cedure authorizing actions against foreign corporations, and providing that personal service of a summons upon such a corporation may be made by delivering a copy thereof within the state, to the president, secretary or treasurer of the corporation, in order to make such service effectual, it is not needful that the officer served should be here in his official capacity, or engaged in the business of the corporation, or that it should have any property within the state, or that the cause of action should have arisen therein. (Pope et al. agt. Terre Haute Car and Manf. Co., 137.)

11. Section 435- A substituted service of a summons under this section is not a sufficient service under Code of Civil Procedure, section 638, relating to attachments. (See Bogart agt. Swezey, 26 Hun, 463.)

12. Section 439-The absence of any proof in an affidavit for an order of publication relating to the subject of diligence in the effort to serve the summons, especially where it appears the defendants are non-residents of the state and engaged in business at their residences, is not fatal to the jurisdiction of the court so as to invalidate an attachment where the motion to vacate such attachment is made, not by the debtors, but by another creditor. (Smith agt. Mahon, ante, 382.)

13. Sections 446, 447, 452, 1204— This action was brought to recover for services rendered; judgment was rendered against L., the original defendant, by default, which was assigned by D., the original plaintiff, to S., with a covenant that a sum specified was due thereon. The default was afterward opened, and L. answered. After the issues were referred for trial, D. died. Plaintiff, as his administratrix, was, upon motion, sub

stituted, and the prosecution directed to be continued before the referee. The order recited that S. claimed an interest in the cause of action, and gave plaintiff leave to serve a supplemental complaint, making him a party defendant. Such complaint was served, which repeated the allegations of the original complaint; alleged that S. claimed an interest in the sum due, and demanded judgment for the amount, and that it be adjudged that S. has no interest. S. answered, setting up the assignment to him and asking judgment against L. for the amount due, and that plaintiff be adjudged to have no claim. The referee found the facts as to the cause of action substantially as set forth in the complaint, the assignment and ownership thereof by S., and as conclusion of law, that he was entitled to recover of L. the sum claimed, with interest, and directed judgment accordingly:

Held, no error; that the court had the power to adjust the rights, not only between the plaintiff and defendants, but as between the codefendant. (Derham agt. Lee, 87 N. Y., 599.)

14. Section 516- Under the old system of pleading, confession and avoidance meant an admission in a pleading of the truth of the facts as stated in the pleading to which it was an answer, and the allegation of new and related matter of fact which destroyed the legal effect of the facts so admitted; and it was an elementary rule in regard to such pleadings, that they must admit the material facts of the opponent's pleadings, either in terms or effect.

There can be no avoidance without an admission that but for the fact of the avoiding matter the plaintiff would be entitled to judgment against the defendant.

Where, in a quo warranto suit, brought by the relator to test the title of defendant to the office of judge of the superior court, the an

swer alleged the filing by judge SPEIR (the former incumbent) of the certificate required by statute, in the office of the secretary of state, stating his age and the time when his official term would expire, and that no proceedings to impeach or to set aside or to amend the same, were taken while said Speir continued in the possession and enjoyment of said office, and that said certificate and record were and are unimpeached and entitled to full faith and credit; and also alleged the contents of judge SPEIR's letter of resignation, and that no proceedings whatever were thereafter taken by plaintiff, or by any other person, to have the office of said SPEIR declared vacant or have him ousted therefrom. Upon an application to compel the relator to reply to the new matter set up in the answer:

Held, that the new matter which is thus set forth is not such a defense as is contemplated by this section of the Code of Civil Procedure, for the reason that such new matter does not constitute a defense by way of avoidance, and the relator should not be required to reply. (O'Gorman agt. Arnoux, ante, 159.)

15. Section 521-The provision of the Code of Civil Procedure, declaring that when a "judgment may determine the rights of two or more defendants as between themselves, a defendant who requires such a determination must demand it in his answer, and must, at least ten days before the trial, serve a copy of his answer upon the attorney for each of the defendants to be affected by the determination," confers no new power upon the court, but is simply a regulation of practice. (Albany City Savings Institution agt. Burdick, 87 N. Y., 40.)

16. Sections 531, 822- Under these sections of the Code of Civil Procedure the court has power to

strike out the complaint in an action, as a penalty for disobedience of an order requiring plaintiff to serve a bill of particulars. (Gross et al. agt. Clark, 87 N. Y., 272.)

17. Section 535-The provision of this section of the Code of Civil Procedure dispensing with the necessity, in an action for libel, of stating extrinsic facts showing the application of the defamatory matter to the plaintiff, and making a general averment that it was published of and concerning him sufficient, does not aid the plaintiff where the general averment is contradicted and rendered nugatory by other allegations; as where the complaint denies plaintiff's connection with the facts stated in the alleged libelous matter, and he is not therein charged in any manner, either directly or indirectly, with being so connected. (Fleischmann agt. Bennett, 87 N. Y., 231.)

18. 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. This section of the Code of Civil Procedure construed. (Frank agt. Bush et al., ante, 282.)

19. Section 546 — In an action in the nature of a quo warranto, brought on the relation of a person claiming the office against a party who has usurped it, where the com

plaint alleged that at an election held in a city named, the relator, who was a party plaintiff with the people, was, by the greatest number of legal votes cast at such election, duly and legally elected mayor of said city for the term of two years, to commence on the first Tuesday of May, 1882; on motion by the defendant to make the complaint more definite and certain, and for a bill of particulars:

Held, that the complaint in this action is neither indefinite or uncertain.

The title to an office depends upon the votes cast, and when a party avers in the pleading that he has received the greatest number of legal votes given at an election for such office, he has, if he be eligible thereto, averred the existence of the only fact which makes him its incumbent.

Where a state of facts is relied on, it is enough to allege it simply, without setting out the subordinate facts which are the means of producing it or the evidence sustaining the allegation. (The People agt. Nolan, ante, 271.)

20. Section 550, sub. 2- A debtor removing and concealing goods, after making a general assignment, is subject to arrest in an action by his creditor. (See Untermeyer agt. Hutter, 26 Hun, 147.) 21. Sections 550, 551, 770 - Power of a judge out of court, in the first judicial district, to make it it should not purport to be made in court. (See Lachenmeyer agt. Lachenmeyer, 26 Hun, 542.)

22. Section 552- Under this section of the Code of Civil Procedure, in an action upon a judgment of a court of the state, plaintiff is entitled to an order of arrest, where the original cause of action was such as to authorize the arrest of defendant. (Baxter agt. Drake, 85 N. Y., 502.)

23. Sections 635, 636, 3343-Where the affidavits on which an attach

ment is asked, are sufficient to establish the fact that the plaintiff was induced to part with his personal property by the fraud of the defendant, the estate of another is lessened," and is so lessened by "an actionable act."

Where a person has been induced to part with his goods, with the distinct understanding that they were to be placed in stock with other goods of the buyer, and so used, by mixing and compounding them, as to increase the value of the stock and consequently his ability to pay, instead of which the goods were not placed in stock, were not compounded or mixed with others, and were either pledged to raise money from parties, whose names were withheld or secreted:

Held, that, in the absence of any explanation, it must be assumed that the goods were purchased by means of a deliberate false statement made with the intent to defraud.

When it was shown by positive testimony that possession of the goods of the plaintiff was obtained by a false statement, that their whereabouts was concealed, that the names of the persons to whom they were pledged, are withheld, and that the defendant refused to consummate an arrangement and agreement which he made with the plaintiff, which it would have been to his interest to fulfill if he intended to carry on business and pay his debts:

Held, that these facts justify the conclusion that the defendant had either assigned, disposed of or secreted property, or intended so to do, with intent to defraud his creditors.

It is not necessary for the plaintiff to establish that the defendant had disposed of ALL his property. It is enough if he has assigned, disposed of or secreted, or is about to assign, dispose of or secrete property," with the intent to defraud his creditors. (Weiler agt. Schreiber, ante, 491.)

24. Section 636- An affidavit on which an attachment is asked is defective where it does not state, as this section of the Code of Civil Procedure requires, that the plaintiffs are entitled to recover the sum therein alleged to be due to them "over and above all counterclaims;" and it is not sufficient to allege that such sum is due to them over and above all discounts and set-offs." (Lampkin agt. Douglass, ante, 47.)

25. Section 636-The fact that a general assigment is invalid as against creditors does not authorize an attachment to issue under. (See Milliken agt. Dart, 26 Hun, 24.)

26. Sections 636, 637- An averment in an affidavit for an attachment, that "the defendant is indebted to the plaintiff in a sum stated," and that the latter "is justly entitled to recover said sum," is not a compliance with the requirement of the Code of Civil Procedure that plaintiff must show by affidavit that he "is entitled to recover a sum stated therein, over and above all counterclaims known to him;" and when the requirement is only met by the averments stated, the affidavit is insufficient to give the judge jurisdiction to grant the warrant

An application to vacate an attachment, when made to the court at special term, need not be made before the judge who granted the writ; the Code only requires it to be so made when made to a judge. (Ruppert agt. Haug, 87 N. Y., 141.)

27. Section 638- A substituted service of a summons under Code Civil Procedure, section 435, is not sufficient service under this section, relating to attachments. (See Bogart agt. Swezey, 26 Hun, 463.)

28. Section 647-The rights or shares of stock in an association or corporation which this section of the

Code of Civil Procedure provides can be levied upon, are such rights or shares as are within the county or jurisdiction of the court; and a warrant of attachment served upon an officer of a foreign corporation at an office kept by it for the sale of goods in the city of New York, the sheriff giving the company notice that he attached a non-resident defendant's shares of stock in the company, does not constitute a levy upon the property of the defendant when none of the defendant's shares of stock in the corporation are, or have been at any time, in the state of New York. (Plympton agt. Bigelow, ante, 484.)

29. Section 682- Prior to the enactment of the provisions of this section of the Code of Civil Procedure authorizing a person who has acquired a subsequent lien upon property attached, to move to set aside the attachment, a junior attachment creditor was entitled to move to set aside the prior attachment on the ground of a jurisdictional defect; i. e., that the affidavit upon which the attachment was issued was insufficient to give jurisdiction. (Jacobs agt. Hogan, 85 N. Y., 243.)

30. Section 682- The provision of

this section of the Code of Civil Procedure authorizing persons who have acquired subsequent liens upon or interest in attached property to move to set aside the attachment is not limited to those who have acquired liens or interest by proceedings in invitum against the defendant in the attachment; it includes as well one who claims under a voluntary transfer from such defendant. (Trow's Printing, &c., Company, agt. Hart, 85 N. Y., 500.)

31. Section 721-The failure of a referee to be sworn, will not authorize the setting aside of the judgment. (See Katt agt. Germania Fire Ins. Co., 26 Hun, 429.)

32. Sections 770, 550, 551 — Under section 770 of the Code of Civil Procedure providing that, in the first judicial district, "a motion which elsewhere must be made in court may be made to a judge out of court, except for a new trial on the merits," an order of arrest may, in that district, be granted, in one of the classes of actions described in subdivision 4 of section 550 of the Code of Civil Prcsedure, by a judge out of court, although in all the other districts of the state such an order can only be granted by the court. (Lachenmeyer agt. Lachenmeyer, 542.)

When an order is made by a judge out of court, in the first judicial district, under the power conferred upon him by the said section 770, it should not be in form an order of the court, nor should it recite that it was made in court at a special term held before the judge who made it. (Id.)

33. Section 779-Costs of a motionwhat are within meaning of. (See Phipps agt. Carman, 26 Hun, 518.)

34. Section 786- A surety upon the bond, given as required by the act of 1877 (sec. 5, chap. 466, Laws of 1877) by an assignee for the benefit of creditors, brought an action in his own name, not stating it was for the benefit of others, against the assignee alone for an accounting and settlement of the trust; a referee was appointed therein to take proof, with directions to publish a notice to persons having claims to present them with vouchers in pursuance of this section of the Code of Civil Procedure. It was also provided in the order that any creditor might object to a claim presented, and thereupon the referee might take the proofs and report as to its validity. Subsequently, upon petition of creditors, the county judge issued a citation requiring the assignee to appear and show

cause why a settlement of his accounts should not be had:

Held, that an order was improperly granted in the action restraining the proceedings before the county judge; that said section of the Code only authorizes publication of notices when an action is brought for the collective benefit of creditors, and this was not such an action; that no creditor could be bound by the judgment, nor could the purpose of the proceeding be affected in the action; that the creditors were in no sense parties to the action, and the court had no jurisdiction over them. (Schuehle agt. Reiman, 86 N Y., 270.)

35. Section 822- Under this section of the Code of Civil Procedure the court has power to strike out the complaint in an action, as a penalty for disobedience of an order requiring plaintiff to serve a bill of particulars. (Gross et al. agt. Clark, 87 N. Y., 272.)

36. Section 829 - Personal transactions with a deceased person who cannot testify, because interested in the event. (See Hunter agt. Herrick, 26 Hun, 272.)

37. Section 829-A party cannot testify as to a conversation between the deceased and a third person, if he took any part therein. (See Smith agt. Ulman, 26 Hun, 386.)

38. Section 829-Transaction with a deceased person - what is when a party cannot testify. (See Hadsall agt. Scott, 26 Hun, 617.)

39. Section 832- The Code of Civil Procedure was only intended to apply to civil actions and proceedings, except where otherwise provided.

The provision of this section of the Code therefore making a person who has been convicted of a crime or misdemeanor a competent witness prior to the amend