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2. Where motion was made by defendants for substitution of a new attorney:

Held, that the motion should be granted; but if the defendants desire the papers in the possession of their attorney they must first discharge his lien. If this relief is not insisted upon the order for substitution must provide that the taxable costs in the action to the present time (if collected upon a favorable termination of the action) be paid to the present attorney of the defendants, to whom they equitably belong. (Id.)

3. While the defendants were, as attorneys for one Levi, prosecutVOL. LX 68

ing an action brought by him upon a promissory note, Levi assigned his interest therein to the plaintiff's testator. The only consideration for the assignment, which was drawn by one of the defendants, was a pre-existing debt due from Levi to the assignee:

Held, that the defendants had a lien upon the proceeds of the judgment recovered in the action, not only for their services rendered therein, but also for their general account for professional services rendered to the assignor, and that the rights of the assignee were subject thereto. (Schwartz agt. Schwartz, 21 Hun, 33.)

BENEVOLENT SOCIETY.

1. An association whose members become entitled to privileges or rights of property therein, cannot exercise its power of expulsion without notice to the person charged, or without giving him an opportunity of being heard. The service of notice, in the absence of any agreement to the contrary or any provision in the charter or by-laws controlling the same, must be made personally. (Wachtel agt. The Noah Widows and Orphans' Benevolent Society, ante, 424.)

BILL OF PARTICULARS.

1. In an action of slander the complaint alleged that on or about the 4th, 5th or 6th days of August, 1880, &c., the defendant, at the town of Western and elsewhere, &c., and at divers and various other times and places, and in the presence and hearing of divers good and worthy citizens, spoke of and concerning this plaintiff, &c. Upon application of the defendant an order was made directing plaintiff to deliver to defend ant a bill of particulars specifying the times when and the places where the slanderous words al

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leged were spoken. A bill was served, which, after specifying a few times and places, stated that said defendant did, as plaintiff is informed and believes, at other places and dates and times, in the town of Western, in said county of Oneida, during the month of August, 1880, speak of and concerning said plaintiff, the slanderous and defamatory words in the complaint mentioned and set out, but at what particular place or places or dates, said plaintiff is now absolutely unable to state or set out more particularly and definitely." Upon application of defendant for a further bill, which should comply literally with the order of the court, and also give the names of the persons in whose presence the words were spoken:

Held, that the plaintiff should be compelled to strike out the above clause or state the particular times and places, but was not compelled to give the names of the persons in whose presence the words were spoken. (Jones agt. Platt, ante, 277.)

2. The decision in Stiebling agt. Lock haus (21 Hun, 457) not followed. (Id.)

3. A broker who is the agent of his client is, and ought to be, required to show fully and specifically each item of the account which he charges against his client. (Miller et al. agt. Kent, ante, 88.)

4. Each of the parties to such an account is entitled to know and to have presented to him, when a demand is made for a loss supposed or real, the items which make up such loss, and to be given an opportunity not only to inspect and ascertain the correctness of the same, but to controvert such items whenever it becomes necessary. (Id.)

5. This action was brought by the plaintiff to recover the damages occasioned by an alleged slander.

The complaint charged that the defendant "did, sometime during the month of September, 1879, at the city of New York, falsely, wrongfully and maliciously speak, utter and publish the following false, defamatory and actionable words of and concerning the plaintiff, in the German language, in the presence and hearing of divers persons, all of whom understood the same;" it then set forth the language in German and English, and alleged that by reason of the speaking of such words the plaintiff "was greatly injured in his fame, reputation and good name as a physician, and in his earnings, profits and income as such," and that he had sustained great damages.

Upon an application by the defendant for a bill of particulars, held, that the plaintiff should be required to furnish a bill of particulars, specifying at what place or places, and in the presence of what person or persons, the words were claimed to have been spoken. (Stiebeling agt. Lockhaus, 21 Hun, 457.)

6. That as the allegations as to the injury to the earnings, profits and income of the plaintiff as a physi cian were not sufficient to allow him to prove special damages in particular instances, upon the trial, it was unnecessary to order a bill of particulars in those respects. (Id.)

7. In this action, brought by the plaintiffs upon a policy of insurance issued upon the life of their testator, the defense was that certain of the answers made by him to the questions contained in the application upon which the policy was issued were false and untrue, and that the policy was thereby avoided. The answer alleged that the testator had stated in his application that he had made no other application for insurance which had been refused, and alleged that this was false, and

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that he had made such application to other companies unknown to the defendant. It also alleged that the testator had falsely answered that he had not had bronchitis, or spitting of blood, while in fact he had had these diseases:

Held, that the defendant was properly required to furnish to the plaintiffs a bill of particulars, containing a statement of the companies which the defendant expected to prove had refused to insure the testator's life, together with the dates of such applications and refusals, and also a statement of the particular times and places at which it expected to prove that the testator had had spitting of blood, or bronchitis, before the making of the application in question. (Dwight agt. Germania Ins. Co., 22 Hun, 167.)

1. In a suit by a vendor to recover goods from one claiming title under a fraudulent vendee, the burden is upon the latter of showing that he is a purchaser in good faith and for value. (Stevens agt. Brennan, 79 N. Y., 254.)

2.

3.

8. The defendant alleged that the evidence upon which it relied to 4. establish the existence of these diseases, consisted of oral and written statements of the testator, which statements did not specify the precise time and place at which he had had them:

Held, that the order should be so drawn as to provide that neither the bill of particulars, nor any thing in the order, should prevent the defendant from giving evidence of any declarations or state ments, oral or written, made by the testator, as to his having had the said ailments, which declarations or statements were general as to time and place. (Id.)

BROOKLYN.

See RAILROADS.

The People agt. Long Island Railroad Company, ante, 395.

BURDEN OF PROOF.

See ARREST.

Matter of Benson, ante, 314.

5.

Surrender by sheriff of property attached without calling a sheriff's jury throws upon him burden of showing that property was not subject to attachment. (See Mumper agt. Rushmore, 79 N. Y., 19.)

When burden of proof is upon party producing ballot-boxes and ballots in city of Brooklyn as evidence under the act chapter 575, Laws of 1872, to show that the boxes have been kept undisturbed and inviolate. (See People ex rel. agt. Livingston, 79 N. Y., 279.)

In an action in the nature of a quo warranto, as between the relator and the defendant, the burden is upon the former to make out a better title to the office than that of the latter; while, as between the people and the defendant, the latter may be called upon to show that his possession of the office is lawful. The production of a certificate of election from the proper officer is however sufficient. ̃ ̄ (People ex rel. agt. Perley, 80 N. Y., 624.)

In action on check against drawer, presumption in favor of its validity and burden is upon defendant to show want of consideration. (See Raubitschek agt. Blank, 80 N. Y., 478.)

BURIAL.

1. The question as to the right to select the place of burial of deceased must be solved upon equitable grounds. While there is property in the burial lot, in the monuments, in the ornaments and decorations of the deceased or his

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grave, there is none in the remains themselves. (Snyder agt. Snyder, ante, 368.)

2. Since the common law cannot protect or bestow them as property or afford an adequate remedy in cases which sometimes occur, equity will be invoked to grant such protection and give such remedies as seem to be required by the circumstances, and are in consonance with the feelings of mankind. (ld.)

3. The person having charge of the remains hold them as a sacred trust for the benefit of all who may, from family ties or friendship, have an interest in them; in case of a contention the court should assume an equitable jurisdiction over the subject, somewhat in analogy to the care and custody of infants, and make such a disposition as should seem to be best and right under all the circumstances. (Id.)

4. In a contention between the widow of the deceased (who was his second wife) and his only son and heir (being the child of his first marriage), as to the disposition of his remains after taking into consideration all the circumstances:

Held, that the claim of the son was to be preferred. (Id.)

CASE.

2. A service, therefore, of a copy of a referee's report, and notice of filing, did not operate to limit the time to serve a case or exceptions. (Id.)

3. Accordingly, held, that the rule of the supreme court (rule 34 of 1858, rule 47 of 1871 and 1874, and rule 32 of 1877), requiring a case to be served within ten days after written notice of the decision or report, was in conflict with the Code, and consequently inoperative. (Id.)

4. The practice, in this respect, was not changed by the provision of the Code of Civil Procedure (sec. 994), providing that exceptions, taken after trial, may be taken "at any time before the expiration of ten days after service of a copy of the decis ion of the court, or report of the referee, and a written notice of the entry of judgment thereupon." (Id.)

5.

7.

1. Under the provision of the Code of Procedure, in reference to making a case for the purposes of review, in an action tried by the 6. court or a referee (sec. 268), the ten days allowed for that purpose did not begin to run until the entry of judgment, and notice thereof; the alternative stated therein, "or within such time as may be prescribed by the rules of the court," meant such further time as might be prescribed. (French agt. Powers, 80 N. Y., 146.)

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While, under this provision, exceptions may be taken at any time after trial, they are not required to be taken until ten days after notice of judgment; and although no provision is made as to time for serving the case, as the case is required to contain the exceptions (Code, sec. 997), it need not and cannot be served until after the exceptions are framed; and the party cannot be put in default for not serving a case containing them, before the expiration of the time allowed for framing them. (Id.)

The exceptions referred to in said provision are not simply those taken on the trial. (Id.)

It seems, that where a report of a referee, and notice of filing thereof, were served prior to the going into effect of the Code of Civil Procedure (Sept. 1, 1877), but no judgment had been entered, that even if the practice had been changed by the said Code, and

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the rule validated, the notice would not have become operative to limit the time for making a case to ten days after the Code went into effect; as the notice when served did not operate to limit the time, the new provision could not retroact to give it that effect, and a new notice should have been served. (Id.)

CAUSE OF ACTION.

1. Where goods are sold on different days, each sale constitutes a separate and distinct cause of action, and the plaintiff may, at his election, bring separate actions for each, or for all of them together. (Zimmerman et al. agt. Erhard et al., ante, 163.)

CERTIORARI.

1. Prior to the adoption of sections 2125 and 2126 of the Code of Civil Procedure, there was no statute nor rule of law prescribing any fixed period within which a writ of certiorari must be applied for, but the decision of that question was left to the discretion of the court to which the application was made. On April 5, 1879, the defendant, the Mayor of New York, certified to the governor that he had removed the relator from his office of police commis. sioner. From that time until January 27, 1880, when the case of The People agt. Nichols was decided by the court of appeals, the right of the relator to review such removal by a writ of certiorari was in dispute. On February 2, 1880, the relator applied for and obtained a writ of certiorari:

Held, that the court below properly held that he was guilty of no laches which would authorize a denial of the writ. (People ex rel. Smith agt. Cooper, 22 Hun, 515.)

2. Upon the return of an order requiring the relator to show cause

why he should not be attached for a criminal contempt, in forcibly and willfully resisting the lawful order and process of the court, such proceedings were had that the court adjudged him to have been guilty of the said contempt, and ordered that he be imprisoned in the county jail for thirty days and pay a fine of $250:

Held, that for the purpose of reviewing these proceedings upon a certiorari, they must be deemed to have been terminated by the entry of the final order convicting the relator of the contempt, and sentencing him to pay the fine and be imprisoned, and that it was error to quash the writ on the ground that the proceedings were not terminated, because no warrant of commitment had yet been issued. (People ex rel. Gilmore agt. Donahue, 22 Hun, 470.)

3. A decision overruling a demurrer interposed to an indictment, and directing that judgment be given for the People, unless the accused plead over, cannot be reviewed upon a certiorari before a judg ment has been entered on the decision. The court cannot review the decision before entry of judg ment, even though the counsel for both of the parties agree that it may so review it. (People agt. Beman, 22 Hun, 283.)

4.

The supreme court may, upon application of the prosecution, issue a writ of certiorari to remove an indictment into that court from the oyer and terminer. (Jones agt. People, 79 N. Y., 45.)

5. As to whether a certiorari may` be brought for that purpose without the consent and in spite of the authority of the supreme court, quære. (Id.)

6. It is not necessary to give notice of application for the writ. (Id.)

7. It is discretionary with the supreme court after having obtained

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