Purchase agt. Jackson.

The other objections taken to the validity of the law are, in my opinion, untenable.

My conclusion is, that the judgment at special term is erroneous, and should be reversed.

NEW-YORK COMMON PLEAS.

PURCHASE agt. JACKSON.

An examination of ordinary questions of law, where the decisions throughout of three tribunals are uniform, ought to be sufficient, except in a case involving great interests, or settling a principle of law on which numerous other actions are to be decided.

So held, on a motion under the amended (1857) section eleven of the Code, for an appeal to the court of appeals, from a judgment of this court, in an action originating in the marine court.

General Term, June, 1857.

MOTION for an order allowing an appeal to the court of appeals in an action originally commenced in the marine court of the city of New-York.

JOHN W. EDMONDS & THOS. STEVENSON, for plaintiff.
OLCOTT & BRIGGS, for defendant.

INGRAHAM, First Judge. The defendant moves for an order of the general term of this court, allowing an appeal to the court of appeals in this case. The action was originally in the marine court, and judgment was first given for the plaintiff, which judgment was affirmed by the general term, and has been again affirmed in this court. The defendant has had three hearings, and although by the late amendment of the Code power is given to this court to allow another appeal, yet it does not follow that such power should be exercised in all cases, even though questions of law should be involved.

Turner agt. Hillerline and others.

An examination of ordinary questions of law, where the decisions throughout of three tribunals are uniform ought to be sufficient, except in a case involving great interests, or settling a principle of law on which numerous other actions are to be decided. No such exception exists in this case, and we see no reason for granting this motion. We are the more strengthened in these views, because we entertain no doubt of the propriety of the judgment in the court below, or its affirmance by this court.

The motion must be denied, but, as the question is new, without costs.

SUPREME COURT.

TURNER agt. HILLERLINE, PACKARD and FORD.

The plaintiff was allowed an amendment of the pleadings in the action by striking out the name of one of the defendants, after the cause had been brought to a hearing before the referee, and testimony taken.

The hearing was to continue before the same referee, (as no new party had been substituted,) and all the testimony taken applicable to the new state of the pleadings to be deemed evidence in the action. Privilege given defendant to amend his answer-plaintiff having privilege to reply.

The terms on which the amendment was allowed was, the payment by the plaintiff to defendant of $10 costs of opposing the motion, and $5 for proceedings before notice of trial; in case the defendant amended his answer, he was entitled to be indemnified for the additional expense to which he would be subjected by the amendment.

Schenectady Special Term, May, 1856.

MOTION to amend the pleadings by striking out the name of the defendant Ford as a party.

This was an action by plaintiff, on a demand of plaintiff and one Leavitt, for work, labor, &c., against the three defendants, who conducted business under the name of Joseph Hillerline & Co. The complaint alleged the assignment, by Leavitt, of his interest in the demand to plaintiff. The summons was

Turner agt. Hillerline and others.

served on Hillerline alone. Hillerline put in an answer alleging that he and Packard were the only members of J. Hillerline & Co., and denying the indebtedness of defendants to the plaintiff; and setting up a set-off of a demand of Hillerline & Co. against the plaintiff and Leavitt. The cause was referred, and on the trial it appeared that Ford was not a member of the firm of Hillerline & Co. The hearing was adjourned by the referee to enable the plaintiff to move to strike out the name of Ford as a party to the action.

CLARK B. COCHRANE, for plaintiff.

S. C. JOHNSON, for defendants.

PAIGE, Justice. The 173d section of the Code expressly allows an amendment of the pleadings in an action by striking out the name of any party.

In Mayhew agt. Robinson, (10 How. Pr. R. 162-167,) which was an action for goods sold, the supreme court of the 8th district, at a general term, on an appeal from the decision of the referee against the defendants, allowed an amendment of the pleadings, by adding the name of another party as a defendant -it appearing on the trial before the referee that the goods were sold to the original defendant jointly with the person who was made an additional party, the terms imposed were the payment of the costs of the trial and of the appeal.

In Bemis agt. Bronson, (1 Code Rep. 27,) EDMONDS, Justice, under the Code of 1848, in an action of assumpsit, after the plaintiff had closed his case, and a motion for a nonsuit had been made, gave the plaintiffs leave to amend by striking out the name of one of the defendants.

In this case, the action is still pending before the referee; and it appears by the evidence introduced that Ford was not a party to the contract on which the action was brought. It is a proper case, therefore, for the exercise of the power of amendment, under § 173 of the Code. An order may be entered striking out the name of the defendant Ford from the pleadings, wherever it occurs therein.

The People ex rel. Wood agt. Draper and others.

As no new party is made to the action by this amendment, the order of reference should not be vacated by the amendment. The hearing must be continued before the same referee, and all the testimony already taken, applicable to the new state of the pleadings, must be deemed evidence in the action. Hillerline may amend his answer in such manner as he shall be advised is proper; and, if necessary, the plaintiff may reply thereto.

It is not proper, on this motion, to consider whether the assignment of Leavitt is sufficient to transfer his interest in the demand against Hillerline & Packard.

The terms on which the amendment asked for is allowed must be the payment, by the plaintiff to Hillerline, of $10 costs of opposing this motion, and also $5 for proceedings before notice of trial, in case the defendant Hillerline amends his answer. (3 How. Pr. R. 296.) Hillerline is entitled to be indemnified for the additional expense to which he will be subjected by the amendment.

SUPREME COURT.

THE PEOPLE ex rel. FERNANDO WOOD agt. SIMEON DRAPER and others.

In an action of quo warranto to determine the right to a public office, an injunction, restraining generally the functions of the office, is not authorized by law.

Although, since the Code went into effect, actions of this kind have been, and by law now are classed among, and denominated civil remedies, so that the rule, that equity will not interfere in criminal matters, is no longer an obstacle to equitable relief in an action of this kind, yet an injunction restraining generally the functions of a public office in its exercise by an incumbent of the office, is not consistent with the interests of the state, or with the general principles which must govern as to an office emanating from the sovereign power. To restrain the action of the incumbent is to restrain all the functions of the office, for he, being in, even if wrongfully, must act. or no one can.

The People ex rel. Wood agt. Draper and others.

It may very well be, that a man, being a public officer, may be restrained in a proper case from doing a particular act of an official character, but it by no means follows that a public office may be restrained from dispensing its benefits to the public.

New-York Special Term, May, 1857.

THE Complaint of the plaintiffs in this case, by the attorneygeneral, states that at the time of the passage of a pretended act of the legislature of this state, entitled "An Act to Establish a Metropolitan Police District, and to Provide for the Government thereof," on the 15th of April, 1857, the office of police commissioner was a public civil office in the city of NewYork, and that the office of head of said police department was and is a public civil office, belonging to the office of mayor of said city, &c.; and that after that time, on the 23d of April, 1857, the defendants, as a pretended board of police, under said pretended act, without legal warrant, intruded into and usurped the office of police commissioner and head of the police department, and from thenceforth exercised said office of police commissioner and head of police department, and also all the powers which, before the passage of said pretended act, were conferred upon said board of commissioners of police and upon the mayor, &c., &c., as the head of police, and which relate to or are connected with the police government, appointments and discipline within said city, &c.; and still do usurp and exercise said offices, and all the power and authority, &c. &c., in violation of the constitution and laws of said state; and plaintiffs pray that defendants may show by what warrant they claim to hold and use said offices; and they demand judgment against defendants, that each of them be ousted from the power and authority aforesaid; and that said relator be declared entitled to hold and exercise all the power and rights of said police commissioner, and member of said board of police commissioners, &c., &c., as he of right ought to do under the laws of the state existing and in force at the time first above mentioned. There is also before the court an affidavit of the relator to the effect that he is actually mayor of the city, and that by virtue of various acts he is, and has been head and chief executive of