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(Vol. 86.

make use of them without his consent. But he testifies that he filed these plans and specifications with the building department as a preliminary to securing the consent of that department for the construction of the building, and that, this consent having been given, he superintended the construction of the house under these plans, receiving therefor something over $500. The law protects liim in the first publication of his work; it guarantees him the right to receive compensation for his labor, and when this has been accoinplished the purpose of the rule of law has been served, and at common law he can have no further rights in the work. This is clearly shown in the case relied upon by the appellant, for it says (p. 536): “The author of a literary work or composition has, by law, a right to the first publication of it. He has a right to determine whether it shall be published at all, and if published, when, where, by whom, and in what form. This exclusive right is contined to the first publication. When once published it is dedicated to the public, and the author has not, at common law, any exclusive right to multiply copies of it or to control the subsequent issues of copies by others.” (See Callaghan v. Myers, 128 U. S. 617, 657; Jewelers' Mer. Agency v. Jewelers Pub. Co., 155 N. Y. 241, 251.) The general rule is laid down by Copinger on Copyright (3d ed. p. 119), that to expose for sale is to constitute publication. It is not necessary that the book or other work be actually sold ; it is sufficient if it is offered to the public. The act of publication is the act of the author (Jewelers' Mer. Agency v. Jewelers' Pub. Co., supra, 251), and when the latter has permitted the work to be filed in a public office as a step in furnishing the basis on which he is to receive compensation from his work we are of opinion that, under the authorities cited above, the plaintiff has published his work to the world and can have no exclusive right in the design or in its reproduction. This would seem to be specially true where the plans and specifications have been used in the construction of a building and the building has been exposed to the gaze of the public and has afforded the plaintiff the full value of his services. There is no evidence in this case that the defendant or any one acting in his behalf has copied the plans and specifications on file in the building department. The plaintiff testifies that they were filed there and so far as he knows lave remained there since the date of the original filing, and the building inspector, App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. called by the plaintiff, testifies that the plans and specifications have not been copied by any one while they were in his office, and the nearest approach to evidence is the declaration of the plaintiff that he has the evidence of his own senses that the plans were copied from his plans. It seems to us that all of the property rights in these plans, if they had any value as property after the publication, belonged to Litson rather than to the plaintiff in this action, and that, under the evidence, there was a complete failure to establish a cause of action.

The judgment appealed from should be affirmed, with costs. GOODRICH, P. J., HIRSCHBERG, JENKS and HOOKER, JJ., concurred. .

Judgment affirmed, with costs.

In the Matter of the Application of Juliet DENTON, Respondent,

for the Sale of the Real Estate of HENRY E. VALENTINE, Deceased, for the Payment of his Debts.


Service of a surrogate's citation by publication - eight days need not elapse between

the last publication and the return day.

Where service of a citation, issued in a proceeding in a Surrogate's Court, is

made by publication pursuant to section 2524 of the Code of Civil Procedure, it is not necessary that the publication should be completed eight days before the return day of the citation.

APPEAL by Amelia M. Valentine from an order of the Surrogate's Conrt of Kings county, entered in said Surrogate's Court on the 7th day of April, 1903, denying the appellant's motion to dismiss the proceeding

George W. McKenzie and George P. Beebe, for the appellant.

John J. Sullivan, for the respondent.


The petitioner instituted this proceeding for the sale of the real estate of Henry E. Valentine, deceased, for the payment of his debts. Amelia M. Valentine, as an heir at law, appeared specially for the


(Vol. 86. purpose of raising objection to the sufficiency of the service of the citation, which was made by publication, pursuant an order of the Surrogate's Court. The publication is conceded to have been made properly and for a period of six weeks before the return day, and the question presented here is whether it was necessary that the full six weeks' publication should have been completed eight days before such return day of the citation. The theory of the appellant is that as section 2520 of the Code of Civil Procedure, relating to personal service of the citation, requires that the same shall be served, if within the county of the surrogate or an adjoining county, at least eight days before the return day thereof, it is necessary, where the service is by publication, that the same should be completed at least eight days prior to the return day. As we read section 2520 of the Code of Civil Procedure it relates only to the personal service provided for by that section. Section 2521 provides for a substituted service, and sections 2522 and 2523 provide for a service at the discretion of the surrogate, and by section 2524, where this discretion is exercised, it is provided that the service shall be by publication in two newspapers,

not less than once in each of six successive weeks, or, at the option of the petitioner, by delivering a copy of the citation, without the State, to each person so named," etc. By section 2519 of the Code of Civil Procedure it is provided that “a citation must be made returnable upon a day certain, designated therein, not more than four months after the date thereof;” and we are of opinion that there is no justification for reading into section 2524 a requirement that the publication of six weeks should be completed eight days before the return day of the citation. Ample provision is made, not only for the full publication before the return day, but for mailing a copy of the citation, which is to be deposited in the mail, on or before the first publication, properly inclosed and postage prepaid, so that there is every presumption of notice a sufficient length of time in advance to permit of every person being present who has any interest in the proceeding, and to require an additional space of eight days would serve no useful purpose. In the matter of a personal service it is not actually required that the person shall have had eight days' notice; the requireinent of section 2520 is that a copy thereof shall be delivered to the person to be served, " or by leaving a copy at his residence, or the place where he

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App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. sojourns, with a person of suitable age and discretion, under such circumstances, that the surrogate has good reason to believe that the copy came to his knowledge in time for him to attend at the return day," and surely where the party has been notified by mail six weeks in advance, and the notice has been properly published for the full statutory period, it is not to be presumed that the Legislature intended that there should, of necessity, be eight days between the final publication and the return day. If such had been intended it would have been a very simple matter to have so provided, and the Legislature not having found it worth while to make such a provision, and there being no obvious necessity for it in preserving the rights of the parties, it is not for the court to add to the requirements of the statute. As was said in Karst v. Gane (136 N. Y. 316, 321), “in recent times courts are less disposed than formerly to depart from or qualify the plain words of a statute in favor of what is termed an equitable construction in order to take particular cases out of its operation upon some supposed view of policy not indicated in the act itself,” and where there are no equitable considerations it would seem to follow that there should be nothing added to the statute. The exact question does not seem to have been before the courts of this State, but there has been an assumption that where the particular requirements of the statute had been complied with, there was no occasion for conforming to other provisions of the Code, as in Matter of Macaulay (91 N. Y.574, 578), and we conclude that the Legislature did not intend to thus interfere with the discretionary power of the surrogate to designate the day on which the return should be made in the case of service by publication. No good reason suggests itself why this should be done, and there is no occasion for a forced construction in this case.

The order appealed from should be affirmed, with costs.


Order affirmed, with ten dollars costs and disvursements.


(Vol. 86.

In the Matter of the Application of Patrick J. McCORMACK, Appel

lant, to Compel NATHANIEL VALENTINE and Others, Respondents, to Convene as a Board of Registration and Place his Name upon the Register of Electors of the First Election District of the Seventh Ward of the City of Yonkers.

Residence for the purpose of voting mere attendance at a seminary, without inde

pendent acts showing an intention to change the former residence, is ineffective.

A student at a seminary in the State of New Cork, who, before taking up his

abode at the seminary, had a residence elsewhere within the United States, is not entitled to vote in the election district in which the seminary is situated, unless it appears that, by some unequivocal act, independent of his attendance

at the seminary, he has abandoned such other residence. Letters written by such a student to the mayor of the city, and to the board of

registry in the election district in which the seminary is located, stating that it was his intention when he became a student at the seminary to make it his actual and legal residence, but which do not suggest any fact showing such a change of residence other than his abode at the seminary, are insufficient to effect a change of residence.

Appeal by the petitioner, Patrick J. McCormack, from an crder of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 24th day of October, 1902, denying his motion to compel the board of registration of the first election district of the seventh ward of the city of Yonkers to place his name upon the registration list.

W. Harry Sefton, for the appellant.

1. J. Beaudrias, for the respondents. WOODWARD, J.:

This is a proceeding under the provisions of section 31 of chapter 909 of the Laws of 1896, by Patrick J. McCormack, a student of St. Joseph's Seminary at Dunwoodie, N. Y., to compel the board of registry of the first election district of the seventh ward of the city of Yonkers to enter his name as an elector. The moving papers do not disclose the original residence of the petitioner; they recite that he was born on the 10th day of December, 1880; "that

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