jurisdiction and to constitute a sufficient cause of action. In this case, the affidavits upon which the order of arrest was granted and the original complaint wholly fail to set forth any cause of action whatever in favor of the plaintiff against the defendant, and the court was without jurisdiction when the order of arrest was granted.

While the courts have been liberal in permitting amendments, in order to uphold mandates in cases where the objection thereto was one largely of form and technical in character, and not going to the jurisdiction of the court, the rule should not, however, be extended to cases where the liberty of the citizen is at stake, and especially where the court was without jurisdiction when the mandate was granted.

It follows, from these views, that the order of arrest heretofore granted herein must be vacated, with ten dollars costs.

IRVING GRINNELL et al., Judgment creditors, v. ROGER M. SHERMAN, Judgment debtor."

(City Court of New York, Special Term, Filed September 6, 1890.)

1. SUPPLEMENTARY PROCEEDINGS- THIRD PARTY ORDER-AFFIDAVIT for. An affidavit made on information and belief, without stating the sources of information, is sufficient to authorize the granting of an order to examine a third person in proceedings supplementary to execution.

2. SAME-COSTS.

The costs of such a proceeding are properly allowable against the judg ment debtor.

MOTION by the judgment debtor to vacate the order of Mr. Justice Ehrlich, made on March 29, 1890, for the examination of Stewart L. Woodford, and all proceedings thereupon, for certain irregularities and jurisdictional defects in the affidavit upon which the order was made; also to vacate the order of Mr. Justice Van Wyck, appointing a receiver of the property of said judg ment debtor on the ground that the affidavit upon which the said order of Mr. Justice Ehrlich was made is fatally defective, and to modify said last mentioned order of Mr. Justice Van Wyck by striking out the provisions for the payment of thirty dollars costs by said judgment debtor, and the provisions requiring said judgment debtor to execute an assignment to said receiver.

Joseph A. Thompson, for judgment debtor and motion; Evarts, Choate & Beaman (Henry W. Harden, of counsel), for judgment creditors, opposed.

GIEGERICH, J.—It appears from the order appointing a receiver herein, as resettled, that the judgment debtor appeared in person before Mr. Justice Van Wyck, who made the order in question, and objected to motion for the appointment of a receiver, on the grounds, "that the affidavit of Mr. Cleveland, on which the third person order against Mr. Woodford is based is upon information and belief, without stating any sources or grounds therefor; that the Code requires proof (§ 2441); that the affidavit is not evidence or proof of anything;" and said judgment debtor was

heard in opposition to the motion in question, and who filed his affidavit, verified August 1, 1890, in opposition thereto.

The judgment debtor now moves the court at special term under § 2433 of the Code of Civil Procedure, to vacate the said order made by Mr. Justice Van Wyck appointing a receiver, and to vacate the order upon which the proceeding was begun, for certain alleged irregularities and defects of jurisdiction in the affidavit upon which the same was made; also in the alternative that said order of Mr. Justice Van Wyck be modified by striking out the provisions for the payment of costs and the motion for an assignment by the judgment debtor to the receiver, which will be considered in the order in which they were raised.

It is urged by the judgment debtor that the affidavit upon which the order for the examination of Mr. Woodford was granted is fatally defective, because "it was made upon information and belief by the attorney for said judgment creditors, without any statement of the sources of such information or the grounds of such belief; and that no proof by affidavit or other competent written evidence appears to have been made for the granting of said order; also for the reason that it does not appear from any such evidence that the judgment upon which the same purports to be based was docketed, or that a transcript thereof was filed in the county clerk's office of any county in this state prior to the issue of any execution thereupon; also that it does not appear that said order required the examination of said Stewart L. Woodford in the county in which the judgment debtor resided at the time said order was made or wherein he then had an office for the regular transaction of business in person; also that it did not then appear to said justice, by affidavit or other competent written evidence, that an execution had theretofore been issued upon said judgment to the county where said judgment debtor resided or where he then had a place for the regular transaction of business in person."

Substantially the same objections were presented to Mr. Justice Van Wyck, who overruled the same, and I see no reason why his ruling should be disturbed. The gravamen of the objection is, that the affidavit was made upon information and belief, as will be perceived upon perusal thereof, and which sets forth all the facts required by § 2441 of the Code of Civ. Pro.

The precise question involved in this branch of the motion was passed upon by my lamented predecessor, Mr. Justice Nehrbas, in Tefft v. Epstein, 17 Civ. Pro., 168, who held, citing Miller v. Adams, 52 N. Y., 409, that an affidavit on information and belief merely was sufficient, and I regard these authorities as controlling.

The judgment debtor also contends that the provisions for the payment of thirty dollars costs, by the said judgment debtor, should be stricken out from the said order of Mr. Justice Van Wyck, "on the ground that said proceeding was instituted against a third person and that such person, if any one, should pay the costs of such proceedings to the judgment creditors." There is no merit in the contention, and the costs were properly allowed under $2455 of the Code.

The judgment herein has been affirmed by the general term of the court of common pleas, and until it is reversed or set aside by a court of competent jurisdiction it is binding upon the parties thereto, and it would be idle to pass upon the question presented by the judgment debtor in his brief, whether this court has power to grant judgment awarding moneys of the United States by "estoppel" or otherwise.

That branch of the motion to strike out from the order appointing the receiver the provision requiring said judgment debtor to execute an assignment to said receiver has been obviated by the said order as resettled, which entirely omits therefrom all reference to the matters objected to.

For the reasons above stated the motion must be denied, with ten dollars costs.

THE PEOPLE ex rel. THE EDISON ELECTRIC ILLUMINATING COMPANY v. EDWARD WEMPLE, as Comptroller, etc.

(Supreme Court, General Term, Third Department, Filed September 25, 1890.) TAXES CORPORATIONS-CERTIORARI.

By 2122, sub. 3, Code Civ. Pro,, a writ of certiorari cannot issue where the officer making the determination is expressly authorized by statute to rehear the matter, unless the determination to be reviewed was made upon a rehearing, or the time within which the relator can procure a rehearing has elapsed, and by ch. 463 of 1889, an amendment is made to ch. 361 of Laws of 1881, authorizing the Comptroller, at any time, to revise and readjust any account theretofore settled against any corporation for taxes under the latter act, and that such revision may be reviewed by certiorari at general term, and in the court of appeals. Held, that a certiorari obtained by the relator to review a tax imposed under said act of 1881, without first seeking a rehearing, was improperly granted.

CERTIORARI to review a tax imposed upon the relator under Laws of 1880, chap. 542, as amended by laws of 1881, chap. 361, etc.

Eugene H. Lewis, for relator; Isaac H. Maynard, for resp't.

LEARNED, P. J.-By the Code of Civil Procedure, § 2122, subdivision 3, no writ of certiorari should issue "where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the relator's application, unless the determination to be reviewed was made upon a rehearing, or the time in which the relator can secure a rehearing has elapsed." The present proceeding was commenced in March, 1890, and is intended to review a determination of the comptroller made in February, 1890, by which he stated and settled an account against the relator for taxes due the state on its franchise or business under chapter 542, Laws of 1880, chapter 361, Laws of 1881, and the subsequent acts amending that statute.

By chapter 463, Laws of 1889, two sections, to be called 19 and 20, are added to the aforesaid chapter 361, Laws of 1881. These sections provide that the comptroller may, at any time, revise and readjust any account theretofore settled against any corporation for taxes under this act; that evidence may be submitted to him that the account has been illegally paid or made so

as to include taxes which could not have been lawfully demanded. Section 20 provides that the action of the comptroller on any application for such revision and resettlement may be reviewed upon the law and the facts upon certiorari by the supreme court, and that an appeal from the determination of the supreme court may be taken to the court of appeals. Provision is made for the return to the supreme court of the evidence taken before the comptroller.

It is thus evident that the relator can, by express language of the statute, have a rehearing before the comptroller of the matter he is now seeking to review. Therefore under the Code no certiorari should issue until such rehearing has been had.

Even aside from the section of the Code above cited it would. be reasonable that under these sections, 19 and 20 of the act of 1889, this court should refuse a certiorari until the review had been applied for and a decision made on the application as authorized by those sections.

It was stated on the argument that since these proceedings were commenced the relator has applied to the comptroller for such review and the comptroller has declined to hear the matter on the ground of the pendency of this present application. That matter does not appear on the papers. Even if it be true, it would not affect the restriction imposed by the section of the Code above cited.

The certiorari must be quashed, with fifty dollars costs and disbursements.

LANDON and MAYHAM, JJ., concur.

THE PEOPLE ex rel. HENRY J. GREEN, Resp't, v. THE BOARD OF EDUCATION OF THE CITY OF COнOES et al., App'lts.

(Supreme Court, General Term, Third Department, Filed September 25, 1890.) MANDAMUS.

A mandamus was granted requiring the board of education to meet, organize and appoint a president. The board appealed. Pending the appeal, the board, under protest, a stay having been denied, met and organized. Upon the hearing in this court, counsel stated that they desired to present the question whether the president was to be elected by the board, or by the common council and the board. Held, that, as the board had organized, the decision of this court would have no effect; and that, therefore, it was improper to make a decision.

APPEAL from an order at special term requiring the board of education of Cohoes to convene and organize. The board appeal. Henry A. King, for app'lt; George II. Fitts, for the City of Cohoes, app'lt; P. D. Niver and J. F. Crawford, for resp't.

LEARNED, P. J.-A mandamus was granted by Judge Fursman requiring the board of education to meet at a certain time and organize and appoint a president. The board appealed. On the coming on of the argument, the relator objected to the hearing of the appeal, and moved to dismiss on the ground that the board had obeyed the writ. The fact that it had done so was admitted in court by the board. It was further stated by the counsel of the board, and this was not denied, that an application was made

to Judge Fursman for a stay of proceedings, and that he denied it; and that an application was then made to another judge of the court for a stay, and that it was denied because Judge Fursman had already refused such a stay. It was further stated that, as no stay could be obtained, the board was obliged to obey the writ, and did so under protest.

The counsel further informed the court that the question which would be presented, if the appeal was heard, was whether under the charter of Cohoes the president of this board was to be chosen by the board or by a body composed of the common council and that board; that the question was important and a decision was greatly desired.

This statement makes us desirous, if it be proper, to dispose of the question which counsel desire to present. But we are met with the difficulty that no decision which we can make can have practical effect in this proceeding. The board has elected a president. If we should hold that the mandamus ought not to have been granted, we could not undo this action. Even if our opinion should state that the president could be appointed only at the joint meeting of the common council and the board, we could not make an order ousting the president who has been appointed. The statement would be an expression of our opinion as to the result of a proceeding of quo warranto. And as an expression of such opinion it might be followed if a quo warranto against that president was brought.

But it is not well for courts to write opinions which can have no practical effect in the case before them. Our business is to decide controversies, not to write essays.

The defendant's counsel urges that to dismiss the appeal nullifies the right of appeal. But it should be observed that there may be a mandamus which has been obeyed where the general term by its reversal can redress the wrong. But in the present case, if we should think that the mandamus was improperly granted, we do not see that a reversal of the order granting it would annul the fact that the board of education did on a certain day appoint a president. Whether that act was valid or not must be determined in a proceeding to which such president is a party. The relator is only an elector of the city of Cohoes and the decision between him and the board of education could not be binding on the president who has been appointed.

The appeal is dismissed, without costs.
LANDON and MAYHAM, JJ., concur.

HENRY VAN WORMER, App'lt, v. GEORGIANA VAN WORMER,

Resp't.

(Supreme Court, General Term, Third Department, Filed September 25, 1890.) DIVORCE-ALIMONY-BAR.

After issue joined in an action of divorce plaintiff's attorney paid to defendant's attorney $100 for counsel fees and took a receipt which stated that the payment was "upon the agreement that no application shall be made for other or further counsel fees or alimony until the result of this action is reached." A trial was had and the jury disagr.ed. The defend