Jennings v. Fay.

paid the claim. The mechanic now moved for twelve dollars costs.

Newhouse, for claimant.-The docketing of the lien was in the nature of the commencement of a suit. The owner having settled before answer, we are entitled as plaintiff to $12 costs. It is a case in which application to the court must have been made for judgment.

DALY, J.-The commencement of a suit under this act is the service of the notice provided for in section 4, requiring the owner to appear and submit to a settlement. It is a substitute in effect for a summons in an ordinary action. No such notice was served in this case, and no suit was therefore commenced.

NEW YORK COMMON PLEAS.

Special Term, November, 1851.

JENNINGS V. FAY and CASEY.

A defendant who has received a notice from the plaintiff's attorney that the plaintiff has left the state, and that no further proceedings will be taken in the cause, cannot continue to notice the cause thereafter and put it on the calendar. He should move upon the notice at the special term for a rule of discontinuance, or if the cause is reached during the term when he received the notice, he should move for a dismissal of the complaint.

A defendant can recover no costs of the term when the cause was unnecessarily on the calendar.

The plaintiff's attorney served a notice upon the attorney for the defendant, advising him that the plaintiff had left the state, and that he should proceed no further in the cause. The defendant's attorney, after receiving the notice, continued to put the cause on the calendar for a number of terms, and now moved that the cause be discontinued or that the plaintiff file security for costs.

Hough v. Kohlin.

Cochran, for defendants.

O.Gorman, for plaintiff.

DALY, J.-The defendant should have moved for the dismissal of the cause when it was reached upon the calendar, if it was reached during the term when the notice from the plaintiff's attorney was received. If not then reached, he should have moved upon the notice at a special term for a rule discontinuing the cause. His noticing the cause and putting it upon the calendar for so many terms was a needless proceeding, and for which he can recover no costs. As the plaintiff is now desirous of proceeding with the cause, the motion for discontinuance will be denied, and the plaintiff must file security.

NEW YORK COMMON PLEAS.

Special Term.-November, 1851.

HOUGH, Assignee, v. KOHLIN.

In obtaining an order for the examination of a defendant respecting his property, it is not necessary to state in the preliminary affidavit that the defendant has property. The statement that an execution has been returned unsatisfied is enough.

Where the order is obtained by an assignee, the fact that he is the assignee of the judgment must be set forth in the affidavit.

Where the proceeding is founded upon the transcript of a justice's judgment, it is the practice of this court to appoint as referee, the justice who rendered the judgment.

The plaintiff obtained an order for the examination of the defendant on a justice's judgment concerning his property, execution having been returned unsatisfied.

D. A. Kane, for plaintiff, moved to set aside the order, upon two grounds:

1. That the affidavit upon which it was obtained did not allege that the defendant had property; citing Tillou v. Vere,

Keating v. Anthony.

1 Code Rep. 130; Engle v. Bonnen, 2 Sandf. S. C. 679; 3 Code Rep. 205.

2. That there was nothing in the affidavit to show that James Hough was the judgment creditor; citing Lindsay v. Sherman (1 Code Rep., N. S., 25).

DALY, J.-It was formerly held in this and in the superior court, that such an allegation was necessary. As the construction of this section, $292, however, has led to great diversity of decision, we have concluded, for the sake of having an uniform practice, to grant such orders hereafter without this allegation. As respects the second objection, it appears by the affidavit upon which the order was obtained, that Hough is the assignee of the judgment, which is sufficient.*

Moved that it be referred to a referee to take the defendant's examination.

Kane objected to the selection of the justice.

DALY, J.-In supplemental proceedings upon justice's judg ment, it is our practice, in every instance, to appoint as referee, the justice who rendered the judgment.

[On its being suggested to the court that the plaintiff's attorney and the justice to whom the reference was proposed were connected in certain pecuniary matters, a referee other than the justice was appointed.]

NEW YORK COMMON PLEAS.

Special Term.-November, 1851.

KEATING V. ANTHONY.

The plaintiff in action for assault and battery recovered $25. He claimed to tax $25 costs and his disbursements, to the amount of $35 93.

* See Ross v. Clussman, ante p. 91; Anon., ante p. 113.

Bagner v. Jones.

DALY, J., said :-The plaintiff is not entitled to his disbursements in addition. He can tax $25 costs, and nothing more. The point has been decided by this court at general term. When the provision was first enacted in the act of 1840, we were disposed to give it a liberal construction, and were in the habit of taxing the disbursements, in addition to the allowance for costs. The question came before the supreme court, however, and they held that disbursements were not recoverable; that they were included in the general allowance for costs. The code is far more explicit than the act of 1840, for it defines costs to be a sum allowed to a party by way of indemnity for his expenses in the action; a definition that necessarily includes disbursements.*

NEW YORK COMMON PLEAS.

Special Term.-November, 1851.

BAGNER V. JONES.

The provision of the revised statutes allowing double costs is repealed.

The point on this motion was whether the defendant was entitled to double costs.

DALY, J.-It was held by Judge Ulshoeffer, immediately after the passage of the code, that the provision of the revised statutes allowing double costs was repealed. As Justices Sill and Wells afterwards held the other way, the question was again very fully examined by Justice Woodruff, and he came to the same conclusion as Judge Ulshoeffer. The question was not carried to

* See Stone v. Duffy, ante p. 129, and note p. 131 ante.

Debaix v. Lehind.

the general term, but Judge Ingraham and myself concur in the opinion that the provision is repealed.*

NEW YORK COMMON PLEAS.

Special Term.-November, 1851.

DEBAIX v. LEHIND.

In a complaint in slander, the defamatory words were set forth in English. They were uttered in French, and the plaintiff moved to amend by inserting the foreign words. Held, that the amendment did not substantially, change the nature of the plaintiff's claim within the meaning of § 173 of the code.

Slander. The defamatory words were averred to have been uttered in English. They were spoken in French, and the plaintiff now moved to amend his complaint by inserting the foreign words.

Craft, for plaintiff.

Adams, for defendant. In Wormouth v. Crouse (3 Wend. 394), the words were averred in the declaration to have been spoken in English, and it was held that the plaintiff could not upon the trial prove foreign words of a similar import. Here the plaintiff purposes to do the same thing-to amend by insert ing words of a similar import. The words are the gist of the action, and an amendment authorizing a change of the words is substantially changing the nature of the claim.

*See, to the same effect, Moore v. Westervelt, ante p. 131; Hallenbeck v. Miller, 4 Pr. R. 239; Van Rensselaer v. Kidd, 3 Code Rep. 224. Contra, Murray v. Haskins, 4 Pr. R. 263; Chadwick v. Brother, ib. 283. Of the opinion that double costs may be allowed are, Wells, Sill, and Hand, JJ.; contra, Parker, Duer, Ulshoeffer, Ingraham, Daly, and Woodruff, JJ.