jurisdiction of the case either to quash the writ upon cause shown, to remand the case to the oyer and terminer, or to proceed to its disposition as in other cases pending before it. (Id.)

8. Accordingly, held, that an order of the supreme court refusing to quash such a writ was not reviewable here. (Id.)

9. Costs of appeal in proceedings by common-law certiorari are not allowable, whether the proceedings come here upon appeal from a judgment or from an order superseding the writ. (People ex rel. Smith agt. Village of Nelliston, 79 N. Y., 638.)

2. Section 92-Under the provision of this section of the Code of Procedure limiting the time for bringing an action to recover a penalty to three years, where an action is brought against a trustee of a manufacturing corporation, to charge him with a debt because of failure of the corporation to file an annual report, more than three years after January twen tieth of the year when the alleged failure occurred, the action is barred; as upon that day, if at all, the cause of action accrued. (Knox et al. agt. Baldwin, 80 N. Y., 610.)

8. Section 95-In an action to recover a balance alleged to be due upon a store account, for goods sold and delivered, where the defense was the statute of limitations, it appeared that defendant

4.

had delivered to plaintiff small quantities of butter and eggs at different times to be credited upon the account:

Held, that the action was " upon a mutual, open and current account, where there have been reciprocal demands between the parties," within the meaning of the provisions of this section of the Code of Procedure, which declares that in such case the cause of action shall be deemed to have accrued from the time of the last item proved; and that as the last item was within six years the claim was not barred. (Green agt. Disbrow, 79 N. Y., 1.)

+

Sections 187, 211, 277, 288-Defendant H., having been arrested upon an order of arrest issued in an action to recover the possession of personal property, was discharged from arrest upon giving to the sheriff an undertaking, in and by which the sureties under took that H. should "at all times render himself amenable to the process of the court, * * and for the payment to the plaintiffs of such sum as may, for any cause, be recovered against the defendant," instead of an undertaking for the delivery of the property to the plaintiff, if delivery be adjudged, etc., as prescribed by the Code of Procedure (secs. 187, 211). In an action upon the undertaking, held, that the final clause therein, i. e., as to payment, was to be construed in connection with the provision of said Code (sec. 277), directing the form of judgment in such an action; and that, as so construed, it was not an absolute undertaking to pay the value of the property, but only to pay on condition that no delivery can be had; but that the undertaking was void as having been taken colore officii, within the meaning of the statute (2 R. S., 286, sec. 59), for the reason that it bound the sureties for the amenability of H. to process, an obligation which could

not be required from H. as a condition of his relief.

It was claimed that this provision in the undertaking should be rejected as surplusage, for the reason that an execution against the body could not issue on the judgment in the action, and so that no liability could arise under the clause in question:

Held, untenable, as an execution against the body could have been issued (Code, sec. 288), after a return unsatisfied of an execution against the property of H. (Cook et al. agt. Freudenthal, 80 N. Y., 202.)

5. Section 207 - The provision of the charter of the city of Buffalo of 1870 (sec. 22 chap. 519, Laws of 1870), declaring that goods and chattels upon lands for which taxes are assessed shall be deemed to belong to the person to whom the lands are assessed, does not apply to property belonging to another person in no way liable for the tax which is transiently upon lands assessed, but in the possession of the owner for his own purposes; and the collector cannot lawfully, by virtue of his warrant, take such property, for the purpose of satisfying the tax.

Where such property is so taken, an action by the owner to recover the possession thereof, may be maintained against the collector.

The property in such case cannot properly be said to be taken for a tax within the meaning of the provision of this section of the Code of Procedure, requiring an affidavit for the claim and delivery of property to show that the property has not been taken for a tax, or of the provision of the Revised Statutes (2 R. S., 522, sec. 4), which provides that "no replevin shall lie for any property taken by virtue of any warrant for the collection of any tax," etc. (L. S. and M. S. R'y Co. agt. Roach et al., 80 N. Y., 339.)

7.

8.

9.

appearance of the defendant does not revive an attachment, invalidated by a failure to serve the summons within thirty days. (See Blossom agt. Estes, 22 Hun, 472.)

Section 268-- Under the provision of this section of the Code of Procedure, in reference to making a case for the purposes of review, in an action tried by the court or a referee, 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.

66

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

Accordingly, held, that the rule of the supreme court (rule 34 of 1858, rule 47 of 1871 and 1874, and rule 32 of 1871), 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. (French agt. Powers, 80 N. Y., 146.)

Section 304-costs in county court when the recovery is less than fifty dollars-what the plaintiff must show to entitle himself to them. (See Tompkins agt. Greene, 21 Hun, 257.)

10. Section 309-The act (chap. 569, Laws of 1869, as amended by chap. 192, Laws of 1874), in rela tion to fees of sheriffs and referees on foreclosure sales, in the city and county of New York, was not repealed by the amend

ment of 1876 to this section of the Code of Procedure, which limits the sum to be allowed for fees on such a sale. The amendment simply modified the act by fixing the maximum of fees, leaving the scale of charges, up to this limit, as fixed by said act. (Schermerhorn et al., agt. Prouty et al., 80 N. Y., 317.)

11. Section 311-Upon the dismissal of an appeal costs cannot be taxed by a judge under. (See Andrews agt. Long, 22 Hun, 24.)

12. Section 399-Where a party was called as a witness by the adverse party, and was examined as to a transaction with a deceased party in reference to which he would have been precluded from testifying in his own behalf under this section of the Code of Procedure:

Held, that the witness was entitled, upon cross-examination, to explain his testimony, and to state the whole transaction. (Merritt agt. Campbell, 79 N. Y., 625.)

13. Section 399- After the plaintiff had given testimony on the trial as to transactions with C., one of the defendants, but before his examination was completed, C. died:

Held, that the death of C. did not authorize the striking out of the testimony; that this section of the Code of Procedure had no application, as the disqualification under that section depended entirely upon the facts existing when the testimony was given, not upon any change subsequently occurring. (Comins agt. Hetfield, 80 N. Y., 261.)

14. Section 399- Defendant and H. negotiated for the exchange of certain real estate; the terms were agreed upon verbally by them; defendant was to pay a sum agreed upon as the difference in the values of the lands to be exchanged; he gave to H. a check for $500, as a payment, receiving

therefor a receipt signed by H. In an action upon the check, parol evidence was given as to the contents of the receipt, it having been lost, which was to the effect that it stated that the check was received on account of the exchange of said lands, specifying them, and then stated the terms, i. e., the price of each piece of property, the amount of mortgages to be executed, etc.; it did not appear that the terms of credit were specified. Defendant thereafter refused to enter into a written contract, as was agreed, and stopped payment of

the check:

Held, that the burden was upon defendant to show a failure of consideration; that as it did not appear that the terms of credit were not in the receipt, as every presumption was in favor of the validity of the check, this was to be presumed; that the receipt taken in connection with the check contained the material elements of a contract, sufficient and valid under the statute of frauds, and enforceable in equity against H.; and that, therefore, there was a good consideration for the check.

Plaintiff held the check as assignee of H., who died prior to the trial:

Held, that defendant was incompetent, under section 399 of the Code of Procedure, to testify to the personal transactions between him and H. (Raubitschek agt.

Blank, 80 N. Y., 479.)

15. Section 428-The jurisdiction and power of the courts was not affected by the provision of this section of the Code of Procedure, abolishing the writ of quo warranto and proceedings by information in the nature thereof; it is only the form of the proceeding that was done away with. The remedies theretofore had in those forms may now be obtained by civil action. (People ex rel. Hatzel et al. agt. Hall, 80 N. Y., 117.)

16. Section 430 of the Code of Procedure expressly declares it to be the duty of the attorney-general, "on leave granted by the supreme court or a judge thereof," to bring an action for the purpose of vacating the charter, or annulling the existence of a corporation, other than a municipal," which has thus conducted itself.

The power conferred, and duty imposed, upon the attorney-general by this section of the Code of Procedure has not been in any wise impaired or affected by the act of 1853, or any other statute. (The People agt. Globe Mutual Life Insurance Company, ante, 82.)

CODE OF CIVIL PROCEDURE.

1. Section 14-Upon the return of an attachment against defendant for an alleged contempt in disobeying the provision contained in a judgment of divorce herein, which required him to pay alimony and to give security for the payment thereof; and upon motion to vacate the attachment the court adjudged him to be in contempt, and ordered him to pay a fine, to give security in a specified amount for future alimony, and to stand committed until compliance with the order:

Held, that the whole matter was before the court and it had jurisdiction to grant such relief.

The attachment was issued upon proof of service of copying of the judgment, with demand of payment of the alimony in arrear, with the costs, and the giving security as required by the judg ment, and proof of defendant's failure to comply therewith:

Held, that the papers served were sufficient to authorize the issuing of the writ (Code of Civil Procedure, sec. 14); that the judgment contained all that was necessary to advise defendant of the nature of the claim made against him. Defendant claimed that the attachment should have been VOL. LX 69

vacated, because based on his refusal to pay costs:

Held, untenable, as it was issued for "disobedience to the lawful mandate of a court" (Code of Civil Procedure, sec. 14, sub. 3); and that the provision of the statute of 1847 (sec. 2, chap. 390, Laws of 1847), prohibiting imprisonment for contempt in not paying costs, had no application. (Park agt. Park, 80 N. Y., 156.)

2. Section 66, as amended in 1879Lien of an attorney under, for costs superior to right of setoff. (See Ennis agt. Curry, 22 Hun, 584.)

3. Section 66, as amended in 1879When an attorney must have given notice of the assignment of a part of the recovery to him in order to justify his moving to set aside a settlement entered into between the parties. (See Jenkins agt. Adams, 22 Hun, 300.)

4.

5.

Section 66-The amendment to this section of the Code of Civil Procedure, passed in 1879, gives to the attorney of record, from the commencement of an action or the service of an answer containing a counter-claim, a lien upon his client's cause of action or counter-claim, which attaches to a verdict, report, decision or judgment in his client's favor, and the proceeds thereof, in whosoever hands they may come, and cannot be affected by any settlement between the parties before or after the judgment.

But no new remedy is provided for the enforcement of the lien, and, in order to make it available in the case of a settlement before judgment, the attorney, while he need no longer prove fraud or collusion, must still go on with the litigation until judgment, which is to be perfected for costs only. (McCabe agt. Fogg et al., ante, 488.)

Section 158-What damages may be recovered against a sheriff in

an action for an escape-when evidence of the insolvency of the debtor inadmissible. (See Dunford agt. Weaver, 21 Hun, 349.)

6. Section 191-Sureties to an undertaking given on an appeal to the court of appeals - when they are liable for all the costs of the action. (See Burdett agt. Lowe, 22 Hun, 588.)

7. Sections 191, 194-Under the provisions of these sections of the Code of Civil Procedure, 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 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.

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 the remittitur as the facts alleged by him in his answer entitle him to. (Hiscock et al. agt. Harris et al. 80 N. Y., 402.)

8. Section 375- When the statute of limitations is no defense in proceedings instituted under, to charge a joint debtor not personally served. (See Maples agt. Mackey, 22 Hun, 228.)

9. Sections 383, 385-Though, as a general rule, a sheriff who under execution has levied upon and sold certain property as belonging to the defendant in the execution, will not be permitted, when called upon to account for the proceeds,

10.

to allege that the property in fact did not belong to said defendant. Yet, when upon motion to compel payment of surplus such defendant has put himself on record, under oath, that the property taken belonged to his wife, and that he had no interest therein, his right to recover the alleged surplus is not so clear that the court should enforce it on a summary application.

Such motion does not come under the one year limitation prescribed by section 385 of the Code of Civil Procedure, but under the three year limitation, as prescribed by section 383. (Frankel agt. Elias, ante, 74.)

Section 419-Where the plain

tiff fails to make the indorsement upon the summons as required by this section of the Code of Civil Procedure, he is only entitled to fifteen dollars costs before notice of trial. (Adams agt. Ward, ante, 288.)

11. Section 420-Where the case is one where no application is necessary to the court for judgment upon the complaint if no answer had been served, the plaintiff, on decision of demurrer, is only entitled to fifteen dollars for costs before notice of trial. (Id.)

12. Sections 432, 1780-Where plaintiffs, residents of this state, have a cause of action against defendants, a foreign corporation, arising upon the sale and delivery of personal property made by their brokers, a service upon the president of such corporation while passing through this state was sufficient to commence a suit, although his presence here had no relation whatever to the corporation or to his official duties, irrespective of the question whether or not the corporation has property within the state, or whether the cause of action arose therein. (Pope agt. Terre Haute Car Manufacturing Company, ante, 419.)