The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-03-27
Superior COurt-Special Term.
Before Hon, Judge Duer.

=. n
NiehoThe application of the wife, the plaintiff for
limited had been denied but the Judge in dsmis
Ig nsr 20 MP mao m RED heI 70 M two
to whom he awarded their and custody Upon this
decree and upon affidavit of the defendant stating
that he had been unable to discover where the children
the plaintiff were and believed that she concealed
them with the design of evadng the order of tho court
TIE counsel Of the defendant moved that the process Of
the court might be issued to the Sheriff. directing him to
take the bodies of the infants wherever they might be
found and deliver them to the defendant Held that the
cSaf mao no power 10 issue 5ne io. and
ment against the plaintiff, by habeas corpus. There
was no precedent for such general search warrant as
was asked for and would be contrary to settled prnc
pies TO grant it. Motion denied.
f. Wright and VIM Jessup w George N. Chapman
Motion ON the part Of the plaintiff for commission to
England to examine, without naming hem such witness
might be produced before the commissioners. 1t
spI cared that the had been at issue for
Held that the general rule that the witnesses be
named in the commission never departed from
cept under very special circumstances and when
by reasonable diligence the names might have been
certained. Here the laches in making tho motion
notexcused in the affidavit which it founded 1t
was therefore denied, with costs.
Ddrid Selden Samuel E. Lent and o.hers.-Excep-
tons to report Of referee overruled Report confirmed
and final judgment thereon.
William J. Cooke Us. Aldnson Fl. Chdse-Demurrer to
complaint The complaint set forth that the plaintiff
had sold and delivered the defendant certain building
materials for the price Of q 500 on which there was
he prayed judgment. The complaint also alleged that
for the amount Of his claim the plaintiff had duly
quired lien certain dwelling belonging to the
defendant in the city of Brooklyn and prayed that the
lien might be enforced by sale Of the defendants in
,e1es the said real estate 9, Of 80 much thereof
demurred to the whole complaint but assigned the
only ground Of demurrer that sevsral causes of
action had been improperly united. Held, that
had the demurrer been limited to those parts of
the complaint which related to the en had assigned
the court to enforce the en it must have been allowed
but that embraced the whole complaint and speci
fed other objection than the improper union Of
raj Of action il must be overrued Granting the
jurisdiction Of the court there objection to the
form OF the complaint and certainly such improper
junction of distinct causes Of action alleged De-
murrer overuled with $40 costs, but twenty days al
lowed to amend the demurrer answer unless plain
tiff should within ten days elect to amend the complaint
Should plaintiff elect ten days thereafter allowed de-
PENDANT to answer.
Charles S. Loper and Charles II. Davis u.s. johannes
WalchThe complaint alleged that the plaintiff hadbar-
gained and sold to defendant and at his special request
had delivered to O'Bren, goods, merchandise and
building materials of the value Of $780, and that there
still remained due to them thereon the Of $162 u.s.
for which with interest they prayed judgment. The
defendant demurred and specaed the several
tLecompain did not that the plaintiffs partners
and such had made the sale in question. Held, that
plaintiffs to maintain the action depends upon their part
nershp but without being partners they might prove
joint ownership and joint contract and upon such proof
would be entitled to recover the objection untenab
and the other objections plainly frivolous the
plaintiffs entitled judgment Demurrer overruled
and judgment for plaintiffs with costs.
Washington H. Nichols ps Samuel B. Romaine.-The
object Of the complaint to compel the payment of an
annuity alleged to have been bequeathed to the plaintiff
by the will of B. Romaine deceased and to be charged
thereon upon the real estate Of the testator Upon an
affidavit stating that Alice Olmsted, of the deen-
dants, as devisee necessary party and that she
resided in the State Of Ohio application
order directing the service Of the upon by
publication. Held, that the court had Jurisdiction
unless the summons was personally served within the
city, the action not being the recovery nor for the
determination of estate interest in real property
within the meaning of the Code (Sec 1921; did It
appear that the real estate to be charged within the
city. Application denied
G. Clark against VIM. @. Furley.-Motion that the
complaint averred that the defendant indebted to the
plaintiff in the Of 81 562 0S for money lent and ad
vanced to him upon his request toward the building of
two houses in Tenth street. and from money found
due from the defendant to the plaintiff upon an account
stated Held, that the complaint defective in not
stating with sufficient certainty whether the plaintiff
sought to recover upon two of action and
If upon two, what claimed to be due upon EACH
The motion was therefore granted but plaintiff per-
mitted to amend without costs.
Denstow dgt. NEUTRALITY-SUSPICIOUS. had obtained an
order that the plaintiff should file security for COSTS or
show the first of April staying proceedings in
the meantime Plaintiff had filed his bond with a proper
affidavit Of justification by the surety and had served
copy Of the bond and affidavit upon defendants attorney
and upon affidavit of these facts moved to yacate
the stay Of proceedings Held that although the words
of the statute (R S. oh. $685. p 620 had not been
literally followed the intention had been fully complied.
with and the motion therefore properly made. 1t
accordingly granted