13. Section 450-In an action to foreclose a mortgage upon real property, the wife of the owner of the equity of redemption may, under this section of the Code of Civil Procedure, appear and defend, by her own attorney, as though she were single. (Janinski agt. Heidelberg, 21 Hun, 439.)

14. Section 484 -- The plaintiff, as surviving executor of George J. Price, sues defendant individually, and as sole acting executor of his father (who with plaintiff was co-executor of said Price), for an accounting and damages and other relief, alleging that defendant's testator, who, as such coexecutor, took the exclusive control and management of Price's estate, committed various wrongful acts, set forth, in relation thereto, imperiling it; charging misconduct in relation to said estate on the part of defendant since the death of his father, the books and vouchers in relation to said estate having then come into his possession; and setting up that the widow and children of plaintiff's testator, to whom said testator devised the income of his estate during his children's minority, the principal to be then paid to them, are still living and of full age:

Held, overruling demurrer to the complaint, that an executor not only has the right to call his co-executor to account in a suit in equity, but a foreign executor may be held amenable to like authority to prevent either a complete or partial failure of justice, and to maintain and enforce a trust; defendant being accountable for his testator's misconduct to the extent of the latter's assets in his hands.

The complaint states a sufficient cause of action under this section of the Code. (Price agt. Brown, ante, 511.)

15. Section 484-A cause of action for damages for malicious trespass

by the original defendants for the erection and continuance of brick stacks, and another for the removal of these stacks and for injunction against their maintenance and continuance, are improperly joined as against the successors in interest of the original defendants, who are made parties by a supplemental complaint reviving the action.

As the newly made parties cannot be charged in tort, the two causes of action do not affect all the parties to the action, as required by this section of the Code. (Equitable Life Assurance Society agt. Schermerhorn, ante, 477.)

16. Section 501-When a counterclaim is not based upon a contract as required by, and should be stricken out. (See Clapp agt. Wright, 21 Hun, 240.)

17. Section 501 - Counter-claim what may be pleaded as such, as being "connected with the subject of the action." (See Carpenter agt. Manhattan Ins. Co., 22 Hun, 49.)

18. Section 514 - A denial by plaintiff in his reply, upon information and belief, of allegations in defendant's answer, is insufficient where the facts set up in the answer are clearly within the plaintiff's knowledge as appears by the averments in his complaint. (Fallon agt. Durant, ante, 178.)

19. Sections 521, 1204- The referee

did not exceed his power in giving to one defendant affirmative relief against his codefendant; these sections of the Code being sufficient warrant for the decision and judgment. (Derham agt. Lee, ante, 334.)

20. Sections 524, 526-Under the Code of Civil Procedure, a party has no right to interpose an unqualified denial in a verified answer, unless it be founded upon personal knowledge: and where he has no positive knowledge, but has knowledge or information

sufficient to form a belief, he is not only permitted, but bound, at his peril, to deny upon information and belief. (Brotherton agt. Downey, 21 Hun, 436.)

21. Section 537- Since the adoption of the Code of Civil Procedure, the plaintiff can no longer treat an answer as a nullity, and enter a judgment as upon a default; his only remedy in such a case is to apply to the court or a judge thereof, upon notice, as prescribed in this section of the said Code. (Decker agt. Kitchen, 21 Hun, 332.)

22. Section 537- Under section 247 of the Code of Procedure, where "a demurrer, answer or reply is rivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of court, for judgment thereon, and judgment may be given accordingly.' This practice is not changed, but remains the same under this section of the Code of Civil Procedure.

In an action brought in the courts of this state to enforce the judgment and decrees of the courts of a foreign state or country, an answer denying any knowledge or information sufficient to form a belief as to all the material allegations of the complaint will be stricken out as sham where the defendant appeared in the original action. (Roblin agt. Long, ante, 200.)

23. Section 544-A supplemental complaint should not be allowed upon an ex parte application.

Notwithstanding the mandatory language of this section of the Code of Civil Procedure, it is the duty of the court, upon the application, to consider all the circumstances, and to grant or refuse it, as may be just and proper in the particular case; such application, therefore, should be upon notice, so that both parties may be heard. (Fleischmann agt. Bennett, 79 N. Y., 579.)

24. Section 548- As to whet aer the writ of ne exeat was abolished by the Code of Procedure, quare.

Such a writ was issued herein in March, 1869. A motion was made in May, on the part of defendant, to vacate the writ and the order for its issue, or to reduce the amount of bail, and that a sum deposited with the sheriff be be restored, and for general relief. The motion appears to have been founded on the merits; it did not appear in the notice of motion, or in any of the papers, that the ground of want of power was taken. The order made upon the motion simply directed a reduction of the bail and a return of the money deposited in excess of the amount fixed; no further disposition of the motion to vacate was made. An appeal was taken in January, 1879. On appeal to this court, held, the presumption was that all that was presented to or passed upon by the special term was the right of defendant to relief upon the facts, that under the circumstances, as the question is not distinctly presented by the order appealed from, and as this section of the Code of Civil Procedure has declared in terms that the writ is thereby abolished, thus rendering the question of no practical importance, so far at least as future cases are concerned, the court would not review the many decisions of the supreme court, prior to the New Code, holding the writ not abolished. (Collins agt. Collins, 80 N. Y., 24.)

25. Section 549, subdivision 4, as

amended in 1879 - what must be shown to authorize the issuing of an order of arrest thereunder. (See Easton agt. Cassidy, 21 Hun, 459.)

26. Section 552- Under this section

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, pro

vided he might have been so arrested had the original action been brought here. (Baxter agt. Drake, 22 Hun, 565.)

27. Sections 568, 769-Motion to vacate an order of arrest-where it must be made. (See Sutton agt. Sabey, 22 Hun, 557.)

28. Section 572-A motion under this section of the Code of Civil Procedure, to discharge a defendant held in actual custody under an order of arrest, on the ground that the plaintiff has neglected to enter judgment in the action within one month after it was in his power so to do, need not be made in the judicial district or in the county adjoining the judicial district in which the action was triable, but may be made to a judge of the court in which the action was commenced, within the county where the defendant is held in custody.

The right of the defendant to a discharge depends upon the fact of his being held in actual custody, and not upon the fact that the plaintiff or his attorney knew that he had been surrendered by his bail, and was so held. (Sumner agt. Osborn, 22 Hun, 13.)

29. Section 572- Supersedeas

when a defendant is not in actual custody so as to authorize an application for it. (See Watt agt. Healy, 22 Hun, 491.)

30. Section 572- How far the old practice relating tos upersedeas is affected by. (See Watt agt. Healy, 22 Hun, 491.)

31. Sections 603, 604-When action is not within, so as to entitle party to a temporary injunction. (See Buffalo Grape Sugar Co. agt. Alberger, 22 Hun, 349.)

32. Section 613-Stay of proceedings after entry of judgment when it cannot be granted with

out security being given. (See Eastman agt. Starr, 22 Hun, 465.)

33. Section 618-Stay of proceedings after entry of judgment when it cannot be granted without security being given. (See Eastman agt. Starr, 22 Hun, 465.)

34. Sections 635, 636, 683- Where the facts set forth in the affidavits, upon which the attachment was granted, were that the defendant purchased the goods in question August 6, 1880, on a credit of thirty days from September 15, 1880; that the goods was obtained by false and fraudulent representations; stating the negotiations which entered into the sale, the representations alleged to have been made, and that such statements were false; shows in what respect it is claimed they were false, and points out the indebtedness existing at the time; then makes a general allegation that "the defendant has assigned and disposed of his property with intent to defraud his creditors; that after purchasing said goods, the defendant shipped about one-half of them to auction houses in other cities, and sold the same at auction. After this allegation follows a general charge that the defendant, on October 12, 1880, made a general assignment, with preferences:

Held, that there was sufficient in the papers to justify an order of arrest, admitting the facts in the affidavits to be true, but there was not sufficient to justify the attach

ment.

Where the party made an assignment in October, the goods being bought in August, and there being preferences to creditors whom he owed, the court cannot assume from that fact that there was a fraudulent disposition of his property:

Held, further, that the attachment must be reversed, for the reason that there was no connection between the previous acts and

the assignment to prove the assignment to have been made with a fraudulent intent, or to warrant that conclusion. (Achelis et al. agt. Kalman, ante, 491.)

35. Section 636-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:

Held, upon a motion to vacate an attachment granted upon these facts, that the modified wording of this section 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.)

26. Section 636-It matters not what a person believes or disbelieves, the applicant for an attachment under subdivision 2 of this section of the Code of Civil Procedure, must show by proof of facts known to the witnesses who testify to them, that the belief in the intent to defraud by a disposition of the property is well founded. In other words the intent so to defraud must be a fair

and logical sequence from facts proved.

It is not enough that a witness is willing to testify to a fact positively; he will not be allowed to so testify, when it is plain that he can have no actual knowledge on the subject. The sources of information must be given, so that the tribunal called upon to act can see that the facts sought to be proved are established by legiti mate testimony. (Ellison agt. Bernstein, ante, 145.)

37. Sections 636-682-- A purchaser, from a defendant in an action, of certain property against which an attachment has been issued, may, under section 682 of the Code of Civil Procedure, move to vacate the attachment.

The attachment was properly vacated, on the ground that the affidavit did not show that the plaintiff was entitled to recover a sum stated therein over and above all counter-claims known to him (Code of Civil Procedure, sec. 636).

Where the motion to vacate the attachment is made upon the papers on which the warrant is granted, the plaintiff cannot put in additional affidavits in support of the attachment. (Trow's Printing and Bookbinding Company agt. Hart, ante, 190.)

38. Section 636- What an affidavit

for an attachment must state. (See Donnell agt. Williams, 21 Hun, 216.)

39. Sections 767, 1347, 1348-The decision of the judge in settling the interrogatories is an order (Code, sec. 767); if it disallows a pertinent question, it affects a substantial right; and is therefore appealable (Code, secs. 1347, 1348). (Uline agt. N. Y. C. and H. R. R. R. Co., 79 N. Y., 175.)

40. Sections 769, 568-Motion to vacate an order of arrest—where it must be made. (See Sutton agt. Sabey, 22 Hun, 557.)

41. Section 757- Under this section of the Code of Civil procedure, as amended in 1879, providing that, "in case of the death of a sole plaintiff or defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued, by or against his representative or successor in interest," it is the duty of the court to continue the action, if it survives or continues, without regard to whether or not the applicant has been guilty of laches in making the motion. (Greene agt. Martine, 21 Hun, 136.)

42 Section 770- Any application, except for a new trial upon the merits, which elsewhere must be made in court, may, in the first judicial district, be made at any time to a judge out of court. (Boucicault agt. Boucicault, 21 Hun, 431.)

43. Section 820-The provision of this section of the Code of Civil Procedure for interpleader by order is a substitute for the old action of interpleader, and is governed by the same principles. It appeals to the equitable discretion of the court.

Such an application ought not to be granted where it clearly ap pears on the face of the papers that the claim of the third party is frivolous and without validity. (Pustet et al. agt. Flannelly, ante, 67.)

44. Section 829-Does not apply to an action against an executor individually. (See Hall agt. Richardson, 22 Hun, 444.)

death of grantor, as to personal transactions had with him. (See Moyer agt. Moyer, 21 Hun, 67.)

47. Section 829-The provision of this section of the Code of Civil Procedure, prohibiting a party from testifying, in certain cases, to a personal transaction with a deceased person, does not extend to transactions with the agents of such person. (Pratt agt. Elkins, 80 N. Y., 198.)

48. Section 829-F., the maker of the note, for whom H. signed as surety, who was a party defendant, but who did not answer, as a witness for the defense, was permitted to testify to personal transactions between himself and the intestate:

Held, error; that the witness a person interested in the event," within the meaning of this section of the Code of Civil Procedure, and was, therefore, incompetent; also, held, that the fact that plaintiff subsequently testified as to the facts sworn to by F. did not cure the error. (Church agt. Howard, 79 N. Y., 415.)

49. Section 834- The prisoner was accused of having caused the death of W., the deceased, by poison. A physician who was called to see W. when sick from the poison, and who examined and prescribed for him, as a witness for the prosecution was asked to state the condition in which he found W. at that time, both from his own observation and what W. told him; this was objected to on the ground that the evidence was prohibited by the statute (Code of Civil Procedure, sec. 834). The court overruled the objection, and the witness stated what he learned from his own examination of W., made in the presence of W.'s wife and the prisoner, and from their statements. There was nothing of a confidential nature in any thing he so learned:

Held, that the evidence was