amination is had. (Pardee agt. Tilton, ante, 476.)

2. The representatives of a party whose rights, under the judgment and execution, had been determined prior to September, 1877, may institute supplemental proceedings without renewing the action. (Id.)

3. In proceedings supplementary to execution, the judge cannot direct property of the judgment debtor (a horse), to be delivered to the creditor on his giving the debtor a receipt for his claim. The property should be sold under an execution or by a receiver. (Dickinson agt. Onderdonk, 18 Hun, 479.)

4. Semble, that where, in supplementary proceedings, the debtor claims that property, which may by law be exempt from execution, is in fact so exempt, the question of exemption cannot be tried in such proceedings, but must be tried in an ordinary action. (Id.)

SURPLUS MONEYS.

closures by action are proceedings in the action, and are similar to proceedings under chapter 804, Laws 1868. When costs are allowed, they must be at the rate allowed in proceedings for the recovery of surplus moneys arising upon foreclosures by action, i. e., necessary disbursements and motion costs. (Id.)

SURROGATE.

2.

1. In proceedings to distribute surplus moneys a question of fraud may be investigated before the 3. referee, and every question may be examined tending to show the equities of the claimants. (Tator agt. Adams, ante, 355.)

2. Proceedings under chapter 804, Laws 1868, for the recovery of surplus moneys arising upon mortgage foreclosures by advertisement are special statutory proceedings. (Matter of Gibbs, ante, 502.)

3. Successful claimants may, in the discretion of the court, be allowed costs under chapter 270, Laws 1854, at the rate allowed for similar services in civil actions. (Id.) 4. Proceedings for the recovery of surplus moneys arising upon fore

Accordingly, where, on application to the surrogate for an order vacating and setting aside two orders, one of which accepts the resignation of D. B. as general guardian of minors and discharging him from his trust as such guardian, and the other of said orders releasing said guardian and his sureties from all future liability upon his official bond and for other and future relief:

Held, that it appearing to the satisfaction of the surrogate that the orders were procured from his predecessor by false statements made under oath, by a false receipt, by the suppression of facts and by deception practiced upon the court that they should be revoked because of the fraud. Held, further, that the account

of its own members " (Laws of 1857, vol. 1, page 875):

Held, that the decision of the board of aldermen in such cases could not be reversed or set aside by the court.

Held, further, that the change in the phraseology of the charter of 1873 does not give to the court the power, in an action in the nature of a quo warranto, to pass upon the question of title to the office of alderman where the board has declared in favor of such right. (The People ex rel. Hatzel agt. Hall, ante, 147.)

2. The charter makes the judgment of the board the subject of review by any court of competent jurisdiction, or, in other words, it permits an appeal to a court of competent jurisdiction from the judgment of the board. But the judgment of the board cannot be reviewed in an action to which the board is not a party, and in which the record of that board is not before the court. (Id.)

3. It is the office of the writ of certiorari to correct errors of a judicial character committed by an inferior tribunal or body, and that writ brings the record before the court for examination and review, and such writ should be returnable before the general term. In cases of this kind a circuit judge, in a circuit court, cannot sit as an appellate tribunal to review the judgment and decision of an inferior tribunal. (Id.)

TORT.

See EXECUTION.

TRIAL.

1. It is a familiar rule for the conduct of a trial that a party holding the affirmative is bound to introduce all the evidence upon his side before he closes. He must exhaust all his testimony in support of the issue on his side before the testimony on the opposite side has been heard. (Marshall and Miller agt. Davies and others, ante, 231.)

2. He can afterwards introduce evidence in rebuttal only. Rebutting evidence in such cases, means not merely evidence which contradicts the witnesses on the opposite side, and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove. (Id.)

3.

Where the defendant had been examined in support of his allegation of notice and request to foreclose a mortgage, and he had testified to a conversation with M., upon which he relied, and that he thought there was none subsequent:

Held, that having rested his case, and the plaintiff having closed his testimony, the defendant had no legal right to reopen his own case and introduce evidence to sustain his defense, which he might have introduced when the case was with him.

Held, further, that after having testified to one conversation which was denied on the other side, the defendant was not entitled, as a matter of right, to prove another as to which he had not previously testified, even though it tended to support his original statement. (Id.)

See COMPLAINT.

De Witt agt. McDonald, ante, 411. See MARRIED WOMAN.

Lansing agt. Holdridge, ante, 440.

The testimony on the part of the plaintiff was that other conversations might have been held, but that no conversation of the nature testified to by the defendant ever took place. This was a mere de

nial, and not proof of any affirmative fact which the defendant had the right to rebut. (Id.)

5. These rules may, in special cases, be departed from, in the discretion of the trial judge, but a refusal to depart from them is no ground of exception. (Id.)

6. Under the provision of the charter of the village of Port Jervis (sec. 40, chap. 370, Laws of 1873), giving to the police justice of said village the jurisdiction, powers and authority of the justices of the peace of the town in which the village is situated, with "jurisdiction to hear and determine all cases arising under the charter, by-laws or ordinances," the jurisdiction in the class of cases last specified, is to be exercised in the same manner as in cases before justices of the peace. (People ex rel. Dargin agt. Cox, 76 N. Y., 47.)

7. In an action, therefore, for a violation of an ordinance of said village, held, that defendant was entitled to demand and have a jury, as on trial before a justice of the peace. (Id.)

8. An erroneous ruling, as to the burden of proof, is not cured by the fact that the party, upon whom the burden is improperly imposed, ineffectually attempts to make a case under the ruling; he may rest upon his exception, but it is not waived or its force impaired by his attempting to comply with the erroneous ruling. (Nickerson agt. Ruger, 76 N. Y., 279.)

9. Where the complaint in an action does not state facts sufficient to constitute a cause of action, the objection is available on trial upon motion to dimiss the complaint. (Tooker agt. Arnoux, 76 Ñ. Y., 897.)

made upon that ground, the granting it is not a matter of discretion, but of legal right. (Id.)

11. Where the objection was raised and was not waived, and no amendment of the complaint was made or asked for on the trial, the correctness of the ruling denying motion to dismiss must be tested on appeal on the complaint, as it stood, not as it might have been changed by amendment; and if the ruling was erroneous, it is fatal to a recovery. (Id.)

2. Without the consent of those beneficially interested in the trust, investments directed to be made in first mortgage securities, cannot be made through the judgment of the court, in those of an inferior lien. (Id.)

3. For the purpose of securing such change in investment, the trustees do not represent the beneficiaries, and an action to this end cannot be prosecuted in their names, the beneficiaries not being parties defendant, and having no opportunity to be heard in relation to the propriety of granting such relief. (Id,)

1.

10. Where a motion to dismiss is

UNDERTAKING.

The undertaking required by the Code of Civil Procedure is amend

on which the order of arrest was granted, is in the form required by the old Code of Procedure, the defect is cured by the execution and service of a new undertaking which conforms to the requirement of the Code of Civil Procedure, and a motion to vacate the order of arrest will be denied on proof of the execution and serv ice of new undertaking by the same sureties before the motion is heard:

Held, also, that a complaint on information and belief, verified by the agent of plaintiff, is sufficient on a motion to vacate, where the agent sets forth in the verification, and also in a separate affidavit, the sources of his information and the grounds of his belief. (Pember agt. Schaller, ante, 511.)

4.

5.

2. In July, 1864, plaintiff recovered a judgment against one Whitbeck for the possession of certain real property. Whitbeck appealed to the general term, and to stay proceedings, gave an undertaking, signed by the defendant Simmons, by which the latter agreed, among other things, "that during the possession of such property by 6. the appellant, he will not commit, nor suffer to be committed, any waste thereon.' The judgment was affirmed September 28, 1865, and Whitbeck, six days thereafter, appealed to the court of appeals, giving an undertaking, with other sureties, to stay proceedings. In January, 1867, the judgment was affirmed by the court of appeals. In the winter of 1866 and 1867, Whitbeck committed waste upon the property.

In an action to recover the damages occasioned thereby, held, that Simmons was not liable therefor, that his liability became fixed upon the giving of the undertaking upon the appeal to the court of appeals, and could not be affected by any subsequent acts of Whitbeck. (Church agt. Simmons, 19 Hun, 220.)

comply with provisions of section 12, chapter 96 of 1854. (See Kohlbrenner agt. Elsheimer, 19 Hun, 88.)

Taken by a coroner, on releasing a defendant surrendered to him by the sheriff, when void. (See Douglass agt. Warren, 19 Hun, 1.)

Where, in an action by a judgment creditor upon an undertaking given to stay proceedings pending an appeal to this court, it appeared that at the time of the commencement of the action the judgment had been regularly attached at the suit of creditors of the judgment-creditor, and the attachments were still in force, held, that the action could not be maintained; that the undertaking was simply a collateral security for the judgment and passed with it to the sheriff; that it was not necessary to attach the undertaking separately, as it was an incident of the judgment, not an independent liability of the sureties. (Wehle agt. Spellman, 75 N. Y., 585.)

Where the sureties to an undertaking upon appeal to this court from a final judgment fail to justify, the appellant may give a new undertaking at any time within the year allowed for appeal, and when given the appeal becomes effectual; and if the respondent fails to except to the sureties within the time allowed, the new undertaking becomes perfect for the purposes of the appeal (New Code, secs. 1325, 1326, 1327). (Blake agt. L. and F. Mfg. Co., 75 N. Y.,611.)