Brauneck v. Knickerbocker Life Ins. Co.

H. W. Johnson (Johnson & Cantine), for defendants and respondents.-I. The jurisdiction and powers of this court being defined by statute, it can exercise only such as is expressly conferred.

II. The act of 1872 expressly limits its jurisdiction in actions against corporations (2 L. 1872, p. 1642, c. 688).

III. Plaintiff's, proof clearly showed that the court had no jurisdiction.

IV. Consent and an appearance cannot confer jurisdiction over the subject matter of an action, upon a court of limited jurisdiction (Dudley v. Mayhew, 3 N. Y. 9; Coffin v. Tracy, 3 Caines, 129; Davis v. Packard, 7 Pet. 276; Harriott v. N. J. R. & T. Co., 2 Hilt. 262; Landers v. S. I. R. R. Co., above cited).

NEILSON, Ch. J.-The complaint was dismissed at the close of the plaintiff's case on the grounds stated.

The defendant had no place of business in this city. The cause of action did not arise here, nor was it suggested that the summons was or could have been served within our territorial limits. We therefore concur with the learned judge who presided at the trial, that the court had no jurisdiction of the case.

The ruling in Landers v. The Staten Island Railroad Company applies. It is true that this action was, in its nature, transitory. It is for a wrong, but so also was the Landers case for a wrong—the cause of action for damages suffered by the negligence of the agents of the railroad company. It rested with this plaintiff to show that this was the proper forum by reason of the defendant's place of business or of the service of process; the question of jurisdiction not depending upon the form of the pleading, or upon any imputed consent of the defendants.

Under the statute and the doctrine of the Landers case, we have never faltered in upholding our jurisdic

Smith v. Evans.

tion where that seemed proper; but we have found it necessary to distinguish the case of a corporation defendant, located and transacting business in some other section of the State, from the case of a citizen defendant. The citizen, capable of being served here, but, in fact, served elsewhere, might make a special application for relief, take the objection in the answer, or he might elect to go to trial on the merits. In cases where such an election had been made, our uniform practice has been to affirm it. On the trials of issues of fact going to the merits simply, we have refused to allow the defendants to raise the question of jurisdiction.

But our power to impute such an election in a case of this character, may well be doubted. How is a corporation, its location, business and property elsewhere, impleaded upon a claim not arising here, to be served with our process? There is no possible mode of service. In the Landers case the objection was taken in the answer, but the ruling has special application to a defendant improperly brought here in a corporate capacity. The principle illustrated in that case, and the provisions of the statute, would be offended by our assuming to have jurisdiction of these defendants, and of the claim sought to be enforced in this action. The judgment must be affirmed with costs. MCCUE, J., concurred.

SMITH v. EVANS.

City Court of Brooklyn; General Term, January,

1876.

APPEAL.-LIMIT OF TIME.-SECURITY ON APPEAL IN CITY COURT. If after notice to limit the time to appeal has been given, the judg ment is amended in amount, even nunc pro tunc, a new notice is

Smith v. Evans.

necessary to limit the time to appeal from the amended judgment.*

Security is not essential to effectuate an appeal from special to general term, in the city court of Brooklyn.

Appeal from a judgment and order denying motion for a new trial.

This action was commenced in April, 1874, by John N. Smith, to recover damages from Charles E. Evans, for injury to property.

The plaintiff recovered a judgment for $492.15, which was entered as of November 19, 1875. On January 4, 1876, defendant's attorney obtained an order correcting the judgment, by reducing it by the amount of $50, and directing that the order be entered as of the date of the judgment. On January 12, 1876, defendant appealed from the judgment thus modified. The appeal was taken within due time, if computed from notice of the amendment or correction, but not in due time if computed from notice of the original entry of judgment. It was also objected that no security on appeal had been given.

B. E. Valentine, for appellant,

H. C. Place, for respondent.

BY THE COURT.-MCCUE, J.-I think the appeal is taken in time.

The modification of the judgment by the order entered January 4, 1876, directing the reduction of the same by the sum of $50, has the effect of rendering null the notice of appeal heretofore served.

The judgment was originally entered as of November 19, 1875, for $492.15, and by order of the court made January 4, 1876, the judgment has been reduced

* See also Thurber v. Chambers, 60 N. Y. 29; Star Fire Ins. Co. 1. Godet, 34 Super. Ct. (J. & S.) 359; Bishop. Empire Co., 37 Id.

Smith v. Evans.

so that it now stands as a judgment for $442.15. It is true that the order of January 4, 1876, directs the modification to be made as of November 19, 1875, but this is only for the purpose of preserving any lien which might have been acquired by the docket of the judg ment; it cannot, however, make the notice of entry of a judgment for $492.15, answer as notice of the entry of a judgment for $442.15 (See Champion v. Plymouth Soc., 42 Barb. 441; Sherman v. Wells, 14 How. Pr. 522).

The act of 1849 (sec. 6, chap. 125) did require security on appeal from the city court to the supreme court, precisely as under the Code, security was required on appeal from the supreme court to the court of appeals. This was on the theory that in each instance, as the cause was passing from one court to another, it was proper to indemnify the successful party against the costs and disbursements of the appeal. So long, however, as the cause continued in the court in which it was commenced, there was no provision by which security was required on any appeal.

The act of 1870, re-organizing the city court and creating a general term in that court (which never existed before), has provided expressly, as we read it, that all appeals to the general term shall be governed by the provisions of the Code relating to appeals in the supreme court to its general term: "All provisions of chapter four, of title eleven, of the Code, shall apply to the appeals so taken." Section 6, chapter 470, Laws of 1870, remodeling, so to speak, section 6 of the original city court act, so as to apply to the altered constitution of the court. The same rules apply, therefore, in this court, as in the supreme court, in respect to appeals to the general term.

The motion to dismiss appeal and vacate the extensions of time for making and serving case denied, but without costs.

Matter of Castle.

MATTER OF CASTLE.

N. Y. Common Pleas; Chambers, January, 1877.

ACCOUNTING.-ASSIGNEE FOR BENEFIT OF CREDITORS.

The surety of an assignee for benefit of creditors is not entitled to require an accounting under the statute.

Whether he may petition for removal, query?

If one who is both creditor and surety presents a single petition for accounting in several estates, it will be dismissed.

Motion to require an assignee for the benefit of creditors to account.

The petition of Joel E. Hyams, presented to one of the judges of this court as county judge, averred that Samuel A. Castle, Henry I. Magrave and Rufus E. Hitchcock, made a general assignment to Leopold Bamberger in August, 1875, and the assignee took possession thereunder of the property of S. A. Castle & Co., of the value of several thousand dollars; that said Bamberger was also assignee of the estate of the firm of Obright & Weil, and of the estate of Jacob Wolbach; that the petitioner had become surety for said assignee in these three assignments, to the amount, in the aggregate, of $60,000; that he was unable to state, with certainty, what amount said assignee had received from the several estates, but he knew that he had received upwards of $30,000, and that the petitioner believed himself liable for an honest account being rendered by the assignee; that the assignee had, to the petitioner's knowledge, used the sum of about $18,000 out of the moneys received by him as assignee, to pay his private debts ; that he had used and was using the balance for his private speculation and profit, and had purchased several promissory notes, several of which he specified, with the per cent. discount; that the petitioner had