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(Supreme Court, Appellate Division, Second Department. November 15, 1912.) CARRIERS ($ 318*)—PASSENGER'S ACTION FOR INJURIES-EVIDENCE-SUFFI

CIENCY.

Defendant's evidence that plaintiff was injured while attempting to alight from a moving car was not overcome by her evider:ce that she stepped from an open car onto the running board to let another passenger off, that the car started while she was on the running board, and that she was thrown off, where all the witnesses agreed that the car was running at an ordinary rate of speed, and there was no suggestion of any jerk, jolt, rounding of a curve, swaying, or other unusual motion, especially where she swore to two complaints giving very different theories of the accident from that shown by her evidence.

[Ed. Note.--For other cases, see Carriers, Cent. Dig. 88 1270, 13071314; Dec. Dig. § 318.*]

Woodward, J., dissenting.

Appeal from Trial Term, Kings County.

Action by Anastasia Cross against the Coney Island & Brooklyn Railroad Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. On reargument. Reversed.

For order for reargument, see 137 N. Y. Supp. 1116.

Argued before JENKS, P. J., and HIRSCHBERG, BURR, WOODWARD, and RICH, JJ.

I. R. Oeland, of Brooklyn (H. E. J. MacDermott, of Brooklyn, on the brief), for appellant.

Frank F. Davis, of New York City, for respondent.

The car

HIRSCHBERG, J. The plaintiff has recovered a judgment for injuries sustained by her while a passenger on one of the defendant's trolley cars on Smith street, in the borough of Brooklyn, at the middle of the block between State street and Atlantic avenue. was an ordinary open one, with running boards on the side, and was crowded with passengers. The plaintiff was 23 years old at the time of the accident, and in company with another young lady was returning to Brooklyn from a shopping trip in Manhattan, and boarded the crowded car at Brooklyn Bridge. She was standing between the seats at about the middle of the car, and was near the right side running board. When the car reached State street, it was stopped in order to let a passenger off who was at the left of the plaintiff, and in order to let the passenger alight the plaintiff stepped down on the running board and held on by the stanchion. After the passenger had alighted the car was started again, and when it reached the middle of the block between State street and Atlantic avenue the plaintiff fell to the ground and receiv. d the injuries of which she complains.

The cause of the plaintiff's fall is not disclosed by the evidence, beyond the general statement or suggestion that she held on as long as she could and until she was exhausted. The distance from State street to where she fell was only 100 feet. The witnesses on both For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

137 N.Y.S.--63

*

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sides agree that the car was running at an ordinary rate of speed. There is no suggestion of a jerk, a jolt, the rounding of a curve, or swaying, or any other unusual motion. No explanation is made of why the plaintiff did not step back in the body of the car between the seats, or attempt to do so, before she fell, excepting her statement that the car started suddenly at State street before she had time to do so then; nor is any statement made as to whether her feet slipped, or her hands slipped, nor, in fact, is there any statement made as to what caused the fall, beyond the fact that it occurred. Her companion testified in reference to the accident as follows:

"She was on the running board while the car was going the distance between where it started and where she fell off. As the car moved that distance down the street, she had her hand onto the car and was holding to that, with both feet on the running board, standing up straight on both her feet.

* After the accident, after she fell, the speed seemed greater. From where it began started down, to where she actually went off, the usual speed I think there.

* The car was filled, so that there were passen. gers standing on the running board. * * It was the rush hour. Miss Cross still standing with her hand on the stanchion and both feet on the running board; standing perfectly straight till the car gut in the middle of the block, when she fell. The car going at its ordinary rate. I saw it start up in the ordinary way, and go ahead in the ordinary way. I think that at the time she was standing on the running board there must have been some men standing on the running board in front of her and some behind her."

The plaintiff's theory of the accident, in her complaint and in her amended complaint, was very different from the occurrence disclosed by the evidence. In her original complaint, duly verified, the allegation was as follows:

“That the said car was brought to a full stop at the intersection of State street and the said Smith street, and the plaintiff attempted to alight there. from; that while plaintiff was in the act of alighting therefrom, and was standing upon the running board of said car for that purpose, said car neg. ligently, carelessly, suddenly, and without warning to plaintiff was put in motion by the defendant's said motorman and conductor."

In her amended complaint, duly sworn to by her, the allegation was as follows:

“Plaintiff stepped from the floor of the same car to the running board thereof to allow other passengers to alight from the said car, owing to the crowded condition of the said car, while the said car was stopped, and plaintiff was in the act of stepping to the street when the said car started forward suddenly and violently and without warning to the plaintiff, and as a result thereof the plaintiff was dragged for some distance and thrown with great force to the ground."

She denied upon the witness stand that she had verified the amended complaint in that form; but, on its production being called for, it was conceded to be correct in substance as above quoted. It is quite apparent in the circumstances that the plaintiff has not established her case by a fair preponderance of the evidence. On the part of the defense, evidence was given tending to establish that the accident was occasioned by the plaintiff's attempting to alight while the car was in motion. In view of the false allegations of her verified pleadings, it cannot be said that such proof was overcome by the mere

statement of the fact on her part that she fell, without some evidence tending to indicate that the fall was occasioned by some actual negligence on the part of the motorman or conductor in the running of the car, aside from the mere fact that it was running in the usual way and at the ordinary speed.

The judgment and order should be reversed.

Judgment and order reversed on reargument, and new trial granted; costs to abide the event. All concur, except WOODWARD, J., who dissents.

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STATE BANK V. HERRMANN et al. (Supreme Court, Appellate Division, First Department. November 8, 1912.) 1. PLEADING ($ 323*)—BILL OF PARTICULARS- AMENDMENT OF COMPLAINT.

Where the complaint was superseded by an amended complaint pending a motion for bill of particulars, and the order granting the motion re ferred to the amended complaint, the motion should be regarded as relating to it, and not to the pleading it superseded.

(Ed. Note.-For other cases, see Pleading, Cent. Dig. 88 976–979; Dec.

Dig. § 323.*]
2. PLEADING ($ 317*)—BILL OF PARTICULARS—PUBLIC DOCUMENTS.

Where plaintiff's amended complaint pleaded a written contract, under which plaintiff claimed according to its legal effect, defendant was not entitled to a bill of particulars requiring plaintiff to annex copies of the contract, and also to give the dates of the allowance of certain claims for excess customs duties, so far as the dates were matters of record in the office of the United States Board of General Appraisers at the city of New York, or the New York custom house, or other public office within the city, though, if such information was furnished, it might enable defendant to demur.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. $$ 954–962; Dec. Dig. § 317.*) Appeal from Special Term, New York County.

Action by the State Bank against Henry Herrmann and others. From part of an order as resettled, requiring plaintiff to make the complaint more definite and certain, it appeals. Reversed, and motion denied.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, MILLER, and DOWLING, JJ.

Walter T. Kohn, of New York City, for appellant. C. H. Payne, of New York City, for respondent. · PER CURIAM. [1] After the motion to make it more definite and certain was made, the original complaint was superseded by an amended complaint. However, the point does not appear to have been raised, and, as the amended complaint is recited in the order appealed from, the motion is doubtless to be regarded as relating to it, and not to the pleading which it superseded.

[2] So far as appealed from, the order requires the plaintiff to annex to the complaint a copy of the assignment under which it claims, and to state the dates of the allowance of certain claims for *For other cases see same topic & & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

excess customs duties, so far as such dates "are matters of record in the office of the United States Board of General Appraisers at the city of New York, or in the custom house at the city of New York, or in any other public office within the said city.” The plaintiff cannot be required to search public records for information for his adversary, and, while the respondent thinks that he might be in a position to demur to the complaint if the order is complied with, that does not justify an order to make more definite and certain a complaint which contains a plain and concise statement of the facts constituting the cause of action, or to require the plaintiff to annex to such a complaint copies of a written document, instead of properly pleading it, as was done in this case, according to its legal effect

. The order, in so far as appealed from, is reversed, with $10 costs and disbursements, and the motion to that extent denied.

CALLAHAN V. GERBEREUX et al. (Supreme Court, Appellate Division, First Department. November 8, 1912.) JUDGMENT (8 490*)--COLLATERAL ATTACK-PAROL EVIDENCE.

A plaintiff, suing to foreclose a mechanic's lien, may show that he was not personally served with summons and complaint in an action by a third person, suing to foreclose his lien, and that he is not bound by the judgment in such action, adjudging that he is not entitled to a lien, though such judgment recites that he was served with summons and complaint, since want of jurisdiction may always be set up against a judgment when ught to be enforced, or when any benetit is claimed under it.

[Ed. Note. For other cases, see Judgment, Cent. Dig. $8926-928; Dec. Dig. $ 490.*] Appeal from Special Term, New York County.

Action by John Callahan againt Eugene Gerbereux and others. From a judgment of dismissal, entered on a decision after a trial at Special Term, plaintiff appeals. Reversed, and new trial ordered.

See, also, 136 N. Y. Supp. 1132.

Argued before INGRAHAM, P. J., and LAUGHLIN, SCOTT, MILLER, and DOWLING, JJ.

James E. Duross, of New York City, for appellant.

Warren McConihe, of New York City, for respondent Morris Levin.

Edward J. Hogerty, of New York City, for respondent Levin & Levin Contracting Co.

DOWLING, J. This action is brought for the foreclosure of a mechanic's lien upon premises located in Sullivan street, New York City. Five liens were filed against this property—the first by Arthur J. Panoff, for $650, on April 12, 1910, and the fourth by the present plaintiff, for $312, on April 18, 1910. On June 16, 1910, Panoff commenced an action to foreclose his lien in the Supreme Court, New York county, and joined as defendants therein all the necessary par. ties, including this plaintiff. The summons, complaint, and notice of pendency of action in said suit were duly filed in the office of the For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

clerk of the county of New York on June 18, 1910. Thereafter plaintiff commenced this action on July 5, 1910, making parties defendant all those who were such in the Panoff action, together with Panoff, and filed the summons, complaint, and notice of pendency of action therein on July 6, 1910. The lien in this suit was discharged by the giving of an undertaking on July 14, 1910. The defendants served answers in this action, setting up the pendency of the Panoff action, and Panoff by his answer set up an alleged service of the summons and complaint in his action on June 23, 1910. This answer was served July 16, 1910.

The Panoff action, to foreclose the first lien, proceeded to trial on March 1, 1911, and the justice then presiding made his decision wherein, among other things, he found that the summons and complaint in that action had been served on John Callahan personally on June 23, 1910, that he had waived his lien, and that plaintiff, among other things, was entitled to have the lien and notice of pendency of action filed by Callahan canceled of record. The judgment set forth the default of Callahan in appearing or pleading, and directed the cancellation of record of the lien and lis pendens filed by him. The judgment roll in the Panoff action contained the affidavit of service on Callahan, but no notice of appearance or pleading by him. Thereafter, on April 28, 1911, the trial of this action came on to be heard. Defendants then offered in evidence the judgment roll in the Panoff action, including the affidavit of service on Callahan. It was received; but when plaintiff offered evidence to impeach the affidavit of service, and to show that in fact service was never made upon John Callahan, but upon his son, Joseph Callahan, the evidence was excluded, on defendants' objection that the judgment of the court could not thus be collaterally attacked. The complaint in this action was thereupon dismissed.

It was error to refuse to permit plaintiff to show that he had not been personally served with the summons and complaint in the Panoff suit. In Ferguson v. Crawford, 70 N. Y. 253, 26 Am. Rep. 589, it was held that a recital in a judgment roll in an action for foreclosure that a defendant was served with process and appeared therein is not conclusive, and does not preclude such defendant, in an action brought by him to foreclose a junior mortgage, from showing that he was not in fact served, and that he did not appear; that, under the system of practice established by the laws of this state, the want of jurisdiction may always be set up against a judgment, when sought to be enforced, or when any benefit is claimed under it, and the bare recital of jurisdictional facts in the record of the judgment of any court is not conclusive, but only prima facie evidence, and may be disproved by extrinsic evidence. This rule has been followed, to cite but a few cases, in Johnston v. Mutual Life Ins. Co., 104 App. Div. 550, 93 N. Y. Supp. 1052; Matter of McGarren, 112 App. Div. 503, 98 N. Y. Supp. 415; Mischner v. Altman, 145 App. Div. 251, 130 N. Y. Supp. 31.

The judgment appealed from will therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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