The Miscellaneous Reports (Volume 8); Cases Decided in the Inferior Courts of Record of the State of New York

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1894. Excerpt: ... Supreme Court, May, 1894. Vol. 8. courts of this state so far as research discloses. These cases hold that the civil authorities, and not a private individual, should institute a proceeding of this character, and, to my mind, the reasoning is founded upon sound principles. Moreover, in view of the grave importance which attaches to the question now considered, by reason of the property rights involved, the parties to be affected should certainly have recourse to the protection afforded by the settled rules of evidence when litigating this matter, and I am by no means satisfied that the provisions of section 829 of the Code of Civil Procedure would not oppose the successful prosecution of an action to set aside the order here attacked. This section is not in terms applicable to matter contained in affidavits submitted upon a motion, and, in my opinion, justice would require that the parties be relegated to a proper action whe4fe the question can be determined upon whatever competent evidence may be adduced. Motion denied, with ten dollars costs. George "W. Dalton V. John H. Vanderveer. (Supreme Court--Kings Special Term, May, 1894.) Where a complaint states a cause of action which is within the jurisdiction of equity and is not one at law, and the evidence fails to sua tain the complaint or to make out any case within the jurisdiction of equity, the complaint must be dismissed. Action to determine the interest of the plaintiff in certain land and for an accounting and division. Maguire & Hughes, for plaintiff. Albert G. McDonald for defendant. Gaynor, J. The complaint alleges in sum and substance that the defendant owned a tract of sixty-five acres of land, and in order to secure the experience and assistance of the plaintiff in laying it out in lots and s...