author: Follbtt, J.: Hardin, P. J.: Kennedy, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY S. EDWARDS v. CHARLES O. POTTER, Commissioner of Highways, etc., Respondent.

      Laying out highways — errors in drawing the names of the jurors — when the proceedings are not invalidated by such errors — 2 if. 8. tjlth ed.), 1239, 1240 —1881 cha/p. 696.
    The statute relating to the laying out of highways provides that the town clerk shall, “ in the presence of a justice of the peace or one of the commissioners of highways of the town, deposit in a box the names of all persons then residents of his town, whose names are on the lists, filed in said town clerk’s office, of those selected and returned as jurors, * * * who are not interested in the lands through which such road is to pass or bo located, nor of kin to the owner . thereof, and shall publicly, in the presence of such justice of the peace or commissioner, draw therefrom the names of twelve persons, and shall make a certificate of such names. ”
    When the names, from which were drawn the jurors by whom the necessity of the highway in this case was certified, were deposited in the box, the clerk ■omitted to place therein the names of fifteen persons which appeared upon the jury lists, upon the ground that they had signed the application for the laying out of the highway, and were, therefore, incompetent to act as jurors. The owner of the land to be taken was present and objected to the omission of these names from the box. Upon a certiorari, brought by him to review tlie proceedings under which liis land was condemned, the failure of the cleric to deposit these names in the box was alleged as a ground of error.

      Eeld, that the objection was untenable. (Kennedy, J., dissenting.)
    The name of one person whose name appeared on the list of jurors was omitted by a clerical mistake.

      Held, that as it was not shown that the relator was injured by the failure of the-clerk to put this name in the box, the proceedings were not invalidated by his failure to do so. (Kennedy, J., dissenting.)
    Certiorari to review an order made by the commissioner of highways of the town of Franklin in proceedings taken for the-laying out of a highway in said town.

      Robert T. Johnson, for the relator.

      Edwin D. Wagner, for the respondent.
   Follbtt, J.:

An application was made to the highway commissioner of the-town of Franklin, to lay a public highway through the inclosed and improved land of the relator. September 23,1882, the sole-highway commissioner, the town clerk and a justice of the peace of the town, met to draw a jury to inquire and certify as to the-necessity of the proposed highway, pursuant to the Revised Statutes, as amended by section 1 of chapter 696 of the Laws of 1881. (2' R. S. [7th ed.], 1239.) The section provides: “At the time and place mentioned the town clerk of such town, having received such notice that such jury is to be drawn, shall, in the presence of a justice of the peace or one of the commissioners of highways of the town, deposit in a box the names of all persons then residents of his town whose names are on the lists filed in said town clerk’s-office, of those selected and returned as jurors, pursuant to article-second, title four, chapter seven, part third of the Revised Statutes, who are not interested in the lands through which such road is to pass or be located, nor of kin to the owner thereof, and shall publicly, in the presence of such justice of the peace or commissioner, draw therefrom the names of twelve persons, and shall make a certificate of such names and the purposes for which they were drawn, and shall deliver the same to the person asking for the jury, and the applicant for such jury shall pay to the said town clerk one dollar for drawing such jury.”

The relator was present at the drawing with his counsel. The clerk deposited in a box the names of all of the trial jurors of the town, except nineteen, fifteen of whom had signed the application for the highway, two of whom were of kin to the relator within the sixth degree, one of whom was then a non-resident of the town,, and one of whom, “Adam Lambrecht, or Lambert, was omitted by clerical error, the justice omitted to read the names.” The counsel for the relator objected to the leaving out of the box * * * each and all the names of the jurors mentioned. It does not appear that the relator or his counsel knew of the omission of the name of Lambrecht or Lambert before the drawing, or raised any special objection to the omission of this, or any particular name, or specified any ground of objection to the omission of this or any name. The jurors drawn were duly summoned, and met October 19, 1882, of which the relator had due notice. The twelve jurors were sworn, examined the route of the proposed highway, and eleven certified that the proposed highway was necessary and proper. The commissioner designated November 13, 1882, as a day on which he would decide upon the necessity of laying out the highway, of which the relator had due notice, and on which day the highway was laid out. March 10, 1883, the relator applied for and obtained this writ, because of the omission of the nineteen names from the jury box.

A statute should receive a reasonable construction, one promoting instead of defeating its purposes. The end to be attained by the part of the statute quoted is the securing of an impartial jury to pass upon the necessity of the proposed highway. It is a fundamental principle of the common and statute law of this and of all civilized governments that a man shall not be a judge or a juror in his own case; and the courts will not hold that the legislature have abrogated this principle, unless it is plainly declared by statute. The language of this statute does not evince a design to permit parties to proceedings to lay out highways, to act as jurors in proceedings instituted by them. Applicants are, to all legal intents and purposes, parties. If the jury fails to certify that the proposed highway is necessary, the applicants are liable for the costs of the proceedings. (2 R. S. [7th ed.], 1240, 124b) It is very plain that applicants are not proper persons to serve as jurors and decide a question which, they have predetermined, and in the decision of which they have a direct pecuniary interest. The statute contains no provision- for challenging, or excluding from the jury, persons drawn; tho intent being to exclude disqualified persons from the box before the drawing. The term, “ who are not interested in the lands through which such road is to pass, or be located,” does not limit the class to persons interested in the land as owners, occupants or lienors, but includes all persons having a direct personal and pecuniary interest in having the lands taken for the purpose of a highway. The names of the applicants were properly excluded from the box from which the jury was drawn.

The name of Adam Lambrecht, or Lambert, was omitted by a clerical error. It does not appear that the relator or any person called the attention of the officers to this omission at the time; if it had been, the presumption is that the name would have been placed in the box. It is not shown or claimed that the relator was injured by this clerical mistake. It is not claimed that any of the persons who were drawn and served as jurors were disqualified or partial. This harmless clerical error did not invalidate the proceedings. A construction of this statute, so technical as contended for by the relator, would amount to a practical nullification of it. Suppose that the name of some person of kin to the relator, whose kinship was unknown to the officers, had been placed in the box and.twelve competent persons then drawn and served, would it be held that the jury was illegal and the subsequent proceedings null and void by reason of this or a like mistake? We think not. An irregularity, mistake or error in the organization of a jury, insufficient to invalidate an indictment for a felony, should not be held sufficient to invalidate a proceeding like this. (People v. Petrea, 92 N. Y., 128.).

The order of the commissioner should be affirmed, with costs against the relator.

Hardin, P. J.:

Section 723 of the Code of Civil Procedure declares “ the court must disregard an error or defect in the pleadings or other proceedings which does not affect the substantial rights of the adverse party.” What were the relator’s “ substantial rights ? ” To have a fair, true and impartial jury. Did ho not have it % If so has he been injured by any irregularity in drawing a j ury ?

Again, section 2140 of the Code of Civil Procedure declares what questions shall be determined by the appellate court upon ■certiorari, and among them is, whether any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the relator ? ” Even before the Code it was held on a common law certiorari, “ only errors in law affecting materially the rights ■of the parties may be corrected.” (People ex rel. Folk v. Board of Police, 69 N. Y., 408; People ex rel. Cook v. Board of Police, 39 id., 506.)

The language of Judge Andrews, in People v. Petrea (92 N. Y., 143), viz.: Nothing could well be more unsubstantial than the alleged right asserted by the defendant under the circumstances of the case,” may aptly be applied and followed.

These views, together with the reasoning of brother Follett, lead me to concur with him and to vote for an affirmance, with fifty dollars costs against the relator.

Kennedy, J.

(dissenting):

The only question in this case is, were the proceedings in drawing ■the jury, who certified to the necessity of said highway, in conformity to the requirements of the statute, and did the commissioners acquire jurisdiction to make the order laying out the same.

The statute relating to the laying out of highways, as amended by chapter 696 of the Laws of 1881, under which these proceedings were had, after certain preliminaries in regard to the manner of ■obtaining a jury, provides: That at the time and place mentioned, the town clerk of such town having received such notice •that such jury is to be drawn, shall, in the presence of a justice of the peace, or one of the commissioners of highways of the town, ■deposit in a box the names of all persons then residents of his town, whose names are on the list filed in said town clerk’s office, of those selected and returned as jurors (pursuant to the statute therein referred to), who are not interested in the lands through which said road is to pass or be located, nor of kin to the owner thereof, and shall publicly, in the presence of said justice of the peace or commissioner, draw from said box the names of twelve persons, etc., who shall compose the jury.”

The town clerk neglected to deposit in the box the name of Adam Lambede or Lambert, whose name appeared in said jury list, as the return states, through a clerical error the justice omitted to read the name.” He also omitted to place in said box the names of fifteen other persons whose names appeared in said jury list, all of whom, including said Lambert or Lambede. were then residents of said town, although the relator was there present and requested that all said names be placed in said box. The ground of such refusal and?omission by the clerk was a decision by him that said fifteen persons having signed the application were not competent jurors, although they were not within the disqualifications imposed, not being interested in the lands or of kin to the owner.

The statute further provides if nine or more of the persons who-shall have been so drawn, not interested in the lands through which the road is to pass nor of kin to the owner, shall appear at the time and place specified in the summons, they shall be sworn as a jury. If the jury so formed shall certify to the necessity of the highway, the commissioners must, within thirty days from the date thereof, proceed to lay out said highway. The requirements of the statute must be complied with in obtaining the jury, else the commissioners will acquire no jurisdiction.

It is well settled that where the legislature has delegated the power to take the lands of a citizen in invitum,, and appropriate it to the use of the public, all the prescribed prerequisites to the exercise of that power must be strictly observed and conformed to. (In the Matter of the Application of the City of Buffalo, etc., 78 N. Y., 362; Miller v. Brown, 56 id., 383; Matter of Marsh, 71 id., 315.)

The manner of obtaining the jury is defined by statute and its provisions are imperative and must be complied with, in order to-confer jurisdiction upon the commissioner; the town clerk performing a ministerial duty only, is to put in a box the names of all persons, residents of the town, whose names appear upon the jury list made up as required by the statute, not interested in the lands through which the road is to pass, or of kin to the owner. Were the fifteen persons who applied for the laying out of the same within the exceptions? We think not. They did not become interested in the land by signing the petition j having done so, it is quite probable that it might be urged as an objection to their sitting as jurors to pass upon the question of the necessity for the l'oad,. but the statute does not disqualify them from acting for that reason. It is true no right of challenge exists to any of the twelve drawn and appearing. The jury provided for is not a common-law jury, since, it may be composed of less than twelve, and it is fair to presume that the legislature in omitting to use the term interested in the question, or one of like import, intended that because a freeholder has signed an application, it presented no objection and furnished no reason why under oath he might not properly pass-upon the question. Upon the question of the necessity of a highway, the laying out of which is applied for, it may be fairly inferred that many, and perhaps most of the inhabitants in the town, entertain an opinion upon the question, yet such opinion, if entertained, does not, under the statute disqualify them as jurors. At all events, whatever the"*intent may have been, it seems quite certain that these names could not properly be left out of the box, and the omission to place them in it is a fatal objection to the order-in question. The leaving out the name of Lambede or Lambert, through a clerical error, which we assume to mean in spelling the name, subjects the proceedings to the same criticism. If from any cause one name may be left out of the box, two or ten may with equal propriety, and the provisions of the statute thus evaded.

The relator was present and requested that ‘the names be placed in the box. If any objection existed to their competency, he alone was the person to interpose it, and he would hardly be in a position to avail himself of it afterwards and when the jury was drawn. At all events, it was not the duty of the clerk to pass upon the question; his duties were not judicial. It follows, that a jury not having been obtained in the manner provided by law, the commissioner acquired no jurisdiction in the premises, and that the order laying out said highway should be vacated and annulled, with costs.

Order affirmed and writ of certiorari dismissed, with fifty dollars costs.


source: Caselaw Access Project

author: Follett, J.;

license: Public Domain

text:
    JAMES DENICK, Appellant, v. WILLIAM B. HUBBARD, Respondent, Impleaded, etc.

      Promissory note — liability of cm owner thereof who, in transf wring it, signs his name above that of the maker —pleading — an antedated note may be alleged to have been made on the day of its date.

    Appeal from a judgment, entered on a nonsuit ordered at the ■Oswego Circuit.
    April 28, 1877, Henry James and S. B. Terpening made and. delivered to Reuben Terpening their promissory note, as follows :
    “ Hannibal, April 28, 1877.
    “ On the twentieth day of March next, for value received, I promise to pay Reuben Terpening, or bearer, eighty-two dollars, with use.
    “HENRY JAMES.
    “S. B. TERPENING.”
    Shortly after its date the payee signed his name under the signature of S. B. Terpening, and sold the note to the defendant, who held it until August 25, 1872, when he signed his name above the ■signature of Henry James, and sold the note to John N. Draper, who afterwards sold it for value to the plaintiff. The above facts were proved on the trial, and were not disputed. The complaint set ■out a copy of the note with the four signatures. None of the defendants were served except Hubbard.
    The court at General Term said : “ The defendant moved for a nonsuit on the ground that there was a material variance between the contract alleged and proved, to wit: that defendant’s contract was made August 28, 1877, and that if liable at all, he was liable as surety. The court granted the motion. This was error. There is no evidence that the defendant contracted as surety, instead of as principal, as between himself and Draper, from whom he received a consideration. "When defendant signed this instrument it became-, his several and individual contract to pay the sum named, according to the terms of the writing. It became, as between himself and his transferee (as the evidence now stands), simply an antedated obligation by which he was bound. The contract, in form, is the joint note of the four signers, and it is the several note of each. (Brownell v. Winnie, 29 N. Y., 400, 408.) Though it be void as. a joint contract, it may be, and is, under the evidence, good as the several contract of the defendant. (Byles on Bills [13th ed.], 8.). If an instrument be informal, as a note, it may be good as an agreement, if shown to have been made on a consideration, as in this case, and it may be recovered upon.
    “An antedated note is well pleaded if alleged to have been made upon the day of its date, and especially under the Code, which authorizes an instrument for the payment of money only to be set forth in Imc verba.

    “In Stone v. White (8 Gray, 589), relied on by the defendant, Snow only answered, who signed the note when he transferred it, 4 Newell Snow, surety.’
    “ He was sued as maker, and it was held that the declaration was-not good; that he should have been sued as surety, and the contract should have been alleged as of the date when signed. This case is not applicable to the rules of pleading established by our Code, which permits a copy of the contract to be set forth. Again, there is no evidence upon the face of this contract, or in the case, that this defendant contracted with Draper as surety for the other signers. If he did he could not show it as against the plaintiff in the action purchasing in good faith, before due, and for a valuable consideration.” •

      George S. Piper, for the appellant.

      S. 1V. Dada, for the respondent.
   Opinion by

Follett, J.;

Hardin, P. J., and Boardman, J., concurred.

Judgment reversed and a new trial ordered, with costs to abide the event.


author: Hardin, P. J.;

text:
    HENRY D. WINNIE, Appellant, v. GIDEON TOUSLEY, Respondent.

      Evidence — testimony of a witness as to the genuineness of a signature — right of a party to cross-examine him as to the difference between the signature in question and, a genuine signaiwe — 1880, chap. 36.
    Appeal from a judgment for the defendant, entered upon a verdict rendered at the Jefferson County Circuit.
    The action was brought upon a promissory note for $155, dated 'May 25, 1875, given to the plaintiff, and signed by S. G. Graves, as principal debtor, by the defendant Gideon Tousley as accommodation malcer, and by Peleg K. Graves as their surety. The defendant Tousley defended on the ground that he did not make the note. The note in suit was put in evidence and marked exhibit “A; ” another note, called the Hale note, was marked exhibit ” B.”
    Upon the trial evidence was given tending to shew that Tousley did not execute the note in suit, and also evidence tending to show that he did execute it. The defendant called Eoster Tousley, who testified that he had seen the note in suit, and “ should think it not his writing.” In the course of his cross-examination he undertook to state how he judged the signature was not that of defendant Tousley, and pointed out certain letters and said, viz.: “ I judge of this alleged signature on note (exhibit £A’) from the general appearance, and the one ‘ on ’ and £ s,’ the mark I discover — all the mark, I discover in it, that is evidence to me that it is not his signature — is that it looks to me as if that had been made into ‘ w ’ and then converted into £ us,’ —£ tows ’ instead of £ tous.’ All the times I have seen the name it is £ tous;’ you may call it the spelling; I don’t know but both ways of spelling may be correct; some write it one way and some the other; I find no other mark or letter that is an indication to me that it is not genuine.” * * * Then the following question and ruling, with an exception, appear in the appeal book : “ Q. Describe what difference you can discover between the £ w’s ’ or the ‘ u’s ’ in the name of the defendant on exhibit A and his name on exhibit D. Objected to as being a question for the jury.” The court ruled that would not be competent, to which the plaintiff took an exception.
    The court at General Term said : “We think the learned judge fell into an error. We think the question was proper, and that the plaintiff was entitled to an answer from the witness, who had expressed an opinion which was against the plaintiff; and tne plaintiff had a right to test the witness and ascertain the grounds of his opinion.

      “ If the court placed its ruling upon the idea that the comparison sought for must be made by the jury alone, the ground cannot be sustained. True, under chapter 36 of the Laws of 1880, page 141, the jury might make a comparison between the signature upon exhibit ‘A’ and exhibit ‘ D.’ But that furnishes no reason why the plaintiff should not have the question answered by the witness in ■order to enable the jury to say what weight they should attach to the opinion of the witness. Both comparisons the plaintiff had a right to.
    “ The statute declares in terms, viz.: ‘And such writings and the evidence of .witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.’ This follows a declaration of the statute to the •effect that a comparison shall be permitted to be made by witnesses in all trials and proceedings. The ruling took away from the plaintiff one of the privileges of the statute by refusing to allow a witness to state the result and particulars of his comparison so that such evidence of witness might be submitted to the court and jury. After such evidence of the witness was given, the plaintiff was entitled to have the disputed writing and genuine ones submitted with 1 the evidence ’ to the jury. We cannot overlook the error or say that it worked no harm to plaintiff. The contest was sharp and resolute upon the trial in respect to the signature. One mode of getting rid of the adverse opinion of the witness was denied to the plaintiff by the ruling.” (LLilsley v. Palmer, 32 Hun, 474; Stokes v. People, 53 N. Y., 165, 183.)

      Lewi H. Brown, for the appellant. .

      John C. PLeQa/rtin, for the respondent.
   Opinion by

Hardin, P. J.;

Boardman and Follett, JJ., concurred.

Judgment reversed and a new trial ordered, with costs to abide the event.


author: Barnard, B. J.:

text:
    JOHN SWAN and Others, Respondents, v. ROBERT P. CHANDLER and Others, Appellants.
    This action was brought by the owners of a vessel upon a bond given by the. defendants, the consignees of a portion of the cargo thereof, by which they agreed to pay their proportionate part of certain losses and expenses which had been or might be incurred and which might “ constitute a general average,” to be apportioned on the said vessel, her freight and cargo. It. appeared that the vessel, while sailing from Bath, Maine, to New York, was-injured by a collision 'near Block Island channel, and was towed into New London at an expense of some eight dollars. Thereafter the vessel was there repaired and towed 'from New London to New York, under a contract made-by the master, at an expense of some $1,200.

      General average — what losses and expenses do not constitute.

      Held, that the defendants were not liable for any portion of ihe expense incurred.. in repairing the vessel or in towing it from New-London to New York.
    Appeal from a judgment, entered upon a verdict in favor of plaintiffs, and from an order denying a motion for a new trial made-upon tbe minutes of tbe justice before whom tbe action was tried.
    The action was brought to recover an apportionment in general average upon a bond and statement of loss, in so far as that constituted a general average.
    Tbe defense was that the defendants were not liable in general average.
    Tbe schooner “ Mary Lord,” on or about the 5th day of Novemher, 1883, sailed from Bath, Maine, having on board a full cargo of lumber, a part of which was consigned to Messrs. Chandler & Du Bois, these defendants and appellants, at New York, and apart to Messrs. Simpson, Clapp & Co., New York. All to be delivered at New York or vicinity.
    On the morning of the eighth of November, just past midnight, while said schooner was proceeding on her voyage in Block Island channel, she collided with the schooner “Regina,” and received some damage. She was towed into New London, Connecticut, at an expense of eight dollars. On her arrival in New London, Samuel L. Lord, the master of the schooner, contracted with or employed one T. A. Scott, a wrecker, to pump the schooner and tow her to New York, agreeing to pay Scott a sum not exceeding $1,200 for his services. Lord put the schooner in charge of Scott and went to New York. After Scott had pumped the schooner, he towed her to New Haven and then left her and employed another tug to tow her to New York, and put another captain in charge.

      A. J. Heath, for the appellants.

      Joseph A. Shoudy, for the respondents..
   Barnard, B. J.:

The plaintiff obtained no additional right by the execution of the bond. That hond was given to pay the claim, if valid, upon the principle of general average. The facts do not show any valid claim upon the bond beyond eight dollars. The defendants had lumber on board plaintiffs’ vessel as freight. The vessel was disabled by collision in Block Island sound, but no unusual expense was incurred until the vessel drifted to a point near New London, when she engaged assistance from a tug, and went into New London harbor. The charge and the papers evidencing the disaster cost eight dollars. Then the vessel had three remedies: It could claim freight pro tanto ; it could repair and finish the journey to the point of delivery; it could engage other transportation to earn the freight. "When the disability of the ship is inevitable or accidental, without fault of the owners or master, freight is due if the master will either mend the ship or freight another, but if the merchant will not agree to that, then freight is due for so much as tbe ship has earned. (Parker’s Law of Skipping, 404.)

The cost of tbe repairs made upon tbe skip is not subject to genera] average, unless suck repair was necessary for tbe preservation of tbe property. This cannot be claimed. Tbe vessel and cargo were safe in New London barbor, and were there subject to no peril. It was a safe port of refugd. Conceding that tbe master could carry tbe cargo to New York, the port of delivery, in tbe vessel, that would only excuse time for reasonable delay in making repairs. In no event could the vessel hire towing from tbe port of refuge to tbe port of delivery and claim tbe cost to be subject to average. Tbe vessel could do so to earn tbe freight, but could not charge an additional sum to the freight as if it bad been incurred in a common danger to ship and cargo, and tbe damage was necessary to tbe preservation of either, in whole or in part. There is, therefore, nothing which was paid out after tbe vessel left New London which, is subject to the maritime principle of average.

The judgment should therefore be reversed, and a new trial granted, costs to abide event.

Pratt, J., concurred.

Judgment reversed and new trial granted, costs to abide event.


author: Barnard, P. J. :

text:
    GEORGE E. ARCHER, Appellant and Respondent, v. LEONARD G. McDONALD and Others, Appellants and Respondents.

      Entire contract — when no recove/t'y cam, be had on a partial performance.

    The plaintiff agreed to store in a warehouse from fifteen to thirty thousand barrels of lime, to be delivered on the plaintiff’s dock, after October fifteenth, and to be by the plaintiff received and taken to his warehouse, and there piled and kept until the first of the following May, on or before which date the plaintiff, as the lime was called for, was to take it from the warehouse and ■deliver it at the end of the wharf in good order. For said storing, and such coopering as might be necessary, and for the delivery, the defendant was to pay the sum of fifteen cents for each barrel. 'Before November twenty-fifth some 20,000 barrels had been received. On January seventh the warehouse was destroyed by fire, without any negligence on the part of the plaintiff, and the lime, slaked by the water used in extinguishing the fire and by subsequent rains, was left lying on the dock.

      B'eld, that the contract for storage was an entirety, and that, as the plaintiff had not fully performed it, he could not recover the amount agreed to be paid ' nor any portion thereof.
    At the time the lime was delivered the defendant advanced $1,000 on account of the storage.

      Beld, that the plaintiff could not retain this amount.
    Appeal from a judgment in favor of the plaintiff, entered upon, the trial of this action by the court without a jury.
    By contract dated March 17, 1873, it was agreed that the plaintiff Archer would receive from defendants’ company on storage in his stores from fifteen to thirty thousand barrels of lime, to be delivered on the plaintiff’s dock after October fifteenth in each year, and to be taken away from said dock on or before the first of May following; plaintiff agreeing to receive the lime on the dock, take it in trucks therefrom, and safely pile and tier it in said warehouse belonging to the said Archer, and on or before the first day of May to take it from said storehouses, when it might be .called for, and deliver it on trucks at the end of the wharf in good •order, and do all necessary coopering; the company agreeing to furnish all necessary hoops and headings, and if the barrels became 'broken or damaged to furnish extra barrels; for the said storing, •coopering and delivering, as hereinbefore specified, the company was to pay fifteen cents a barrel. The contract was to continue for five years. Between October 27 and November 25,1876, the defend ants delivered 22,284 barrels of lime, which the plaintiff stored, the storage on which at the contract-price would be $3,340.60. During the fall of 1876 the defendants paid $1,000 on account. January 7, 1877 the warehouse was burned from an unknown cause. The jury found that the plaintiff was not negligent in the matter. The fire department played on the lime and slaked the outside, the •center remaining good. Slaked lime is of little commercial value, but this still remained lime, constituting a large heap, and distinguishable as the lime which had been stored by defendants. The defendants refused to furnish barrels, or to accept the lime, on the ground that it was not in the condition in which it was •when stored, and about' April 1, 1877, notified the plaintiff that they abandoned it. The plaintiff urged them to remove it, but they did not. It remained on tbe plaintiff’s premises from May 1,1877, rendering them useless for any other purpose. The court awarded the plaintiff $424.37 on the ground that the fire-rendered the performance of the contract impossible, and entitled the plaintiff to a gucmtum meruit up to that time, but that no duty relied upon the defendant to remove the ruined lime. From the judgment entered on this decision both parties appeal.

      George W. Wingate, for the plaintiff.

      8. B?'Own, for the defendants.
   Barnard, P. J. :

The case does not show any facts upon which it is proper to-mitigate the rule that a contract entire in its nature must be fully performed before any claim can be made under it. The plaintiff agreed to store the defendant’s lime at a specified price per barrel, which price was to include cartage to and from the dock on the-warehouse property. The delivery and removal was to be made between the fifteenth of October and the first of the following May, during the time covered by the contract. The lime was received in store, and the storehouse burned down in January with all the lime in it. The lime was ruined as merchantable lime;, and the point taken that the contract was performed because it was still lime has no merit. There are a class of cases which hold that the contract is to be considered as having been made upon the implied agreement that the subject should continue to exist, and that if the subject is destroyed by fire the performance of the contract is excused. Dexter v. Norton (47 N. Y., 62) is one of this class of cases. It can be seen by an examination of this case that the contract was for a sale and when the title was in vendor Accidental burning of the goods was held to excuse performance. This case is not sustained by the like one of Booth v. Spuyten Duyvil Rolling Mill (60 N. Y., 487). A fire in that case was not held to be an excuse for non-performance of a contract to manufacture goods. The court recurs to the old rule that if a contingency is to be provided for which shall excuse performance, it “ should have been provided for in the contract.” Tlie exceptional cases are put upon the construction of the contract. In the present case it cannot be construed so tbafc the defendant shall lose his goods and pay the warehouse bill for storage before the destruction of it by fire. This would not put the parties as they were before the fire. The storage is not earned before the contract is performed by a redeliv■ery of the property during the contract term. Of what use was the ■storage to the defendants short of the redelivery of the property ? If the fire was accidental, and without the plaintiff’s fault, he is ■excused from performance, but he cannot recover storage short of full performance. (N. Y. Cent, and H. R. R. R. Co. v. Standard Oil Co., 87 N. Y., 486.) If the plaintiff did not wish to risk his storage, he could have protected himself by insurance. If he took the risk of fire, he cannot claim storage for burned property which he agreed to keep and redeliver at a date subsequent to the fire.

The judgment should be reversed and a new trial granted, costs to abide event.

The answer of the defendant does not claim the return of the $1,000 paid on account of the storage. If the contract be an entire one, and not performed, the plaintiff cannot keep this payment.

Dykman, J., concurred ; Pratt, J., not sitting.

■Judgment reversed and new trial granted, costs to abide event.


author: Barnard, P. J.:

text:
    THOMAS J. FEENEY, Respondent, v. THE BROOKLYN CITY RAILROAD COMPANY, Appellant.

      'Costs — when an action is on eonl/ract, and when in tort— Code of Oiml Procedure, sec. 3228, sub. 3.'
    The plaintiff, while a passenger upon one of the defendant’s cars, was wrongfully assaulted by the conductor and ejected from the cars. In this action brought to recover damages therefor, the jury rendered a verdict in his favor for six cents.

      Meld, that the action was for an assault, and that the plaintiff was entitled under subdivision 3 of section 3228 of the Code of Civil Procedure, to costs not exceeding the amount of his l'ecovery, and that he could not be charged with the payment of the defendant’s costs.

      Appeal from an order made at Special Term, denying a motion brought before the court on an appeal from the refusal of the clerk to tax a bill of costs presented by the defendant.
    The plaintiff, while a passenger for hire on one of defendant’s cars, was ejected therefrom. In his complaint he alleged that while such passenger, he was assaulted and ejected from the car by the conductor, without cause. Upon the trial the jury rendered a verdict for plaintiff, assessing his damages at six cents.
    Thereupon defendant, upon notice, submitted a bill of costs in favor of defendant, which the clerk refused to tax, because plaintiff had recovered a verdict for six cents.

      Morris <& Pearsall, for the appellant.

      Charles J. Patterson, for the respondent.
   Barnard, P. J.:

This action is not directly based upon the contract which is-involved in the duty of common carriers of passengers. The contract is to carry' safely the passenger, to compensate him for all1 injuries inflicted by the negligence of the servants of the carrier. It becomes a question whether the contract included an unjustifiable assault of a servant upon the passenger when the servant was not acting within the scope of his employment. The Court of Appeals-in the case of Stewart v. The Brooklyn and, Crosstown Railroad Company (90 N. Y., 588), held that the carrier was liable for the unjustifiable assault upon the passenger, when the servant, in that case a conductor, was not acting within the scope of his employment. The effect of the decision is to hold that a carrier’s servant is the carrier himself in respect to assaults committed xxpon the journey, and not to make an unjustifiable assault by a conductor a breach of contract. The contract calls for safe carriage, for civil and respectful treatment and for immunity from assaults by the carrier’s servants. If the servant makes an assaxxlt, the master is liable not for the breach of the contract, but for a wrong done to the passenger whose rights wex’e guaranteed by a contract. The case then falls under subdivision 3 of section 3228 of the Code. The action was one for damages for-an assault and battery, and his recovery was six cents. He was entitled, under that section, to the same amount of costs, and consequently was not entitled to be charged with the payment of costs.

The order should therefore be affirmed, with costs.

Pratt, J., concurred.

Order refusing to vacate taxation affirmed, with costs and disbursements.


text:
    MARGARET MURPHY, Respondent, v. THE CONEY ISLAND AND BROOKLYN RAILROAD COMPANY, Appellant.

      Negligence — burden of proof in am, action against a common carrier— when it may be inferred from the accident itself.

    In an action to recover damages for injuries sustained white traveling as a passenger on one of the defendant’s horse cars, the plaintiff testified that just before she had reached the depot, at which she was to leave the train, the car gave a jolt, and then a second jolt; she heard a grinding noise under the wheels, and the car seemed to be lifted off the track; that she was lifted off her seat, thrown forward between the seats and injured.

      Bdd, that in the absence of all explanation on the part of the defendant the jury were authorized, if they believed the plaintiff’s testimony, to infer negligence on the part of the defendant, rendering it liable for the injuries sustained.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought to recover damages for injuries sustained by the plaintiff while riding in one of the defendant’s horse cars.

      William N. DyTcman, for the appellant.

      Carpenter & Roderick, for the respondent.
   Barnard, P. J.:

It is an undoubted rule, and one governing all causes of action for damages negligently inflicted, that the plaintiff must prove that the injury was caused by the negligence of the defendant. The rule has not been varied, but there has been difference of opinion in judges as to its application in certain cases. There was a tendency in the case of common carriers of passengers to hold that the fact of the injury while being carried raised a presumption of negligence which the carrier was bound to explain. There was also a tendency in some of the early cases to hold that the plaintiff must prove some particular thing which caused the. injury, and that the defendant was liable for its condition. This was found to be a hard rule upon passengers who were ignorant of the cause of the injury, but yet had been injured under circumstances which called for ño injury, and when explanation was due as to the reason of the accident, from whatever cause. The rule is settled by the Court of Appeals that it is not necessary to prove the direct cause of the injury; that while the plaintiff had the burden of proof, an inference of want of care may be made out by the injury and the circumstance attending it, and then the burden of explanation is cast upon the company or carrier of passengers. (Holbrook v. Utica., etc., R. R. Co., 12 N. Y., 236.)

The happening of an accident which, in the usual and ordinary course of things, would not happen with proper care, casts the burden on the defendant of explaining the accident so as to relieve itself from liability. (Caldwell v. New Jersey Steamboat Co., 47 N. Y., 282; Hart v. Hudson River Bridge Co., 80 id., 622.) Under these cases the plaintiff was entitled to go to the jury. She was being carried by the defendant as a passenger. Her destination was Culver’s depot in Brooklyn. She says: “Just before the car reached Culver’s depot it gave a jolt, then a second jolt; then I got afraid and I heard the grinding; I was listening, and I heard a grinding noise like under the wheels, and the car seemed to be lifted off the track. * * * I was lifted off my seat and thrown forward, and I put up my hands to save myself, and I couldn’t, and 1 fell right down between the seats.” A young daughter of the plaintiff was with her, and she testifies that the jolt “ seemed to raise the car right off the track.” Under this proof, which the jury have found to be true, the plaintiff can ask an inference of negligence. There was no explanation consistent with it. Proof was given tending to show that it was not true, and that the injury did not result in the manner claimed, but as these questions are questions of fact, the verdict of the jury settles them in favor of the plaintiff. The proof of the injury was ample, if credited, to sustain the verdict.

The judgment should therefore be affirmed, with costs.

Pratt. J., concurred.

Judgment affirmed, with costs.


author: Barnard, JP. J.:

text:
    BENJAMIN E. VALENTINE, Respondent, v. MYERS’ SANITARY DEPOT, Appellant, Impleaded with ANDREW G. MYERS.

      Appea/rance — how it must be made— Code of Omit Procedme, sec. 431.
    The defendant corporation in this case, although it had not been served with a copy of the summons and complaint, moved, without serving any formal notice of appearance, to have the complaint made more definite and certain. Thereupon the plaintiff procured an ex pa/rie order discontinuing the action as to the corporate defendant.

      Held, that this was proper; that the service of the notice of motion was not equivalent to an appearance.
    Appeal from an order made at a Special Term, refusing to vacate an order for the discontinuance of this action as against the appellant (a corporation), who was originally impleaded with the individual defendant.
    •Under section 421 of the Code of Civil Procedure, a defendant can only appear by serving a notice of appearance, or a copy of a demurrer or answer.
    The moving papers of the appellant show that the only service •of summons was upon the defendant Myers individually ; that he appeared by due notice of appearance, but that no summons was served on the corporation; and that there was no appearance or pleading served in behalf of the corporation.
    The corporation served a notice of a motion to have the complaint made more definite and certain. The plaintiff thereupon procured •an order to be entered discontinuing the action as against the corporation.
    The corporation claiming that the notice of motion, which it had served, was an appearance, moved to vacate the order of •discontinuance.

      O. A. C. Barnett, for the appellant.

      B. E. Yalentme, for the respondent.'
   Barnard, JP. J.:

The defendant, “ Myers’ Sanitary Depot,” was not served with the summons and complaint in this action. Having in some way become possessed of a copy of the complaint which had been served upon the defendant Myers, it caused a motion to be made to make the complaint more definite and certain. It gave no notice of appearance with the notice of motion. This notice was signed by an attorney of the court. Before the present Code a notice of motion was held in many cases to be an appearance. Under these decisions there grew up a practice by which a notice of motion was made a special appearance, and only for the purposes of the motion. The Code (§ 421) now provides that an appearance “must be made” by notice of appearance, copy demurrer or copy answer. Before ah appearance it has always been right to discontinue without costs. Under this section there was no formal appearance. and the order of discontinuance was properly granted ex parte, although it was made after the service of the notice of motion upon the plaintiff’s attorney. (Couch v. Mulhane, 63 How., 79; Douglas v. Haberstro, 8 Abb. N. C., 230.)

The order should be affirmed, with costs and disbursements.

Pratt, J., concurred.

Order affirmed, with costs and disbursements.


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    JAMES T. SCARFF, Respondent, v. B. F. METCALF and JOHN E. YATES, Appellants, Impleaded with Others.

      Captain of a vessel — when his acts a/re those of its owners — duty of a captain to provide medical attendance for a disabled seaman — measure of the damages which can be recovered for his neglect so to do.

    This action was brought by the plaintiff against the owners of a vessel, one of whom was the captain thereof, to recover damages sustained by the plaintiff while serving as first mate, by reason of the failure of the captain to provide him with proper medical care and treatment while suffering from an injury. Upon the trial it appeared that the captain had an agreement with the owners, by which he was to sail the vessel on shares; he to have one-half the gross earnings and to pay therefrom for the victualing, manning and tonnage of the vessel.

      Held, that the court properly charged the jury that the acts of the captain were to be treated as the acts of the owners.
    The plaintiff received an injury, while in the discharge of his duty, which caused an aneurism to be developed in one of the arteries of his leg, while at a port in Cuba. There was no hospital at the port, but there was one at a town of the same name some miles distant from it. A doctor, called to examine the plaintiff, told the captain that a surgical operation was necessary and asked him to send the plaintiff to the hospital. Upon his refusal to do so, he was told that it would be unsafe to take the plaintiff to New York unless he could arrive there in twelve days. He still refused to send the plaintiff to the hospital, and, after a voyage of twenty days, brought him to New York where his leg had to be amputated.

      Held, that the act of the captain was wrongful, and that the owners were liable for the damages thereby occasioned to the plaintiff.
    That the measure of his damages was not the amount of his wages for the time he was sick, but the actual damages sustained by him from the injury.
    ‘ Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The plaintiff was first mate of the bark “ Hattie G. Dixon,” on a voyage from New York to Sagna La Grande, Cuba. The defendant Metcalf was a part owner of the vessel, and the defendant Yates was her master as well as one of the part owners. The plaintiff claimed to have received an injury, while in the service of the vessel, to his right leg, which developed into an aneurism of the popliteal artery, and finally rendered amputation necessary. This action was brought to recover damages for the alleged neglect of the defendant Yates, as master of the vessel, to provide the plaintiff with proper medical care and treatment while suffering from the injury. There was no hospital at the port of Sagua La Grande, but there was one at the city of that name some sixteen or seventeen miles inland.

      Joseph A. Shovdy, for the appellants.

      William Sullivan, for the respondent.
   Barnard, P. J. :

There was no error in the declaration by the judge in his charge to the jury, that the acts of the captain were the acts of the owners. Conceding that there may be such a charter made by the owners to the captain as will make the captain an independent actor in respeet to the ship, the evidence does not show it.

“ I had an agreement with the owners to sail freight on what is known as shares, that is, I to have half the gross stock of earnings of the vessel and pay for the victualing and manning of the vessel and pay the tonnage out of my part of the earnings. Under this agreement the captain had bought the supplies and hired the men. It was an arrangement for compensation of captain and crew by the ■owners. There is no appearance of an independent command. He was the owners’ captain with power to hire his own crew, but the vessel and her owners were never without liability to them for their wages. There was no period, but a letting of an owner on shares.” (Kenzel v. Kirk, 37 Barb., 113.)

This is especially so when the seamen shipped in ignorance of any agreement between the captain and the owners. The question of the duty of the captain is well settled. It is the imperative duty ■of the captain or master, if he knows of the seaman’s danger and how to remedy it, to procure such treatment as will restore the seaman on land or on shipboard. With this rule of duty the case is an extreme one against the master. The seaman had an aneurism in the leg. At first the captain supposed the difficulty would yield to ship treatment. A doctor was called in and he was told it needed a surgical operation to restore the plaintiff. He asked the captain to send him to a hospital at Sagua La Grande, where the vessel was and where there was a hospital. The captain refused. He was told it would not be safe to take the plaintiff to New York unless he could arrive at that port in twelve days. The captain still refused to send the plaintiff to the hospital or to permit him to see the United States consul. It was twenty-seven days before he arrived at New York, and then it was too late. The plaintiff lost his leg by necessary amputation. When the master refused the plaintiff’s requests the plaintiff was helpless in his birth on shipboard. Certainly the master failed in his duty. The resulting damages followed of course. If the plaintiff had gone to the hospital and been cared, tbe damages would liave been tbe cost of tbe cure. When a helpless man is suffered to lose bis leg, it would be no measure of compensation, based on reason, to give wages only while be was sick. The plaintiff bad tbe right to protection from sickness and disease, and be was dependent for this protection upon tbe sole power of tbe master. Tbe non-performance of tbe obligation was a tort SO' far as to entitle tbe plaintiff to compensation for tbe injury which resulted therefrom.

Tbe verdict is not excessive and tbe judgment should be affirmed* with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    NEW YORK, ONTARIO AND WESTERN RAILWAY COMPANY, Respondent, v. THE WESTERN UNION TELEGRAPH COMPANY, Appellant.

      Beal estate — when telegraph wires fastened to %t become pa/rt of it.

    A railroad company, having erected a line of telegraph poles upon its own land and fastened wires thereon, entered into an agreement with a telegraph company, by which the latter was to operate the line. Under this agreement the latter company placed a third wire upon the poles, the railroad company agreeing to purchase the wires and property belonging to the telegraph company upon the termination of the agreement. Subsequently the railroad company became insolvent, and its property was sold under a judgment of foreclosure, entered in an action to which the telegraph company was made a party.
    Held, that the third wire became real estate when fastened to the poles, and passed to the purchaser under the foreclosure sale, and that such purchaser was entitled to an injunction restraining the defendant, which had succeeded to the rights and property of the first mentioned telegraph company, from removing the said third wire.
    Appeal from an order made at a Special Term, continuing an injunction.
    Tbe plaintiff owns and operates tbe railroad extending from Middletown to Oswego, in tbe State of New York, formerly owned and operated by the New Y orle and Oswego Midland Railroad Company. The property of the latter company was sold under a decree of foreclosure, and the plaintiff was incorporated by the purchaser at the foreclosure sale and his associates in the year 1880. For some years prior to the foreclosure sale the property was in charge of receivers, who, on October 1,1878, made a contract with the defendant under authority of an order of the United States Circuit Court, by which contract the defendant had the use and control of the telegraph lines, consisting of three wires, upon the said road of the receivers, now of the plaintiff, subject to the paramount use thereof by the receivers for the purposes of running the road. Under this lease the defendant paid an annual rent of $3,333.33. After the incorporation of the plaintiff the use and management of the telegraph lines under the receiver’s contract was continued. On May 29, 1882, that contract was modified in some particulars by agreement between plaintiff and defendant, and the original contract and arrangement so modified was continued until terminated by the plaintiff at midnight, on August 6, 1884. A day or two before August sixth, the plaintiff leased the lines to the Baltimore and Ohio Telegraph Company, and between the time of the making of that lease and August sixth the defendant claimed that it was the owner of one of the three wires on the plaintiff’s road, and threatened to remove it. The defendant claimed that it was the owner of this wire as the successor of the Atlantic and Pacific Telegraph Company, which company, the defendant claimed, had put up the wire under a contract between it and the New York and Oswego Midland Railroad Company, dated April 1, 1872; the defendant further claimed that the former company had continued in the use and possession of the one wire down to the time of its consolidation with the defendant in 1881.. The Atlantic and Pacific Telegraph Company was a party to the foreclosure action above mentioned, and appeared in the action and answered. The plaintiff commenced this action on August 6, 1884, to restrain the defendant from taking down the wire, and a temporary injunction to that effect was granted herein.

      Wager Swayne and Melville Egleston, for the appellant.

      John B. Kerr, for the respondent.
   Barnard, P. J.:

There is no reason given why this order should be reversed. The New York and Oswego Midland Railway Company erected a line of telegraph poles upon its land and fastened thereon two wires for telegraphic purposes. This line was operated by the Atlantic and Pacific Telegraph Company. This telegraph company placed a third wire upon the poles. ' A foreclosure action was brought against the railroad company, and pending the foreclosure the receiver of the railroad made an agreement with the defendant, who had succeeded to the rights of the Atlantic and Pacific Company, whereby the defendant took the line to operate from the receivers, and paying compensation therefor to the receivers. By the terms of the contract with the Atlantic and Pacific Company, the railroad company was bound to buy the additional wire. No steps have ever been taken under this part of the agreement. If the case ended here, the rights of the railroad company are supreme to the line. It was erected by the company and was part of its real estate. The additional wire became real estate, with a power bo enforce compensation. If the company fails to obtain this by reason of the insolvency of the railroad company, that would not change the legal condition of the parties. A company which had improved the real estate of another company could not collect the cost of the improvement. The non-payment did not make the real estate personal. The decree in foreclosure passed the title to the line to the plaintiff. The Atlantic and Pacific Telegraph Company was a party. It set up a claim to the telegraph line. Judge Blatohford held that the telegraph company had no rights which were not subordinate to the mortgage, and the decree directed the sale of the railroad property without reserve in respect to the telegraph wires. The decree directed a sale of “ all the rights of the said railroad company to the telegraph erected and used along the aforesaid railroad.”

The order should be affirmed, with costs and disbursements.

Pratt, J., concurred.

Order continuing injunction affirmed, with costs and disbursements.


text:
    REMMAR STAAL, Respondent, v. THE GRAND STREET AND NEWTOWN RAILROAD COMPANY, Appellant.

      Damages man action for personal injuries — when future expenses may he included in them.

    In this action, brought to recover damages for personal injuries sustained by the plaintiff while leaving one of the defendant’s horse cars, it appeared that the plaintiff was a fresco painter, but no proof was given as to what wages he had. earned in the past. The injuries sustained were of a permanent character, and with reference to them the court charged that “for future expenses the jury have a right to consider the expenses of this injury, if they find this renders the plaintiff to any extent helpless, and also to consider to what expenditures^ to make him comfortable, he will have to go.”

      Eeld, no error.
    Appeal from a judgment in favor of plaintiff for the sum. of $2,889.87, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the-justice before whom the action was tried.
    The action was brought by plaintiff to recover damages for personal injuries alleged to have been sustained by him on or about October 27, 1883, while about to alight from one of defendant’s-horse cars on which he had been traveling, through the alleged negligence of defendants’ servants in the management of such car.
    The only evidence concerning plaintiff’s occupation or business-was that he was a fresco painter, and that on and for some time-prior to the date of the alleged accident, he was in the employ of Mr. Monnefield, painter. No special damage or pecuniary loss or expenses or loss of earnings were alleged in the complaint, and no-evidence was offered touching the plaintiff’s wages, or earnings, or the value of his time or the amount of his compensation at the time of or at any time previous to the alleged accident, or of any expenses whatever inctxrred or to be incurred.
    The court charged, among other things, that the plaintiff was entitled to recover, as damages in this action, compensation — first, for the pain and suffering that he has encountered ; second, as this-injury is to some extent, at least, permanent, he is entitled to compensation for the results which will flow in the future from this-injury; that is, for any suffering and inconvenience he will have in life resulting from this injury, and for pecuniary loss on account of the injury caused by the diminution in his ability to earn a livelihood.
    There is no hard rule to be laid down to you in this case. You must say, under all the circumstances, considering what pain he has suffered, what his loss has been, in his circumstances in life the chances of what money he would make, and his age (considering the injury and the results of that injury), what would be a fair compensation. All that is left to the good sense of the jury. * * * And I will say further that in this case there is no proof of loss shown by what his income was up to this time. What the court, therefore, told you as to pecuniary losses was in connection with the future.
    Defendants’ Counsel — To that I except.
    Defendants’ Counsel — I ask your honor further to charge the jury that they cannot make further allowance to the plaintiff for expenses of treatment or care for the past or future.
    The Court •— I charge that for the past. For future expenses the jury have a right to consider the expenses of this injury if they find this renders the plaintiff to any extent helpless, and also to consider to what expenditures to make him comfortable he will have to go.

      Albert G. McDonald, for the appellant.

      A. Simis, Jr., for the respondent.
   Barnard, P. J.:

The defendant made two issues of fact upon the trial. The action was based upon an allegation that the defendant started a passenger car upon which plaintiff was being carried, and from which he was about to alight, before he could reach the street. That the plaintiff was thereby thrown down and injured severely and permanently. The defendant gave proof tending to show that the plaintiff jumped from the car before it was stopped, and that he was not on one of the defendant’s cars. The jury have found the facts to be as the plaintiff and the witnesses who supported biro, testified they were, in respect to the injury on defendant’s car. The only question argued on the appeal is one arising upon the charge of the judge. As has been mentioned, there was proof tending to show permanent disability. The court charged the jury that the plaintiff was entitled to compensation for the results which would flow from permanent disability in the future from the injury, and that the jury could consider future expenses of the plaintiff if they found he was rendered to any extent helpless, and also to consider what expenditures he would incur to make him comfortable. As to the first of that portion of the charge excepted to, there is no authority which will hold good the exception. It is a principle of general application to cases like this, that the results of an injury in the future, if found in the case, are to be included in the compensatory verdict. The rule is stated in Strohm v. The New York, Lake Erie and Western Railroad Company (96 N. Y., 305).

The other exception is based upon the fact that there was no proof in the case as to past or future expenses. As to past expenses the judge excluded them from the consideration of the jury. The only question, therefore, remaining is this, when a fresco painter is permanently disabled and there is no proof of his past earnings, can the jury consider the probable expense arising from the disability in the future. It seems necessary that the jury should consider future expenses; the extent of the disability and the necessity of consequent expense could only be found by the jury. Proof of what a painter earned in the past would give no rule to the jury which would be valuable. That the plaintiff had obtained certain wages would be no evidence that the wages would be the same in the future, or that the employment would continue. Evidence on these points would be speculative as to the future, upon the subject of compensation, or expense flowing necessarily therefrom, and the jury is the best tribunal to make the speculation. The case of Strohm v. The New York, Lake Erie and Western Railroad Company does not hold anything on this subject. The case decides that an expert cannot base an opinion upon the future condition of a person, based in part upon apprehended consequences merely speculative. The case of Leeds v. Metropolitan Gas-Light Company (90 N. Y., 26) holds that it is wrong to allow damages for lost time when the value is not proven. The jury had the injury, proof showing permanency of it, the age and business of the plaintiff. Nothing more could be given which would not be speculative. ■without having the verdict of the jury upon what they should find the truth to be in respect to the future contingencies of the injury. When that was found the jury, from their knowledge of human affairs, could make compensation.

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial, affirmed, with costs.


text:
    LOUIS SIEDENBACH, Appellant, v. JULIA A. RILEY, as Administratrix, etc., of THOMAS M. RILEY, Deceased, Respondent.

      Action to recover chattels — when a mere denial of %e plaintiff’s title constitutes no defense — effect of evidence that the title is in a third person — when the validity and good faith of a sale ts a question for the jury.

    'This action was brought by tne plaintiff to recover certain chattels, to which he claimed title, under a bill of sale executed to him in July, 1879, by one Toledo; the chattels had been seized by a sheriff as belonging to Toledo, under an attachment issued in December, 1879. The court directed a verdict for the defendant, upon the ground that the property was not owned by Toledo, but by a third person.

      Meld, that this was error; that as both parties claimed under Toledo, it was entirely irrelevant who owned the goods if Toledo did not.
    'That the mere denial of the plaintiff’s title would not be a good defense to the action.
    That if there was any question as to the genuineness and validity of the plaintiff’s title, arising from the transfer not being accompanied by a change of possession, that question should be left to the jury.
    Ajppeal from a judgment in favor of the defendant, entered upon a verdict directed by the court, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover certain chattels, of which the plaintiff claimed to be the owner, of the value of about $7,500, and for damages for the detention thereof. The chattels consisted of 1,000 Remington rifles-. The answer made by the intestate, who was the sheriff of the county of Kings, denied the wrongful detention, averred that the defendant had not any knowledge or information sufficient to form a belief that the goods or any part of them were the property of the plaintiff, and then proceeded to set forth that as sheriff of Kings county, on the 29th day of December-1879, he had seized the property under a warrant of attachment issued in an action in which De Witt C. Farrington was plaintiff and Roderigo Toledo was defendant, and that at that time the said property was either the property of said Toledo, or that he had a leviable interest therein. The answer did not deny the taking- of said; property; nor did it allege ownership in the Republic of Honduras-
    The plaintiff derived his title to the riñes, by a bill of sale, dated July 21, 1879, from said Toledo, which, it was claimed* was followed by change of possession within a day or two thereafter, and ■ at the time of the levy of the attachment the chattels were at the Brooklyn navy yard on storage, to the order and credit of plaintiff. On the 29th day of December, 1879, some six months later, the attachment before referred to was levied on said chattels, the sheriff claiming that they were the property of said Toledo, or that he had an attachable interest therein. At the trial term, at the-close of all the evidence on both sides, the court below dismissed the complaint and directed the jury to award judgment in favor of the defendant (the sheriff) for $7,MO, the value of said rifles. The ground upon which the court directed a verdict dismissing the complaint was that by the terms of the contract between “ D. W. 0. Farrington, treasurer of the Lowell Battery Gun Company, and R.. T-oledo, Esq., special commissioner for the Republic of Honduras,” the property in question was owned by- said Republic of Honduras; the court denied leave to the plaintiff to go to the jury upon the question whether the title to the property was in Toledo at the time he sold it to plaintiff.

      Charles Blamdy, for the appellant. ■

      Benjamim F. Butler, for the respondent.
   Barnard, P. J.:

Both parties claim under the same title. The plaintiff claims under a bill of sale from one Toledo, and the defendant under an attachment against Toledo. It is entirely irrelevant who_ owns the goods under the pleadings if Toledo does not. The evidence at least presumptively showed a title in the plaintiff derived from 'Toledo, and accompanied by possession. The defendant levied upon the property as property of Toledo, and there is no claim of title through any other party authorizing the creditor to attack Toledo’s title. (Smith v. Hall, 67 N. Y., 48.) It was always the law in this State that a denial of plaintiff’s title alone is not a good defense. (Anstice v. Holmes, 3 Denio, 244.) This conclusion leaves only questions of fact in the case. Was the bill of sale a .genuine, real, tona fide bill of sale % Was the possession given over of the goods ? If these two questions are answered affirmatively, the plaintiff is entitled to recover for-the plaintiff’s bill of sale, and the delivery, if possession under it ante-date the levy. Both questions are for a jury. (Blaut v. Gabler, 77 N. Y., 461; Juilliard v. Chaffee, 92 N. Y., 529; Powell v. Powell, 71 N. Y., 71) If the change of possession was not absolute and' immediate, and -continued, the good faith of the transaction may still be shown to the jury, for the failure to give possession only raises a presumption of fraud, which may be rebutted by proof that the transaction was fair. In the evidence as taken the proof of change of possession is abundant. If the proof is to be credited, all dominion over the property was delivered to the plaintiff and received by him. There was no need of an amendment of the complaint in respect to a •demand. An averment in a complaint that the defendant unlawfully detains the plaintiff’s property is made out by proof of a demand. It is never necessary to plead the evidence.

The judgment should be reversed, with costs to abide event, and a new trial granted.

Dykman, J., concurred; Pratt, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.


author: Barnard, P. J.: Pratt, J.:

text:
    LOUIS J. SIMONIN, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Hegligenoe — when a question for the jury — when it is the duty of an employee of a,ferry-boat to assist passengers — damages for personal injury — prior earnings of the party injured are to be considered.

    The plaintiff attempted to go on board the defendant’s annex boat, at Brooklyn, as a passenger. The tide was high and the gang-plank leading from the dock to the upper deck of the boat was steep and slippery from rain which was-falling at the time of the accident. When he had nearly reached the top he" slipped upon a rope, which had been left upon the gang-planlc, and was in the-act of falling, when he was seized by one of the defendant’s employees and pulled upon the deck so violently that he fell down and broke his leg. In this action, brought byhim to recover damages for the injuries so sustained:

      Held, that a verdict in his favor should not be set aside.
    The question as to whether or not the assisting of passengers upon the boat was within the scope of the duty of the employee who attempted to assist the plaintiff, was left by the judge to ihe jury to determine.

      Held, that this was a more favorable disuosition of the question than the defendant had a right xo uemand.

      Drew v. Sixth Avenue Railway (26 N. Y., 49) followed.
    As bearing upon the question of damages, the plaintiff was allowed to testify that he was a teacher of the French language, and to state the number of his scholars in the years prior to his accident and the amount of his earnings therefrom.

      Held, no error.

      Ehrgott v. Mayor, ete. (96 N. Y., 264), followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury and from an order denying a motion for a new trial.

      B. F. Tracy, for the appellant.

      O. J. Patterson, for the respondent.
   Barnard, P. J.:

The negligence in this case consisted of two facts very intimately connected, and which may have together contributed to the injury. The defendant’s boat was receiving passengers at Brooklyn. The tide was high; it was raining and the river was rough. The gang-plank was almost at an angle of thirty or forty degrees. While the plain tiff was going up tlie plank, and when he had reached nearly to the top, he slipped upon a rope which had been carelessly left upon the gang-plank, lying aeross it. A deck hand of the boat, but one who was holding the gang-plank, reached out and took hold of the plaintiff, gave him a jerk towards the boat. The plaintiff answered the force applied to him, but was thrown down by it upon the boat and broke his leg. The proximate cause of the accident was the rope. It was a dangerous as well as careless act upon the part of the defendant to leave the rope upon the gang-plank. The turning of the rope under the foot of the passenger would almost inevitably throw him, under the circumstrnces. Whether the deck hand was acting within the scope of his employment or not j if the proximate cause of the act was the rope, and a stranger had failed to prevent its results in the manner the deck hand had done, the company would still be liable for the neglect which occasioned the accident. The deck hand, however, was not a stranger to the occurrence. It seems that the Court of Appeals, almost as matter of law, decided that he was acting within the scope of his employment. (Drew v. Sixth Ave. R. R. Co., 26 N. Y., 49.)

The submission of the question to the jury was not injurious to the defendant. The Court of Appeals says, in that case, in respect to abrakeman upon a street railroad, that he was prima facie acting in discharge of his duty, if it were otherwise the defendants should have shown it.”

There are exceptions to evidence which are all addressed to the admission of proof to show damage. The plaintiff was a French teacher. He taught at the Brooklyn library, and after the usual hours of instruction there, had been in the habit of teaching this language in private classes. The plaintiff was permitted to prove his'ineome for a year or two before. The numbers of his classes, the price received for tuition and the expense to be deducted. The evidence was properly received. It does not extend back to such a period of time as was admitted in Ehrgott v. The Mayor (96 N. Y., 264). It is of the same description. The plaintiff was permitted to testify to his annual earnings for six or seven years before the accident. The Court of Appeals call the evidence “ the best possible basis to estimate the pecuniary loss.” Assuming the correctness of the principle argued by defendant in respect to the effect of uncontradicted evidence, there was nothing in this case which called for its application. The witnesses differed as to the surroundings of the accident. Among other differences, it was testified to by some witness, or witnesses, that the plank was held in a certain way. Other witnesses were silent on the subject, but gave evidence of what they saw at the time of the accident. Under the whole evidence the jury were uot bound to find absolutely as was testified to by certain witnesses.

The judgment should be affirmed, with costs.

Pratt, J.:

The plaintiff attempted to board the defendant’s annex boat at the foot of Fulton street, Brooklyn, as a passenger. There was a gang-plank leading from the dock to the upper deck of the boat. The plank was inclined up towards the deck and its surface was slippery from rain, which was falling at the time of the accident. Plaintiff, using his umbrella as a cane, was proceeding up the plank, and when he • had nearly reached the top he slipped from some cause, and was in the act of falling when one of the employees of the defendant took hold of him, and either pulled or assisted him to the deck of the boat. On reaching the deck plaintiff sunk down and it was then discovered that his leg was broken.

The plaintiff claimed, and the evidence upon his part tended to prove, that the slipping on the gang-plank was caused by plaintiff’s stepping upon a piece of rope that was lying on the plank, and that when the deck-hand took hold of him he did so violently and jerked him upon the deck, and that the leg was broken either from slipping on the rope or from the violent assistance received from the deck-hand.

These facts were both denied by defendant’s witnesses. The questions were disputed ones upon the evidence, and were properly submitted to the jury. It needs no citation of authority to show that the jury might very properly have found that it was negligence for the defendant to have a piece of rope upon the plank upon which passengers might step, and which might be liable to cause injury. The defendant was bound to afford to its passengers a secure and safe mode of passing on to the boat, and whether or not they did it in this instance was a fact for the jury to determine. We think it was also within the scope of the employee’s duty to assist passengers upon the boat, and if, in so doing, he used such violence and force as to inflict injury, the defendant would be liable. (Stewart v. Brooklyn Crosstown R. R. Co., 90 N. Y., 588; Drew v. Sixth Ave. R. R., 26 id., 49.) Whether there was or was not violence in this case was a fact for the jury; as was also the question ■whether the injury was the result of slipping on th^ rope.or of the rough treatment of the deck hand.

The court, however, did not rule as a question of law that the assisting of passengers upon the boat was within the scope of the ■employee’s duty, but left the question to the jury to determine. This was a more favorable disposition of the question than the defendants had a right to ask. The deck hand occupied a position - on the boat from which passengers might reasonably have assumed that he was placed there to assist them, and, if such was not the ■case, the defendants could have shown it. This they did not do.

The plaintiff was a teacher of the French language, and was permitted to testify as to the number of his scholars in years prior to the accident and to his earnings from the instruction of those pupils. This evidence was objected to by the defendant, and its admission is now urged as a ground for reversal. We think the evidence was proper. Similar evidence was offered and received in the case of Ehrgott v. Mayor, etc. (96 N. Y., 265), and the Court of Appeals held it proper for the consideration of the jury. In that case the court say “ the plaintiff’s income was not from capital invested, but solely from his personal skill and services, and his earnings for the six or seven years showed what his services were worth to himself and what he was capable of earning, and thus gave ¡the jury a basis from which to estimate his pecuniary loss.” So in .the case of Masterton v. Village of Mount Vernon (58 N. Y., 391). •-.-Judge Geovee says : “Where, in such a ease, the plaintiff has received .a fixed compensation for his services, or his earnings can be shown with reasonable certainty, the proof is competent.” It was not -error to admit tbe testimony to which objection was made.

The exceptions to the refusal to charge are not well taken, and the judgment should be affirmed, with costs.

.Judgment and order denying new trial affirmed, with costs.


author: Dykman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD D. JAMES, Appellant, v. THE SURROGATE’S COURT OF PUTNAM COUNTY and JULIA L. JAMES, Respondents.

      Writ of prohibition — a Surrogate’s Court will not be restrained from determining the facts upon which its jurisdiction depends.

    Where a petition for the probate of a will alleges that the testator was, at the-time of his death, a resident of the county, to the Surrogate’s Court of which the application is made, a contestant cannot by denying the jurisdiction of tbesurrogate, upon the ground that the testator did not reside in the said county, procure a writ of prohibition restraining the further prosecution of the proceeding in that court.
    Appeal from an order made at a Special Term, denying a motion for an absolute writ of prohibition to be issued to the Surrogate’s Court of Putnam county, prohibiting it from taking further proceedings in relation to the probate of a will, and dismissing the-alternative writ heretofore issued.

      B. IT. Benn, for the appellant

      Haliburton Bales, for the respondents.
   Dykman, J.:

The common law provided the writ of qrohibition as a remedy for the encroachment and unsurpation of jurisdiction by inferior courts, and its legitimate office has ever been to restrain and prohibit such courts from proceeding beyond their proper limits in the exercise of judicial functions. It is an extraordinary remedy, and the writ is only allowed in extreme cases in the sound judicial discretion of the courts. (People ex rel. Adams v. Westbrook, 89 N. Y., 155.)-It will not be allowed where the inferior court has jurisdiction of the-subject matter. In the language of Chief Baron Comyn : “Where it has conusance of the principal, it shall determine that which is incident.” (Comyn’s Dig. Tit. Prohibition.) If in such a case error intervenes, the remedy is by appeal. (People v. Seward, 7 Wend., 518.)

Although the jurisdiction of the surrogate is limited,- his power to take proof of wills and admit them to probate is undeniable, and he is vested with full power over that subject. He has power to act, and if he proceed, erroneously, his action may be reviewed by appeal, but may not be arrested. He may commit an error as toinhabitancy which would be sufficient to reverse his decision, but not sufficient to render it void from the beginning, for the reason that he had power to act upon the subject. (Roderigas v. East Ewer Savings Institution, 76 N. Y., 321.) These familiar principles, applied to this case, remove all difficulties in its disposition.

These aré the facts: Mrs. Julia L. James presented a petition to-the surrogate of Putnam county for the proof of the last will and testament of her husband, Frederick P. James, which contained an allegation that he was a resident of Putnam county at the time of his death. This is assumed in the paper before us, although a copy of the petition is not given. This relator appeared before the surrogate on the return day of the citation and objected to the proof of the will, on the ground that the decedent, at the time of his death, was a resident of the city and county of New York, and claimed that the surrogate of Putnam county had no jurisdiction in the premises, and proposed to prove the facts if they were disputed. Thereupon proof was introduced respecting the residence of the deceased, and after the testimony was closed on that subject, and the counsel had summed up on both sides, and before the'surrogate rendered any decision on the subject, an alternative writ of prohibition was served on the surrogate, commanding him to desist and refrain from taking proof of the will of the deceased until further direction of the court.

The motion to make the prohibition absolute was afterwardsargued and denied, and from that order we have this appeal. Each surrogate must hold within his county a court which has, in addition to other powers conferred by law, jurisdiction to take proof of wills and admit them to probate where the decedent was at the time-of his death a resident of that county, whether his death happened there or elsewhere. Mr. James, the decedent in this case, died at his own house, in the city of New York, where he had been living for several months previous to his death. (Code of Civil Pro.,. § 2472, subd. 1, and § 2476, subd. 1.)

It is to be noticed here that the word resident is substituted for the word inhabitant, in the former statute. (2 R. S., 73, § 23.) "When the petition for the proof of the will of Mr. James, containing an averment of his death, and that he was at the time of his ■decease a resident of Putnam county, was presented to the surrogate of that county, he was in possession of the case and had jurisdiction to proceed therein, and when the objection was made that the decedent was not at the time of his death a resident of Putnam ■county,.that'raised an issue against the petition which• it became necessary to determine. But how was 'the fact to be ascertained, not by an abandonment of the case certainly, but by proceeding to hear the proof and decide the question, which the surrogate was bound to do. It was a special fact on which depended the right of the surrogate to act in this particular case, which it was his duty to ascertain, and then, if his decision was erroneous, it could be corrected on appeal, but could not be assailed by any collateral proceeding. (Bumstead v. Read, 31 Barb., 661; Sheldon v. Wright, 1 Belden, 511.)

Preliminary proof of all the facts on which the jurisdiction of a ■surrogate depends is not required. (Sheldon v. Wright, supra.) 'The writ of prohibition was not, therefore, an appropriate remedy -in this case, and was very properly denied for the reasons already stated. But if the case is to be examined on the merits, the result will be equally conclusive against the writ. The claim of the ■objector is that the decedent, at the time of his death had two resi■dences, one at Cold Spring, in Putnam county, where he spent his time in summer, and one in New York city, where he spent his winters. Residence has much the same signification as domicile, and means the place where a person lives and has his fixed permanent home and principal establishment, and where a person has two residences at different seasons of the year, that will be deemed his domicile or home which he himself selects or describes as his home, ■or where he votes or exercises the rights and duties of a citizen. ■(Burrill’s Law Dictionary, title Domicile.) Residence, combined with intention, constitutes a domicile, and the fact depends much on the •intention of the party. (2 Kent’s Com., 431.)

Under these rules the facts before us show that Mr. James, at the time of his death, had his residence and domicile in Putnam ■county. He so declared in his will, and several deeds which he ■executed under seal. He declared in conversation that he resided there and that his home was there ; that lie voted there and paid his taxes there. He was a special road commissioner for that county and ran there for the office of member of assembly. These facts are potent to establish the unequivocal intention of the decedent to make and continue his home at Gold Spring, and there is nothing to manifest any change or revolution of such intention. Another reason for the denial of the writ of prohibition in this case. is, fcnat the relator had a complete and adequate remedy by appeal from the.decision of the surrogate, on which the whole question could be reviewed.

The discretion of the court was well exercised in the denial of the writ, and the order should be affirmed, with costs and disbursements.

Barnard, P. J., and Pratt, J., concurred.

Order dismissing writ affirmed, with costs.


text:
    GEORGE W. CHASE, as County Treasurer, Respondent, v. ELIZABETH LAWSON and Others, Defendants. JASON F. CLAPP, Purchaser, Appellant.

      Service of summons by publication — what facts show that personal service of the summons cannot be made.

    An order for the service of a summons by publication, in an action to foreclose a mortgage, was made upon the affidavit of one Wood, who stated that he learned from one Tibbs, at Wappinger’s Falls, Dutchess county, that two of the defendants resided in Philadelphia, Pennsylvania, and three others at Dan-bury, Connecticut, the said Tibbs being a brother-in law of one of the said defendants. The plaintiff’s attorney also made an affidavit, stating that he was informed and believed that the said defendants were non-residents of this State, but resided at the places above-mentioned; and further stated *' the sources of deponent’s information is the affidavit annexed hereto made by George Wood, who was employed by deponent to ascertain the residences of said parties; that said defendants cannot, after due diligence, be found within this State, and that deponent is informed and believes that said defendants are now at the places above stated.”

      Held, that the affidavits sufficiently showed that the plaintiff had been and would be unable, with due diligence, to make personal service of the summons on these defendants, and conferred jurisdiction upon the justice to make the order.

      Appeal from an order made at a Special Term, compelling a purchaser to accept a deed.

      T. O. Walceman, for the appellant.

      William R. Woodin, for the respondent.
   Dykman, J.:

This was an action to foreclose a mortgage, and at the sale under the judgment Jason F. Clapp became the purchaser. He refused to complete the purchase, on the claim that the affidavits, on which an order for the service of the summons on some of the defendants by publication was founded, were insufficient to confer jurisdiction on the court to make the order. These affidavits are, first, one of George Wood, that he learned from Joseph Tibbs, at Wappinger’s Falls, Dutchess county, that Edward H. Clapp and Anna Clapp resided in the city of Philadelphia, in the State of Pennsylvania, and that Elizabeth Lawson, Charles Lawson and Sarah Lawson, his wife, and Cora Lawson, reside at Danbury, in the State of Connecticut, and that said Joseph Tibbs was a brother-in-law of Elizabeth Lawson. Then there was an affidavit of the plaintiff’s attorney, with the the summons and verified complaint annexed, that, as he was informed and believed, all the defendants, Edward H. Clapp and Annie Clapp, were not residents of this State, but resided in the city of Philadelphia, in the State of Pennsylvania, which is their post-office address, and that the defendants Elizabeth Lawson, Charles Lawson and Sarah Lawson, his wife, and Cora Lawson, are not residents of the State, but reside in Danbury, in the State of Connecticut, which is their post-office address ; “ that the sources of deponent’s information is the affidavit annexed hereto, made by George Wood, who was employed by deponent to ascertain the residences of said parties; that said defendants cannot, after due diligence, be found within this State, and that deponent is informed and believes that said defendants are now at the places above stated.” Such was the proof on which the order for service by publication was founded, and a careful examination leads to the conclusion that it is a valid order. Section 439 of the Code of Civil Procedure requires the order to be founded upon a verified complaint, showing a sufficient cause of action against the defendant to be served, and proof by affidavit of the additional facts required by the preceding section, that the defendant to be served, being a natural person, is not a resident of the State. So far the affidavits comply with the requirements of these sections ; but where the application is made, us it was here, upon the ground that the defendants are not residents of the State, the last section also requires proof by affidavit that the plaintiff has been, or will be, unable, with due diligence, to make personal service of the summons.

To meet this last requirement of the statute some effort or diligence to make personal service in the State is necessary. What is ■suitable and proper diligence may depend somewhat upon the peculiar facts and circumstances of each ease. The statute uses the well understood term, due diligence, which intends not diligence ■extraordinary or extreme, but only proper and suitable.

In this case the affidavits show no effort to secure personal service ef the summons in this State, but proof is made to show that no diligence would result in such service, and that the plaintiff would be unable to make such service, because the defendants to be served were then not only non-residents of this State, and residents of the State of Pennsylvania and Connecticut, but were actually located and living at tlieir respective places of residence within those States. For this purpose the attorney for the plaintiff states in his affidavit, “ that deponent is informed and believes that said defendants are now at the places above stated.” * * *

If this statement is to be accepted as proof of the fact, then proof of any effort to make personal service in this State was unnecessary, because it thus appears that it would have been unavailing, ■and that the plaintiff would have been unable with any extent of diligence to make such service, and that these defendants could not, after due diligence, be found within this State, and the law will not require a vain attempt or idle ceremony.

When this last fact appeared by the affidavit the judge obtained jurisdiction to make the order. It is true that the fact of inability to find the defendant within the State to make personal service must usually be manifested by proof of effort, but the statute prescribes no form of proof, and any fact showing that the plaintiff will be unable to make personal service within the State will suffice. So the fact thus stated had a legal tendency to make a case and lay the foundation fen- the order of publication, and that is sufficient to authorize the judge to make it. (Von Rhade v. Von Rhade, 2 T. & C., S. C. R., 491.) It was therefore valid and safe from collateral attacks. (Staples v. Fairchild, 3 N. Y., 46.)

It is true the fact that the defendants to be served were, at the-time at their respective places of residence, out of this State, is stated by the attorney on information and belief, but he had employed Wood to ascertain their residence, and so had made efforts to procure correct information on the subject; allegations on information and belief respecting the residence of these defendants were proper to be .considered on the application for the order. (Howe Machine Co. v. Pettibone, 74 N. Y., 69; Van Wyck v. Hardy, 39 How., 393.)

Our conclusion is, therefore, that there was proof by the affidavits on which this order was founded that the defendants could not after due diligence be found within this State, as was said by Mr. Justice Pratt in his opinion in the case of Lockwood v. Brantly (31 Hun, 157), “Where a party is shown to be actually at a certain-place out of the State it follows that he cannot, with any amount of diligence, be found within the State.”

The order appealed from should be affirmed, with costs and disbursements.

Pratt, J., concurred; Barnard, P. J., not sitting.

Order affirmed, with costs and disbursements.