PAGE 26 17 Insolvency-of sureties, when not ground for requiring new security.... ... J. Joinder-of parties and of causes of action..... Joint Stock Association-construction of articles of... entered upon irregular service of amended complaint, should be vacated 825 .... where ground of, not merged by proceedings in cause of action Judicial sale-not void because not made in lots... of New York Superior Court.. Jury-conviction by eleven, illegal... L. Levy-analogy between rule as to attachment and execution.... priority of........ License Law-violation of, indictable... 6 6 1 433 428 188 828 826 271 847 418 12 82 M. Mandamus-when may not issue to Board of Excise..... Married Woman-not competent to testify in proceedings to which her husband Multifariousness—in pleading, what is................ when affidavits may be read on....... Motion to dissolve injunction not to be granted after discontinuance........ to set aside a confession of judgment may be made by purchaser.. N. New York Superior Court-jurisdiction of........... Notice of judgment requisite to limit time to appeal, what is. of appeal, in what respects may be amended.. of motion to strike out answer, what is sufficient.. of Pendency of Action-when to be filed 0. Official Proceedings-what cannot be restrained by injunction..... officer of foreign government may maintain action for funds belonging to, 488 who are necessary in action between members of joint stock association... 142 Partition-effect of irregularities in PAGE Penal Statutes-construction of..... Pleading a contract regulated by statute, mode of..... .... in an action for false imprisonment... a separate defence, incomplete in itself, is bad on demurrer.. what is a good denial.. of the rules of, on implied assumpsit. by corporation... by receiver..... Police-mode of removal Pre-emptive right—what is. 82 8 17 872 836 871 129 134 205 87 265 805 Promissory Note-assignee of, in trust with power to sell, has no power to sue... preliminary to judgment against a married woman plaintiff. may be required, in New York Superior Court, from plaintiff residing in 826 Service of amended complaint, must be on attorney.. 825 - of complaint on attorney, five years after his appearance, held good 428 Special Verdict-what is..... Statute of Frauds-assignee's agreement to pay attorney for drawing assignment Supplementary Proceedings-certain orders in, not appealable. 888 may be taken against foreign corporation.... 847 in, against husband, wife cannot be examined as a third party. Taxes-not a lien on personal property.... Tax-payer-when he cannot enjoin a municipal corporation.... Title to mortgage, when to be deemed in issue U. PAGE Undertaking-by plaintiff, in proceedings of claim and delivery, does not affect whether defendant can sue upon, after he has obtained a return of the to procure attachments, court will not require new sureties in, because of is a "bond" action on..... in proceedings of claim and delivery, is evidence against the party how maker of note may be estopped from pleading.. 19 19 26 158 ....... ..... 205 Variance-what is..... V. Verdict-form of..... Verification-not dispensed with in answer in divorce action..... W. Waiver-appearance is waiver of short notice of hearing..... consenting that cause be set down for trial is a waiver of stay of pro- ceedings. what defect in notice of appeal is waived by actual argument. Writ of Error-in criminal cases, what may be embraced in return to...................... 193 90 850 87 92 76 852 271 ABBOTTS' PRACTICE REPORTS. NEW-YORK. MCMAHON a. ALLEN. Supreme Court, First District; General Term, June, 1858. APPEAL.-FINAL JUDGMENT. If, on a trial, whether by the court or by a referee, a decision or report is made in favor of one party, and a reference is ordered to take an accounting, which is necessary in order to ascertain the amount for which judgment is to be rendered, judgment cannot be entered until the accounting has been had, and every thing essential to the judgment has been ascertained. If the unsuccessful party wishes to appeal, he must wait until after the accounting has been had, and a final judgment thereon entered. Where, pending such accounting, the unsuccessful party procures judgment to be entered against himself by the clerk, and then appeals to the general term, his appeal should be dismissed. Motion to dismiss an appeal. The facts sufficiently appear in the opinion. BY THE COURT.-DAVIES, J.-This cause was referred, by an order made by one of the justices of this court, under section 254 of the Code, to hear all the issues therein, and to determine the same. Under this order the referee made his report, finding the issues raised in the cause in favor of the plaintiff, and report VOL VII-1 McMahon a. Allen. ing that, before final judgment could be entered, an accounting must be had. Accordingly an order was entered referring it back to the same referee, to take and state the account, which, in his opinion, was essential to the entry of the final judgment in this action. While such reference is pending, the defendant procures judgment to be entered by the clerk in favor of the plaintiff, upon the report of the referee, and the defendant now appeals from that judgment. The plaintiff moves to dismiss that appeal. We think the defendant's counsel is in error in the view he takes of the practice applicable to the present case. The provision of section 272 of the Code is, that the report of the referee, upon the whole issue, stands as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. The ref eree is substituted for the court, to hear and decide the case, and his report stands as the judgment of the court. The judgment thereon is to be entered in the same manner as if the action had been tried by the court. How would judgment have been entered in this action if the same had been tried by the court? Certainly it would not have been entered until the court had ascertained all the facts essential to the judgment, and upon which it was based. As in the present case, if the court had found the same facts, and settled the same principles, which have been found and settled by the referee in this case, and had determined an accounting to be necessary, it is quite clear that no judgment in the action would have been entered by the court until such account had been had and taken. When so had, and every thing essential to the judgment had been ascertained, then the party, in whose favor the judgment was, would prepare his proposed form of judgment, and submit it to the opposite party; and the allocatur of the judge would be authority to the clerk to enter the judginent. We have seen that judgment, in cases where the whole issues are referred, are to be entered in the same manner as if the action had been tried by the court. It cannot therefore be entered in any other manner. Properly, therefore, the defendant should have waited until all the issues raised in the cause had been disposed of, and the judgment entered thereon, and which we have seen could not be regularly entered until they had all been disposed of by the |