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(121 App. Div. 480.)

SMITH V. SMITH et al. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) PARTITION-PROCEDURE-INTERLOOUTORY JUDGMENT—COSTS.

Under Code Civ. Proc. $ 1022, providing that, in an action where the costs are in the discret:on of the court, the decision must award or deny costs, and, if it awards costs, it must designate the party to whom the costs to be taxed are awarded, where the decision in a partition suit directed an actual partition, with costs to plaintiff, it was error to amend by order the interlocutory judgment entered, so as to also award costs to

the defendants. Appeal from Special Term, Suffolk County.

Suit for partition by Clarence G. T. Smith against William E. T. Smith and others. From an order resettled by a subsequent order amending an interlocutory judgment for plaintiff for costs and disbursements, entered as directed by the judgment for partition, so as to also award costs to defendants, plaintiff appeals. Reversed.

Argued before HIRSCHBERG, P. J., and HOOKER, GAYNOR, RICH, and MILLER, JJ.

Leonard J. Reynolds (John Lyon and Clarence G. T. Smith, on the brief), for appellant.

Timothy M. Griffing, for respondents.

MILLER, J. This appeal involves a question of costs in a partition suit. The case was tried before the late Justice Wilmot M. Smith, who made a decision containing findings of fact and conclusions of law in which the rights of the respective parties were stated, and a judgment was directed for actual partition, with costs to the plaintiff. Upon this an interlocutory judgment was entered which provided that the plaintiff should have costs and disbursements, to be taxed by the clerk. The order appealed from amends this interlocutory judgment, so as to award costs to the defendants as well as the plaintiff. Section 1022 of the Code of Civil Procedure provides :

“In an action where the costs are in the discretion of the court the decision or report must award or deny costs, and if it awards costs it must designate the party to whom the costs to be taxed are awarded.”

The only interlocutory judgment that could be entered was the one directed by the decision. While the court would have power to correct an error in the entry of judgment, it could not change the decision or authorize the entry of a judgment differing from the one directed by the decision.

For these reasons, the order must be reversed, and the motion denied.

Order reversed, with $10 costs and disbursements, and motion denied, with costs. All concur.

and 140 New York State Reporter

(121 App. Div. 516.)

HENNEKE V. SCHMIDT.

(Supreme Court, Appellate Division, Second Department October 11, 1907.) 1. PLEADING-RESIDENCE OF DEFENDANT-NECESSITY.

The County Court, being of limited jurisdiction, is not within the rule that jurisdiction of courts of general jurisdiction is presumed; and under Const. art. 6, § 14, giving the court jurisdiction of actions for money where defendant resides in the county and the sum demanded does not exceed $2,000, it is necessary that a complaint allege defendant's residence in the county, to show jurisdiction.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, $ 61.) 2. SAME-AMENDMENT.

In an action in the County Court, the court, having obtained jurisdiction of defendant, if he resided in the county, could permit plaintiff to

amend the complaint by showing such residence. Appeal from Kings County Court.

Action by William Henneke against John William Schmidt. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

Argued before JENKS, HOOKER, GAYNOR, RICH, and MIL LER, JJ.

Wm. H. Klinker, for appellant.
A. F. Van Thun, Jr., for respondent.

GAYNOR, J. The county court is of limited jurisdiction, and is therefore not within the rule that the jurisdiction of courts of general jurisdiction is presumed. It has jurisdiction of an action to recover money where the defendant resides in the county and the sum demanded does not exceed $2,000. Const. N. Y. art. 6, § 14. It can no longer be gainsaid that it is necessary that the complaint in such an action should allege that the defendant is a resident of the county in order to state a cause of action of which the court has jurisdiction. Gilbert v. York, 111 N. Y. 544, 19 N. E. 268. The complaint here did not contain that allegation. The defendant at the opening of the trial moved to dismiss for want of jurisdiction appearing. The plaintiff moved to amend by alleging that the defendant resided in the county at the commencement of the action, and offered to prove that fact. The court denied the motion to amend on the ground that it had no jurisdiction of the action to do anything in it, and granted the motion to dismiss. This arose out of momentary inadvertence. The court got jurisdiction of the action by the summons, if the defendant was a resident of the county in fact, and could have allowed the amendment.

The judgment should be reversed.

Judgment of the County Court of Kings county reversed, and new trial ordered; costs to abide the final award of costs. All concur.

(56 Misc. Rep. 108.) PEOPLE ex rel. BARON v. WARDEN OF CITY PRISON OF CITY

OF NEW YORK. (Supreme Court, Special Term, New York County. September 26, 1907.) HABEAS CORPUS-NATURE AND GROUNDS OF REMEDY.

A defendant, charged with a felony of which, by statute, a conviction cannot be had without testimony corroborating that of complainant, is not entitled to release on habeas corpus, notwithstanding there was no such corroboration on his examination before the magistrate by whom com

mitted ; lack of corroboration being material on the trial only. Habeas corpus by the people, on relation of Michael Baron, against the warden of the city prison of the city of New York. Writ dismissed, and prisoner remanded.

Michael Kaufman, for relator.
Robert S. Johnstone, Asst. Dist. Atty., for respondent.

FORD, J. Relator is held under a commitment of a city magistrate after examination on a charge of felony. The crime charged is one in which by statute the testimony of the complainant must be corroborated to justify a conviction. It was conceded by relator's counsel upon the argument that the testimony of complainant upon the examination covered all the requisite elements of the crime charged. Relator's counsel contends that there was no legal corroboration. Upon that phase of the case I agree with him. Nevertheless I am of opinion that the writ must be dismissed. In the case of People ex rel. Perkins v. Moss, 187 N. Y., 410, 80 N. E. 383, principally relied upon by relator, the court held that the writ should have been sustained because there was no legal evidence of the commission of the crime charged on account of lack of proof of intent-an essential element of the alleged larceny. Here there is no such hiatus. Lack of corroborative testimony becomes essential upon the trial only, and the Perkins Case does not change the rule in this regard.

The writ is dismissed, and the prisoner remanded.

(54 Misc. Rep. 492.)

TOWN OF PLATTEKILL V. LOUNSBERY.

(Ulster County Court. May, 1907.) HIGHWAYS-POLL TAX-AUTHORITY TO LEVY.

Where there is no incorporated village within the boundaries of a town whose highways are maintained by the money system of taxation, under Laws 1873, p. 620, c. 395, the town has no power to levy a poll tax for bighway purposes, and no recovery can be had of the penalty provided by Laws 1890, p. 1189, c. 568, $ 65, for nonpayment of a poll tax levied in such

town without authority of law. Action by the town of Plattekill against Cervonia Lounsbery to recover a penalty for nonpayment of a poll tax. Judgment for plaintiff, and defendant appeals. Reversed.

The highways of the town are maintained under "the money system of taxation."

Hector Sears (James Jenkins, of counsel), for appellant.
D. W. Ostrander, for respondent.

and 140 New York State Reporter CANTINE, J. The origin of the money system of highway taxation is found in chapter 395, p. 620, of the Laws of 1873. Its provisions have the merit of great simplicity, and there is no necessity for judicial construction of its language. The act repeals, as to towns adopting this system, the provisions of the highway law directing the assessment of highway labor, the commutations thereof, and the penalties for its nonperformance. The following is its language as to the tax itself:

“Sec. 3. It shall be lawful for any town voting in favor of such change to raise by tax, to be levied and collected the same as any other tax, for the repair of its highway, an annual sum of money which shall be at least equivalent to the value of the day's work theretofore assessed at the commutation prices, and not to exceed five thousand dollars.

"Sec. 4. The amount of such tax shall be determined by the commissioners of highways, or a majority of them, and shall be delivered to the board of town audit, who shall certify the same to the board of supervisors the same as any other town charges.”

This tax was levied upon the taxable property of the town "the same as any other tax.” An inhabitant, as such, had nothing to do with this tax, unless he were the owner of taxable property. The days' labor tax against each male inhabitant over 21 years of age, with certain exceptions, no longer continued in towns adopting this system.

Passing to the statute as it now reads:

"Sec. 53. Any town voting in favor of the money system shall annually raise by tax, to be levied and collected the same as other town taxes, for the repair of the highways, an annual sum of money, which shall be equal to at least onehalf the value at the commutation rates, of the highway labor which should be assessable under the labor system, and, except in the counties of Nassau and Oneida, such sum shall not be less than one dollar on each five hundred dollars of assessed valuation of real and personal property in such towns; but in any town in which there may be an incorporated village, which forms a separate road district, and wherein the roads and streets are maintained at the expense of such village, all property within such village shall be exempt from the levy and collection of such tax for the repair of highways of such town; and the assessors of such town are hereby required to indicate on the assessment roll the property included in such incorporated village, in a column separate from that containing a list of the property in the town not included in such village, and shall also place on the assessment roll the names of all persons liable to poll tax who are not residents of such village, and the board of supervisors are directed to levy a tax of one dollar on each person liable to poll tax as thus indicated.

The amount of such tax shall be determined by the commissioners of highway and the town board, who shall certify the same to the board of supervisors, the same as any other town charge.” Laws 1903, p. 513, c. 228.

If we bear in mind just what changes were made by the law of 1873, we are prepared the better to understand the subsequent legislation. In substance, the language of sections 3 and 4 is continued. The first amendatory provision exempts the property within certain villages from the "levy and collection of such tax." The second amendatory provision directs the assessors of such town, viz., a town having an incorporated village, etc., to place on the assessment roll the names of all persons liable to a poll tax who are not residents of such village, and the board of supervisors is directed to levy a tax of $1 upon each person as thus indicated, viz., upon the assessment roll of a town having an incorporated village, etc. The poll tax, therefore, is only

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added in towns in which there are certain incorporated villages. This result is clearly not the result intended by the framers of the legislation, but a tax cannot be based upon what is thought to have been the legislative intent.

The case before us is omitted, viz., a town having no incorporated village, and in such a town the supervisors have no power to levy a tax of $1 upon each person indicated upon the assessment roll as liable to poll tax. We have not the power to read this provision into the statute. That power rests solely with the Legislature. As the statute does not authorize the tax there can be no penalty for its nonpayment.

Judgment reversed, with costs.

SPEARS v. SORGE.

(Steuben County Court. October 12, 1907.) 1. CONTRACTS-BREACH-FAILURE TO COMPLETE-RIGHT TO WITHHOLD PAY

MENT.

Where plaintiff, having contracted with defendant to construct a first

class walk, built a poor one, defendant could refuse to pay for it. 2. JUSTICES OF THE PEACE-APPEAL-ERROB.

To justify reversing a justice's judgment, the error should be apparent. 3. SAME-CONCLUSIVENESS OF FINDING.

A verdict in justice court on conflicting evidence will not be reversed.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 31, Justices of the

Peace, § 716.) 4. Costs_OFFER OF JUDGMENT.

Under Code Civ. Proc. $ 2892, providing that if plaintiff rejects an offer of judgment, and fails to recover a more favorable judgment, he shall be liable for defendant's costs from the time of offer, a single judgment should be entered for plaintiff for the actual amount recovered, with

costs to the time of offer, less defendant's costs after the offer. 6. SAME-JUSTICES OF THE PEACE-APPEAL.

On appeal from a justice's judgment for plaintiff, including costs to date of defendant's offer of judgment, plaintiff having recovered less than the offer, and from a judgment for defendant for costs after the offer, defendant's judgment being reversed and plaintiff's judgment modified

and affirmed, costs of appeal should not be allowed. Appeal from Justice Court.

Action by Guy W. Spears against Elizabeth Sorge to recover for work, labor, and services in building a cement walk. The defendant having filed an offer of judgment for a specified amount, the plaintiff recovered less than the offer. Two judgments were entered by the justice—one for damages and costs to time of offer in favor of the plaintiff, and one in favor of the defendant for costs from time of offer. Plaintiff appeals. Judgment for defendant reversed, and for plaintiff modified, and, as modified, affirmed.

Harry L. Allen, for appellant.
Stevens & Stevens, for respondent.

BURRELL, J. It is undisputed that the contract under which this walk was built called for first-class materials and workmanship, and

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