of assets, and that cannot be questioned in to recover assets of the estate. It was a collateral action, A bond was given conditioned for the removal of certain liens on land within two years: Held, That interest was to run after the expiration of the two years, and an allowance of interest on the penalty of the bond was proper. Plaintiff is the executor of one B., who died in the State of Pennsylvania. Plaintiff, finding that deceased had assets in the State of New York, caused the will to be filed in the proper county, and letters of administration were issued to him. Prior to death of plaintiff's testator he had bought a piece of land in this State, on which there was a mortgage. The defendants, by a writing, guaranteed plaintiff's testator against said mortgage, and agreed to discharge the premises from the lien thereof and from all incumbrance on the land, and to indemnify plaintiff's testator against all costs and damages, charge or trouble, by reason thereof, and a bond was executed in penalty of $1,000 for the fulfillment of said agreement. Such liens were to be removed within two years from December 24, 1853. The said mortgage was not discharged but was foreclosed, and the premises sold thereunder in 1874, and plaintiff was compelled to pay, by reason thereof, the sum of $1,000, for principal, costs, and expenses, and for which this action is brought. There was a judgment for plaintiff. The suit was plaintiff, executor, &c. The word "as" was not used to describe plaintiff. D. B. Prosser, for applt. W. S. Briggs, for respt. not necessary in the title to describe himself as executor, &c. The complaint, its allegations, its structure, all show that the action was by plaintiff in his representative capacity only. The defect, if any, was a mere formal one, and should be deemed amended according to the allegations and the proof. That the Surrogate had jurisdiction to grant the letters to plaintiff. And the Surrogate having passed upon the question of there being assets in the county, that question cannot be raised in a collateral action. The letters are prima facie evidence, and there is no fact, or finding, or request to find to rebut the presumption. The letters were properly received. That a question cannot be raised on appeal to which no exception was taken on the trial. That under the condition of the bond made by defendants, plaintiff was entitled to interest on the amount due under the condition of the bond, at and after the expiration of two years from the date of said bond. The bond should be treated as one for the payment of money in case of a breach. Time is an essential of such a contract, and it cannot be thrown aside by construction, which would be the case if this was held to be a bond of indemnity only. That the allowance of interest on the penalty of the bond at and after two years mentioned was proper. This condition of the bond amounted to an agreement to do a certain thing or pay a certain sum of money. Judgment affirmed. Opinion by Merwin, J.; Talcott had the right to sue in his own name | and Smith, JJ., concur. REMOVAL OF CAUSES. U. S. SUPREME COURT. The Phoenix Ins. Co., plff. in error, v. Pechner. (October, 1877.) remained upon the files, and requested the Court to proceed no further with the trial; but this request was denied, for the reason that the petition did A petition for the removal of a cause under not state facts sufficient to remove the the Act of 1789 must state the residence of the parties at the time of the commencement of the action. cause. A jury was thereupon called, which returned a verdict in favor of the plaintiff, and judgment was in In error to the Court of Appeals of due form entered thereon against the New York. defendant. The case was then taken to the Court of Appeals, where the judgment of the Supreme Court was affirmed, the Court of Appeals deciding that the petition for removal was not sufficient in law to effect a transfer of the cause, for the reason that it did not state affirmatively that Pechner was a citizen of the State of New York when the suit was commenced. On the 1st of June, 1867, Pechner, the defendant in error, sued the Phoenix Insurance Company, plaintiff in error, a Connecticut corporation, in the Supreme Court of Chemung County, in the State of New York, upon a policy of insurance. On the 8th of July, in the same year, and at the time of entering its appearance, the company presented to the Court a petition, accompanied by the necessary security, for the removal of the cause to the Circuit Court of the United States. The petition, when taken in connection with the pleadings, set forth sufficiently the citizenship of the defendant in the State of Connecticut, but as to the citizenship of the plaintiff, the statement was that " as your petitioner is informed and believes, Isidor Pechner, the plaintiff in said action, is a citizen of the State of New York." The petition bears date June 11, 1867, and was sworn to June 12. Upon its pre-ance, petition for its removal." sentation the Court approved the secu To reverse this judgment the present writ of error has been brought, and the only error assigned is predicated upon this decision. Held, No error; the provisions of § 12 of the Act of 1789, under which this application was made, clearly have reference to the citizenship of the parties when the suit is begun, for the language is, "If a suit be commenced by a citizen of the State in which the suit is brought against a citizen of another State, the defendant may, when he enters his appear This right of removal is statutory.. rity, but denied the application for Before a party can avail himself of it removal. he must show upon the record that On the 5th of June, 1869, the plain-his is a case which comes within the tiff filed an amended complaint, to which the defendant answered June 21, 1869. On the 2d of February, 1872, the cause coming on for trial, the defendant again presented its original petition for removal, which provisions of the statute. IIis petition for removal, when filed, becomes a part of the record in the cause. It should state facts which, taken in connection with such as already appear, entitle him to the transfer. If he fails in this, he has not, in law, shown to the Defendant moves to set aside the atCourt that it cannot "proceed further tachment on the ground of irregularwith the cause." Having once ac-ity. quired jurisdiction, the Court may proceed until it is judicially informed that its power over the cause has been suspended. This suit was commenced June 1, 1867. At that time there was nothing in the pleadings or process to indicate the citizenship of the plaintiff. The defendant, in its petition for removal, bearing date June 11th, simply stated that the plaintiff is-that is to say, was at that date-a citizen of New York. This certainly is not stating affirmatively that such was his citizenship when the suit was commenced. The Court had the right to take the case as made by the party himself, and not to inquire further. If that was not sufficient to oust the jurisdiction, there was no reason why the Court might not proceed with the Geo. Owen, for deft., for the mo tion. Wm. F. Browne, for plff., opposed. MCADAM, J.-The attachment was granted under § 635 of the Code of Civil Procedure, in an action for breach of contract. The affidavit upon which it was granted states the amount of the plaintiff's demand, but fails to allege that he is entitled thereto "over and above all counterclaims known to him," as required by § 636. The provision in question is new, and must be held to have been inserted for a purpose, and effect cannot be given to it without holding the present affidavit defective. The conclusion that the omission in the affidavit is fatal would seem clear upon principle; but all doubt upon the subject is put at rest by the decision of the Albany General Term of the Supreme Court, in Kelly v. Archer (48 Barb., 68), in which the Court, in construing a similar provision applicable to Justices' Courts, held that where the affidavit upon which the attachment was issued did not specify an indebtedness "over and above all discounts," as required by the Revised Statutes (2 R. S., 230, § 28), the attachment was void; that the provision as to discounts was an essential part allege that plaintiff is entitled to the amount of the affidavit, and the Court rethere claimed, have was, over and above all counterclaims marked, “As it may known to him; an omission of such an been an offset to the demand, and the allegation is fatal. balance may have been the other way." For the omission aforesaid the motion to vacate the attachinent herein must be granted. cause. Judgment affirmed. PRACTICE. ATTACHMENTS. Anthony Taylor v. Charles Reed. An affidavit to obtain an attachment under 66 Motion to set aside an attachment. Plaintiff, having commenced this action, procured an attachment under § 635 of the new Code, upon which the sheriff seized five valuable trotters. PRACTICE. INSPECTION OF N. Y. COMMON PLEAS. SPECIAL TERM. raised upon the argument, and as both parties have been heard and have submitted the right to an inspection upon the merits, no injustice will James M. Cutter et al. v. Hiram arise in deciding the question upon the papers presented. Pool. may be Under the general rules of practice prescribed in such case, the plaintiff may compel discovery and inspection of books and which papers necessary to enable him to frame his complaint, or to answer any pleading of the defendant (Rules Supreme Court). No such necessity is shown in the moving papers; but the plaintiff, who admits that the claim in suit grows out of a mistake made in an account settled some two years ago, "verily believes that defendant's check-book" will show such mistake, and asks inspection thereof. The defendant pleads payment and an account stated. I do not think that the new Code authorizes an application of this kind to enable a party to prepare for trial; but, if it does, the defence of payment is a fact to be established by the defendant, and not by the party applying for the inspec Hatch & Van Allen, for plff. Childs & Hull, for deft. LARREMORE, J.-The plaintiff applies on motion, in pursuance of 388 of the Code of Procedure, for an inspection and copy of defendant's books of account. This section, which enlarges the remedy for obtaining discovery of evidence, has been decided to be auxiliary to and not a substitute for the provisions of the Retion. This, in my judgment, is the vised Statutes. In the repealing act, passed June 5, 1877, § 388 of the old Code is repealed, the same not being mentioned in the sections therein excepted from repeal. true test of the application. Plaintiff has his remedy by a subpoena duces tecum, and this motion should be denied. PRACTICE. PLEADINGS. De Witt v. Simons. SPECIAL The remedy sought must now be had under §§ 803 to 808 of the Code of Civil Procedure, which are a vir tual re-enactment of the provisions of the Revised Statutes upon this subject. The application is now ex parte upon a verified petition, and not upon A judgment as for want of an answer, entered notice of a motion. This objection, however, was not An answer more than two folios in length, not folioed, is good unless returned within twenty-four hours after its service. after service of such answer and before its return, is irregular. Motion to set aside judgment en-one, as to this practice, no costs are tered as for a default. Defendant served an answer exceeding two folios in length, which was not folioed. Judgment was entered before the answer was returned. The other facts appear in the opinion. J. L. Lindsay, for plff. SHEA, C. J.-The answer being more than two folios in length, the plaintiff had the right to return it for that reason within twenty-four hours after its service. This is an optional right; and while the plaintiff's attor ney held the answer in his control during those twenty-four hours and, before exercising the right to return it, actually entered judgment as for want of an answer, that judgment is irregular. The right to return an answer for such omission must be chosen before a judgment can be entered. While the answer is retained it is conditionally good, and if the twenty-four hours are allowed to pass, it becomes absolutely good. There is nothing in the circumstances of the case to justly charge the plaintiff's attorney with censorious practice. He clearly was not aware of the answer having been left at his office the previous afternoon; but it was technically and in legal effect in his possession at the time judgment was entered by his direction. The judgment was entered before the answer was returned, and so before the option was availed of, and the judgment is, therefore, not void, but premature and irregular. Because the question seems to be a new allowed to either party as against the other. Both parties appear to have neglected a strict compliance with the prescribed rules of practice; and the defendant, by not serving his answer before the afternoon of the last day given for the purpose, did not allow for the twenty-four hours within which the answer might be returned for correction before the lapse of the full time to answer. She incurred the hazard, to some extent, which has chanced against her. Whereupon the judgment is set aside, on condition that no action be brought by reason of the proceedings on the execution issued upon the said judgment. DIVORCE. PRACTICE. N. Y. SUPERIOR COURT. SPECIAL TERM. Paul Batzil v. Olga Batzil. Decided November 20, 1877. The right to a trial by jury in actions for divorce a vinculo, where the adultery is denied, is not taken away by the Code of Civil Procedure. A reference will not be ordered in such a case unless a jury trial has been waived. This was a motion by plaintiff to vacate an order settling the issues in an action for divorce a vinculo matrimonii to be tried by a jury, and for an order of reference. The order was entered before the new Code went into effect. The defendant neither waived a trial by jury nor did she consent to a reference. It is claimed, however, by the learned counsel for the plaintiff that the law upon the subject has been changed by the new Code of Civil Procedure, which went into effect on the 1st of September last; that under that act |