than $2,000, and the excess was remitted and the judgment and execution was amended nunc pro tunc. On motion by a subsequent execution creditor to vacate the judgment and execution for want of jurisdiction and other alleged defects and irregularities:

Held, that the jurisdiction of this court extends to any action wherein the complaint demands judgment for a sum of money only, whatever may be the amount claimed. The mount claimed does not affect the jurisdiction of this court. If jurisdiction vests at the commencement of the action, it cannot be ousted by any subsequent act, although entry of judgment for the excess of its jurisdiction may have been an irregularity which the defendant might have objected to, a third party

cannot.

There being no want of jurisdiction, if there are any defects or irregularities in the judgment, or proceedings or execution, they can be taken advantage of only by the defendant. (Roof agt. Meyer, ante, 20.)

9. Sections 376, 381- After a judgment of foreclosure and sale, the owner of the equity of redemption executed another mortgage upon the premises as collateral to the judgment. Held, conceding that by stipulations in said mortgage enforcement of the judgment by sale was stayed for ten years, after the lapse of the ten years, and of twenty years thereafter, the lien of the judgment and of the new mortgage were lost and the enforcement of either was barred; and this, whether the question was considered under the limitation prescribed by the Revised Statutes (2 R. S., 295, sec. 90), or the Code of Procedure (sec. 90), or the Code of Civil Procedure (Sec. 381.)

Also held, that neither the provision of the Revised Statutes (2 R. S., 301, sec. 47), nor that of the Code of Civil Procedure (sec. 316), VOL. I 70

10.

raising a presumption of payment after twenty years of a judgment or decree governed the case of a foreclosure jundgment, as it is not for the payment of any sum of money, such judgment only being authorized in case of a deficiency after a sale. (Barnard et al. agt. Onderdonk, 98 N. Y., 158.)

Section 382, sub. 5- Duress when a contract will be set aside on the ground of action for relief on account of, barred in six years. (See Schoener agt. Lissauer, 36 Hun, 100.)

11. Section 383, sub. 5- Statute of limitation when an action will be treated as one to recover damages for personal injury resulting from negligence. (See Webber agt. Herkimer and Mohawk Street R. R. Co., 35 Hun, 44.)

12. Sections 388, 394-The provision

of the Code of Civil Procedure (sec. 394), limiting to three years the time for bringing an action against a director or stockholder of a moneyed corporation "to recover a penalty or forfeiture imposed, or to enforce a liability created by law," does not apply to an equitable action against the director of such a corporation to require an accounting and to recover damages for their neglect and inattention to the duties of their trusts whereby they suffered corporate funds to be lost and wasted. Such an action is simply the enforcement of a common-law liability, while the words of the provision, "a liability created by law," have reference only to a liability created by statute. The limitation applicable to such an action is ten years (Sec. 388).

Where a national bank had become insolvent and one of its directors had been appointed receiver, an action was brought against him and the other directors for neglect of their duties, by one of the stockholders on behalf of

himself and the other stockholders: Held, that as to other stockholders who became parties to the action upon their petition, the statute of limitations began to run from the time of the commencement of the action, not from the time of filing their petitions; that for the purposes of the statute of limitations the action must be treated as if all the stockholders were originally plaintiffs.

It seems that the original plaintiff could, at any time before other stockholders were made parties, and before judgment, have settled his individual claim and executed a release thereof and discontinued the action, but upon prosecution to judgment it is for the benefit of all the stockholders and he ceases to have control over it.

It seems, also, that as to stockholders who do not come in, the suit having been commenced for their benefit, the rights are not barred by any lapse of time after the commencement. (Brinckerhoff et al. agt. Bostwick et al., 99 N. Y., 185.)

13. Section 390 Before the adoption of the Code of Civil Procedure the statute of limitations of a foreign state constituted no defense to an action brought here, but this section of the Code of Civil Procedure has changed the rule to some extent.

In this case the cause of action does not come within the excep tions of this section, for the reasons: First. The cause of action did not originally accrue in favor of a resident of this state, but in favor of a resident of the state of Ohio. Second. Because before the expiration of the period of limitation the person in whose favor the cause of action originally accrued did not become a resident of the state of New York as he lived and died in Ohio; and because, Third. The cause of action was not assigned before the expiration of the time so limited to a resident of this state. (Howe agt. Welch, ante, 507)

16. Section 432 - Foreign corporation service of the suminens upon a managing agent within this State who is to be deemed a "managing agent" within the meaning of this section of the Code of Civil Procedure. (See Palmer agt. Pennsylvania Co., 35 Hun, 369.)

17. Sections 438, 439- Where there was furnished to the judge who made the order for the service of a summons by publication a verified complaint showing a sufficient cause of action against the defendants to be served, and positive proof by affidavit that they resided in Ireland, and that the attorneys for the plaintiff delivered copies of the summonses to B. with directions to serve them; proof by the affidavit of one of the attorneys for plaintiff that he was informed and believes that the summons could not, after due diligence, be served on the defendants, supplemented by the affidavit of B, who was charged with the duty of making the service; that he had served

the summons on a number of the defendants, but that he had been unable, with due diligence, to make personal service on the three defendants named, and he also proved their non-residence:

Held, that the statutory requirements of the Code of Civil Procedure have been complied with, and that the affidavits are sufficient.

The statutes do not require extreme diligence or extraordinary exertion. They only require proper and suitable diligence, such as the circumstances of the case require. (Wunnenberg agt. Gerarty, ante, 181.)

numerous that it is impracticable to bring them all before the court. While the word "many," as here used, contemplates more than one, it does not necessarily very numerous persons, while the word "many,' as ordinarily used, is synonymous in meaning with "numerous." As used in this section, in connection with the words 'common or general interest of the persons," it means a limited number. It is the character of the interest which controls rather than the number of persons. The third class mentioned very numerous," one is allowed to sue for all, as a matter of convenience in the administration of justice by the court.

On a demurrer to a complaint, the test of the unity of interest intended by this section is that the joint connection with or relation to the subject-matter, which by the established practice of the common law, courts will preclude a separate action. (Farnam agt. Barnum, ante, 396.)

22. Section 449- An action must be brought by the real party in interest. (See Merchants' Loan and Trust Co. agt. Clair, 36 Hun, 362)

"

23. Sections 451, 1932, 1934, 1935The court may on the trial allow the pleadings to be amended by striking out the words "and son in the title of the action and inserting in place thereof the name of the son. (Bannerman agt. Quackenbush et al., ante, 293.)

24. Sections 452, 499- Under the provisions of these sections of the Code of Civil Procedure although the defendants in an action by omitting to raise an objection of defect of parties by demurrer or answer, must be deemed to have waived it, yet where the granting of relief against the defendant will prejudice rights of others who are not parties to the action, and their rights cannot be saved

It is only agents or attorneys that are required, when verifying pleadings, to set forth the grounds of their belief as to all matters not stated upon their knowledge, and the reason why the verification is not made by the party. A corporation cannot take an oath, and the statute points out the way in which it must verify a pleading. Such verification is the verification of the corporation and a verification by the party. (American Insulator Co. agt. Bankers and Merchants Telegraph Co., ante, 120.)

order of arrest against the partner who withdrew the money, without further proof that he had either disposed of any part of this sum or intended to do so to defraud his creditors. (Scott and others agt. Reed, ante, 521.)

29. Section 603-A court having power to, and which appoints a receiver of the assets of an insolvent corporation, may, in aid of that appointment, forbid any after interference, by way of levy and seizure by attachment or execution, with the property in his possession.

The provisions of sections 603 et seq., in reference to injunctions, have no application to such a case.

The exercise of the right to restrain such interference being in the discretion of the court, its determination is not reviewable (Woerishoffer agt. North River Const'n Co., 99 N. Y., 398)

here.

28. Section 550-Proof that one of two partners withdrew a large amount of money from the business of the firm for the reason that it had suffered severe losses, and that the other partner had already transferred a large portion of his property to his wife without consideration, will not support an

Section 636- An affidavit for an attachment made by H. states as follows: "I am a member of the firm of D. & Co., and one of the plaintiffs above-named, the only plaintiffs so above-named being D. and himself, it is a fair presumption that they constitute the firm."

It is to be presumed that if counter-claims existed in favor of the defendant, that some knowledge of that fact would have been possessed by the plaintiff H. mak

ing the affidavit. For the purposes of the statute his knowledge constituted that which was known to the plaintiffs, and his allegation is a substantial compliance therewith.

An affidavit by B. which states that he was the bookkeeper of the plaintiffs and personally acquainted with the defendant; that the defendant had in his possession several statements showing a balance due to the plaintiffs for the goods sold and delivered to him, and that he had frequently acknowledged to the affiant his indebtedness to the plaintiffs for the amount claimed, is sufficient to show the existence of a cause of action in favor of the plaintiffs against the defendant. (Doctor agt. Schnepp, ante, 52.)

35. Section 709 The provision of section 709 of the Code of Civil Procedure permitting the sheriff to hold property taken under an attachment after the warrant of attachment has been vacated on the application of defendant, until his costs and expenses have been paid, and sell it for their payment, is unconstitutional, as being in effect to allow him to hold and dispose of the property of one party to pay the debt exclusively of another (See Hall agt. United States Reflector Company, 66 How, 51). (Bowe agt. The United States Reflector Company and others, ante, 440.)

36. Section 709-Vacating an attachment when the defendant cannot be compelled to pay the

sheriff's costs and expenses-Code of Civil Procedure, sec. 709, its provisions directing the payment of sheriff's costs, &c., is unconstitutional. (See Bowe agt. U. S. Reflector Co., 36 Hun, 407.)

37. Sections 72, 724 - There being no want of jurisdiction, if there are any defects or irregularities in the judgment, or proceedings or execution, they can be taken advantage of only by the defendant.

The alleged irregularities and informalities may be amended or corrected by an order to be entered herein. (Root agt. Meyer, ante, 20.)

39. Sections 738, 1278, 1932-Where defendants were sued as partners upon a partnership indebtedness, and one appeared and defended the action, the other defendant not being served with process and not appearing, the one appearing served an offer to allow judgment to be taken "against him" for sixty-five dollars and fifty-four cents, with interest and costs. The plaintiff recovered a judg ment against the defendants "jointly" for seventy-two dollars and ninety-one cents, but this included interest, so that the judgment, "in amount," is not more favorable than the offer:

Held, that a joint judgment could not have been entered upon the offer; and, therefore, the recovery is more favorable, as it is enforceable against the joint property of both defendants, as well as the property of the defendants served, and the plaintiff is entitled to tax his costs. (Bannerman agt. Quackenbush et al., ante, 82.)