Coleman agt. Bean.

which the defendant may waive; and the fact of his putting in an undertaking, which recites that an attachment had been issued, and that he was about to apply for its discharge, is conclusive evidence of such waiver. It is enough that the undertaking is binding between the principal parties, under such circumstances, to hold the sureties.

Many cases may be supposed, in which it would be to the interest of the defendant to make such an arrangement, for the purpose of avoiding expense, annoyance or damage to his credit, by the publicity of a levy. It cannot, therefore, be assumed that the plaintiff did not rely upon the delivery of the undertaking, and was not induced by it to refrain from suing out an attachment and making a levy; and if he did thus rely upon it, the defendants were estopped from contradicting its recitals.

There is a plain distinction between the present case, and one where an undertaking is given to procure the discharge of an attachment which is void for want of jurisdiction of the subject matter. In the latter case, the whole proceeding being a nullity, the undertaking is of no effect whatever, and the sureties when sued on it may defend on that ground.

Of that nature are the authorities for the appellant (7 Barb. 254; 1 Den. 184), but they are not applicable to the case at bar, in which there is no evidence of a defect of jurisdiction. The case, therefore, is not within the rule suggested by the counsel for the appellant, and the offer to show that the recitals were untrue, was properly overruled.

The ruling was also correct in respect to the offer to show that the defendants were induced to execute the undertaking by the alleged false and fraudulent representations of the agent of the company that the recitals referred to were true. It was not proposed to prove that the plaintiff made any false representations, or that he was cognizant of, or had any agency in the alleged fraudulent conduct of the secretary of the company.

The defendant executed the undertaking, and placed it in the hands of the agent of the company, to be delivered by him to the court or officer, for the benefit of the plaintiff

Arnoux agt. Homans.

or (which is the same thing so far as this point is concerned), to be delivered to the plaintiff himself. It having been delivered by the agent as intended by the obligors, and the plaintiff having received it upon a valid legal consideration, and being ignorant of the alleged fraud, and in no way responsible for it, such fraud cannot be set up to deprive him of the benefit of the undertaking.

As upon the hypothesis that no attachment had been issued, the waiver and forbearance, which may be properly assumed in such case, formed a good consideration for the undertaking; the offer to show that there was in fact no pecuniary consideration price, was immaterial.

The judgment should be affirmed.

NEW YORK COMMON PLEAS.

WM. HENRY ARNOUX agt. J. SMITH HOMANS.

A defendant having served notice of appeal, the mere service of a noice of argument by the plaintiff, does not preclude him from enforcing payment of the judgment; no stay of proceedings having been given or applied for.

General Term, July, 1865.

Before DALY, F. J., BRADY and CARDOZO, Judges.
APPEAL from an order of special term.

DALY, F. J. The plaintiff, by serving a notice of argument after receiving notice of the appeal, did not preclude himself from enforcing the payment of the judgment, for an appeal had been perfected without any stay of proceedings.

There was no waiver of anything. He served a notice of argument, because the appeal was perfected and ready for argument, and proceeded to collect his judgment because the proceedings were not stayed.

The rule that a party who intends to move to set aside. proceedings for irregularity, must do so at the earliest opportunity, and waive the right if he takes any subsequent step

Arnoux agt. Homans.

in the cause, has no application in the case. (Thorpe agt. Beer, 2 Barn. & Ald. 372; Downes agt. Withrington, 2 Taunt. 243; Fox agt. Mooney, 1 Bos. & Pul. 250; D'Argent agt. Viviant, 1 East, 330; Gales agt. Caines, 3 Cai. 167; Hart agt. Small, 4 Paige, 288; Graham's Practice, 2d ed. 702.)

The plaintiff was, therefore, regular in obtaining the order for the defendant's examination, and could be affected only by an order to stay his proceedings founded upon the filing of a proper undertaking. He might have applied to the court under the 227th section of the Code, for liberty to file an undertaking to stay the proceeding (Sternhaus agt. Schmidt, 5 Abb. 66), but no such application appears to have been made. He asked, it would seem, to dismiss the summary proceedings, and the motion was granted, upon the ground that the plaintiff served a notice of argument after the notice of appeal had been served, which in my opinion,

was erroneous.

We can upon the appeal, give the same relief to the defendant that could have been obtained by a motion in the court bel-ow, but it should be upon the payment of costs, as the appeal was well taken.

CARDOZO, J. I think section 327 of the Code, furnishes a perfect answer to this appeal. The judge at special term, had the power under that section, to permit the necessary amendment to effect a stay of proceedings (N. Y. Central Ins. Co. agt. Safford, 10 How. Pr. R. p. 344), and the order below must be deemed an exercise of that power; and as it relates solely to a matter of practice, it rested in the discretion of the court below.

But the undertaking is confessedly inaccurate, in that the words "in case the appeal be dismissed," are omitted from the condition. The defendant should be required to amend the undertaking in that respect, or to substitute another; and as neither party is entirely free from error, there should not, I think, be allowed any costs on this appeal, unless the defendant should fail to correct the error in the undertaking. I think the proper order will be that the order appealed from be affirmed, without costs, provided the defendant

Bennett agt. Erving.

within five days from the service of a copy of the order to be entered on the decision of this appeal, cause the undertaking to be amended in the respect above mentioned, or substitute another in its place; and if he fail to do so, then that the order appealed from be reversed, with $10 costs. Ordered accordingly.

NEW YORK SUPERIOR COURT.

THOMAS E. BENNETT, receiver, &c. agt. WILLIAM ERVING.

Special Term, May, 1865.

Before GARVIN, Justice.

THIS was an action to set aside as fraudulent, a conveyance to the defendant of a farm in New Jersey.

The defendant's counsel moved to dismiss the complaint, on the ground that under section 33 of the Code, the court had jurisdiction of the actions enumerated in sections 123 and 124, "when the cause of action shall have arisen, or the subject of the action shall be situated within those cities respectively;" that the words "cause of action," refer to personal actions only, but not to those of this character, and the "subject of the action" being land in another state, the suit would not lie.

The COURT, after consideration, granted the motion and dismissed the complaint.

G. W. STEVENS, attorney for the plaintiff.
G. W. COTTERILL, attorney for the defendant.

Law agt. The Mayor, &c., of New York.

SUPREME COURT.

GEORGE LAW agt. THE MAYOR, &c., of the City of New York.

Where the common council of the city of New York authorizes the comptroller of the city to settle a claim in suit arising on contract, and the comptroller through the corporation counsel, settles the suit accordingly, and the referee to whom the action was referred, makes his report in accordance with such settlement, upon which judgment is entered in favor of the plaintiff against the corporation; there being no irregularity, fraud, collusion or mistake of any facts shown, the corporation cannot set aside the judgment and open the cause for trial at the circuit, merely because a new corporation counsel believes a better result could be obtained by continuing the litigation to the end, in the courts.

New York General Term.

Argued Juue 19, 1866. Decided December 15, 1866.

Before BARNARD, P. J., CLERKE and SUTHERLAND, Justices. A CONTRACT was made on the 25th of November, 1852, between the corporation of New York, by John T. Dodge, street commissioner, and Henry Conklin, for the work of the Battery enlargement, under a resolution of the common council passed in one year by one board, and in the other year by the other board. Appropriations were from time to time made by the common council in 1853, 1854 and 1855, for payments on the work, which were sanctioned by the tax laws of 1853, chapter 232, of 1854, chapter 263, and of 1855, chapter 141, under which payments to the amount of $46,000 were made during those years. In January, 1858, the work was stopped by the mayor, &c., by ordinance.

In 1861, April 2, George Law, claiming as assignee of twothirds of the contract, and by virtue of a power (coupled with an interest) as to the other one-third, presented to the comptroller (as required by the act of 1860, chapter 379), his claim of $23,643.35 for work done about the job, and $20,000 damages for breach of the contract.

This not being responded to, he commenced a suit May 1, 1861, and issue was joined in February, 1862. The issues were on motion, and after opposition, by order referred to John B. Haskin, Esq., referee, to hear and determine, on