Mise.] Supreme Court, Appellate Term, February, 1896. JULIA HESS, Respondent, v. HARRY SMITH, Appellant. (Supreme Court, Appellate Term, February, 1896.) 1. Bar-Former adjudication. A judgment recovered in an action on contract is a bar to a subsequent action for conversion of the same property. 2. Service-Presumption as to regularity. Where a justice of a District Court has rendered judgment upon proof of service made by a person other than a marshal, it will be presumed that he had given such person authority to make the service. 3. Estoppel Judgment creditor cannot show the judgment to be void. One who has obtained a judgment cannot show that it is void because of fraud or want of jurisdiction of the person. 4. Judgment - Collateral attack. A judgment which is merely irregular cannot be attacked collaterally. APPEAL by defendant from judgment rendered by the Eleventh District Court. Erastus H. Benn, for appellant. Joseph P. Fallon, Jr., for respondent. MCADAM, J. The action was in trover for conversion; the defense, a former recovery in bar. The proofs showed that the plaintiff had brought suit for the same claim on contract, and recovered judgment by default for $78.50, out of which she had collected $44. This action was for the conversion of the same property; but the amount previously collected was credited on the value proved, allowed as a counterclaim, and judgment given for the balance, $33, with costs. From that determination this appeal is taken. The former recovery, which has not been vacated or reversed, is a complete defense. The plaintiff had an election to sue on contract or in tort. She chose the former, and the election once Firemen's Ins. Co. v. Lawrence, 14 Johns. made is irrevocable. 55; Conrow v. Little, 115 N. Y. 387; Terry v. Munger, 121 id. 161; Crossman v. Rubber Co., 127 id. 34. Supreme Court, Appellate Term, February, 1896. [Vol. 16. The plaintiff seeks to avoid the effect of the judgment in the first action on the ground that it was void, because recovered by default on a personal service of process not made by a city marshal or other person deputed by the justice. She claims that, having pleaded the judgment in bar, the defendant was bound to establish the facts conferring jurisdiction. Code, § 532. This raises the question whether the service of the process by a person not shown by the record to have been authorized to make the service renders the judgment void, or constitutes a mere irregularity, which was waived by the failure of the defendant to take advantage of the objection. The Code (§ 3208) provides that in an action brought in a District Court of the city of New York, in the Justice's Court of the city of Albany, or in the Justice's Court of the city of Troy, the summons, and, in a proper case, a copy of the conplaint, may be served by any person not a party to the action, except that where the action is brought in a District Court of the city of New York, a person other than a constable or a marshal serving the same must be first empowered to do so by the justice. It is not prescribed how this authority is to be conferred, whether orally or in writing, and so long as the person who makes the service is first authorized to do so by the justice the service is legal. The justice having rendered judgment upon the proof of service made by a person other than a marshal, it must be presumed the justice gave the requisite authority, or otherwise we are required to presume that he illegally performed his duty, when the inference is that everything required to be done by him to make his acts legal was done. Mandeville v. Reynolds, 68 N. Y. 528, 534. Another answer to the plaintiff's contention is that the objection that the person who served the summons was not authorized to serve it cannot avail the plaintiff, or be taken advantage of by her, because she procured the service herself; she used it as a regular service, tried her suit, and took judgment against the defendant upon it, and collected a portion of the judgment. Even if the defendant could have taken advantage of it (and he could not except in the action itself), the plaintiff certainly cannot. It is a rule of law that no person can take advantage of his own wrong; he cannot show that a judgment which he has himself obtained is void because of fraud or want of jurisdiction over the person. Kinnier v. Kinnier, 45 N. Y. 542, 543; Draper v. Misc.] Supreme Court, Appellate Term, February, 1896. Trescot, 29 Barb. 406, 407; Billington v. Wagoner, 33 N. Y. 34, 35, 36. Besides, the plaintiff having collected a portion of the judgment, and thus taken a benefit under it, is estopped from objecting to or even appealing from it. Carll v. Oakley, 97 N. Y. 633; Bennett v. Van Syckel, 18 id. 481; Radway v. Graham, 4 Abb. Pr. 468; Glackin v. Zeller, 52 Barb. 152. The justice before whom the suit was tried had jurisdiction of the subject-matter, and want of jurisdiction of the person might be waived. Whether the person who served the summons in this case was duly authorized or not is a question which the defendant alone can raise, and he made no objection. It has been held that a judgment-roll showing that the summons was served by the plaintiff himself is not void, but simply irregular. Myers v. Overton, 2 Abb. Pr. 344; Hunter v. Lester, 18 How. Pr. 347. Where a judgment is merely irregular, no relief can be had against the irregularity except in the action itself. Such a judgment cannot be attacked collaterally. For these reasons the judgment appealed from must be reversed, and, as a new trial would not avail the plaintiff, there must be judgment absolute for the defendant, with costs. DALY, P. J., and BISCHOFF, J., concur. Judgment reversed, and judgment absolute for defendant ordered, with costs. CHARLES G. RIVES, Respondent, v. CONRAD MICHAELS, Impleaded, Appellant. (Supreme Court, Appellate Term, February, 1896.) 1. Partnership-Admissions as to. An admission by a person that another, who is not present, is his partner, is not binding upon the latter. 2. Same Liability on the ground of appearances. No person can be fixed with liability on the ground that he has been held out as a partner, unless such holding out has been either by him, or with his consent, and was known to the person seeking to establish such liability before giving the credit. APPEAL by defendant Michaels from judgment of the First Judicial District Court. Supreme Court, Appellate Term, February, 1896. [Vol. 16 Martin & Weil, for appellant. James R. Angel, for respondent. MCADAM, J. The action was against the defendants, as partners, for the recovery of $50, the balance due upon a contract made with the plaintiff for the sale of 1,000 copies of The Financial Review, containing an advertisement of The Central Park Storage Warehouse Co. The price agreed upon was $100, and the order was given by the defendant McKenna, who has not appealed. The question to be determined is whether the defendant Michaels was a partner of McKenna, and, therefore, jointly liable with him for the debt. It is apparent from the testimony that the defendants were not partners as between themselves, and this leads to the inquiry whether by their conduct they became partners as to the plaintiff. The order given to the plaintiff was in writing, signed “John J. McKenna, manager." Michaels' name in no manner appeared in the order, which did not disclose a partnership, nor was there any sign or cards indicating that McKenna had a partner, or that the appellant had any interest in McKenna's business. There is no proof that Michaels did or said anything prior to the contracting of the debt or delivery of the papers to lead the plaintiff to suppose that he was a partner, or that he shared to any extent the profits or losses of McKenna's business. The proof relied upon to make out a partnership is furnished by the statement McKenna made to the plaintiff's son, that his uncle (Michaels) owned the largest share in the firm, and that he (McKenna) was manager; and by the testimony of Frederick B. Davis, plaintiff's collector, that he saw McKenna and Michaels together; that Michaels, after consulting with McKenna, gave him a check for $50, which was paid on account of the bill; that the papers delivered by the plaintiff were found on the floor of Michaels' saloon, and that at one time Michaels said to the witness, "You see McKenna about it; he has charge of these things." Michaels testified that he had no interest in the business carried on by McKenna; that the building belonged to him and he had let it to McKenna, and that he (Michaels) was engaged in an entirely different enterprise. McKenna testified substantially to the same facts. The admission of the latter that his uncle was a partner in no manner bound Michaels, who was not present at the time. Kirby v. Hewitt, 26 Barb. 607. Misc.] Supreme Court, Appellate Term, February, 1896. There is no doubt that a person holding himself out as a partner, thereby inducing others to act on the faith of appearances, is liable as if he were in fact a partirer, the real ground of liability being that a credit has been thereby gained. But no person can be fixed with liability on the ground he has been held out as a partner unless two things occur, viz.: first, the holding-out must have been either by him or with his consent, express or implied; second, before giving the credit it must have been known to the person seeking to establish liability. Lindley on Part. (2d Am. ed.), 42, 43; Burnett v. Snyder, 76 N. Y. 344; Brookman v. Stetson, 13 Misc. Rep. 132. The record before us does not disclose such a state of facts. If Michaels had, prior to the giving of the credit, made any declaration or representation to the plaintiff, whereby he led plaintiff to believe that he was a partner of McKenna, and had in consequence induced the plaintiff to bestow labor or part with property, he would, on equitable principles, have been estopped from denying as to the plaintiff that he held such partnership relation. But there is no such proof in the case. The acts of Michaels, even if regarded as of any significance, were all subsequent to the contracting of the debt. The judgment as to Michaels must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event. BISCHOFF, J., concurs. Judgment as to Michaels reversed and a new trial ordered, with costs to appellant to abide event. ROBERT GOELET et al., Appellants, v. JULIA LAWLOR et al., Respondents. (Supreme Court, Appellate Term, February, 1896.) 1. Evidence — Presumptions. When a condition of things is once established, there is a legal presumption of its continuance. 2. Landlord and tenant-Disorderly house — Evidence. In an action by a landlord to recover possession of the demised premises on the ground that they are being used and occupied as a bawdy-house, evidence as to their use in the past by the same tenants is admissible, and should not be limited to a period of two weeks prior to the commencement of the action. |