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and 136 New York State Reporter forfeit the right to carry on the liquor traffic by the presentation of a petition which “shall state the facts upon which said application is based,” is not satisfied or complied with by a petition which merely states that the petitioner is informed or believes that the particular facts exist which warrant the revocation of the license. Matter of Peck v. Cargill, 167 N. Y. 391, 60 N. E. 775, 53 L. R. A. 888; Matter of Wheaton v. Slattery, 96 App. Div. 102, 88 N. Y. Supp. 1074. The cases cited seem to proceed upon the theory that the right to carry on the sale of liquor under a license once granted is a property right; that the Legislature had seen fit to require, in view of the existence of this property right, that the facts upon which the application is based should be made upon personal knowledge, and not upon information and belief, because in cases of default the court is authorized to revoke the liquor license issued. The courts have, therefore, held that the action of the court should not be based on mere hearsay, but upon the testimony of those having knowledge of the truth of the allegations of the petition.
It is quite likely that the Court of Appeals in the case of Peck v. Cargill, 167 N. Y. 391, 60 N. E. 775, 53 L. R. A. 888, intended to go no further than to hold that a license could not be revoked upon failure to answer where the petition was upon information and belief only. It has been subsequently held that the court gets jurisdiction of the parties and subject-matter of a proceeding under the liquor tax law sufficient to order a reference to take legal proof even where the petition is on information and belief. Matter of Cullinan (Gallagher Certificate) 39 Misc. Rep. 354, 79 N. Y. Supp. 840. Even if in the case now under consideration the respondent had the right to have objected to the sufficiency of the petition, he failed to do so, and without so doing he appeared by attorney, answered the allegations of the petition, and consented to a reference to take proof. The evidence taken before the referee supplied all the necessary positive proof required to justify the court in acting. The element of hearsay evidence was eliminated, and in its stead the court now has before it direct and positive proof sustaining the allegations of the petition. The court should cancel the, certificate in question unless the defects in the original petition vitiate all subsequent proceedings.
Respondent's counsel contends the defects of the petition are jurisdictional. Even conceding that the objection was good if it had been made in time, nevertheless, in this proceeding, the record shows the respondent appeared and answered and consented to a reference. In other words, this action on his part is tantamount to a consent to the court's taking jurisdiction. By these acts he in effect waived the right to insist on the insufficiency of the petition. Matter of Cullinan (Micha Certificate) 76 App. Div. 363, 78 N. Y. Supp. 466, affirmed 173 N. Y. 610, 66 N. E. 1106. As was stated in the case last cited, a party may waive a rule of law or statute, or even a constitutional provision enacted for his benefit or protection, where it is exclusively a matter of private right, and no consideration of public policy or morals are involved; and, having once done so, he cannot subsequently revoke its protection-citing Sentenis v. Ladew, 140 N. Y. 463, 466, 35 N. E.
650, 37 Am. St. Rep. 569; Lee v. Tillotson, 24 Wend. 337, 35 Am. Dec. 624; Embury v. Conner, 3 N. Y. 511, 53 Am. .Dec. 325; Matter of Cooper, 93 N. Y. 50%.
If the respondent wished to insist on the defects of the petition, he should have raised the question as to its sufficiency when called on to answer. Instead, he not only answered without even suggesting the defects in his answer, but he consented to the order of reference. When the matter came on for hearing before the referee, the question was then raised for the first time. We think it was then too late, and, as the evidence returned concededly justifies the granting of the order of revocation, the relator is entitled to it, and also to the amendment to his petition making it conform to the proof.
Let such an order be entered, with costs of the proceeding.
(52 Misc. Rep. 293)
UNION TRANSIT CO. v. ERIE R. CO.
(Supreme Court, Special Term, Erie County. December, 1906.) PLEADING-COMPLAINT-SEPARATE CAUSES OF ACTION-SEPARATE STATEMENT
A complaint in an action to recover freight charges alleged that during the years 1899 to 1903 plaintiff transported for defendant certain quantities of copper on which the agreed charges amounted to $99,601.43, on which sum a balance of $10,024.51 is still due; that on November 20, 1903, the parties agreed on a rate of 2.5 cents per 100 pounds for the freight charges on said copper, to wit, the sum of $22,972.22, in settiement of the then unpaid balance, on which defendant has paid $16.065.81; that on or about November 20, 1903, an account was stated at said rate of 2.5 cents, and $16,120.12 was found due, which defendant agreed to pay; that on or about December 14, 1903, an account of the charges on all copper during 1903 was stated, and on that statement $6,852.10 was found due, which defendant promised to pay; and that certain payments were made on Deceinber 29, 1903, and April 18, 1904. Held, that the complaint does not allege different causes of action, which should be separately numbered and set forth.
[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, $ 113.]
Action by the Union Transit Company against the Erie Railroad Company. Motion to strike out portions of the complaint, or require plaintiff to make it more definite and certain, by separately stating and numbering causes of action. Denied.
Moot, Sprague, Brownell & Marcy, for the motion.
WHEELER, J. The paragraph of the complaint made the subject of this motion alleges that during the years 1899 to 1903, inclusive, the plaintiff transported for the defendant certain quantities of copper, and that defendant agreed to pay the freight charges thereon, which the complaint alleges it was agreed amounted to $99,601.43, on which sum a balance of $10,024.51 is alleged still due and owing the plaintiff. The complaint then continues, and alleges that on November 20, 1903, the parties agreed upon a rate of 272 cents per 100 pounds for the freight charges on said copper, to wit, the sum of $22,972.22, and 136 New York State Reporter in settlement of the then unpaid balance of said indebtedness, on which said defendant has paid $16,065.81, and no more. The complaint then continues, and alleges that on or about the 20th day of November, 1903, an account of said freight charges upon said copper was stated by and between the parties, and at said rate of 272 cents per 100 pounds $16,120.12 was found due from the defendant to the plaintiff, which the defendant then and there agreed to pay; also that on or about the 14th day of December, 1903, an account of said freight charges on all of said copper during the year 1903 was stated between the plaintiff and defendant, and upon such statement a balance of $6,852.10 was found due from defendant to the plaintiff, which defendant promised to pay to plaintiff. Then follows an allegation of certain payments made by the defendant on December 29, 1903, and April 18, 1904, respectively.
Counsel for the defendant insists that the complaint alleges different causes of action, which should be separately numbered and set forth, and for those reasons the motion should be granted. We do not so read the complaint. A complaint is not to be deemed to unite several causes of action simply because it sets forth several grounds on which the defendant might be liable in respect to the same transaction. Walters v. Continental Ins. Co., 5 Hun, 343. In that case the complaint set forth in detail the issuing of a policy by the defendant, the loss of the property by fire, the due making of proof of loss, and that the plaintiff and defendant negotiated with the plaintiff and agreed to give her $3,800 for her loss and damage in full settlement, and, further, that the plaintiff demanded of the defendant, in pursuance of the requirements of the policy, to have the loss ascertained by arbitrators, that the defendant refused, and that thereupon, on notice to it, they selected arbitrators, who ascertained the damages at $3,800. A motion for an order requiring the plaintiff to make her complaint more definite and certain, by stating an alleged cause of action on an insurance policy separately from an alleged cause of action on an award, was denied. The principle stated was subsequently recognized and followed in the case of Pittsfield Nat. Bank v. Tailor, 60 Hun, 130, 14 N. Y. Supp. 557. We think the complaint in this case falls within the rule laid down in the cases cited. It simply states the facts relating to one transaction. But one recovery can be had upon one or all of the grounds set forth.
The motion should be denied, with $10 costs of motion.
(52 Misc. Rep. 290)
LEVICK V. NIAGARA FALLS HOME TELEPHONE CO.
(Supreme Court, Special Term, Erie County. December, 1906.) PARTIES-AMENDMENTS–CHANGE OF DEFENDANTS-PROCEEDINGS.
Plaintiff attempted to sue a corporation, but instead began an action against a company which had been merged in the corporation. Defendant filed an answer, denying its corporate existence, and plaintiff moved on notice to defendant's attorney, but not to the corporation, to amend the summons and complaint by substituting the name of the corporation. Defendant's attorney opposed the motion and filed an affidavit that he had answered for defendant, and not for the corporation, and had no authority to appear for the latter. An affidavit stating tbat the person on whom the summons was served was not the general manager of the corporation
was also filed. Held, that the motion should be denied. Action by Anna Levick, as administrator, etc., against the Niagara Falls Home Telephone Company. Motion for leave to amend the summons and complaint Denied.
John T. Ryan, for the motion.
WHEELER, J. It appears from the various papers read on this motion that the action was brought to recover damages by reason of alleged negligence in causing the death of the plaintiff's intestate. He met his death while in the employ of the "Niagara County Home Telephone Company.” This company appears to have been formed by the merger of several prior constituent companies, of which the Niagara Falls Home Telephone Company was one. Evidently intending to begin an action against the Niagara County Home Telephone Company, service of a summons was made upon one R. Max Eaton, who, the plaintiff claims, was the general manager of the Niagara County Home Telephone Company, but the defendant described was named in the paper as the Niagara Falls Home Telephone Company. The Niagara Falls Home Telephone Company appeared by attorneys and answered the complaint, and in and by that answer denied its corporate existence, and alleged that its corporate existence had been terminated by due process of law. It also appears that after such answer the case was noticed for trial.
The plaintiff now makes this motion upon notice to the attorneys who have appeared for the Niagara Falls Home Telephone Company to amend by correcting the name of the defendant to read the "Niagara County Home Telephone Company." The attorneys who appeared and answered for the “Niagara Falls” Company read in opposition affidavits stating they had answered for the "Niagara Falls" Company, and not for the “Niagara County” corporation, and had no authority to appear for or represent the latter company. Affidavits were also read challenging the sufficiency of the service of process on Eaton; it being claimed he was not the general manager of the Niagara County Home Telephone Company, and consequently that no jurisdiction had ever been obtained of that corporation, even had it been correctly described by name in the summons. It would seem that under the circumstances presented the motion to amend must be denied. We do not mean to contend that an amendment of the paper cannot be had in a proper motion to amend as for a misnomer of the party defendant. The difficulty, however, on this motion of granting such relief, is the fact that no notice of motion for this relief has been given to the real defendant intended to be sued, to wit, the Niagara County Home Telephone Company. That party has never appeared in the action, and the attorneys who answered for the Niagara Falls Home Telephone Company make affidavit that they have and never had any authority to appear in behalf of the Niagara County Telephone Company. At and 136 New York State Reporter least, before an amendment for misnomer can be granted, it must be upon notice to the real defendant, and that has never been given.
Again, from the affidavits it is questionable whether any valid service of process was ever made upon the Niagara County Home Telephone Company. Eaton, on whom the summons was served, makes an affidavit that he was not the general manager of that company. It thus becomes questionable whether the plaintiff (assuming a mere misnomer existed) ever obtained jurisdiction of the real defendant intended to be served. That question cannot be determined on this motion. If the intended defendant has not been subjected to the court's jurisdiction, then the plaintiff does not need the aid of an order to amend, because no action against that defendant is pending.
The motion should be denied, without costs.
(52 Misc. Rep. 295)
BENDER V. BORK et al. (Supreme Court, Special Term, Erie County. December, 1906.) 1. DISCOVERY-EXAMINATION OF PARTY-ATTENDANCE AT TRIAL.
That a party will attend the trial of an action is no reason for refusing an application for his examination under Code Civ. Proc. 88 870, 872, 873, providing for the examination of a party before trial.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Discovery, 57.] 2. SAME-APPLICATION-DENIAL.
Under Code Civ. Proc. $$ 870, 872, 873, providing for the examination of a party before trial, it is within the discretion of the court to deny the application where it appears that it is made for purposes of annoyance or delay, although the language of the statute is mandatory.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Discovery, $ 47.] 3. SAME-MOTION TO VACATE ORDER-GROUNDS FOR DENIAL.
On a motion to vacate an order granted ex parte for the examination of a party before trial, it appeared that the action was for specific performance of a contract to sell real estate, that the sale was made subject to the approval of the party, and the complaint alleged approval and the answer denied it. Held, that the party seeking the examination brought himself within the provisions of Code Civ. Proc. $8 870, 872, 873, providing for the examination of a party before trial, and the motion should be denied. Action by Peter Bender against George W. Bork and others. Motion to vacate an order for the examination of a party before trial. Denied.
H. B. Butterfield, for plaintiff,
WHEELER, J. The counsel for Mr. Shire contends the order for his examination was improvidently granted, and should be vacated, on the ground that the moving papers made out no case warranting the order for examination. Counsel for Mr. Shire also read an affidavit to the effect that Mr. Shire will be personally present at the trial to testify on his own behalf. The cases are quite uniform in holding that the fact that a witness or a party will attend the trial of an action is no answer to the application for an examination of such person under the provisions of sections 870, 872, 873, Code Civ. Proc.