Orders;-Filing Papers and Entering Order;-Notice of Entry. Service. Enforcing.

Orders;-Conditions;-Void and Voidable.

on a verdict, subsequently entertained an application to modify it by allowing judgment to be entered, which application the adverse party opposed,-Held, that notice of his order granting the application was not necessary to be given to the adverse party before the entry of judgment. Supreme Ct., Sp. T., 1847, Ladd *. Ingham, 3 How. Pr., 90.

281. Notice of resettlement. When an order is settled ex parte, and entered and a copy served, but is afterwards resettled and modified by the judge who made it, by modifying the original order, the party obtaining the order, if he would limit the time in which to appeal from it, must cause it to be entered as finally settled, and serve a copy of it anew. N. Y. Superior Ct., 1854, Bowman v. Earle, 3 Duer, 691.

282. A party who obtains a rule must take notice of it. Supreme Ct., 1827, Jackson . Johnson, 7 Cow., 419. N. Y. Superior Ct., 1848, Mottram v. Mills, 1 Sandf., 671.

283. Under the act of 1844 (Laws of 1844, 376, ch. 415, § 11),-which authorizes examination of non-residents of the city of New York, de bene esse, in criminal cases there, and requires the judge's order for examination to specify the length of notice to be given,-an order specifying an hour of the same day as the time for the examination, and directing the order to be served forth with on the accused, is sufficient; and if the accused attends without objection, due service may be presumed. Supreme Ct., 1850, People v. Chrystal, 8 Barb., 545.

284. To bring a party into contempt for disobeying a judge's order, the original must be shown at the time the copy is served. [3 T. R., 351.] Supreme Ct., 1808, Howland v. Ralph, 3 Johns., 20.

Except for this purpose, showing an original order is unnecessary. 1827, Bank of Utica v. Kibby, 7 Cow., 148.

287. An order directing payment of any sum of money, if not conditional, may be endemand. Laws of 1840, 333, ch. 386, § 15. forced by precept issued of course and without

288. That an order that plaintiff pay defendant's costs subsequent to an offer to take judgment (Code, § 385) may be enforced under the Laws of 1845, 491. N. Y. Superior Ct. 1851, Megrath v. Van Wyck, 3 Sandf., 750.

289. An order overruling a demurrer with costs absolutely, is an interlocutory order, and the costs may be collected by precept (in a case before the Code), without enrolling the order. N. Y. Superior Ct., 1849, Poillon v. Houghton, 2 Code R., 14.

4. Conditions.

290. Where a favor is granted to a party on condition,-e. g., leave to amend on payment of costs,-he must, at his peril, take notice of the order and comply with its conditions. Supreme Ct., 1840, Willink v. Renwick, 22 Wend., 608.

291. An order to amend and pay costs, does not make payment a condition precedent. N. Y. Superior Ct., 1851, Sturtevant v. Fairman, 4 Sandf., 674.

292. Under an order granted upon payment of costs, with no time specified for their payment, the payment is a condition, and must be made within 24 hours. Supreme Ct., 1827, Sabin v. Johnson, 7 Cow., 421. To the same effect, 1811, Pugsley v. Van Alen, 8 Johns., 352.

293. Twenty days allowed for performance of condition; but in case of costs to be adjusted, fifteen days allowed for payment after adjustment. Rule 57 of 1858.

294. Rule 35 of the Supreme Court (Rule 57 of 1858)—allowing time for the payment of costs, or performance of condition imposed by an order-has no application to an order under section 244 of the Code for the satisfac285. To bring into contempt for non-pay-tion of part of plaintiff's claim, admitted by ment of costs, greater strictness is required defendants. Such order may be enforced than in ordinary cases; and the person serv- either as a judgment or as a provisional reining the taxed bill, &c., must show his author-edy. N. Y. Com. Pl., 1858, Baker v. Nuss ity to receive the costs. Supreme Ct., 1808, baum, 1 Hilt., 549. Jackson v. Virgil, 3 Johns., 138.

286. Order of court. Where an injunction is granted by the court, and not by a judge out of court, it is properly served by delivering a certified copy; exhibiting the original is not requisite. N. Y. Com. Pl., Sp. T., 1857, Mayor, &c., of N. Y. v. Conover, 5 Abbotts' Pr., 244.

5. Void and Voidable Orders. Disregarding.

295. An irregular order of the court is not void; but a common order entered contrary to it may be made good by relation, by setting the former aside. Chancery, 1835, Studwell v. Palmer, 5 Paige, 166.

Orders;-Void and Voidable. Disregarding;-Vacating and Modifying.

296. An irregular order of the court made ing proceedings twenty days, when served ex parte is not void. [3 Paige, 166; 6 Id., 371; 2 Wend., 625.] Supreme Ct., Sp. T., 1854, Harris v. Clark, 10 How. Pr., 415. To similar effect, see Davenport v. Sniffen, 1 Barb.,

223.

297. That a chamber order which is entirely unauthorized is a nullity. Chancery, 1837, Hunt v. Wallis, 6 Paige, 371.

298. An order to stay is not to be treated as a nullity merely because the affidavit on which it was founded failed to conform to the requisites of the rules. Though erroneous, it must be respected until revoked. Supreme Ct., 1840, Starr v. Francis, 22 Wend., 633. 299. An order to stay proceedings, though improvidently made, or not in due form, is effectual until revoked. Supreme Ct., 1824, Roosevelt v. Gardinier, 2 Cow., 463; 1824, Jackson v. Jackson, 3 Id., 73. To the same effect, 1840, Starr v. Francis, 22 Wend., 633. Chancery, 1832, Osgood v. Joslin, 3 Paige, 195.

300. Until the vacatur of a stay it is irregular to proceed. Supreme Ct., 1829, Duncan v. Sun Fire Ins. Co., 2 Wend., 625.

301. An order improvidently granted, or irregular, or obtained by fraud of a party, is not to be disregarded as void, but application must be made to the court or officer. Supreme Ct., 1843, Gould v. Root, 4 Hill, 554.

302. Where the officer has no jurisdiction -e. g., a Supreme Court commissioner, to stay proceedings after verdict-his order is null, and may be disregarded. Supreme Ct., 1843, Spencer v. Barber, 5 Hill, 568; 1846, Methodist Episcopal Church v. Tryon, 2 How. Pr., 132; Sp. T., 1849, Schenck v. McKie, 4 Id., 246; and see Haner v. Bliss, 7 Id., 246.

303. May obey. That a party is not bound to treat as a nullity an order which is obtained in conflict with rules of court. Chancery, 1832, Osgood v. Joslin, 3 Paige, 195.

304. An order enlarging time may be disregarded unless the affidavit or copy thereof on which it was obtained is served with it. Code of Pro., & 405.

with the affidavit on which it was granted, cannot be disregarded as void because not accompanied by a notice of motion. It is merely irregular. Supreme Ct., Sp. T., 1852, Hempstead v. Hempstead, 7 How. Pr., 8.

307. An order staying proceedings does not necessarily enlarge the time of the party obtaining it, and hence a copy of the affidavit need not be served with it. [Code, § 405.] Supreme Ct., Sp. T., 1851, Langdon v. Wilkes, 1 Code R., N. S., 10.

308. An order to produce authority of attorney to bring ejectment, which does not designate a place for its production, and specify the officer before whom it is to be produced, is null, and may be disregarded. Supreme Ct., 1846, Turner v. Davis, 2 Den., 187.

309. Naming the officer is not enough. 1846, Turner v. Davis, 2 How. Pr., 86.

6. Vacating and Modifying.

310. Absence of counsel. A rule regularly and fairly obtained, will not be vacated at a subsequent term, on the ground of the absence of the counsel for the other party when the motion was made. Supreme Ct., 1801, Hildrith v. Harvey, 2 Johns. Cas., 221.

311. When the court is not full, very slight reasons induce them to refuse to vacate a rule, granted on argument in full court. Supreme Ct., 1804, Day v. Wilber, 2 Cai., 251.

312. Who may vacate. That an officer who has power to make an order may modify or revoke it. Moore v. Merritt, 9 Wend., 482; Bigelow v. Heaton, 2 How. Pr., 207.

313. An order made by one judge, or commissioner, can be set aside only by himself or by the court; not by any other judge or commissioner. Supreme Ct., 1842, Hart v. Butterfield, 3 Hill, 455.

314. Court. A motion to dissolve or set aside an order of a judge at chambers, may be heard by the court. The Supreme Court has power, both in suits at law and in equity, to vacate any order made in a cause by a judge out of court. [1 Barb. Ch. Pr., 637; 4 Johns. Ch., 173; 6 How. Pr., 182; 3 Danl. Pr., 1895; 4 Hill, 554; 3 Id., 455; 9 Wend., 470; 6 Id., 555; 1 Burr., 350; 3 Chitt. G. Pr., 33; Code, § 324; Jud. Act, § 16.] Supreme Ct., Sp. T., 1853, Woodruff v. Fisher, 17 Barb., 224. To the same effect [citing, also, 4 Cow., 539], 1851, 306. Stay of Proceedings. An order stay- Lindsay v. Sherman, 5 How. Pr., 308; Sp. T.,

305. If an order extending the time to answer or demur be made without the affidavit of merits required by Rule 20, it may be disregarded as much as if it were made without any affidavit at all. [Code, § 405,]. Supreme Ct., Sp. T., 1857, Ellis v. Van Ness, 14 How. Pr., 313.

In General.

1850, Blake v. Locy, 6 Id., 108. Compare ARREST, 270; ATTACHMENT; COURT, 26, 203, 205. The contrary practice was taken in Snyder v. Olmstead, 1 How. Pr., 194; and see Conway . Hitchins, 9 Barb., 378.

definite and continuing stay of proceedings,---the proper practice is to move the court to set it aside; not by appeal. Supreme Ct., 1857, Bank of Genesee v. Spencer, 15 How. Pr., 14.

322. Modification by another judge. An 315. An application to vacate or modify an order made by one justice at special term,ex-parte order, if made before another judge Held, to have been properly modified by an than him who granted the order, must be other justice at special term. Supreme Ct., made, not at chambers, but in court and on 1855, Selden v. Christophers, 1 Abbotts' Pr., notice. Supreme Ct., Chambers, 1856, Cayuga | 272.

County Bank . Warfield, 13 How. Pr., 439. 323. An order by consent, -e. g., an order 316. Vacating without notice. Section of reference stipulating that an answer and 324 of the Code applies as well to injunction- schedules shall be deemed correct, cannot orders as to other orders. The special provi- be modified or varied, in an essential part, sion made by section 225, is in addition to the without the assent of both parties to such powers conferred by section 324. [Overruling order; although the court may give such fur1 Code R., 121.] It is competent for a judge ther directions as necessary to carry such orto vacate or modify an injunction-order, with- | der into effect, according to its spirit and inout notice; but this should not be done except tent. Chancery, 1834, Leitch v. Cumpston, 4 in urgent cases. Supreme Ct., 1853, Bruce v. Paige, 476. Delaware & Hudson Canal Co., 8 How. Pr., 440.

317. Motion necessary. An attachment under the Code, being merely a provisional remedy, the sufficiency of the affidavits on which it is granted is not a jurisdictional question, and it can be set aside only on a motion in the action, and cannot be collaterally impeached. Supreme Ct., 1851, Matter of Griswold, 13 Barb., 412.

318. Weight of evidence. An order granted by a justice of this court, under a statute authorizing him to act on its appearing to his satisfaction, should not be set aside because the evidence upon which it was granted may be thought slight. Supreme Ct., Sp. T., 1853, Roche v. Ward, 7 How. Pr., 416.

319. The decision of the judge that the facts which authorize a provisional remedy,—e. g., an order of arrest,-exist, is, like that of a jury on the weight of evidence, conclusive; and if there was legal evidence, another judge should not vacate the order on the ground that it was insufficient. Supreme Ct., Sp. T., 1854, Courter v. McNamara, 9 How. Pr., 255.

320. Appeal from order on default. That where the court at special term makes, upon default, an order which it had no authority to make, the party prejudiced may either move at special term to set it aside for irregularity, or may appeal to the general term. Supreme Ct., 1857, Wilkinson v. Tiffany, 4 Abbotts' Pr., 98.

321. To get rid of an order improperly made by a judge at chambers,-e. g., an inVOL. IV.-7

MUNICIPAL CORPORATIONS.

[Under this title are presented those matters which are common to this class of Corporations in general; but the titles of the several cities and villages should also be referred to for matters which, thongh turning upon special statutes, further illustrate this head of the law. The general rights and duties of OFFICERS, and questions of CONSTITUTIONAL LAW, are presented under those titles respectively.]

I. IN GENERAL.
II. CORPORATE POWERS.
1. General principles.
2. Special powers.

III. OFFICERS.

IV. BY-LAWS AND RESOLUTIONS.
V. LIABILITIES.

1. Upon contract.
2. For wrongs.

VI. LOCAL IMPROVEMENTS.
1. In general.

2. Estimate and assessment.

3. Reviewing and confirming. Discon tinuing the proceedings.

4. Collection of assessments. Sale.

I. IN GENERAL.

1. The Legislature to provide for the organization of cities and villages, and restrict their powers of taxation, assessment, &c. Const. of 1846, art. 8, § 9.

2. Mode of applying for incorporation of a city or alteration of charter, &c. 1 Rev. Stat., 86, §§ 1-3; 155, §§ 1-4.

3. Who constitute. It is the citizens of a city, and not the Common Council, who con

Corporate Powers;-General Principles.

stitute the "Corporation" of the city. The visors of the county for penalties for an alleged aldermen and other charter officers are only neglect of duty in refusing to audit and allow officers of the Corporation. Supreme Ct., Sp. salaries to associate judges of general sessions T., 1857, Lowber v. Mayor, &c., of N. Y., 5 of the city and county, appointed under an Abbotts' Pr., 325. unconstitutional law,-nor to pay judgments

4. Cities, enumerated and bounded. 1 Rev. and costs in such suits; and negotiable drafts Stat., 5 ed., 343, 372.

As to the Power of the Legislature over municipal corporations, see CONSTITUTIONAL LAW, 132-142, 318-321.

5. Dissection legalized in cities whose population exceeds 30,000. Laws of 1854, 282, ch. 123.

II. CORPORATE POWERS.

1. General Principles.

6. Governmental, and private powers distinguished. Lloyd v. Mayor, &c., of N. Y., 5 N. Y. (1 Seld.), 369; Bailey v. the same, 3 Hill, 531; Lowber v. the same, 7 Abbotts' Pr., 248; Green v. the same, 5 Id., 503.

drawn for such payments are void. Ct. of Appeals, 1850, Halstead v. Mayor, &c., of N. Y., 3 N. Y. (3 Comst.), 430; affirming S. C., 5 Barb., 218.

11. Contracts. Where the officers of a Cor

poration do an act in excess of the corporate power, the Corporation is not bound; and when the statute under which the Corporation acts restricts its action to a particular mode, none of the agents through whom the Corporation acts can bind it in any other than the mode prescribed. [5 Barb., 649.] Those who deal with a Corporation, the mode of whose action is thus limited, must take notice of the restriction in its charter, and see to it that the 7. Contracts. A municipal corporation has contracts on which they rely are entered into no power, as a party, to make a contract which in the manner authorized by the charter. N. should control or embarrass their legislative Y. Superior Ct., 1857, Brady v. Mayor, &c., powers and duties.* Supreme Ct., 1826, Brick of N. Y., 2 Bosw., 173; S. C., 7 Abbotts' Pr., Presbyterian Church v. Mayor, &c., of N. Y., 234; 16 How. Pr., 432; affirmed, Ct. of Ap5 Cow., 538. Followed, 1827, Stuyvesant v. peals, 1859, 20 N. Y. (6 Smith), 312. To simiMayor, &c., of N. Y., 7 Id., 588. Compare At-lar effect, Supreme Ct., Sp. T., 1858, Appleby torney General v. Mayor, &c., of N. Y., 3 Duer, v. Mayor, &c., of N. Y., 15 How. Pr., 428. 119, 131, 147; Davis v. the same, 14 N. Y. (4 Kern.), 506; Costar v. Brush, 25 Wend., 628; and see N. Y. & Harlem R. R. Co. v. Mayor, &c., of N. Y., 1 Hilt., 562, 588.

8. Thus where the Corporation granted a lot to be used as a burying-ground, covenanting for quiet enjoyment, and afterwards, by ordinance, forbade it to be so used;-Held, that this was not a breach of the covenant, but an effectual legislative abrogation of it. Supreme Ct., 1826, Brick Presbyterian Church o. Mayor, &c., of N. Y., 5 Cow., 538.

9. An ordinance or by-law of a municipal corporation cannot so cripple its powers as to disable it from performing its legal duties. Supreme Ct., 1840, Exp. Mayor, &c., of Albany, 23 Wend., 277.

10. Assuming liability of another. A municipal corporation has no right to assume the defence of an action to which it is not a party, and which it has no interest in resisting,-e. g., actions brought against the super

12. One who, instead of examining into the validity of proceedings to authorize a local improvement, enters into a contract with the Corporation to do the work, and performs it, relying on their representation that the proceedings are regular, cannot recover from the Corporation damages for the falsity of such representation. He might have ascertained its falsity by reference to the records; and to allow him to recover, would evade the statutory restrictions on the power of the Corporation. Supreme Ct., 1857, Swift v. City of Williamsburgh, 24 Barb., 427.

13. Employing surveyor. That a municipal corporation have authority to employ a surveyor to furnish copies of an original map, or to make new surveys, and furnish a new map, exhibiting the streets, squares, wharves, &c. Ct. of Appeals, 1858, People v. Flagg, 17 N. Y. (3 Smith), 584; S. C., 16 How. Pr., 36.

14. Presumption in favor of discretion. Courts are bound to assume, where a discre

* Approved in West. Sav. Fund v. City of Phil- tion is vested in a municipal body exercising adelphia, 31 Penn., 175.

functions of a legislative character, that good