56. Where a motion for judgment on return to a writ of certiorari in proceedings before the mayor of New York city to remove a police commissioner is allowed to be heard upon order to show cause on less than eight days' notice, the propriety of granting the order is reviewable. (See People ex rel. agt. Nichols, 79 N. Y., 582.)

57. To justify an appellate court in rendering final judgment against the respondent upon reversal of a judgment, it is not sufficient that it is improbable that the defeated party can succeed upon a new trial; it must appear that he certainly cannot. (Guernsey agt. Miller, 80 N. Y., 181.)

58. A certiorari to correct an assessment-roll, by striking out an illegal assessment, was issued after the assessors had completed the roll and delivered it to the supervisor of the town. This fact appearing on the return to the writ, a supplemental writ was issued to the supervisor, commanding him to bring the roll into court, which was done, and a hearing was then had on both writs, on the merits. The objection that the writ was not the proper remedy because of the fact that the roll had passed out of the hands of the assessors was not raised:

Held, that the defendants were concluded from raising it here. (People ex rel. agt. McLelan, 80 N. Y., 254.)

59. After plaintiff had been partially examined as a witness, on trial before a referee the hearing was adjourned, and was set down for two successive days. The referee upon the first day informed the attorney for the parties that the case would not be proceeded with that day, but would be the next. He was advised by defendant's attorney that he could not attend the next day; he did not appear, and the case was proceeded with on the second day.

Several witnesses being examined for plaintiff without any one appearing for defendant. A motion was made on behalf of defendants at special term to strike out the evidence so given, which was denied. A similar motion was thereafter made before the referee upon a subsequent hearing, which was denied:

Held, that the claim of a mistrial because of the proceeding of the referee without an adjournment was a question of irregularity disposed of on the motion, and not reviewable on appeal from the judgment. (Comins agt. Hetfield, 80 N. Y., 261.)

60. Also, held, that an order of special term denying a motion to set aside the referee's report and the judgment thereon, and to vacate the order of reference because of irregularity in the proceedings before the referee, was not reviewable here; that it was a matter addressed to the discretion of that court. (Id.)

61. Under the provisions of the Code of Civil Procedure (§§ 191, 194), requiring a party, on appeal from an order granting a new trial, to stipulate for judgment against him in case of affirmance, and directing this court, in such case, to render judgment absolute upon the right of the appellants; also authorizing such proceedings in the court below upon the remittitur as are not necessary to render the judgment effectual, the judgment must be absolute against the appellant upon the whole matter and right in controversy in the action. (Hiscock agt. Harris, 80 N. Y., 402.)

62. Where, therefore, an order, reversing a judgment in favor of plaintiff and granting a new trial, is affirmed on appeal to this court, and judgment absolute ordered, in an action wherein the answer sets up a counter-claim, defendant is entitled to such judgment upon

to.

64. The caption of an order for the service of summons by publication was "At a special term of the supreme court, * * * held at chambers;" and there was a direction to enter it. It did not appear that it was entered as a court order; it was in fact made by the judge whose name appeared in the caption, out of court, in his private chambers; it was signed with his initials and those of his office; and in the body thereof it purported to be made by the judge. The general term held that the caption and the direction to enter were not conclusive, and that the order was good as a chamber order of the judge:

Held, that as the question was purely one of form, this court would not differ with the court below on so technical a point of practice. Order, therefore, affirmed. (Phinney agt. Broschell, 80 N. Y., 544.)

65. An appeal from an order of general term affirming a judgment is premature and unauthorized; judgment should first be entered and the appeal taken from the judgment. (Kilmer agt. Bradley, 80 N. Y., 630.)

66. The question as to whether this court has jurisdiction on appeal from a judgment, or from an order granting or refusing a new trial, is to be determined by the amount in controversy in the general term. (Davidson agt. Alfaro, 80 N. Y., 660.)

67. Objection not raised below, not available on appeal. (See Park agt. Park, 80 N. Y., 156.)

68. Where no exceptions are taken on trial, or to referee's refusal to find, and order modifying judg ment by general term does not state it was upon facts, order cannot be sustained. (See Brown agt. Gallaudet, 80 N. Y., 414.)

69. Order amending order of publication, not reviewable here. (See Mojarrieta agt. Saenz, 80 N. Y., 555.)

70. Where evidence upon question of fact is conflicting, judgment cannot be reversed here on ground that verdict is against weight of evidence. (See Green agt. Fortur [Mem.], 80 N. Y., 640.)

71. Order vacating an attachment not reviewable here. (See Claflin agt. Baere [Mem.], 80 N. Y., 642.)

72. General term of the supreme

court has no power to vacate judgment as to costs which has been affirmed by this court, at least when no new facts are presented. (See Sheridan agt. Andrews [Mem.], 80 N. Y., 648.)

APPEARANCE.

1. When a married woman may appear by her own attorney. (See Janinski agt. Heidelberg, 21 Hun, 439.)

ARREST.

1. The affidavit upon which the order of arrest was founded was

4 of section 549 of the Code of Civil Procedure, as amended in 1879, the complaint must allege the cause of action therein set forth to be fraudulent or to have been fraudulently contracted, and must limit the application for the order to such cause of action. (Id.)

10. Arrest of a party under an execution, while returning from attendance at a court-remedy of, is by a motion and not by a writ of habeas corpus-a party must be in actual custody to authorize such writ to issue. (See Matter of Lampert, 21 Hun, 154.)

11. A police officer is not authorized, without process, to arrest a person as a common prostitute, on the ground that she is a disorderly person, unless the offense was committed in his presence. (Peo ple ex rel. Kingsley agt. Pratt, 22 Hun, 300.)

* *

12. A city ordinance providing that policemen shall have power to arrest * * * all vagrants, common prostitutes, drunkards and other disorderly persons found in the city," must be construed as a power to arrest such offenders in the manner required by the general, common and statutory law of the state, and not as giving additional power to such officers, not warranted by and not in harmony with such general law. (Id.)

13. A complaint before a police magistrate to the effect that the complainant had heard and believed a person to be a common prostitute, without stating the source of his information, or the grounds of his belief, will not justify the magistrate in proceeding with the trial of the person upon such charge. (Id.)

11. Section 568 of the Code of Civil Procedure, authorizing a motion to vacate an order of arrest, founded upon proof by affidavit

on the part of the defendant, to be made to the court, or, if the order was granted by a judge out of court, to any judge of the court upon notice," is not in conflict with, nor does it abrogate the provisions of section 769 of the said Code, which requires all motions, upon notice, in an action in the supreme court, to be made within the judicial district in which the action is triable, or in a county adjoining it, except that when it is triable in the first judicial district, the motion must be made therein. (Sutton agt. Sabey, 22 Hun, 557.)

15. When the facts on which an order of arrest is granted are not extrinsic to the cause of action, but the nature of the action alone furnishes the authority for granting it, it should not be vacated upon evidence tending to disprove the existence of the cause of action; the merits of the controversy should not be determined upon affidavits, but should be allowed to await the trial of the action. (Peck agt. Lombard, 22 Hun, 63.)

16. Under section 552 of the Code of Civil Procedure, a defendant may be arrested in an action brought in this state upon a judgment recovered in a circuit court of the United States, provided he might have been so arrested had the original action been brought here. (Baxter agt. Drake, 22 Hun, 565.)

17. Supersedeas when a defendant is not in actual custody so as to authorize an application for it. (See Watt agt. Healy, 23 Hun, 491.)

18. When conditions will not be imposed, where an execution against the person is set aside. (See Catlin agt. Adirondack Co., 22 Hun, 493.)

19. Motion by a defendant to be discharged from, because of the failure of the plaintiff to enter judgment where it may be made

20. An order of arrest was issued in an action to recover damages for wrongfully and maliciously cutting down and carrying away certain telegraph poles, with the wires and insulators attached thereto, which were located in a highway in the state of New Jersey, and formed part of a continuous telegraph line in operation in that state. On motion to vacate the order of arrest, held, that the order was not properly granted; that as the poles were affixed to the soil they were part of the realty, and the cutting down of the same was a trespass, the damages for which could only be recovered in an action quære clausum fregit; that the cutting down and removal charged was continuous transaction, constituting but one cause of action, which could not be divided, and was local; also, that the objection as to jurisdiction could be taken on such a motion; as, if the order of arrest was granted without authoity, defendant was entitled to have it vacated, and was not bound to raise the question by answer or demurrer. (Am. Un. Tel. Co. agt. Middleton, 80 N. Y., 408.)

one

21. It appeared, by the affidavits, that defendant cut the poles in a highway, and carried them to the ditches and side fences of the road, and left them:

Held,that conceding the poles and wires could have been made the subject of a conversion after they had been severed, no such conversion actually took place; also, that as the order of arrest was granted for the cutting, as well as the conversion, even if such conversion took place, the order should be vacated, for the reason that the right of arrest is not applicable to all the causes of action. (Id.)

22. When undertaking in form unauthorized by the statue taken by sheriff from defendant, arrest under order of arrest in action to recover possession of personal property is void. (See Cook agt. Freudenthal, 80 N. Y., 202.)

ATTACHMENT.

1. The defendants had in store for plaintiff a quantity of coffee, to be held for it, with liberty to sell, and to pay the plaintiff, out of the proceeds, the amount due upon bills of exchange which it had discounted on the security of the property. The defendants sold the coffee, using the proceeds, which were more than sufficient to pay the drafts, in their business:

2.

Held, upon a motion to vacate an attachment granted upon these facts, that the modified wording of section 636 of the Code of Civil Procedure has not changed the provision of section 227 of the former Code in this respect, and that the attachment cannot be sustained, because it has not been shown that the debtors either assigned, disposed of, or secreted, or were about to assign, dispose of, or secrete their property, with the intent to defraud their creditors.

Held, that the provision as to attachments differs in this respect from that providing for the making of an order of arrest; so that a debtor is liable to arrest, but not to seizure of his property by attachment, when he may have disposed of plaintiff's property or that of any other person with intent to defraud its owner. (German Bank of London agt. Dash, ante, 124.)

A bill in equity to dissolve a partnership and to adjudge void certain attachments issued by creditors of the firm, is demurrable by said creditors. As to such creditors the remedy at law against their enforcing said attachments is adequate. The parties can re