The application must be denied, with costs. James A. Deering, for app'lt; G. L. Sterling, for resp't. BARRETT, J.-The order appealed from should be affirmed upon the authority of In re Deering, 3 N. Y. State Rep., 593; 105 N. Y., 667. There seems to be no substantial distinction between that well-considered case and the present, and we concur in the views entertained at special term upon that head. Mr. Justice Andrews' opinion is quite satisfactory and needs no amplification. Order affirmed, with costs. VAN BRUNT, P. J., and BARTLETT, J., concur. THE HERO FRUIT JAR Co., App'lt, v. HUGH J. Grant, sheriff, Resp't. (Supreme Court, General Term, First Department, Filed June 6, 1890.) 1. SHERIFFS-SUBSTITUTION OF INDEMNITORS-NOTICE-CODE CIV. PRO., SS 1421-1427. Where the application to substitute indemnitors as defendants is made by the officer, notice must be given to the indemnitors or their attorney as well as to the attorney for the plaintiff. 2. SAME. The fact that the plaintiff's attorney acted in procuring the indemnity does not excuse a failure to serve the indemnitors, as in so doing he acted for the plaintiff, and in no manner represented their interests. APPEAL from order of special term substituting indemnitors as defendants. J. H. V. Arnold, for app'lt; W. F. Severance, for resp't. PER CURIAM.-The condition upon which applications of this kind may be granted is that where the application is made by the officer, notice thereof must be given to the indemnitor or his attorney and also to the attorney for the plaintiff. In this case no notice whatever was given to the indemnitors, and the only service was upon the attorney for the plaintiff, who, it is said, acted for the indemnitors in and about giving the indemnity. It is clear that this notice was entirely insufficient, as the attorney in procuring the indemnity was acting for the plaintiff, and in no manner represented the interest of the indemnitors. The language of the Code is explicit that notice must be given to the indemnitors or their attorney and also to the attorney for the plaintiff. The point that this objection was not taken below cannot avail, because without proof of such notice the court never acquired jurisdiction. The order appealed from should be reversed, with ten dollars costs and disbursements. VAN BRUNT, P. J., BRADY and DANIELS, JJ., concur. AUGUSTA C. GENET, Appl't, v THE PREST, ETC., OF THE DELAWARE & HUDSON CANAL Co., Resp't. (Supreme Court, General Term, First Department, Filed June 6, 1890.) COSTS-EXTRA ALLOWANCE. An extra allowance under § 3253 of the Code on the ground that the case was difficult and extraordinary cannot be granted where the case has been determined by a decision on demurrer that the court had no jurisdiction over the cause of action. APPEAL from an order making additional allowance of costs in the sum of $500 to the defendant. George C. Genet, for app'lt; Matthews & Smith, for resp't. DANIELS, J.-This action was determined by the decision of a demurrer to the plaintiff's complaint in which it was held that this court had no jurisdiction over the cause of action set forth. And the allowance was directed for the reason that the case was difficult and extraordinary. But the court has not considered or decided the case. It has not been either heard or investigated by the court and it cannot therefore be held to be either difficult or extraordinary. Before an additional allowance can be made under the authority of § 3253 of the Code of Civ. Pro., it must be ascertained that the case itself is of that description. It must be determined in some form to be difficult and extraordinary. But in a case over which the court has no jurisdiction that subject cannot regularly be considered at all, and no decision can be made upon it. The sole province of the court is to determine the single point of jurisdiction, and when that has been done adversely to the action the merits are beyond its reach, and outside of its consideration. The right to recover the costs of the defense made by the demurrer depends upon § 3229 of the Code, which in general language provides for the recovery of costs of course, by the defendant, when the plaintiff shall not be entitled to costs. They result in an action at law, as this action was, directly from the final judgment recovered by the defendant. In this respect they are plainly distinguishable from the additional allowance, which can only be made by further action taken by the court, resulting in the conclusion that the case itself is difficult and extraordinary. And as that could not be reached for want of jurisdiction over the controversy itself, the order should be reversed and the motion. denied. VAN BRUNT, P. J., and BRADY, J., concur. THE APOLLINARIS Co., Limited, App'lt, v. GEORGE W. VENABLE and MOSES HEYMAN, Resp'ts. (Supreme Court, General Term, First Department, Filed June 6, 1890.) DEPOSITIONS - COMMISSION-AFFIDAVIT MUST STATE THAT WITNESSES ARE NOT WITHIN THE STATE. A commission to take the testimony of foreign witnesses will not be granted where the affidavit for such commission does not state that such witnesses are not within the state at the time of the application. APPEAL from an order granting a motion to examine witnesses on behalf of the defendants. Henry Melville, for app'lt; I. Albert Englehardt, for resp'ts. BRADY, J.-The power to issue a commission conferred by §§ 887 and 889 of the Code of Civil Procedure exists where it ap pears by affidavit on the application of either party that the testimony of a witness not within this state is material to the appli cant. The commission applied for herein was based upon an allegation that certain witnesses named, and who were material, were residents of Prussia; but there was no allegation that they were not at the time of the application within this state, and the affidavit did not therefore comply with the requirements of the provisions of the Code, and was insufficient. This result was declared by the general term of the superior court in the action of Wallace et al v. Blake et al., and reported in the 16th Civil Procedure Rep., 384; 22 N. Y. State Rep., 425. A commission to examine witnesses living abroad who are material is founded upon necessity, which would not exist if the witness though residing abroad were within this state. His examination could then be taken viva voce and the adverse party secured the valuable privilege of such a cross-examination. This view doubtless influenced the adoption of the provision of the statute requiring proof that the non-resident witness was not at the time of the application within this state. It might well be that the witness though resident abroad was within this state, either sojourning or upon business, and if so he should be examined de bene esse according to the provisions of the Code relating to that procedure. For these reasons the objection taken to the infirmity of the affidavit thus discussed was a good one, and the motion should have been denied for that reason. The result of this appeal must be, therefore, a reversal of the order with ten dollars costs and disbursements and without prejudice to another application for a commission if the defendants think it necessary. No doubt is entertained of the right of the defendants to examine witnesses for the purpose of proving what it is alleged can be substantial by the affidavits submitted herein. Ordered accordingly. VAN BRUNT, P. J., and DANIELS, J., concur. MELVILLE STEPHENS, Resp't, v. ROBERT L. HUMPHREYS, Impl'd, App'lt. (Supreme Court, General Term, First Department, Filed June 6, 1890.) JURY-RIGHT OF TRIAL BY.-FORECLOSURE. A defendant, in an action of foreclosure, who sets up the defense of fraud, intimidation, false representations, champerty and maintenance, is not thereby entitled, as matter of right, to a trial of those issues by jury. APPEAL from order denying motion for an order settling issues in this action to be tried by a jury. J. K. Van Ness, for app'lt; A. C. Smith, for resp't. VAN BRUNT, P. J.-This action was brought by the plaintiff as assignee to foreclose a mortgage. The answer set up fraud in obtaining the assignment, and that the plaintiff had not obtained it in good faith, and is not the real party in interest; and that the assignment was obtained by threats and intimidation. On the hearing of the motion the learned justice allowed the plaintiff to read certain affidavits controverting the allegations set up in the answer. The appellants objected to the reading of these affidavits on the ground that the motion should be decided on the pleadings alone. The court refused to direct issues to be settled to be tried by a jury, and from the order thereupon entered this appeal is taken. It was probably error upon the part of the court to allow the reading of affidavits upon this motion. But this in no way affected the rights of the defendants. It is claimed that because the answer set up fraud, intimidation, false representations, champerty and maintenance, that the defendant as matter of right was entitled to have those issues tried by a jury; and we are cited as an authority upon this proposition to the case of Conderman v. Conderman, 44 Hun, 181; 7 N. Y. State Rep., 789, in which it was decided that a party had the right to have the issue of adultery in an action for divorce tried by a jury. We fail to see the application of this case, as by the express provisions of the Code a party is, as matter of right, entitled to have that issue tried by a jury. But our attention has not been called to any provision of the Code entitling a party, simply because he sets up the defense of fraud, as matter of right to a trial of that issue by a jury. The case cited clearly has no application to the facts herein presented, and there seems to be no reason whatever why the usual course should not be pursued, and this action tried by the court. The order should be affirmed, with ten dollars costs and disbursements. BRADY and DANIELS, JJ., concur. WILLIAM A. Ross et al., Resp'ts, v. JOHN N. BUTLER, Impl'd, App'lt. (Supreme Court, General Term, First Department, Filed June 6, 1890. 1. CONTEMPT-DECREE, TO BE ENFORCED BY ATTACHHENT, MUST BE SPECIFIC. To authorize the enforcement of a decree by attachment as for contempt, such decree must be definite and certain, and must direct the doing of a specific act; if to pay money, then to pay a specific sum. 2. SAME ASSIGNEE FOR CREDITORS. A decree on an accounting by an assignee for creditors directing him to pay referee's fees, costs, etc., to be taxed, and pay the balance pro rata among the creditors cannot be enforced by attachment, as the amount to be paid the creditors is uncertain and remains to be determined after the fees and costs have been taxed. 3. SAME. Whether the payment of money under a decree in such proceedings, under any circumstances, could be enforced by proceedings for contempt, quære. APPEAL by the defendant Butler, as assignee, from an order adjudging the appellant guilty of contempt. Lucien Birdseye, for app'lt; G. Richards, for resp'ts. VAN BRUNT, P. J.-Without definitely passing upon the point whether under any circumstances an attachment could issue for the enforcement of a decree entered in an action similar to the one at bar, which is a matter of more than grave doubt, In re Hess, 48 Hun, 586; 16 N. Y. State Rep., 255, it is clear that in the position in which this action was at the time the order appealed from was made, and from the nature of the order itself, the court had no power to make the same. This action was brought to compel the appellant as assignee under a general assignment for the benefit of creditors to render an account of the estate coming into his hands as such assignee and to distribute the moneys remaining in his hands among the creditors entitled thereto. ; Certain proceedings having been had, on the 16th of April, 1889, a decree was entered adjudging that a certain sum of money was in the hands of the said assignee from which balance the assignee was directed to pay the several plaintiffs or their attor neys their costs and disbursements, including the sum of $the fees of the referee, together with an additional allowance said costs to be taxed by the clerk of the city and county of New York. The assignee was further directed to pay to the defendant assignee's attorney his costs and disbursements, to be taxed in like manner. He was then directed to retain a sum specified for his compensation as commissions, and also an additional amount of ten dollars costs, and was then directed to divide the residue of the fund remaining in his hands amongst a list of 133 creditors pro rata and without preference, the amount of the claims of the creditors against the assigned estate being stated, but the amount which was to be paid to them not being determined. If there is one thing which is well settled in reference to the power of the court to enforce by attachment its judgment or decree, it is that such judgment or decree shall be definite and certain; that there shall be no opportunity for ambiguity, but that the party proceeded against is to be adjudged to do a certain specific act; if it is to pay money, then to pay a specific sum of money. In the case at bar who is to determine as to what amount in dollars and cents the moving creditors in this proceeding are to obtain? The referee's fees have not been determined; the costs have not been determined; and the amount which each creditor is to receive has not been determined. This is all matter of calculation to be gone into after the amount of the referee's fees is settled and the costs taxed. Who is to determine when these things have been legally and regularly done? In order that a commitment may issue under any circumstances, as already stated, the precise thing to be done by the party proceeded against must be stated in the judgment or order. When we come to examine the order adjudging the party in contempt, what do we find" It is that the appellant be punished by imprisonment, as for a contempt, unless within five days he pay to the moving creditors, |