stated constituting a cause of action for damages, for abuse of legal process, which action may be sustained without proof of a want of probable cause. (Hazard agt. Harding, ante, 327.)

4. The plaintiff, as assignee of judgments against A., brought suit to set aside two chattel mortgages made by A., upon his personal property to two persons, who were joined with him as defendants, which liens and a general assignment to another defendant, were claimed to be fraudulent. Another defendant, Close, is averred to hold a valid chattel mortgage, the enforced foreclosure of which is asked:

Held, that the cause of action for fraud, and that against Close, are improperly joined, as not affecting all the parties to the action. (Higgins agt. Crichton, ante, 354.)

5. Where a complaint demands equitable relief and a defendant demurs to it the judgment granted could not be more favorable than that demanded even though a cause of action at law is stated in the complaint. (Alexander agt. Katte, ante, 262.)

7.

8.

1.

6. 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 complaint alleged that at an election held in a city 2. 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 People agt. Nolan, ante, 271.)

3.

CONSTITUTIONAL LAW.

The courts are at liberty to declare a statute unconstitutional only when it conflicts with some express provision or limitation of the constitution. They ought not to, nor can they declare a law invalid because in their judgment it conflicts with the spirit supposed to pervade the constitution but not expressed in words. When a statute is challenged as in conflict with the fundamental law, a clear and substantial conflict must be found to exist to justify its condemnation. (Matter of Bayard, ante, 73.)

The law of 1880 (Laws of 1880, chap. 456, sec. 29), giving the recorder of the city of Cohoes power to punish the crime of petit larceny more severely than in other parts of the state, is constitutional." (Id.)

The punishment of petit larceny in the city of Cohoes by imprisonment for one year, when outside of that city it is punishable but by six months' imprisonment, is not a cruel and unusual punishment. so that the law authorizing it is invalid (Reversing S. C., 61 How., 294). (Id.)

ing creditors should be considered as quasi parties (and they are certainly nothing more), it would not be a case in which parties should be paid even their costs out of the fund, far less their counsel fees. They were not needed as parties and there is no good reason why their costs and counsel fees should be paid out of the fund. (ld.)

6. Where, in an action in which a counter-claim was interposed, the complaint was dismissed, and no recovery was had upon the counter-claim, the plaintiff should not be awarded costs upon the dismissal of the counter-claim and have such costs offset against the costs that follow the dismissal of the complaint; the final judgment, and not the result of the contest over some of the questions in controversy determining the right to costs. (Thayer agt. Holland, ante, 179.)

7. When by the order of an appellate court judgment is reversed and a new trial ordered, with costs to abide the event, and without other limitation, the final prevailing party is entitled to the costs of the appeal. (Sanders agt. Townshend, ante, 343.)

8. The New York common pleas, although a county court for certain purposes, is not the county court referred to in section 3268 of the Code of Civil Procedure. (Bostwick agt. Fifield, ante, 377.)

9. In an action brought in this court a plaintiff who resides in Brooklyn cannot be required by defendant to file security for costs. (Id.)

rate attorneys and a verdict was rendered in favor of both defendants. On motion to be allowed separate bills of costs, and for an extra allowance:

Held, that under the Code both defendants are entitled to costs, and such claim can only be disallowed upon the ground that the appearance by separate attorneys was in bad faith and for the sole purpose of incurring costs.

Held, further, that the burthen of proving this rests upon the plaintiffs, and the facts do not justify such a conclusion. The attorneys have no connection in business, their offices are separate, the undertakings upon the arrest were separate, and as one of the defendants may have been guilty of fraud and the other not, they were justified in making a separate defense by different attorneys, and having done so and succeeded they are both entitled to costs.

Held, also, that the case was " a difficult and extraordinary one," and under section 3253 an extra allowance should be made. (Lane agt. Van Orden, ante, 237.)

11. Upon an appeal to the genera term from a judgment recovered in the Albany county court, by one Perry against the defendant, an order was entered on September 24, 1880, reversing the judgment, with costs, and on October 11, 1880, the costs were taxed at $273.58. Between the entry of the said order of reversal and the taxation of the costs, Perry assigned his claim, on which the aforesaid action was brought, to the plaintiff, who thereupon, and before the taxation of the costs, commenced this action thereon in the supreme court. Both Perry and the plaintiff were insolvent.

Held, that an order staying the prosecution of this action until the payment of the costs of the former action, was properly granted. (Griffin agt. Round Lake Camp Meeting Association, 26 Hun, 814.)

12. In proceedings to acquire title to land instituted under the general railroad act the court may, in its discretion) under section 3240 of the Code of Civil Procedure, award costs to any party at the rates allowed for similar services in an action brought in that court.

Upon the presentation of a petition, presented under the said act, commissioners were appointed without opposition, and thereafter a hearing was had before them, at which witnesses, subpoenaed by the land owners, were sworn and examined as to the value of the land. Upon the confirmation of the report the court allowed the land owners their witness fees and disbursements, but refused to

allow them a trial fee.

Held, that as no issue had been joined, and as no question of fact had been raised or tried, the order of the court was proper and should be affirmed. (Matter of N. Y., L. and W. R. Co., 26 Hun, 592.)

13. The refusal of an executor to refer a disputed claim presented against the estate entitles the claimant under section 41 (2 R S., 90) to costs, as a matter of right, in case he recovers a judgment in an action brought thereon in the supreme court. (Snyder agt. Snyder, 26 Hun, 324)

14. The costs and disbursements of an appeal to the general term, from an order made at a special term, are "costs of a motion" within the meaning of these words as used in section 779 of the Code of Civil Procedure, and a failure to pay them stays all proceedings on the part of the party in defaut. (Phipps agt. Carman, 26 Hun, 518.) 15. Where an order of the general term, granting a new trial, is affirmed on appeal to this court, and judgment absolute directed against the appellant, the sureties upon the undertaking given to perfect the appeal as prescribed by the Codes (Code of Civil Pro

cedure, sec. 1326; Code of Procedure, sec. 334), are only liable for costs of the appeal to this court, not for all the costs in the action. (Burdett agt. Lowe, 85 N. Y., 541.)

16. Where the plaintiff, in an action against a municipal corporation, to recover money, has omitted to present the claim for payment to the chief fiscal officer of the corporation, before the commencement of the action, as prescribed by the Code of Civil Procedure (sec. 3245), as a prerequisite to the allowance of costs to him, it is no answer that such fiscal officer was not authorized to adjust and pay the claim on presentation. (Baine agt. City of Rochester, 85 N. Y., 523.)

17. No certificate of the judge presiding on the trial is required in such a case to defeat plaintiff's claim for costs. (Id.)

18. The provision of said Code (sec. 3248), making such a certificate the only competent evidence before the taxing officer, when any fact appears on trial entitling either party to costs, has no application, as the non-presentation of the claim is not a defense to the action, and is not a fact involved in the trial. (Id.)

19. In such an action, however, where plaintiff recovers over fifty dollars, but is not entitled to costs because of the omission to give notice, defendant is not thereby entitled to costs. The provision of said Code (sec. 3229) entitling defendant to costs, in certain actions specified, unless plaintiff is so entitled, does not apply, as the case is not one of those specified. (Id.)

20. A proceeding to vacate an assess

ment for a local improvement in the city of New York, being a special proceeding, costs are in the discretion of the court, and no costs follow its decision unless

awarded by it. (In re. P. E. Pub. School, 8 N. Y., 396.)

21. It seems, that when granted they should be at the same rate as for similar services in an action (Code of Civil Procedure, sec. 3240). (Id.)

22. In such a proceeding the petitioner succeeded at special term. The general term, on appeal, reversed the special term order, with ten dollars costs to the city. On appeal by the petitioner, this court reversed the order of the general term and affirmed that of special term, "with costs;" on filing the remittitur an order of special term was entered making such judgment the judgment of the supreme court, and directing "that petitioners recover their costs of appeal subsequent to said order.' The petitioner thereupon claimed to tax full costs of appeal to the general term:

Held, untenable; that the general term had not exercised its discretion in favor of petitioner, and if this court had power to award costs in the general term it had not done so; that the order of general term entered on filing remittitur gave no such right, as the special term had no discretion to exercise, its sole duty being to enter the precise order which this court directed, and the order granted, construed in view of this want of power, only entitled the petitioner to such costs as had been legally awarded. (Id.)

23. The amount paid by the successful party for printing case on appeal he is entitled to have taxed as an item of disbursement, in the absence of evidence that the sum charged was fraudulently or collusively exaggerated, or more than the usual charge at his place of residence for such services. (Sal ter agt. U. and B. R. R. R. Co., 86 N. Y., 401.)

24. Upon granting motion to cancel sale and relieve purchaser on par