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and 118 New York State Reporter affidavits read in support of the order of arrest are not sufficient to authorize its issuance. In fact, a jury had passed nearly a year before upon the same questions, and had decided adversely to the defendant. The only points raised by the defendant are two:
First, that an order of arrest should not have been granted so long a time after the verdict, and that the plaintiff was guilty of gross laches in entering his judgment. We do not think, however, that the failure of the plaintiff to enter judgment upon his verdict can be called laches. No provision of law required him to enter the verdict until he saw fit, especially as there had been no order of arrest granted in the action. The order of arrest, granted and executed before judgment, was proper. Section 551 of the Code provides that, "in either of the cases specified in section 549, the order cannot be served after final judgment; but it may be granted, where a proper case therefor is presented, at any time before final judgment.” It was held in Humphrey v. Hayes, 94 N. Y. 594, that an order of arrest after trial and decision of the court, but before a judgment, was authorized.
The second ground upon which the defendant attacks the order of arrest is under that part of the provision of section 572 of the Code which relates to a neglect of plaintiff to enter judgment within 10 days. That portion of the section material to his contention reads as follows:
"If the plaintiff * * * neglects to enter judgment therein within ten days after it is in his power to do so, * * the defendant must upon his application, made upon notice to the plaintiff, be discharged from custody."
It is plain that, in order to invoke the benefit of that provision of the section just quoted, it is incumbent upon the defendant to show that he is within it. The facts, however, disclosed by the affidavits, do not advise the court whether 10 days elapsed after it was within the power of the plaintiff to enter judgment subsequent to the arrest, or not. It appears that judgment was not entered at the time the order of arrest was granted and executed, and that such a judgment has been entered subsequent thereto, and prior to the order to show cause why the order of arrest should not be vacated was granted, but the exact date is disclosed nowhere in the papers. If, as section 551 of the Code provides, and as has been held supra, an order of arrest may be granted at any time before a judgment, even after a trial and decision or after a verdict, we do not think that it was intended by the Legislature, in enacting section 572, that the defendant should be relieved immediately from arrest, if such an order was executed upwards of 10 days after it was within the power of the plaintiff to enter judgment in the case. For, were such the law, the efficiency of an order of arrest would be practically limited to cases where it is granted and executed before trial. We think that, to defeat the defendant's right of supersedeas, the plaintiff must enter judgment within 10 days after it is within his power to do so, counting from either the date of the granting of the order or the day on which it is executed, which we are not called upon in this case to decide. The plaintiff, in the absence of an order of arrest granted and executed in an action, is under no obligation to enter judgment upon a verdict within any given time, and, in the absence of such order, suffers no penalty by
reason of his delay. When this mandate becomes, however, part of the proceedings in an action, then it is imposed upon the plaintiff to proceed with that degree of diligence and fairness toward the defendant which is defined in section 572 of the Code; and then, and only then, will the plaintiff be required to comply with those provisions at his peril.
Inasmuch as the entire record is silent upon the question whether the plaintiff entered his judgment within 10 days after the granting or execution of the order of arrest, the defendant has failed to make out his case for supersedeas, and the court below should have denied his motion. The order appealed from should therefore be reversed, and the motion denied.
Order reversed, with $10 costs and disbursements, and motion denied. All concur.
ROMAINE V. NEW YORK, N. H. & H. R. CO. (Supreme Court, Appellate Division, Second Department. November 13, 1903.)
1 ABATEMENT- ANOTHER ACTION PENDING-DEFECT OF PLEADINGS-WAIVER.
In an action against a railroad for negligent death caused in the state of Connecticut, defendant pleaded another action pending. Plaintiff contended that the complaint in the other action was radically defective, in that it failed to allege notice of claim given to defendant as required by a Connecticut statute. Defendant, however, had not demurred to the complaint, but had pleaded to the merits. Held, that defendant had waived the right to demur, and hence the defective complaint did not
affect the validity of the defense. 2. SAME-EVIDENCE-COPY OF PLEADINGS.
Under the defense of another action pending, it is not error to admit in place of the original a copy of the complaint in such other action, proved by testimony of defendant's attorney to be the paper served upon defendant.
Appeal from Trial Term, Orange County.
Action by Lillian Romaine, as administratrix of Wayland Romaine, deceased, against the New York, New Haven & Hartford Railroad Company. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
Robert H. Barnett, for appellant.
WILLARD BARTLETT, J. This action was brought by an administratrix to recover damages against the defendant corporation for having negligently caused the death of her intestate, who was killed by an accident on the New York, New Haven & Hartford Railroad, in the state of Connecticut, while in the service of the defendant as a conductor. The sole defense was the pendency of a former action for the same cause in the Supreme Court of this state, the venue being laid in Dutchess county. The pleadings in this prior suit were put in evidence, and a comparison of the complaint in that and 118 New York State Reporter action and the complaint in this leaves no doubt in my mind that the defense was completely established. The basis of the action in each case was negligence arising out of precisely the same occurrence, at the same time, and in the same place; and the theory upon which the administratrix sought to enforce her claim for damages in this state, arising out of a negligent or wrongful act committed in another state, was that upon which the Court of Appeals affirmed the judgment in Wooden v. Western New York & Pennsylvania R. R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803.
It seems that there is a statute in Connecticut which provides that no suit on account of the death of any person caused by negligence shall be maintained against a steam railroad company unless written notice of a claim therefor shall have been given to the defendant within four months after the neglect of which complaint is made. The appellant contends that, inasmuch as no such notice was alleged to have been given in the Dutchess county action, that complaint was radically defective and demurrable. Even if this view be correct, however, it does not necessarily affect the validity of the defense based on the pendency of the Dutchess county action. The defendant there did not interpose any objection that the statutory notice required by the laws of the state of Connecticut was wanting, but put in an answer setting up a defense on the merits. If the complaint was demurrable, the right to demur had been waived.
It is argued that the court erred on the trial of the present action in receiving in evidence a copy of the complaint in the Dutchess county action, instead of requiring the production of the original.. The copy was sufficiently proved by the testimony of the attorney for the defendant, who swore that it was the paper which had been served upon the corporation; and it has been held that the pendency of a former suit niay be established by reading in evidence a copy of the declaration served upon the defendant's attorney. Brown v. Littlefield, 7 Wend. 454. I think this judgment should be affirmed.
Judgment affirmed, with costs. All concur.
In re CULLINAN, State Com'r of Excise. (Supreme Court, Appellate Division, Second Department. November 13, 1903.) 1. INTOXICATING LIQUORS-TAX CERTIFICATE-REVOCATION.
It is no defense to an application for the revocation of a liquor tax certificate because of a violation of Liquor Tax Law, § 23 (Heydecker's Gen. Laws, p. 2378, c. 29), providing that no person as owner or agent shall "suffer or permit" gambling in the place in which the traffic is carried on, that the violation was permitted by an agent in the absence and without the knowledge and consent of the certificate holder. Appeal from Special Term, Queens County.
In the matter of the petition of Patrick W. Cullinan, as state commissioner of excise, for an order revoking and canceling liquor tax certificate No. 21,917, issued to John Niederstein. From an order denying the application, the petitioner appeals. Reversed.
Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and HOOKER, JJ.
William E. Schenck, for appellant.
HOOKER, J. This is an appeal from an order denying an application to cancel a liquor tax certificate, issued to the respondent. An issue was raised by the answer of the certificate holder, and proof was taken before a referee appointed for that purpose. Section 23 of the liquor tax law (Heydecker's Gen. Laws, p. 2378, c. 29) in the enumeration of those who shall not traffic in liquors, provides in part as follows: "No corporation, association, copartnership or person, who, as owner or agent, shall suffer or permit any gambling to be done in the place designated by the liquor tax certificate as that in which the traffic in liquors is to be carried on;" and section 28 (page 2382) authorizes the revocation of the certificate of a person violating that provision. The petitioner contends that the certificate holder committed such a violation, in that gambling by a device known as a “slot machine" occurred in his place on July 24 and 29, 1902. That the machine was a gambling device is not questioned. The certificate holder contended that this was done without his knowledge or consent, and in his absence, and that, therefore, he did not, in the language of the statute, “suffer or permit” the gambling. It must be taken as a fact, in the state of the evidence, that Niederstein was absent from the premises from about the middle of July until the 6th day of August, and that his place of business, in which liquor was sold under the certificate, was in charge of an agent; and this presents the question whether or not his certificate was liable to be revoked under that portion of section 23 of the liquor tax law relating to gambling. The learned Special Term in its opinion has said: “There was a violation of the law, in that gainbling by means of a nickel-slot machine was committed and suffered on the days and at the place in question; but it was the act of the agent then in said barroom, not of the certificate holder, this respondent. The evidence does not establish any participation by him in the violation, or that he suffered or permitted the gambling or use of the machine;" and in that theory of the law he denied the application. This disposition of the case we think erroneous. If this doctrine were to be adopted into the body of the law, it would be only necessary for the holder of a liquor tax certificate to absent himself for a few hours a day from his place of business to avoid the penalty following a violation of this provision of the liquor tax law during his absence; or, in the event of one person holding two liquor tax certificates, his continued absence from one would be a sufficient defense to any revocation proceeding that might be instituted against him for the violation of section 23 of the liquor tax law by his agent at such place of business. We cannot believe that the Legislature intended that the words "suffer or permit" should receive the interpretation given to them by the learned Special Term. It has been held that, where a liquor tax certificate has been issued or transferred to a person upon his application and filing of a bond, he is the principal, whom
and 118 New York State Reporter the law will look to during the conduct of the business, and will hold responsible for compliance with the statutory provisions. Lyman v. Kurtz, 166 N. Y. 274, 59 N. E. 903.
The contention of the respondent that the law does not permit the conviction of a person for the unauthorized unlawful acts of an agent is not germane to this proceeding, for the reason that the application is one to revoke the certificate. Nothing more than the revocation is accomplished. It does not convict the holder of crime. Matter of Lyman, Texter Certificate, 59 App. Div. 217,69 N. Y. Supp. 309.
Our opinion is that the failure of the respondent to prevent the conduct complained of clearly makes out a case within the letter, as well as the spirit, of the statute, and that the acts of his agent have rendered his certificate forfeited.
The order appealed from should be reversed, with $10 costs and disbursements, and the proceedings remitted to the Special Term for a rehearing. All concur.
METZGER et al. v. MARTIN et al. (Supreme Court, Appellate Division, Second Department. November 13, 1903.) 1. JUDICIAL SALE-PURCHASER-EASEMENT-ADVERSE POSSESSION.
Where real estate sold at partition sale has a right of way over the lands of a third person, which has been used with the knowledge of the third person, and without any objection by him, for more than 50 years, and the way is one of necessity, manifest to the third person, the purchaser is compelled to take the title, the proof establishing the easement by adverse possession being clear and strong. Appeal from Special Term, Westchester County.
Action by Adella C. Metzger and another against Albert S. Martin and others. From an order denying the motion of John H. Shults to be relieved from the purchase of the premises sold in the action, he appeals. Affirmed.
Argued before BARTLETT, WOODWARD, HIRSCHBERG, and HOOKER, JJ.
Henry T. Dykman, for appellant.
WILLARD BARTLETT, J. The property purchased by the appellant at the partition sale is entirely shut off from the highway, which can only be reached therefrom by passing over lands belonging to a person who was not a party to the action. Under the terms of sale the purchaser is entitled to a right of way over such inclosing lands. There is no record title to this easement in the owner of the inclosed lot, and the only question presented in the court below and upon this appeal is whether the proof has established a good title by prescription, which the purchaser ought to be compelled to take.
The case is analogous to those in which it has been held that the purchaser at a judicial sale or under a contract may be compelled to take a title founded upon adverse possession. Seymour v. De Lancey, Hopk. Ch. 436, 14 Am. Dec. 552; Shriver v. Shriver, 86 N. Y.