People ex rel. Evans agt. Letson et al. visions of section 2100 of Code. That the tribunal proceeded against may be directed to cancel or vacate proceedings theretofore taken in the matter (People agt. Commissioners of Excise, 61 How., 514). In United States agt. Hoffman (4 Wall., 158), it is laid down that the writ of prohibition can only be used to prevent the doing of some act which is about to be done, and can never be used as a remedy for acts already completed. It looks at least doubtful whether the relator can invoke this remedy at the present stage of the summary proceedings But there is another question to be considered, and that is whether under section 2265 the relator is not precluded from this remedy. No fault is found with the petition presented to the justice. The latter had apparently full jurisdiction of the parties and the subject-matter. Did he lose it by his error, if it was one, in sustaining the demurrer of the petitioner to the answer of the relator? In People ex rel. Brown agt. McAdam (2 Civ. Pro. Rep., 52), it is said that when a petition in summary proceedings presents such a case as the officer can consider, a writ of prohibition will not lie. To the same effect are People agt. Parker (1 Civ. Pro., 444), and People agt. Steenburg (9 Alb. Law J., 411). In People agt. Russall (49 Barb., 351), it was held that the fact that the tenant has a good defense to the proceedings will not entitle him to a writ of prohibition to restrain the magistrate from entertaining the proceedings, although it be plain that the magistrate cannot, in conformity to law, decide with the landlord. The magistrate is not thereby deprived of jurisdiction. Section 2265 provides that when a petition is presented as prescribed in that title, the subsequent proceedings thereupon shall not be stayed or impeded by any court or judge, except in one of two methods, neither of which is by writ of prohibition. That section assumes that a case is presented by the petition that in accordance with the prior provisions of the title will give the magistrate jurisdiction. If it does not, then there may be a remedy in some other way than the two named. But if it does, then the statute is imperative. There being no ques O'Donnell agt. Hecker et al. tion here about the jurisdiction of the justice on the start, the inhibition of the section applies. The question in the case really is, whether the justice erred in sustaining the demurrer of the petitioner to the answer of the relator. That question cannot be determined by writ of prohibition (7 Wend., 518). It can be by appeal, and in a proper case (Knox agt. McDonald, 25 Hun, 268) there is a remedy by injunction. I am, therefore, of the opinion that it is not a case for a writ of prohibition, and that the proceedings must be dismissed, with costs, as upon motion. CITY COURT OF NEW YORK. JAMES O'DONNELL agt. GEORGE V. HECKER et al. Judgment—On remittitur—Practice as to judgments absolute where the damages are unliquidated — Assessment should be had at trial term-Code of Civil Procedure, sections 1214, 1215, 1183, 3194. The action is for negligence, and the trial judge dismissed the complaint. Upon appeal the general term of the city court reversed the judgment and ordered a new trial. The defendants thereupon appealed to the court of common pleas, giving a stipulation for judgment absolute. The common pleas affirmed the order of the city court, general term, and gave “judgment absolute" in favor of the plaintiff: Held, that as the damages were unliquidated, the assessment thereof must be had at the trial term before a jury. Sections 1214 and 1215 of the Code apply only to applications for judgment by default, and even in those cases the "writ of inquiry" may be executed at trial term if so directed. Special Term, April, 1886. MCADAM, C. J.-The action is for injuries received by reason of defendants' negligence. Upon the trial the complaint was dismissed. The plaintiff appealed and a new trial was ordered by the general term. The defendants thereupon.ap O'Donnell agt. Hecker et al. pealed to the common pleas, giving the usual stipulation for judgment absolute. The common pleas affirmed the order and rendered judgment absolute in favor of the plaintiff. The plaintiff now applies for an order on the remittitur, and asks that it be settled according to the practice, whatever it may be. The damages, being unliquidated, must be assessed by a jury at the trial term of the court. In case of judgment by default in an action for personal injuries, the damages must be ascertained by means of a "writ of inquiry" (Code, sec. 1215), but this does not require that the writ shall be executed by the sheriff, for it may be executed by the judge at circuit, without the presence of the sheriff (Ellsworth agt. Thompson, 13 Wend., 658; Tillotson agt. Cheatham, 2 Johns., 107; Dillaye agt. Hart, 8 Abb. Pr., 394; Peck agt. Corning, 2 How. Pr., 84; Cazneau agt. Bryant, 6 Duer, 668; S. C., 4 Abb. Pr., 402; Hays agt. Berryman, 6 Bosw., 679; George agt. Fisk, 3 Robt., 710). In the present instance, an issue of fact was joined, which required trial at the circuit, and the provisions of the Code (secs. 1214, 1215) as to judgments by default for want of an answer do not apply. The general term of the city court ordered a new trial to be had at the trial term. This order has been affirmed by the common pleas, and still has legal effect, except that the “judgment absolute" awarded by the common pleas on the defendant's stipulation leaves the traversable allegations of the complaint admitted on the record. This is the legal consequence of the order for judgment absolute (Thompson agt. Lumley, 7 Daly, 74), so that the trial judge in form directs judgment on the pleadings, and orders the jury which he empanels to assess the damages (Code, sec. 1183). The proceedings have been remanded to this court (Code, sec. 3194), that it may complete the trial, which the dismissal of the complaint cut short, and the assessment in this case should, as in Thompson agt. Lumley (supra), be had at the trial term. This is the usual practice on judgments absolute, where the damages VOL. III. 49 Estate of Henry. are unliquidated and an assessment becomes necessary to carry the judgment of the appellate court into effect. Sections 1214, 1215 of the Code, as before remarked, apply only to cases where the "plaintiff" is required to apply to the court for judgment as "by default" for want of an answer (2 Tillinghast & Sherman's Pr., 250-261), and even in those cases the "writ of inquiry" may be executed (if so directed) at trial term. The order submitted has been settled in accordance with these views. SURROGATE'S COURT. In the Estate of JAMES GRIFFITHS HENRY. Appeal — Orders of surrogate when not appealable - Code of Civil Procedure, sections 2570, 2584, 1310-when perfected appeal does not operate as a stay in surrogate's court. The surrogate having directed, in a case where one's right to be a party to a probate controversy was in dispute, that that issue should be inquired into and determined before the taking of any testimony in the matter of the factum of the will, a motion was made that a trial of all the issues proceed simultaneously. Held, that an order denying such motion was not appealable. Held, further, that a perfected appeal from an order denying a motion for taking by commission testimony without the state, though it concerned a "substantial right,” within the meaning of section 2570 of the Code of Civil Procedure, did not operate as a stay of the trial of the probate controversy before the surrogate. New York County, March, 1886. ROLLINS, S-The procedure relating to appeals from decrees and orders of this court is established by chapter 18, title 2, article 4 of the Code. Section 2570 provides that an appeal may be taken from any decree or from any order "affecting a substantial right." It is declared by section 2584 that, except as otherwise expressly prescribed, "a perfected appeal has the Estate of Henry. effect, as a stay of proceedings to enforce the decree or order appealed from, prescribed in section 1310, with respect to a perfected appeal from a judgment." By operation of section 1310 such an appeal affects a stay of all proceedings to enforce a judgment or order appealed from, "except that the court or judge from whose determination the appeal is taken may proceed in any matter included in the action or special proceeding, and not affected by the judgment or order appealed from or not embraced within the appeal." Now, I do not think that, by force of the statute just quoted, the appeals which have been taken by Evan J. Henry from the two orders lately made by the surrogate, have operated to stay the trial of this probate controversy which is now reached regularly on the calendar. The order denying the motion for the union of the issues theretofore directed to be separately tried, cannot be held to involve a "substantial right" within the meaning of section 2570. It affects mere modes of procedure that are entirely within the control of the trial court (Arthur agt. Griswold, 60 N. Y., 143; Whitney agt. Townsend, 67 id., 40; Miller agt. Porter, 17 How. Pr., 526). The order denying the motion for the issuance of commissions is, doubtless, appealable (Helme agt. N. Y. C. R. R. Co., 79 N. Y., 175; Wallace agt. Am. Lin. Thread Co., 46 How. Pr., 403), but in what manner and to what extent, if at all, is the appeal which has been taken effectual as a "stay," within the meaning of section 1310? If the surrogate had made an order granting the application for commissions, it is clear that a perfected appeal would have operated to prevent their issuance; but an appeal from an order denying such an application does not, it seems to me, have practical operations as a stay at all. It has never been held, so far as I can ascertain, that an appeal, either from an order denying, or from an order granting a commission, accomplishes per se a suspension of the trial of the action or proceeding for the purposes of which the aid of the commission has been sought. The mischiefs that would result from such a practice can scarcely be overestimated. The court |