and 132 New York State Reporter

'Mary J. Stockton' as one of the defendants in this action." No amended notice of pendency of action was filed, nor was any amended or supplemental summons issued or served. The court said:

"The person sued by the wrong name never appeared, and, unless the court obtained jurisdiction, it is difficult to determine upon what principle it could amend and thereafter proceed to determine the rights of the parties. If here, intending to sue Mary J. Stockton, the summons had included the name of Emma J. Brown, it would not be claimed in a suit intended to affect the former, and in which she was actually served with the summons directed to Emma J. Brown, that the court, without her appearance, thereby acquired jurisdiction over her. 'Emma J. Stockton' may be nearer to the name of the person intended than 'Emma J. Brown,' yet, if it is sufficient merely to have the right persons served, regardless of having them correctly designated in the summons, then seemingly there would be nearly as strong argument in favor of sustaining the jurisdiction of the court in one case as the other. Mary J. Stockton would be no more required to attend a summons issued against Emma J. Stockton than she would be if it were issued against Emma J. Brown. In each instance it is directed to another person”—and held the title unmarketable.

Upon appeal to the Court of Appeals (167 N. Y. 421, 60 N. E. 738, 53 L. R. A. 562) the judgment of this court was unanimously reversed; the learned chief judge concluding his opinion with these words:

"We have not alluded to the decisions of the several Special and General Terms which the Appellate Division felt called upon to follow. Their foundations were laid long before sections 721 and 723 of the Code came into existence as marking features of a distinct legislative policy to stop the sacrifice of things of real substance upon the altar of mere technicality, and hence a discussion of them can serve no useful purpose."

It seems to me that beyond question it would be "the sacrifice of things of real substance upon the altar of mere technicality" to destroy a title to real estate because an order required the deposit in the post office of a notice of the object of the action, instead of a copy of the complaint, when, as matter of fact, not only the notice, but the complaint as well, and all of the other papers required by the Code to be served, were so deposited. An order may not be made nunc pro tunc which will supply a jurisdictional defect by requiring something to be done which has not been done; but, where the thing itself has been done, when the object looked at by the Code in requiring it to be done has actually been accomplished, the power to make the order express the fact does exist. The object in requiring that the order should contain a direction that the complaint should be deposited in the post office was that the complaint should be so deposited in order that the defendant might receive it and be placed in position to defend his rights upon the information so conveyed that they were attacked. That was done in the case at bar, and the proper and necessary papers were sent to the then present address of the defendant, which address appeared upon the recorded assignment of the mortgage in question, recorded only seven days before the commencement of the suit, and stated by her attorney who attended to said assignment to be her then address.

Considering the facts in the case at bar, and considering not only the provisions of sections 721, 722, and 723 of the Code of Civil Pro

cedure, but section 3345 as well, which expressly provides that "the rule of the common law that a statute in derogation of the common law is strictly construed does not apply to this act," and applying the doctrine of the Court of Appeals as expressed in the Stuyvesant Case, supra, I am of the opinion that the objections to the title are not well taken, and that judgment should go for the defendant upon this submission, with costs. All concur, except INGRAHAM, J., who dissents.

INGRAHAM, J. (dissenting). I do not think that a purchaser should be compelled to accept this title. The order of publication concededly fails to comply with section 440 of the Code of Civil Procedure. That section is mandatory and provides that the order must contain a direction that on or before the day of the first publication the plaintiff deposit in a specified post office one or more sets of copies of the summons, complaint, and order, contained in a securely closed postpaid wrapper, directed to the defendant at a place specified in the order. This is not an order of the court, but an order of a judge, and it has been many times held that the order, to give to the court jurisdiction in the action, must strictly comply with this mandatory provision of the statute. The summons was published under this order, and the sole jurisdiction of the court to subsequently decree a foreclsoure of the mortgage and a sale of the defendant's property, who was sought to be served under this order, is the publication of the summons as therein directed. This defendant is not now before the court, and the judgment in this action would not be binding upon her. The purchaser was entitled to a marketable title, free from serious doubt. I do not think that a title based upon a judgment entered in an action where the summons was served upon the owner of the equity of redemption pursuant to an order which fails to comply with this section of the Code is a marketable title. The order amending the order of publication entered long after the judgment was entered, not made by the judge who signed the original order, I do not think cures the defect, if the failure of the original order of publication was insufficient to give the court jurisdiction in the action.

I think therefore that, as the plaintiff should not be compelled to take this title, judgment should be directed for the plaintiff upon this submission

(112 App. Div. 895)

NIEWENHOUS v. MANHATTAN RY. et. al.

(Supreme Court, Appellate Division, First Department. March 9, 1906.) TRIAL INVOLUNTARY NONSUIT-POWER TO DISMISS.

In an action for injury to property by interference with the easements of access, light, and air, a dismissal of the complaint was erroneous, where the plaintiff's proof showed that he was entitled to some fee damage, though he failed to establish that he had suffered any diminution in rental value.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, § 360.]

Appeal from Special Term, New York County.

Action by Sisbrand Niewenhous against the Manhattan Railway

and 132 New York State Reporter

and another to recover for injury to property by interference with the easements of access, light, and air. From a judgment dismissing plaintiff's complaint on the merits, plaintiff appeals. Reversed.

Argued before O'BRIEN, P. J., and PATTERSON, McLAUGHLIN, LAUGHLIN, and HOUGHTON, JJ.

Vincent P. Donihee, for appellant.

J. Osgood Nichols, for respondents.

PER CURIAM. The plaintiff's proof failed to establish that he had suffered any diminution in rental value, but we think it did show that he was entitled to some fee damage. A dismissal of his complaint was, therefore, error.

The judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event.

(111 App. Div. 669)

In re RICKETTS.

(Supreme Court, Appellate Division, First Department. March 9, 1906.) 1. MUNICIPAL CORPORATIONS-OFFICERS-PROMOTION-CIVIL

TUTIONAL LAW.

SERVICE-CONSTI

A rule of a municipal civil service commission requiring a specified period of service in the next lower grade before examination for promotion does not violate Const. N. Y. art. 5, § 9, providing that promotions in the civil service shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive.

2. SAME-VALIDITY.

A rule of the civil service commission of New York City, requiring applicants for examination for promotion to have served a stated period in the next lower grade does not violate Laws N. Y. 1899, p. 805, c. 370, § 15. providing that promotions shall be based on merit and competition, as the section further provides that promotions shall be based on the superior qualifications of the person promoted as shown by his previous service. 3. SAME CIVIL SERVICE COMMISSION-POWERS.

Under the New York civil service law, Laws 1899, p. 803, c. 370, § 13, subd. 6, providing that a municipal civil service commission may refuse to examine an applicant who lacks any of the established preliminary requirements, the commission has power to require applicants for examination for promotion to have served a stated period in the next lower grade. 4. SAME CIVIL SERVICE RULE-REASONABLENESS.

A rule of a municipal civil service commission requiring applicants for examination for promotion to have served for not less than six months in the next lower grade is reasonable and proper.

5. CONSTITUTIONAL LAW-JUDICIAL POWERS-REVIEW OF CIVIL SERVICE RULES. The court has power to review a rule of a municipal civil service commission setting up requirements for examination for promotion in the civil service and to declare the rule invalid if it is unreasonable and improper.

Appeal from Special Term, New York County.

Mandamus by George F. Ricketts against William F. Baker and others, composing the municipal civil service commission of the city of New York. From an order denying the writ, petitioner appeals. Affirmed.

Argued before O'BRIEN, P. J., and INGRAHAM, McLAUGHLIN, CLARKE, and HOUGHTON, JJ.

Weed, Henry & Meyers (Richmond Weed, of counsel), for appellant.

William B. Crowell (Theodore Connoly, on the brief), John J. Delany, Corp. Counsel, for respondents.

CLARKE, J. The appellant is an assistant foreman in the fire department of the city of New York. He applied to the Special Term of the Supreme Court for a writ of mandamus directed to the commissioners composing the municipal civil service commission of the city of New York, requiring them forthwith to permit him to enter and take part in a certain examination for promotion to the office of foreman in the fire department of said city, held by said commission on or about the 6th day of December, 1905, to examine him for said office, and to rate his merit and fitness for promotion to said office pursuant to law, and to certify his name, if he be found eligible for such promotion, to the fire commissioner of said city, in his appropriate place, upon the eligible list made up as a result of said examination. The appellant alleged in his petition that he had been duly appointed to the position of fireman February 1, 1896, and became, prior to January 1, 1899, a fireman of the first grade, and on July 19, 1905, was duly promoted, pursuant to due examination and certification, under the civil service. law and rules, to the position of assistant foreman. He alleges that upon application made by the fire commissioner, the civil service commission in the month of February, 1905, called an examination for the purpose of examining candidates for promotion to the position of foreman in the fire department, and that numerous persons eligible to be examined were notified of the time and place of such examination; that the municipal civil service commission has declined to recognize petitioner's rights to be examined or to permit him to enter the examination, upon the ground that he has not served for six months in the position of assistant foreman, as required by rule 15, subd. 2, of the rules of the municipal civil service commission, adopted and promulgated December 4, 1903, which provides that:

"Examination for promotion shall be ordered as often as may be necessary to meet or to anticipate the needs of the higher grades, and so far as practicable shall be held periodically. Except where otherwise provided by law, such examination shall be open, in each case, to all persons who shall have served with fidelity for not less than six months, in positions of the same group or general character, in the grade next lower, in the same department, office, or institution."

Subdivision 5 of said rule also provides that:

"No person shall be admitted to an examination for promotion, who lacks any preliminary qualification for the position to be filled, fixed by law, or by these rules.

The petitioner further alleged that the requirements of said rule 15, subd. 2, that said promotion examination shall be open only to persons. who shall have served with fidelity for not less than six months in positions in the grade next lower in the same department is invalid, and that other rules in pari materia in regard to rating are invalid and "de

and 132 New York State Reporter

prive your petitioner of his right to compete in said examination for promotion to the office of foreman and greatly prejudice him in his occupation and in his standing in the public service of the city of New York, and that they unlawfully restrict the competition for promotion to such position, and that they are arbitrary and unreasonable, and of no effect." The Special Term denied the writ, and the petitioner appeals. Appellant claims that the civil service commission had no power to establish the rule in question; that it is invalid and unconstitutional, in that it unlawfully restricts competition for promotion.

Section 9 of article 5 of the state Constitution provides that: "Appointments and promotions in the civil service of the state and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive. Law shall be made to provide for the enforcement of this section."

The existing civil service law, passed in obedience to that mandate of the Constitution, is chapter 370, p. 795, of the Laws of 1899. Section 10 of said act provides that:

"The mayor of each city in this state shall appoint and employ suitable persons to prescribe, amend, and enforce rules for the classification of offices, places, and employments in the classified service of such city, and for appointment and promotions therein and examination therefor *

*

not inconsistent with the Constitution and the provisions of this act, and shall amend the same from time to time. * * Such rules herein prescribed and established * * * shall be valid and take or continue in effect only upon the approval of the mayor of the city and of the state civil service commission. Subject to the provisions of this act and of said rules, the municipal commission of any city shall make regulations for and have control of examinations and registration for the service of such city and shall supervise and preserve the records of the same."

Section 6 of said act provides that:

"The rules prescribed by the state and municipal commissions pursuant to the provisions of this act shall have the force and effect of law."

Section 15 thereof provides that:

"Vacancies in positions in the competitive class shall be filled, so far as practicable, by promotion from among persons holding positions in a lower grade in the department, office or institution in which the vacancy exists. Promotions shall be based upon merit and competition and upon superior qualifications of the person promoted as shown by his previous service, due weight being given to seniority."

It thus appears that upon the commission is conferred the power to establish rules and regulations not inconsistent with the Constitution and the provisions of said act, which rules and regulations, upon approval by the mayor and the state civil service commission, have the force and effect of law. The rule providing for six months' service in the next lower grade does not offend any constitutional provision. The appellant claims that because the Constitution provides that "promotions · * * * shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive," it is a violation of the principle of competitive examination to require a period of service in the next lower grade before promotion. I find no such limitation in the Constitution.