Misc.] County Court, Oneida County, February, 1896. Applying the evidence to these allegations, and we find it. clearly insufficient to present a question for the jury upon this branch of the case. As to the second alleged defense, defendant testified that a copy of the contract was brought to him at the round-house in Utica, and that he read it, but did not sign it then, and that it did not contain the marginal writing. Subsequently, he went to plaintiff's place of business and was introduced to Mr. Daniels. That the contract, which he signed, was then produced in duplicate. One copy was laid on the desk before him while Mr. Daniels read from the other. Defendant claims that the marginal writing was not read to him. He testified that he read the contract over carelessly, but did not see the marginal writing. He admits that he had full opportunity to read and examine it, and does not claim that any fraud or artifice was resorted to to prevent his reading or examining it. He thereupon signed it and took a duplicate copy home with him, and retained it in his possession. The question presented here is, can the defendant, under those circumstances, be permitted to come into court and say that he did not understand the terms of the contract, and, therefore, is not bound by it? In Upton v. Tribilcock, 91 U. S. 50, Mr. Justice Hunt, in writing the opinion of the court, says: "That the defendant did not read the charter and by-laws, if such were the fact, was his own fault. It will not do for a man to enter into a contract, and when called upon to respond to its obligations to say that he did not read it when he signed it, or did not know what it contained. If this were permitted contracts would not be worth the paper upon which they were written. But such is not the law. A contractor must stand by the words of his contract; and if he will not read what he signs, he, alone, is responsible for his omission," citing Jackson v. Croy, 12 Johns. 426; Lies v. Stub, 6 Watts, 48; Farley v. Bryant, 32 Me. 474; Coffing v. Taylor, 16 Ill. 457; Sloyfton v. Scott, 13 Ver. 427; Alvanley v. Kinnaird, 2 Mac. & G. 7; 29 Beav. 490. See, also Grace v. Adams, 100 Mass. 505. Defendant relies upon Albany City Savings Institution v. Burdick, 87 N. Y. 40. In that case, one of the defendants in a mortgage foreclosure action sought to reform a deed conveying the mortgaged premises to him, by striking therefrom a clause by which he assumed to pay the mortgage, claiming that the grantor fraudulently inserted it in the deed. County Court, Oneida County, February, 1896. [Vol. 16. That case is readily distinguishable from this. A deed of a piece of property is a definite instrument of itself. The mere mention of it implies what it would ordinarily contain, but that is not so as to a special agreement between parties like the one in suit. To hold that the facts presented here would enable the defendant to escape from the liability of his contract would establish a rule that would destroy the value of written agreements and put a premium on perjury. It would be strange, indeed, if, after parties had entered into a written contract by which one was to furnish labor and materials and the other was to pay for the same, that after one had performed his contract the other would be permitted to say: "It is true I signed that contract, and I had full opportunity to inspect it, but I read it carelessly and did not observe one clause that is in it, and, therefore, I do not consider myself bound by it." I do not believe the courts in this state will adopt such a rule. I am, therefore, of the opinion that defendant has not shown any facts that entitle him to be relieved from liability upon the contract as executed, including the marginal writing. As to the third alleged defense, of nonperformance. The contract does not guarantee any degree of temporary heat. At the time the tests were applied the inside doors were not hung, the stairways were open, the walls were freshly plastered and the evaporation from the drying walls tended to reduce the temperature. The guarantee, I think, should be construed to apply to a finished house, and a completed apparatus. There, therefore, was no such test as the contract contemplates as to whether plaintiff had performed, and by the terms of the contract could be no such test until after the $100 sought to be recovered here became payable. My conclusion, therefore, is that the evidence failed to establish any defense to the action, and the verdict must be set aside, and a new trial granted, costs to abide event. If either party desires, the order may recite that the verdict is not set aside and new trial granted in the exercise of any discretion, but upon the ground that the evidence does not establish any defense as matter of law. Verdict set aside, and new trial granted. Misc.] Supreme Court, February, 1896. EDWARD P. FOSTER, Plaintiff, v. THE ELECTRIC HEAT REGULATOR Co., Defendant. (Supreme Court, New York Special Term, February, 1896.) 1. Service Order for publication. In order to give the court jurisdiction to grant an order for service by publication in an action against a foreign corporation, all the facts required by section 1780 of the Code must be set forth in a verified complaint. 2. Same-Amendment of pleading. Where the defect in the original complaint is jurisdictional, an amendment nunc pro tunc is of no avail. MOTION by defendant to vacate an order for service by publication. Oliver C. Semple, for motion. E. A. S. Man, opposed. LAWRENCE, J. In this case the defendant, for the purposes of motion only, appears and moves to vacate an order for the service of the summons by publication, dated and filed on the 26th day of September, 1895, together with any service of such summons made thereunder. The motion is made upon the papers on file, on the ground of want of jurisdiction in the justice making said order: First. Because the justice making such order was then and there without power to make the same for want of a verified complaint showing a sufficient cause of action against the defendant directed to be served. Second. Because this court was then and there without jurisdiction of the cause of action. set forth in the complaint, as appears upon the face of such complaint, under section 1780 of the Code of Civil Procedure. Section 1780 of the Code of Civil Procedure provides that an action against a foreign corporation may be maintained by a resident of the state or by a domestic corporation for any cause of action. Section 439 of the Code of Civil Procedure provides that the order of publication must be founded upon a verified complaint, showing a sufficient cause of action against the defendant to be served, etc. It was held by the General Term of this department in Ladenburg v. Commercial Bank of Newfoundland, 87 Hun, 269, that in an action brought against a foreign corporation commenced by attachment, where the cause of action Supreme Court, February, 1896. [Vol. 16. arose without the state of New York, the Supreme Court has no jurisdiction unless the plaintiffs are residents of the state of New York. It was held in the case of Bryan v. University Publishing Co., 112 N. Y. 382, that to authorize an order under the Code of Civil Procedurę, section 438, directing service of a summons by publication on the ground that the defendant is a nonresident, not only is an affidavit of nonresidence necessary, but also a verified complaint showing a sufficient cause of action against the defendant to be served (Code Civ. Pro., § 439), and that the case is one of which the court can take cognizance. And in Paget v. Stevens, 143 N. Y. 172-177, the court say that, under the provisions of the Code of Civil Procedure providing for the service of a summons by publication upon a defendant out of the state (§§ 438-439), which require that the order directing such a service shall be founded upon a verified complaint showing a sufficient cause of action against a defendant to be served, it is not sufficient that the complaint set forth facts sufficient to constitute a cause of action; the cause of action must be one of which the court can take cognizance. It is apparent from these decisions that where an action is brought against a foreign corporation, all the facts required by section 1780 must be set forth in a verified complaint in order to enable the plaintiff to obtain an order of publication, and to give the court jurisdiction for that purpose. In this case it was necessary, under section 1780, that the plaintiff in his complaint should show that he was a resident of this state. There was no such allegation in the verified complaint which was submitted to the learned justice who granted the order of publication. On the contrary, it appeared from the contract, which was set forth at length in the complaint, that both plaintiff and defendant were nonresidents. The plaintiff relies upon an order made by one of the justices of this court, permitting him to amend his complaint nunc pro tunc; but as the defect in the first instance was jurisdictional, the amendatory order is of no avail. See Ladenburg v. Commercial Bank, etc., 87 Hun, 274, and cases cited. In the Ladenburg case, it had been held at the Special Term that the defect could be cured by an affidavit filed nunc pro tunc; but the General Term, as already stated, did not concur in that view. I am of the opinion, therefore, that this motion must be granted. Motion granted. Misc.] Supreme Court, February, 1896. MARY E. JACKSON, Plaintiff, v. CHARLES C. BRAdhurst et al, Defendants, (Supreme Court, New York Special Term, February, 1896.) 1. Partition-Lien of creditor of party-Release of purchaser. Where a sale is had in an action for partition a lien acquired by a creditor of one of the parties attaches to the whole premises and constitutes a cloud on the title thereto which will authorize the release of the purchaser. 2, Same-Code Civ, Pro., § 1540, Section 1540 of the Code does not apply where there has been a sale on partition. MOTION by the purchaser at a sale in partition to be relieved from his purchase. Hays & Greenbaum, for motion. Charles A. Jackson, for plaintiff. William J. O'Leary, for defendants. . TRUAK, J. On the 17th day of February, 1892, prior to the filing of the lis pendens in this action, which is an action of partition, a lis pendens was filed in an action brought by one Mary E. Smith against the above-named Charles C. Bradhurst, in an action to enforce the specific performance of a certain contract, by which the said Charles C. Bradhurst agreed to give a mortgage upon his interest in certain premises which were afterward sought to be partitioned in this action. The above-named Mary E. Smith was not made a party to this action. There was no advertisement in this action for liens upon the undivided shares of the various parties, and the lis pendens in the action of Smith against Bradhurst is still upon the interest of the said Bradhurst. Certain premises were sold under the decree in this action and purchased by the moving party, who now seeks to have said purchase set aside, upon the ground that the lis pendens filed in the action of Smith against Bradhurst is a cloud upon the title to said premises. Section 1540 of the Code of Civil Procedure provides that "The plaintiff may, at his election, make a creditor, having a lien on an undivided share or interest in the property, |