PEOPLE on rel. McSPEDON a. THE BOARD OF SUPERVISORS

PEOPLE on rel. McSPEDON a. THE BOARD OF SUPERVISORS. Supreme Court, First District; Special Term, November, 1859. Mandamus.—Return.—Official Certificate. The allegations in a return to an alternative writ of mandamus, seeking to take advantage of technical objections, must distinctly allege such objections. They will be disregarded if left to he drawn as matter of inference. Where the certificate of a board or body is required as the foundation of a claim, the certificate of a majority of them, at a duly convened meeting, is sufficient. If the relator is not entitled to what he demands in the alternative writ, his motion for a peremptory writ should be denied, although it appear that he is entitled to a portion of the relief. The peremptory writ must follow the alternative. Motion for peremptory writ of mandamus upon the return to an alternative writ; and motion to strike out parts of the return. The alternative writ alleged that the relators entered into a contract with the Commissioners of Records, a board created by the act of April 13, 1855, by which the relators were to prepare and print indexes to the records of the county, payment to be made by the chamberlain of the city as the work progressed, upon the certificates of the commissioners ; that they had completed portions of the work entitling them to payment of $47,131.97, and had “in due form of law, obtained and now have in their possession certificates ” therefor, and that the.chamberlain had refused to pay the same, for the reason that there were no moneys in his hands applicable thereto, and that the supervisors had refused or neglected to raise by tax or otherwise the necessary sums, and that the sum of $193,820.26 was necessary to be raised to perform and complete the contract. The relief demanded was that they raise the latter sum, or show cause, &c. The return, after- denying, generally, that the relators had ever in due form of law obtained, or that they had at. the time of issuing the writ, possession of the certificates required, went on to allege that one Miner was register of the city and county, and by the act creating the board, was ex offioio one of the commissioners ; that all the work now in question was done in respect to the records in his office; and that the certificates mentioned in the writ were never signed by him. The other portions of the return, so far as material to the opinion, will appear below. J. W. Edmonds and J. T. Brady, for the relators. I. Our first objection is the averments that Miner did not sign the certificates. A majority did sign, that is all that is required. (2 Rev. 8tat., 555.) It is nowhere averred that a majority did not sign ; but only that one did not. It is not averred that all did not meet. The intendment is most strongly against the pleader. The return is argumentative. It is insufficient. All the substantial allegations of the writ are not answered; the return is evasive. When such objections appear, the relator must not plead, because he then admits the sufficiency of the return; he must not demur, because he then admits the facts; he cannot demur specially; his only remedy is by motion for a peremptory writ, or to strike out of the return. (Vail ads. The People, 1 Wend., 38; People a. N. Y. Com. Pl, 9 Wend., 429 ; People a. Finger, 24 Barb., 341; Com. a. Justices, 2 Virg. Cas., 9.) II. As to the $193,000 in the seventh paragraph, it is evasive. It is nowhere averred that that amount of work has been done, but it is averred that that amount is necessary to complete the contract. That averment is not answered, and the answer as to the $193,000 is evasive and immaterial. III. As to having passed the tax-lists. As to corporation, the office of a mandamus is not. only to set them agoing, but direct the manner of their going. This is a duty on and not discretionary with the defendants. Though the period of levying it for this year has passed, that is no objection. IV. The great point involved is not answered, namely: that we have a contract; are performing it; have earned money in such performance, which is unpaid; that the performance is going on, and more will be earned; and that defendants have refused to raise any thing to pay, either for work done or to be done. V. The Board of Supervisors have ratified the contract, and it is now too late to dispute it. (People a. Powell, before Lott, J., MS) VI. The return is signed by only one of the board. We have a right to the signature of all; that against all we may have our action for false return. A. R. Lawrence, Jr., for the respondents. This motion is of a fourfold character: I. To quash the return, on the ground that it does not show any legal cause for not complying with the alternative writ, &c. II. That a peremptory mandamus issue, notwithstanding such return. III. That the respondents be compelled to elect, between the first and second, and the third, fourth, fifth, and sixth paragraphs of the return, and that one or the other of such divisions of paragraphs be stricken out. IV. That in the event of the first and second, or either of the specified paragraphs not being stricken out, and a peremptory mandamus refused, that relators have leave to demur or take issue on return, and that the issue formed be heard forthwith. These points will be considered in their order, after taking a preliminary objection, which the respondents deem fatal to this motion. Prelimmary Objection. —The time to demur or plead to the return expired on the thirty-first of October, 1859, and it is therefore too late for the relators to move to quash the return, or to compel the respondents to elect between the paragraphs specified in the notice, or to ask for further time to plead or demur. 1. The rule of the court requires a party either to plead or demur within twenty days after service of notice so to do, and provides that if no plea or demurrer to such return be interposed within that time, either party may notice the matter for a hearing, &c., and the same shall be heard and disposed of on the said return (Rule 51, 1858); and by neglecting to plead or demur, the facts alleged in the return are admitted to be true, and the case will be determined by the court the same as if the relators had formally demurred. (People a. Com. of Highways, 7 Wend., 475; People a. Cayuga Com. Pl, 10 Ib., 632; People a. Beebe, 1 Barb., S. C. R., 379, 384.) Of course, as the facts are admitted to be true, the allegations setting them up cannot be stricken out of the return. 2. There is no rule of the court, nor any practice, which allows a party to move to quash and strike out portions of a return, and yet reserve to himself the right to plead or formally demur, in case such motion is decided against him, unless such motion be made within the twenty days specified in rule 51, above cited. If the court does not coincide with the respondents, in the above preliminary objection, there are the following reasons why the motion should be denied: I. A return to a writ of mandamus will not be quashed, unless it is clearly defective upon its face. (2 Burrills Pr., 178, 179 ; Tapping on Mand., vol. 60, Law Lib., new series, 412, 413, marg., 372, 373, and cases cited.) Unless, therefore, the court can see that in no aspect can the matters set forth in the return be a defence to the writ, the motion must be denied. The rule is not to intend any thing against the return. (2 Selwyn’s N. P., 834, p. 1111, Am. ed., 1839; Rex a. Mayor of Lyme Regis, Douglas, 157; Stephens’ Nisi Prius, 2326.) II. The motion to quash admits the facts stated in the return, and the court can only consider whether the matters of fact returned-are a sufficient answer or not to the mandamus. (Tapping on Mand., vol. 60, Law Lib., new series, 412, 413, marg., 372, 373, and cases cited.) The inquiry then is, are the facts stated in the return a sufficient answer to the writ ? The return presents three general defences, which, for convenience’ sake, have been divided into paragraphs. 1. That the certificates set forth in the mandamus are not in conformity with the requirements of the law under which the Commissioners of Record are acting, and it sets forth the facts supposed to show the defects in the certificates. 2. A denial that the amount specified in the writ has been expended by the commissioners, or that such expense has been incurred, or that the said amount is due to the relators, &c., or that the work has been performed by relators, &c. 3. That the tax-levy has been regularly confirmed, &c., and a large proportion of the taxes for the year 1859 collected. Neither of these defences or answers can be called insufficient, on the ground of immateriality. 1. If there is a defect in the certificates, the respondents are not entitled to be paid, under the law of 1855. (See Laws of 1855, 753.) 2. If the amount claimed in the writ has not been expended by commissioners, or has not been earned by relators, of course they are entitled to no relief. 3. The fact that a large proportion of the taxes for the year 1859 has been collected, appeals very strongly to the discretion of the court in regard to granting a peremptory mandamus, even if it should be satisfied that the other answers are of no avail. The writ of mandamus is a prerogative writ, and the court will exercise a discretion as well in refusing as in granting it. (Ex parte Fleming, per Cowen, J., 4 Hill, 581; Van Rensselaer a. Sheriff of Albany, 1 Cow., 502; 2 Burrills Pr., 76 ; People a. Canal Board, 13 Barb., 432; People a. Supervisors of Westchester, 15 Ib., 607; S. C., 12 Ib., 452.) It cannot, therefore, be said that the facts stated in the return are immaterial. Neither can it be contended that the facts stated are insufficient on the ground of inconsistency. The rule of law is, that “ wherever there is a mandamus directed to a party to do some act, or return some cause to the contrary, it is competent to that person to return as many causes to the whole of the writ, or to distinct portions of it, as he pleases, provided they are not inconsistent with each other.” (Tapping on Mandamus, vol. 60, Law Lib., N. S., 401, marginal, 360; Regina a. Mayor of Norwich, 2 Salkeld, 436 ; Wright a. Fawcett, 4 Burr., 2041; Rex a. Church-wardens, Taunton, St. James, Cowper, 413—a return very much like this; Green a. Mayor of Durham, 1 Burr., 127; Rex a. Mayor of York, 5 Term R., 67, 68; Rex a. Manor of Old Hall, 10 A. & E., 248; Rex a. North Midland Railway, 11 Ib., 955 ; Rex a. Mayor of Mew Hudson, 7 Q. B., 917; Stephens’ Nisi Prius, 2326, tit. “ Mandamus.”) The first, second, third, fourth, fifth, and sixth paragraphs are direct denials of the allegations in the writ relative to the certificates alleged to be in the possession of the relators. (See Writ, folios 76 to 80, also folios 81 to 101.) The seventh allegation denies the expenditure of the amount claimed in the writ, and that the same has been incurred; also that the work has been done by relators or that the amount is due to them. The remaining allegations show the passage of the tax-levy and the payment of a large proportion of the tax for 1859. Mor are these defences repugnant or contradictory. The motion to quash cannot then be granted upon any of the principles laid down in the books as applicable to such a motion. (Tapping on Mandamus, 402; vol. 60, Law Lib., N. S., marginal, 361.) III. If the grounds taken- in the first and second points are correct, the motion of the relators for a peremptory mandamus, notwithstanding the return, must be denied. Where a return is prima facie sufficient, so that a motion to quash will not be granted, a peremptory mandamus will not be awarded upon a mere motion, but the relator will be put to his demurrer (Tapping on Mandamus, vol. 60, Law Lib., N. S., 412, 418, marg., 372, 373); and rule 51 of this court contemplates that a relator shall, if he does not succeed in quashing the return, or does not plead or demur thereto, formally notice the cause for a hearing, so that a final argument can be had upon the writ and the return. It does not allow the relator to couple such a notice of hearing with a notice of motion to quash the return. IV. The respondents cannot be compelled to elect between the first and second, and the third, fourth, fifth, and sixth paragraphs of their return. Each and all of those paragraphs distinctly refer to the same defence, to wit: the insufficiency of the certificates alleged to be in the possession of the relator. The first and second paragraphs are but matter of inducement to the third, fourth, fifth, and sixth paragraphs. The first and second paragraphs cannot be objected to as stating matter of law, for these reasons: 1. An averment in a return that an act was not done in due form of law, has frequently been decided to be good. (Rex a. Church-wardens, Taunton, St. James, Cowper, 413 ; Wright a. Fawcett, 4 Burr., 2040.) In the first of these cases the return was that a party “was not duly elected sexton according to ancient custom,” &c. It was held good. In the second case the alternative writ set forth that Wright, the relator, was duly elected a freeman of the "borough of Horpeth, and that thereby he became lawfully entitled to be sworn and admitted, &c., by the stewards. The return by the steward was, among other things, that Wright was not duly elected, &c. Lord Mansfield delivered the opinion of the court sustaining the return. In the case before the court the writ avers that the relators have “ in due form of law obtained, and now have in their possession the certificates of the said commissioners,” &c. To this the respondents reply that the relators have not, in due form of law, obtained, &c. Mow where is the difference between averring that a party “ was not duly elected,” and that “ he had not, in due form of law, obtained,” &c. If the one averment is good, the other is good also, and we have the authority of Lord Mansfield for saying that the former averment is a good one. 2. Nor can it be contended that there is duplicity in the paragraphs specified in the notice, for if there be duplicity in the return, there is duplicity in the writ also, as the return follows the allegation in the writ. (See Wright a. Fawcett, 2 Burr., 2041—remarks of Lord Mansfield; and see Tapping on Mandamus, vol. 60, Law Lib., N. S., 402, 403, marginal, 361.) And it will be recollected that the rules of pleading, under the Code, do not apply in the writ of mandamus. (Code, § 47; People on rel. Dinsmore a. Croton Aqueduct Board, 5 Abbotts’ Pr. R., 373.) The rules of pleading in force before the adoption of the Code are, therefore, applicable to this case (and see Tapp, on Mand., vol. 60, Law Lib., N. S., 356, marginal, 309). The old rule, therefore, applies, that “ if a pleading be bad, judgment shall be given against him who made the first default.” (Mansell on Demurrer, vol. 10, Law Lib., N. S., 60, marginal paging, 90.) And upon a motion to quash the return the respondent may attack the writ and impeach its validity. (Clark a. Leicestershire Canal, 6 Queen’s Bench,, 898; and see particularly The Commercial Bank of Albany a. The Canal Commissioners, 10 Wend., 31.) V. If the court are with the respondents upon the foregoing points, it is respectfully submitted that there are no reasons why the relators should be allowed to plead or demur to the return, nor why the case should be heard forthwith in case they are allowed to plead or demur. They have had the notice served upon them which the rules of the court require; they have had twenty days in which to come to a determination whether they would attack the return as defective, on a motion to quash, or whether they would admit the fact by demurring, or deny them by pleading; they have chosen to make amotion to quash. The rule says, that if the relators do not plead or demur within the twenty days, the case must be heard upon the return and writ. That is the penalty that the relators must pay for not pleading or demurring in the first, instance. Besides, the relators can raise all legal questions upon the argument on the writ and return. This case is one of such importance, that it should not be turned off with a hasty hearing on a motion. It should take its place upon the regular special-term calendar, and be heard as a calendar cause. As to the defects in the alternative writ, and its failure to show any ground for relief to the relators, the counsel for the respondents argued the following Additional Points. I. The certificates set forth in the writ are fatally defective. 1. The act of 1855, creating the commissioners of records, provides that the “said clerk, register, and'1 surrogate, shall be ex officio commissioners in reference to their respective offices.” It then declares that “ the said commissioners shall receive no compensation for their services;” and further, that “the necessary expenses incurred by them shall be paid by the county treasurer, upon the certificate of said commissioners; and the supervisors of said city and county are hereby authorized to raise by tax the amount required to defray the same.” (Laws of 1855, 763.) It is obvious that the words “said commissioners,” used in referring to the certificate, embrace all the commissioners having, by the act, any power over or cognizance of the expense incurred in reference to either of the three offices mentioned in the act. Where, therefore, any expense has been incurred in reference to the office of register, it must be certified to by such register, he being as fully a commissioner in relation thereto as either of the four persons designated in the act by name. Mone of the certificates set forth in the writ were signed by the register. 2. It is a condition precedent to the right of the relators to relief, that they should show that they have received the certificates in the form and manner provided by the act. (Smith a. Briggs, 3 Den., 73 ; Adams a. Mayor, 4 Duer, 295; and see Butler a. Tucker, 24 Wend., 449; Mokely a. Riggs, 19 Johns., 71; Carpenter a. Stevens, 12 Wend., 590; Paige a. Ott, 5 Den., 406; Oakley a. Morton, 1 Kern., 25.) The writ should contain allegations of all such facts as are necessary to show that the relator is entitled to the relief he prays for. (Tapping on Mand., 321, Law Lib., vol. 60, p. 366, and cases cited; People a. Ranson, 2 Comst., 490; Commercial Bank of Albany a. Canal Bank Commissioners, 10 Wend., 25; People a. Supervisors of Westchester, 15 Barb., 607.) The writ is therefore defective, inasmuch as it shows upon its face that the certificates alleged to have been received by the relators were not signed by the register of the city and county of Mew York. Besides, the facts stated in the return are admitted, and it appears affirmatively that the register never signed any of the alleged certificates. 3. It cannot be presumed that the register was present with the other commissioners at the time the alleged certificates were signed, or that he in any way acted with the other commissioners in giving the same, or assented thereto; because, even conceding that a majority might give the certificates, they could exercise such power only upon a meeting of all. (3 Rev. Slat., 867, 5th ed.; 2 Ib., 555, 1st ed.; People a. Supervisors of Chenango, 1 Kern., 571, and cases cited.) Again, the writ should distinctly show the fact that all of the commissioners were present when such certificates were signed. II. The relators, according to their own showing, are not entitled to the writ which they demand in this case. 1. The aggregate amount for which they claim to have obtained certificates from the commissioners of records is $47,131.97. They ask for a writ, commanding the respondents to convene, and raise by tax the sum of $193,820.26. Where the alternative mandamus demands too much, judgment must be given for the respondents. (People a. Supervisors of Dutchess, 1 Hill, 55; and see Tapping on Mandamus, vol. 60, Law Lib., N. S., 439, marginal paging, 402, 403.) 2. A party is not entitled to a writ,. unless he has a clear legal right to demand what is asked for in his writ. (People a. Supervisors of Chenango, 1 Kern., 563; People a. Canal Board, 13 Barb., 444; The People ex rel. Bailey a. Supervisors of Greene, 12 Ib., 217; People a. The Corporation of Brooklyn, 1 Wend., 324; People a. The Supervisors of Columbia Co., 10 Ib., 366; Life and Eire Insurance Co. of New York a. The Heirs of Nicholas Wilson, 8 Pet, 291; and see Tapping on Mandamus, vol. 60, Law Lib., N. S., 62, marginal paging 9, 10.) It is not pretended that the relators have performed work amounting in value to the sum of $193,820.26. (See Writ, 40, f. 110.) They have, therefore, no legal right to such a sum, or to process to enforce the raising of the same. 3. It cannot be contended that the recital in the writ, that the sum of $193,820.26 is necessary to be raised in order to perform and complete the contract of the relators (even if such recital be true) entitles them to a mandamus; because, the relators have no right to the moneys in the hands of the Commissioners of Records, either by the law of 1855 or by the contract, until they have performed the work, labor, or services, to pay for which such money was raised. (Laws of 1855,763; Writ, 6, 7.) The court cannot assume that the relators will ever perform such work, labor, or services. The relators are not empowered by law to determine what amount may become necessary to defray the expenses of executing the contract. The Commissioners of Records are the proper parties to make an application to the court for aid in raising such necessary expenses. 4. It is only when an expense has been incurred, and a proper certificate of the fact has been given by the commissioners, that the county treasurer is directed to pay the same,- or the respondents authorized to raise the amount thereof by tax. The expense of $193,820.26 is not alleged in the writ to have been incurred by the commissioners, and the return denies that such expense has been incurred. “ Expense is defined as 1 money expended or' laid out.’ To incur’ means, ‘ to become liable to.’” (Johnson's Dictionary.) Of course the commissioners have not actually spent the sum of $193,820.26. They have not become liable to the relators for that amount, nor can they become liable to them until the relators have performed work of that value. Performance of the work must precede the incurring of the expense. If the construction contended for by the relators is correct, the instant the contract was executed, and before any work was performed by them, the respondents were bound to raise any amount which the commissioners might deem that they would eventually require, to pay for work performed by the relators under such contract. Such a construction, it is respectfully submitted, would be absurd. 5. Again, it is only the “ necessary expenses” that are to be paid by the county treasurer, or raised by the respondents. JSTo expense can be considered as “ necessary” until some legal liability has been incurred to make the same. III. The Commissioners of Records are the proper parties to apply for process against the respondents, if they have illegally neglected to raise the “necessary expenses incurred by such commissioners.” The application cannot be made by the relators, or any other private individuals. IV. The writ of mandamus is a prerogative writ, and will not be granted where, as in this case, the court can see that a greater public inconvenience will result from its allowance than from its refusal. (People a. Supervisors of Westchester, 15 Barb., 607, 617; 12 Barb., 452; Exp. Fleming, 4 Hill, 581, 589; and see 13 Barb., 450; Van Rensselaer a. Sheriff of Albany, 1 Cow., 501.) 1. A large amount of taxes had been collected previous to the allowance of the alternative writ, and it would cause great embarrassment if the parties who have once paid their taxes for this year should be compelled to pay another tax. 2. The assessment-rolls have passed from the hands of the respondents, and it is not now in their power to add any thing to them. 3. Besides, the respondents, before the granting of the writ, had raised all sums they were directed by annual tax bill of 1859 to raise in this county. V. There is no legal obligation resting upon the respondents to raise any money for the said Commissioners of Records. The act of 1855 is permissive and not mandatory in its terms. And this is not one of those cases in which permissive words will be construed as imperative. (Rex a. Flockwood Inclosure, 2 Chitt., 251; Rex a. Mayor of West Love, 5 D. & R., 414.) VI. The respondents are vested, by the act of 1855, with a discretionary power, and with the exercise of their discretion the court will not interfere. (Tapp. ut supra, 65; Hutchinson a. Commissioners of Canal Fund, 25 Wend., 692; People a. Supervisors of Albany, 12 Johns., 414; Hall a. Supervisors of Oneida, 19 Johns., 259 ; People a. Supervisors of New York, Hill, 362.) [MAJORITY — Ingraham, J.] Ingraham, J. An alternative mandamus was issued in this matter, commanding the respondents to raise by tax a sum exceeding $193,000, to pay the relators the moneys now due them in relation to their contract with the Commissioners of Becords, and to enable them to perform their contract, &c., or show cause why the same should not be raised, &c. On the return of this writ, the respondents submit various objections thereto in their return. The plaintiffs now move to strike out this return, or portions thereof, and for a peremptory mandamus, or for leave to demur. Many of the objections taken to the granting of this writ are of a purely technical character, not involving the merits, and are ¡such as should not be relied on by the Board of Supervisors in refusing to carry out the provisions of law defining their duties in regard thereto. It is wiser for public bodies, taking such a course, to sustain their action by an examination of the merits of the controversy at once, instead of postponing such discussion by resorting to objections upon mere matters of form. As, however, they are made part of this case, it is my duty to pass upon them as presented, so far as may be necessary to decide this motion. The return denies that MeSpedon and Baker, the relators, ever obtained, or had in their possession, certificates of the Commissioners of Becords for any amount due them on their contract. The first and second paragraphs of the return would form a general denial of the allegation that the relators had not such a certificate, were they not qualified by sections 3, 4, 5, and 6, which set out the election of Miner as Register; that he was ex officio one of the commissioners, and that he did not sign the certificates. Taken together, these six paragraphs can only be construed as averring that William Miner was one of the Commissioners of Records, and did not sign the certificates. In form it is bad, because it leaves the defence to be inferred from the facts stated, instead of a distinct averment to that effect. An argumentative return is bad. I think it is bad also in substance. It is not necessary that all the commissioners should sign the certificates. It is enough that they are signed by a majority of them. That appears to be the case as to all the certificates. The commissioners should all have notice of a meeting for the purpose, in order that all may consult together; but it is not in the power of any one who may be dissatisfied, in this way to prevent the payment of what would be a just claim. In all cases where a public duty is to be performed by a specified number, although all must have notice of the meeting, the acts of the majority are binding. This rule is universal, except where the statute expressly requires the assent of all,.and there is no good reason why it should not as well apply to a certificate to be given after the work has been performed, as to a resolution authorizing the contract for it in the first instance. There are other objections to this return which would be worthy of examination, were it not that, for other reasons, the relators are not entitled to the peremptory mandamus; and even if the return should be quashed, the motion for such writ should not be granted. The alternative writ shows that only a portion of the amount claimed to be raised by tax is due to the relators, and claims that the whole amount is required, in order to perform and complete the contract. It is clear, therefore, that at present the relators have no right to this fund, except the portion due for work already performed. They may never complete the contract, and never be entitled to any further payment. The rule is, I think, well settled, that a relator cannot have a peremptory writ unless he shows a clear legal right to what he asks for. (People a. Supervisors, &c., 1 Kern., 563 ; People a. Canal Board, 13 Barb., 444, are cases so holding.) It will not be pretended that these relators, at the present time, have any such claim. Whether they will have or not, at a future period, any such claim, is uncertain. It may not be required during the year, and, in case of a non-performance on their part, might not be needed at any time on this contract. Whether they could apply for a mandamus as to the amount now due them is a question not necessary to the decision of this motion. It is enough that they are not entitled to what is asked for in the writ. To hold otherwise, would be to sanction the principle that any contractor with the city government might, before his contract is completed, insist that the amount contem.plated to be expended under bis contract should be raised by tax, because it was possible he might require it during the coming year. If any one has a right to such a writ, it must he the commissioners who have entered into the contract, and who will require the moneys for payment. It may be said that a part of this sum is now due to the relators. That, however, does not relieve the difficulty. If the writ demands too much, there must be judgment for the respondents. The peremptory writ must follow the alternative mandamus, and there cannot be judgment for the relators for part, and for the respondents for the other part. (People a. Supervisors of Dutchess, 1 Hill, 50.) In the case from 4 Barn. & Cresw., 895, no objection appears to have been made on this point. Eor these reasons, I am of the opinion that the motion for a peremptory mandamus should he denied, and that, although the return is defective, still there is no necessity to strike out any part of it, as no further relief could be given to the relators on this application. As the return is defective, I think it proper to refuse costs to either party on this motion. Motion denied, without costs.