The People ex rel. Gorman agt. The Board of Metropolitan Police. the proceedings were instituted, the relator was in office or not. It is true, that if the relator was not actually in office at the time the charges were preferred against him, the Board of Police would have had no authority to try him, even if he had been served with notice to appear before them. The proceedings would have been absolutely void. And yet they should not be allowed to stand upon record against the relator. Were the only effect of a sentence of dismissal to remove the party from office, he would have no right to complain of such sentence, if at the time it was pronounced, he was already out of office. But it is declared by the 12th section of the act organizing the Board of Police, that no person who shall ever have been removed from the police force for cause, shall be re-appointed by the Board of Police to any office. The effect of the sentence, so long as it stands unreversed, is to furnish pri ma facie evidence that the relator is disqualified from holding office in the Metropolitan police force. Conceding, therefore, that the relator was not in office, he still had a right to have the proceedings against him reversed, on the ground that their effect, if allowed to stand, might be to render him ineligible to office in future. It is insisted on the part of the defendants, that the decision of which the relator complains cannot be reviewed upon certiorari. If, as the counsel for the defendants suppose, the order or sentence dismissing the relator from office was an exercise of administrative or executive power, the objection would, undoubtedly, be well grounded. But the proceedings in question are to be regarded as judicial in their character. It is the office of certiorari to confine inferior officers or tribunals exercising judicial powers, within the boundaries of their jurisdiction. The order in question being a judicial proceeding, it is a proper subject of review upon certiorari. As we have al ready seen, the relator was entitled to be heard before the defendants were authorized to make the order against him. Not having had this opportunity, the proceedings were illegal. Upon this ground alone, and without reference to the question, Haywood agt. Shaw and others. whether at the time the proceedings were instituted against him, the relator was in office or not, the judgment of the supreme court should be affirmed. All the judges concurring; judgment affirmed. SUPREME COURT. HAYWOOD agt. SHAW and others. The omission to record an instrument does not prejudice the right of the grantee, as against a subsequent grantee, with notice. It was held in this case, that the plaintiff through his agent, had notice from the facts and circumstances, of a prior mortgage to his own, although it was unrecorded; and that such prior mortgage was decreed to be prior in lien upon the premises, to the plaintiff's mortgage. New York Special Term, April, 1858. APPLICATION for judgment on mortgage foreclosure. for plaintiff. CLERKE, Justice. The omission to record an instrument, does not prejudice the right of the grantee as against a subsequent grantee, with notice. The only question here is, had the plaintiff notice? The plaintiff and his agent well knew that Shaw was not the owner of the property, at the time of the negotiation relative to the loan; but that he was about to purchase it from the defendant Morrill. His agent knew that the house was worth $10,000, and that that was the price for which it was to be sold. He knew that Shaw had no cash to pay for it, but the $1,000 which he was to procure from the plaintiff, and that there was a prior mortgage for $5,000. Could they have supposed, that, contrary to all usage, the ven Cruyt agt. Phillips. dor would have taken an unsecured promise for the remainder? When we add to this, the much stronger circumstance, that all parties were present at the time of the delivery of the deed by the vendor to Shaw, the delivery of the mortgage for a part of the consideration by Shaw, the drawing of the notes, and the payment of the $1,000 lent by the plaintiff to Shaw, the only amount in cash paid on the transaction, and the delivery of the mortgage to the plaintiff's agent, to secure the plaintiff's loan, it is difficult to imagine that the plaintiff through his agent, had not notice of the vendor's mortgage. I therefore adjudge the priority of Miss Morrill's mortgage, and let it be referred to John Harnett, Esq., 39 Williamstreet, to ascertain the amount due on each mortgage, and when this is ascertained, let judgment be entered accordingly, payment to be made out of the proceeds of the sale, according to the priority here adjudged, without costs to the plaintiff, and if the proceeds are not sufficient to pay Miss Morrill's costs, the plaintiff must pay them. SUPREME COURT. CHARLES CRUYT, Respondent agt. JOHN PHILLIPS, Appellant. In pleading an attachment, it is not necessary to show its regularity in order to show jurisdiction in the officer issuing it, and jurisdiction is all that need be pleaded. In an action on an undertaking on attachment in a court of general jurisdiction, it is unnecessary even to allege jurisdiction. It is enough to allege the pendency of such a suit; the jurisdiction of the officer to issue the attachment not depending upon the truth or sufficiency of the facts upon which the attachment was granted, but upon the jurisdiction of the court in which the suit was brought, and the order made. Kings General Term, February, 1858. APPEAL from judgment of city court of Brooklyn, overruling demurrer of defendant to complaint of plaintiff. Cruyt agt. Phillips. This action was originally commenced in the city court of Brooklyn, by Charles Cruyt, plaintiff, against William F. Schmidt and John Phillips, defendants. The complaint was as follows: The complaint in this action respectfully shows, that on or about the 13th day of September, 1854, an attachment issued out of the supreme court, in an action commenced by Charles Cruyt, the plaintiff herein, against Paul M. Biebuyck, to recover, First, the proceeds of the sale of certain goods, laces and embroideries of the plaintiff, and damages for the conversion of said Biebuyck to his own use of certain other goods, laces and embroideries of said plaintiff; second, for money lent by said plaintiff to said Biebuyck on his own request; and third, for money due by said Biebuyck to said plaintiff; that afterwards, and on or about the first of November, 1854, the said Biebuyck having appeared in said action, and being about to apply for a discharge of said attachment, the defendants herein, William F. Schmidt and John Phillips, undertook in the sum of $1,700, that they would, on demand, pay to the plaintiff, said Cruyt, the amount of the judgment which might be recovered against said Biebuyck in that action, not exceeding said last-mentioned amount; that said attachment was thereupon discharged, and that subsequently, and on the 5th of July, 1855, said plaintiff recovered a judg ment against said Biebuyck, in said action, for $416.40 damages and costs, as appears by the record and docket thereof, duly entered and docketed, July 5th, 1855, in the county clerk's office of Kings county; that the said Biebuyck has not paid the amount of said judgment, or any part thereof; that a demand of payment thereof to said plaintiff was duly made of said defendants, on or about the 15th day of March, 1856, which they and each of them refused; and that they have never paid the same, or any part thereof, to said plaintiff, although often requested and demanded so to do, but are justly indebted to the plaintiff, by reason of the premises, in the sum of $416.40, with interest thereon from July 5th, 1855. Wherefore, &c., the defendants demurred to the complaint, for want of sufficient facts to constitute a cause of action. The Cruyt agt. Phillips. demurrer being overruled and judgment entered thereupon, the defendant Phillips, appealed therefrom to the general term of this court. J. D. DUNN, for appellant, made and argued the following points: First. Prior to the Code, it was necessary in pleading the proceedings of inferior courts or officers of special jurisdiction, to state the facts conferring jurisdiction. (Cleveland agt. Rogers, 6 Wend. 438; Cornell agt. Barnes, 7 Hill, 36, and *note; The People agt. Koeber, 7 Hill, 39; Barnes agt. Harris, 3 Barbour, 603.) Second. The Code contains no provision dispensing with this necessity, except that which is embraced in section 161, which is as follows: "In pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judg ment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction." Third. The officer issuing a warrant of attachment, is an officer of special and limited jurisdiction. 1st. The power to issue an attachment is derived from special statute. (Code, § 228.) 2d. The act of issuing an attachment is not the act of the court as such, but the act of the judge from whom the warrant is obtained, who may be either a judge of the court in which the action is brought, or a county jndge. (Code, § 228.) 3d. The act of issuing an attachment is an act done out of court, and a justice of the supreme court, like any other officer when acting out of court, is an officer of limited jurisdiction. (13 Howard's Rep. p. 374.) Fourth. The complaint in this action is bad, inasmuch as it neither sets up the facts necessary to confer jurisdiction upon the officer who issued the attachment, nor does it state that an attachment was duly issued. |