of the park commissioners to institute these proceedings. (Matter of the Opening of the Spuyten Duyvil Park-way, ante, 341.)

3. The legislature has no power, so far as the rights of abutting owners are involved, to authorize the use of the streets of the city of New York for the erection of poles to conduct telegraph and telephone wires, the legislative authority over the streets being limited to a regulation of use for which the streets are held by the city in trust, which is to appropriate and keep them open as public streets; and such erection of telegraph poles is not a street use, and does not come within the terms of the trust A telegraph company cannot therefore invoke the equitable power of the court to restrain interference by abutting owners with its poles in city streets; even though its lines have been erected under legislative sanction. (The Metropolitan Telephone, &c., Co., agt. The Colwell Lead Co., ante, 365.)

4. A teacher in a public school in New York city cannot be removed by the trustees of the ward in which such school is situated, except by the approval in writing of a majority of the inspectors of the district, and the approval on appeal of the board of education; and a transfer involving loss of rank and pay is a removal from the position occupied within the meaning of the statute.

A teacher so attempted to be removed has a remedy by mandamus to compel the principal of the school and the trustees of the ward, respectively, the former to place such teacher's name upon the monthly pay rolls, and the latter to certify said pay rolls to the inspectors of the district. (Matter of Gleese, ante, 372.)

5. The authority to locate a railroad or other structure at a certain place does not limit the location

to the extreme bounds of that place, but carries with it the authority to locate the same within such bounds. On a motion for a peremptory mandamus to the commissioner of public works and the department of parks "commanding them forthwith to issue and deliver to the board of trustees of the New York and Brooklyn bridge, a permit to enter upon Chatham and Centre streets in the city of New York, near the Hall of Records, and take up the pavements of said streets, and lay foundations for and erect thereupon the structure proposed by the said trustees to complete the said bridge, as shown on a map filed by said trustees in the register's office in New York city, on the 10th of April, 1884;" there were two other maps filed, one in 1874 and one in 1877:

Held, first, that the bridge trustees have the legal right to do precisely what they propose to do, as indicated by the map of 1884 (ie., to occupy Chatham and Centre streets), and that they are not precluded by the filing of the maps of 1874 and 1877, from erecting such a structure as is shown on the map or diagram filed in 1884. The maps filed from time to time do not and could not affect the termini.

Second. The location of the New York terminus at the west side of Centre street is authorized.

Third. That the provisions of the act which declare that the said bridge shall not obstruct any street which it shall cross, but that such street shall be spanned by a suitable arch or suspended platform as shall give suitable height for the passage under the same, for all purposes of public travel and transportation," does not refer to the approach to, or the terminus of, the bridge.

Fourth. That as it is the legal right of the trustees to enter upon the performance of the work contemplated by them, it is the pub

husband of a partner in business is not binding upon her. (Id.)

3. The case of Zimmerman agt. Erhard and Dodge (58 How., 11) criticised and not followed.

PENAL CODE.

1. Sections 217, 218, 219-A warrant of commitment reciting a conviction for the crime of assault and battery and a sentence to impris onment thereon is valid. (People agt. Gray, ante, 456.)

PLEADING.

1. Appeal-does not lie from an order sustaining a demurrer. (See Welch agt. Platt, 32 Hun, 194.)

2. When the facts stated in a complaint constitute but a single cause of action. (Id.)

3. Complaint-motion to make it more definite and certain - allegation that the plaintiff has been deceived by false representations made by the officers and agents of a defendant corporation when the names of such officers and agents must be given. (See Schellens agt. Equitable Life Ass. Soc., 32 Hun, 235.)

4. Demurrer to answer - the defendant cannot object on the ground of the insufficiency of any allegation of the complaint admitted by his answer-liability of a trustee of a mining company for a failure to file a report -1848, chapter 40, section 12. (See Morey agt. Ford, 32 Hun, 446.)

5. Partition- the omission of a plaintiff to allege that the parties do not own any other land in common in this state is not a ground of demurrer - General Rule No. 65-effect of a failure to comply with it. (See Pritchard agt. Dratt, 32 Hun, 417.)

9. Evidence-action for slanderfacts tending to mitigate damages cannot be proved unless they are pleaded. (See Blanchard agt. Tulip 32 Hun, 638.)

10. Where two causes of action upon contract are joined in the same action a demurrer to the complaint upon the ground that all of the defendants are not affected by both causes lies at the instance of a defendant who is so affected. The objection is not to the misjoinder of parties, but of causes of action, and so the rule that a defendant against whom a good cause of action is pleaded may not demur because too many are joined does not apply. (Nichols agt. Drew, 94 N. Y., 22.)

11. It is not a ground for a motion to dismiss the complaint in an action for libel that the innuendoes therein are ambiguous or uncertain; any question as to their meaning may be submitted, upon proper requests, to the consideration of the jury. (Bergmann agt. Jones, 94 N. Y., 51.)

12. The complaint in an action to foreclose a mortgage alleged that the mortgage, with accompanying bond, was executed and delivered to the mortgagees named, to secure the payment of $4,000, and that it was duly assigned and transferred

to plaintiff; the answer admitted the execution of the securities as alleged, and the due assignment thereof to the plaintiff, but averred that they were made in pursuance of an usurious agreement with the plaintiff. The trial court found the usurious agreement substantially as alleged, and that the bond and mortgage was never delivered to, or in the possession of the mortgagees: Held, that in the absence of any waiver of the admission in the pleadings, this last finding was error (Code of Civil Procedure, sec 522). (Dunham agt. Cudlipp, 94 N. Y., 129.)

13. The court has no power, on motion of a party defendant, to strike out all the allegations of the complaint referring to himself, simply because they are irrelevant to an alleged cause of action against some other defendant; neither the question as to whether the moving party was properly made a defendant, nor the question as to whether the facts alleged make out a good cause of action as to him, can be raised on such a notion. (Hagerty agt. Andrews, 94 N. Y., 195.)

14. Where a complaint contains an allegation of non-payment as a necessary and material fact to constitute the cause of action, proof of payment is admissible under a general denial in the answer. (Knapp agt. Roche, 94 N. Y., 329.)

PRACTICE.

1. Though under ordinary circumstances the party only who has noticed a cause for trial can move it for that purpose, yet when a cause has been specially set down for the day on which it was moved, and no objection was made to the right of the defendant to move it, and the plaintiff's counsel, after the jury was drawn, simply refused to proceed with the trial, the court was justified in direct

ing a dismissal of the complaint. (Haberstich agt. Fischer, ante, 318.)

2. Certiorari is the proper mode of review of the decision of a magistrate in a proceeding against a disorderly person for abandoning his wife, under section 859 of the Code of Criminal Procedure. (The People ex rel. Sherrer agt. Walsh, ante, 482)

3.

4.

Such a proceeding is not a criminal action as defined in that Code, and the justice before whom it is brought sits as a magistrate and not as a court of special sessions. No appeal is given in such proceedings. (Id.)

On the hearing, the fact that the wife left the husband's domicile is not decisive of the question of abandonment, but the wife may show that she had reasonable cause to leave, and if it appears that it was unsafe for her to remain in the house with him because she was in imminent danger of suffering personal violence at his hands, her case is made out, and it is therefore error on the part of the magistrate to exclude such testimony. (Id.)

5. Judgment-creditor

an action to set aside a fraudulent conveyance, and to have the property adjudged to be subject to the lien of his judgment and the execution issued thereon and then in the sheriff's hands, is not affected by the return, during its pendency, of the execution when devisees of the judgment-debtor need not be made parties when a firm creditor may set aside an assignment of the individual property of the partner - misjoinder of causes of action. (See Royer Wheel Co. agt. Fielding, 31 Hun, 274.)

6. Landlord and tenant - attornment of a tenement to one who has acquired the landlord's title upon a sheriff's sale under an execution and a warrant of dis

Digest.

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9. Obstruction of a strect of the people to bring an action to right abate the nuisance when it should be tried before a juryjudgment abating a nuisance when the verdict of the jury must specify the unlawful structure, or the unlawful portion thereof. (See People agt. Metropolitan Telephone Co., 31 Hun, 596.)

10. Action for divorce-power of the court to provide for the support of a child, after the entry of a judgment therein which contains no provision therefor― section 59 of 2 Revised Statutes, 148, is continued in force as to actions theretofore determined by subdivision 2 of section 3 of chapter 245 of 1880. (See Catlin agt. Catlin, 31 Hun, 632.)

11. Action for a limited divorce

no allowance for counsel fees can be made after a judgment has been entered - Code of Civil ProVOL. LXII 75

cedure, section 1769. (See Winton agt. Winton, 31 Hun, 290.)

12. Inquest when it will be set aside because of the unexpected absence of one of the defendant's material witnesses the right to do so is not affected by the fact that the trial court refused to postpone the trial. (See Cahill agt. Hilton, 31 Hun, 114.)

13. Costs-discretion of the court as to, in equitable actions not reviewable on motion- the clerk must follow the decision of the court as to additional allowance in foreclosure cases limited to two and one-half per cent Code of Civil Procedure, section 3253. (See Rosa agt. Jenkins, 31 Hun, 384.)

14. Costs when they belong to the attorney for the successful party when they cannot be set off against the general costs awarded to the other party. (See Tunstall agt. Winton, 31 Hun, 219.)

15. Costs - where on a trial before a referee the plaintiff recovers a judgment against one of the defendants only, the other defendant can only have costs awarded to him upon a motion to the court Code of Civil Procedure, sections 1018, 3229. (See New York Elevated R. R. Co. agt. McDaniel, 31 Hun, 310.)

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