The People agt. Nolan.

ignorance of the grounds of the plaintiff's procedure, learned counsel will hardly pretend that a court, administering justice according to the forms of law, would be justified in rejecting the application of the defendant upon any such assumption as the plaintiffs' affidavits set up.

Third. It is contended that the plaintiffs have not as yet obtained information of all the facts which they hope to prove upon the trial to establish their claim, but to the extent of the knowledge they possess, they are willing to furnish, and do furnish, particulars, by a bill tendered upon the argument, and will also furnish information of other facts as rapidly as they are ascertained.

There is a practical difficulty in the case growing out of this position, but the rule giving the right to a bill of particulars being conceded, it is not seen how the commencement of an action in advance of knowledge can abrogate it. The defendant is in law entitled to know the particulars of the plaintiffs' claim to guard him against surprise, and if his application to be thus informed can be defeated by his opponents' want of knowledge, the rule of law will be substantially overthrown.

Neither, on the other hand, would it be just to the plaintiffs to require a bill of particulars to be now furnished, which shall be complete and binding in every particular. The defendant is entitled to the order which he asks, but such order should contain a provision giving the plaintiffs a right to move the court for leave to serve other and additional bills upon such terms as to the court hearing such applications may seem just and proper. This provision as to future applications to serve additional bills of particulars is to be inserted because the court cannot now, in advance of an application to amend or extend a bill of particulars, determine the propriety and the terms thereof.

Fourth. Upon the argument of this motion, the plaintiffs' counsel served upon the defendant's attorneys, what they claimed to be a full and sufficient bill of particulars, and therefore it is urged that this motion should be denied.

Acker et al. agt. Hauteman.

A denial of the motion upon that ground, and an adjudication that the bill served upon the motion is sufficient, would be a decision of a question substantially unargued, for the reason that there was no time during the argument for defendant's counsel to examine it and discuss its merits. There can be no objection, however, to direct by the order to be entered, if the plaintiffs so desire, that such bill of particulars, delivered upon the motion, shall be deemed to be their bill of particulars served in compliance with such order. This provision will give to the plaintiffs the benefit of the service made, and will not preclude the defendant from taking such further or other action thereon as he may be advised.

The results of my deliberation upon this motion are, that the application to make the complaint more definite and certain is denied, and the application for a bill of particulars is granted. The order requiring such bill of particulars, however, is to contain the provisions indicated in this opinion. The costs of the motion will abide the event of the action,

SUPREME COURT.

DAVID D. ACKER et al., respondents, agt. JAC B HAUTEMAN, impleaded, &c., appellant.

Action to recover a chattel-Time when court acquires jurisdiction — Arrestirregularity which will not justify the setting aside of the order · Code of Civil Procedure, sections 416, 1693.

When an action is commenced to recover a chattel, the court acquires jurisdiction of the case and has control of all the subsequent proceedings, so that the arrest of a defendant without the service of any summons is not such an irregularity as will justify the setting aside of the service of the order of arrest.

First Department, General Term, April, 1882.

Before DAVIS, Ch. J., BRADY and INGALLS, JJ.

Acker et al. agt. Hauteman.

An action was commenced against the defendants to recover a chattel. Subsequently an order of arrest was obtained, and the defendant Hauteman, was arrested. At the time of the arrest, the sheriff served copies of all the papers excepting the summons. For this omission the defendant Hauteman moved to vacate the arrest, claiming that as to him the court had not acquired jurisdiction. The motion was denied and the defendant appealed.

Geo. W. Gallinger, for appellant.

D. D. Acker, for respondents.

PER CURIAM.—The error of the sheriff in not delivering the summons with the other papers, was not fatal to the jurisdiction of the court. That jurisdiction is preserved by section 1693 of the Code, when read in connection with section 416. The action was brought to recover possession of personal property, and the effect of the neglect of the sheriff to make service of the summons was, that the chattels were replevied before the service of the summons. The seizure,

therefore, must be deemed as equivalent to the granting of a provisional remedy for the purpose of giving jurisdiction to the court and enabling it to control the subsequent proceedings in the action and as equivalent to the commencement of the action for the purpose of determining whether or not the plaintiff had a right to maintain the action or the defendant is liable thereto.

Section 416 provides that from the time of granting a provisional remedy the court acquires jurisdiction of the case and has control of all the subsequent proceedings.

The summons in this case was afterwards served by the sheriff and the defect was thereby cured; it had previously been served on the other defendant.

We see no reason to doubt that the provisions of the sections quoted, uphold the ruling of the court below.

Frank agt. Bush et al.

N. Y. MARINE COURT.

EDWARD P. FRANK agt. WILLIAM H. BUSH et al.

Practice - Demurrer amended by service of an answer-Service of an answer abates a motion for judgment, and an independent motion to strike out the amended pleading should be made- Code of Civil Procedure, section 542.

Demurrer amended by the service of an answer where the defendants served a demurrer, which the plaintiff moved against as frivolous, and the defendants after service of the notice of motion, and the day before that named for the argument thereof, and within the time allowed by law to amend, served an answer by way of an amended pleading. Held, that the motion for judgment abated in consequence of the amendment, and that the plaintiff's only remedy was to make an independent motion to strike out the amended pleading, upon proof that it was interposed for delay. Section 542 of the Code of Civil Procedure construed.

Special Term, May, 1882.

Jeroloman & Arrowsmith, for plaintiff.

M. W. Hart and J. G. Gay, for defendants.

MCADAM, J.-The defendant interposed a demurrer to the complaint, whereupon the plaintiff, without waiting till the defendants' time to amend had expired, moved for judgment upon the demurrer. The day before that named for the argument thereof, the defendants served an answer as an amended pleading. This they had the right to do (Robertson agt. Bennett, 1 Abb. N. C., 476). The defendants having amended within the time allowed by law for that purpose, the answer superseded the demurrer (4 How. Pr. 174; 3 Bosw., 200; 5 Duer, 654; 30 How. Pr., 1). So that there was no demurrer upon the record at the time the motion to strike it out came on for argument, and the notice of motion for judg ment upon it therefore went for naught (Ostrander agt. Con

Yamato Trading Company agt. Brown.

key, 20 Hun, 421). The defendant's right to amend was absolute, subject to the power of the court to strike out for cause shown, and when the demurrer legally disappeared from the record, the motion directed against it in consequence abated. The provision contained in section 542 of the Code of Civil Procedure, in regard to striking out the pleading so amended, means that the plaintiff may, upon proof that the amendment was interposed for delay, make an independent motion to the court for an order striking the amended pleading from the record. If the amended pleading be stricken out, the parties are returned to their former position, and the original pleading is then open to the motion originally made against it. This is the true practice to be pursued in such cascs. Not having been followed in the present instance, the motion to set aside the order entered by the plaintiff striking out the demurrer and ordering judgment for the plaintiff must be set aside, but without costs.

SUPREME COURT.

YAMATO TRADING COMPANY, respondent, agt. WILLIAM P. BROWN, impleaded, &c., appellant.

Examination of party before trial· Order for should not be granted where the object is to show that the party has procured property by means of false and fraudulent representations.—Code of Civil Procedure, sections 837, 890.

An order for the examination of a party before trial as a witness should not be granted, where the entire object of the examination sought is to show by the party that he has procured property by means of false and fraudulent representations.

Such an order is unauthorized, and, if made, will be reversed.

First Department, General Term, May, 1882.

Before BRADY, P. J., and DANIELS, J