text:
    Stillman Witt, plaintiff and appellant, vs. The Mayor, Aldermen and Commonalty of the city of New York, defendants and respondents,

    1. The general principle that a tenant under a demise for a year or more, by holding over after the expiration of his term, becomes tenant from year to year, is well supported by authority.
    2. Where the defendants entered'under a valid lease, the term whereof expired at a time certain, (viz., May 1, 1861,) and after the expiration of that time remained in possession with the assent 'of the landlord until May 12, 1864; Seld, that after .May 1, 1861, they became tenants from year to year, and such tenancy having commenced, would continue until one party or the other gave six months’ notice of an intention to determine it.
    3. Seld, further, that the tenancy from year to year having thus been created prior to May 1, 1863, and no such notice of six months having been given, the defendants’ liability for the rent of the year ensuing May 1, 1863, in no way depended on the solution of the question, whether a tenant under'a lease terminating on a day certain has a reasonable time thereafter within which to remove; nor of the question as to whether to make him a tenant from year to year, he must hold over a sufficient length of time to indicate his intention to remain a tenant.
    4. A lease, if void, can, of itself alone, have no operation. Tenants being in possession under a former valid lease, and continuing in possession after its termination, may well be regarded as holding over under the terms and conditions of that former lease, and in that event a tenancy from year to year would arise.
    6. But if tenants are to be regarded as having entered under a subsequent void lease, the possession under it, and the payment and acceptance of rent under it, would create a tenancy from quarter to quarter; in which case it could not be determined without giving three months’ notice.
    6. Hence, if the subsequent lease be void, the tenancy is either-from year to year, or from quarter to quarter; and if neither a six months’ nor a three months’ notice is given, the tenancy will continue during the year upon which the tenant has entered. <

    7. A notice, given by a tenant for the purpose of terminating a tenancy, should be given either three or six months (depending on whether the tenancy is from quarter to quarter or year to year) prior to one of the usual quarter days, and should notify the landord that the tenancy will be terminated on the next ensuing quarter day.
    8. The right of ingress, egress and regress given to a tenant whose term depends on an uncertainty, to cut and carry away the profits, and to remove his goods, is founded on the principle that no sudden determination without the tenant’s fault, of an estate, the time of the expiration whereof is not certainly foreknown, shall tend to the manifest and unforeseen prejudice of the tenant. The principle does not apply to a tenant whose term depends on a certainty; and consequently this right is properly denied to him.
    9. The statement made in Taylor's Landlord and Tenant, to the effect that “ after the tenant has quit possession, and his tenancy is ended, he has still a right to enter upon the land in order to remove his goods and utensils,” even assuming-it to be supported to its full extent by the authorities cited to sustain it, contains no warrant that the tenant may remain in possession for the purpose of ’ removing his goods, &c., but simply that after he has quit possession he may enter on the land for the purpose of'making such removal.
    10. But the authorities cited in support of that statement do not sustain it, to its full extent. By those authorities this right of entry is confined to tenants whose terms depend on an uncertainty; among them tenants at will.
    11. The right of the landlord to elect to hold a tenant holding over, either as a trespasser or tenant, rests on the tenant’s breach of his contract in so holding over, and not on the intention or motive with which he committed such breach. When, however, the question arises as to whether the landlord has elected to hold his tenant as tenant, then the length of time during which the tenant has been allowed to remain in possession, without molestation, is one fact from which an election to hold him as tenant- may be inferred.
    12. Where the corporation of New York in the proper and legal exercise of its power, placed its agent, the street commissioner, together with the books and papers of the office in certain premises, and kept him in- those premises, there transacting its business, giving him no direction to change, and providing no other office for him to transact the duties of his agency in, until at last it provided another place, and directed him to remove thereto, at a time when it was impossible for him to do so without holding over in the premises in question for a sufficient time to enable him properly and with due care to remove the hooks, papers, &c.; Held that such act of holding over was directly caused by the corporation, and it alone was responsible therefor.
    13. To provide accommodations for the performance of corporate duties and work, by its officers and agents, falls within the scope of the corporate powers of the corporation of New York; and to this end, to become a tenant of premises is also within the scope of such powers.
    14. In the absence of any statutory provision directing how that power shall he exercised, such tenancy may he created or raised in any manner known to the law. It may be by a valid lease, or entering into possession under an invalid lease, and the payment and acceptance of rent according to its provisions; or, at the option of the landlord, by continuing in possession after the expiration of a demised term.
    15. In whichever way it is created or raised, the rules and principles applicable to an individual creating or raising a tenancy in a similar way, and the liability incurred by him thereby, are also applicable to and incurred by the corporation; there being no statutory provision to the contrary.
    16; The corporation is therefore capable of holding over, as a tenant of demised premises, after the expiration of the term.
    (Before Barbour, Garvin and Jones, JJ.)
    Heard December, 1866;
    decided December 31, 1868.
    Appeal from a judgment in favor of the defendants.
    On the 26th of July, 1858, the common council of the city of New York passed a resolution, duly approved by the mayor, by. which the comptroller was authorized to lease from the proprietor of the “ Times” building the four upper stories of the one adjoining the brown stone building, being the fourth building from the corner of Spruce street, fronting on Park Row, for the term of two years, at an annual rent not to exceed the sum of five thousand five hundred dollars.
    Under the authorization of the said resolution the comptroller leased the premises for a period of two years and some months, at an annual rent of |5000, which rent was duly paid by the defendants. When this term terminated does not distinctly appear, but it may be assumed to be May 1st, 1861. Then, or shortly prior to May 1st, 1861, the comptrollér, without any further authorization from the common council, hired the premises at the same rate, for the year from May 1, 1861, to May 1, 1862. Then, and on the 3d day of April, 1862, the comptroller, without any further or other authorization or direction of the common council, leased the premises for the term of one year from the 1st day of May, 1862, at the same rent of $5000, which was duly paid "by the defendants.
    The street commissioner of the defendants went into possession of said premises on the first leasing thereof, and used and occupied the same as his official office for the transaction of the corporate business, and remained in possession until May 12,1863. -A resolution authorizing the comptroller to lease a portion of the building occupied in part by the Broadway Bank, upon Broadway, for the use of the street commissioner, for a term not exceeding ten years, and at an annual rent not exceeding $10,000, was passed by the board of aider-men, March 23,1863, and by the board of common council, April Í3,1863, but did not become an ordinance until May 1, 1863, when it was returned by the mayor without objection or approval. On May 1, 1863, the street commissioner began removing his office from said premises to the building known as the Broadway Bank, and prosecuted the removal with the usual diligence, but was engaged in removing his said office for about the period of 12 days thereafter; and he employed from thirty to forty men to assist in such removal, and as many carts as could be advantageously employed; but did» not finally leave the premises until May 12, 1863. The plaintiff’s agent was aware early in April, 1863, of said resolution having been adopted by the board of councilmen. Until the 1st of May, 1863, the defendants neither provided any place for the street commissioner to transact the business of the corporation in other than the premises in question, nor any place to which the street commissioner could remove the books, documents and papers of the defendants appertaining to its business. On the 2d of May, 1863, the street commissioner sent to the plaintiff’s agent the following communication:
    “Kew York, 2d. May, 1863.
    Me. Wesley,
    Dear Sir: The comptroller having leased the rooms ■ over the Broadway Bank for the use of the street department, I write to inform you that we shall immediately commence moving from these apartments, and will endeavor to be out by Saturday next, 9th instant.
    Respectfully, Chables G. Goenell,
    Street Commissioner.”
    Eeither the street commissioner no.r the defendants gave the plaintiff any other notice of an intention either to terminate the tenancy or to surrender possession.
    In the course of the trial the plaintiff offered to prove that the premises were not left in as good condition as when taken by the defendants, natural wear excepted, but that they had been greatly injured and damaged; and offered to prove the amount of damage. The evidence was objected to, the objection sustained, and the plaintiff excepted.
    Judgment was rendered in favor of the defendants, against the plaintiff. From this judgment the plaintiff appealed.
    The defendants, in support of the judgment, made and ■ argued the following points, only:
    I. The only lease was that which was made between Wesley and the comptroller, by virtue of the resolution of the common council, which expired on the 1st May, 1862. The occupation of the premises» subsequent thereto, and up to the 1st May, 1863, was by a parol understanding between the said parties, without authorization of the common council, and the rent for which said period has been fully paid.
    II. There existed no lease of the premises by authorization of the common council after the 1st May, 1863, or by parol between the comptroller-and the plaintiff, or between the street commissioner and the plaintiff. Any lease of said premises for the uses of the street department would he void, unless authorized by the common council and duly approved.
    III. But it appears that prior to the 1st May, 1863, the common council did pass a resolution authorizing and directing their comptroller to hire another building for the uses of the street commissioner’s department, and of which resolution the plaintiff bp his agent had due notice.
    IV. That the street commissioner did not intend to occupy the premises after the 1st May, 1863, is evident from the fact disclosed by the testimony, that he commenced moving theréfrom on that day, employing the requisite force and using due diligence, which was notice in itself of the termination of any tenancy.
    V. The defendants, a municipal corporation, were incapable of holding over, and cannot create a pecuniary liability, except in the manner prescribed by its charter.

      F. J. Fithian, for the plaintiff, appellant,

      'John K. Hackett, for the defendants, respondents.

      The opinion of Justice Barbour, in this case, was, by mistake of the reporter, reported (5 Sob. 248) as being that of the court, before the case was decided. The opinion of Justice Jones, here given, was the opinion of the court. Justice Barbour, however, arrives at the same result.

   By the Court, Jones, J.

The general principle that a tenant under a demise for a year or more by holding over after the expiration of his term, becomes tenant from year to year, is well supported by authority. (Conway v. Starkweather, 1 Denio, 113.) Indeed the principle has not been denied in the case at bar. But it is contended, 1st. That the tenant has a reasonable time after the expiration of his term, within which to remove his goods and chattels; and that as in this case the tenant held over only for such reasonable time, there is no such holding over as constitutes him a tenant from year to year. 2d. That the holding over must be such, in its character, as to raise a presumption, arising from the length of its duration, or the circumstances under which it occurred, that the tenant intends to continue his occupancy as a tenant.

In the. present case, if the lease of April 3d, 1862, be wholly disregarded, then the defendants are clearly tenants from year to year, and could not terminate the tenancy without giving six months’ notice, which has not been done. The defendants entered under a valid lease, the term whereof expired at a time certain. After the expiration of that term possession was clearly retained for a sufficient length of time to indicate an intention to hold over, which holding over was assented to by the landlord, and the defendants then became tenants from year to year; and this tenancy having commenced, will continue until one or the other parties gives six months’ notice of an intention to determine it. (Pugsley v. Aiken, 11 N. Y. Rep. 494, 497.) No such notice having been given, the tenancy did not end on the 1st of May, 1863, but existed during the year ending May 1, 1864. Consequently, in this aspect of the case, the defendants’ liability for the rent of the year ensuing May 1st, 1863, in no way depends on the solution of the question whether a tenant has a reasonable time, after the • expiration of his lease, within which to remove, nor of the question as to whether, to make him a tenant from year to year, he must hold over after the expiration of his term a sufficient length of time to indicate his intention to remain a tenant.

Let us now consider the effect of the lease of April, 1862. The defendants say this lease of 1862 was void; therefore the tenancy, by its operation, has become a tenancy at will, and being such, it could be terminated at any moment at the will of either party, and it was thus terminated when possession was given up. This is in effect saying, in one and the same breath, 1st. The lease of 1862 being void, it cannot operate to create a tenancy for the specific term demised by it. 2d. The lease of 1862 being void, it can operate to create a tenancy at will.

The lease, if void, can, of itself alone, have no operation. The defendants, therefore, being in possession under a former valid lease, and continuing in possession after its termination, may well be regarded as holding over under the terms and conditions of that former lease, and in that event a tenancy from year to year would arise. If, however, the defendants are to be regarded as having entered under the void lease, (and its possession during the year ending May 1, 1863, must be referred either to an entry under the void lease, or a holding over on the terms and conditions of a former lease,) the possession under it, and the payment and acceptance of rent under it, would create a tenancy from quarter to quarter, in which case it could hot be determined without giving three months’ notice. (Anderson v. Prindle, 23 Wend. 616.)

If, then, this lease of 1862 be void, the tenancy is either from year to year or from quarter to quarter. It is unnecessary to determine which, because neither a six months’ nor a three months’ notice has been given, and consequently the tenancy continued during the period for which the rent is claimed.

The notice given by the street commissioner was clearly insufficient to terminate the tenancy. It should have been given either three or six months (depending on whether the tenancy was from quarter to quarter or year to year) prior to one of the usual quarter days, and should notify the landlord that the tenancy would be terminated on the next ensuing quarter day. (Anderson v. Prindle, 23 Wend. 616, 619. 2 Blade. Com. 146.)

It necessarily follows that if the lease of 1862 be void, the plaintiff is entitled to recover, notwithstanding the two objections above urged, for the same reason upon which he would be entitled to recover as above stated, if this lease had not been attempted to be made.

But suppose the lease of 1862 to be valid, how then stands the case ? The. only objections raised to a recovery in this aspect of the ease are the two above mentioned, the validity of which will now be considered.

1st. As to the objection that the tenant has a reasonable time, after’ the expiration of his term, to remove his goods,' &c., and that the defendant held over only for such reasonable time, and therefore there was no such holding over as constituted the defendant a tenant from year to year. The argument depends on the soundness of the proposition that the tenant has a reasonable time after the expiration of his term within which to remove his goods and chattels. This proposition is based on a • statement in Taylor’s Landlord and Tenant, to the effect that “ after the tenant has quit possession, and his tenancy is ended, he has still a right to " enter upon the land in order to remove his goods and utensils,’’ and the authorities cited in support of the proposition. Assuming the statement made by Mr. Taylor to be supported by the authorities, to its full extent, still it contains no warrant that the tenant may remain in possession for the ■ purpose of removing his goods and utensils, but simply that after he has quit possession he may enter on the land for the purpose of making such removal; But the authorities cited by Mr. Taylor in support of his statement, to wit, 2 Black. Com. 147, and Ellis v. Paige, (1 Pick. 43,) do not sustain it to its full extent. By those authorities this right of entry is confined to tenants whose terms depend on an uncertainty, among them tenants at will. Thus Blackstone, at page 145, says: “ With regard to emblements, or profits of lands sowed by tenant for years, there is this difference between him and tenant for life; that when the term of tenant for years depends on a certainty, as if he holds from midsummer for ten years, and in the last year he sows a crop of corn, and it is not ripe and cut before midsummer', the end of his term, the landlord shall have it; for the tenant knew the expiration of his term, and therefore it was his own folly to sow what he could never reap the profit of. But when the lease for years depends upon an uncertainty, as upon the death of a lessor, being himself only tenant for life, the estate for years not being certainly to expire ^t a time foreknown, the tenant shall have the emblements, in the same manner as a tenant for life, or his executor shall be entitled thereto'. Not so if it determine by the act of the. party himself, as if tenant for years does any thing that amounts to a forfeiture; in which case the emblements shall go to the lessor, and not to the lessee who hath determined his estate by his own default.”

This distinction between a lessee for years whose term depends on a certainty, and- a lessee for years whose term depends on an uncertainty, applies equally between a tenant for years whose term depends on a certainty, and a tenant at will, and for the same reason, viz., the point of uncertainty. Thus, Blackstone says: “ If the tenant at will sows his land, and the landlord, before the com is ripe or reaped, puts him out, yet the tenant shall have the emblements, and free ingress, egress and regress to cut and carry away the profits. And this for the same reason on which all cases of emblements turn, viz., the point of uncertainty ; since the tenant could not possibly know when his landlord would determine his will, and thereafter could make no provision against it, and having sown the land, which is for the good of the public, upon a reasonable presumption, the law will not suffer him to be a loser by- it. But it is otherwise, and upon reason equally as good, when the tenant himself determines the will, for in this case the landlord shall have the profits of the land.”

The same principle is applied to the goods' and Utensils of the tenant. “By parity of reason,” sáys Blackstone, “the lessee, after the determination of the lessor’s will, shall have reasonable ingress and egress to fetch away his goods and utensils.”

This right of ingress, egress and regress thus given to a tenant whose term depends on an uncertainty, is founded on the principle that no sudden determination, without the tenant’s fault, of an estate, the time of the expiration whereof is not certainly foreknown" shall tend to the manifest and unforeseen prejudice of the tenant. The principle does not apply to a tenant wnose term depends on a certainty ; and consequently this right is properly denied to him.

If, then* the lease of 1862 is valid, the law- accords to the tenant no time whatever, after the expiration of its term, within which to remove the goods, &c., since the duration of the term depends on a certainty. The first objection is therefore untenable.

The second objection is, that the holding over must be such, in its character, as to raise a presumption arising from the length of its duration, or the circumstances under which it occurs, that the tenant intends to continue his occupancy. The argument is that the holding over is merely presumptive evidence of the continuance of the tenancy ; that consequently it must be sufficiently long to raise a presumption of continuance of tenancy; and of course it follows that such presumption may be rebutted by evidence. This argument the late Supreme Court distinctly met and overthrew, in the case of Conway v. Starkweather, (1 Denio, 113,) Bronson, Ch. J., delivering the opinion of the court.

The right of the landlord to elect to hold a tenant holding over, either as a trespasser or a tenant, rests on the tenant’s breach of his' contract in so holding over, and not on the intention or motive with which he committed such breach. When, however, the question arises as to whether the landlord has elected to hold his tenant as tenant, then the length of time during which the tenant has been allowed to remain in possession without molestation is one fact from which an election to hold him as tenant may be inferred.

It is however urged that the corporation is not liable for the acts of the street commissioner in holding over. It is not necessary to enter into a" discussion as to the power of agents to bind corporations in general, or of the agents of this particular corporation to bind it; for this act of holding over is clearly to he regarded as the act of the corporation itself. The corporation, in the proper and legal exercise of its power, placed its agent, the street commissioner, together with the books, papers and paraphernalia of the office, in these premises. It kept him in these premises, there transacting its business, giving him no direction to change, and providing no other place for liiffi to transact the duties of his agency in, until at last it provided another place, and directed him to remove there, at a time when it was impossible for him so to do without holding over in the premises in question for a sufficient time to enable him properly and with due care to remove the books, papers and documents committed to his care. This holding over, then, was directly caused by the corporation, and it alone is responsible therefor.-

The defendants’ counsel makes the further point that a municipal corporation is incapable of holding over, and cannot create a pecuniary liability except in the manner prescribed by its charter. There are here two distinct propositions; one, that a municipal corporation cannot hold over. It might as well be said that such a corporation is incapable of entering into possession of premises under a valid lease; for a holding over is merely the remaining in possession, after the expiration of the demised term. If it is capable of entering into possession, (which is not doubted,) I fail to perceive,, nor am I informed by counsel, why it is incapable of remaining in possession. If it does remain in possession after the expiration of the demised term, it is liable for the legal consequences of so remaining, unless by its inherent nature, or by some statute, it is relieved therefrom. 'Whether it is so relieved will be considered in the discussion of the second proposition of the point, which is, that a municipal corporation cannot create a pecuniary liability except in the manner prescribed in its charter.

A municipal corporation may make contracts in the same manner and to the same extent-as individuals, and be liable thereon, and for a breach thereof, the same as individuals; it may also do acts, and omit to do acts, and be liable for such commission, or omission, the same as individuals; subject, however,,to the restriction that the contracts entered into, and acts done,, must fall within the scope of its corporate powers, or the acts done must he done while in the exercise of a corporate power, and the acts omitted must be such as are imposed on it, or which should have been done in the performance of some duty resting on it by contract or law; subject also to such further restrictions as may be placed on it by its charter or other statute, in prescribing a mode in which certain contracts shall be made, or acts or duty performed ; in which case it may be as well to state that it seems by the authority of several cases no liability in any form whatever can arise against the corporation for materials furnished to, or services performed for, or other benefit received by, it under a .contract made otherwise than as prescribed, or for any act or duty performed by it in a manner otherwise than as prescribed; but it may be liable for injuries received by reason of negligence in performing the act or duty -in the manner prescribed, and also for wrongs done by either the non-performance or negligent performance of a contract made in the prescribed manner.

The extent to which decided cases have gone, or to which the principle on which they rest may lead, in holding municipal corporations incapacitated from entering into contracts, or incurring liabilities, and relieved from pecuniary responsibility by statutory provisions, is not presented for consideration.

To provide accommodations for the performance of corporate- duties and work, by the officers and agent's of the corporation, falls within the scope of the corporate powers of the defendant; and to this end to become a tenant of premises is also within the scope of such powers. There is no statutory provision (in its charter or otherwise) that I am aware of, and I have been referred to none, providing how this power shall be exercised. Such tenancy may therefore be created or raised in any manner known to the law. It may be by a valid lease, or entering into possession under an invalid lease, and the payment and acceptance of rent according to its provisions; or, at the option of the landlord, by continuing in possession after the expiration of a demised term. In whichever way it' is created or raised, the rules and principles applicable to an individual creating or raising a tenancy in a similar way, and the liability incurred by him thereby, are also, applicable to and incurred by the corporation, there being no statutory provision to the contrary.

In accordance with these views, the plaintiff was entitled to recover rent for the year ending May 1st, 1864.

As the judgment must be reversed by reason of the non-allowance of this rent, it is unnecessary to pass on the exception taken to the exclusion of the evidence offered to show that the premises were not left in as good repair as when taken by the defendant, natural wear excepted, but that they had been greatly injured and damaged, and the damages occasioned thereby.

It may however, perhaps, be proper to suggest that if the lease of 1862 be invalid, (it not appearing what covenants wbre contained in the last valid lease,) the obligation of the defendant in this respect would probably be restricted to the non-commission of waste and to returning of the premises in a habitable condition; and consequently they would only be liable for a breach of this obligation.

I think the judgment should be reversed, with costs to the appellant to abide the event.


source: Caselaw Access Project

author: By the Court, Jones, J.

license: Public Domain

text:
    James H. Monk, plaintiff and appellant, vs. The Union Mutual Life Insurance Company, defendant and respondent.
    1. Where it appeared, in an action upon a life policy, that upon the few occasions on which the assured was indisposed during a period of three years immediately prior to making the application for the policy, a particular physician, and he alone, was called in to attend him; Meld that this constituted such physician the “ usual medical attendant” of the applicant, within the ordinary and popular acceptation of the term, and for the purpose of construing a representation on that subject contained in the application.
    2. Whether the answer given by the applicant for a policy upon his life, to a question as to the name arid residence of his “ usual medical attendant,” in which he states that “ he has none,” be true or not, is a question of fact, to be determined in the same manner, and upon the same principles, as any other fact. If the answer be shown to be untrue, no recovery can be had, upon the policy.
    3. It is a principle of evidence that a fact continuous in its nature, when shown to have once existed, is presumed to exist, within reasonable limits, until it is affirmatively shown to have ceased.
    4. The fact of the usual employment of a physician is continuous in its'nature, and the presumption that' it continued for the space of two months subsequent to the last employment is not an extension beyond reasonable limits.
    5. Where a party, on cross-examination of a witness, for the purpose of showing that the only knowledge which the witness has of a fact he has sworn to on the direct examination is derived from information given by third persons, not parties to the action, asks the witness how he knows the fact thus testified to by him, in answer to which the witness testifies to statements made to him by such third parties, he does not thereby make those declarations evidence against himself; nor is he bound.thereby.
    6. Where evidence offered by the plaintiff; though incompetent, is received with-' out objection, it seems the court will not, on the mere ground of its incompetency, set aside a verdict for the plaintiff; even though such verdict was found entirely on that evidence.
    7. This doctrine is based on the principle that a party cannot take advantage of his own negligeixe in permitting improper or incompetent evidence to be adduced, to reverse a judgment rendered against him thereon.
    8. The doctrine has always been applied in favor of sustaining a judgment; but not to reverse a judgment on the ground that such improper or incompetent testimony established or tended to establish a fact fatal to the judgment.
    9. There is no rule which requires a judge to submit to the jury a question of fact on which there is no conflict of testimony, except such as arises out of incompetent or improper testimony.
    (Before Barbour, Garvin and Jones, JJ.)
    Heard October, 1868;
    decided December 31, 1868.

      This is an action on a policy of life insurance issued.by the defendant on the 13th of September, 1866, on the application in writing of one Effingham H. Warner, wherein and whereby, in-consideration of the representation made to the defendant, in the application, and of the sum of. $1000, the defendant insured the life of the said Warner for the sole and separate use of Hascall A. Hogel, the son-in-law of said Warner, in the sum of $10,000, to be paid to said Hogel, his executors, administrators or assigns.
    The representation referred to is in the shape of answers made by said Warner to various questions propounded to him. One of the questions propounded was : “ Name and residence of the party’s usual medical attendant.” The answer to this was, “Have none,” The evidence adduced by the defendant to show the falsity of this answer was substantially this: Dr. Burdick testifies that he first knew Warner in 1861; that Warner died February 16, 1867; that during a part of this time he, Burdick, was Warner’s family physician; that Warner was in the habit of consulting with him; that in 1863 he first prescribed for Mr. Warner, during which year he made four office prescriptions to Warner’s family; some of them to Warner himself; in 1864 he. did not prescribe for Warner himself, but did for members of his family; in 1865 he did not prescribe for Warner; thinks he was not sick; on May 13th, 1866, he was called to see Warner at his house, who had some trouble with his bowels, in the shape of a colic, attended with constipation; on the 7th of August, 1866, he was again called to see Warner, who was then suffering from flatulent colic and constipation of the bowels. On this occasion he attended Warner from the 7th to the 12th of August, 1866.
    The representation in question was made September 12th, 1866, just one month after Mr. Warner’s August illness. Afterwards Dr. Burdick again prescribed at his office, for Warner, in November, 1866.
    There was no evidence that any physician other than Dr. - Burdick was ever called in to attend or prescribe for Warner. In fact, there was no evidence that during that period Warner was indisposed, except On the occasions when Dr. Burdick attended him.
    The plaintiff, to sustain the truth of the answer given to the question, relies on the evidence of Hascal A. Hogel, which is as-follows: “I am a son-in-law of Mr. Warner; I was in the habit of seeing him often from August, 1866; after his illness in August, 1866, his general appearance as to health was as usual before that time; ordinarily, he appeared to be a man in good health.

      Q. Was any thing said by Mr. Warner to Dr. Shipley about having colic ?

      A. After Dr. Shipley got through the questions in the paper he had, Mr. Warner rose up, and put his hands on his stomach, and said he was troubled with colicky pains, or pains in his guts, and that when he pooped wind he felt, relieved. The doctor asked him some few questions in regard to it, and said that was nothing, and passed out; that was on the examination for the Guardian Life Insurance ' Company.

      Q. Do you know whether, in September, Mr. Warner had a regular medical attendant ?

      A. He had not.

      Q. Did you ever hear him speak of changing Dr. Burdick?

      A. I did; after his August sickness he said he would not have Dr. Burdick again; that he was going to change from homceopathie to allopathic treatment, which he did when he was sick in November.”

      Cross-examined. “I am the husband of Sarah E. Hogel.
    It was for her benefit that Mr. Warner insured in the Guardian Life Insurance Company.

      Q. How do you know that Mr. Warner changed his physician after his August sickness ?

      A. I heard him say so, and advised him not to change;
    I do not know that he had occasion to call in a physician between his August sickness and his November sickness.” ■
    Which evidence was, as claimed, supported by the fact that on November 11, 1866, Dr. Stirling was called in to attend Warner, in a sickness which proved to be fatal.
    It however appeared that Dr. Stirling discontinued his visits on February 4, 1867, when Dr. Burdick was again called in, and continued in attendance until the death of Warner, which occurred on February 16, 1867.
    Upon this testimony the plaintiff’s counsel requested the judge to submit to the jury, as a question' of fact, whether, at the time Mr. Warner answered the question, he had any usual medical attendant The learned judge refused to submit that question to the jury; to which refusal the plaintiff’s counsel excepted.
    The learned judge directed a verdict for the defendant; to which direction the plaintiff’s counsel excepted. '
    From the judgment entered on this verdict the present appeal was taken by the plaintiff.

      D. T. Walden, for the appellant.

      Mr. Peckham, for the respondent
   By the Court, Jones, J.

The appellant’s counsel Concedes that if the answer given by Warner to the question propounded to him respecting his usual medical attendant be untrue, then the plaintiff”cannot recover. But he insists—

1st. That there is not sufficient evidence to support a verdict against the truth of the answer.

2d. That the evidence is of such a character that a verdict of the jury either way would be sustained; and therefore the question of fact as to the truth or falsity of the answer should have been submitted to the jury for its determination.

If he is correct in either of these propositions the judgment must be reversed; otherwise affirmed. Whether the answer be true or not is a question of fact to be determined in the same manner, and upon the same principles, as any other question of fact. The evidence in the case, keeping out of view for the present the testimony of Hogel, clearly establishes that at the time the answer was given, Dr. Bur-dick was the usual medical attendant of Warner.

The evidence shows that on the few occasions on which Warner was indisposed, during the period extending from some time in 1868 down to Hovember 10, 1866, Dr. Bur-dick, and he alone, was called in. This certainly constitutes him the usual medical attendant, within the ordinary and popular acceptation of the term.

. It is suggested that if, on the 13th of August, 1866, Warner had discharged Burdick, then Burdick would not, at the time of the answer to the query, have been his usual medical attendant. Conceding this to be so, and also conceding that the answer given would, under such circumstances, have satisfied the query, (on which no opinion is intimated,) still it is necessary to establish such discharge; for it is a principle of evidence, founded upon the ordinary experience óf mankind, that a fact continuous in its nature, when shown to have once existed, is presumed to exist, within reasonable limits, until it is affirmatively shown to have ceased. (1 Stark. on Ev. 54. McMahon v. Sarrison, 6 N. Y.Rep. 443.) The fact of the usual employment of a physician is continuous in its nature, and the presumption that it continued for the space of two months subsequent to the last employment, does not extend beyond reasonable limits.

Aside from the testimony of Hogel, there is not the slightest evidence that Burdick was discharged, or that Warner changed his medical attendant prior to Hovember 11, 1866. The answer to the query is no evidence in support of either of these facts, for that would be to make the answer, the truth of which is in controversy, evidence of its own verity; besides, Warner in the first illness with which he was attacked subsequent to the last attendance of Burdick, in August, 1866, first called in Burdick, and this was after his answer to the query; thus showing that he had not at that time definitely made up his mind to discharge Burdick and employ any other physician, This evidence, then, standing by itself, would imperatively call for a verdict against the truth of the- answer. If, then, there is no competent evidence in support of its truth, the direction to the jury was correct.

The evidence relied on is that of Hogel, but I think it wrholIy insufficient to call for a submission of the case to the jury. It is true, on his direct examination, he swears positively to the bald fact that Warner had no regular medical attendant in September, 1866; but on his cross-examination it appears that his only knowledge on the subject was his hearing Warner say that he had changed his physician after his August sickness. The effect of the direct and cross-examination is simply to prove that Warner made a certain statement, which statement is in this case incompetent evidence to prove the truth of the fact so stated.

It, however, is suggested that the defendant, having, on Ms cross-examination, called out evidence as to Warner's declaration, has made it evidence against itself, and is bound thereby. I do not so understand the rules of evidence. It would be strange if when a witness on his direct examination testifies to a fact, the opposite party should be allowed to prove by cross-examination of said witness that he is an incompetent witness to the fact only under the penalty of making the very answers of the witness which prove his incompetency, competent evidence to prove the fact testified to by the incompetent witness on his direct examination, although they would otherwise be incompetent.

The only remaining portion of Hogel’s testimony bearing on the subject is his answer to the question, “Did you ever hear him (Warner) speak of changing Dr. Burdick ?” This question is inadmissible, and the evidence given in answer to it incompetent; yet as it was not objected to, it is probable that the court would not, on the mere ground of its incompetency, have set aside a verdict for the plaintiff, even' though that verdict was found entirely on this evidence." (2 Grah. on New Trials, 655 to 664.)

This doctrine is based on the principle that a party cannot take advantage of Ms own negligence in permitting improper or incompetent evidence to be adduced to reverse a judgment rendered against him, thereon. The doctrine has always been applied in favor of sustaining a judgment; but in no case that I am aware of has it been applied to reverse a judgment on the ground that such improper or incompetent testimony established or tended to establish a fact fatal to the judgment. ■ I know of no rule which requires a judge to submit to the jury a question of fact on which there is no conflict of testimony, except such as arises out of incompetent or improper testimony.

What would be the result of reversing this judgment and ordering a new trial? Nothing wonld be gained by the plaintiff'. On such new trial the testimony of Hogel would be objected to and excluded, and then, upon the principles indicated in this opinion, the judge, on the other testimony abové referred to, would be obliged again to direct a verdict for the defendant.

The fact that Dr. Stirling was called in on November 11, 1866, has not been overlooked. It perhaps is scarcely necessary to observe that that fact, by itself, does not tend to prove that Dr. Burdick was not, up to that time, the usual medical attendant of Warner.

I see no conflict of testimony requiring the submission to the jury of the question of fact which he was required to submit.

Judgment affirmed, with costs.


author: McCunn, J.

text:
    Benjamin Wood, plaintiff, vs. The Mayor &c. of the City of New York, defendants.
    A claim by the plaintiff for publishing in the years 1865 and 1866, in a newspaper belonging to him, and designated by the common council of the city of New York as one of the corporation newspapers, the proceedings of the two hoards of such council, pursuant to their instructions, under the statute of 1857, amending the charter of such city, requiring such publication, to make such proceedings binding, is not affected by the provision of the law for the levy of taxes in that city, passed May 4, 1866, (§ 10,) that no judgment should be entered “by default or otherwise,” against such corporation, “except upon proofs in open court that the amount sought to be recovered still remains unexpended in the treasury to the credit of the appropriation, to the specific object or purpose under the claim sued for.” It having been passed after the plaintiff’s rights accrued and were vested, is not to he construed as retrospective. *
    (Before McCunn, J., at special term,
    June, 1866.)
    This was an application in an action to recover $30,000 and upwards for advertising done by the plaintiff for the defendants. The complaint was in the usual form for services rendered. The answer admits that there was justly due and "owing the plaintiff the sum of $23,819.25, being a part of the plaintiff’s account, and. sets up a general denial to the balance.
    The application was under section 244 of the Code, for an order directing the comptroller to pay over the amount admitted to be due by the answer. The defendants, notwithstanding the admission contained in their answer, claimed the benefit of section 10 of the city tax law, or tax levy, passed May 4, 1866, whereby it was enacted that “ no judgments in actions upon contract shall be entered, by default or otherwise, against the corporation, except upon proofs in open court that the amount sought to be recovered still remains unexpended in the treasury to the credit of the appropriation, to the specific object or purpose under the claim sued for as aforesaid,” by any court, against the corporation ; also of section 28 of the charter of 1857, forbidding the common council incurring expenditures unless for previous appropriations. The plaintiff’s counsel replied that his client’s engagement with the corporation for such advertising was made, and the work performed, in the years 1864, 1865 and 1866, and before the tax levy was passed or became a law; therefore it (the law of May, 1866) could not act retrospectively as to contracts existing before the law was passed, it being repugnant to section 10, article 1, of the constitution of the United States. And that section 28 of the charter does not, and was not intended to apply to such cases as the plaintiff’s,

      jRoger A. Pryor, for the plaintiff.

      Biehard O’ Gorman, for the defendants..
   McCunn, J.

Section 7 of the charter of the city declares, that all resolutions and reports of committees which shall recommend any specific improvements involving the appropriatiou of public moneys or the taxing or assessing the citizens of the city, shall be published in all the newspapers employed by the corporation, and shall not be passed or adopted until after such notice has been published at least two days.” Section 37 also declares, that “it shall be the duty of the clerks of the respective boards to publish all ordinances which shall be passed, and also all other proceedings, in said newspapers, upon the passage of an ordinance which shall contemplate any specific improvement, or involve the sole disposition or appropriation of public property, or the expenditure of public moneys or income therefrom, or lay any tax or assessment, such ordinance shall, before the same shall be sent to the other board, be published with the ayes and noes, and with the names of those voting, in said newspapers, and that such publication shall be a part of the proceedings.” Section 38 declares, that “all contracts shall be entered into by the appropriate heads of departments, and shall be founded on sealed bids or proposals made in compliance with public notice, advertised in such of the newspapers of the city as may be employed by the corporation for the purpose, said notice to be published for at least ten days in each of the daily newspapers so employed.” Section 41 declares, that “persons acquiring any ferry lease or other franchise or grant under the provisions of this act, shall be required to purchase, at a fair appraised valuation, the boats, buildings and other property of the former lessees or grantees- actually necessary for the purposes of such ferry grant or franchise. Previous notice of all sales referred to in this section • shall be given under the direction of the comptroller in the newspapers employed by the corporation, and for thirty days in each of the daily newspapers so employed.” So that it will be seen at once, that the charter makes such publication a part of the proceedings of the different boards. It will not be contended that because a clause in section 28 declares “ that no expense shall be incurred by any of the departments or officers thereof, whether the object of expenditure shall have been ordered by the common council or not, unless an appropriation shall .have been made covering such expense,” the owners of the corporation newspapers who publish these proceedings, thereby making them valid, cannot obtain a reasonable compensation for their services. For the common council does not direct the proceedings to be published; the four sections of the charter I have just cited, absolutely order them to be published in the “ corporation newspapers,” and therefore the charter incurs the expense, and not the boards of common council. Moreover, it declares that if the proceedings are not published, the whole shall be void. Indeed, if the construction claimed by the defense for section 28 be the correct one, the whole proceedings of our city government would come to a stand still; and all the sales for taxes and assessments that have taken place in this city for years past would be void. It is clear, therefore, that section 28 was intended by the legislature to prevent extravagant and useless expenditures by the boards, and was not intended to apply to matters of -this kind; and as an evidence of the fact that it was not so intended, the learned corporation counsel has cited no authorities showing that my views of the construction of this section are incorrect. On the contrary, I find him consenting to, or offering judgment against the corporation for certain amounts incurred for advertising, and the courts uniformly enter up judgments on such consents. On this question I, therefore, hold that, as the charter declares the corporation shall designate newspapers to publish their proceedings, and as said charter also provides that such proceedings, to make them legal and valid, must be published in such newspapers; and it being admitted that the Daily News was a corporation paper, it follows, as a matter of law, that Mr. Wood is entitled to recover a reasonable compensation for such services.

Sections 7, 37, 38 and 41, declare that such proceedings, to make them valid, must be published for a certain length of time. Now, the common council does not make the expenditure, but the charter directs it to be made. I think, therefore, on the first point there is hardly a reasonable doubt left against the plaintiff’s right to recover.

In regard to the second point, I fully agree with the views entertained by the learned gentleman who represents the plaintiff in the action, in saying that the relief claimed should be granted. Section 10 of said tax law cannot affect the merits of this case, because the engagement was made and the work done before the law of 1866 took effect. The instant the contract with the plaintiff was completed and the work performed, the constitution of the land placed the rights under that contract forever beyond legislative control, and it was for that very purpose that the sagacious .men who framed the federal constitution introduced the 10th section of article one in that instrument. To say that Mr. Wood has performed his work, has fulfilled his obligations in all respects, and is entitled in all justice and in:. equity to his payment, yet that the law of the 4th May, 1866, has taken away his remedy by judgment, would be most preposterous. Any statute that takes away or impairs vested rights acquired under existing law, or creates a new obligation, or imposes new restrictions in respect to past transactions, must be deemed retrospective. Such was the rule laid down by Mr. Justice Story in Society v. Wheeler, (2 Gal. 104.) In the case cited, that eminent jurist says: “ It is very obvious that the rights of a party under a contract may be destroyed by denying.a remedy, or may be seriously impaired by burdening the proceedings with new conditions so as to make the remedy worthless, and I am quite sure no one will insist for a moment that there is any material difference between a retrospective law declaring a particular obligation void, and one that takes away the remedy to enforce it. Indeed, it is the remedy that protectsx the rights and enforces the obligations óf all contracts, and it was for the protection of that remedy that the clause in the constitution, now under consideration, was mainly intended.” In the case of McCracken v. Hayward, (1 How. U. S. Rep. 608,) Mr. Justice Baldwin, in delivering the unanimous opinion of the court, said: The obligations of a contract consist in its binding force on the party who makes it, and this depends on the laws in existence when it is made; they are necessarily referred to in all contracts, and forming a part of them as a measure of the obligation to perform them by the one party, and the right acquired by the other. There can be no other standard by which to ascertain the extent of either, than that which the terms of the contract indicate, according to their settled legal meaning when it became consummated; the law defines the duty and the right, and compels the one party to perform the thing contracted for, and gives the other the right to enforce the performance by the remedies in existence. If any subsequent law affects to diminish the duty, to impair the right, it necessarily bears on the obligation of the contract in favor of one party to the injury of the other; hence, any law which in its operation amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the provision of the constitution.” Now this very doctrine completely covers' the case at bar. Again, Chancellor Kent, (1 Kent’s Com. 467, n.,) in discussing this question, lays down as a rule, that to take away by legislative acts the existing remedies for enforcing obligations of the contract so as to leave the creditor without redress, would be a mockery of justice, and repugnant to the constitution.”

It is, therefore, clear that all suspension by statute of remedies, or any part thereof, existing when the contract was made, is more or less impairing its obligation; and this clear rule of law was held in the case of Green v. Biddle, (8 Wheat. 1.) In that case, Chief Justice Taney, in delivering the opinion of the court, says that to deny any remedy under a contract, or by burdening the remedy with new conditions and restrictions, and so make it useless or hardly worth pursuing, is equally a violation of the 10th section of article one of the constitution. And Blackstone in his Commentaries, (yol. 1, p. 52,) says that the remédial part of a law is a necessary consequence of the declaratory; “ for,” says the' learned commentator, “laws must be very vague and imperfect without a remedy.”

But, apart from all other considerations, and looking at the language of the act, there is nothing therein that makes it applicable to. the case under consideration, and we ought, with the highest respect, to conclude that our lawmakers did not intend it should have a retrospective or injurious effect; because if the construction contended for be correct, then the legislature might just as well have said that claims similar to the plaintiff’s might all be blotted out. This was held to be the true doctrine, in the case of Banks v. Quackenboss, (1 N. Y. Rep. 130;) also 1 Denio, 127, and in the case of The People v. The Supervisors of Westchester County, (4 Barb. 70.) In the last case Mr. Justice Barculo, in one of the ablest opinions in the books, makes this doctrine clear as day. Indeed, authorities sustaining my views are very numerous. I have simply cited a few of the leading cases. Moreover, if the principle contended for by the defendants’ counsel in this respect has a single precedent to warrant it, I must say I have not been able to find it. It is quite true that Mr. Justice Gardiner, an able and a very learned man, in the case of Banks v. Quaekenboss, in a long dissenting opinion, endeavors to show that the current of authorities in our books is wrong on this subject; but it is quite clear to the mind of the common reader that in his efforts to do so he labors hard, and to very little effect. Moreover, the cases cited in his opinion do not touch the question under discussion.

How stands the present case? 1. We have the amended charter of 1857, declaring that to make the proceedings of the common council legal and binding, they must be advertised for a certain specified time in the corporation newspapers. 2. We have the Baily News designated as one of such papers, with instructions that it should publish the proceedings of the different boards. Then we have the services performed in 1865 and 1866, and this action brought for the recovery of such services before the law of May 4, 1866, was passed. Now, all this is admitted in the answer of the1 2345defendants; therefore it is clear, from my reasoning, that section 10 of the tax law, passed May 4, 1866, and passed after the plaintiff’s rights had accrued and were vested, cahnot act retrospectively so as to affect the plaintiff’s rights to recover in this case.

Let an order be entered compelling the comptroller to pay the amount admitted to be due, and a reference be ordered to Enoch L. Lowe, Esq., to ascertain the justice of the balance of the claim.


author: Barbour, J. Bv the Court, Robertson, Ch. J.

text:
    Charles F. Moulton, plaintiff and respondent, vs. Gustave de ma Carty, sued as Gdema Carty, defendant and appellant.
    1. A judgment against an individual, as a defendant, by a name which is not his in contemplation of law, cannot be enforced against him. Nor will a judgment in an action in which the defendant is denominated, in all the proceedings therein, by a different name from that of a particular existing individual, be of any avail against the latter, even if entered up against him by his real name; although process in such action was served upon him when the name of the defendant in such process was not his; because, unless he actually appeared in such action, no jurisdiction over him was obtained therein by the service of such process.
    2. In order to entitle any person to relief from a judgment so entered against him, in an action so conducted, by motion, he must admit that he was the actual defendant named in such action, if he place his claim to relief solely upon 'the ground of the non-service 'of the summons upon him,
    3. Where doubt is thrown upon a defendant’s denial of the service of a summons upon him, a positive affidavit on file, of the service, must prevail.
    4. It would be dangerous absolutely to overthrow a judgment entered upon an affidavit of personal service of the summons, after a lapse of sixteen years and the death of the deponent who made it, so as to let in a defense of the statute of limitations, upon a simple denial by a defendant, of service. JPer Robebtson, Oh. J.
    5. A defect in an affidavit of service of the summons, in respect to the name of the defendant, is a mere irregularity, and if not specified, in a notice of motion to vacate the judgment, or taken advantage of within the time allowed for such motions, it cannot be done afterwards.
    (Before Robertson, Ch. J., and McCunn and Jones, JJ.)
    Heard March 12, 1866;
    decided June 30, 1866.
    Appeal from an order made at a special term denying a motion to vacate a judgment.
    The motion was founded upon affidavits and the judgment roll in the above entitled action, and was to vacate and set aside the judgment therein “as null and void,” and was made on behalf of Gustave de ma Carty, who appeared for the purposes of said motion, only.
    The roll filed December 22, 1849, contains a summons, dated November 30th, 1849, a complaint setting up two promissory notes made by the defendant, an affidavit stating service of summons and complaint on the 1st of December, 1849., an affidavit, made December 22, showing that no answer or demurrer had been received by the plaintiff’s attorney, and a judgment for $3032.39.
    The following opinion was given at special term:
   Barbour, J.

The moving party in this.case states in his affidavit that he is not the defendant named in the summons, ór any other of the papers in the judgment roll, the name given to the defendant there being different, essentially, from his own, and also that he was never served with the summons or complaint, and indeed had no knowledge of the commencement or existence of the action until July last. He does not deny that the plaintiff held the two notes, nor does he produce the usual affidavit of merits, although he says he “has” (in the present tense) “a good defense to such claim and notes, as he is advised and verily believes.”

Even if he had succeeded in establishing the fact that the name of the defendant, as written in the summons and all the other papers, so essentially differed from his own that the one could not well be taken for the other, as well as that he had not been served with the summons, it is difficult to see how he could be injured or prejudiced by the judgment, or why he should have an order setting it aside. An examination, however, of several letters written by him about the time the judgment was entered, has convinced me that his signature contains all the letters, in the same order, and substantially in the same form and relative size, as those used in the summons and pleading to designate the defendant; the only essential difference being that in such signatures a period follows the initial “ GL,” while in the summons, &c., such point or period is omitted.

The motion before the court is exceedingly important to the parties, inasmuch as the ultimate decision upon.it must determine, absolutely and finally, the right of the plaintiff to collect the amount of the judgment, or of the defendant to avoid payment of the notes by availing himself of the statute of limitations, in case it shall be held that the summons was never served.

The defendant cannot, upon this motion, avail himself of any objection to the judgment on the ground of irregularity. For, first, he does not, in his notice of motion, nor even in his affidavit, suggest any irregularity, nor advise his opponent that he will apply to have the judgment opened for such reason; but, on the contrary, his notice is that he will move to vacate and set aside the judgment as null and void, upon the ground that no jurisdiction was ever acquired by the court by the service of a summons. (See Rule of Courts, 39; Ellis v. Jones, 6 How. Pr. 296; Mills v. Thursby, 11 id. 115; Schlemmer v. Myerstein, 19 id. 412; Pattson v. Bacon, 12 Abb. 142.) Second. More than sixteen years have passed away since this judgment was entered ; while a motion to set aside a judgment for a mere technical irregularity must, by statute, be made within one year from its entry. (2 R. S. 359, § 2. Cook v. Dickerson, 1 Duer, 679. Dederick v. Richley, 19 Wend. 108. Van Benthuysen v. Lyle, 8 How. 312. Whitehead v. Pecare, 9 id. 35.) And a motion based upon an irregularity not merely technical, will not be granted if made after a great and unreasonable lapse of time. In Soulden v. Cook, (4 Wend. 217,) where a wrongly entitled notice of appearance of the defendant was disregarded, and judgment entered by default, and the defendant rested easy for ten years, under the belief that the plaintiff had been non-prossed, and then moved to open the judgment, the court held he was too late.

In this case, the only irregularity that can be claimed consists in the entry of the judgment by the clerk, without an affidavit showing the particular place in the city of Hew York where the summons was served, and that a copy of such summons was left with the defendant, as was then required by the 18th rule of the courts. That, certainly, was a mere technical irregularity, which, no doubt, would have entitled the defendant to an. order opening the judgment, if moved for within a year after such judgment was entered. But the plaintiff could immediately thereafter have entered judgment anew for want of answer, &c., upon presenting a proper affidavit of service, unless, upon reasonable excuse shown by the defendant for his failure to answer within the twenty days from the service of the complaint, the court should permit him to answer within further time granted him. But as no motion was made to open the judgment for the irregularity within one year after it was entered, a subsequent motion is barred by the statute above referred to.

The only remaining question in the case is, whether the court obtained jurisdiction of the action by the service of a summons ; for, if not, the judgment must be set aside; the motion not being barred by lapse of time, however extended. (Hallett v. Righters, 13 How. 43.)

The affidavit of service of the summons and complaint, upon which the judgment was entered by the clerk, under § 246 of the Code, states, simply, that the affiant, “ on the 1st of December, 1849, at the city of H"ew York, served a copy of the annexed complaint, with a summons of which a copy is also hereto annexed, on Gr. dema Carty, the defendant, in this cause, by delivering the same to Grdema Carty, such defendant, personally.” The affidavit, it will be observed, does hot state the particular place in the city of New York where the service was made, nor that the person making such service knew the party served to be the defendant described in the papers, nor that he left copies of the papers with the person so servedand, therefore, does not comply with the provisions of court rule No. 18, which went into operation on the 1st of September next prior to the service, and which declares that it shall be necessary for any person, other than the sheriff, to state in his affidavit of service those three facts.

The question, then, is whether the affidavit of service, not containing all that is required by the 18th rule, which, if valid, is a part of the law for the government of the courts, (Code, § 470,) nor made for the purposes of this motion, can be read in evidence to establish the fact that the summons was served upon the defendant in the city of New Yoi’k.

An action is commenced by the service of a summons, (Gode, § 127,) and such service may be made by a sheriff) or any other person, not a party to the action. [Id. § 133.) Section 134, subd. 4 of the Code, declares that a summons shall be served by delivering a copy thereof to the defendant personally; section 138 provides that proof of the service shall be made, in cases like this, by the affidavit of the person making the same, stating the time and place of the service; and section 246 provides that, in case the defendant fails to answer the complaint, the plaintiff may file with the clerk proof of personal service of the summons and complaint, and that no answer has been received, and directs that the clerk shall thereupon enter judgment for the amount mentioned in the summons.

It will readily be perceived from the facts hereinbefore stated that the plaintiff filed all the proofs required by the letter of the Code to entitle him to a judgment, and that it was the imperative duty of the clerk to enter such judgment on those proofs, with the summons and complaint, unless the provisions of the Code in this regal’d are to be considered as changed or modified by rule eighteen.

I should be slow to believe that the legislature designed, by the 470th section of the Code, to confer upon the judges of the Supreme Court, the justices of the Superior Court, and the judges of the Court of Common Pleas, the power, by a general court rule, to annul and abrogate the plain and express enactments of the Code itself, in relation to the proof of service of a summons, (§ 138,) and, by consequence, in regard to the duty which the clerk is imperatively required to perform by section 246, subd. 1. But, in the view I take of the matter, it is not necessary to consider that question for the purposes of this motion.

Conceding that the proof of service of a summons since the adoption of rule 18 must show all that is required by that rule, in addition to the requirements of the statute, I see no reason why the facts required by the Code itself may not be embodied in one affidavit, and the additional ones in another. The primary and ultimate object and-intention of the judges, as well as the legislators, must have been to declare what facts were necessary to be proven and should be deemed sufficient, and to provide that such facts should be proved by affidavit; and the question as to whether such facts should all be embodied in one, or embraced in two or more affidavits, probably, never entered into the contemplation of either body.

If I am right in this proposition, it follows that the affidavit of service in this action was properly filed and incorporated in the judgment roll by the clerk as proof of the facts stated in it, although other and, perhaps, essential facts remained unproven. It is, therefore, evidence which may be used upon this motion, to prove the jurisdictional fact that the summons was served upon the defendant in the city of Hew York; although, possibly, it did not prove all that was necessary to authorize the clerk to enter judgment without a technical irregularity.

The question before the court, then, being not a question of regularity or irregularity, but simply as to whether the summons was served upon the defendant within this city so as to give the court jurisdiction of the action, the motion to set aside the judgment for want of jurisdiction must be denied, unless the defendant has succeeded in disproving the statements contained in the affidavit of service; and, upon careful consideration, I have arrived at the conclusion that he has failed to do so. Eor, although the defendant swears positively that he never was served with the summons or complaint, and had no knowledge, until recently, that a judgment had heen obtained against him, a person whose affidavit was read, on the part of the plaintiff, at the hearing, testifies that, as agent of the plaintiff, he collected from the defendant $1590, in November, 1850, and that the same was paid by the latter to him, upon the express agreement and understanding that it was to be applied upon, and in part payment of the judgment in question. Besides this, the sheriff’s officer to whom an execution on this judgment was delivered, states, in his affidavit, his memory being aided by his own memorandum, made at the time, upon the execution itself, that he went to the bank where the defendant was then employed as a clerk, and conversed with some one in regard to such execution, and returned the same nulla bona, upon the information there received; although he does not now remember the appearance of such person sufficiently well to be able to identify him. These affidavits, with the affidavit of service, made at the time, overbalance, it appears to me, the denial of the defendant that he was served, or that he made a paymént upon the judgment, or talked with the sheriff’s officer upon the subject of the execution, and lead to the conclusion that the defendant has now, after sixteen years have passed away, forgotten the facts; more especially, as he himself states, in an affidavit, in connection with the subject of the payment of the $1590, that his duties in the bank were “very arduous, ánd required and received his entire attention; that he had no time to devote to his own business, and every casual remark made to him during bank hours, foreign to his duties, could not be expected to be understood or remembered.”

The motion must be denied, with $10 costs.

From the order denying the motion, the defendant appealed to the general term.

H. Hendrickson, for G. de ma Carty, appellant.

D. Marvin, for C. T. Moulton, respondent.

Bv the Court, Robertson, Ch. J.

The motion, from the order denying which the present appeal is taken, was made on behalf of Mr. Gustave de ma Carty to vacate a judgment obtained by the respondent (Charles T. Moulton) against one Gdema Carty. Such judgment was entered up in 1849 against the defendant in the action in which it was obtained, upon the affidavit of a service, at the city of ¡New York, of a summons and complaint upon “ Gdema Carty, the defendant” in that cause, by delivering the same to him personally. The defendant in such action is named “ Gdema -Carty” in all the proceedings therein, and not Gustave de ma Carty.

I do not see how this court could interfere to grant any relief in such action to the appellant, unless, besides a failure to serve him with process in such action, he were actually the defendant, and properly named as such therein. A judgment against an individual as a defendant, by a name which was not, in judgment of law, his, could not be enforced against him. ¡Nor is a judgment in an action, the defendant in which has, in all the proceedings therein, a different name from that of a particular person, of any avail against him, even if entered up against him by his right name, although process in such action was served upon him, his name not being that of the defendant named in such process; because, unless he appeared, no jurisdiction over him was obtained thereby. Farnham v. Hildreth, 32 Barb. 277, and cases cited.)

In order to entitle the appellant to any relief, therefore, on his application, he was bound to admit that he was the defendant named in such action, and place his claim to relief solely upon the ground of non-service of the summons. The affidavit of Nettleton (who is now dead) was direct and positive to such service as made in December, 1849; the denial of the appellant is equally positive. But the presént application is made nearly sixteen years after the entry of such judgment, and there is room for forgetfulness in that' time. The appellant denies that he ever knew of the existence of such judgment, or the taking of any legal proceedings against him, until the receipt of a letter from the respondent’s agents, in July, 1865. In November, 1850, he paid the respondent’s agents a certain sum ($1590) on account of the claims of the latter’, and took a receipt therefor, which he alleges he has lost. Another witness, a brother of the respondent, (J. T. Moulton,) swears that in November, 1850, he collected such sum from the appellant, it being understood that it should be applied in payment of a judgment in favor of the respondent against the appellant, and that he was confident that the latter then knew that judgment had been entered against him. The court, at special term, seems to have thought this and some other small aids in the way of evidence, sufficient to overcome the appellant’s denial of knowledge of any legal proceedings against him, and assumed that he had then notice of them. If so, doubt was thrown on the appellant’s denial of the service of a summons upon him, and the affidavit on file of service must prevail; the application to vacate on the score of irregularity was, therefore, too late. The reason why ,!i6dema” was adopted as the appellant’s baptismal name instead'of u Gustave” is fully explained in the affidavit of the respondent’s attorney. Indee'd, the signature to the letters produced, as well as to the notes in suit, would fully justify the assertion that the appellant had recognized and adopted both names as his.

It would, be dangerous, absolutely, to overthrow a judgment entered upon an affidavit of personal service of summons after sixteen years and the death of the deponent who made it, so as to let in a defense of the statute of limitations, upon a simple denial by a defendant of its service; and this court at special term having arrived at a conclusion satisfactory to itself upon the fact of service, we do not consider ourselves at liberty to disturb it.

The defect in the affidavit of service pointed out was a mere irregularity; was not specified in the notice of motion, or taken advantage of within the time allowed for such motions, and cannot be so now.

Possibly the evidence of knowledge by the appellant of the existence of a judgment or of any thing beyond mere legal proceedings begun against him, might not be considered as sufficiently strong to preclude the appellant from being let in to defend, upon agreeing to appear and stipulating Hot to set up the statute of limitations. But he states nothing which amounts to a defense, and has not complied with the forms required in affidavits of merits. I see, therefore, no reason for disturbing the order appealed from.

It must be affirmed, with costs.