upon affidavits showing the application sustained therein, but plaintiff was alto postpone, the papers upon which it is lowed to amend by payment of the costs. founded, its denial, and that, a decision Plaintiff paid the costs, amended his has been made against him, make a non-complaint, and then sought to disconenumerated motion at Special Term to tinue the first suit. An order of disconset aside such decision: he may also re-tinuance was granted, conditioned on main, and try the case on the merits, plaintiff paying costs and $100 extra aland in case of a decision against him, lowance. Plaintiff paid the costs and either pursue the same course to obtain extra allowance, the latter under protest, a new trial, or may, if the trial were by and then discontinued. To so much of jury under section 265, move at Special the order as granted an extra allowance Term on a case for a new trial, alleging plaintiff appealed. Motion made to disas one of the grounds the refusal to post-miss the appeal. pone the trial; or if the trial were by the court, may then, under section 268, appeal directly to the General Term, alleging as cause for reversal the refusal to postpone. Howard v. Freedman, 3 Abb., N. S., 292; Ogden v. Payne, 5 Cow.. 15; Hooker v. Rogers, 6 Id., 577, 38 How.,

451.

The appeal from the order of the Circuit Court should therefore be dismissed with costs.

Opinion by Davis, P. J.; Brady and Daniels, J.J., concurring.

N. Y. SUPREME COURT-GENL. TERM.

FIRST DEPT.

Dambmann, applt. v. Schulting, respt. Decided December 6, 1875. An order granting a discontinuance on condition of paying costs and an extra allowance, must be appealed from if the party is eggrieved by the condition. If he avails himself of the benefits of the order, he must comply with the conditions.

Motion to dismiss an appeal from so much of the order of the Special Term as granted an extra allowance.

On appeal.

Held, That from the peculiar form of the order we think plaintiff could not avail himself of its benefits without complying with its conditions, but by so doing he waived his right to appeal. Had he wished to review the action of the court below, he should have refrained from availing himself of the conditional leave, until he could bring the question before this court by appeal.

Motion to dismiss the appeal granted. Opinion by Davis, P. J.; Brady and Daniels, J. J., concurring.

N. Y. COURT OF APPEALS. Clearwater, respt. v. Brill, sheriff, applt.

Decided November 30, 1875.

Process prima facie valid will avail for defence but not for aggression.

This was an action for the wrongful taking from plaintiff, a constable in the County of Ulster, of certain personal property, which he had scized under five attachments, issued by a Justice of the Peace, and which he retained by virtue of executions issued by said Justice. Defendant, who was sheriff of said county, took the property by virtue of attachments in the Supreme Court. This is the second appeal. On the first Plaintiff then brought a second suit to trial at the Circuit, it was held that set aside the release. To the complaint three of the attachments under which in this defendant demurred, and was plaintiff had taken the property, and all

Plaintiff in 1873, brought this action to recover the sum of $5,000. Defendant pleaded a release, and thereafter noticed the cause for trial, and put it on the calendar.

proceedings thereunder, including judg- N. Y. SUPREME COURT-GENL. TERM,

ments and executions, were void; but the proceedings in two of the cases were held good, and judgment was rendered for plaintiff.

FIRST DEPT.

Eisner respt. v. Hamel et al, applt.
Decided December 6, 1875.

Where an attorney makes a motion in the
case for his own benefit, costs may be
allowed against him.

Appeal from order denying leave to

On appeal to the Court of Appeals, those two attachments and proceedings were held void, and a new trial was directed. Upon the second trial, at Circuit, plaintiff proved the executions, and the tak-renew a motion and imposing costs on ing of the property by defendant, and the attorney applying for such leave. Prior to 1867 plaintiffs brought suit rested. Defendant gave in evidence an attachment issued in the Supreme Court against defendant to foreclose a mortagainst D., and plaintiff gave in evidence gage to which answer of payment was made. The matter was in October, 1867, settled without costs to either party; of to show its invalidity. Defendant gave this M., defendant's attorney, was notiin evidence the affidavits, and proceed-fied by his client. He took the satisfac

the affidavits on which it was obtained

ings and judgments under which the at-. tachments and executions in Justice's Court were issued. The Court directed a verdict for plaintiff subject to the opin

tion piece and put it on record. In 1875 he made a motion to have the complaint claimed that the settlement had been dismissed for want of prosecution, and

made to defraud him of his costs: the
motion was denied without costs. A
second motion on further affidavits was

also denied, with $10 costs, to be paid by
M., defendant's attorney.
On appeal.

ion of the General Term. The General Term ordered judgment for plaintiff on the verdict, on the ground that defendant, as sheriff, had not a right to show, as against plaintiff, that the process under which the latter took and held the property was void. Held, Error: that plaintiff being in M. was informed by his client of the Held, That since it appeared that Mr. possession at the time of the taking com- settlement entered into, received the satplained of, holding under process fair on isfaction piece and recorded it, and also its face, had prima facie a right of action; that these facts occured in 1867, and this but that defendant, being in actual pos-motion was not made until 1875, we session at the time of the bringing of the think the application was on its merits action, under a process valid on its face, had a right to inquire into, and attack properly disposed of. We think that the character and basis of plaintiff's posthe imposition of costs on defendant's session; and that, even if the attach-attorney was also proper. The proceedments to defendant were issued upon defective affidavits, and would not aid him in making title to the property, yet, being prima facie valid, it was sufficient to defend him for taking the property in pursuance of its command. 1 Hill, 118. A process apparently valid, but issued in fact without authority, will avail for defence but not for aggression.

Judgment of General Term affirming judgment for defendant reversed. Opinion by Folger, J.

ings were entirely for his benefit; his
had no interest in its continuance; she
client had settled that controversy, she
was not an actor in the proceedings, and
costs of a motion which was made for
it would be unjust to make her pay the
the sole benefit of her attorney.

Order affirmed with costs.
Per Curiam opinion.

N. Y. SUPERIOR COURT-SPECIAL TERM.
Hegeman v. Cantrell, et al.

On settlement of proposed case. Opinion, Freedman, J.-This action was brought in equity for the foreclosure of a mortgage executed by the defendant to the plaintiff. The defendant interposed the defense of usury, and, on her motion, issues relating to such defense was framed and directed to be tried by jury.

On the tril of special issues to a jury, When special issues of fact have been unless a party moves for a new trial, settled in an equitable action, and order. he shall be deemed to have acquiesced in ed to be tried by a jury, they are brought the finding. The motion must be made on a case and exceptions, and the case to trial, it is true, upon due notice in and exceptions must be settled as in the same manner as issues of fact in a other cases. common law action. And the trial is conducted in the same general manner as other jury trials, except that the verdict is so rendered as to answer fully and distinctly all the questions proposed in the issues. But the findings of the jury upon such special issues of fact are merely for the information of the Court on the final trial at Special Term. The trial of the issues is not the trial of the action. (Wood v. The Mayor, etc., of N. Y., 4 Abb., N. S., 152, 157; Clark v. Brooks, 2 Abb. N. S.. 385, 406, 407; Lansing v. Russell, 2 N. Y., 563; Candee v. Lord, 2. N. Y,, 269; Birdsall v. Patterson, 51 N. Y., 43; Hatch v. Peugnet, 64 Barb., 189.)

From the affidavit of the plaintiff's attorney, which was not controverted by the defendant, the following facts appear:

The trial of the issues took place at the March Trial Term, and the verdict was rendered March 18th, 1875.

Defendant's time to make and serve a case to review that trial on a case expired on the 28th of March, 1875.

A motion to set aside the verdict and for a new trial of the issues was made on an affidavit, and was argued, and denied by the Special Term of this Court, April 7, 1875. The case was finally heard and tried by the Special Term of this court as an equity cause, and judgment was given on or about April 8, 1875.

An appeal from the judgment thus entered and from the order denying motion for a new trial was served April 22, 1875. On the last named day defendant's attorney obtained, exparte, and served an order giving defendant twenty days to make a case, and on the 12th of May he obtained ten days' further time for that purpose.

On the 21st of May, 1875, defendant's attorney served a proposed case, containing no reference whatever to the proceedings on the former trial, but referring solely to the trial of the special issues. This case, which is quite voluminous, I am now asked to settle.

The facts specially found by the jury must be adopted by the Court before they can constitute the basis of a judgment (Vermilyea v. Palmer, 52 N. Y. 471), and the Court, on the final hearing, is not precluded from rejecting the verdict and ordering a new trial, or from finding the question of fact for itself. (Brown v. Clifford. 7 Lans., 46.)

Either party, therefore, feeling aggrieved by the determination of such special issues, and desiring to apply for a new trial, on the ground of any error of the Judge, or on the ground that the verdict is against evidence (except when the Judge directs such motion to be made on his minutes, at the same term or Court at which the issues are tried), may make such motion subsequently. But the motion must be founded on a case or exceptions, or a case containing exceptions, as the case may require, and the case or exceptions must be served and settled in the manner prescribed by the rules of Court for the settlement of cases and exceptions in other cases (General

I am of the opinion that the defendant Rule 40). The same rule further prois too late.

vides :

On the 25th day of March, A. D. 1867, suit was brought by the plaintiffs against the defendants in the Court of Common Pleas of Muskingum County, Ohio, to recover the sum of $10,000 deposited with the defendants by the plaintiffs as indemnity for acceptance by them for the accommodation of the Steubenville and Indiana Railroad Company, and which, by reason of certain facts set forth in the petition, the plaintiffs claim the defendants became liable to pay them. Attachments were issued upon this petition and certain property was attached.

Under the third section of the act of 1875, April 25, 1875, the order of continuance a cause which was pending at the time was set aside, and on the same day a of the passage of the act, is removable petition was filed by the defendants prayfrom a state court to the federal court, if the petition and bond are filed "ating for a removal of the cause to the Ciror before the first term at which said cuit Court of the United States, under cause could be first tried," after the the provisions of the act of Congress of passage of the act. March 3, 1875. Bond with proper security was also filed. The grounds of removal were that the defendants were citizens and residents of the state of Maryland, and that one of the plaintiffs was a resident of the State of Illinois, one a citizen and resident of Minnesota, and the other a citizen and resident of Ohio. This application was resisted upon the ground that the case did not come within the provision of the act of March 3, 1875, because not filed with the court at or before the first term at which the cause could be tried, and before the trial thereof. Upon the hearing of this petition, the court, for the reason that the action was triable, and was actually tried in said court before the passage of the act of Congress, overruled said mo tion. Afterward, on the 12th day of May, 1874, the defendants filed in this court transcripts of the record and proceeding in said cause. And afterward, on the 6th day of October, a motion was filed to strike the case from the docket, on the ground of the want of jurisdiction in this court.

On the 18th day of May, 1867, the defendants filed the motion to remove the cause into the Cirenit Court of the United States, on the grounds that the defendants were citizens and residents of the State of Maryland, and that the plaintiffs were citizens and residents of Ohio. Upon the hearing of the motion it appeared that one of the plaintiffs was a citizen and resident of Illinois, and one a citizen and resident of Minnesota. The motion was overruled. Thereupon the parties proceeded to make up the issues. Opinion by Swing, J. The disposiin said court of common pleas, and at tion of this motion involves the constructhe April term, 1873, a jury was waived tion of the second and third sections of and the case submitted to the court and the act of Congress, passed March judgment rendered in favor of the de- 3, 1875. The second subd. of a section fendants. At the same term the plain- of that act provides: "That any suit tiffs were awarded a second trial under of a civil nature, at law or in equity, the statute, amendments were made to the now pending or hereafter brought in pleadings, and the cause was continued any state court where the matter in from term to term, until the November dispute exceeds, exclusive of costs, the term, 1874, when a trial was had before sum or value of $500, and arising under a jury, and a verdict was rendered for the constitution or law of the United the plaintiffs. At the same term the States*** Or in which there shall be verdict was set aside and the cause was a controversy between citizens of different continued till the January term, 1875. states, etc., either party may remove said On the 25th of January the cause was suit into the Circuit Court of the United continued. At the same term, to-wit, | States for the proper district. And when