and two other persons were made defendants, the complaint alleg. ing that the two latter defendants held prior mortgages upon the premises, the amount due upon which was unknown to the plaintiff, and praying for the usual decree of foreclosure and sale, and that the mortgages of the plaintiffs and of the said defendants, respectively, be paid and satisfied out of the avails of the sale acaccording to their respective priorities:

Held, that the mortgagor could not in this action serve an answer raising an issue between himself and one of his co-defendants as to the validity of and amount due upon the prior mortgage alleged to be held by such co-defendant. (Lansing agt. Hadsall, 26 Hun, 612.)

5. Under section 1018 of the Code of Civil Procedure a referee has, upon the trial of an issue of fact, the same power to allow amendments to the summons and pieadings as has the court. (Knapp agt. Fowler, 26 Hun, 200.)

6. The court at special term has no power, upon a motion, to review the action of a referee in granting an amendment to the pleadings, even though he may have directed the motion to be made and may have made the allowance of the amendment subject to the approval and ratification of the court. (Id.)

7. A judgment of a justice's court cannot be reversed on an appeal taken under section 353 of the Code of Civil Procedure for an error in the admission of evidence not specified in the notice of appeal. (Saunders agt. Townsend,

26 Iun, 308.)

8. In a case tried by a jury it is not necessary that an order of reversal by the general term should state whether the reversal was on questions of law or fact, and where it

9.

does not state that the reversal was upon questions of fact, if the facts were properly before the court for review, it is not to be presumed that the reversal was upon questions of law only. (Goodwin ̄agt. Conklin, 85 N. Y., 21.)

The rule applicable to cases tried by a referee, or by the court without a jury (Code of Civil Procedure, sec. 1338), does not apply to cases tried by jury. (Id.)

10. Where the facts are before the general term, and it reverses the judgment, but instead of granting a new trial directs judgment absolute, its decision is reviewable here. (Id.)

11. In such case, however, if it is determined by this court that the general term went too far in directing final judgment, it is not necessary to wholly reverse, and to restore the original judgment, but the decision of the general term may be modified so as to award a new trial. (Id.)

12. 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.)

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

14. A return to this court on appeal from an order should consist of certified copies of the notice of appeal, the order appealed from, and the papers on which the court below acted, and the case made by the appellant should consist of a copy of this return. A case is defective that contains no certificate or copy of any certificate of the court below. (In re Barley, 85 N. Y., 629.)

15. Where a case instead of a certificate contains this statement," return certified as required by law:"

Held, that this could not be ac cepted as a substitute. (Id.)

16. Where, upon appeal to this court from an order, 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. (Hobart agt. Hobart, 85 N. Y., 637.)

17. It seems, that the provisions 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.) (Id.)

18. Judgment was entered herein on a verdict for plaintiff, after the making and pending the decision of a motion on the minutes of the court to set aside the verdict on the ground that there was no sufficient evidence to sustain it, and that the damages were excessive. The court granted the motion; granted a new trial and directed that the judgment should be vacated on the sole ground of excessive damages. On appeal to the general term, a case was made and settled, the order was reversed, and a further judgment for costs was rendered:

Held, that the latter judgment was not appealable; that the only questions passed upon by the general term were those raised on the motion, and these were not reviewable here. (Dodge agt. Mann, 85 N. Y., 643.)

19. It seems, that if defendant desired to bring his exceptions before the general term for review, he should have moved for a new trial on exceptions, or appealed from the judgment on the verdict. (Id.)

20. In an action to foreclose a mort gage, commenced prior to the enactment of the Code of Civil Procedure, a deficiency judgment was demanded against defendant B., to whom M., the mortgagor, had conveyed, subsequent to the mortgage, by deed, containing a clause stating that B. assumed and agreed to pay the mortgage. M. and B. both appeared and answered; the latter alleged in her answer that she did not assume or agree to pay the mortgage; that M., to whom she intrusted the transfer, without her knowledge or consent, fraudulently caused said clause to be inserted; that she accepted the deed, believing it had been drawn according to the prior agreement, and that she did not know that it contained the clause. She demanded that the deed be reformed by striking out the clause and the complaint dismissed as to her. Upon the trial, B. offered to prove the facts alleged in her answer; this proof was objected to and excluded:

Held, error; that as the action was in equity, and M. a party, a complete determination of every question arising under said answer, in which plaintiff was interested, could have been had; that if it desired to have M. bound by the determination of the issues presented by said answer, it could have given him notice of B.'s defense, and offered him the future management of the suit (Code of Procedure, secs. 122, 274; Code of Civil Procedure, secs. 452, 1204). (Albany City Sugs. Inst. agt. Burdick, 87 N. Y., 40.)

21. The provision of the Code of Civil Procedure (sec. 521), 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

that it should be set aside before bringing an action for acts done under it. (Day agt. Bach, 87 N. Y., 56.)

2. It seems, also, that if the process is irregular only, not absolutely void, no action lies until it is set aside; but when set aside, it ceases to be a protection for acts done under it, while in force. (Id.)

3. Where, however, the process was regularly issued in a case where the court had jurisdiction, the party may justify what was done under it, although it is afterward set aside for error in the judgment or proceeding. (Id.)

4. In such case, the party against whom the process was issued is entitled to restitution of any property or money received by virtue of it. (Id.)

RAILROADS.

1. The neglect or refusal of a railroad corporation to receive and 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 a writ of mandamus. (The People agt. N. Y., L. E. and W. and N. Y. C. and H. R. R. R. Co., ante, 291.)

2. 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.) 3. Where the commissioners went to the premises together and viewed the premises, the owner being present, one of the commissioners stating to him the legal rule of damages in such cases,

4.

and he stating to the commissioners the items of damage claimed by him:

Held, that the circumstance that during a part of the time while the commissioners were on the premises one of them was separated from the others is of nc moment, provided that each viewed the premises sufficiently to enable him to judge of the amount of the damages, and provided the sum arrived at was the result of their joint deliberations. (Matter of New York, Lackawanna and Western Railway Co., ante, 265.)

Where the land owner expressly waived the right to produce and examine witnesses and consented with the counsel for the railroad company that the commissioners might act upon a view of the premises, which they proceeded to do and made their award. On motion to set aside the award it appeared from the affidavit of the land owner that in declining to produce witnesses he acted upon a misapprehension as to his legal rights, founded upon erroneous information derived by him from another person, to the effect that he would be entitled to a rehearing, as a matter of right, before other commissioners, and that on such rehearing he could examine witnesses:

Held, that the land owner is entitled to the relief asked for by him on the ground that he was misled to his prejudice by erroneous information as to his legal rights. (İd.)

5. It is not necessary that any blame be imputed to the commissioners or the railroad company or anyone acting for the company to entitle the land owner to relief. (Id.)

RECEIVER.

1. Where, in pursuance of an order appointing a receiver in proceed

ings supplementary to execution against a widow who was entitled to dower, but which had not been assigned to her, she conveyed her dower interest to the receiver, he having also complied with the conditions prescribed by the Code (sec. 2468), for the vesting of the property of the judgment debtor in him:

Held, that he was entitled to maintain an action to admeasure the dower; also that the action was properly brought by him in his own name as receiver. (Puyne agt. Becker, 87 N. Y, 153.)

2. Also held, that plaintiff's position did not enable him to bring an action for partition. (Id.)

See CREDITOR'S ACTION.

Herring agt. New York, Lake Erie and Western Railroad Company, ante, 497.)

REFEREE.

1. Under section 1018 of the Code of Civil Procedure a referee has, upon the trial of an issue of fact, the same power to allow amendments to the summons and pleadings as has the court. (Knapp agt. Fowler, 26 Hun, 200)

2. The court at special term has no power, upon a motion, to review the action of a referee in granting ar amendment to the pleadings, even though he may have directed the motion to be made and may have made the allowance of the amendment subject to the approval and ratification of the court. (Id.)

REFEREE'S FEES.

1. Where the doubtful responsibility of the client is discussed, and the personal obligation of the attorney taken for referee's fees, he is liable for their payment, and payment of them must be absolute and

unconditional. (Dinkle agt. Wehle, ante, 298.)

2. A stipulation exacted from the referee to repay them to the attorney in case of the reversal of an order for commitment of his client for contempt of court in refusing to pay the fees, and their payment, so that the client should be discharged from imprisonment; the reversal of the order and the settlement of an action brought by the attorney against the referee upon the stipulation to recover back the fees, is not payment of the referee's fees, and there is no accord and satisfaction between the parties. (Id.)

REFERENCE.

1. Where an order of reference to a single referee has been affirmed by the general term, and also by the court of appeals, and the trial of the case has devolved upon the referee thus appointed, the court has no power subsequently to appoint two additional referees, unless upon a new state of facts (Per VAN BRUNT, J., reversing, S. C., 62 How., 163, 165). (Devlin agt. The Mayor, ante, 206.)

2. DALY, C. J., dissenting, held, that the order appointing two more referees should be affirmed; that the fact that the single referee to whom the cause had been referred had been sworn, and the case opened before him does not present any difficulty. (Id.)

3. A motion to set aside the report of a referee, appointed under the statute providing for the hearing and determining of claims against the estate of a deceased party, is not too late though made after the entry of judgment upon such report. (Matter of Schreyer agt. Holborrow, ante, 228.)