of adultery, in which the courts of this and every other state accept no such excuse, but insist upon a precise statement of times and places before the trial. However this may be, there is no such state of facts here. We have proved that the plaintiff knows perfectly well the times and places at which he pretends that the wrongful acts have been committed. His affidavit admits this to be true, and does not suggest that he has a single hostile wit ness. This suggestion was considered and overruled in Early v. Smith, cited in our appendix. 6. It is suggested that a bill of particulars is only allowed of the claim, and that in this case the claim is the damage and not the specific acts of injury. But we submit that this can not be so. The learned Judge says: "If the wrong be the conversion of personal property, the enumeration or description of it would be the bill of particulars of the claim," thus conceding that by claim is meant not merely the amount of money demanded, but the allegation of wrong done. For in an action for conversion, the plaintiff does not demand the restoration of the property taken, but only claims the money value of that property. If, then, he can be compelled to give a particular description of the property taken from him, why can not a plaintiff alleging an injury of the description alleged in this action be compelled to state the particular instances on which that injury was committed? 7. It is suggested that the defendant can accomplish the same result as that which he now seeks by examining the plaintiff before trial. But this is not so, for while he could thus compel the plaintiff to state the particulars of the alleged confessions made to him, he could not require any pledge that further proof of wrongful acts would not be given upon the trial, nor could the court, upon the basis of such an examination, grant any order precluding such a proof. Moreover, by forcing the defendant into this course, the court would practically compel him to adopt the plaintiff as a witness, and to give the plaintiff an opportunity of putting his own testimony before the jury without his personal attendance; and every lawyer knows how ineffective a crossexamination is when not conducted in the actual presence of the jury.

XIII. The opinion of Judge REYNOLDS, at General Term, does not dispute the power of the court to require particulars to be given, but holds that, as matter of discretion, such an order should not be made. The reasoning of this opinion may be briefly answered, although, as the order is based upon entirely different grounds, this may be a needless task. 1. The learned Judge labors under an entire misapprehension of the effect of a bill of particulars. He evidently supposes that, particulars once being given, the plaintiff would be rigidly tied down to a precise date and a precise place, notwithstanding he should make some slight mistake which did not mislead the defendant, and the correction of which could not operate as a surprise. This is not the case. The court would allow the bill of particulars to be amended in any way before the trial, and would disregard any variance at the trial, if the defendant was not misled thereby. 2. The learned Judge anticipates that the evidence to be produced by the plaintiff will be such as to cause him great embarrassment if particulars are given. Regarding it as probable that the plaintiff will prove confessions of an indefinite nature, the Judge argues that a bill of particulars will exclude evidence not pointing to

specific dates, which he assumes that these confessions will not do. But the answer to this is two-fold: (a.) An interpretation of a bill of particulars which should exclude a general confession mentioning no dates, is an absurdity of which no Judge trying this cause could be guilty. Such a confession would be competent to confirm circumstantial evidence pointing to any date, and would therefore be admissible in aid of evidence given under any imaginable bill of particulars. (b.) If the plaintiff has, in fact, no other evidence than such as is intimated by Judge REYNOLDS, it was his business to say so in his affidavit, and not to leave this fact to be guessed by the court. If for any other reason it was difficult or dangerous for him to give the particulars asked, he should have shown that in the same way. (c.) But, on the contrary, the affidavits showed that the plaintiff claimed to have a confession specific in its nature, giving dates, places, and minute particulars. And the plaintiff never pretended that he had the least difficulty in making out a statement of particulars, nor did even his counsel, on either of the two arguments now had, ever suggest the objection which Judge REYNOLDS has raised. 3. The learned Judge thinks that no support for our motion can be derived from the practice of Chancery on ordering feigned issues, because none were allowed if the bill did not allege adultery with certainty, citing Codd v. Codd (2 Johns. Ch. 224), and Wood v. Wood (2 Paige, 108). But in Codd v. Codd the bill specified no time, place, or person, and was therefore hopelessly vague; and in Wood v. Wood the Chancellor expressly decided that the feigned issue must be more specific than was necessary for the pleadings. The two cases together precisely establish our claim, viz., that if no time or place had been alleged, our remedy would have been by motion to correct the pleading, but that, as the case stands, our proper remedy is by bill of particulars, thus agreeing with Hunt v. Hunt (2 Swab. & T. 574). 4. The other objections of Judge REYNOLDS are fully answered by the very able and conclusive opinion of Judge McCUE. 5. But the most conclusive answer to Judge REYNOLDS' opinion is given by Judge REYNOLDS himself. For, referring to the case of Hunt v. Hunt (2 Swab. & T. 574), in which it was alleged that Mr. Hunt had committed adultery with three women, whose names were given, "in and prior to December, 1861," and to Adams v. Adams (16 Pick. 254), in which the complaint alleged that the defendant had committed adultery "at divers times for a period of eight years," the learned Judge says: "Under a system which tolerates such pleading in an action for divorce, as is instanced in the foregoing references, the complaint must of course be supplemented by a statement of particulars." In our case the plaintiff charges adultery on October 10th, 1868, "and on divers other days and times after that day, for a period of six years”; and this pleading, it is agreed by all the Judges below, is "tolerated" by our system. Is it necessary to argue that "under a system which tolerates such pleading in an action for" crim. con., "the complaint must of course be supplemented by a statement of particulars"? 6. It is said, however, that the stringent rules which govern actions for divorce should not be applied to this action. Why not? Is not the plaintiff in a divorce suit just as ignorant of precise times and places as the plaintiff in a crim. con. suit? Are not the facts to be proved precisely

the same? Have not the courts applied even more stringent rules of evi dence to the proof of marriage in this action than they prescribe in cases of divorce? Is there not precisely the same danger of surprise in this action that there is in divorce? And, in view of the fact that the alleged paramour can appear as a witness for his own vindication in a divorce suit, while an innocent wife can not testify in an action of crim. con., ruinous as it may be to her reputation, should not the courts require at least as much precision in this action as they would in one which gave the wife an opportunity to defend herself? What is there in this species of action-denounced, as it has been, by all moralists, of late years, as infamous and demoralizing—“a remedy worse than the disease "-that should entitle it to such favor from the court? *

Mr. Pryor, for the respondent, argued the following points:

I. The order, if appealable to this court, is reviewable here only by virtue and authority of subdivision 4, section 11, Code of Procedure. 1. "This court has not an unrestricted jurisdiction in the correction of errors, or the review of the orders and decisions of other tribunals. Its jurisdiction is regulated by statute and is confined to the review of such orders and judgments as are expressly mentioned in the act conferring and regulating its powers." ALLEN, J., in Paul v. Munger (47 N. Y. 469, 471). 2. Subdivision 4, section 11, in terms, precludes a review by this court of an order "involving any question of discretion." 3. The application below proceeded upon the last clause of section 158 Code; and that clause, in terms, makes the allowing or denying the order a question of discretion with the original tribunal. Blackie v. Neilson (6 Bosw. 681); Fullerton v. Gaylord (7 Rob. 551); Medbury v. Swan (46 N. Y. 200). 4. That an order "involving a question of discretion " is not reviewable in this court, is settled by repeated adjudications. "Only such orders arising upon any interlocutory proceedings or upon any question of practice, are appealable as affect a substantial right, and do not involve any question of discretion." ALLEN, J., in McCoun v. N. Y. C. & H. R. R. R. Co. (50 N. Y. 177). "This court has steadily disclaimed the right to review, by appeal, an order of a Special Term in matters resting in discretion. This court declines to review discretionary orders as inconsistent with the constitution of the court, and its character as a tribunal in which questions of law only are to be considered." ANDREWS, J., in Livermore v. Bainbridge (15 Abb. Pr., N. S., 436); Medbury v. Swann (46 N. Y. 200) turned on the construction of the word "may," section 177 Code, and the effect of subdivision 4, section 11; and this court held that the word "may," in section 177, is permissive, not mandatory; and the right to set up new matter by supplemental pleading is not absolute, but discretionary, and not appealable to this court. "The questions were addressed to the discretion of the court, and the determination thereof by the

* In England, the old action of crim. con. was abolished, as indecent, in 1858, and an action substituted, in which the damages do not go to the husband, but are invested by the court for the benefit of the wife, while chaste, and of the children. Husbands there can no longer traffic in their own shame.

General Term can not be reviewed by this court." GROVER, J., in Shuttleworth v. Winter (55 N. Y. 624, 629); Gray v. Fisk (53 N. Y. 630). The allowance of a common-law writ of certiorari rests in the sound discretion of the court; and where the conrt below, in the exercise of its discretionary power, quashes the writ, after a hearing upon the merits, this court will not review the decision. RAPALLO, J., in People v. Hill (53 N. Y. 549). Specifically, in point, is Barry v. Mutual Life Ins. Co. (53 N. Y. 536), in which the court, per ALLEN, J., construes and defines the jurisdiction imparted to this court by subdivision 4, section 11 Code; and adjudicates that, under that provision, a discretionary order is not reviewable by the Court of Appeals. The effect of the amendment in 1870 of subdivision 4, section 11, by inserting the words "not involving any question of discretion," is propounded by this court, per RAPALLO, J., in Townsend v. Hendricks (40 How. Pr. 157). "We think the order not appealable to this court. It was discretionary with the court below whether to proceed summarily against the sheriff or leave the parties to litigate in the ordinary way." CHURCH, Ch. J., in Mills v. Davis (53 N. Y. 349); Shuman v. Straus (52 N. Y. 404); Carrington v. Florida R. R. Co. (52 N. Y. 533); People v. Schoonmaker (50 N. Y. 499); Cushman v. Brundrett (Id. 296); Southwick v. Southwick (49 N. Y. 510, 520); Donley v. Graham (48 N. Y. 658); Taylor v. Root (Id. 687); Tauton v. Grok (8 Abb. Pr., N. S., 385), and collection of authorities in note. Colman v. Dixon (50 N. Y. 572). Brown v. Leigh (Ct. of App., 13 Abb. Pr., N. S., 305); Bolles v. Duff (42 N. Y. 256); Hasbrook v. The Kingston, &c. (Ct. of App., 5 Abb. Pr., N. S., 399); Van Dewater v. Kelsey (1 N. Y. 543); Schaettler v. Gardiner (47 N. Y. 404). 5. If there be any decision of this court apparently in conflict with the authorities cited, it will be discovered on examination either: 1st, that the decision turned on some other paragraph of section 11 Code than subdivision 4; or, 2nd, that the right in controversy was absolute and not resting in the discretion of the court; or, 3d, that the decision occurred before 1870, when the words "not involving any question of discretion," were inserted in subdivision 4. 6. Matthews v. Hubbard (47 N. Y. 428) is not contra, because, 1st, it is not apparent, but the action was upon an account, in which event, probably, a bill of particulars is a matter of absolute right; 2nd, the bill of particulars having been given, plaintiff was restricted to recovery of the items stated; and, by expunging any item, he was deprived pro tanto of a right; 3d, no question of jurisdiction was raised or considered in this court.

II. Doubtless appellant's contention is that, although the application, being to the discretion of the court, its denial is not reviewable here; yet, inasmuch as the bill of particulars was refused for want of power in the court to allow it, the order of the General Term is appealable to this court. Russell v. Conn (20 N. Y. 81). But the position is untenable. 1. It is an universally true proposition of law, in support of which it were mere pedantry to adduce authority, that error, to be available on appeal, must appear on the face of the record under review. Hence, in Wright v. Hunter (46 N. Y. 409, 412), on appeal from an order at General Term granting a new trial, this court said that "where the return shows that questions of fact were legitimately before the General Term, and that the evidence was such that the court may have

reversed the judgment on facts, it is impossible to say, from an inspection of the record, that they committed an error of law in granting a new trial, though we should be of opinion that some of the exceptions were well taken." To the same effect are Sands v. Crooke (46 N. Y. 564), and Downing v. Kelly (48 N. Y. 433). Decisively in point is Tracey v. Altmyer (46 N. Y. 598). The appeal was from an order of the General Term, affirming an order denying a motion for a new trial on the ground of surprise and newly discovered evidence. From the opinion of the judge at Special Term, it appeared that the motion had been denied solely on the ground that it could not be made after entry of judgment. This the Court of Appeals held to be error: but proceeded to say, "the General Term had the power to review the order on the merits and upon any and every ground connected therewith. . ... The order of the General Term is simply an affirmance of the order at Special Term. This is entirely consistent with the idea that the General Term considered the merits and determined the same and based the order of affirmance thereon. It was its duty to do so, and the presumption is that this duty was performed, until the contrary appears. It is incumbent on a party seeking a reversal of a judgment or order to show affirmatively that an error was committed to his prejudice. It is not sufficient to show that it may have been committed. . . . . For the reason that it does not appear, (but) that the General Term reviewed the order and passed upon the merits, the order appealed from must be affirmed." Pages 604, 605. Laning v. N. Y. C. R. R. Co. (49 N. Y. 521, 539), is of equivalent import. The appeal was from an order of the General Term denying a new trial. It appeared plainly from the opinion at General Term that its order of affirmance was grounded on an erroneous impression of a want of power. But this court ruled in the following language: "We are not authorized to review a judgment and reverse it for an alleged error which does not appear upon the record, and is not shown or arrived at save by expressions appearing in the opinion of the court.” Accordingly the order was affirmed. Cushman v. Brundrett (50 N. Y. 296) is an equally explicit authority for the proposition, that an appellant, from a discretionary order, must show affirmatively that its allowance involved no exercise of discretion. 2. In fact, neither the order nor the opinion at Special Term shows that appellant's application was denied for lack of power in the court to grant it. In his opinion, Judge NEILSON only disclaims authority to compel respondent to specify the times and places of appellant's confession of the adultery, a power which indisputably no court possesses; a right which appellant himself renounced at General Term. The order at Special Term purports to proceed as well on a want of merits on the part of appellant as on a defect of power in the court-the latter being plainly predicated of the particulars of confession. The judge, it appears, did exercise his discretion, and upon the whole matter, although, as to one branch of the application, he repudiated the power as a speculative proposition. The order at General Term is a simple affirmance of the order at Special Term, and, in itself, imputes no want of power to the Court; while, as to the opinions of the Judges, McCUE, J., expressly asserts the power, and REYNOLDS, J., waiving the question of power, grounds his conclusion on the merits of the motion.