People ex rel. Salke agt. Talcott. The plaintiff secured a judgment for $473.79, which the general term of the marine court reversed on appeal, and ordered a new trial. Talcott appealed to the court of common pleas, but did not accompany his notice of appeal with any stipulation that judgment absolute might be rendered against him in the event of an affirmance. The court of common pleas affirmed the order appealed from and remitted the case to the marine court for a new trial. The relator claimed that such disposition of the case was improper, that judgment absolute should have been rendered by the court of common pleas in his favor, notwithstanding that the record contained no stipulation to that effect. Thomas & Wilder, for appellants. Richard S. Newcomb, for respondents. DAVIS, P. J. For several reasons the writ of prohibition in this case was improperly granted: 1. The appeal from the order of the general term of the marine court granting a new trial was not accompanied by the stipulation required by chapter 545 of the Laws of 1874. In Gordon agt. Erdman the court of appeals have held that "there can be no appeal from an order of the marine court granting a new trial without the stipulation required by the act of 1874." The court also held that the provisions of chapter 479 of the Laws of 1875 had not abrogated or repealed the provisions of the act of 1874. That decision is, of course, controlling, and it follows that the court of common pleas, whatever else it might have done, had no power to render judgment absolute against the appellant from the order granting the new trial. The order of the common pleas in affirming the marine court did not render judgment absolute against the appellant; and it appears from the opinion of the general term that it did not intend to do so. To hold in this case that in a case where it not only had no power to render such a judg People ex rel. Salke agt. Talcott. ment, and did not render it but declared emphatically its intention to the contrary, the law will regard what it did do as equivalent to such a judgment, would be a novel exercise of the authority of the court under the writ of prohibition. The legal effect of the judgment of the court of common pleas was to remand the case to the marine court for such action as is directed by the order of the general term. 2. The absence of the stipulation and the appeal from the order, assuming the appeal was regular under the act of 1875, took the case out of the provisions of the act of 1874 and left the court of common pleas to the exercise of the discretion vested in that court in such cases by subdivision 2 of section 43 of chapter 479 of the Laws of 1875. This was the view taken by the judges of the common pleas (for reasons specially assigned), and the exercise of that discretion is not reviewable at a special term of this court on the extraordinary writ of prohibition. 3. The relator, if aggrieved by the judgment of the court of common pleas because of any irregularity of form, has a plain remedy by application to that tribunal for the correction of the judgment. This court should not interfere by prohibition while so simple and easy a remedy lies open to the relator. 4. If there was no lawful appeal which could give the court of common pleas jurisdiction as seems to be the view of the court of appeals under the statute, the case has remained in legal contemplation in the marine court subject to the order of the general term granting the new trial. That court is, perhaps, to do nothing more than to proceed, in the discharge of its judicial duty, to a new trial in conformity with the judgment of the general term. There is, therefore, no more reason for interfering with the functions of that tribunal in this case by a writ of prohibition than there is to arrest all its functions by similar process. If the court is assuming to act without authority the relator can protect himself by raising the proper objections and by exceptions at the time the case Benedict & Burnham Manufacturing Company agt. Thayer. is moved for trial, and by correcting the erroneous ruling, if any, by appeal. His rights depend upon questions of law, which may be presented and all errors affecting the same corrected, in the ordinary proceeding in the action, without resorting to a writ designed for purposes foreign to the review and correction of those errors which occur in the progress of the trial and decision of causes. The order should be reversed and the writ quashed. SUPREME COURT. THE BENEDICT & BURNHAM MANUFACTURING COMPANY agt. DAVID G. THAYER. THE PEOPLE ex rel. DAVID G. THAYER agt. PETER BOWE, sheriff, &c. Execution against the person — Effect of omission to return within sixty days. An execution against defendant's person is not void because of the omission to direct its return within sixty days; and a return by the sheriff that the defendant was discharged under an order because of such defect fell with the reversal of the order on which it was based, and the validity of the execution was not impaired thereby. First Department, General Term, July, 1880. APPEAL in the action from an order denying plaintiff's motion to cancel the sheriff's return upon an execution against the person of the defendant, and to remit said execution to said sheriff. Appeal in the special proceedings from an order made on habeas corpus discharging the defendant in the action from the custody of the sheriff. Benedict & Burnham Manufacturing Company agt. Thayer. Cephas Brainerd and James S. Stearns, for appellants. A. C. Brown, for respondent. BARRETT, J.- When this case was previously before us we held that the execution against the defendant's person was not void merely because of the omission to direct its return within sixty days. We accordingly directed, what should have been done in the first instance, an immediate amendment to cure this trivial objection, reversed the order discharging the defendant and remanded him to the custody of the sheriff under the execution. It seems, however, that shortly after the argument before us, and while the matter was yet under advisement, the sheriff took upon himself, at whose instigation does not appear, to return the execution, specifying that the defendant had been discharged from custody under the very order, the validity of which was then under consideration. This fact was called to our attention when the order reversing the discharge and remanding the defendant was subsequently made, but we deemed it of no moment. Of course the return fell with the reversal of the order on which it was based. The validity of the execution had been in no wise impaired. It was not like the case of Gleason and Roberts (MS. opinion court of appeals) where, in consequence of the reversal of the judgment, the very foundation of the execution had fallen. The only reason why we did not at once cancel the return and remit the execution to the sheriff for proper action, in accordance with the facts as they then existed, was because we deemed that to be more properly the function of the special term. We are at a loss to understand, in the absence of any opinion from the court below, why this course was not pursued. It would be a reflection upon the administration of justice if this defendant were to escape the legal consequence of his acts by such unmeritorious technicalities as he has invoked upon both applications. It is clear that the force of the execution was but temporarily VOL. LIX 35 Smith agt. Gratz et al. spent by the erroneous discharge and the sheriff's return to that effect. The effect of the reversal was plainly to restore the original and legal status. Practically this could only be done by canceling the return, replacing the execution in the sheriff's hands, and leaving that officer to resume his custody of the defendant and, thereupon, to make a new and proper return. The order in the action should be reversed, with ten dollars. costs and disbursements of the appeal, the return canceled and the execution remitted to the sheriff. The order in the habeas corpus proceedings should also be reversed, with ten dollars costs, and disbursements and the prisoner remanded to the custody of the sheriff. N. Y. MARINE COURT. MARY A. SMITH agt. ELIZABETH GRATZ et al. Pleading-Complaint-Answer - Effect of general denial of the allegations of the complaint, except as afterwards admitted to be true. Where the answer denies having any knowledge or information sufficient to form a belief as to any or all the allegations in the complaint contained and, therefore, denies the same, except as hereinafter specifically admitted, the facts which were specifically admitted having been demurred to, on motion for judgment on this general denial: Held, that the denial in the answer is good. The form of pleading is one well known to the profession and has been sanctioned for years. McEnroe agt. Decker, 58 How., 251, not followed; see Allis agt. Leonard, 46 N. Y., 688. Special Term, July, 1880. MOTION for judgment on answer as frivolous. HAWES, J. — The motion is for judgment on the answer as frivolous. The answer denies having any knowledge or |