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and 140 New York State Reporter

cases cited by the counsel for the defendants holding, in effect, that a corporation may do all acts auxiliary to the corporate business, not only those necessarily implied, but also such as are for convenience and accommodation, provided they be germane to its main objects, and that for all such reasonable purposes, though not embraced in the primary object of the charter, it may use its own corporate property. Lafond v. Deems, 81 N. Y. 515; Swift v. Pacific Mail Steamship Co., 106 N. Y. 217, 12 N. E. 583; Jacksonville, Mayport P. R. Nav. Co. v. Hooper, 160 U. S. 525, 16 Sup. Ct. 379, 40 L. Ed. 515; Starin v. New York, 42 Hun, 555; People ex rel., etc., v. Knight, 67 App. Div. 398, 73 N. Y. Supp. 790; Green Bay & M. Railroad Co. v. Union Steamboat Co., 107 U. S. 109, 2 Sup. Ct. 221, 27 L. Ed. 413; Peirce v. Boston, etc., Railroad Co., 141 Mass. 481, 6 N. E. 96; and Foster v. London, Chatham & Dover Ry. Co., L. R. 1 Q. B. Div. 711 (1895)-are not applicable.

There is a radical distinction between the use by the corporation operating the road or exercising the franchise of the property belonging, not to itself, but to the public, and the beneficial and profitable employment by it of its own property, purchased and owned by it, which would otherwise be idle and unproductive. The case of N. Y. Mail & Transportation Co. v. Shea, 30 App. Div. 266, 51 N. Y. Supp. 563, establishing the right of the trustees of the New York and Brooklyn. Bridge, owned by the cities of New York and Brooklyn, to contract with a private corporation for the establishment and maintenance of a pneumatic tube line for the speedy transmission of mails is authority, not on the question of the right of the railroad corporation to use the public property here contended for, but on the authority of the rapid transit board to expressly contract for the use of the ducts in question. And in Brooklyn Heights Railroad Co. v. City of Brooklyn, 152 N. Y. 244, 46 N. E. 509, the right of the corporation to build tracks in streets not named in the certificate of incorporation was sustained because necessary for the public convenience, reasonably essential to a proper discharge of its duties to the public, and fairly implied as a means of the amplest exercise of the powers specifically given which was consistent with the object and purpose of the public grant. Here the many ducts, now unoccupied, were constructed as part of the first or original structure, to anticipate the public needs occasioned by the probable extensions of the subway system, and because of the difficulty, if not impossibility, of constructing them or adding to them after the subway wall was constructed. Indeed, apart from the requirements of future extensions, they may become necessary for the transmission of a motor power superior to electricity which may be disclosed by the future development of the railway art. The use of these ducts for the sale and transmission of electric current for motor power to third parties, whether the owners and operators of connecting or intersecting railroads or not, is a use of the public property contrary to the plain purpose of the rapid transit. act, not reasonably contemplated by the parties to the instrument of contract and lease executed thereunder, in no sense a railway use within the rules above stated, and, in so far as the company seeks to charge the cost of the generation and transmission of such electric current

against the sum upon which its indebtedness to the municipality shall be computed, manifestly unjust to the city.

Judgment should therefore be rendered in favor of the plaintiffs for the relief demanded in the complaint, with costs.

(121 App. Div. 634.)

CONNOLLY et al. v. SCHROEDER et al.

(Supreme Court, Appellate Division, First Department. October 25, 1907.)

1. PLEADING-VERIFICATION.

The form in which defendants are sued for rent showing that they are doing business together and presumptively as partners, and the complaint and answer showing joint occupancy by them and presumptively, therefore, joint knowledge of that fact and of the facts attending the making of the lease and the payment or tender of rent, the verification of the answer as to such matters by one of the defendants, without a statement that he was acquainted with the facts, is sufficient under Code Civ. Proc. § 525, providing that, where several parties united in interest plead together, the verification may be made by one of them, who is acquainted with the facts.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 888, 889.]

2. SAME-DENIALS ON INFORMATION ANd Belief.

The answer in an action for rent by one claiming to have purchased the premises from defendants' lessor may deny sufficient knowledge to form a belief as to such purchase or plaintiffs' present ownership of the premises.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 249252.]

3. SAME.

An answer may, for the purpose of putting plaintiffs to proof of the regularity of the institution and prosecution of summary proceedings, which the complaint alleges were duly instituted in a court of competent jurisdiction, deny on information and belief the institution and prosecution of summary proceedings.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 249– 252.]

Appeal from Special Term, New York County.

Action by Mary A. Connolly and others against Gustav Schroeder and another, doing business under the firm name of Schroeder Bros. From an order denying a motion to compel plaintiffs to accept the answer, defendants appeal. Reversed, and motion granted.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

Bertram L. Kraus, for appellants.

Francis Woodbridge, for respondents.

HOUGHTON, J. The verified complaint alleges that the defendants are indebted for rent of premises occupied by them and belonging to plaintiffs. The answer denies any knowledge or information sufficient to form a belief as to the ownership of the premises and the institution and prosecution of summary proceedings to dispossess defendants, and denies absolutely the other allegations of the complaint,

and 140 New York State Reporter

and sets up, by way of defense and counterclaim, leasing of the premises from a former owner for a definite period at a stipulated rent, which was tendered to these plaintiffs and refused, whereupon defendants were dispossessed without authority, for which damages are claimed. The verification of the answer was by one of the defendants, stating that he was such, and that the answer was true of his own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters he believed it to be true. The answer was returned by the attorneys for plaintiffs; acceptance of service being refused on the ground that the verification was incomplete, in that it did not state that it was made by a defendant acquainted with the facts. The defendants moved to compel plaintiffs to accept service of the answer, which motion was denied. Section 525 of the Code of Civil Procedure provides that if there are two or more parties united in interest, and they plead together, the verification of a pleading must be made by at least one of them who is acquainted with the facts, except in certain instances, where it may be made by other individuals. Where the pleadings themselves show that the several defendants are united in interest, and that presumptively the verifying defendant is acquainted with the facts, the verification need not so state. Paddock v. Palmer, 32 Misc. Rep. 426, 66 N. Y. Supp. 743. The form in which the defendants are sued shows that they are doing business together, and presumptively as partners; and the complaint alleges that together they occupied the premises from which they were dispossessed for nonpayment of rent. The answer admits the occupancy of the premises, but claims they were so occupied under a lease from the plaintiffs' predecessor in title, which had not yet expired. Both the complaint and answer show joint occupancy, and presumptively, therefore, joint knowledge of that fact, and of the facts attending the making of the lease and the payment or tender of rent. It was proper enough to deny sufficient knowledge to form a belief as to the purchase of the premises by the plaintiffs, or their present ownership of them; and it is apparent that the denial upon information and belief of the instituting and prosecution of summary proceedings was for the purpose of putting the plaintiffs to proof of their regularity. The plaintiffs alleged that they were duly instituted in a court of competent jurisdiction. It was proper pleading for the defendants to say that they had no knowledge or information sufficient to form a belief as to that fact. The pleadings upon their face show that the verifying defendant presumably had knowledge of the facts, and it was unnecessary to so state in the verification itself. The motion to compel plaintiffs to accept service of the answer should have been granted.

The order appealed from is reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

(121 App. Div. 599.)

PEOPLE ex rel. HERMANN v. KAUFMAN et al., Town Assessors. (Supreme Court, Appellate Division, Second Department. October 23, 1907.) TAXATION-ASSESSMENT-REVIEW-CERTIORARI-GROUNDS NOT PREVIOUSLY AL

LEGED.

Under Laws 1896, p. 882, c. 908, § 250, providing that any person aggrieved by illegality, overvaluation, or inequality of assessment may petition for a writ of certiorari, stating the grounds, etc., when the only complaint made in the statement filed with the assessors and in the petition for a writ of certiorari to review an assessment was as to overvaluation, that the relator, a nonresident, was assessed in the resident list, cannot be raised by motion to cancel the assessment on the petition, writ, and return, and an order appointing a referee to inquire into the allegation of overvaluation only will be sustained.

Appeal from Special Term, Westchester County.

Certiorari by the people, on the relation of Ferdinand Hermann, against Henry J. Kaufman and others, as town assessors, to review an assessment. From an order denying a motion to cancel the assessment and appointing a referee to inquire into the question of overvaluation only, relator appeals. Affirmed.

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

Howard H. Morse, for appellant.
Hugh A. Thornton, for respondents.

GAYNOR, J. The appellant's brief is very misleading. The principal argument in it is that the court below erred in not cancelling the assessment of the appellant's land on the motion therefor on the petition, writ and return, on the ground that the petitioner being a nonresident, he was nevertheless assessed in the resident list. But when we turn to the statement filed with the assessors on grievance day by the appellant, and to the petition for the writ of certiorari, we find no such grievance or illegality complained of. On the contrary, the appellant's sole complaint therein is that his assessment was erroneous for overvaluation, as compared with the assessment of other property, and unequal and he only asked for its reduction. The court below refused to inquire into the question of inequality, for the reason that the statement filed on grievance day did not specify the instances of inequality, i. e., in which the property of others was proportionately undervalued. This seems to be made the law by the courts (People ex rel. Sutphen v. Feitner, 45 App. Div. 542, 61 N. Y. Supp. 432; People ex rel. Erie R. Co. v. Webster, 49 App. Div. 556, 63 N. Y. Supp. 574), although there is no such requirement in the tax law (section 36, c. 908, p. 810, Laws 1896). There is a requirement that such instances be given in the petition for the writ of certiorari (section 250). The order appealed from appoints a referee to inquire into the allegation of overvaluation only.

The order should be affirmed.

Order affirmed, with $10 costs and disbursements.

HOOKER, J., concurs. HIRSCHBERG, P. J., and RICH and MILLER, JJ., concur in result.

106 N.Y.S.-20

(121 App. Div. 632.)

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COLE v. GORI.

(Supreme Court, Appellate Division, First Department. October 25, 1907.) ARREST-IN CIVIL ACTIONS-AFFIDAVIT.

The affidavit of plaintiff for arrest of defendant in an action for alienation of the affections of plaintiff's wife, the complaint alleging that, without the knowledge or procurement of plaintiff, defendant at various times debauched her and destroyed her affections for plaintiff, is insufficient, though alleging that all the facts of the complaint are true to affiant's knowledge; but, there being a fair presumption that the fact of defendant's intercourse could not have been within plaintiff's personal knowledge, the affidavit should set forth how and in what manner knowledge came to him, or the facts from which he deduced his conclusion.

[Ed. Note. For cases in point, see Cent. Dig. vol. 4, Arrest, §§ 56-63.]

Appeal from Special Term, New York County.

Action by John H. W. Cole against Frederick Gori. From an order denying his motion to set aside an order of arrest, defendant appeals. Reversed, and motion granted.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

Roy M. Hardy, for appellant.

William D. McNulty, for respondent.

HOUGHTON, J. The action is to recover damages for the alienation of the affections of plaintiff's wife. The complaint by positive allegation alleges that, without the knowledge or procurement of plaintiff, the defendant, contriving and intending to injure the plaintiff and alienate the affections of his wife, at various times and places debauched her and destroyed her affection for plaintiff, to his great distress and damage. The affidavit which was presented with the complaint upon the application for the order of arrest alleges that all of the allegations of the complaint are true to deponent's knowledge. The motion to set aside the order of arrest was denied, and the defendant appeals. The principal point urged by the defendant is that the complaint itself states that the acts charged against defendant were committed without plaintiff's knowledge. If it be assumed that the averment of lack of knowledge and procurement is a mere formal and technical allegation, and hence not to be construed as a broad assertion that plaintiff had no knowledge of the commission by the defendant of the acts complained of, still we think the proof upon which the order of arrest was granted was insufficient. It can hardly be assumed that the plaintiff was present at the defilement of his wife. If he was not, he learned the facts from confession or hearsay, or from deduction from facts and circumstances. His affidavit should have set forth how and in what manner knowledge came to him, or the facts from which he deduced his conclusion, so that the justice to whom the application was made might determine the propriety of granting an order of arrest. It has been held that the mere averment in an affidavit of facts as upon personal knowledge is not sufficient, unless circumstances are stated from which the inference can fairly be drawn that the affiant has personal knowledge of the facts which he avers. Hoorman v. Climax

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