ACCEPTANCE.

1. Defendant had in his hands for
collection a claim, one-half of the
proceeds of which he had agreed
to pay plaintiff. One M. drew an
order upon defendant, requesting
him to pay plaintiff $500 out of
the other half when collected,
which order defendant accepted,
and upon the acceptance plaintiff
paid to M. the amount of the
order. Defendant collected upon
the claim $1,050.
Held, that the acceptance of the
order was an admission by defend-
ant,that the moiety of the collection
not agreed to be paid to plaintiff
belonged to M., and was an under-
taking to pay such moiety to
plaintiff, not exceeding $500.
Richardson v. Carpenter.

See APPEAL, 13.
CONTRACTS, 5.
HUSBAND AND WIFE 8.

ACCOUNT.

See COUNTER-CLAIM.

ACT OF CONGRESS.

660.

1. The mandate of the act of congress
of 1789, that where the proper
steps are taken, which entitles
defendant to the removal of a cause
to the Circuit Court of the United
States, the State Court shall “
pro-
ceed no farther in the cause," is
obligatory as well upon a court of
appellate as of original jurisdic-
tion. Holden v. Putnam Fire In-
surance Company.

ACTION.

See CAUSE OF ACTION.
ELECTION OF REMEDIES.
FRAUD, 1.

LIMITATION OF ACTIONS.
LEASE, 6.

PARTITION.

TENANTS IN COMMON.

ADVERSE POSSESSION.

1. To maintain an action for the par-
tition of lands, the plaintiff must,
at the time of its commencement,
have actual or constructive posses-
sion in common with defendants.
A subsisting adverse possession is
an absolute bar. The possession
of one of several tenants in com-
mon may become adverse, when
his acts amount to an exclusion of
his co-tenants; and, until the ex-
cluded parties regain their posses-
sion, no one of them can bring
partition. The duration of the
adverse possession is immaterial.
Florence v. Hopkins.

AGREEMENT.

See CONTRACTS.

ANIMALS.

See TRESPASS.

ANSWER.

1.

See PLEADINGS, 2, 3, 4.

182.

APPARENT TITLE.

See ESTOPPEL, 2.

APPEAL.

1. The word "may" in section 177
of the Code is permissive, not
mandatory; and the right to set
up new matter by supplemental
pleading, is not absolute, but is
within the discretion of the court.
An order, therefore, denying such
right is not appealable to this
court. Medbury v. Swan. 200

2. Plaintiff demurred to two counts

of defendants' answer. The de-
murrer was sustained; and from
the order sustaining demurrer,
defendants appealed, but without
giving security or obtaining a stay.
Plaintiff thereupon noticed the
cause, took an inquest at the cir-
cuit, and perfected judgment.
This judgment was, upon defend-
ants' motion, set aside. From the
order setting it aside, plaintiff ap-
pealed; defendants moved at a
General Term (one of the mem-
bers of which was the justice who
granted the order), to dismiss the
appeal upon the grounds, that the
order was not an appealable one;
also, that plaintiff had waived his
appeal by appearing, and, without
objection, arguing the appeal from
the order sustaining the demurrer.
The appeal was dismissed. From
the order of dismissal, an appeal
was brought to this court.-Held,
1st. That as under section eight of
article six of the State Constitu-
tion, the General Term, as con-
stituted, had no power to review
the order or to entertain the ques-
tion, whether it was an appeal-
able one, it must be assumed that
only the question of waiver was
entertained and passed upon. 2d.
That the plaintiff's appearance
and argument of the appeal from
the order sustaining demurrer,
was no waiver of appeal from the
order setting aside inquest and
judgment. 3d. That this court
will not examine into the merits
of the Special Term order appealed
from, as it has not been reviewed

4. Where a referee has failed to pass
upon material questions of fact
and law, the proper practice is to
apply to the court to send the case
back to the referee, to pass speci-
fically upon such questions or to
re-settle his report. Should the
application be denied, upon an ap-
peal from the judgment, the pro-
ceedings to obtain further findings
can be inserted in the record, and
the materiality of the findings
asked for, can be determined at
General Term or in this court
upon the appeal. In such a case
the presumption, that all material
facts of which there was evidence
have been found against the ap-
pellant, will not apply in respect
to those matters as to which he
has sought to obtain specific find-
ings, but they will be regarded in
the same manner as facts, which,
upon trial, the court has refused
to submit to the jury.
Id.

5.

6.

7.

Plaintiff, instead of adopting this
course, moved to set aside the
report, "or for such other or fur-
ther order as should be proper;
which motion was denied.-Held,
that the order did not necessarily
dispose of the right of plaintiff to
further findings, but was simply a
ruling upon a question of practice,
as to the mode of obtaining relief;
that it was discretionary with the
court to grant the appropriate
relief, under the words in the
notice "for such other and further
order," etc., and that the order was
not appealable
Id.

There is no sufficient ground in
any case for entertaining an appeal
in this court before judgment from
an order in respect to findings. Id.

Upon an appeal to the General
Term from an order confirming
the report of a referee, on pro-
ceedings to obtain surplus moneys
arising on foreclosure sale, which

order gave the entire surplus mo-
neys to the executor of the lessor,
the court set aside the report and
referred the case back, and in the
order directed, that the share of
the lessee, should be ascertained,
by computing the value of the
residue of his term in the surplus,
deducting therefrom the amount
of the payments to be made by
him under the lease. Upon the
second hearing, evidence was re-
ceived, under objection on the part
of the executors, as to the annual
rental value of the premises. The
executors, relying upon the de-
cision of the General Term, offered
no evidence thereon.-Held, that
the executors had a right to re-
pose upon their objections, as the
case then stood, and the matter
should be referred back, to give
them an opportunity of adducing
evidence upon the question of the
value of the term. Clarkson v.
Skidmore.
297

the sole question that can be pre-
sented upon the record, relates to
and will determine the merits of
the controversy, and cannot be
obviated upon a second trial.
Where there are exceptions which,
if sustained, will entitle the suc-
cessful party to a new trial, but
the decision of which will not ne-
cessarily determine the merits, the
exceptions must be clearly frivol-
ous to justify the hazard of such
an appeal. Cobb v. Hatfield. 533

12. An order made at General Term
reversing a judgment absolutely,
without granting a new trial, can-
not be appealed from as an order.
To review it, judgment should be
perfected thereon, and an appeal
taken from the judgment. The
order alone is not a judgment.
Mehl v. Vonderwulbeke.
539

13. Plaintiff in his complaint in an
action upon a contract for the sale
of lands, asked judgment directing
a specific performance; or in case
a conveyance was impracticable,
damages for non-performance. The
referee decided that he was not en-
titled to a conveyance, but gave
him damages for the non-perform-
ance. Defendants, to whom the
lands in question had been con-
veyed, entered as much of the judg-
ment as denied a specific perform-
ance, and plaintiff entered the
portion in his favor, and appealed
from the former part.-Held, that
the provisions of the judgment are
connected and dependent, that the
part appealed from should not be
reversed without a reversal of the
other; that plaintiff's entry of the
part of the judgment in his favor,
and taking no appeal therefrom,
gave the court no authority to re-
verse it, and was an election to ac-
cept it, and a waiver of his right to
appeal. Appeal therefore dis-
missed. Murphy v. Spaulding.

556

Id.

11. An appeal from an order grant-
ing a new trial, with the stipula-
tion required, of judgment absolute
in case the order is sustained, is
only proper and admissible, when
SICKELS-VOL. I.
89

which provide that a judgment
shall not be deemed to have been
reversed upon questions of fact,
unless so stated in the order of
reversal, apply only to cases tried
by the court and a referee, and not
to cases tried by jury. If it ap-

16. An order denying a motion for a
new trial on the ground of newly
discovered evidence, cannot be re-
viewed upon the merits in this
court. But where it appears that
the merits of the application were
not considered by the court below,
from an erroneous supposition of 2.
want of power, and that the order
was based upon that ground, it is
appealable, and will be reversed
in this court. It is incumbent
upon the appellant, however, to
show this affirmatively. Tracy v.
598
Altmyer.

17. In an action upon a bond, where
it appears on the face of the com-
plaint that such bond was void,
because taken by a judicial officer
in a proceeding of which he had
no jurisdiction; the Supreme Court
at General Term has power to re-
verse a judgment for plaintiff, for
the error appearing upon the re-
cord, although no exceptions were
taken upon the trial. (Vose v.
Cockroft, 44 N. Y., 415 distin-
guished.) Brookman v. Hamill.

636

18. Since the Code this court has no
more power to review a question
of fact in an equity suit than in an
action at law. Haight v. Williams.
683

See FINDINGS OF FACT AND CONCLU-
SIONS OF LAW, 4.

JURISDICTION, 5.
JUDICIAL NOTICE, 3.

ARBITRATOR.

See CONTRACT, 8.

3.

4.

42

The
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