but the wife affirms its validity, she is entitled to alimony and counsel fees. (Id.)

6. Where the husband has stipulated to pay half the referee's fees, such stipulation will be enforced. (Id.)

7. Where a decree of divorce has been obtained by a wife against her husband and an allowance of alimony has been made for her support and "for the support and maintenance" of her three children:

Held, that the legislature intended that the allowance to the wife should be unchanged, but that the provision for the support of the children might be altered as their circumstances changed. (Kerr agt. Kerr, ante, 255.)

AMENDED PLEADINGS.

1. Where, after issue has been joined in an action, and the same has been regularly noticed for trial at a circuit, by the defendant, the plaintiff in good faith and within the time allowed by law serves an amended complaint, the issue theretofore joined and noticed for trial is destroyed, and the action cannot be tried until new issues have been joined and regularly noticed for trial. (Ostrander agt. Conkey, 20 Hun, 421.)

2. When the amended pleading is served in bad faith, the remedy of the party aggrieved is by motion to strike it out. (Id.)

AMENDMENT.

1. A referee has the same power to allow amendments to any pleading as the court, upon such trial, upon the same terms and with like effect, and the matter being properly at his disposal, his action will not be reviewed by a judge at chambers. (Oregon Steamship Company agt. Otis, ante, 254.)

1. Denial of allegations in the complaint may be made upon information and belief. (Brotherton agt. Downey, ante, 206.)

2. A party has no right to interpose an unqualified denial in a verification unless it be founded upon personal knowledge, and where he has not personal 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. (Id.)

3. Where the answer denies having any knowledge or information

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. (Id.)

9. As there was no lawful appeal which could give the court of common pleas jurisdiction under the statute, the case has remained in legal contemplation in the marine court, subject to the order of the general term granting a new trial, and this court will not interfere with the functions of that tribunal in this case by a writ of prohibition. (Id.)

10. A reference to assess damages upon injunction should not be granted, after appeal from the judgment is perfected, until final decision upon the appeal. (Howard et al. agt. Park et al., ante, 344.)

11. Where judgment absolute was rendered against a defendant in accordance with his stipulation, given on appeal from an order granting to plaintiff a new trial, and a reference was ordered to ascertain the amount due to the plaintiff, the referee reporting that nothing was due to the plaintiff, but that there was a sum due to the defendant on his counterclaim:

Held, that the defendant's right to affirmative relief was lost by the judgment rendered on his stipulation, and that he could not enter judgment for the amount found due him (See The People agt. Denison, ante, 157). (Rust agt. Hauselt, ante, 389.)

12. Reversal of judgment on-effect of, on the arrest of a defendant under an order of arrest and also under an execution issued on the judgment. (See People ex rel. Roberts agt. Bowe, 20 Hun, 85.)

13. The judgment of commissioners in deciding upon the amount of damages to be allowed under section 18, chapter 140 of 1850, cannot be reviewed-only legal errors are reviewable on an appeal therefrom. (See Matter of P. P. and C. I. R. R. Co., 20 Hun, 184.)

14. Who entitled to costs on partial affirmance of judgment in justice's court by county courtCode, section 371. (See Chapin agt. Skeels, 20 Hun, 448.)

15. From the determination of commissioners of highways-fees of referees, when a county chargesection 9 of chapter 455 of 1847. (See People ex rel. Scott agt. Supervisors, 20 Hun, 196.)

16. An order denying a motion for

leave to serve an amended complaint is not appealable to this court. (Quimby agt. Claflin, 77 N. Y., 270.)

17. Where, upon appeal from an order allowing to plaintiff costs in an action against executors, upon a claim against the estate, the question as to whether there was an offer to refer appears to have been one of fact, although this court has power to pass upon the question as an original one, the general rule acted upon by it is to adopt the finding of the court below. (Field agt. Field, 77 N. Y., 294.)

18. After the appointment of a receiver in proceedings by the attorney-general against an insolvent life insurance company, by order of the court liberty was given to certain policy-holders to appear by attorney in all motions and proceedings therein, and it was provided that notices of all motions and proceedings in court on the part of the attorney-general, or of the receiver, be served upon the attorneys of said policy-holders. An actuary was appointed, who

made his report; a copy thereof with notice of hearing thereon was served upon said attorneys. Upon the hearing said attorneys appeared and interposed certain objections and exceptions to the report: the report was confirmed; the policy-holders, represented by said attorneys, appealed to the general term from the order of confirmation, where the appeal was dismissed on the ground that they were not parties to the proceedings, and had no right to appeal, held, error; that they were made parties by the notice and appearance, and were parties aggrieved within the meaning of section 1294 of the Code of Civil Procedure. (In re Atty. Gen. agt. N. Am. Ins. Co., 77 N. Y., 297.)

19. Where, in an action for divorce on the ground of adultery, trial is had before a referee, and judg ment rendered upon his report in favor of defendant, which is reversed by the general term on questions of fact and a new trial ordered, the order of general term is appealable to this court, the appellant giving the usual stipulation required by the Code of Civil Procedure (sec. 191.) (Conger agt. Conger, 77 N. Y., 432.)

20. In such case, upon affirmance of the order here, judgment absolute can be rendered against the appellant upon such stipulation, as the question of adultery has been tried, and the decision of the general term and of this court is to the effect that the defendant is guilty; the judgment therefore will be based upon evidence and upon judicial determinations. (Id.)

21. As to whether the order is appealable, where the judgment was reversed for error of law, not involving the merits, quære. (Id.)

22. To a complaint setting forth several orders of the surrogate of the county of New York, defendant demurred, upon the ground that

the complaint omitted to allege the facts necessary to give the surrogate jurisdiction; the demurrer was overruled and judgment rendered for plaintiff, which was affirmed by the general term. On appeal to this court, defendant asked leave, in case the judgment should be affirmed, to withdraw the demurrer and put in an answer on terms:

Held, that the application should, under the circumstances of the case, be made to the court below; judgment therefore affirmed, with leave to make such application. (Bearns agt. Gould, 77 N. Y., 456.)

23. An exception, as to language used in a charge, to be available, must present it in the same, or in equivalent words embracing the substance of the charge, and presenting so clearly and distinctly the proposition enunciated by the court that there can be no doubt as to what was actually intended. (McGinley agt. U. S. L. Ins. Co., 77 N. Y., 495.)

24. Where the phraseology of the exception is of doubtful construction so that it is not easy to determine what is meant, or to say that it applies to any distinct portion of the charge as made, it furnishes no ground for reversal of the judgment. (Id.)

25. The determination of the supreme court upon a question of vacating a judgment for a mere irregularity, based upon a rule of practice, not a positive statute, and where the party complaining has not been in any way prejudiced, is not reviewable in this court. (Moore agt. Shaw, 77 N. Y., 512.)

26. Accordingly held, that an order denying a motion to vacate a judgment for deficiency in a foreclosure suit, on the ground that the report of the referee who made the sale was not confirmed, and

no application for a personal judgment against defendant made, was not reviewable here. (Id.)

27. An order vacating and setting aside an ex parte order discharging an assignee for the benefit of creditors, and his sureties, from all liability to the creditors, and canceling his bond, is in the discretion of the court, and is not reviewable here. (In re Horsfalls, 77 N. Y., 514.)

28. Such an order also is not appealable, because it is not a final order within the provision of the Code of Civil Procedure (sub. 3, sec. 190), regulating appeals to this court. (Id.)

29. The question whether the moving creditor has such an interest as authorized him to make the motion cannot be reviewed on appeal from such an order. (Id.)

30. Before an action of trespass can be said to affect the title to real estate, within the meaning of the provision of the Code of Procedure (sec. 11, as amended by chapter 322, Laws of 1874), limiting appeals to this court, the issues, trial and judgment must be such as to determine or establish the title in favor of one party or the other. (Scully agt. Sanders, 77 N. Y, 598.)

31. It is within the discretion of the supreme court to grant or withhold a common-law certiorari, and its discretion cannot be reviewed. (People ex rel. Hudson agt. Fire Commissioners, 77 N. Y., 605.)

32. An unreasonable delay in applying for the writ may be a ground for refusing it, and for quashing it even after a hearing on the return thereto. (Id.)

33. Plea of former suit pending in action upon undertaking given on, when not sustained. (See Porter agt. Kingsbury, 77 N. Y., 164.)

34. Order made by special term for examination of defendant to enable plaintiff to make complaint, reviewable here. (See Heishon agt. Knick. L. Ins. Co., 77 N. Y., 278.)

35. An order setting aside an ex parte order vacating a levy under an attachment, is discretionary and so not appealable. (See Ellis agt. Rice [Mem.], 77 N. Y., 610.)

36. When no material evidence given under offer of evidence on criminal trial, exception not available. (See Morris agt. People [Mem.], 77 N. Y., 622.)

37. Although the granting or refusal of a writ of mandamus is regarded as discretionary, as distinguished from a writ of right, it is not an absolute or arbitrary discretion, but is to be exercised ander, and may be regulated and controlled by legal rules; and the exercise of the discretion is reviewable here. (Peo. ex rel. Gas Light Co. agt. Com. Council of Syracuse, 78 N. Y., 56.)

38. Where the writ is refused, and it appears that there is a clear legal right, and that there is no other adequate remedy, the order or judgment may be reversed. (Id.) 39. There is no distinction between legal and equitable actions, or between actions tried by a jury or a court, in respect to the availability of exceptions taken upon the trial upon admission of incompetent evidence; in any case an error in receiving such evidence, if properly excepted to, can only be disregarded when it can be seen that it could do no harm. (Foote agt Beecher, 78 N. Y., 155.)

40. An order of the general term granting a new trial, in a case tried by a jury, where the facts were before the general term, and it had the power to grant a new trial thereon, is not appeal