4. Where in an action to foreclose a mortgage, the allegation of the complaint is that the plaintiff is, by several assignments, which shall more fully and at large appear, reference being had thereto, now the lawful holder and owner of the bond and mortgage above mentioned and described, and is justly entitled to be paid the said principal sum above mentioned, together with the interest on that principal sum from the time above mentioned:

Held, that the complaint is defective; it does not show by whom the assignments were obtained, nor is the defendant apprised of the facts upon which the plaintiff relies to show that he is the owner and holder of the instrument in question. (Id.)

5. A demurrer to a complaint will be overruled when the alleged defect is, at the most, clearly a technical one or a clerical error. (McCarron agt. Cahill, ante, 305.) See REPLEVIN.

Gardner agt. Scovill, ante, 272.

CONSTABLE.

1. When a clear legal duty devolves upon an officer or upon a board of officers, which he or it refuses to discharge, a mandamus will lie to compel the performance of that which the law requires to be done. (The People ex rel. Millspaugh agt. The Town Auditors of Shawangunk, ante, 224.)

2. Although the rule of law is that generally the courts will not interfere by mandamus, when a party has an adequate remedy by action, it does not apply to a case in which when an officer refuses to discharge his duty by an appeal to some other officer the desired relief may be obtained, but to one in which a court is asked to interfere by mandamus when the party

has a complete remedy by action. (Pa.)

3. The relator presented to the board of town auditors a bill for services as one of the constables of such town, which such board refused to consider or to allow in whole or in part. The bill was made out in detail and verified substantially as prescribed in section 70 of 1 Revised Statutes (6th ed.), page 845. It is objected that the bill was not properly verified because the verification did not conform to section 2 of chapter 820 of Laws of 1869 :

Held, first. That the section referred to only applies to a bill in which the officer claims "the increase or additional travel fees provided for in this act," that is to say, those which said act allows. If the section referred to was in force it would justify the board in rejecting any charge for "additional travel fees," but it would not justify the refusal to consider the bill and to audit so much of it as was proper to be audited.

Second. That section is no longer in force, and as the relators did not apply for any allowance or audit under the act of 1869, the provision in such act relating to proof of services claimed under it is not now applicable. (Id.)

4. Where, at the annual town meeting of 1849, the electors of the town determined that four constables should be elected that year, and in 1850 it was again "Resolved. That there shall be four constables elected." No resolution having been since passed on the subject:

Held, that the resolution could only be operative for one year; and as by 1 Revised Statutes (6th ed.), 823, section S, the general number of constables of a town is five, and at the town meeting held in 1884 the electors having chosen only four constables, the three justices of the peace properly appointed the relator and he

became a legal officer of the town. (Id.)

CONTEMPT.

1. Upon a motion to punish the defendant, the mayor of the city of New York, for contempt in disobeying an order of injunction restraining him from appointing to, or nominating for, the office of commissioner of public works, or the office of counsel to the corporation, any person until the further order of this court. After adopting the conclusions reached by judge TRUAX on the dissolution of this injunction (see ante, 205):

Held, first, that the decision of judge TRUAX is no bar to the present application. During the existence of the injunction the defendant was bound to obey it, unless it was not merely voidable but absolutely void, for the reason that it was made without any jurisdiction whatever.

Second. A party will be in contempt for breach of an injunction, if the officer allowing it had jurisdiction, notwithstanding that it was erroneously granted, and for an insufficient cause.

Third. A judge of the court of common pleas is a county judge within the meaning of section 606 of the Code of Civil Procedure, and under section 772 an order may be granted by a judge of the court out of court; it may be made by any justice of the supreme court, or by any judge of the superior court in the county wherein his court is located, or by the county judge of the county where the action is triable, or in which the attorney for the applicapt resides.

Fourth. Section 1809 of the Code of Civil Procedure does not apply to the corporation of the city of New York, nor to any officer thereof.

Fifth. While in a case falling within section 603 of the Code of Civil Procedure, which applies

void.

Sixth. While the judge had the power to vacate the order of injunction for the reason that the proper practice had not been observed by the plaintiffs in the procurement of it, the judge was not without jurisdiction in granting it.

Seventh. In every aspect of this case the judge had sufficient jurisdiction to grant an order of injunction in it, and consequently the injunction he granted was valid in law as long as it remained in force and the defendant had no right to disobey it.

Eighth. The defendant failed to establish any excuse of which the law can take cognizance, and is guilty of a willful disobedience to the lawful mandate of this court in deliberately violating the order of injunction served upon him, and is guilty of a criminal contempt of this court.

Ninth. Because the defendant acted by advice of counsel is not a legal reason why he should not be punished, but is only an extenuating circumstance to be considered in meting out punishment. (Roosevelt agt. Edson, ante, 231.)

him to a verdict under chapter 510 of the Laws of 1875. (Id.)

8. The by-laws of a corporation containing restrictions and limitations upon powers of the officers are competent evidence as to the authority of the officers. (De Bost agt. Albert Palmer Co., ante, 501.)

9. Persons dealing with a corporation are required to take notice of the limitations imposed in the by-laws upon the authority of an officer or agent (Citing Adriance agt. Rome, 52 Barb., 399; Dabney agt. Stephen, 10 Abb., 39; Alexander agt. Cauldwell, 83 N. Y., 480; disapproving Marowitz on Corporations, sec. 64). (Id.)

10. A refusal of the court to pass upon a question of law requested by a counsel to be charged is an error for which the judgment should be reversed. (Id.)

11. This is so even though the requests be unreasonable in number. (Id.)

COSTS.

1. Mere presence in the state during business hours does not constitute residence, so as to relieve an attorney from his liability for costs, under section 3278 of the Code of Civil Procedure. (Krom agt. Kursheedt, ante, 38.)

2. It is no answer under this section that the attorney commenced the action in good faith and in the belief that the plaintiff and his family were domiciled in New York. (Id.)

3. Nor does the omission of the defendant to demand security for costs during the pendency of the action affect the attorney's liability. (Id.)

4. The stay of proceedings for the non-payment of costs, provided for in section 779 of the Code of

Civil Procedure, does not operate to stay proceedings until default in payment; and such default does not exist until the expiration of ten days from the service of the order, or the time fixed in the order. (Pettibone agt. Drakeford, ante, 141.)

5. Where an official assignee of a debtor sues upon a cause of action arising "before the assignment," he may be required by the defendant as of right to give security for costs. (Welch agt. Gaffney, ante, 146.)

6.

Where an action is brought in the city court of New York, and the plaintiff fails to recover over fifty dollars by reason of the allowance of a counter-claim pleaded and growing out of the same transaction alleged in the complaint, the defendant is entitled to costs. (Gregory agt. McArdle et al., ante, 187.)

7. Upon a motion for a new trial, made at special term upon a case, the appellant is entitled to costs, twenty dollars before argument, and forty dollars for argument where an appeal is taken from an order denying said motion, as well as from the judgment entered in the action under subdivision 3 of section 3251 of the Code of Civil Procedure. Subdivision 2 of section 3239 does not prevent the allowance of such costs. (Pilgrim agt. Donnelly, ante, 281.)

cluded in the fine · Code of Civil Procedure, sec. 2284. (See Brett agt. Brett, 33 Hun, 547.)

10. Construction of a will- costs of the action upon what funds they should be charged. (See Cook agt. Munn, 33 Hun, 25.)

12. The plaintiff is entitled thereto,

in an action for a violation of chapter 237 of 1878, although the recovery is less than fifty dollarsCode of Civil Procedure, sec. 3250. (Furman agt. Cunningham, 34 Hun, 606.)

13. When to be allowed, as of course, to a successful appellant, on appeal from a judgment of dispossession in summary proceedingsCode of Civil Procedure, secs. 2260, 3066, 8240. (Harrison agt. Swart, 34 Hun, 259.)

14. An application for an order requiring the receiver of an insolvent bank to pay over a trust fund in its hands, is not a motion as defined by the Code of Civil Procedure (sec. 768), but a special proceeding "for the enforcement or protection of a right" (sec. 3334) in which costs may be awarded in the discretion of the court as in an action. (People agt. City Bank of Rochester, 96 N. Y., 32.)

15. An order of general term reversing, with costs, an order denying a motion to punish a defendant for alleged contempt in violating an injunction, and remitting the matter to the court below to proceed against defendant, is not reviewable here, even so far as it awards costs. (Crosby agt. Stephan, 97 N. Y., 606.)

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16. Where costs are awarded by an order, and depend upon the conclusion reached upon the merits of the motion, and this court has no jurisdiction to review the subjectmatter of the order, it may not review the question as to the propriety of the award of costs. (Id.)

17. The rule that questions of cost in legal actions and proceedings are reviewable here whenever legitimately before the court, unless the allowance was discretionary, does not apply, when, in order to determine whether costs were properly allowed or not, it is necessary to review matters over which the court, has no jurisdiction. (Id.)

18. In any event to entitle a party to review the portion of an order awarding costs, the notice of appeal should state specifically that it is from such part of the order. (Id.)

19. Where plaintiff was unsuccessful on appeal in equity action, and was properly chargeable with costs, and some of the defendants also failed on appeal as against a codefendant, ordered that plaintiff pay costs directly to successful defendant. (See M. and T. Nat. Bank agt. Mayor, &c., 97 N. Y., 355.)