1. The supreme court cannot review by mandamus, a matter put in the quasi judicial discretion of the superintendent of the insurance department. (Matter of Hartford Life and Annuity Insurance Co., ante, 54.)

2. The giving of the certificate of authority required by chapter 256 of Laws of 1881, to entitle associations and societies, whether voluntary or incorporated, to do business in this state, is within the discretion of the superintendent of insurance department. (Id.)

3. Where the annual statement required by this act has been presented to the superintendent, and he has examined the same and has determined against the company on the matter of solvency and ability, a mandamus will not be allowed to compel the filing of the same. (Id.)

4. Where a company who has been doing business in this state, but has ceased to do business here, and desires again to renew its business, the matter rests with the superintendent to refuse admission if he thinks best. (Id.)

5. The neglect or refusal of a railroad corporation to receive and

6.

transport freight tendered to it by citizens of this state, is a private wrong for which the citizen is entitled to recover in an action at law such damages as he has sustained. It is not such a public wrong as will authorize the issuing of the writ of mandamus. (People agt. N. Y., L. E. and W. and N. Y. C. and H. R. R. R. Cos., ante, 291.)

The writ of mandamus is a high prerogative writ which will only issue to compel the performance of a duty that is clear and distinct. It will not issue in dubious and doubtful cases. It will only issue where there is no adequate or complete remedy at law. (Id.)

MANHATTAN ELEVATED

RAILROAD.

1. The Manhattan Railway Company took leases from the New York Elevated Railroad Company and the Metropolitan Elevated Railway Company, of the elevated roads upon the Third and Ninth avenues, and upon the Second and Sixth avenues in the city of New York. For such leases it issued its stock to the two landlord companies to the amount of $13,000,000-$6,500,000 to each. By the terms of the lease the Manhattan Company was to operate the roads at its own expense, pay all taxes, the bonded debt of the landlord companies, principal and interest, and a yearly rental of ten per cent upon their capital stock in quarter-yearly payments. The leases run "for the term of 999 years from the date of organization of the Manhattan Company, to wit, November 1, 1875, or so long as it shall continue to exist as a corporation, and be capable of exercising all the functions herein stipulated on its behalf." They also contained a clause to the effect that if any payment was in arrears for ninety days the landlord companies have a right to

resume possession of their property. The leases and agreements are fully set out in the opinion. (New York Elevated Railroad Co. agt. Manhattan Railway Co., ante, 14.)

2. In an action brought by the attorney-general in behalf of the people to dissolve the Manhattan Company for insolvency, receivers had been appointed to hold the property pendente lite. (Id.)

3. After the appointment of such receivers the New York Elevated Railroad Company, one of the landlord corporations, applied to the court on petition to surrender to it its tracks and property then operated and possessed by the re ceivers upon various grounds, which are stated in the opinion:

Held, first. That the appointment of receivers did not terminate the lease. That the clause in such lease providing for its continuance for 999 years, "or so long as it shall continue to exist, and be capable of exercising its functions,' would end the tenancy only when the corporation became legally disabled from fulfilling its contract, and that financial inability to perform would not have that effect; and that the appointment of receivers, under section 1788 of the Code, "to preserve the property," and which is to continue until final judgment is entered," could not in law have the effect to destroy it, which the surrender would accomplish.

Second. That as the court had taken the property to hold "until final judgment is entered" in the action, it could not, when the action was at issue, by an order denying the insolvency of the corporation, without a trial of such action, surrender the property upon the alleged ground of the insolvency of the corporation.

Third. That while the court held possession of the property by temporary receivers, it had no power on motion to ascertain and

VOL. XLIII 74

settle conflicting questions of ownership in such property. This could only be done after a judgment of forfeiture had placed the property in the hands of the court for final distribution, and that until such a judgment was at tained in the attorney general's action, the only remedy of the petitioning company was by action.

Fourth. That an action being then pending in the United States circuit court for the southern district of New York, brought by John C. Watson, a stockholder in the Manhattan Company, in behalf of himself and other stockholders against the landlord companies, to which the receivers in this action were parties, for the purpose of recovering the value of the $13,000,000 of Manhattan stock transferred to them in professed payment of the leases, the court ought not, in advance of the trial of that action, surrender the property upon the ground that a quarter's rent was in arrears for the space of ninety days, as a trial of such action might show that Manhattan was not a debtor to, but a creditor of the petitioning company. The grounds of and questions involved in the Watson suit discussed and stated.

Fifth. That as the motion presented difficult questions of law and contested questions of fact, involving immense interests, in the exercise of a sound discretion the court should refuse to consider and decide such question in that summary manner, and leave the party to pursue its remedy by

action.

Sixth. Motion denied, without prejudice to the right of the petitioner to bring an action against the receivers to recover its property, leave to do which is granted. (Id.)

MARINE COURT (NEW YORK CITY).

1. Under the provisions of the various acts in reference to the marine

court of the city of New York (secs. 33-47, chap. 300, Laws of 1831; chap. 629, Laws of 1872; chap. 479, Laws of 1874; chap. 136, Laws of 1876), and prior to the Code of Civil Procedure (sec. 3169) that court had jurisdiction to issue an attachment for a debt not exceeding $2,000, against a non-resident of the county of New York, although he had a place of business in the city, where he regularly transacted business in person, and was a resident of the state. (Fielding agt. Lucas, 87 N. Y., 197.)

MORTGAGE.

1. An attorney who searches title for a person desiring to borrow money on bond and mortgage, in the absence of an express agreement is not entitled to maintain an action against such borrower for his fees and charges for such services. (Brown agt. Genet, ante, 236)

2. In the absence of such express agreement there is no privity of contract existing. (Id.)

MORTGAGE FORECLOSURE

1. In an action to foreclose a mortgage, where the mortgagor who owned the premises has died, the plaintiff is entitled in case of deficiency upon the foreclosure sale to have it paid out of the mortgagor's personal estate, and to have so much of such deficiency as is caused by the omission of the mortgagor to pay taxes so paid, as a preferred debt. (Mitchell agt. Bowne et al., ante, 1.)

2. In an action to foreclose a mortgage a grantee, subsequent to the filing of the lis pendens, is bound by all the proceedings in the action to the same extent as if he were a

party, and his equity of redemption is cut off by the decree. (Weyh agt. Boylan, ante, 72.)

3. Where A. commenced an action against B. to foreclose a mortgage, and, after lis pendens filed, B. conveyed the premises to C., and thereafter B. died and C. was made his administrator. The action was revived against C. as administrator of B., deceased:

Held, that the action was properly revived, and C.'s equity of redemption cut off by the decree (Affirming S. C., 62 Howo., 397). (Id.)

4. Where an action by plaintiff to foreclose a mortgage for $20,000 upon certain premises, of which defendant was owner, was pending in April, 1878, and she interposed an answer setting up a counter-claim, and then a stipulation was entered into that the answer should be withdrawn, the suit discontinued, the mortgage reduced to $16,000, and possession to be given to plaintiff, who, out of the rents, should pay the interest, taxes and necessary repairs, and credit the balance on the principal; such possession to continue until the principal of the mortgage should be reduced to $15,000 and all taxes paid, defendant giving a collateral bond for the $16,000 and acknowledging that the mortgage was valid and subsisting to the extent of $16,000. In this suit, brought in 1881, to foreclose the mortgage:

Held, that the fair meaning of the stipulation was not that the mortgagee was to continue to hold the premises indefinitely, if within a reasonable time it was found that the premises would not produce enough after paying interest, taxes and necessary repairs, to reduce the principal to $15,000; and that after such reasonable time, and three years would be a reasonable time, the mortgage may be foreclosed. (Union Dime Savings Institution agt. Quinn, ante, 211.)

MOTIONS AND ORDERS.

1. It seems, that in all cases where a motion is addressed to the favor of the court, which it may, in its discretion, grant or refuse, it may impose terms as a condition of granting a motion, and if the moving party cannot or will not comply with the condition, the result is simply a denial of the application, and, so the order is not reviewable here. (In re Waverly Water-Works Co., 85 N. Y., 478.)

2. An order granting an open commission to examine orally unknown and unnamed witnesses involves a substantial right, and so is appealable to the general term. (Jemison agt. Citizens' Savings Bank, 85 N. Y., 546.)

3. A refusal of the general term to entertain such an appeal and pass upon its merits, on the ground that it does not involve a substantial right, is an error of law reviewable in this court. (Id.)

4. Where there is a semblance of a cause of action or defense set up in a pleading, its sufficiency cannot be determined on motion to strike it out as redundant or irrelevant. (Walter agt. Fowler, 85 N. Y., 621.)

5. It seems, that the proper way to test the validity of the pleading is by demurrer or by motion on trial. (Id.)

6. An order of reference in proceedings by certiorari under the act of 1880 (chap. 269, Laws of 1880), to review and correct an alleged illegal, erroneous or unequal assessment, or an order refusing to set aside such an order of reference is not reviewable here; neither order is final, nor does it affect a substantial right, within the meaning of the Code of Civil Procedure, section 190. (People ex rel. U. & D. R. R. Co. agt. Smith, 85 N. Y., 628.)

7. It seems, that the provision of the rule (rule 3) requiring an order on a non-enumerated motion to specify "all the papers used or read on the motion, is not satisfied by a statement that the motion was made upon all the papers and proceedings in the action (Rule 1 Ct. of Appeals). (Hobart agt. Hobart, 85 N. Y., 637.)

8.

An appeal to this court from an order of general term only brings up certified copies of the notice of appeal, the order appealed from and the papers on which the court below acted. (Id.)

9. When a return is procured of papers not before the general term, a motion to correct the return and to require the appellant to make a case as required by the rules is proper. (Id.)

10. Where the court grants an order within its discretion, upon terms, the party asking for it cannot appeal to this court; he need not accept the conditions; if he declines he stands as if the favor was denied, and the power of review ends with the general term. (Brownell agt. Ruckman, 85 N. Y., 648.)

11. An appeal cannot be taken to this court from an order of general term affirming an interlocu tory judgment. An appeal from the judgment may be taken to the general term (Code of Civil Procedure, sec. 1349), but it cannot be reviewed by appeal to this court until after final judgment (Code, sec. 190, sub. 1, sec. 1336). (Walker agt. Spencer, 86 N. Y., 102.)

12. An order of general term denying a motion for a new trial on exceptions, in case of an interlocutory judgment, is reviewable here (Code, sec. 190, subd. 2). (Id.)

13. It seems, that any one who can properly be called a party to an order in an action, and who is aggrieved thereby, may appeal,

although not a party to the action. (Hobart agt. Hobart, 86 N. Y., 636.)

14. The board of supervisors of Livingston county having appointed a committee to make an investigation as to who were the railroad commissioners appointed under the act of 1868 (chap. 442, Laws of 1868), a subpoena signed by F. as "chairman of the committee," was issued, requiring the defendants to appear before said committee at a time and place named, and to bring their commissions or "letters of appointment," and such other documents in their control as might be required in the investigation of the said subject." The subpoena was not obeyed; and upon a petition signed and verified by F., an attachment was issued by a justice of the supreme court, directing the sheriff of said county to arrest the defendants. Upon a hearing on return to the writ, the judge ordered the writ to be" vacated and quashed," which order was entered and served on the attorney who conducted the proceedings, and subsequently, upon his application, said order was vacated and a new one granted, which directed that the attachment be vacated upon condition that no action for false imprisonment on account of the imprisonment should be brought. On appeal the general term reversed that part of the order imposing the condition:

Held, no error; that as no case of contempt was made out, the attachment was absolutely void, and furnished no justification to the party causing it to be executed, who thereupon became liable to the defendants for false imprison- | ment; that this right of action could not be interfered with by the court, and there was, therefore, no authority for imposing such condition. (In re Bradner, 87 N. Y., 171.)

15. The difference in this respect between a void warrant and one

simply irregular pointed out and the authorities illustrating it collated. (Id.)

16. Also held, that the judge had no authority to rescind or recall his first order and change the terms on which it stood; that when the case is one where a condition is proper, it must be imposed, if at all, when the process is vacated. (Id.)

17. In an action upon a promissory note, the answer admitted the making of a note for the amount, and payable at the time of the note set forth in the complaint, but averred that said note, after its delivery to plaintiff, was materially altered by him, without defendant's knowledge or consent, by changing the date thereof from April 1, 1872, to April 1, 1873. This answer was struck out, on motion, as sham and frivolous:

Held, error; that the alteration alleged was material; also, that it was not the province of the court to decide the question of fact raised by the answer, upon mere inspection of the note. (Rogers agt. Vosburgh, 87 N. Y., 228.)

18. Under the Code of Civil Procedure (secs. 531, 822), 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 agt. Clark, 87 N. Y., 272.)

19. The question of the jurisdiction of the court over the subjectmatter of an action, at least in a case not free from doubt, does not properly arise on a motion to set aside the summons; the legality and regularity of the service are the only points to be considered. (A. & P. Tel. Co. agt. B. & O. R. R. Co., 87 N. Y., 355.)

20. C., an attorney, on the employ

ment of a lunatic over whose per