in reference to the property stated, and that relation only. But the allegations of the complaint of which the prayer is predicated all contain the elements of fraud, and it may be said, therefore, that fraud and deceit constitute the groundwork of the action; and it is not necessary to cite authorities to show that upon such a condition of pleadings the right to a trial by jury or the court cannot be interfered with.

Segelken v. Meyer, 94 N. Y., 475, and Villmer v. Schall, 61 id., 564, distinguished.

Respondent insists that the only issue raised by the pleadings is the accounting, all the allegations of the complaint leading to that result, and where the primary purpose of an action is to obtain an accounting the action is referable. This view is not adopted as the correct one upon which this appeal is to be disposed of. The right to account, the parties having settled the transaction, depends upon the fraud charged, and unless the frauds alleged were practiced plaintiff has no right to the remedy sought. He has placed his right of action upon the charge of fraud. He has not alleged and made it disconnected from fraud, upon which he would have the right to recover. He must, therefore, stand by the issues passed. If, after he has established the fraud charged, an accounting be necessary, the proper proceeding may then be directed for that purpose. It is It is not thought that defendants, who insist on a trial by jury on an is

sue of fraud, can be deprived of that right by a reference.

Order reversed, with costs, etc. Opinion by Brady, J.; Daniels, J., concurs.

TAX SALES.

N. Y. COURT OF APPEALS. The People ex rel. Morgenthau, applt., v. Cady, respt.

Decided April 19, 1887.

The provision of § 8 of art. 3, Chap. 230, Laws of 1843, requiring the comptroller to advertise all lots lying contiguous and belonging to the same owner in one parcel has reference to the person in whose name as owner or occupant they are assessed, and not the technical owner. The time of payment of the purchase money does not determine the date of the certificate, which will be presumed, in the absence of allegations to the contrary, to be that of the day of the sale.

Relator sought by mandamus to compel defendant to accept a certain sum of money for the taxes and interest on two certain lots in the city of New York for the year 1860 and to give receipted bills therefor. Defendant, who is clerk of arrears in said city, has refused to give such receipt, on the ground that the said lots were sold for said taxes Jan. 20, 1866, and on Jan. 19, 1869, a lease of each lot for 1,000 years was granted. It appeared that said lots were contiguous, and in 1860 one was assessed to C. and the other to L. The relator alleged that they belonged to the same owners, G. & K., from Aug. 1, 1859, to April 4, 1866; that they were contiguous, and that the comptroller advertised them for sale in separate par

cels, without the consent or request of the owner.

Alexander B. Johnson, for applt.
David J. Dean, for respt.

Held, That this did not render the sale illegal; that the provision of the statute, Chap. 230, Laws of 1843, art. 3, § 8, requiring the comptroller of the city of New York "To advertise all the houses and lots or other lands lying contiguous to each other and belonging to the same owner in one parcel, unless otherwise requested by such owner," does not mean simply the technical owner of the title, but the person in whose name as owner or occupant the lots are assessed. The object of this provision seems to have been to prevent an unnecessary accumulation of costs of advertising; where the lots were contiguous and assessed to the same person, one advertisement would answer every purpose.

Relator alleged that defendant based his refusal to accept the taxes and interest tendered on a pretended sale which was wholly void, the comptroller having by his notice to redeem required the owner to pay such tax with interest from date of sale, to wit: Jan. 20, 1866, whereas the purchaser did not pay his money upon such sale until Feb. 12, 1866. The moving papers did not set forth a copy of the notice to redeem.

Held, That the term of years for which the bid is made commences to run from the day of the sale, and the time when the purchaser is to be entitled to his lease should also be reckoned from that date, and the certificate of sale

should also bear the same date; that the time of the payment of the purchase money does not determine the date of the certificate, which, in the absence of allegations to the contrary, will be presumed to be the date of the day of the sale.

Order of General Term, affirming order of Special Term denying mandamus, affirmed.

Opinion by Peckham, J. All

concur.

ATTACHMENT. AFFIDAVIT. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Henry A. Blake, applt., v. Richard Crowley et al., respts.

Decided May, 1887.

The provisions in § 1738, Code Civ. Pro., to procure a warrant of attachment in an action to foreclose a lien upon chattels, do not require the affidavit to state that the claim is above all counter claims, as in § 636 of the Code. Section 636 only applies to attachments in actions to recover damages for breach of contract, which does not include the foreclosure of a chattel mortgage.

Appeal from order vacating a warrant of attachment.

Action to foreclose a lien upon chattels, under § 1737 of the Code. A warrant of seizure was issued herein. The affidavit upon which the warrant was issued did not state that plaintiff's claim was over and above all counter claims known to him.

Plaintiff noticed the cause for trial at Special Term. At that time defendants appeared and demanded a trial by jury, and that

said cause be stricken from the Special Term calendar and that said warrant of seizure be vacated and set aside. Both motions were granted and from that part of the order vacating the warrant, upon the ground that the affidavit was defective in not alleging that plaintiff's claim was over and above all counterclaims known to him, this appeal is taken.

Charles W. Seymour, for applt. Wm. J. Bulger, for respts. Held, That in an action to foreclose a lien upon a chattel, where the chattel is not in the possession of plaintiff, the affidavit to procure a warrant of seizure under § 1738 of the Code need not state that the claim is above all counterclaims, as in § 636 of the Code. Section 636 only applies to attachments in actions to recover damages for breach of contract.

Breach of contract has a definite meaning and does not include the foreclosure of a chattel mortgage even though there was a failure to pay according to promises made. The affidavit is therefore sufficient. The action is not one in which defendant Crowley can demand a trial by jury. Crowley assigned property to defendant Corbett and she assigned it to plaintiff to secure Crowley's debt. The complaint avers that only a portion of this debt has been paid. An action at law cannot reach the proper remedy. Plaintiff is entitled to hold the chattel, to have the balance due on it adjusted, and to a judgment to collect the amount due out of the proceeds of the chattel.

Order reversed, and the case restored to the Special Term calendar for trial.

Opinion by Barnard, P.J.; Pratt, J., concurs; Dykman, J., not sitting.

MUNICIPAL CORPORATIONS.

NEGLIGENCE.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

Hannah Cohn et al., admrs., applts., v. The Mayor, etc., of N. applts., v. The Mayor, etc., of N. Y., respt.

Decided Jan. 22, 1887.

Plaintiffs' intestate was killed by the falling of the shafts of a wagon stored in a street by license, caused by the wagon being struck by another wagon in passing. The shafts were tied up the night before and the accident occurred early in the morning. Held, That in the absence of proof that the same fastening was used on every occasion, sufficient time had not elapsed to justify a finding that defendant had notice of the insecure fastening.

Appeal from judgment entered on dismissal of complaint.

Action to recover for the death of plaintiffs' intestate. One M. had a license from defendant to store his wagon in front of his store when not in use. He was accustomed to store it next the curb and tie up the shafts with a string. Oct. 20, 1879, at 3.30 A.M. intestate was passing along the street.

An ice wagon was coming down the street, and the driver not wishing another wagon to pass, whipped up his horses and the wagon caught M.'s wagon, turned it round, the fastening broke and the shafts fell upon in

testate with such force as to cause his death.

On a former appeal it was held that the city could not be held liable on proof of the mere granting of the license, as that fact was not the immediate cause of the injury, it having resulted from the negligent driving of the ice wagon and the insufficient manner in which M. had tied up the shafts; that to make it liable some evidence must be shown that it had knowledge or notice in some form of the insecure or careless mode in which the wagon was stored.

It appeared that the wagon was used two or three times during the day and that the shafts were tied up after such use; that it was so used the day before, and the shafts tied up at night. There was no evidence that the same fastening was used on each occasion, but the evidence tended to show that it was not.

N. E. Chedsey, for applts.
D. J. Dean, for respt.

Held, That each time the thill was tied up was an independent and separate act, the consequences of which ended when the wagon was used; when the thills were tied up anew the responsibility for that act commenced. Now, even if the shafts were improperly secured, sufficient time had not elapsed between the putting of the shafts in this insecure position and the happening of the accident to justify the jury in finding that the city had notice, and notwithstanding the expression contained in the opinion when the case was before this court, 33 Hun, 404,

"that if the thills had been securely and properly fastened, as they ought to have been, the fastenings would not have been broken by the blow which turned the wagon partially around and threw down the thills with such violence as to occasion the fatal injury," it would seem that in securing and fastening up the thills the owner of the wagon had no right to anticipate the severe shock to which the fastening was subjected by the wagon being run into as was described by the witnesses. It would seem that the cause of the accident was the negligence of the driver of the ice wagon and not the negligence of the owner of the wagon in not tying up the thills of his wagon with a rope sufficiently strong to stand such a shock.

Judgment affirmed, with costs.

Opinion by Van Brunt, P.J.; Daniels, J., concurs; Brady, J., dissents, holding that the use of the street was a continuous one and for so long a period as to establish constructive notice of such use and the consequences likely to result from such use.

BILL OF PARTICULARS. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

James M. Seymour et al., applts. Arthur Dyett et al., respts., v.

Decided March 31, 1887.

A statement made by a plaintiff that he has no knowledge of the counterclaim set up in the answer does not take away his right to a bill of particulars as to such counterclaim.

Appeal from order directing service of a bill of particulars.

The second subdivison of defendant's answer set up that other shares of stock had been bought and sold by defendants in the employ of one E. The order in question directs the service of a bill of particulars of such other shares. A statement was made on behalf of plaintiffs that neither they nor E. had any knowledge of the purchase or sale of such shares.

Joseph H. Choate, for applts. B. F. Einstein, for respts. Held, That such statement did not exclude plaintiffs' right to a bill of particulars; that they were entitled to such further and additional information concerning such purchase and sale as would prevent them from being surprised by proof of the alleged facts, if that might possibly be made on the trial. To avoid the risk of that surprise and supply them with the means of understanding and meeting the allegations so generally made, a bill of particulars was the proper remedy, and the court was right in requiring its service. For if defendants had been engaged in those transactions, as they allege they had, there could be no difficulty standing in their way of adding to the information supplied by the answer such further particulars as would bring the transactions to the knowledge or within the range of the investigation plaintiffs might be able to make.

On the argument it was proposed by defendants' counsel to

strike out this allegation of the answer in preference to being subjected to the necessity of serving the bill of particulars. If that shall be done then very obviously no necessity will remain for the service of the bill.

Order affirmed, with costs, unless defendants stipulate to strike out said allegation; in which case order reversed, without costs.

Opinion by Daniels, J.; Brady, J., concurs.

LEAVE TO SUE.

N. Y. SUPERIOR COURT. GENERAL TERM.

The Mutual Life Ins. Co. v. Isaac T. Smith.

Decided May 2, 1887.

Section 1628 of the Code, requiring leave to sue on a bond during or after foreclosure of the mortgage securing the same, has no application to a bond secured by a mortgage on property situated in another State.

Exceptions of plaintiff ordered heard at General Term in the first instance.

Action to recover a balance due on a bond made by defendant and his wife, now deceased, to plaintiff in 1872.

On the trial it appeared that the bond had been originally secured by a mortgage on real property situated in Elizabeth, N. J.; that such mortgage had been foreclosed and the premises sold, and that the balance claimed remained due on the bond.

At the close of the evidence the court directed a verdict for defendant on the ground that leave of the court in which the foreclosure