author: Jones, J.

text:
    THOMAS DONNELLY, Plaintiff and Appellant, v. JAMES S. LIBBY, Defendant and Respondent.
    To authorize a personal judgment against either an owner or a contractor, in favor of a party to proceedings taken under the lien law of 1863 for the value of work done or materials furnished, it must be proved or conceded that such party has obtained a lien on the premises on which the work was done or for which the materials were furnished, for the value thereof, by a compliance with the first and sixth sections of that law.
    The cases of Maltby v. Green, Freeman v. Cram, Beals v. Congregation Bnai Jeshurun, Cronkright v. Thomson, Brown v. Wood, Blauvelt v. Woodworth, Eagleson v. Clark, Grogan v. Raphael or McMahon, commented on; and the lien laws of 1844, 1851, and 1863 compared.
    Power of the Court in rendering judgments under the lien law of 1863, considered and defined.
    Jurisdiction over the person depends solely on the service of such process or notice as the law provides for the bringing of parties defendant into court.
    What constitutes a service (other than personal) commented on.
    Whether after a defendant is brought into court he can be proceeded against to judgment, depends on whether the matter alleged against him is such as the Court is authorized to pronounce judgment upon against a defendant brought into court in that way.
    The case of Bolton v. Jacks explained.
    Before Barbour, C.J., Jones and Fithian, JJ.

      [Decided June 11, 1869.]
    This case was tried before a referee.
    Appeal from a judgment.
    This was a proceeding under the lien law of 1863. The plaintiff filed, in the County Clerk’s office, a notice of which the following is a copy:
    “ To Charles E. Loew, Esq.,
    “ Clerk of the City amd County of New York :

      “ Sir—Please to take notice that I, Thomas Donnelly, residing at No. 212 East Thirty-seventh street, in the City of New York, have a claim against J. S. Libby, amounting to the sum of $214.95, with interest from August 26,1868, due to me, Thomas Donnelly, from -and that the claim is made for and on account of mason and flagging work done on the premises hereinafter described, and ■ that said mason and flagging work is in pursuance of a contract between myself and said J. S. Libby, which building is owned by J. S. Libby, and is situated in the Twenty-first Ward of the City of New York, on the westerly side of Fourth avenue, and is known as No. 370. The following is a diagram of said premises:

    “And that I have and claim a lien upon said house or building, and the appurtenances and lot on which the same shall stand, pursuant to the provisions of an act of the Legislature of the State of New York, entitled. An Act to secure the payment of mechanics, laborers, and persons furnishing materials towards the erection, altering, or repairing of buildings in the City of New York,’ passed May 5,1863, and of the acts amending the same.
    “ Dated New York, this twenty-eighth day of September, 1868.
    “THOMAS DONNELLY.
    “ City and County of New York, ss.:
    “ Thomas Donnelly, being duly sworn, says that he is the claimant mentioned in the foregoing notice of lien; that he has read the said notice and knows- the contents thereof, and that the same is true to his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true.
    “ THOMAS DONNELLY.
    “ Sworn to before me, this 28th ) day of September, 1868, j
    “ J. V. Jarvis Christophers, Notary Public

      in and for Oity and Gounty of New York.”
    He then caused to be personally served on the defendant the following notice and bill of particulars:
    “THE SUPERIOR COURT OF THE CITY OF NEW YORK.
    “ Thomas Donnelly, J

    Claimant and Plaintiff, f

      against / Notice to foredose lien.

    J. S. Libby, \
    Owner and Defendant. ]
    “ Take notice, that I, the subscriber, on the 28th day of September, 1868, filed with the Clerk of the City and County of New York the notice required by law to effect a lien upon the house or building, and the appurtenances and lot on which the same shall stand, situate in the Twenty-first Ward of the City of New York, on the westerly side of Fourth avenue, and known as No. 370 - street, and described in the following diagram, owned by J. S. Libby:

      “ That the following are the liens and the times of filing the same, affecting the said premises:
    “ You are hereby required to appear in the Superior Court of the City of New York, at a Special Term thereof, in the Chambers in the City Hall, in the City of New York, on the 12th day of October, 1868, at 10f o’clock, in the forenoon of that day, and submit to an accounting, enforcement of the amount due or claimed to be due on said lien, pursuant to the act in such cases made and provided.
    “ Yours, &c.,
    “THOMAS DONNELLY,
    “ By D. M. Porter,
    “To J. S. Libby, Esq., - “Ms Attorney.

      ■“Owner and Defenda/nt.

    “THE SUPERIOR COURT OF THE CITY OF HEW YORK.
    “Thomas Donnelly,
    Claimant and Plaintiff, against J. S. Libby,
    Owner and Defendant.
    “ Statement of claim, and bill of particulars of mason and flagging furnished, work done, and material furnished, and items of lien, sold and delivered, done and furnished to, and delivered and used, and put into the building erected and owned by J. S. Libby, on the premises hereinafter described, in pursuance of a contract made between said J. S. Libby, owner, and Thomas Donnelly, which said lot and premises are described as follows : and is situated in the Twenty-first Ward in the City of Hew York, on the westerly side of Fourth avenue, beginning at a point twenty-five feet east of a corner formed by the intersection of Fourth avenue and Twenty-seventh street, thence north one half of the block, thence east twenty-five feet, thence south one half of the block, thence west twenty-five feet, being the same premises described in a lien, filed in the office of the Clerk of the City and County of New York, on the twenty-eighth day of September, 1868, by the above-named claimant, against J. S. Libby, upon said building and lot.
    “THOMAS DONNELLY,
    “ By D. M. Porter,
    “ Ms Attorney.

      “To mason and flagging work done at No. 370 Fourth avenue:
    “ Aug. 17. One and one fourth day of a mason, at $5
    per day.......................... $6 25
    “ One day of a laborer, at $3 per day...... 3 00
    “ Four loads of sand, at $2 per load........ 8 00
    “ Three barrels of cement, at $2.30 per bbl. 9 20
    “ Three barrels of lime, at $2 per bbl....... 6 00
    “ Aug. 18. Two days of a mason, at $5 per day...... 10 00
    “ One and three fourths day of a laborer, at $3 per day........................ 5 25
    “ Aug. 19. Two and one fourth days of a mason, at $5 per day........................... 11 25
    “ Two days of a laborer, at $3 per day..... 6 00

    “ Aug. 20. Two and one fourth days of a mason..... .11 25
    “ Two days of a laborer............ 6 00
    “ Aug. 21. Two and one fourth days of a mason..... 11 25
    “ Two days of a laborer.................. 6 00
    “ Aug. 22. Two and á half days of a mason......... 12 50
    “ Two days of a laborer................. 6 00
    “ To working overtime, two masons, ten horns each at double time, will be twenty hours, including both masons forty hours, at sixty-two cents per hour 24 00
    “ Laborer, twenty hours, at thirty-seven cents per hour.......................... 7 40

      “ Aug. 24. One day of a mason, at $5 per day....... $5 00

      “ One day of a laborer, at $3 per day...... 3 00
    “ Mason, twelve hours, double time, at sixty-
    two cents per hour.................. 7 44

      “ Laborer, twelve hours, double time, at
    thirty-seven cents.................. 4 44

      “ Aug. 25. One day of a mason, at................. 5 00

      “ One day of a laborer, at................. 3 00
    “ Mason, eight hours, double time......... 4 96
    “ Laborer, eight hours, double time, at thirty-seven cents......................... 2 96
    $185 95
    “ Half-barrel fire-clay............................ 1 00
    $186 95

      “ Two thousand hard brick, at $14 per ton.......... 28 00
    $214 95”
    He afterwards served on defendant a complaint, of which the following is a copy:

      ‘‘ Thomas Donnelly, j
    Plaintiff and Defendant, / against s
    J. S. Libby, (
    Owner and Defendant. 1
    “ The plaintiff, for his complaint in this action, says: That the defendant, J. S. Libby, having a leasehold, or being owner in fee, in the following described premises, to wit, the tract, lot, piece, or parcel of land by and being in the Twenty-first Ward, in the City, County, and State of New York, on the westerly side of Fourth avenue, beginning at a point twenty-five feet north of a corner formed by the intersection of Fourth avenue and Twenty-seventh street, thence west one half the block, thence north twenty-five feet, thence east one half the block, thence south to the place of beginning, being- the same premises now occupied by the defendant as a hotel, and known as No. 370 Fourth avenue, made an agreement with the plaintiff whereby the plaintiff agreed to do mason and flagging work necessary to repair the building and premises aforesaid, and to furnish the materials therefor. The plaintiff further says that, in pursuance of and in conformity with said agreement aforesaid, he did perform and do said mason and flagging work, in, upon, and about the repairing said premises and the building thereon, and did furnish the materials therefor.
    “ The plaintiff further says that the defendant agreed to pay the plaintiff what said work and materials were reasonably worth, and that they were reasonably worth the snm of two hundred and fourteen and 95-100 dollars.
    “ The plaintiff further says, that said work was done, and said materials were furnished, between the 1st day of August, 1868, and the 30th day of September, 1868.
    “ The plaintiff further .says, that on the 28th day of September, 1868, he filed with the Clerk of the City and County of New York the notice required by law, to effect a mechanic’s lien upon the said building and the leasehold interest and fee in, upon, and to said lot of land and the building thereon, and claiming thereby a lien upon said premises.
    “ The plaintiff further says, that said mechanic’s lien was and is to secure said sum of two hundred and fourteen and 95-100 dollars, with interest thereon from August 26, 1868, then and now due to the plaintiff from the defendant.
    “Wherefore the plaintiff demands judgment against the defendant for an accounting and settlement between the plaintiff and defendant, of all and singular the matters aforesaid; that all the right, title, and interest of the defendant in and to the said lot of land, the building and appurtenances, at the time of filing-said notice of lien to be sold, and out of the proceeds thereof, the plaintiff be paid said amount so found due to him, with interest, and the costs and disbursements, and that the plaintiff have judgment against the defendant for any deficiency arising on such sale, and the plaintiff have such other and further relief in the premises as may he equitable.
    « D. M. PORTER,

      “Plaintiffs Attorney.”
    The defendant served an answer to this complaint, which is as follows:
    “NEW YORK SUPERIOR COURT.
    “ Thomas Donnelly,
    Plaintiff and Claimant,

      against J. S. Libby,
    Defendant.
    “ The said defendant, answering the complaint herein, denies that he is the owner, or has a leasehold interest in the premises in the complaint herein described, and denies that he made any agreement with the plaintiff for the material, labor, and work in said complaint set forth, or any work, labor, and materials for any purpose, in and upon the premises, or for repairing the building and premises in said complaint mentioned, and he denies that the' said plaintiff performed said mason and flagging work, for the repairing of said premises and the building thereon, and furnished the materials therefor, in pursuance or conformity with the agreement alleged in said complaint, or any agreement with this defendant, and he denies that he ever promised to pay him therefor.
    “ And the defendant, further answering, avers that the said ■ plaintiff never did any work, nor furnished any labor, either as mason work or flagging, nor any material in or about said premises, or repairing same, under or by virtue of any agreement with the defendant; and avers that whatever work and labor was done or materials furnished, in and about said premises, as mason work- and flagging, or repairing, the same was done by agreement with other parties, and not with this defendant; and this defendant, on information and belief, denies that the work and materials done and furnished in and about the same, and as .set forth in said complaint, were reasonably worth the sum of two hundred and fourteen and 95-100 dollars, and avers that the same were not reasonably worth more than the sum of one hundred and twenty-five dollars.
    “And as to all the other matters set forth in said complaint, the defendant avers that he has no knowledge or information sufficient to form a belief, and therefore, as to all and each of them, he denies the same.
    “ Wherefore he prays judgment that the complaint herein be dismissed, with costs.
    “CH’S E. SOULE,
    “ Defendant's Att'y."

    The matter was tried before a referee, who dismissed the complaint with costs to the defendant.
    On the referee’s report, a judgment was entered against the plaintiff for $118.94 costs and disbursements.
    From that judgment the defendant appealed to the General Term.
    On the trial the plaintiff proved that the work done and materials furnished, in question, were of the aggregate value of $229.60, and were done and furnished for the defendant at his instance and request. The other evidence, so far as it bears on the questions decided at General Term, is sufficiently stated in the opinion.
    The exceptions filed to the referee’s report were as follows: _
    “ The plaintiff and claimant excepts to the conclusion of law of the referee, in dismissing his (plaintiff’s) complaint.
    “ He further excepts because the referee adjudged costs against the plaintiff.
    “ He further excepts because the referee did not decide that the plaintiff’s lien was a lien upon the premises described in the plaintiff’s complaint.

      " He further excepts because the referee did not decide that the plaintiff was entitled to a personal judgment against the defendant for the amount due the plaintiff.
    “He further excepts because the referee did not render judgment for the plaintiff.”

      Mr. D. M. Porter for appellant.
    The defendant being in possession, Ms name being over the door, his exercising control and acting as owner, was sufficient to sustain the lien,which attaches however temporary the defendant’s interest (Ombony & Dain v. Jones, 19 N. Y., 234).
    The description in the lien, complaint, and proof by giving the street, the number (370), and the supposed owner, was sufficient to sustain the lien, and a judgment of foreclosure ought to have been granted (ch. 79, page 118, Laws of 1868).
    That would make the number alone, with the sujrposed owner’s name, sufficient, but in addition the street is also given, the side of the street, and that it is used as a hotel. The statute says, “ so as to furnish information to persons examining titles; ” even under the old law the lien and the proof would have been sufficient (Duffy v. Brady, 4 Abb., 432).
    “ Number 370 is over the door.” The referee erred in holding that the work must have been done over the whole building; it is enough that it affected a part of the building. It could hardly be expected that the work would cover the entire land, but it did “ extend across the whole width of the second house.” The referee ought to have granted a personal judgment irrespective of the lien. The service of a notice to appear to foreclose a lien is in effect the commencement of an action, and the proceedings are thereafter as in an action, and judgment is entered up as in an action (Brown v. Wood, 2 Hilton, 579).
    Prior'to 1855 no personal judgment could have been rendered. By the amendatory act of 1855 a personal judgment was authorized (Grogan v. Raphael, 6 Abb., 306), and such has been the law since that act, but the act of 1863, page 58, 59, 60, and 61, in a much more comprehensive manner authorizes a personal judgment. Consequently the decisions in the earlier edition of E. I). Smith’s Reports have no application (Eagleson v. Clark, 2 E. D. Smith, 644, also see page 535, note).
    A personal judgment, even under the old decisions, could be rendered against the contractor (Grogan v. The Mayor, &c., 2 E. D. Smith, 693).
    And after the act of 1855, it was so far a personal action, that a counterclaim could be interposed, ■ and a personal judgment could be entered against the claimant, plaintiff for the balance of the counterclaim, making it a purely personal action (Grogan v. McMahon, 4 E. D. Smith, 154).

      Mr. Charles E. Soule for respondent.
    This proceeding being one regulated by statute, all the statutory provisions must be strictly complied with (Robert v. Fowler, 3 E. D. Smith, pp. 632).
    A lien can only be had upon such house or building and the appurtenances, and lot on which the same shall stand, as the claimant shall have performed any labor or furnished any materials towards the erection of, or in altering, improving, or repairing, in conformity with contract with owner, &c. (Laws of 1863, eh. 500, sec. 1).
    The notice of lien must describe the premises by street number or diagram (sec. 6).
    The notice of lien in the diagram sets out a lot on the east side of Fourth avenue, and there is no street number given. But if the diagram is dismissed entirely, and “No. 370 ” should be construed as No. 370 Fourth avenue, then there is no proof that any work has been done or materials furnished for that or any part of that house. “ No. 370 ” forms the corner of Fourth avenue and Twenty-seventh street, on the west side, and is only 24T92- feet wide on Fourth avenue (McAuley v. Mildrum, 1 Daly’s Repts., 396).
    The having a lien is the foundation óf all these proceedings, and if it appear that the work has been done on some other building than that on the lot which is described in the notice of lien, then the attempted lien fails (Conkright v. Thomson, 1 E. D. Smith’s Repts., 661; Randolph v. Leary, 3 do., 637; Quinby v. Sloan, 2 E. D. Smith’s Repts., 594).
    There is no evidence to prove the defendant owner or lessee of the premises where the work is alleged to have been done (Dixon v. Lafarge, 1 E. D. Smith’s Repts., 722; Guy v. Brown, do, 725 ; Pandlebury v. Meade, do., 728).
    The proceeding is one in rem, and no personal judgment can be rendered if no lien is established (Conkright v. Thomson, 1 E. D. Smith’s Rep., 661; Randolph v. Leary, 3 E. D. Smith’s Rep., 637).
    And. there can be no personal judgment generally entered up, even where the owner and contractor are the same person (Althanan v. Ludlum, 2 E. D. Smith’s Rep., 657; Quinby v. Sloan, do., 595).
   By the Court:

Jones, J.

On the argument of this appeal I was strongly impressed with the view that the facts which, according to the first section of the mechanics’ lien law of 1863, give a lien, and the fact of notice having been filed pursuant to the requirements of section 6, must either exist in fact, or their existence be admitted by the defendants, either expressly or tacitly, to authorize any judgment under that law.

The case of Maltby v. Greene (1 Keys, 548), cited by appellant’s counsel, and the case of Freeman v. Cram (3 Const., 305), therein referred to, caused me at first to doubt the correctness of this view. But on a close examination of those cases, I think they cannot be regarded as binding decisions on the point, nor does the reasoning of the' learned judges who delivered the opinions carry with it the conviction that the view entertained by me in the argument is erroneous.

The case of Freeman v. Cram arose under the lien law of 1844, and was an appeal from the New York Common Pleas, ■where judgment was rendered in favor of the defendant, on demurrer to pleas. The sole question presented was whether a mechanic’s lien, under the law of 1844, expired at the end of a year from the time of its commencement, or whether by obtaining judgment against the owner within the year the lien may be prolonged and enforced afterwards.

Section 3 of the act of 1844 provided, The lien so created by this act shall take effect from such filing and such service of said notice (referring to the provisions of section 2), and shall continue in full force for one year thereafter.”

The Court of Appeals held that the mechanic’s lien, being the creature of the statute, and its duration being limited thereby, the courts cannot extend or prolong it. This was all that was decided in the case.

It is true the learned Judge who delivered the opinion of the Court indulged in a train of reasoning tending to show that the proceedings to bring the defendants into court, and the judgment to be rendered therein, were not connected with the proceedings whereby the lien was to be acquired, but were wholly independent thereof. Thus, he says, “ the duty of the Court is simply to settle the amount of the claim and render judgment therefor. The Court is not required to adjudicate upon the validity of the lien or the time of its commencement. The judgment is to be rendered and enforced in all respects like a judgment in an action of assumpsit.”

Again, he says: The statute authorizes a summary proceeding to obtain a judgment for the amount due, by which, in most cases, if not in all, the mechanic’s lien may be enforced by execution and sale within the year; and if in some cases the owner should be able to delay the proceeding until the expiration of the lien, the answer is that the statute has not provided in these cases an effectual remedy.”

With all due respect to the opinion of the learned Judge, it seems to me that the question of the power of the Court to prolong the duration of the lien beyond the time limited by statute does not depend on the solution of the question whether or not a compliance with the requisitions of section 2 is the foundation. of all subsequent proceedings (including therein the judgment) to be had under the act.

Whether it is or not, in either case the lien created under the second section would cease at the expiration of the statutory limit; but that would not affect the further prosecution of the proceedings founded thereon, if, as the learned Judge seems to think, a general judgment may be rendered against the defendant after the expiration of such lien; if, on the other hand, a general judgment cannot be rendered after the expiration of the mechanics’ lien, then it can only be said, in the language of the learned Judge, “the statute has not provided an adequate'remedy in cases where judgment or sale is delayed beyond the statutory limit.”

I think, therefore, all the remarks of the learned Judge tending to show that the creation of a lien pursuant to the requisitions of section 2 is not the foundation of the subsequent proceedings prescribed by the statute, are obiter.

The learned Judge assumes that “ the Court is not required to adjudicate on the validity of the lien or the time of its commencement.”

The second section of the act requires the person who desires to obtain a lien “ to draw up specifications of the work by him contracted to be performed, or materials to be furnished, and stating the price or prices agreed to be paid therefor, and shall file them, or, if there be a contract, a true copy thereof, if the same be in writing, in the office of the Clerk of the City or County of New York, and serve a notice thereof personally on such owner or his agent within twenty days after the making such contract, or commencing the performing of such labor, or the furnishing of said materials.”

“ Sec. 3. The lien so created shall take effect upon such filing and such service of said notice, and shall continue in full force for the space of one year thereafter; such lien may be discharged on said docket,” &c.

“ Sec. 4. Any owner, and any contractor or laborer, or any .person furnishing materials in pursuance of any/contract made by such contractor with such owner or his said agent therefor, may, after such labor has been performed or materials furnished, enforce or bring to a close such lien, by serving a notice personally on such owner or his agent, contractor, laborer, or person furnishing materials, requiring him to appear in the Court of Common Pleas,” &c.

The act, then, prescribes the proceedings to be had after the service of this notice.

.Now let us reason back. What is this notice, which is to bring the parties into court, authorized for ? Why, “ to enforce or bring to a close such lien.” What lien ? Why, the lien so created.” How created 1 Why, by a compliance with the provisions of section 2.

It inevitably follows that the creation of lien, pursuant to the provisions of section 2, is the foundation of the proceedings to be commenced by the service of the notice prescribed by section 4.

Suppose a contractor or sub-contractor wholly omits to file any specifications or copy of contract, or to serve any notice of such 'filing; or suppose, having omitted to file any specifications or copy of contract, he gives notice to the owner of having filed them; or suppose he does file specifications or a copy of the contract, and wholly omits to give notice of such filing to the owner; or suppose he files specifications or a copy of the contract, and gives notice, to the owner thirty (instead of twenty) days after the malting of the contract, or commencing the performing of the labor, or the furnishing of the materials—can the proceedings, instituted by the service of the notice prescribed by section 4, be maintained in any one of these cases ? Is there any “ such lien” (sec. 4) “ so created ” (sec. 3), “ to be enforced or brought to a close by the service of a notice ” (sec. 4) ? Clearly not.

It obviously results that when a defendant, brought into court by the service of the notice required by section 4, raises the question that no valid lien has been created pursuant to section 2, it, so far from not being the duty of the court to inquire into the validity of the lien, becomesi the duty of the court so to inquire, and if it determines that no valid lien has been created, to dismiss the proceedings.

But let us inquire how far the views expressed on this point by the learned Judge in the ease of Freeman v. Cram have con trolled the Court of Common Pleas, in which court that case was first decided, and its decision affirmed by the Court of Appeals, the opinion above commented on having been delivered in such affirmance.

In 1851 the legislature passed another mechanic’s lien law and repealed the act of 1844.

The first section of this act reads: “Any person who shall hereafter, by virtue | of any contract with the owner thereof or his agent, or any person who in pursuance of an agreement with any such contractor shall, in conformity with the terms of such contract, perform any labor or furnish materials in building, altering, or repairing any house or other building or appurtenances to any house or other building in the city and county of New York, shall, upon filing the notice prescribed in the sixth section hereof, have a lien,” &e.

The fourth section of this act provides: “Any contractor or laborer, or any person furnishing materials in pursuance of any contract made by such contractor with said owner or his said agent therefor, may, after such labor has been performed or materials furnished, enforce or bring to a close such lien by serving a notice personally on said owner or his agent, &c., requiring him to appear in the Court of Common Pleas,” &c.

There is no difference between this section and section four of the act of 1844, except that the time to appear is made twenty instead of ten days, and the provision contained in section four of the act of 1844, authorizing the owner to take proceedings to bring the lien to a close, is omitted.

This omission is, however, supplied by subdivisions three and •four of section eleven of the act of 1851. Section six of the act of 1851 provides: “ Within six months after the performance of such labor or the furnishing of such materials, the contractor, subcontractor, laborer, or person furnishing materials, shall serve a notice in writing on the County Clerk,” and then prescribes the contents of such notice.

Section four of the act of 1851 does not refer to the lien to be obtained by complying with section six as that to be brought to a close by the notice prescribed by section four, more definitely and conclusively than does section four of the act of 1844 refer to the lien to be obtained by complying with section two of that act as that to be brought to a close by the notice prescribed by it.

Yet- we find the Court of Common Pleas, long after the report of the case in Freeman v. Cram was published, holding, under the act of 1851, that no lien is created unless the notice prescribed by section six is filed ; that if no lien is thus created, there is nothing to foreclose by the notice prescribed by section four; and that in such event (the point having been taken by the defendant, and sustained), proceedings commenced by a notice' under section four must be dismissed (Beals v. Congregation Bnai Jeshurun, 1 E. D. Smith, p. 654; Conkright v. Thomson, 1 E. D. Smith, p. 662).

In the case of Beals v. Congregation, &c., the point raised by the defendant was that the notice filed was defective, in not complying with the sixth section. The Court (per Judge Wood-ruff) held that it was defective. Plaintiff’s counsel then urged “ that defendant, having appeared in the proceedings to, foreclose by their proper name, have waived the defect, or, at all events, this Court can allow an amendment by which the imperfection can be ended.” But the Court said: “ The defendants have appeared, and set up this very defect as a ground of defence. They have been called into court to defend. They are rightly here. They are here to meet the plaintiff’s allegations, one of which is that he has done work, &c., for one Purss, for payment of which he has a lien on defendant’s building, and prays that that lien may be enforced. The defendants answer, ‘You have no such lieu. You have not taken the steps necessary to acquire one. The very foundation of your proceedings against us has failed.’ In this we think the defendants are right. There does not exist a state of things between these parties upon which the plaintiff is entitled to bring these defendants before the court for the purpose now in view.” Further' on the Court says: “Weare constrained to say that in this case ho lien, as against these defendants, has been acquired by the plaintiffs. He has, therefore, no claim against them to enforce.”

It is true that in both these cases the proceedings were instituted by'a sub-contractor, and not by the contractor. Ho different doctrine, however, can obtain in favor of the contractor. His right to institute proceedings depends on the very same provisions as does the right of the sub-contractor. The same construction of the statute which is applicable to a sub-contractor is also applicable to the contractor. The statute draws no distinction between them.

The present case, however, arises under the lien act of 1863, and the provisions of that act must be examined.

The first section of that act provides for the obtaining a lien, on complying with the sixth section; .the fourth and fifth sections provide for the institution, by any person who has filed a lien, of proceedings to enforce or foreclose the lien by the service of a notice; and section six provides for the filing with a county cleric of a certain notice.

These sections are, so far as the present point is involved, substantially the same as sections one, four, and six of the act of 1851. The first section of. each act provides for obtaining a lien, by filing in the county clerk’s office a notice prescribed by the sixth section of each act within the period prescribed by that sixth section; and each act (the act of 1851 by the fourth section, and the act of 1863 by fourth and fifth sections) provides a mode for enforcing, foreclosing, or bringing to close, the lien given by it by the service of a notice.

Thus far, then, the decisions under the act of 1851 are applicable to cases arising under the act of 1863. Those cases, as well as the reasoning founded on the structure of the first, fourth, fifth, and sixth sections of the act of 1863,' establish that a notice, as prescribed by the sixth section, must be filed as prescribed by that section, in order to give a lien; that there must be a lien created, as prescribed by that section, whereon to found the proceedings instituted by the service of a notice under the fourth and fifth sections, to enforce or foreclose; and if the defendant makes and establishes the point that no such lien has been so created, any proceedings instituted under the fourth and fifth sections must fall.

We must,therefore, look further to find an authority, to render judgment in a case where the point is raised that a lien has not been created pursuant to section six, and is sustained.

Such authority is supposed to be given by the ninth section, which provides: “ Judgment may be enforced by an execution, on which the property on which the lien is adjudged may be sold, and the proceeds distributed as ordered by such judgment; and personal liabilities may be enforced by execution against the property of any party against whom a personal judgment shall have been rendered.

The contractor shall be personally liable to the lienor for the whole amount of the indebtedness, and the owner to the extent of the amount due by him to his contractor.”

It is evident that this section contemplates cases in which, if any judgment is rendered in favor of the claimant, it may be in personam as well as in rem. But there is nothing in it which extends the power of the Court to render any judgment whatever beyond that given by the previous sections. Indeed, the last clause of this section especially limits the right to obtain a personal judgment under the act to that class of claimants who shall have created a lien under the act, viz., the lienors. Thus adding another link to the chain of reasoning which shows that the whole object and purview of the several provisions of the act is to provide a means whereby a lien may be created, and a mode of enforcing it when so created.

But there are other provisions of the act of 1863 which should be noticed.

Section four requires any person who (being authorized by having filed a lien) shall institute a proceeding to enforce or foreclose the lien to make each and every person or persons who have filed liens parties to the proceedings, and also provides that any person filing a lien before final judgment shall be notified to appear and join in the proceedings.

Section five provides that the Court shall proceed without regard to matters of form, which shall be amendable at all times, while the proceedings progress, without costs, and judgment shall be rendered according to the equity and justice of the claims of the respective parties.

Section seven provides that the Court may determine the rights of all parties, and the amounts due to each and by whom to be paid, and that every party shall be at liberty to take proof for or against any claim or lien, and such judgment or decree shall be made thereon, as to the rights and equities of the several parties among themselves, and as against any owner, as may be just.

It is obvious that the design of these provisions is to bring all parties who have, or claim to have, liens by reason of filing notices under section six, before the Court, as well as the owner and contractor, and adjust the respective rights which each has, by virtue of the hen created by him under section six.

It, however, does not authorize the adjustment of any rights other than those secured by a lien so created. In the absence of any positive direction to the contrary, these provisions must be construed as subordinate to the leading principle pervading the whole statute. That principle is to give to parties who comply with certain prerequisites a lien, and then to provide a mode for the summary enforcement of that hen. Of course, if no hen has been created, there is nothing to be enforced by the mode provided.

But, it may be suggested, that if the proceedings instituted by a party are to be dismissed altogether because he has not properly obtained a hen, then each lienor would have to institute proceedings on his own behalf against all the others, in order to prevent his rights from being barred, in case of such dismissal, by the lapse of the' statutory limit of ten days within which proceedings are allowed be instituted; and thus there would be as many proceedings’ as lienors, which is contrary to the intent of the above-cited provisions. Even if this should unfortunately be the result, yet this consideration would be insufficient to overcome the other clauses of the acts, which base the right of a claimant to a judgment in his favor (he being otherwise entitled thereto) upon a lien having been in fact created by him, or an admission by the defendant, either expressly or tacitly, of such creation.

But this does not necessarily follow. The court obtains jurisdiction over the persons of the parties by the service, on them, of the prescribed notice. The existence of a lien created by the filing of a notice is not a necessary element in the gaining of this jurisdiction, although it is essential to give jurisdiction over the subject-matter, since, unless a lien has been created, there is no authority conferred by the statute to render any judgment against the defendant.

The question whether a court, in an action its jurisdiction in which over the subject thereof depends on the existence of certain matter, can obtain jurisdiction over the person of the defendant by service of process, was alluded to in the opinion delivered by me in Bolton -y. Jacks, and some doubt expressed concerning it.

On subsequent reflection, I think it can. Jurisdiction over the person depends solely on the service of such process or notice as the law provides for the bringing of the parties defendant into court.

If the process served in any given case is one of the ordinary processes authorized to be served in the several proceedings over which the court has jurisdiction, without any proof or order of the court being required for its issue, the party is bound to obey it, for the law prescribes that he may be brought into court in that manner. Whether after he is brought into court he can be- proceeded against to judgment depends on whether the matter alleged against him is such as the court is authorized to pronounce judgment upon against a defendant brought into court in that mode; or, in other words, whether the court has in that action jurisdiction over the "subject-matter thereof as against the defendant.

If the party defendant being thus brought into court refuse or neglect to appear and contest, he will be bound by the judgment, unless the record shows on its face that there was no jurisdiction over the subject-matter. And this for the reason that he had his day in court, and was bound, if facts existed showing that the court had no jurisdiction, to bring them forward, and he cannot take advantage of his own neglect to avoid its consequences.

Of course, if he appear and contest the facts giving jurisdiction and is defeated, he cannot afterwards question the jurisdiction, except on appeal.

The reason why he is not bound by a judgment, the record of which shows on its face no act of jurisdiction, is because the record carries with it its own condemnation, and shows that although in form a judgment, yet it is in fact no judgment.

The expression in the opinion in Bolton v. Jacks that “ it seems a logical anomaly to say that' the refusal to obey a mandate issued without authority admits that there was authority,” is probably correct as an isolated proposition, but used in the connection in which it was in that opinion, it intimates that the authority to issue the mandate depends on jurisdiction over the subject-matter, which I am of opinion is incorrect.

To guard against misapprehension, it may be observed that the general principle is, that to bring a defendant into court the process must be personally served, and when a statute authorizes a departure, by reason of the existence of certain facts or proof of them, those facts must in the one case exist, and in the other be proved to the satisfaction of the court, otherwise there is no service. So, too, when a certain kind of process is authorized to be issued on the proof of.certain matters, such proof must be made and tend to establish the matters, otherwise its issue will be without jurisdiction, for there is no case in which such process can issue without such proof.

The establishment or concession that a lien has been created by the filing of a notice, as prescribed, being essential to give jurisdiction over the subject-matter, it resulted that, under the lien laws prior to 1863, when the only lien that could be enforced or contested in any one proceeding was that which the claimant in the proceeding claimed to have created, if the defendant made the point that no lien had ever been obtained by the claimant, and the court so held, the whole proceeding must be dismissed for want of jurisdiction over the subject-matter.

This is the effect of the decision in Beals v. Congregation Bnai Jcshurun (1 E. D. Smith, 654).

But the provision of the act of 1863, now in question, introduces a new element. It brings into the proceedings all parties who claim liens by reason of having filed notices, and authorizes an adjudication in their several claims to liens not only as between them and the institutor of the proceedings, but as between them and the owner, and also as between themselves. The subject-matter of the proceeding, then, is not only the claimed lien of the plaintiff, but also the several claimed liens of the defendants. The court having obtained jurisdiction over the persons of all the parties by the service of the notice, I see no objection to the statute authorizing it, although it is compelled to dismiss the proceedings so far as the institutor thereof is concerned for want of jurisdiction over the subject-matter of his claim, to retain the proceedings for the purpose of adjudicating on those claims of the other parties over the subject-matters whereof it has jurisdiction.

This is the sole effect of the provision in question.

A few words as to the cases cited by appellant’s counsel other than Maltby v. Greene.

The case of Brown v. Wood, (2 Hilton, 579) does not bear on the subject. Its effect is simply to hold that, when the court has jurisdiction over the subject-matter and person, the proceedings are to be conducted conformably to the Code of Procedure and the usual practice of the court, except when the lien law provides otherwise. (

In Blauvelt v. Woodworth (31 N. Y., 287) the point whether a personal judgment could be rendered in a case where no lien was created was not raised, or discussed, or decided. On the contrary, one of the principal points of this discussion and decision was as to whether there was an effective lien, and the court held there was.

Grogan v. Raphael (6 Abbt., 306—same case as Grogan v. McMahon, 4 E. D. Smith, 754) arose under the act of 1855, and was decided on the provisions of that act. Besides, it was conceded in the case that the plaintiff had properly created his lien. What the decision of the court would have been if it appeared that he had created no lien whatever does not appear, and could not appear, as the point did not arise.

In Eagleson v. Clark (2 E. D. Smith, 644) the court held that the plaintiff had properly created- a lien and rendered judgment against the contractor for the amount reported due, and costs, and against the owner declaring the amount reported due, and costs of default and of judgment thereon only to be a specific lien on the premises, directing a sale thereof to raise that sum, and that the proceeds of sale to that extent be applied on the judgment, and that the plaintiff have j udgment against the contractor for the balance, and the deficiency, if any.

The question in the case was whether an owner who made default was liable for the costs created by a contract with the contractor. The Court held he was not. And, therefore, those costs were not declared a lien, but judgment given against the contractor for them.

In Grogan v. Mayor, &c., and McAuliffe (2 E. D. Smith, 693), the plaintiff had filed a proper notice of claim under section six of the act of 1851, and duly served on both defendants the proper notice to bring them into court. McAuliffe, the contractor, made dafault, but the Mayor, &c., the- owners, appeared and defended upon the ground, among others, that plaintiff had no lien, because the work done and materials furnished by McAuliffe were not in conformity with the contract between him and them. The issue between the plaintiff 'and defendants, the Mayor, &c., as to whether such work and materials were in conformity with that contract or not, was tried before a jury, who found they were not.

The Court held that the plaintiff had no lien against the defendants, the Mayor, &e., the owners, and rendered judgment in their favor; but they rendered a personal judgment against McAuliffe, the contractor, for the amount of the claim.

This case arose under the act of 1851, as amended in 1855. It will be seen that judgment went against the contractor by default, and the question as to whether there could be a personal judgment rendered in proceedings under that lien law against the contractor, when it appeared that no lien existed, was not raised, argued, or considered.

This brings me to the case of Maltby v. Greene (1 Keys, 548). That case arose under the act of 1844, chap. 305.

The specifications and papers required to be filed by the statute to create a lien were duly filed, and the notice to bring the defendant into court was served. The defendant did not appear, judgment by default was entered, damages assessed on a writ of inquiry, and final judgment entered against the defendant. From this judgment defendant appealed to the General Term, where the appeal was dismissed. From the order of dismissal defendant appealed to the Court of Appeals. It does not appear whether the plaintiff was contractor or sub-contractor.

In the Court of Appeals two opinions were delivered—one by Judge Ingraham, and one by Judge "¡Wright.

Judge Ingraham held that the order of dismissal was appeal-able to the Court of Appeals, and then held that there could be no appeal to an appellate tribunal from a judgment by default ; and therefore was in favor of affirming the order made at General Term.

Judge Wright, after stating in his opinion that the Supreme Court dismissed the appeal on two grounds—first, that it would not lie to review a judgment rendered by default; and, second, that, if tMs were otherwise, there was no error or irregularity in obtaining the judgment, or at least none of a jurisdictional nature—holds that the Supreme Court was right on either ground, and then proceeds to discuss the latter one. After referring to various sections of the law, and showing that the proceedings had been conducted in conformity therewith, he concludes that the Supreme Court properly dismissed the appeal, unless from the face of the record of the court below it appeared that that court had no jurisdiction of the subject-matter, or entered a judgment unauthorized by the statute; and then holds that neither of these things appeared, but on the contrary the jurisdiction over the subject-matter appeared on the face of the record, by the recital therein of the talcing of the incipient meas%t,res tp create a lien, and that the judgment shown by the record, although a general personal judgment, was in the form authorized by the statute. He, therefore, held that the record disclosed no error, jurisdictional or otherwise.

There is nothing in this opinion which indicates that where a defendant makes and establishes the point that no lien has been created, a personal" judgment can be rendered, except the refer-fence to the case of Freeman v. Cram, which has already been commented on, and the evidently unguarded expression, That the Court requires jurisdiction of the subject-matter, and of the parties, by serving personally the notice required to bring the parties into court.” I say unguarded, for nothing can be better settled than that the mere service of process does not give jurisdiction over the subject-matter. It is also to be observed that in a subsequent" part of the opinion, in discussing whether jurisdiction was shown on the face of the record, it is intimated that the filing of the requisite notice is necessary to give jurisdiction over the subject-matter. In fact, the question as to whether, under such circumstances, a personal judgment could be rendered, was not in the case. It was neither necessary to discuss nor determine it in order to dispose of the case. Whatever expressions may be contained in the opinion bearing on the subject are therefore obiter.

There is another expression which may, perhaps, be questionable ; and that is, the record need not show jurisdiction on its face, in order to sustain the judgment on appeal. It is not now necessary to enter into that discussion.

The conclusion to which I have arrived is that, under the act of 1863, the court may, and, if the point is raised, must adjudicate on the validity of the several liens which the parties to the proceeding claim to have created; that it may adjust the respective rights of those parties whom it adjudges to have created liens as between themselves, the owner, and contractor, adjusting the amounts due to each of such lienors, and determining from whom the same are due; may adjudge such amounts to be specific liens on the premises, whenever such liens were created to an amount not exceeding the sum due to the contractor from the owner may decree the sale of the premises, and apply the proceeds, to the extent of such amount due from the owner to the contractor, to the payment of the amount adjudged liens on the premises, in full, if suiiicient; or, if insufficient, then according to the priority of such liens, as prescribed by section three; and if such premises do not produce an amount equal to the sum due to the contractor from the owner, and the amount they do produce is insufficient to satisfy all the liens so adjudged to be on the premises, then a personal judgment may be rendered against the contractor for the whole amount of said deficiency, and against the owner for so much thereof as, together with the proceeds from the sale of the property, will equal the amount due the contractor from him, in favor of the parties whose liens are unsatisfied, framing the judgment against the owner in such manner as that the amount for which it is given shall be applied according to priorities prescribed by section three; but if the point be raised and established that one or more of the parties to the proceeding have not created valid liens, no judgment whatever can be rendered in favor of such party or parties, but judgment must go against them, declaring them to have no lien, and remitting them to the ordinary remedies provided for the collection by a creditor from his debtor of the debt due him.

The want of power to render a personal judgment against that party to the proceeding who, independently of the statute, is personally liable, in cases where it is adjudged that no lien has been created, may be a defect. But if it is, the duty of providing a remedy devolves on the legislature, and not the court. The eoni't should not, by a forced construction, usurp the legitimate powers of the legislature.

' This leads to the inquiry whether the plaintiff has obtained a lien which can be enforced by these proceedings.

Here we must inquire, first, on what premises he has attempted to obtain a lien by the notice he filed; and, second, whether he has established that he has done any work thereon, and, if he has, whether he has established it in such manner as that the lien therefor can be enforced.

The notice of lien filed is for mason and flagging work done on premises situate on the westerly side of the Fourth avenue^ and known as No. 370. A diagram is annexed. If we erase from the diagram the words Madison avenue,” it shows premises situate on the. north-east corner of Madison avenue and Twenty-seventh street. If the words Madison avenue are suffered to remain, then there is no such plot of ground in the city as that shown in the diagram. So that, whatever way we view the diagram, no work was done on the premises shown by it, and, consequently, no lien thereon for any work.

But, rejecting the diagram, then the notice is for work done on No. 370 Fourth avenue.

The proof shows that there were five houses, and No. 370 was on one of them, but it does not show which of the five was Ho. 370, nor does it show that the whole five were known by that number; the proof further shows that some work was done on each of the houses, and the bill of particulars (fol. 25), taken in connection with the oral proof (fol. 31 to 36, and 55), shows that the great bulk of the work was done on the second house, and the only work done on the others was the taldng up and resetting the flagging of the sidewalk in front of them. -

This proof does not establish that any work was done on No. 370. other than the flagging of the sidewalk in front of it, which was of a trifling amount. For this small amount plaintiff had a lien on No. 370, and would have been entitled to a judgment enforcing it, if he had proved the amount of it. But as he neglected to prove its amount, it was impossible to render judgment for it.

Judgment for costs was properly rendered against the plaintiff. Although the Court, not having jurisdiction over the subject-matter, has no power to render judgment against the defendant in respect thereto, yet the plaintiff, by bringing his proceeding in the court, submitted himself and the decision of his claim to its jurisdiction; and it^does not now lie in his mouth, after bringing the defendant into court, compelling him to litigate the question of jurisdiction, and subjecting him to costs and expenses, to object that the court has not jurisdiction to render judgment for such costs, any more than it ddes to object that it has not power to decide the question of jurisdiction which he has brought before it for determination adversely to him, and in such decision render a binding judgment. Every court (having jurisdiction over the parties)' has adequate jurisdiction over the parties and the action to determine the question of jurisdiction over the subject-matter, when that question is raised; and that jurisdiction is sufficient to authorize a judgment for the costs incurred in the determination of the question against the party invoking the aid of the court.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Barbour, C.J.

license: Public Domain

text:
    MARTHA BARKER, Plaintiff and Respondent, v. JAMES SAVAGE et al., Defendants and Appellants.
    A party cannot permit an improper question to be answered in the hope that it may be favorable to him, and then object to the answer because it is against him. The fact that a witness was discharged from the police force for drunkenness or was otherwise unjustly accused cannot legally affect his credibility.
    A party is chargeable with negligence for doing or omitting to do those acts which a prudent person, having due regard for his own safety and the rights of others, would perform or refrain from. Per Barbour, C. J.
    Evidence offered to show that the plaintiff was in the habit of becoming intoxicated is inadmissible.
    It was proper to show that she was intoxicated at the time of the accident. An exception to a portion of a judge’s charge, containing several propositions, one or more of which are correct, cannot be sustained.
    The legal right of drivers as well as passengers to use the carriage-way of a street is absolute, not exclusive; but there is no priority of right iu either, and the right o± personal protection which every man possesses gives to the foot passenger such a prior right in the street as to make it the duty of drivers of horses to turn aside or stop their teams, if necessary, to avoid doing an injury to persons who may be crossing or standing in their path.
    Before Barbour, C.J., McCunn and Fithian, JJ.

      [Decided June 11, 1869.]
    This case was tried before Mr. Justice Jones and a jury.
    The action was brought to recover damages sustained by the plaintiff by being run over by a horse and cart belonging to defendants.
    The jury found a verdict for the plaintiff. A motion for a new trial was denied. The defendants appealed from the order refusing a new trial, and also from the judgment.
    The questions presented to the General Term, and also the facts, are stated seriatim in the opinion of the Court.

      Mr. W. W. Culver for appellants.
    The Court erred in allowing a witness, who was a policeman, to testify as to what he did with the defendant Gormley after the accident (Clark v. Crandall, 3 Barb., 612; Cunliff v. Mayor, &c., 2 Barb., 191).
    It was error to allow witness Campbell to make an explanation.
    It was an error to allow proof as to the weight of the cart that struck plaintiff.
    The Court erred in allowing the question, “ If the plaintiff had been an ordinary person possessed of her locomotive powers and active, would the horse have struck her ? ”
    The defendants have the same rights that all other persons possess; they were rightfully in the street, driving no faster than the law allowed; there was no proof that Gormley did any careless act or thing. The plaintiff, to recover, was bound to show herself faultless, and that defendant, Gormley, was guilty of some wrongful act or omission (1 Allen, Mass. Rep., p. 187; Wild v. Hudson R. R.R. Co., 24 N. Y. R., p. 330; Terry v. N. Y. C. R.R. Co., 22 Barb. R., p. 574; Davenport v. Rushman et al., 37 N. Y. R., p. 568).
    The offer to show that the plaintiff was in the habit of being intoxicated was improperly excluded.
    The Court erred in charging the jury that a person on foot crossing the street, on a crosswalk, has the right of way, and the driver of a horse and vehicle is bound to avoid contact at his peril (Beiseigel v. N. Y. C. R.R. Co., 34 N. Y. R., p. 622; Ernst v. The Hudson River R.R. Co., 35 N. Y. R., p. 9; Davenport v. Rushman et al., 37 N. Y. R., p. 568).

      Mr. E. D. Culver for respondent.
    The evidence fully warranted the jury in finding that the plaintiff was lawfully and peaceably crossing a public street in the city, at the proper crossing, and in the usual manner; that while she was so crossing, the defendant Gormley, being the servant and in the employ of the other defendants, in open day, and seeing the plaintiff, and knowing he was approaching her, jet so carelessly and recklessly drove that his horse or cart, or both, struck and knocked her down, the wheel passing over and crushing fearfully her leg.
    The negligence of the defendants, and the alleged negligence of the plaintiff, together with the question of damages, were fully and fairly submitted, as questions of fact, to the jury, and their finding was clearly in accordance with the weight of evidence, and should not be disturbed.
    The Judge very properly declined to charge specifically, as requested, because his charge covered, substantially, all the points involved in the requests, and hence he declined to charge as requested, other than he had charged.
   By the Court:

Barbour, C.J.

The evidence given upon the trial of this action on the part of the plaintiff was sufficient, if credited, to establish the following facts, viz. :

The plaintiff, who was a woman sixty-two year’s of age, lame and walked with a crutch, in attempting to cross one of the streets of this city upon the ordinary street crossing, was knocked down and run over by a horse and cart belonging to the defendants, through the negligence of their driver, whereby her leg was so broken and injured as to render its amputation neces. sary, and to confine her to her bed some five months. The jury found a verdict for $2,500 against the defendants, and this appeal is brought by them from the judgment thereupon entered.

Sundry exceptions to the rulings of the court, upon evidence, were taken upon the trial, as well as to the denial of a motion to dismiss the complaint, to refusals to charge as requested, and to portions of the charge as made, all of which will be considered in their order.

First.—The defendants permitted the plaintiff’s counsel, with* out objection, to ask a policeman what became of the driver after the accident, and after an answer had been given, which was responsive to the question, objected to such answer. The objection came too late. The subject-matter of the inquiry may have been irrelevant; but a party cannot permit an improper question to be answered, in the hope that it may be favorable to him, and then object to the answer because it is against him.

Second.-—One of the witnesses was asked by the defendants’ counsel whether the plaintiff had sufficient time to get out of the way if she had not been lame, and an exception is taken to the exclusion of that question. I think the ruling was proper. The question was not only hypothetical, but any proper answer to it must have been a mere opinion, founded upon the facts in regard to positions, distances, and speed, which the witness had already stated to the jury.

Third.—The permission given to the policeman to state the manner in which he was discharged from the police force was not only just and proper, but such statement could not have harmed the defendants; for neither the fact that the witness was discharged from the force for alleged drunkenness, nor that he was unjustly accused, legally affected his credibility.

Fourth.—The admission of evidence to prove what the driver did immediately after the occurrence of the accident was also right. The question whether he attempted to rein in his horse at once, or recklessly drove on without stopping to assist the person injured, was a material one, as tending to show the animus of the driver. Indeed, in one aspect which the case assumed, it was, probably, very important. For while the driver testified that his horse was excited and unmanageable, the witness Nash stated that the driver stopped the animal within three or four yards beyond the place where the accident occurred; a circumstance, certainly, from which the jury may have inferred that the driver erred in supposing his horse to have been so ungovernable that he could not be stopped or turned aside before reaching the place where the plaintiff was crossing the street.

Fifth.—The question as to the weight of the cart does not seem to have been of much importance, but it cannot be said, to have been wholly irrelevant, inasmuch as the extent of the injury caused by a heavy cart or a light one would, probably, be somewhat different. Be that as it may, however, it is not easy to see how the admission of proof of the weight tended to the injury of the defendants.

Sixth.—The sixth exception is covered, substantially, by the foregoing remarks, upon the second.

Seventh.—The refusal of the court to dismiss the complaint upon the closing of the plaintiff’s proofs was proper. The plaintiff had proved that the driver, although approaching the woman in a right line, at the rate of about four miles per hour, contented himself with hallooing at her, to warn her of her danger, and, so far as the case then showed, without attempting to stop or slacken the speed of his horse, or to turn him aside, continued on his course, and ran over her. Clearly, that was enough to warrant the jury in finding that the injury to the plaintiff was caused by the negligence of the driver; and there was no evidence before them tending to show that any negligence 'of the plaintiff contributed to the accident beyond what might properly be inferred from the fact that she was attempting to cross the 'street although old and lame. A party is chargeable with negligence in actions of this character, for doing or omitting to do those acts which a careful, prudent person, having a due regard for his own safety and the rights of others, would perform or refrain from; not for a failure to exorcise the utmost possible precaution against danger. The question, then, was, whether a careful, prudent person, in the physical condition of the plaintiff, would have attempted to cross the street, or whether, being upon it, she did all that a careful woman, in that condition, would have done; and that was a question which it was proper for the jury to determine. For, although the learned judge who delivered the opinion of the Court of Appeals in the case of Gonzales v. The Harlem RR Company, goes so far as to say that questions of negligence, where the facts are uncontroverted, are always to be determined by the court as matters of law, it is impossible for me to imagine that the court designed to cast" upon the judges of inferior tribunals the responsibility of determining, in all cases, and in every combination of ciroumstances, the question whether a party has done what a careful, prudent person would have performed. Such a decision would deprive juries of powers which they have exercised for centuries in actions of this character, and would leave to them only the right of deciding upon the credibility of witnesses, in cases of conflicting evidence, and of fixing the amount of damages.

Eighth.—The evidence offered to show that the plaintiff was in the habit of becoming intoxicated was properly excluded. The fact as to whether she was intoxicated at the time was, of course, important, and' the evidence upon that point was admitted.

Ni/nth.—The motion for a nonsuit after all the evidence was in, ought to have been denied, as it was. It was proper for the jury to consider and determine whether the horse was so excited and uncontrollable for the time as to render it impossible' for the driver to stop him and rein him in; and if not, whether the act of the driver in continuing upon his course, without slackening his speed, notwithstanding he saw the plaintiff, when twenty or twenty-five feet from her, as he says, directly in his path, was or was not such an act as a careful person, having a proper regard for the rights of another, would have committed.

Tenth.—This point of the counsel for the appellants covers two distinct and separate exceptions to what are assumed to be portions of the judge’s charge. One is “to that part in which the court charged the jury, in substance, that a person crossing the street had the right of way, and a driver was bound to care for him;” and the other, “to that part in which the judge charged, in substance, that a person crossing the street was not bound to look either way, but had the right to look straight before him, and it was the duty of the driver to keep out of Ms way, and not come into collision with Mm.”

It will be observed that each of these exceptions is duplex, and covers two distinct legal propositions, and that in both the exception is to the instruction (substantially) that it is the duty of a driver to care for the footman, and avoid confine: into collision with him. That portion of the charge, at least, there can- be no doubt, is entirely correct. Conceding then, for a -moment, -that the remaining matter covered by the exceptions in question is erroneous, still, it appears to me,- the exceptions should be overruled ; for the rule is well established that an exception to a portion of a charge; containing in that part- several legal propositions, one or more of which are correct, cannot be sustained (Oldfield v. N. Y. & Harlem R.R. Co., 14 N. Y., 310; Elton v. Markham, 20 Barb., 343 ; Vallance v. King, 3 id., 548; Potter v. Seymour, 4 Bosw., 140 ; Nevins v. Bay State Co., 4 id., 225; Cronk v. Canfield, 31 Barb., 171; and see 11 N. Y., 416 ; 6 id., 233 ; 7 id., 266; 24 How., 172, 236; 30 Barb., 246).

But I prefer, with the concurrence of my brethren, to put the decision of the court on this particular question upon other grounds. The charge upon this subject, as delivered, and which is probably the part intended to be covered by the exceptions in question, was in these words:

“ In my view, as a general proposition; a foot passenger, crossing at the usual crossing, has a right of way, and, having that right of way, there is thrown upon the driver the responsibility of avoiding collision. That is the general proposition. It is, as you will observe from the remarks I will hereafter make, limited in certain cases. A foot passenger, going upon a straight line and crossing the street upon a regular crossing, there being nothing to dall his attention to any vehicle coming, is not bound to stop and look around to see whether any thing is approaching. There being nothing which would naturally attract the attention of an ordinary passer-by, he has a right to assume that the way is clear, and to act upon that presumption in his conduct. How, although I have stated the principle to be that a foot passenger has the right of way, yet he cannot use that right of way in an arbitrary manner. He cannot, after starting upon his passage across a street, if he see a vehicle coming át a reasonable rate of speed, and it is evident to him that he cannot, by using his ordinary faculties, cross the track, if the carriage continue in its course, without a collision, he is not then at liberty, although he may have a right of way, to go rushing right into that vehicle.

“As I understand it, the counsel for the plaintiff advocates the principle that the driver is, under all circumstances, to prevent running over a foot passenger. That I do not think is law. Drivers are bound to use caution—such reasonable caution and care as the circumstances require; that is all they are bound to use. But they must use that in the view"which I have stated; that is, that foot passengers have the right of way, of priority, and that they are not bound, unless there is something to attract their attention, to be looking out all the time to see whether any vehicle is coming. The driver, looking straight ahead, puts the responsibility upon them to see whether there is any one crossing their tracks; and, having these two things in view, they are so to conduct themselves with such care and caution as that they will not run over or come into collision with the foot passenger, assuming that that foot passenger will take the ordinary and reasonable means of protecting himself. How, the question as to whether there is negligence or not depends upon the particular circumstances of each case. What would be negligence in one case may not be negligence in another; and so, again, what in one case would not constitute negligence in that particular case, in another case that very thing may constitute it, depending upon other circumstances connected with it.”

Taking these remarks of the learned judge, in their connection, as an entirety, and giving a legitimate and proper construction to his language with reference to the question as to whether either, or both, or neither of the parties had been guilty of negligence resulting in the injury, this portion of the charge appears to me to be quite correct. As an abstract proposition, it is true the drivers of horses have the same right to travel along the carriage-way of a street with their teams and vehicles that foot passengers have to walk there. The legal right of each class to use that part of the street for purposes of travel is absolute, but it is not exclusive and, in that sense, it may be said that there is no priority of right in either. But it is to be considered that the danger of injury by collision is, wholly, upon the side of the footman; and the right of personal protection which every man possesses, together with that moral and legal obligation to refrain from doing an injury to his person which is imposed upon all others, gives to the foot passenger such a prior light in the street as to make it the duty of drivers of horses to turn aside or stop their teams, if necessary, at whatever cost of property it may occasion, to avoid doing an injury to people who may be crossing, or standing in their path.

. Eleventh.—There was no exception to the part of the charge referred to in this point, and, therefore, the objection cannot be considered here. The' request to charge, as matter of law, that the plaintiff was guilty of negligence in being upon the street while lame and infirm, was properly denied. It was a question of fact, and ought to have been submitted to the jury, as it was.

Twelfth.—The objection that the verdict was against evidence cannot be sustained. The driver himself testified that he saw the plaintiff, when, twenty or twenty-five feet from her, directly in his path, and yelled at her, expecting that she would get out of his way, and then continued on in his course, until she was knocked down and run over by his cart. It is true he stated that he tried to stop his horse, and to turn him out; but, as the animal was only trotting at the rate of about four miles an hour, and the driver stopped him without difficulty within three or four yards from the place where the accident occurred, the jury probably disbelieved that statement, and found that the injury was occasioned by his gross negligence, as they well might. I am of opinion, too, that the evidence was insufficient to justify a finding that the plaintiff was guilty of any negligence which contributed to the accident. The fact that she failed to look up and down the street before she began to cross is quite unimportant, inasmuch as there was no evidence that the horse and cart were then within sight, and so near that a person of ordinary prudence, in her condition, would have refrained from crossing, because of that, if such person had seen them coming. Although her failure to look may, therefore, have been negligence, it cannot be said that such negligence contributed to the accident. Indeed, as this lame old woman had nearly crossed the street (one of the wide avenues) before the collision, it is reasonable to suppose that the horse and cart’were far away when she started; so far that a prudent person in her condition might well attempt to pass over, under the supposition that she could do so before the horse and cart would reach the crossing; or, if not, that the driver would turn out of his course and avoid her, as it would be his duty to do.

Thirteenth.—The verdict does not appear to me to award damages which are excessive. The plaintiff must not only have suffered great pain and much mental anxiety, but she had lost her leg, and had been confined to her bed for several months.

The judgment should be affirmed, with costs.

McCunn, J., dissented.


text:
    JACOB SOLOMON, by Guardian, Plaintiff, v. THE CENTRAL PARK, NORTH AND EAST RIVER RAILROAD COMPANY, Defendants.
    The question of negligence, the facts being uncontroverted, is a question of law for the Court. Per Court of Appeals in Gonzales v. N. Y. and Harlem R.R. Co.
    The front platform is a place of danger. The occupation of such platform by a passenger is prima facie evidence of negligence on his part, and the onus is on him to rebut the presumption.
    The presumption is not rebutted when all that appears by the evidence is that the passenger voluntarily seated himself on the front platform.
    That which constitutes negligence in an adult will also constitute it in a child of tender years.
    The not stopping a car when requested by a passenger does not give the passenger a license to occupy a place of danger, and so relieve hint from the charge of negligence, unless such non-stoppage caused the plaintiff to occupy the position of danger.
    It is not error to exclude evidence of a statement made in the presence of a member of a corporation who is not shown to have occupied such a position that his statements, or admissions by silence, would bind the company.
    After a plaintiff has rested, it is in the discretion of the Court whether to allow the case to be reopened and further witnesses called.
    Such discretion is properly exercised when the proposed evidence does not bear on the point on which the complaint is dismissed.
    Before Barbour, C.J., Jones and Fithian, JJ.

      [Decided June 11, 1869.]
    This case was tried before Mr. Justice Barbour and a jury.
    The plaintiff, then being about the age of nine years, on the 6th day of September, 1861, got into the defendants’ car at Fifty-ninth street, to go down to a butcher’s shop on the First avenue, between Forty-sixth and Forty-fifth streets. He got in at the rear platform; after a while passed through the car, and seated himself on the step of the front platform. He remained there seated until the accident occurred, which resulted iq. the injuries for which this action is brought. While thus seated, the car jolted, and threw the boy off, occasioning the injuries in question. Before the accident happened the boy had twice asked the driver to stop—once at Forty-fifth street, and once at Forty-sixth street; on each occasion the driver replied, “ No.”
    There is no evidence showing that the car was crowded, or that there was not plenty of room for the boy to sit inside, nor is there any evidence that the boy paid any fare, or, if he did, whether he was sitting on the step of the front platform when he paid it.
    On the direct examination of one of plaintiff’s witnesses, she was asked: “ Were you present when any of the company came there after the boy was injured?” She answered, “Yes.” She was then asked: “ What account did the child give in the presence of that person as to the injury ?”
    The question was objected to; the objection sustained, and plaintiff excepted.
    After the plaintiff rested, defendants’ counsel moved to dismiss the complaint, on the ground that no negligence had been shown on the part of the defendants, and also on the ground that plaintiff’s own negligence and misconduct contributed to the accident and injury sustained by him.
    Pending the discussion of the motion, and before its decision, Mr. Lyon, a witness for plaintiff, arrived in court, and plaintiff’s counsel offered to call him to testify as to the obstruction which caused the boy to be thrown from the car. The court refused to allow the witness to be called, and plaintiff’s counsel excepted.
    The motion to dismiss the complaint was granted, and plaintiff’s counsel excepted.
    The court ordered the exceptions to be heard in the first instance, at General Term.

      Mr. Henry Morrison for plaintiff.
    The defendant is liable for the injury, although it was by accident or force however inevitable or irresistible.
    The neglect of duty by its contract.
    By refusal to let the plaintiff alight, all subsequently that happened to him by way of injury is beyond and exceeds the ordinary liability of defendant as carrier in the performance of a duty within the limit of legal performance (Read et al. v. Spaulding, 5 Bos., 403 ; Davis v. Garnell, 6 Bing., 716; William v. Grant, 1 Conn., 492 ; Scovill v. Griffith, 2 Kern., 509; Teal v. Sears, 9 Barb, 317).
    The complaint ought not to have been dismissed for either of the grounds contended by defendant (Johnson v. Hudson R R.R. Co., 20 N. Y., 74; Mullhado v. Brooklyn City R.R. Co., 30 N. Y., 370 ; Drew v. Eighth avenue R.R. Co., 26 N. Y., 49 ; Willis v. Long Island R.R. Co., 32 Barb., 398, 399).
    Plaintiff being a child of tender years augments and does not diminish this proposition (Sheridan v. Brooklyn and Newtown R.R. Co., 36 N. Y., 39 ; Honigsberger v. The Second avenue R.R. Co., 1 Daly, 89; Lynch v. Nordin, 1 Adol. & Ellis, p. 29, new series ; Barclay v. Second avenue R.R. Co., Supreme Court General Term, Dec., 1864).
    The case ought to have been submitted to the jury, and, ex debito justicies, the Court on this appeal ought not to refuse the plaintiff that right (Ernst v. Hudson R. R.R. Co., 35 N. Y., p. 10).

      Mr. A. J. Vanderpoel for defendants.
    It was clear that there was no negligence on the part of the defendants. None is suggested by plaintiff’s counsel, except the refusal to stop the car. Defendants fully discharged their duty to the plaintiff in furnishing a sufficient and safe vehicle for him to ride in. Even if the defendants refused to stop the car, that was no evidence of any negligence on the part of the defendants concurring or contributing to the injury.
    The following rules may now be regarded as established universally :
    That to sustain an action against a common carrier, the plaintiff must be wholly without fault.

    That if there is the slightest negligence on the part of the plaintiff which contributes to the injury, the action will not lie.
    There was no negligence in this ease on the part of the driver in not stopping the car.

      This refusal did not justify the plaintiff in alighting from the car while it was in motion.
    It was negligence on plaintiff’s part to attempt to alight from the front platform of the car while it was going down hill.
    “ It is the duty of the passenger, on getting on board of a car, to place himself in a safe position therein, if he is able to obtain such position, and it is no excuse, if he place himself in an unsafe one, that the persons in charge know that he is unsafe, and do not drive hipa therefrom, when the unsafety is known to the passenger. That riding upon the step of a street car is less safe than a seat inside requires no proof: it is obviously so” (Clark v. Eighth avenue R.R. Co., 1 and 2 Transcript Appeals, 108).
   By the Court:

Jones, J.

In Gonzales v. The ¡New York and Harlem ¡Railroad Company, the Court of Appeals held, that it must be considered as settled that the question of negligence, the facts being uncontroverted, is a question of law for the court.

In the present case the facts relied on as constituting negligence on the part of the plaintiff are uncontroverted. They are that he was seated on the step of the front platform at the time of the occurrence of the accident, and that he voluntarily seated himself there. Does this constitute negligence ? ■

In Clark v. Eighth avenue R.R. Co. (1 Transcript Appeals, p. 105 ; also reported in 36 N. Y., p. 135), the learned judge who delivered the opinion of the court laid down this doctrine: “When it appears that a passenger is riding in a ear in a place of hazard or danger, his negligence is prima facie proved, and the onus is upon him to rebut the presumption.”

Even if this is not to be regarded as an authoritative decision by the Court of Appeals, still it is sound in principle.

A step further, general experience has demonstrated that the front platform of a car is a place of hazard and danger, especially when a person occupies a place thereon, such as the present plain tiff did. Such was the view of the court in Clark v. Eighth ave. R.R., and even if the remarks in the opinion in that case on this subject should be regarded as obiter, yet I think there can be no doubt of their accuracy.

The plaintiff, then, was negligent in occupying the position he did; and that his negligence contributed to the accident, admits of no question.

The complaint therefore was properly dismissed, unless both or one of" two propositions submitted by plaintiff’s counsel are or is correct.

One of these propositions is, that what would constitute negligence in an adult, will not in a boy nine years of age.

The case of Sheridan v. Brooklyn and Newtown Railroad Company, 36 N. Y., cited from page 43, negatives this proposition.

The other proposition is, that the driver, by not stopping when requested, rendered the company hable for any injury that might thereafter happen, although the plaintiff’s own negligence may have contributed thereto.

But not so. Conceding, as intimated in the case of Sheridan v. Brooklyn and Newtown R.R. (cited supra), that said not stopping was an act of negligence on the part of the defendants (concerning which no opinion need now be expressed), or was even a wrongful act, yet it gave no license to the plaintiff to negligently expose himself to danger.. If the act of not stopping caused the plaintiff to occupy the position of danger, then the rule in the case of Clark v. Eighth ave. R.R. Co. would apply. But the evidence clearly shows that the plaintiff’s position on the car was not caused or induced by the act of not stopping the car.

It results that the complaint was properly dismissed.

Two exceptions to refusals to admit testimony remain to be" considered.

There was no error in the refusal to admit evidence of the plaintiff’s statement made in the presence of one of the company. Who this person was, and what his position in the company was, did not appear. It should at least have been preliminarily shown that he occupied such a position, that his statements or admission by silence would bind the company.

Even if there were error, still it is immaterial, for whatever statement the hoy may have made, could not have altered his own testimony as to the facts upon which his negligence was predicated.

So, too, there was no error in refusing to allow the witness Lyon to be called. After plaintiff rests, it is a matter of discretion whether to allow the case to be reopened, and further witnesses called. In the present case that discretion was properly exercised, as the evidence proposed to be given did not bear on the point on which the dismissal proceeded, to wit, the concurring negligence of the plaintiff.

Exceptions overruled, and judgment on the verdict ordered for the defendant, with costs.