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and, in any event, the defendant should be enjoined from taking over the defense of claims which are the subject of existing indemnity agreements. The defendant has not bound itself to conduct these defenses, and its acts so far are solely for its own benefit in lessening the amount payable by way of indemnity to the subscribers. The injunction to this extent is within the complaint, and is essential to the plaintiff's protection; but, if any unfairness to the defendant be apprehended, the order may limit the injunction, so far, to actions now pending, the plaintiff having the bringing of these suits within its own hands, and there being no hardship in requiring that the further prosecution of suits against indemnified subscribers be delayed until after judgment in this suit.
Motion granted. Settle order on notice.
LONG BRANCH PIER CO. V. CROSSLEY.
(Supreme Court, Appellate Term. June 22, 1903.) 1. DEFAULT JUDGMENT-VACATION-APPEARANCE-SUBSEQUENT TRIAL-ISSUE AS
After suffering default judgment, defendant moved to vacate it on the ground that service of summons had not been made. The court treated this application as one to open a default, and vacated the judgment to the extent of permitting defendant to come in and plead. An appeal from the judgment and order was dismissed. Defendant answered that she had never been served with summons, and, on a trial, offered proof on that issue, which was excluded. Held that, as there had at no time been a voluntary appearance and submission to the jurisdiction of the
court by defendant, the exclusion of this evidence was error. Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by the Long Branch Pier Company against Hannah L. Crossley. Judgment for plaintiff, and defendant appeals. Reversed.
See 31 N. Y. Supp. 905.
Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.
Randolph M. Newman, for appellant.
FREEDMAN, P. J. This case has been before this court on a former appeal (81 N. Y. Supp. 905) from a judgment rendered upon the default of the defendant in failing to appear on the return day of the summons, and also from an order opening defendant's default in failing to appear, as before stated. We then held that under the provisions of section 257, p. 1563, of the Municipal Court act, no appeal would lie from an order opening a default, and that, the judgment having been practically set aside by such order, the appeals should be, and they were, dismissed. Subsequently, when the case came up for trial, the defendant interposed an answer setting forth, among other allegations, that she had never been served with the
f 1. See Appearance, vol. 3, Cent. Dig. 88 41, 52
and 118 New York State Reporter summons in the case; and on the trial she offered proof on that issue, which was objected to by plaintiff's counsel and excluded. This was error. The direct question as to whether or not the court had acquired jurisdiction over the person of the defendant by service of the summons upon her had never been determined by any court. The court below, upon defendant's motion to vacate the judgment upon the ground that service of the summons had not been made, treated the application as one to open a default, and vacated the judgment to the extent of permitting the defendant to come in and plead; and an appeal from such order, the Appellate Term held, was not permitted under the act aforesaid, and such order could only be reviewed upon an appeal from the final judgment. Prior to the passage of the Municipal Court act (Laws 1902, p. 1486, c. 580), a defendant, by bringing an appeal from a judgment, could, under section 3057 of the Code of Civil Procedure, made applicable to proceedings in Municipal Court, have the question as to whether or not service of the summons had ever been made upon him determined upon affidavits. Ironclad Mfg. Co. v. Smith, 28 Misc. Rep. 172, 59 N. Y. Supp. 332. Although the new Municipal Court act contains no such provision, whether or not the provisions of section 3057, supra, could not be invoked in a proper case, by virtue of section 20, p. 1496, of the Municipal Court act, which declares “that the provisions of the Code of Civil Procedure
shall apply to the Municipal Courts as far as the same can be made applicable and are not in conflict with the provisions of this act,” need not now be determined, for the reason that the return of a marshal is not conclusive, and may be impeached by parol evidence, and that may be done in the court below. Burbanks' Hardware Co. v. Hinkel, 76 App. Div. 183, 78 N. Y. Supp. 365. The defendant had insisted from the first that no service had ever been made upon her, and had at all times endeavored to have that question determined, and it therefore cannot be said that there was a voluntary appearance and submission to the jurisdiction of the court on her part.
Judgment reversed. New trial ordered, with costs to the appellant to abide the event. All concur.
LOFT v. KAZIZ. (Supreme Court, Appellate Term. June 22, 1903.) 1. SUMMARY PROCEEDINGS for LAND-PETITION.
Under Code Civ. Proc. $ 2235, requiring the petition in a summary proceeding for land to describe the interest therein of petitioner, stating the facts, an averment that he is the lessee, and as such is the landlord, of the premises, is insufficient.
Truax, J., dissenting. Appeal from Municipal Court, Borough of Manhattan, First District.
Summary proceedings by George W. Loft against Demetrius Kaziz. From a final order awarding possession to petitioner, defendant appeals. Reversed. See 80 N. Y. Supp. 1015.
Argued before FREEDMAN, P. J., and TRUAX and GILDERSLEEVE, JJ.
Blandy, Mooney & Shipman (Andrew J. Shipman, of counsel), for appellant.
John P. Everett (Alexander Brough, of counsel), for respondent.
FREEDMAN, P. J. The appeal in these proceedings attacks the sufficiency of the allegations in the petition upon the ground that it fails to comply with section 2235 of the Code of Civil Procedure, in that it fails properly to describe the "interest therein of the petitioner" in the demised premises. The petition contains only the averment that "the petitioner is the lessee, and that as such he is the landlord of the demised premises." Section 2235, supra, requires that the applicant shall present a petition "describing the premises and the interest therein of the petitioner, stating the facts." Under that section there is now no distinction regarding the description of the petitioner's interest in the premises, whether the proceedings are founded upon forcible entry and detainer, for nonpayment of rent, or for a holding over. Engel, Heller Co. v. Elias Brewing Co., 37 Misc. Rep. 480, 75 N. Y. Supp. 1080. It was held in the above-cited case that the mere allegation that the petitioner "is the landlord” was not sufficient to confer jurisdiction upon the Municipal Court in proceedings of this character; neither does the additional statement contained in the petition that the petitioner is “the lessee of the demised premises,” etc., strengthen the respondent's position nor cure its defective statements. Nothing is shown by such averment that he is entitled thereby to the possession of the premises, and it is merely an allegation of an interest in the premises, but not a description of the petitioner's interest. Fuchs v. Cohen (Com. Pl.) 19 N. Y. Supp. 236. In Fox v. Held, 24 Misc. Rep. 184, 52 N. Y. Supp. 724, it was held that the word "lessee" is merely descriptio personæ, and may be regarded as surplusage. At the most, until a further statement of facts, it would only mean that the petitioner was a tenant, and in the absence of further explanation would not confer upon him a right to institute these proceedings. The court below was without jurisdiction to make a final order in the premises.
Objection to jurisdiction can be raised at any time. Cram v. Dietrich, 38 Misc. Rep. 791, 78 N. Y. Supp. 948.
Final order reversed, with costs.
GILDERSLEEVE, J., concurs.
TRUAX, J. I do not concur. Section 2235 of the Code of Civil Procedure says that an application for the removal of a person from real property, as prescribed in title 2 of chapter 17 of the Code of Civil Procedure, may be made by the landlord of the demised premises, and that “the applicant must present to the judge * * * a written petition * * * describing the interest therein" of the petitioner. The petition in this case describes the petitioner as the "landlord” of the demised premises. This is, I think, a sufficient description of the interest of the petitioner in the premises mentioned in
and 118 New York State Reporter the petition, and is the description required by the above-mentioned section of the Code. In fact, the petitioner has used the very word, "landlord," required by the Code in describing his interest in the premises of which possession is claimed. A landlord is the person whose lands are occupied, and, when the petitioner herein said that he was the landlord, he in effect said that he was the person whose lands were occupied. I am unable to reconcile Fox v. Held, 24 Misc. Rep. 184, 52 N. Y. Supp. 724, and Engle-Heller Co. v. Henry Elias Brewing Co., 37 Misc. Rep. 480, 75 N. Y. Supp. 1080. Moreover, - the tenant, Demetrius Kaziz, admitted in his answer that he had entered into an agreement (of leasing) "with George W. Loft, the landlord of the premises mentioned and described in the petition." This admission concludes the defendant.
To my opinion, the order appealed from should be affirmed, with costs.
POMPILJ V. MANHATTAN DELIVERY CO.
(Supreme Court, Appellate Term. June 22, 1903.) 1. CARRIERS-LIMITATION OF LIABILITY-RECEIPT-CONTRACTS.
Where plaintiff directed a delivery company to transport his baggage from a certain place, and paid the charges, a receipt given by an employé of the company when he subsequently called for the baggage to a person who pointed it out to him did not constitute the contract, so as to limit the company's liability for the loss of the baggage to the amount stipulated therein.
Appeal from City Court of New York.
Action by Eugenio Pompilj against the Manhattan Delivery Company. From a judgment for plaintiff and an order denying its motion for a new trial, defendant appeals. Affirmed.
Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.
Guthrie, Cravath & Henderson, for appellant.
FREEDMAN, P. J. In this case the provision of the receipt limiting defendant's liability, and the receipt itself, constitute no contract between the parties, within the rule laid down and enforced in Bernstein v. Weir (decided by the April term of this court) 83 N. Y. Supp. 48. The plaintiff called at defendant's office, and ordered to have his baggage, consisting of a valise, transported from No. II Oliver street to No. 181 Second avenue, in the city of New York, for which service the defendant requested him to pay, and he did pay, at that time and place, 35 or 40 cents. No question was asked, nor was any receipt or paper of any kind then given to him. Subsequently defendant's driver called at the Oliver street house during the absence of the plaintiff therefrom, saw a Mrs. Reagan, and asked her for plaintiff's valise. She pointed it out to him, with the remark, “Here it is.” No more conversation passed between them, and no question was asked, according to her testimony, and the
driver simply handed her a receipt. This receipt, it now appears, contained a limitation of the liability of the defendant to the sum of $50 in case of loss, at which the property to be forwarded was valued. Mrs. Reagan could neither read nor write, and, according to the finding of the jury, to whom this question was submitted as one of fact, her attention was not called to this clause, and she did not know the contents of the receipt. Upon this state of facts it is idle to contend that the previous oral contract, made and paid for at defendant's office, became merged into the so-called “contract" contained in the receipt. The case discloses no reversible error, and the defendant admitted that the valise and its contents were never delivered to the plaintiff, and that they were stolen from its wagon. No reason appears why the defendant should be relieved from making compensation as found by the jury. Indeed, the verdict only allowed a part of plaintiff's claim.
The judgment and order should be affirmed, with costs. All concur.
STEINMAN V.: INTERURBAN ST. RY. CO.
(Supreme Court, Appellate Term. June 22, 1903.) 1. STREET RAILWAYS—CROSSING ACCIDENT—CONTRIBUTORY NEGLIGENCE.
Where one driving a wagon, when four feet from a street railway track, saw a car approaching on the farther track at the distance of a short block, there being only one house in the block, and he attempted to cross and was struck by the car, he was guilty of contributory neg
ligence. Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Ignatz Steinman against the Interurban Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.
Arthur K. Wing and Wm. E. Weaver, for appellant.
GILDERSLEEVE, J. The action is for injuries sustained by plaintiff's horse by reason of a collision with defendant's car. The justice gave judgment for plaintiff in the sum of $225 damages and costs. Defendant appeals. From the plaintiff's own evidence it appears that at about 4:40 p. m., on August 30, 1902, he drove his horse and wagon down Fifth avenue to Twenty-Fourth street, and then west on Twenty-Fourth street, intending to cross defendant's tracks on Broadway, in order to go to the foot of West Twenty-Fourth street. When he was about four feet east of the easterly track he looked south, and saw no car, and then looked north, and saw a car at the south corner of Twenty-Fifth street and Broadway. He then proceeded to cross the track. He had crossed the easterly track in safety, but when his horse began to cross the westerly track, and