Keene agt. La Farge. make it, and 3d. That she does not desire to have the action continued. BOSWORTH, Chief Justice. In so far as this action proceeds on the idea of a breach by John La Farge, of his implied covenant of quiet enjoyment by the plaintiff, (3 Kernan, 151,) it sounds in contract and continues. In so far as it is based on the allegation of a wrong done by John La Farge, to the rights of the plaintiff as his lessee, it continues by force of section 1 of 2 Revised Statutes, 447. The only other question is, whether the representatives of the deceased defendant may move for and obtain an order continuing the action, or whether the option is given to the plaintiff alone to move or to omit to move, for such an order? The only authority for such a motion, is that furnished by section 121 of the Code. By that, after the lapse of a year from the death of a party, the court cannot allow the action to be continued except upon "a supplemental complaint," such a proceeding cannot be taken by a defendant. Prior to the Code, the death of a sole plaintiff or of a sole defendant, before verdict or interlocutory judgment, abated an action at law, and it could not be continued by or against the representatives of the deceased. (2 R. S. 386 to 389.) The chancellor decided in White agt. Buloid, (2 Paige, 475,) that the personal representatives of a sole complainant who had died might, on their own motion, be substituted as complainants under section 115, 2 Revised Statutes, 184. The language of this section is as general as that part of section 121 of the Code, which applies to motions made within a year after the death of a party, with the exception that section 115 applies only to the case, "when a complainant shall die." But I find no provision in the Revised Statutes, broad enough to enable the representatives of a deceased sole defendant to make such a motion. Section 126, [120,] evidently applies to the case of the death of one of two or more defendants, and not to the death of a sole defendant. If only the representatives of such a deceased party can make Ball agt. Warren. a "motion," within one year after the death, as can be allowed after the year, "on a supplemental complaint," to continue the action, then it would appear that section 121 was designed to confer on the representatives of a deceased sole plaintiff only the election to continue the action or to abandon it, and was not designed to enable the representatives of a sole deceased defendant to compel the plaintiff to continue the action against his will. Such a construction does not deprive the representatives of deceased sole defendant of any rights which they had prior to the Code, nor confer on the representatives of a deceased sole plaintiff any rights which those of a deceased sole "complainant in a suit in equity" did not possess, although in actions at law it enlarges the remedies of the representatives of a deceased sole plaintiff. This construction accords with the view taken of the Revised Statutes, by Chancellor WALWORTH, in Souilliard agt. Dias, (9 Paige, 893.) Motion denied without costs; but an order may be entered that the action be discontinued, unless the plaintiff serve within ten days after written notice of the order to be entered hereon a consent that an order be entered continuing the action. SUPREME COURT ROYAL BALL agt. HENRY WARREN and others. THE FARMERS' BANK OF LANSINGBURGH agt. HENRY WARREN and others. A motion to vacate or supersede a writ of certiorari issued to remove proceedings into this court, may be made before the return to the writ has been filed. But where the motion is to quash the writ for irregularity, it cannot be entertained until the return is made and filed. A writ of certiorari to remove proceedings in an action into this court is ineffectual if not filed with the clerk of the court before judgment in the action. Where judgment had been recovered in mayor's court against several defendants, Ball agt. Warren. and execution issued and levy made, but as to one of the defendants, an order of the court had been granted, staying proceedings to enable him to defend the action, and after issue joined he brought a certiorari to remove the cause into this court; Held, that it was too late, the judgment even as against this defendant had not been vacated, but remained of record. Albany Special Term, December, 1857. These actions were commenced in the Troy mayor's court, in March, 1857. Each action was brought upon a promissory note made by one Chichester, and indorsed by the defendants, On the 4th of April, 1857, judgment was perfected in each ac tion against all the defendants by default. The amount of the judgment in the first action is $312.39, and in the other $369.86. On the 14th of May, 1857, an order was made by the Troy mayor's court, upon the application of the defendants, by which the default and all subsequent proceedings in these causes were so far set aside, as to allow the defendants therein to interpose a defence within ten days. But the judgment entered, and the execution issued and the levy made in each of said causes was to stand as security for any judgment which might ultimately be recovered in the actions. The defendant Warren, within the time allowed by the or der, put in an answer in which he set up usury as a defence in each cause. The issues were noticed for trial at a term of the mayor's court, to be held on the 8th day of December. On the morning of that day, writs of certiorari were duly allowed by a justice of the supreme court, removing the causes into this court, under the provisions of the Revised Statutes relating to the removal of causes from inferior courts. (2 R. S. 389.) The defendant also offered to pay the costs of notic ing the cause for trial. The costs were by stipulation between the parties taxed on the 9th of December, at about $25 in each cause. The plaintiffs moved to "set aside, dismiss and vacate," the writs of certiorari in each cause. Ball agt. Warren. M. I. TOWNSEND, for plaintiffs. HARRIS, Justice. It was objected on the part of the defendant that this motion is premature, inasmuch as no return had been made to the writs of certiorari. Were this to be regarded as a motion to quash the writs for irregularity, the objection would be well taken. But regarding it as an application to supersede the writs, because improperly allowed, the objection cannot prevail. "If the writ be misdirected or otherwise bad in point of law," says Tidd, "the court will order it to be quashed if before them, or if not returned will grant a super. sedeas." (1 Tidd's Pr. 335. See also 2 Burrell's Pr. 250; Graham's Pr. 557; Ferguson agt. Jones, 12 Wend. 241.) It becomes necessary, therefore, to inquire whether the writs were properly allowed. Judgments had been recovered against all the defendants in each action. Executions had been issued and a levy made upon the property of the defendants. As to all the defendants except Warren, these judg ments and executions remain in full force. As to Warren, the effect of the order of the 14th of May, was not to vacate or set aside the judgments but to suspend proceedings until it should be ascertained by a trial whether this defendant in fact had a defence to the actions. If upon such trial he should be able to sustain his defence, the judgments might be set aside, but if not, then they would be enforced. The statute provides that a certiorari to remove an action into the supreme court from an inferior court, shall not be ef fectual for that purpose, unless it be filed with the clerk of the court before judgment is entered in such action. (2 R. S. 389, §7.) In these cases judgments had been entered, and had not been vacated. The writs, therefore, were not effectual to remove the actions. The plaintiffs are entitled to an order that the writs of certiorari be superseded. I think, too, that the defendant should be charged with the costs of the motion. Guild agt. Parsons. SUPERIOR COURT. GUILD, Administrator of B. H. BENJAMIN, deceased, plaintiff and appellant agt. C. S. PARSONS, executor, and MARY TAYLOR, executrix, &c., of WM. TAYLOR, deceased, defendants and respondents. When an order is made, allowing an amended supplemental complaint to be served, and such a complaint is thereupon served, and the defendants appeal from such order, and also demur to such complaint, and the demurrer is sustained and such order reversed, and the plaintiff has appealed from the order sustaining such demurrer, the latter appeal necessarily falls by the reversal of the order allowing the amended supplemental complaint to be filed. Although an order will be entered on the application of the defendants, dismissing the appeal from the order sustaining such demurrer, the appeal will be dismissed without costs. Before BOSWORTH, Ch. J., HOFFMAN, SLOSSON and PIERREPONT, Justices. THE defendants move to dismiss an appeal taken by the plaintiff from an order, (made on the 19th of June, 1858,) sustaining a demurrer to plaintiff's amended supplemental complaint. This amended supplemental complaint was served pursuant to an order made December 22d, 1856. The defendants ap pealed from that order, and demurred to the said complaint. Which of these two proceedings was first taken, does not appear on the papers on which the motion to dismiss was made. The order of the 22d of December, 1856, was reversed on the 26.h of June, 1858, and a copy of the order of reversal was served on the 26th of July, 1858. The plaintiff appealed from the order of the 19th of June, 1858, but whether before or after the 26th of June, is not shown on this motion. The defendants noticed that appeal for argument, for the October term, 1858, and placed the cause on the general term calendar, and now move on an |