New York Ice Co. agt. Northwestern Ins. Co. adduced on both sides on the question of reformation, held that the plaintiffs had not shown themselves entitled to that relief, and dismissed the complaint, making on the 23d of December, 1859, the following order: "It is ordered and adjudged that plaintiffs are not entitled to the relief prayed in this complaint, to have the policy reformed; and that said complaint be and is hereby dismissed, without prejudice, however, to said plaintiffs' right to bring an action at law upon the policy of insurance set out in the complaint. It is further ordered that the said dismissal be without costs to either party." Afterwards, on the 5th July, 1860, Judge INGRAHAM, on application of plaintiffs, made an order amending the above order by inserting therein, after the words "set out in the complaint," the words "or the plaintiffs may serve a new complaint at law in this action on payment by plaintiffs to defendants of all interlocutory costs since the filing of the complaint, and costs of this motion, ten dollars." From the order of July 5th the defendants appealed to the general term. Pending this appeal, plaintiffs, on the 17th of July, 1860, pursuant to the order of July 5, 1860, served defendants with a new complaint at law in the action which had been tried and decided by Judge INGRAHAM; and on the 21st of July, plaintiffs, pursuant to the order of December 23, 1859, commenced this action by the service of a summons and complaint, accompanied with a written notice, stating that the new action was commenced as a precautionary measure to prevent defendants from setting up as a defence that no action had been commenced within twelve months after the loss, and further stating that the complaint served with the notice, and the complaint served on July 17, 1860, were identically the same and for the same claim or cause of action, and that the summons served with the notice was for the same cause of action as the summons in the action which had been tried. New York Ice Co. agt. Northwestern Ins. Co. The defendants' counsel, on the argument, claimed that the written notice had misled the defendants' attorneys, and had induced in their minds a belief that this action, from and after the service of the summons and complaint and accompanying written notice, was to remain in statu quo until after the decision of the appeal from the order of July 5, 1860, when, if the order so appealed from should be reversed, this action should be proceeded with. The question would naturally present itself what was to become of this action, in case the order of July 5, 1860, was affirmed. The defendants' counsel has not told us what belief on this point was induced in the minds of defendants' attorneys by the notice. The notice states nothing specifically, in respect to the plaintiffs' intention to prosecute or not to prosecute defendants in the event of the decision of the appeal. Would the defendants' attorneys, on the affirmance of the order of July 5, 1860, have considered this action as being ipso facto out of court, or as having been never commenced? It is not contended that the notice had the effect of rendering the service of the summons and complaint nugatory, so that no action was thereby commenced; but simply that the notice induced a belief that no proceedings were to be had in this action, except upon the happening of a certain contingency. The notice did not legitimately have any such effect. It did not deprive or in any way limit defendants as to any defence they might have to the action, or to any proceeding they might see fit to take in relation thereto. It only apprised them of the object of the action, leaving it to them to enter into a stipulation with plaintiffs respecting the prosecution or non-prosecution of the action, or to apply to the court, if they saw fit, for an order extending the time to answer or demur, or make such motion in relation to the complaint as they should see proper till after the decision of the appeal. The defendants did neither. The utmost that they did was to obtain from plaintiffs' attorney oral extensions of time to answer. New York Ice Co. agt. Northwestern Ins. Co. But if there is any doubt as to whether this notice legitimately tended to mislead defendants, the affidavits read by the plaintiffs on this motion show that defendants' attor neys were not in fact misled. Those affidavits show that long before the decision of the appeal, to wit, in September, October and November, 1860, (the appeal was decided December 13, 1860,) plaintiffs' attorney and his clerk frequently requested one of defendants' attorneys to send in their answer to the complaint, which said defendants' attor ney as often promised to do, and that particularly said defendants' attorney, in answer to one of plaintiffs' attor neys' application for an answer, wrote the following note to plaintiffs' attorneys: "October 3. "Dear sir: Your answer must be put in, and shall be shortly. Do be patient till we enter judgment in the omnibus suit, if it is ever done. T. T. P." There is no affidavit contradicting the allegations in plaintiffs' affidavit. Their requests and promises are totally inconsistent with the idea that the defendants' attorneys were under the impression that there was to be no answer put in and no proceeding had in this action till after the decision of the appeal. There is, consequently, nothing to take the case out of the operation of Rule 50, and the preliminary objection is well taken. Motion denied with costs. Lovell agt. Martin. NEW YORK COMMON PLEAS. LOVELL agt. Martin. Where a motion to vacate an order of arrest is made and denied, it cannc be renewed on any state of facts, without leave of the court. New York Special Term, May, 1861. MOTION to vacate order of arrest. BRADY, J. The defendant made a motion to discharge the order of arrest in this case on the affidavits only on which the order of arrest was granted. He now moves, that motion having been denied, to discharge the order on affidavits on his own behalf and without any previous appli cation for leave to renew the motion. The plaintiff objects that the first motion is decisive, and that the defendant's remedy is by appeal and by that mode culy. I have not been able to find any case decisive of the question, or any in which the question was considered. I think it beyond reasonable doubt, however, that the second motion cannot be made without leave, no matter upon what state of facts such leave may be given. The defendant may serve affidavits if he choose to do so in the first instance, and urge on the motion the insufficiency of the original affidavits. If they are sufficiently strengthened by counter affidavits the defect is cured, otherwise it is available of course. By predicating the motion on the plaiutiff's affidavits the defendant admits them to be true, as stated in Hatborn agt. Hall (4 Abb. 227), and cannot be permitted without good cause shown to deny them. Several motions for the same relief are not contemplated by the Code and are not tolerated by the general practice of the courts. When a motion is renewed, it is upon new facts discovered since the motion was made or subsequently arising. For these reasons and for the purpose of conforming this practice to the general Hennessey agt. The People. proceedings on motions, I think this application should be denied, but without costs and without prejudice to the defendant's right to ask leave to renew the motion to discharge order of arrest. SUPREME COURT. PATRICK HENNESSEY, plaintiff in error agt. THE PEOPLE, defendants in error. If a person set fire to a building, and thereby an adjoining building is set fire to or burnt, he can be indicted and convicted of setting fire to the latter. Where the prisoner was indicted for arson in the first degree, for feloniously setting fire in the night-time to the inhabited dwelling house of Caroline Brown, No. 35 Goerck street, in the city of New York, and the evidence tended to show that the prisoner set fire to his own store, No. 33 Goerck street, in which he had goods insured, and that the fire communicated to the dwelling house No. 35, adjoining, which was assumed on the trial to be inhabited, Held, that the jury were authorized to disregard the circumstance of the dwelling house being inhabited, and to find a verdict of arson in the third degree. (ALLEN, J., dissenting.) New York General Term, June, 1861. C. O'CONNOR, for plaintiff in error. N. J. WATERBURY, dist. attorney, for defendant in error. By the court, SUTHERLAND, Justice. The plaintiff in error was indicted and tried at the oyer and terminer for arson in the first degree; that is, for feloniously setting fire to the dwelling house of one Caroline Brown, in which, at the time, there was a human being. The jury found him guilty of arson in the third degree. The evidence showed, that about two o'clock on the morning of the 26th March, 1860, a fire was discovered in the frame building No. 33 Goerck street, in the Thirteenth ward of the city of New York, which had been previously occupied by the prisoner as a grocery store, and as a resi |