Supreme Court, Appellate Term, February, 1899. [Vol. 26. tain the principle that a bailee for reward cannot relieve himself of responsibility, for failure to deliver the property of the bailor when called for, simply by showing that the property was taken out of his custody under the authority of valid legal process, but he must also show that he gave notice of that fact to the owner. In Bliven v. Hudson R. R. R. Co., 36 N. Y. 403, it is said that seizure by legal process excuses the carrier "provided the bailor is promptly notified of such taking." In Scrantom v. Farmers' & M. Bank, 24 N. Y. 424, 427, we find the following language: "It is doubtful whether the bailee has a right to yield to regular legal proceedings without defending or at least notifying the bailor of such proceedings." To same effect: Western Trans. Co. v. Barber, 56 N. Y. 544; Bliven v. H. R. R. R. Co., 36 id. 403; Roberts v. Stuyvesant Safe Dep. Co., 123 id. 57; Van Winkle v. U. S. M. S. S. Co., 37 Barb. 122; Livingston v. Miller, 48 Hun, 232. No evidence was introduced upon the trial of the case at bar upon the subject of notice or effort to give notice either to the consignee or to the plaintiff of the replevin proceedings or of de livery thereunder by the defendant to the sheriff, but the defendant assumed that the mere production of the records of that suit constituted a good defense. Such records alone are insufficient to establish the defense here interposed. Mierson v. Hope, 32 N. Y. Super. Ct. 561. The conclusion follows that in view of the omission to give notice, the mere taking by legal process does not exonerate the defendant from liability. There is no force in the contention that the Statute of Limitations defeats the plaintiff's claim, as the cause of action arose upon demand made between the 6th and 8th days of July, 1892, and this action was admittedly instituted on the 1st day of July, 1898. The judgment must be affirmed, with costs. FREEDMAN, P. J., concurs. Judgment affirmed, with costs. Misc.] Supreme Court, Appellate Term, February, 1899. WILLIAM B. PORTER, Respondent, v. ALFRED B. CREGAN, Appellant. (Supreme Court, Appellate Term, February, 1899.) A justice of the Municipal Court of the city of New York is given no power by the Greater New York charter, or by any other statute, to vacate a judgment entered by consent. APPEAL from an order of the Municipal Court of the city of New York, borough of Manhattan, second district, opening a judgment entered by consent. Jeroloman & Arrowsmith, for appellant. Ralph A. Kent, for respondent. LEVENTRITT, J. The plaintiff, pleading in contract, recovered a judgment against the defendant on the latter's oral consent expressed in open court on the return day of the summons. The judgment was signed by the court and duly entered. Thereafter the plaintiff, claiming to have adopted the wrong cause of action and desiring to plead in tort, obtained an order to show cause based upon an affidavit, seeking to have the judgment in his favor vacated and set aside and the cause restored to the calendar for trial. The defendant opposed, but the justice granted the motion. From the order thereon entered this appeal is taken. We are satisfied that the justice had no power to make the order in question. It is a clear and salutary principle that inferior jurisdictions, not proceeding according to the course of common law, are confined strictly to the authority given them. They can take nothing by implication but must show, in every instance, the power expressly conferred. Jones v. Reed, 1 Johns. Cas. 20. Section 1351 of the act creating the Municipal Courts (Greater New York charter, Laws of 1897, chap. 378), provides that they "shall have the jurisdiction, powers, duties and organization hereinafter prescribed." Supreme Court, Appellate Term, February, 1899. [Vol. 26. By section 1364 the jurisdiction of the Municipal Court in certain civil actions and proceedings is prescribed; but by it no authority over orders is conferred. * * * * * * * * * Section 1369, however, without containing any specific provision as to the justice's power to make orders, provides that “In so far as the same are consistent with this act, all provisions of law relating to the procedure and organization * * practice, proceedtrials ings * judgments and all matters incidental to the same, the powers and duties of justices * * * which shall be in force on the 31st day of December, 1897, shall apply to and control and govern the same in the said municipal court and the branches thereof in each district." Unless, then, the justices of the District Courts had power on the 1st day of December, 1897, to make an order vacating and setting aside a judgment entered on the consent of the parties, none now exist. In other words, the measure of authority vested in the justices in this regard under the charter, is the same as that vested in the justices of the Districts Courts of the old city of New York, and is defined by section 1367 of the Consolidation Act, as amended by chapter 748 of the Laws of 1896. An examination of this section, of the amendments and of the decisions rendered, fails to disclose authority to make the order under consideration. Prior to the amendment of section 1367 of the Consolidation Act, a District Court justice became functus officio after rendering his judgment and the only remedy of the aggrieved party was by appeal. People v. Callahan, 7 Daly, 435; Carpenter v. Willett, 28 How. Pr. 225. Nor did a justice have the power to make an order setting aside a judgment, or the verdict of a jury, or granting a new trial. Schwartz v. Wechler, 2 Misc. Rep. 67; Nicholson v. Moriarty, 13 id. 244. Before the passage of chapter 748 of the Laws of 1896, a justice did have the power to make an order opening a default made in any action tried before him (Consolidation Act, § 1367, Laws of 1882, chap. 410; Edel v. McCone, 10 N. Y. Supp. 538); that was the limit of his power over judgments. By chapter 748 of the Laws of 1896, however, those powers were enlarged as follows: "The court, or any justice holding the same, may at any time, upon motion, made upon such notice as the justice may direct, open any default, and set aside, vacate or modify any judgment entered thereon, and set the cause down for pleading, hearing or trial as the Misc.] Supreme Court, Appellate Term, February, 1899. * * case may require upon such terms and conditions as the court or justice may deem proper. A motion to set aside the verdict of a jury and vacate or modify any judgment * rendered upon a trial by the court without a jury, may be made for the causes specified in section 999 of the Code of Civil Procedure." Thus the authority over a judgment entered is very clearly defined. No provision is made for opening a judgment entered on And inasmuch as the justice was without power to enter an order opening such a judgment before the amendment of section 1367 of the Consolidation Act, the conclusion is inevitable that he has none now. The order vacating and setting aside the judgment entered by consent must, therefore, be reversed, with costs to the appellant. FREEDMAN, P. J., and MACLEAN, J., concur. Order reversed, with costs and disbursements to appellant. WILLIAM STERN, Respondent, v. JOHN C. CHILDS, Appellant. (Supreme Court, Appellate Term, February, 1899.) Foreign corporation When the defense, that cannot sue because it is doing business without having paid a license fee, is not available. The statute (Laws of 1896, chap. 908, § 181), declaring that a foreign corporation cannot maintain an action in the courts of the state of New York without obtaining a receipt for the license fee, imposed by the statute, within thirteen months after beginning business within the state, cannot be successfully invoked as a defense to an action brought by the assignee of a foreign corporation which has not paid the license fee in question, where the defendant merely introduces inconclusive testimony tending to show that the foreign corporation was doing business within this state at the time of the trial of the action, and offers no proof in this regard as to any anterior period. APPEAL from a judgment in favor of the plaintiff of the Municipal Court of the city of New York, borough of Manhattan, for the first district. Bernard Naumberg, for appellant. C. N. Ironside, for respondent. Supreme Court, Appellate Term, February, 1899. [Vol. 26. LEVENTRITT, J. The pleadings are written. The plaintiff, as assignee, brings this action to recover the unpaid balance for goods sold and delivered to the defendant by an Illinois corporation. The defendant resists recovery upon the plea that the plaintiff's assignor is a foreign corporation and as such has been doing business in the city of New York, continuously for more than thirteen months; that it has a present place of business in said city and that it has failed to pay to the state treasurer the license fee and obtained the receipt therefor, as required by the statute. The sole question litigated was the applicability of that statute, which reads as follows: "License tax on foreign corporations. Every foreign corporation, joint-stock company or association, except banking, fire marine, casualty and life insurance companies, and corporations wholly engaged in carrying on manufactures in this state, cooperative fraternal insurance companies, and building and loan associations, authorized to do business under the general corporation law, shall pay to the state treasurer, for the use of the state, a license fee of one-eighth of one per centum for the privilege of exercising its corporate franchises or carrying on its business in such corporate or organized capacity in this state, to be computed upon the basis of the capital stock employed by it within this state during the first year of carrying on its business in this state. No action shall be maintained or recovery had in any of the courts in this state by such foreign corporation without obtaining a receipt for the license fee hereby imposed within thirteen months after beginning such business within the state." Laws of 1896, chap. 908, § 181. The only evidence disclosed by the record upon that issue, is the Illinois certificate of incorporation and the New York certificate of nonpayment of the license fee. There was random and inconclusive testimony introduced to show that the corporation was doing business in this state at the time of trial but no proof was offered as to any anterior period. The facts proven do not render a foreign corporation amenable to the provisions of the statute quoted. Hence the judgment must be affirmed for failure to establish the defense. Judgment affirmed, with costs to the respondent. FREEDMAN, P. J., and MACLEAN, J., concur. Judgment affirmed, with costs. |