the direction to serve a further bill of particulars. Held, Untenable. The power to make such an order striking out a complaint was considered in Gross v. Clark, 87 N. Y., 272, and it was held by the Court of Appeals that the court making the order, under the practice which has not been abrogated by the Code Civ. Pro., had the power to direct it to be stricken out for the failure to serve a bill of particulars when that should be ordered to be done by the court, and having that power it would seem to be as applicable to the case of so much of an answer as contains a counterclaim as it was there held to be to the complaint. For such an answer is in legal effect a complaint setting up a cause of action existing in favor of defendant against plaintiff. As the former may be stricken out for the disobedience of an of an order directing the service of a bill of particulars, it follows that a like disposition may be made under an order relating to counterclaim. taking of property under an attachment, and the attachment being vacated, refuses to deliver the property on demand made, he cannot look to the indemnitors in case a judgment is recovered against him for such detention. Such conduct on the part of the sheriff is not within the condition of the bond of indemnity. On the trial of the action brought by the sheriff against his indemnitors, the latter may show, by parol, the ground upon which the recovery against the sheriff proceeded, provided such ground was within the issues of the case. In December, 1880, one B. was the owner of a stock of goods in a store in New York and on Dec. 11 she assigned them to G. for the benefit of her creditors. On the same day T. and others commenced an action against B. and procured an attachment against her property, and placed it in the hands of the sheriff, who levied upon the goods she had assigned to G., and which were claimed by him. On December 16 the sheriff took a bond of indemnity signed by defendants in this action and kept the goods. The condition of the bond was that if the obligors should indemnify the sheriff from Order affirmed, with $10 costs all liability, suits and judgments and disbursements. against him, by reason of the levying, attaching and making sale under or by virtue of such attachment of the property, and for the defense of any action which might be brought against the sheriff for such taking, then the bond to be void. On December 21 the attachment was vacated, and on the 24th G. brought an action to recover from the sheriff the value of the goods that he had taken. The sheriff notified defendants of the suit and at their request defended it, they being represented by counsel on the trial. The trial resulted in a verdict and judgment against the sheriff for the value of the goods, which he paid and then brought this action to recover the amount he had thus paid and the expense he had been put to. Defendants set up in their answer that after the attachment had been vacated and after due demand had been made upon him, plaintiff, without the knowledge or assent of defendants herein refused to surrender the goods attached, and that the recovery in the action against the sheriff was based on this demand and refusal, and that the sheriff's conduct not being within the condition of their bond, they were not liable therefor. Upon the trial plaintiff claimed to have proved his case by the production, among other things, of the judgment roll in the Gallagher suit. Defendants then, under plaintiff's objection, proved by parol that the suit was decided on the gronnds that the sheriff became liable for a conversion upon the attachment becoming vacated and his refusal to give up the property upon a demand subsequently made. A. Blumenstiel, for applts. Chas. F. MacLean, for respt. Held, That the condition of defendants' bond did not cover the facts on which the judgment in the G. suit was founded; that when the attachment was vacated it was the duty of the sheriff upon reasonable demand to deliver up the property to defendant or the per son entitled to it. Code, § 709; 41 N. Y., 464. The complaint in the suit against the sheriff, which was brought several days after the attachment was vacated, alleged a wrongful taking from G.'s possession and a conversion to defendants' use. It also alleged a demand for a return and a refusal by defendant. Judgment was demanded for the value of the property. The sheriff answered, setting up the issuing of the attachment and justified the taking and detention under that writ, and alleged that the assignment to G. was void as made with intent to defraud the creditors. Held, That this answer did not set up new matter constituting a counterclaim, and did not call for a reply, and under § 522 of the Code such new matter was deemed controverted by the plaintiff by traverse or avoidance, as the case might be, and upon evidence by the defendant that the property was taken and held under the attachment as the property of the assignor, the plaintiff could properly prove it had been vacated and a demand for the return of the property had been made thereafter and been refused before suit was commenced. Also held, That parol proof of the ground upon which the suit against the sheriff was decided was admissible, as the precise grounds did not appear from the record and the ground proved was within the issues. 8 Wend., 9. The issuing of an execution without any direction as to how it is to be enforced or as to what Also held, That knowledge of the attorney in the execution as to where the money came from which he took from the sheriff, there being no proof of like knowledge by plaintiffs in the execution, when they received the money from him, would not be a ratification even as to them of the prior illegal act of the sheriff in refusing to surrender the goods, nor would it be a ratification on the part of these defendants, being equally ignorant. 83 N. Y., 518. Judgment of General Term, affirming judgment for plaintiff, reversed, and new trial ordered. Opinion by Peckham, J. All concur, except Ruger, Ch. J., dissenting. ATTACHMENT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Adolphus H. Stoiber, respt., v. Robert C. Thudium et al. Decided March 31, 1887. The affidavit for an attachment stated that an action was about to be commenced "by issuing the summons hereto annexed." Held, That there was a sufficient compliance with § 638 of the Code. Appeal by junior attaching creditors from order denying motion to vacate an attachment. The motion was made on the ground that the affidavit on which the warrant was granted showed on its face that at the time of the application for the warrant the action had not been commenced or the summons served or issued for service. The affidavit for the attachment stated "that plaintiff is about to commence an action against defendant for the cause above stated by issuing the summons hereto annexed and no previous application for an attachment has been made herein." D. C. Briggs, for applts. F. H. Smith, for respt. Held, That the order was right. It appears that a summons was made out and accompanied the affidavit by being annexed to it. This is undoubtedly a sufficient compliance with § 638 of the Code in the broadest view that can be taken in favor of appellant's motion. The cases of Mills v. Corbett, 8 How., 588, and Blossom v. Estes, 84 N. Y., 614, cited on behalf of appellants, so far as they affect this case, favor the propriety of the disposition made of appellants' motion. The question is substantially disposed of in this department in the case of Pickard v. Anthony, 27 Hun, 269, in which it was held upon consideration of the various sections of the Code affecting the question, that it need not appear upon the affidavits used upon the attachment that an action has been commenced, or that a summons has been served, and that decision was founded upon the proposition that § 636 did not require a statement that an action had been commenced, but simply that one of the causes of action specified in § 635 existed and that plaintiff after obtaining the at tachment had thirty days in which to serve the summons. Therefore, the omission to refer to process in the papers upon which the application for an attachment rested was not any evidence that the summons had not issued. Here the statement was positive that the summons was issued when the application was made for an attachment, because it formed a part of the papers upon which the application was made. Order affirmed, with $10 costs, etc. that contained in the appraisal set aside. It does not direct the difference to be paid with interest, but simply that the difference shall be paid. 2 R. S., 7th ed., 152, § 18. The obligation of the owner to pay this difference for the first time arose when the final report was confirmed by the court and the order of confirmation served upon him or his attorney. From that time he has been in default in the payment of this difference, and under the general principles of law applicable to the payment Opinion by Brady, J; Daniels, of legal obligations should pay In re petition of the N. Y. Ele- N. Y. SUPREME COURT. GENERAL vated RR. Co. In re Story. Decided March 31, 1887. Upon a reduction of damages by a second appraisal the statute only requires the the property owner to pay the amount of such reduction, and an order of restitution should only require the payment of such sum with interest from the date of service of the order confirming the final report. Motion for restitution after a second appraisal reducing the amount of damages for land taken in this proceeding. W. B. Hornblower, for motion. J. E. Parsons, opposed. Held, The statute requires the property owner upon the reduction of the amount of damages appraised by the second appraisal to pay only the difference between the amount finally awarded and TERM. FIFTH DEPT. Ella A. Sabin, respt., v. The Grand Lodge of A. O. U. W. et al., applts. Decided Jan., 1887. A by-law of a corporation organized in pursuance of the provisions of Chap. 74, Laws of 1877, and the acts amendatory thereof providing that "any member holding a beneficiary certificate desiring at any time to make a new direction as to its payment may do so by authorizing such change in writing on the back of the certificate," constitutes a part of the contract evidenced by such certificate between the corporation and the member, remaining in good standing, and such contract remains executory until the right to make such new direction is terminated by the death of the member. Within the meaning of the statute it is not necessary that family relations exist to qualify a person to become a beneficiary of a member. A mutual agreement between two parties each to procure a benefit certificate for the benefit of the survivor in case of death does not take away the power of appointment of a new beneficiary, but the contract between the member and the corporation controls so long as the latter contract remains executory. Appeal from judgment entered on report of refereee. Defendant, the Grand Lodge of A. O. U. W., is a domestic corporation organized prior to March 24, 1879, pursuant to Chap. 74, Laws of 1877, as amended by Laws of 1878, Chap. | 69, and instituted a subordinate lodge at Hornellsville, N. Y. John C. Sabin became a member of this subordinate lodge, and on the 24th day of March, 1879, a beneficiary certificate of the corporation defendant was issued to him of which following is a copy: "No. 9513. $2,000. The Grand Lodge of the Ancient Order of United Workmen of the State of New York. This certificate issued by the authority of the Grand Lodge of, etc., witnesseth that brother John C. Sabin, a master workman degree member of G. W. Lodge No. 132 of said order, located in the village of Hornellsville, etc., is entitled to all the rights and privileges of membership in the A. O. U. W., and to participate in the beneficiary fund of the order to the amount of $2,000, which sum shall at his death be paid to Ella A. Sabin. This certificate is issued upon the express condition that said John C. Sabin shall in every particular while a member of said order comply with the rules and requirements thereof," duly at * * * * * tested, etc. Plaintiff Ella Sabin, named in the certificate, was the wife of John C. Sabin. In July, 1883, this certificate was surrendered by him, and another certificate of the date of the 20th of that month was issued in due form in all respects like the first, except that the name of plaintiff was omitted and that of defendant Andrew S. Phinney was inserted as the beneficiary. John C. Sabin died Oct. 13, 1883. This action is brought for determination of the right as between plaintiff and Phinney to this fund and she recovered the amount against the corporation defendant, and defendants appeal. Leroy Andrews, for grand lodge, applt. Bemis & Orcutt, for applt. Phinney. John Griffin and D. M. Page, for respt. Held, That the statute, Chap. 74, Laws of 1877, which provides that the beneficiary fund “may be set apart and provided to be paid over to the families, heirs or representatives of deceased members, or to such person or persons as such deceased members may, while living, have directed." And the by-laws of the corporation authorized by §§ 4 and 5 of the act, one of which was in force in 1879, providing that "any member holding a beneficiary certificate desiring at any time to make a new direction as to its payment may do so by authorizing said change in writing on the back of his certificate in the form prescribed" constitute a part of the contract between the mem |