SPRINGER et al., Appellants, v. BOSSELMAN, Respondent. (Supreme Court, Appellate Term. May, 1902.) Action by Isidor Springer and another against Andreas C. Bosselman. Meighan & Necarsulmer, for appellants. J. W. Brainsby, for respondent.

PER CURIAM. The action is to recover $247.50 for goods sold and delivered. The answer is a general denial, with a counterclaim for breach of contract. The action was tried on November 4, 1901, and at the conclusion of the trial it was stipulated by counsel that the briefs might be submitted on or be fore November 11, 1901. Subsequently, but prior to November 11, 1901, the plaintiffs applied ex parte for leave to discontinue on the payment of costs, and afterwards moved, on notice, for an order "discontinuing and dismissing the above-entitled action, upon payment by the plaintiffs to the defendant of the statutory costs to date, but without prejudice to the bringing of a new action." This motion was noticed for November 7th. On November 11, 1901, an order was made denying the motion, and judgment was rendered in favor of the defendant, upon the counterclaim, for $270 damages and costs. From this judgment, and the order denying plaintiffs' motion to discontinue upon payment of costs, the plaintiffs appeal. The plaintiffs had a right to discontinue their action at any time before the cause was finally submitted to the justice for his judgment. Goldberg v. Victor, 26 Misc. Rep. 728, 56 N. Y. Supp. 1044. The interposition of a counterclaim by defendant does not deprive plaintiffs of this right. Bidwell v. Weeks, 2 Hilt. 106; Tubbs v. Hall, 12 Abb. Prac. (N. S.) 237. The application for leave to discontinue on payment of costs was made, as we have seen, previous to November 11, 1901, the day fixed for the filing of the briefs. Where the justice reserves his decision in order to enable the parties to file briefs, the case is not before him for decision, and the time within which he must make his decision does not begin to run until the briefs are filed. Babin v. Ensley, 14 App. Div. 548, 43 N. Y. Supp. 849. Plaintiffs' application having been made before the briefs were due, or had been filed, was well within the rule that an action in the municipal court may be voluntarily discontinued by the plaintiff at any time before the action is finally submitted, upon the payment of costs; and a refusal of the court to permit such a discontinuance is a sufficient ground for the reversal of a judgment for the defendant. Goldberg v. Victor, 26 Misc. Rep. 728, 56 N. Y. Supp. 1044. The judgment and order must be reversed, with costs, from which the costs in the court below should be deducted. Judgment and order reversed, with costs.

SEABURY, J. This action was brought to recover on an undertaking given in the supreme court of New York county in an action in which an order of arrest was obtained. The defendants in this action were the sureties upon the undertaking then given. The order of arrest was afterwards vacated, and the defendant in that action assigned his cause of action growing out of the vacation of the order of arrest in the supreme court to the plaintiff in this action. This action was tried without a jury, and the court rendered judgment in favor of the plaintiff. The only question presented by this appeal is whether this court has jurisdiction of this action. It is true that the jurisdiction of this court is purely statutory, but the language of the statute seems to be broad enough to clothe this court with jurisdiction of an action of this nature. Section 315, subd. 1, of the Code of Civil Procedure gives this court jurisdiction of an action "wherein the complaint demands judgment for a sum of money only." Section 316, subd. 1, provides that "in an action wherein the complaint demands judgment for a sum of money only, the sum for which judgment is rendered in favor of the plaintiff cannot exceed $2,000, exclusive of interest, and costs as taxed, except where it is brought upon a bond or undertaking given in an action or special proceeding in the same court, or before a justice thereof.' This last section limits the jurisdiction of the court in actions for a sum of money only to $2,000, except in certain cases therein specified. The fact that this section excepts this class of actions from the $2,000 limitation indicates that the intention of the legislature was to include in the general provision an action of this character as an action for a sum of money only; otherwise, no reason or necessity for this exception would exist. We think that the fair and reasonable construction to be placed upon these two sections, when read together, is that this court has jurisdiction of actions of this character, provided that the judgment rendered does not exceed $2,000, exclusive of interest and costs as taxed, except when it is brought upon a bond or undertaking given in this court, or before a justice thereof, in which case the limitation as to amount does not apply. The action at bar was brought to recover a sum of money less than $2.000 upon an undertaking, and the fact that the undertaking was originally given in the supreme court does not deprive this court of jurisdiction. The case of Ward & Co. v. American Surety Co., 25 Misc. Rep. 198, 54 N. Y. Supp. 177, upon which the appellants rely, is not appliIn that case the appellate cable to this court. term construed the language of the charter, which was exclusively applicable to the municipal courts. The judgment appealed from is affirmed, with costs. Judgment affirmed, with costs. All concur.

STERN et al. v. MANHATTAN ICE CO. et (Supreme Court, Appellate Division, First

TOWNSEND et al., Respondents, v. Mac GOVERN et al., Appellants. (Supreme Court, Appellate Term. May, 1902.) Action by James R. Townsend and another against Frank MacGovern and another. White & Case, for appellants. E. E. Mercelis, for respondents. PER CURIAM. This is an appeal from the general term of the city court, affirming an order of the special term, denying a motion to vacate an order for the examination before trial of two of the defendants. The order appealed from is one which does not go to the merits of the controversy, but is merely incidental to the suit. The rule is that an order of this kind is one of those matters of practice and procedure which should always be left to the court of original jurisdiction, and its decision should not be reviewed here, unless it appears from its order, and the papers upon which it is based, that the decision was founded upon some ground of law, not involving discretion, or the facts were not such as to bring the matter within the jurisdictional discretion of the court. See Jenkins v. Putnam, 106 N. Y. 272, 12 N. E. 594. It seems to us, after a careful examination of the affidavit upon which the order for the examination is based, that it shows a compliance with the technical requirements of the Code, and states facts sufficient to call for the exercise of the discretion of the court below. So far as any controverted statements of facts are concerned, this court will not weigh the evidence in an appeal from the city court, where there is any evidence to sustain the finding of the court below. The order must be affirmed, with $10 costs and disbursements. Order affirmed, with $10 costs and disbursements.

Action by the county of Ulster against the state of New York. No opinion. Reargument ordered.

In re UNION TRUST CO. OF ALBANY. (Supreme Court, Appellate Division, Third DeIn the matter partment. September 9, 1902.) of the application of the Union Trust Company of Albany, N. Y., to be designated as a Referred to Charles J. Herrick, Esq., to take deposit bank for court funds. No opinion. evidence and report to the court.

In re UTICA & M. V. RY. CO. (Supreme Court, Appellate Division, Fourth Department. October 7, 1902.) In the application of the Utica & Mohawk Valley Railway Company for a determination that its road ought to be constructed and operated through, upon, and along North Ann street in the city of Little Falls.

PER CURIAM. Motion for the appointment of commissioners granted, and order appointing the following named commissioners entered: Henry W. Bentley, Webster R. Chamberlain, and Frank Rice.

VAN SLOOTEN v. TWOMBLY et al. (Supreme Court, Appellate Division, Second Department. October 17, 1902.) Action by Mary liam Van Slooten, deceased, against H. McK. L. Van Slooten, as administratrix, etc., of WilTwombly and James B. Haggin. No opinion. Order reversed on argument, with $10 costs and disbursements, without prejudice to a renewal of the motion at special term on proper papers.

VAY, Plaintiff, v. CITY OF ROCHESTER, Defendant. (Supreme Court, Appellate Division, Fourth Department. October 7, 1902.) Action by Rudolph Vay against the city of Rochester. No opinion. Judgment ordered for the plaintiff for $25, with interest from August 7, 1902, with costs to the plaintiff.

VILLAGE OF BALLSTON SPA, Respondent, v. HUDSON VAL. RY. CO., Appellant. (Supreme Court, Appellate Division, Third Department. September 9, 1902.) Action_by_the village of Ballston Spa against the Hudson Valley Railway Company.

PER CURIAM. Motion denied, without argument that the action is ready to be tried costs. It appearing in open court upon the at the October term, the appeal from this order is put over the term.

VINCENT v. ALDEN. (Supreme Court, Appellate Division, Third Department. September 3, 1902.) Action by Thomas Vincent against John F. Alden. No opinion. Motion denied.

ments, and on condition that no title was to pass until Cohen had made the first payment, and on the same condition indorsed and delivered the bill of lading to Cohen. Cohen paid nothing to plaintiff, who discovered the property in the possession of the defendants, and thereupon brought replevin for its recovery. The defendants set up and proved that they had purchased the property in good faith and without notice, and had paid the value of the property to Cohen, who had delivered the bill of lading, duly indorsed by him. The learned justice, holding that, if Cohen had fraudulently obtained the property and parted with it, he could not give any greater title than he had himself, and that under fraud and deceit no title could be received, gave judgment to the plaintiff. This judgment must be reversed. Upon the evidence, respecting which there is practically no conflict, it appears that no title to the lumber passed from the plaintiff to Cohen. There was an agreement to sell, but there was to be a payment upon delivery. Payment was thus made a condition precedent, and until the condition was performed the title could not be affected. But as the plaintiff enabled Cohen, by the symbolical delivery of the lumber through putting into his hands the title paper, to assume possession and apparent ownership of the lumber, third persons had a right to consider it as Cohen's, and the plaintiff is estopped as against the defendants, purchasing without notice that the condition had not been performed, and in the belief that Cohen's apparent title was the real title and his ownership absolute. Dows v. Kidder, 84 N. Y. 121. Judgment reversed, and new trial ordered, with costs to abide the event.

the trial and all disbursements in the action te date, together with the costs of this appeal, all to be paid within 20 days from the entry of this order; otherwise, order reversed, and judgment directed to be entered on the verdict, with costs and costs of this appeal.

WILLIAMS. Respondent, v. SYRACUSE, L. & B. RY., Appellant. (Supreme Court, Appellate Division, Fourth Department. September 30, 1902.) Action by Jennette C. Williams, an infant, etc., against the Syracuse, Lakeside & Baldwinsville Railway. No opinion. Judgment and order affirmed, with costs.

(Supreme Court, Appellate Division, Fourth WINN, Appellant, v. WINN, Respondent. Richmond Winn against Ellen F. Winn. No Department. October 17, 1902.) Action by opinion. Judgment affirmed, with costs.

In re WISNER. (Supreme Court, Appellate Division, Fourth Department. October 14, 1902.) In the matter of proceedings for the disbarment of Gabriel W. Wisner. No opinion. Order of reference entered, referring the issues to M. H. Riley, Esq., attorney and coun selor at law, residing at Cazenovia, N. Y., and directing the district attorney of Onondaga county and Charles G. Baldwin, Esq., as counsel, to prosecute.

WOOD, Respondent, v. E. & H. T. ANTHONY & CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 17, 1902.) Action by Revilo C. Wood, as guardian ad litem of Harry C. Wood, a minor, against E. & H. T. Anthony & Co. No opinion. Ap peal dismissed on argument, with $10 costs and disbursements, on the ground that the case is not appealable.