90. Section 1489-Execution against the person of a defendant-what recitals it must contain-Code of Civil Procedure, secs. 1365, 1372. (See O'Shea agt. Kohn, 38 Hun, 149.)

91. Section 1502-As to who is the "actual occupant " of premises at the commencement of an action for ejectment, and so a proper defendant (2 R. S., 304, sec. 4, new Code of Civil Procedure, sec. 1502), is a question of fact for the jury; and when the title was in the wife they might properly find that she was the "actual occupant," even though her husband cultivated the soil, &c. (RAPALLO and EARL, JJ., dissent.) (Martin agt. Rector, ante, 361.)

92. Section 1525-Action of ejecttion-power of the court to set aside a second judgment. (See Keeler agt. Dennis, 39 Hun, 18.)

93. Section 1538 A tenant in common may join his wife as a coplaintiff in an action for partition. (See Foster agt. Foster, 38 Hun, 366.)

94. Sections 1544, 1546, 1561, 1579— In an action of partition, where issues of fact are presented by the pleadings as to part of the lands sought to be partitioned, which issues (after the plaintiff has demanded a jury trial in accordance with section 1544 of the Code) are dismissed by the defendants by default before the jury side of the court, it is error. for the defendants to enter judgment dismissing the entire cause of action, including

that arising from the lands admitted by the answer to be owned by the parties in common.

The proper practice after the issues are determined in such a case before the jury side, is to have the case go to special term, and after a referee's report (see Code, secs. 1561 and 1546) as to liens, &c, on the lands admitted to be held in common, interlocutory judgment should be given (see Code, sec 1546) of partition as to the latter lands, and for the defendants as to the issues.

After the defendant's informal judgment by default had been vacated merely because of its informality, on the plaintiff's moving for such a reference as to the lands admitted to be owned in common, the defendants could not have the issues referred to the referee. (Curry agt. Colgan, ante, 26.)

95. Section 1671-Notice of pendency of action-a party whose deed was delivered before, but is recorded after, the filing thereof is bound by the judgment. (See Kindberg agt. Freeman, 39 Hun, 466.) 96. Sections 1730, 1731, 3228, 968, 969, 971, 972, 1225-Where plaintiff brought an action asking for the return of, and damages for the retention of, certain valuable papers, and the case was tried as one of replevin, and the jury rendered a verdict for plaintiff, awarding him the title, and thereafter plaintiff obtained an ex parte order for judgment, and that defendant deliver the papers, and that costs be taxed, and on the same day plaintiff entered judgment for costs and afterwards the judge struck the costs from the judgment on the ground that it was an action in replevin. On appeal from an order made on a motion of defendant to set aside the order and judgment:

Held, that the proceedings were irregular, either as an action of replevin or in equity, to compel specific performance; that the judg

ment, and order for judgment, should be set aside, and the case stand as it was after the verdict was rendered; and if the court desire to hear it as an equitable action, it might do so. Hammond agt. Morgan, ante, 48.)

97. Section 1743, sub. 4-Marriagewhen declared void because the consent of the woman was procured by false and fraudulent representations-what is the age of legal consent within subdivision 1 of said section-Penal Code, sec. 282. (See Moot agt. Moot, 37 Hun, 288.)

98. Section 1775-In an action against certain corporations where it was averred that the plaintiff is informed and believes that the said last named defendants respectively, except the said defendant the New York Newspaper Union, were and are foreign corporations, companies or associations, &c., but did not state under the laws of what state, country or government the said defendant was created. On demurrer:

Held, that the complaint was bad as not stating the facts required to be stated by section 1775 of the Code of Civil Procedure, and that as it appeared by the complaint that certain defendants were foreign corporations the objection could be taken by demurrer. (Clegg agt. Cramer et al., ante, 128.)

99. Section 1778-Practice-a municipal corporation is not a "domestic" corporation within this section of the Code of Civil Procedure. (See Moran agt. Long Island City, 38 Hun, 122.)

100. Section 1784-Receiver of a corporation-power of the court to cure an omission to give notice to the attorney general, by directing an order to be entered nunc pro tunc. (See Morrison agt. Menhaden Co., 37 Hun, 522.)

101. Section 1785-In an action to dis

solve a corporation brought under the provisions of section 1785 of the Code of Civil Procedure, is not material whether the defendant is a manufacturing, &c., corporation or not, as the section refers to all corporations created by or under the laws of the state

When the dissolution is claimed by reason of the insolvency of the corporation and the complaint, in addition to an allegation that the defendant has been unable to meet its obligations, and that it has failed to pay a certain judgment, which the answer alleges has been paid, it alleges that the said defendant has not a dollar in its treasury, and is insolvent and has been for at least a year past, the answer not denying this allegation, but alleging payment of the judgment and averring that the said company has no liability to creditors by way of judgments unsatisfied;

Held, that, on the pleadings the plaintiff is entitled to judgment.

A

Insolvency means a general inability to answer in the course of business the liability existing and capable of being enforced. corporation, like an individual, is insolvent when it is not able to pay its debts. It may be insolvent although no judgments have been recovered against it. (People, &c, of New York agt. Excelsior Gas-Light Co., ante, 137.)

102. Section 1822-The surrogate's court has jurisdiction to determine whether the demand of a creditor, claimed by an executor or administrator to be barred by section 1822 of the Code of Civil Procedure, has, in fact, been "disputed or rejected" within the meaning of that section. (Estate of Lange, ante, 162.)

103. Section 1915-Construction of an agreement for arbitration-right to recover the amount named in a bond as a penalty-2 R. S. (Edm. ed.), 392, 393, secs. 5, 11-Code of Civil Procedure, sec. 3347, sub. 11.

(See Republic of Mexico agt. Ockershausen, 37 Hun, 533.)

104. Sections 1948, 1983-Action to try title to office-effect of not denying unnecessary allegations in a complaint-title to office can only be questioned by the people. (See People ex rel. Cornell agt. Knox, 28 Hun, 236.)

105. Section 2031-Under the provisions of the Code of Civil Procedure in reference to the writ of habeas corpus (sec. 2081 et seq.; see, also, similar provisions of Revised Statutes, 2 R. S. 567, sec. 38 et seq.), it is the duty of the court or judge issuing the writ, upon a hearing on return thereto, where it appears the prisoner is held in custody under a judgment or decree, to inquire into the jurisdiction of the tribunal to render the judgment or decree, and to discharge the prisoner where it appears there was a lack of jurisdiction over the person or the subjectmatter. (People ex rel. Frey agt. The Wardens, &c., et al., 100 N. Y., 20.)

106. Sections 2100-2265-Where a petition in summary proceedings presents such a case as the officer can consider, a writ of prohibition will not lie.

Where L. presented a petition to a justice of the peace, praying for the removal of a tenant from certain premises under the provisions of the Code of Civil Procedure, concerning summary proceedings to recover possession of real estate, and the justice issued a warrant which was served upon the tenant, and on the return day he appeared and filed an answer denying each and every material allegation, and also set up new matter, going to the question of title; the petitioner demurred to the answer that it contained no defense, which demurrer was sustained, and a final order granted awarding possession to pe titioner, and directing the issuing

of a warrant, which was issued and delivered to the sheriff:

Held, that a writ of prohibition would not lie.

Held, further, that 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. It can be by appeal, and, in a proper case, there is a remedy by injunction. (People ex rel. Evans agt. Letson, ante, 881.)

107. Section 2141-The provision of the Code of Civil Procedure (sec. 2141), authorizing the court, upon & hearing on return to a writ of certiorari, to "make a final order annulling or confirming, wholly or partly, or modifying the determination reviewed," does not authorize the review or modification of the determination of inferior jurisdictions in matters within that jurisdiction which are confided to their discretion.

Said provision is to be read in connection with the preceding one (sec. 2140), which defines the questions which may be determined by tne court upon certiorari, and simply gives power to correct an erroneous adiudication instead of reversing it absolutely.

Where, therefore, the general term, on certiorari to review an order of the board of fire commissioners of the city of New York dismissing the relator from service as fireman, modified the order by directing his suspension for six months, and there was no question of jurisdiction, procedure or evidence, giving to the general term jurisdiction to interfere with the order, held error. (People ex rel. Kent agt. B'd of Fire Com'rs, 100 N. Y., 82.)

that the court acquired jurisdiction will not be received. (See Billings agt. Pickert, 39 Hun, 504.)

109. Sections 2204, 2208-Discharge of an insolvent from imprisonment -no limitation as to time beyond which the fraudulent transfers of a debtor cannot be proved. (See Matter of Brown, 39 Hun, 27.)

100. Section 2284-To whom the fine authorized by, should be paid. (See King agt. Flynn, 38 Hun, 329.) 111. Sections 2436-2447-The plaintiff issued execution on judgment against defendant, and the sheriff demanded payment of the execution. Then defendant made a general assignment, and thereafter the execution was returned unsatisfied, and a receiver was appointed on supplementary proceedings:

Held, that the judgment and execution and the demand of payment under the execution in its lifetime did not create a lien which can be enforced under sections 2436-2447 of the Code. (Abeel et al. agt. Anderson, ante, 489.)

112. Section 2436-Order for the examination of a judgment-debtorthe regularity of the issue of the execution must be shown-also a demand upon the debtor and a refusal by him to apply the property. (See Hutson agt. Weld, 38 Hun, 142.)

113. Section 2459- Supplementary proceedings-a witness may be compelled to attend in a county other than that of his residence. (See Foster agt. Wilkinson, 37 Hun, 242.)

114. Section 2481-The provisions of the Code of Civil Procedure regulating the method by which a review of errors on a trial before a surrogate may be secured, and providing for a loss of a right of review unless such methods are regularly pursued, furnish and limit the only remedy against such errors.

115. Sections 2514, 2723-The mere appearance of an interest is ordinarily sufficient to justify an order for an accounting by an adminis trator (1 Bradf., 24). The surrogate has no jurisdiction to determine the validity of a release, and where its invalidity is sworn to will direct an accounting. An accounting has been ordered at the instance of a residuary legatee who had given a release to the executor (25 N. Y., 142). (Estate of Dufy, deceased, ante, 240.)

116. Sections 2558-2561-A surrogate has no authority to make an e parte order, decreeing an allowance payable out of the estate to a special guardian of an infant unsuccessfully contesting the probate of a will; notice to the other parties interested in the estate is requisite.

Costs may be allowed to a special guardian in such a case, but limited by, and only as specified in the Code of Civil Procedure (secs. 2558-2561.)

It seems that the compensation of the special guardian should come either from the infant or his estate, and that if any part of such estate was before the surrogate or under his control he might have ordered the compensation to be paid out of it. (Matter of Will of Budlong, 100 N. Y., 203.)

117. Sections 2568, 2570-Decree of surrogate when appealable. (Sea Matter of Gilbert, 39 Hun, 61.)

118. Sections 2570, 2584, 1310-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 to and deterrained before the taking o. any testimony in the

matter of the factum of the will, a motion was made that a trial of all the issues proceed simultaneously.

Hed, 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. (Estate of Henry, ante, 386.)

119. Section 2572-Sale of the real estate of a decedent to pay his debts-petition- what allegations it must contain-what are sufficient. (See Matter of German Bank, 89 Hun, 181.)

120. Sections 2605, 2685-Where an executor is empowered and directed by the will to sell real estate, in case of gross negligence or bad faith on his part in failing to perform this duty, the surrogate has power to remove him therefor, to compel him to account, and upon such accounting to charge him with any loss to the estate resulting from such negligence or bad faith. (Haight agt. Brisbin et al., 100 N. Y., 219.)

121. Section 2628-Evidence-certificate of a surrogate as to the probate of a will--when sufficient. King agt. King, 39 Hun, 220.)

(See

122. Section 2643 -Where an infant would be entitled, but for his infancy, to letters of administration with the will annexed, the guardian of such infant is entitled to letters unless disqualified for some cause specified in the statute. (Estate of Blanck, decoused, ante, 58.)

123. Sections 2085, 2882--In order to justify under section 268 or seetion 2-82 of the Code of Civil Procedure the revocation of letters of

administration or letters of guardianship upon the ground that such letters were obtained by a "false suggestion of a material fact," it must appear that such false suggestion was made to the tribunal by which such letters were granted. (Estate of Corn, deceased, ante, 357.)

124. Sections 2717, 2718-Surrogate's court-who may petition the court as a "creditor" for a decree directing his claim to be paid. (See Hall agt. Dusenbury, 38 Hun, 125.)

152. Section 2742-An adjudication made by a surrogate in a proceeding to which a minor, regularly represented in accordance with the practice of the court, was a party, has the same effect as a similar adjudication between adults, and his relief from an erroneous or irregular adjudication is the same except as to the time within which an application for relief from an irregular judgment must be made. (In re Hawley, 100 N. Y., 206.)

126. Sections 2807, 2817-The surrogate has the same jurisdiction in the case of a testamentary trustee, (Id.)

127. Section 2821-Upon an applica

tion for an appointment of a guardian of an infant, the surrogate has authority to direct that access to the infant shall be allowed by the guardian when appointed. to such persons as the surrogate may designate. (Katter of Derickson Minors, ante, 21.)

128. Sections 2863, 3228-The plaintiff sued for $333.33, and the court found that the plaintiff was entitled to recover this sum, but the recovery was reduced by independent counter-claims to $5.20:

Held, that as the sum total of the accounts of both parties, proved to the satisfaction of the court, exceeded $400, a justice's court would not have had jurisdiction