the Code, §§ 516 and 517, are only a codification of the decisions of the courts. NEW TRIAL. SURPRISE AND EVIDENCE. N. Y. SUPERIOR COURT. GENERAL TERM. George J. Newhall v. William A. Appleton et al. Decided Feb. 2, 1880. A motion for a new trial on the ground of surprise and newly discovered evidence cannot be brought on and heard before the judge at Trial Tern of the court where the action was tried. Such motions can only be heard at Special Term. The appearance of the parties and the arguing of the motion is not enough to confer jurisdiction in the matter. If the question of jurisdiction is waived it should appear by tion on the merits alone was not recitals in the order or a stipulation to that enough. 3 Abb., Pr. 320. effect. It should not be left as a disputed question of fact to be determined on the appeal. Order reversed without costs, as the question is new. Opinion by Curtis, J.; Van Vorst, J. Plaintiff appeals from an order made at the Trial Term after judgment (and after the usual motion on the minutes had been argued and denied), granting defendants a new STATUTE trial on the alleged ground of sur FALSE IMPRISONMENT. OF LIMITATION. prise and newly discovered evidence N. Y. COMMON PLEAS. set forth in affidavits, in which an Term after judgment was obtained TERM. GENERAL Charles Dusenbury v. Wm. S. Keiley, Receiver, &c. Decided February 2, 1880. An action for false imprisonment will lie immediately upon an illegal arrest. The statute of limitations begins to run from the time of such illegal arrest, and the cause of action therefore is barred at the end of two years from such arrest, although the proceedings in which the arrest took place are entirely within the two years. Stilwell Act" for the arrest of the plaintiff, and on the 15th of November the Sheriff arrested the plaintiff and produced him in court. The counsel for the plaintiff ob Held, That S 1,002 of the New Code requires that in a case not specified in the three preceding sections a motion for a new trial must in the first instance be heard and denied at the Special Term. Motions for a new trial on the ground On the 14th of November, 1876, of surprise or newly discovered evi- upon the application of the defenddence are not specified in the three ant, Mr. Justice Spier, of the Supreceding sections, and consequent-perior Court, issued a warrant unly can only be heard at Special Term. der what is commonly called "The That the judge presiding at Trial Term was without jurisdiction to hear this motion unless such jurisdiction was conferred by the act of the parties. Even if the parties had it in their power to give jurisdiction|jected to the regularity of the proto the trial judge to hear and decide ceedings, the jurisdiction of the the motion, it should be shown by judge and the sufficiency of all pasome act or stipulation, or recital in pers, and also gave the recognizance the order appealed from, so that and bonds as required by said act; such intention or arrangement and such proceedings were thereshould clearly appear, and not come upon had that in February, 1877, before the court on appeal, to be an order was made by said judge disputed as a matter of fact. The vacating and setting aside said warappearance of the appellants before rant and exonerating the bail from the trial judge and arguing the mo- liability. |