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er the Snare & Triest Company was the real principal, and the Steel & Masonry Company but a “dummy” agent, instrument, and working tool. The appellants claim this was error. It is argued that as the Steel & Masonry Company was a distinct corporate entity, differently officered, it was incompetent to go into the question of the circumstances of its organization, and its usual scope of business, which was concerned exclusively with the jobs of the Snare & Triest Company and its stock control.

The case at bar is in many ways like that of McCherry v. Snare & Triest Co., 130 App. Div. 241, 114 N. Y. Supp. 674, affirmed 198 N. Y. 532, 92 N. E. 1090, where a controversy was litigated at the trial whether the Snare & Triest Company was the real principal, acting through a dummy corporation known as the Metropolitan Bridge & Construction Company, under an arrangement between them practically the same as that shown in this record with reference to the Steel & Masonry Company. I sat as trial judge in that action and recall its controversy very clearly. It was held there, necessarily, that it was competent to show that a corporation, apparently an independent subcontractor, was in reality but a dummy device or tool used to enable another corporation, as the true and secret principal, to carry on its manipulations as to hiring and directing of labor employed really for the purposes of the secret principal. This question came up again in McKenna v. Snare & Triest Co., 147 App. Div. 855, 133 N. Y. Supp. 107. There the Metropolitan Bridge & Construction Company was involved, and the plaintiff recovered a judgment on the theory that the Snare & Triest Company was the true employer. That judgment was reversed on several grounds, viz., errors in the admission of evidence and errors in the charge of the trial court. There are several opinions; the prevailing one by Laughlin J., and a dissenting opinion by Miller, J. There is much consideration in both opinions on this very question now before us on this appeal.

The appellants rely upon the McKenna Case as deciding flatly that, where the Metropolitan Bridge & Construction Company formally hired and paid an employé for the doing of labor on a job which it was carrying on under a formal contract with the Snare & Triest Company, for the benefit of that company ultimately, it was improper to go behind the appearances, and to show that the Metropolitan Bridge & Construction Company was but a mere device and tool of the Snare & Triest Company; but that case, whatever was said, was not decided on that theory.

My opinion is that this question was properly submitted to the jury, and the plaintiff's evidence in regard to the actual conditions was competent.

[5, 6] Third. We come now to the most perplexing question in the case, viz.: Was the plaintiff the lawful wife of the decedent, and are her children his lawful issue?

The plaintiff and the decedent began to cohabit together in Italy. When this cohabitation began, the plaintiff had a living husband and the decedent a living wife, who continued to live with the decedent in the same house with the paramour. Thereafter the decedent and

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the plaintiff came to America and cohabited together in all respects as if they were lawful husband and wife. Children were born and baptized with the father's name, the decedent generally referred to her as his wife, and she was known as such to the neighborhood. This cohabitation began illicitly; both parties were not free to contract a lawful marriage during the lifetimes of their lawful spouses. While this couple were living together for some years, the decedent's lawful wife died in Italy. This left him free to contract a marriage; but his concubine was not free, if her original husband was still presumably alive somewhere in South America, where he had gone many years before. Shortly after he went to South America, he wrote home once, sending a small sum of money, but then disappeared completely from the knowledge of his wife, and nothing was heard about him further for many years thereafter. Finally, as the plaintiff testified, she received a letter in 1910-1911 from her sister-in-law in Italy, informing her of the death of plaintiff's original husband by suicide, and that immediately thereafter the decedent and she, the impediments being removed, agreed together to be lawful husband and wife. If this couple, after the removal of the impediments, became by agreement lawful husband and wife, then their previously born children became legitimatized (chapter 531, Laws of 1895); if not, then said children are illegitimate.

There was much industry in the respective briefs by way of citation and quotation from the very numerous reported precedents, especially as to the rule of prima facie presumption that should apply. Yet the plaintiff's claim to be the lawful wife of the decedent does not rest alone upon prima facie presumptions, as she has given evidence as to a nonceremonial marriage after all mutual impediments were apparently removed. It is argued by the appellants that a merely verbal contract of marriage could not have been made lawfully in 1911. The respondent cites Matter of Hinman, 147 App. Div. 452, 131 N. Y. Supp. 861, and 206 N. Y. 653, 99 N. E. 1108, as holding to the contrary of appellants' contention. But the Court of Appeals did not pass upon that question, expressly excluding it from consideration. There is a statement in the opinion in 147 App. Div. 452, 131 N. Y. Supp. 861, to the effect advanced by the respondent; but it was not concurred in by the whole court, one justice concurring in the result” and one dissenting. In the case at bar the jury found that the decedent and the plaintiff had become lawful husband and wife by verbal agreement prior to 1902. This finding was based partly on the statute as to presumption of death, and that which authorizes a person whose spouse has disappeared, and has not been heard from or about for the period of five years, to contract in good faith a new marriage, which, however, may be voidable.

[1] The learned counsel for the appellants feels that he had a rather hard time in this case.

On the marriage question he was on a very unpopular side. The jury, or at least six of them, remonstrated with the court as to some language said to have been used by that counsel in his summing up, and declared that they had been “insulted” thereby. If this counsel had asked for a withdrawal of a juror and a

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152 N.Y.S.-3


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mistrial, his application should have been granted. But he did not so ask, and he took his chances. Now, this is an unusual case in its facts and the nature of the legal questions presented, but we see no imperative reasons calling for a reversal.

The judgment and order are affirmed, with costs. All concur.

(166 App. Div. 367)

DEAN v. BUTLER. (Supreme Court, Appellate Division, Third Department. March 3, 1915.) 1. PLEADING Cm 93—INCONSISTENT CLAIMS—REPLEVIN.

Where the evidence does not show clearly whether a colt was delivered to plaintiff as a gift, or merely to be kept during the winter, in replevin against defendant, who in some manner obtained possession of the colt, claims by plaintiff of ownership, or tbat he had a lien for the keep, are not inconsistent.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. $$ 189, 190; Dec.

Dig. Om93.] 2. ANIMALS On 26-LIEN FOR KEEP-Loss OF LIEN.

If one in possession of a colt has a lien for its keep, and voluntarily surrenders the colt, the lien is lost.

[Ed. Note.-For other cases, see Animals, Cent. Dig. $8 54-69; Dec. Dig. 26.]

Howard and Woodward, JJ., dissenting. Appeal from Tompkins County Court. Action by Lavina Dean against Kittie Butler. From a judgment of the County Court, reversing a judgment of a justice of the peace in favor of plaintiff, and granting a new trial before the same justice, plaintiff appeals. Judgment of County Court affirmed.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

J. J. McGuire, of Ithaca, for appellant.
Willard M. Kent, of Ithaca, for respondent.

JOHN M. KELLOGG, J. The action was in replevin to recover the possession of a colt alleged to have been wrongfully taken by the defendant. The first cause of action stated in the complaint proceeds upon the theory that the plaintiff was the owner of the colt. The second cause of action is based upon the theory that the plaintiff had wintered and pastured the colt for the defendant and that the plaintiff had a lien upon it therefor. The proceedings were quite informal from beginning to end. The jury determined that the colt be given to the defendant and that the plaintiff be given $60 for the care and keep of it, and costs, "the same to be covered by a lien upon the colt until paid.” The justice entered judgment for the plaintiff for $60 and costs. The County Court reversed the judgment, and granted a new trial, upon the ground that it was contrary to the weight of the evidence, not according to the verdict, not in the form required in replevin actions, and that the judgment was unauthorized, and apparently considered that the plaintiff in the same complaint could not em For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Iudexes

claim the general property in the colt and a special property by way of a lien for keeping it.

The plaintiff's evidence tended to show that the defendant, her aunt, had no feed for the colt. Plaintiff's husband told defendant that if she would send for the hay he would give her enough to winter the colt, but advised her to sell it. Nevertheless she gave the colt to the plaintiff and asked her to take it home, take good care of it, and keep it for her own use. The defendant's evidence tended to show that the plaintiff's husband, with the plaintiff's knowledge, offered to take the colt home and feed it during the winter, with the understanding that if it was fed grain the defendant's husband would pay the value of the grain. The defendant, in June, came to the plaintiff's place to get the colt, but delivery was refused unless the defendant would pay for its keeping. It does not appear how the colt came into the defendant's possession after that.

[1] Upon the facts shown it is not clear that the plaintiff's claim of ownership and a lien for the keeping were so inconsistent that the plaintiff could not seek to regain possession upon either ground. The evidence does not conclusively show whether the defendant delivered the colt to the plaintiff as an actual gift, or whether it was delivered to her to be kept for the winter. I think, therefore the plaintiff was entitled to urge either ground to establish her right of possession of the colt.

[2] The jury evidently have found that there was no gift, but that the plaintiff was keeping the colt for the defendant at her request. If the plaintiff voluntarily surrendered the possession of the colt, she could not thereafter claim a lien and regain the possession by replevin. If the plaintiff did not own the colt, she could not recover the possession of it from the defendant, if she had voluntarily parted with the possession. A necessary element of the plaintiff's case in replevin is therefore absent.

It is difficult to determine just what the defendant's answer means, but the court was justified in trying the case upon the merits. We cannot say that the determination of the County Court that the case is not supported by the evidence is incorrect. Clearly the judgment was informal

. Upon a new trial the evidence may more fully present the rights of the parties to the court.

The judgment of the County Court is therefore affirmed, with costs. All concur, except HOWARD and WOODWARD, JJ., who vote to reverse the County Court and reïnstate the justice's judgment.

TIELLER V. LEVINSON. (No. 6927.) (Supreme Court, Appellate Division, First Department. March 12, 1915.) PROCESSO 64-SERVICE OF SUMMONS AND CONVICTION-SUFFICIENCY.

A service upon defendant, by one who knew him and informed him that he had a paper for him, and who, when defendant started to walk away, put the paper in his outside pocket, and said it was all right, to which

defendant replied that it was all right, was sufficient, as it rendered it m. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

reasonably probable that it apprised defendant of the action against him and gave him an opportunity to defend.

[Ed. Note. For other cases, see Process, Cent. Dig. $8 55, 56, 76-82; Dec. Dig. Om 64.) Appeal from Special Term, New York County.

Action by Hyman Heller, doing business in the firm name of Hyman Heller & Co., against Sam Levinson. From an order confirming the report of a referee, plaintiff appeals. Order reversed, and judgment reinstated, with leave to defendant to apply to open his default.


Benjamin Frindel, of New York City, for appellant.
L. B. Boudin, of New York City, for respondent.

HOTCHKISS, J. A judgment having been taken by default here in, the defendant moved to set aside said judgment and open his default upon the ground that the summons and complaint had never been served upon him. The court appointed a referee to take testimony and report his conclusions. From the order confirming said report this appeal is taken.

The alleged service was made by a person who testified that he knew the defendant, and that the circumstances of the service were as follows:

"I says, 'How are you Mr. Levinson?' and he says, 'All right;' and I says, 'I got a little paper for you;' and he said, 'I don't want it;' and he started to walk away,

and as he did so I pushed it in his outside pocket, and I says, 'It is all right?' and he said, 'It's all right.'"

The referee held that service, if made as described, was ineffectual, because the nature of the papers was not disclosed to defendant, nor was he in any way informed that service of process was intended, or that the paper had in fact been put into his pocket. This view was adopted by the court below. I think this was error. As was said by Judge Earl, in Hiller v. B. & M. Ry. Co., 70 N. Y. 223, 227:

"The object of all service of process is said to be to give notice to the party on whom service is made, that he may be aware of and resist what is sought of him, and it is a general rule that any service must be deemed sufficient which renders it reasonably probable that the party proceeded against will be apprised of what is going on against him, and have an opportunity to de fend.”

This common-sense rule has been adopted in a number of cases, and wherever service by means other than personal delivery has been held ineffectual, it has been because the circumstances were such as to show that the defendant did not come into actual possession of the papers, and that his attention was not drawn to their character, or that he had not willfully ignored them and refused to ascertain their nature for the purpose of evading service. In the present case, if the papers were placed in the defendant's pocket, and particularly if such a conversation with reference to them took place as testified to, the service was as effectual as if the papers had been handed to and

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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