Misc.] City Court of New York, February, 1896. days after entry of order, to deliver the property replevied to the plaintiffs, and that defendant might thereafter reclaim and repossess himself of the same upon giving a new undertaking to plaintiffs to be approved by a justice of this court, and further directed that upon such approval Reitman be released from all liability except for such damages as plaintiffs had sustained before such approval of the new undertaking. The surety Reitman's notice of motion was directed to the attorneys for plaintiffs and to the attorney for defendant. The plaintiffs appeared and opposed the motion, but the defendant did not appear, and no proof of service upon him is made. The notice was not directed to, or served upon, Reitman's co-surety, Pius, and she did not appear. Both the defendant and this co-surety should have been brought into court before. either of them could be bound by the order. As soon as this reclaiming defendant's undertaking had been approved after examination of the sureties, it became a fixed contract between the sureties and the plaintiffs, which could not be changed or disturbed by the court, or otherwise, except upon the consent of the plaintiffs, for whose protection it was given. The order appealed from is reversed, with costs, and the motion is denied, with ten dollars costs. MCCARTHY and SCHUCHMAN, JJ., concur. Order reversed, with costs, and motion denied, with ten dollars costs. SANFORD B. STIFTER, Respondent, v. WILLIAM BOGGS, Appellant. (City Court of New York - General Term, February, 1896.) NEGOTIABLE PAPER- EVIDENCE-FRAUD. In an action upon a promissory note by a transferee thereof against the maker, where the defense is fraud in its inception or diversion, the defendant may prove such fraud or diversion without showing that plaintiff had knowledge thereof, and upon such proof being given the burden rests upon the plaintiff of showing the bona fides of his holding. City Court of New York, February, 1896. [Vol. 15. APPEAL from judgment in favor of the plaintiff. Thos. McAdam, for appellant. Edwin F. Stern, for respondent. VAN WYCK, Ch. J. The action is upon two promissory notes made by defendant to order of one Tuck, who indorsed same to plaintiff. Defendant's alleged defense was that these notes were obtained from him by fraud. The record shows that plaintiff's attorney tried the cause upon the theory that, after he had marked the notes in evidence, the defendant could not make any proof of the alleged fraudulent obtaining of the notes by the payee until he first proved that plaintiff had knowledge of the fraud, or showed that the notes came into plaintiff's possession after maturity. However, he now concedes that defendant could first show the fraud, and that then the burden would be shifted to the plaintiff to show that he obtained the notes before maturity for value; and he now concedes that if the defendant made proper effort to prove his affirmative defense of fraud, was prevented from doing so and excepted, then that defendant is entitled to a reversal and new trial. The court ruled, in addressing defendant's counsel: "You must first show that the plaintiff had knowledge of the defense or show that they (the notes) came into possession of plaintiff after maturity," to which defendant excepted, and again, when defendant was endeavoring to prove the circumstances under which the notes were obtained from him, the plaintiff's counsel said to the court: "He cannot show any knowledge on the part of Mr. Stifter" (plaintiff), and defendant's counsel frankly said "I cannot show any absolute knowledge on the part of the plaintiff." The court: "Then I sustain the objection." "Exception taken." If a promissory note is obtained from the maker by fraud or diverted from the purpose for which it was given, and is sued upon by a holder from the payee, and the maker defendant makes proof of the fraud or diversion, the plaintiff then Misc.] City Court of New York, February, 1896. must make proof of the bona fides of his holding, and the burden to do so is upon him. Judgment reversed and new trial ordered, with costs to appellant to abide the event. MCCARTHY and SCHUCHMAN, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event. JOHN F. WHELAN, Appellant, v. ANDREW J. GORTON, (City Court of New York - General Term, February, 1896.) 1. EVIDENCE-PRODUCTION OF PAPER TESTIFIED TO BY WITNESS. Where the sole witness as to an alleged gift by a decedent has testified that at the time thereof the decedent executed a will drawn up and witnessed by the donee, the opposite party has a right to the alleged will for the purpose of examining the witness as to the circumstances attending its execution, and to introduce it in evidence if its contents disprove the making of the gift. 2. SAME-NOTICE TO PRODUCE. To entitle the party to the use of such paper, where it is in court, service of notice to produce is not necessary. APPEAL by plaintiff from judgment for defendant rendered by the court without a jury. E. J. Dunphy, for appellant. Goldsmith & Doherty, for respondent. VAN WYCK, Ch. J. The plaintiffs, as administrators of one O'Connor, deceased, sued the savings bank for funds deposited by deceased, and this defendant sought and was allowed to interplead instead of the bank upon his claim that deceased, just before his death, had given and delivered to him the bank book containing these deposits. The record shows that this defendant had first brought action against the bank, making the same claim in that action that he does in this, and City Court of New York, February, 1896. [Vol. 15. that upon the trial of that first action the fact was disclosed that the deceased had made what purported to be his will, which was witnessed by the plaintiff therein (the defendant herein). The record of the trial now under review shows as follows: Plaintiff's attorney: "Now I call on counsel to produce an alleged will spoken of by this witness (Miss King) on her direct examination, drawn by A. J. Gorton at that time and signed by her." Defendant's attorney: "To which request counsel remains mute." Whereupon plaintiff's attorney called as a witness the defendant's attorney and questioned him as follows: Q. "Mr. Goldsmith, have you in your possession a paper testified to by Miss King as having been drawn up by A. J. Gorton and signed by her?" Defendant's attorney: "I object to it as immaterial, irrelevant and incompetent." Objection sustained. Exception." Q. "Has there been delivered to you by your client a paper purporting to be the will of O'Connor?" "Same objection, ruling and exception." These rulings cannot be sustained in view of the fact that Miss King was the sole witness as to the circumstances attending the dying O'Connor's gift to Gorton, and she says that Gorton at O'Connor's request at that time drew up what purported to be O'Connor's will, which was witnessed. It must be assumed that defendant's counsel had this paper with him in court. The plaintiff had a right to have the paper if it was in court in order that he might cross-examine Miss King as to the circumstances attending the drawing up of the same and to offer it in evidence if its contents went to show that the deceased did not make the gift to Gorton. And at folio 135 the witness was asked to state the contents of this paper purporting to be deceased's will, but defendant objected and was sustained. The defendant's attorney contends upon this appeal that the record does not show that any proof of service of notice to produce this paper was made, but the record does not show that he made such objection at trial, and, moreover, if the paper was in court, and it must be assumed that it was, no Misc.] City Court of New York, February, 1896. notice to produce was necessary. The record shows other errors against plaintiff which it is not necessary to discuss. Judgment reversed and new trial granted, with costs to appellant to abide the event. MCCARTHY and SCHUCHMAN, JJ., concur. Judgment reversed and new trial granted, with costs to appellant to abide event. JENNIE GETZELSON, Appellant, v. HARRY BERNSTEIN, sued as HARRY NATELSTEIN, Respondent. (City Court of New York - General Term, February, 1896.) 1. BREACH OF PROMISE-PLEADING. A complaint alleging mutual promises of marriage on request by plaintiff and defendant; that plaintiff was ready and willing to fulfill and that defendant refused to do so, sets forth a cause of action for breach of promise. 2. SAME MULTIFARIOUSNESS. Allegations of seduction in a complaint for breach of promise are available in aggravation of damage, but do not constitute an independent cause of action. 3. SEDUCTION-ACTION CANNOT BE MAINTAINED BY PERSON SEDUCED. A person seduced cannot maintain an action for seduction, and can only maintain an action for personal injury when a rape has been committed. APPEAL from order sustaining a demurrer to the complaint. Emil A. Klein, for appellant. Alexander Finelite, for respondent. SCHUCHMAN, J. This is an appeal from an order sustaining a demurrer interposed by the defendant to plaintiff's complaint specifying two grounds of demurrer. First. That two causes of action have been improperly united in one cause of action, to wit, one for breach of promise of marriage and one for seduction. |