and 122 New York State Reporter 7 Am. Rep. 418; Mott v. Consumers' Ice Co., 73 N. Y. 543; Craven v. Bloomingdale, 171 N. Y. 439, 64 N. E. 169, reversing 54 App. Div. 266, 66 N. Y. Supp. 525. There was no evidence to show that the servant injuring plaintiff was an incompetent or improper servant, nor that the master had any notice that he was not a perfectly proper man for the service. The complaint must be dismissed, and judgment is ordered in favor of the defendant, with costs. Complaint dismissed, and judgment ordered in favor of defendant, with costs. GOLDZIER v. CENTRAL R. CO. OF NEW JERSEY. (Supreme Court, Appellate Term. May 5, 1904.) 1. MUNICIPAL COURT-JURISDICTION-PLAINTIFF CORPORATION. The quoted words in Municipal Court Act, § 25, subd. 2 (Laws 1902, p. 1497, c. 580), providing that an action must be brought, if the defendant be a corporation, in a district in which plaintiff resides, or in which, if it be a corporation, "it transacts its general business," etc., refer to a plaintiff corporation. 2. SAME-NONRESIDENT PLAINTIFF-FOREIGN CORPORATION DEFENDANT. Under Municipal Court Act, § 25, subd. 3 (Laws 1902, p. 1497, c. 580). providing that an action by a nonresident plaintiff must be brought in the district in which defendant resides, and that no person who has a place in the city for the regular transaction of business shall be deemed a nonresident, a foreign corporation having an office in each of two districts for the regular transaction of business may be sued in either district, without regard to the relative importance of the offices. Appeal from Municipal Court, Borough of Manhattan, First District. Action by Julia Goldzier against the Central Railroad Company of New Jersey. From a judgment dismissing the complaint, plaintiff appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Charles Goldzier, for appellant. Arthur S. Hamlin and Robert Thorne, for respondent. GREENBAUM, J. The action was originally brought in the Municipal Court, borough of Manhattan, Sixth District, and, on motion of defendant, made upon joinder of issue, it was removed to the First District Court. When the cause was called for trial in the latter place, the plaintiff objected to the jurisdiction of the court upon the ground that the cause had been improperly removed. The plaintiff having refused to go to trial, the complaint was dismissed, on motion of defendant, with costs. The undisputed facts upon which the action was removed to the First District show that the plaintiff is a nonresident of this city; that the defendant is a foreign corporation having a general office for the regular transaction of business within the limits of the First District Court, and also having an office or agency for the sale of tickets within the boundaries of the Sixth District Court. The solution of the question at issue involves the construction of section 25 of the Municipal Court act, subdivisions 1, 2, and 3 of which are as follows: "Sec. 25. An action or proceeding of which the Municipal Court has jurisdiction must be brought: (1) In a district in which either the plaintiff or defendant or one of the plaintiffs or one of the defendants resides, unless all the plaintiffs or all the defendants reside out of the city of New York, in which case the action or proceeding may be brought in said court in any district. (2) If the defendant be a corporation created by law, in a district in which the plaintiff or either of the plaintiffs resides, or in which (if it be a corporation) it transacts its general business or keeps an office or has an agency established for the transaction of business or is established by law, except the corporation of the city of New York, which may sue or be sued in any district, except as provided for in subdivision five of this section. (3) By plaintiffs not residing in the city of New York, in the district in which the defendant, or one of the defendants resides, and against a defendant or defendants, not residing in said city, in the district in which the plaintiff or one of the plaintiff's resides; but where all the parties reside out of said city, the action may be brought in any district. No person who shall have a place in said city for the regular transaction of business shall be deemed a nonresident under the provisions of this act." Laws 1902, p. 1497, c. 580. The contention of appellant that subdivision 2 of section 25 was designed to confer jurisdiction against a corporation defendant in the district in which "it transacts its general business or keeps an office or has an agency established for the transaction of business," is not well taken, as that section obviously refers to a case against a defendant corporation where plaintiff is also a corporation, and where the latter transacts business, as above quoted. Subdivision 3 specifically refers to an action brought by a plaintiff not residing in the city of New York, and is applicable to the case at bar. In such case the action must be brought in the district in which the defendant resides. The question therefore is, in what district is defendant's residence? Subdivision 3 also provides that "no person who shall have a place in said city for the regular transaction of business shall be deemed a nonresident under the provisions of this act." A corporation is included in the term "person," as used in the statutes (Scharmann v. De Palo, 66 App. Div. 29, 30, 72 N. Y. Supp. 1008), and is deemed to have a residence (Conroe v. National Protection Insurance Company, 10 How. Prac. 403, 405). A foreign corporation, being a nonresident in fact, becomes, for the purpose of conferring jurisdiction, by fiction of the law, a resident of the city, if it has a place therein for the regular transaction of business. In determining the particular Municipal Court in which the action against such corporation may be brought, it is important, however, to ascertain in what particular district in the city it may be deemed a resident. Inasmuch as the residence of such a corporation is purely arbitrary, for the reason heretofore stated, it is obvious that, if such a corporation maintains a number of different establishments for the regular transaction of business in as many different districts of the city, it would, for the purpose of jurisdiction, have a legal residence in each of these districts. In such case the test of residence would in no wise depend upon the volume of the business which may be done in an establishment located in one district over establishments located in other districts, because the statute declares and 122 New York State Reporter no such test. It is sufficient, for the purposes of conferring jurisdiction, to show that the corporation has a place "for the regular transaction of business"-a conclusion which is entirely harmonious with subdivision 18 of section 1 of the Municipal Court act, which provides, "The jurisdiction extends to actions against the city of New York, a domestic corporation, or a foreign corporation, having an office in the city of New York. * * The result arrived at is not unlike that which would arise, under subdivision 2, in the case of a defendant corporation being sued in a Municipal Court by a plaintiff corporation in the district in which the latter "transacts its general business or keeps an office or has an agency established for the transaction of business." In such case an action might properly be brought in any district in which the plaintiff corporation has a place of business. This construction was distinctly placed upon words precisely like those used in subdivision 2, above quoted, in the provision conferring jurisdiction upon the former District Courts in this city, under section 4, c. 344, p. 708, Laws 1857, in actions against corporations. Jay v. Long Island R. R. Co., 2 Daly, 401. As the conceded facts show that the defendant is a corporation having a place for the transaction of business in the Sixth District, the Municipal Court of that district had jurisdiction to maintain the action which the plaintiff brought, and it therefore follows that the order of transfer in this case made was not warranted. The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event, and the cause remitted to the Sixth District Court for trial. All concur. (94 App. Div. 154.) TOOMEY v. WHITNEY. (Supreme Court, Appellate Division, Fourth Department. May 24, 1904.) 1. PROSPECTIVE ADMINISTRATORS-RELEASE BY HEIR-CONCEALMENT OF FACTS. Plaintiff's release to defendant, for one-tenth of its value, of his interest in the estate, for administration of which defendant had already filed petition, will be set aside for concealment of facts; plaintiff having been ignorant of the condition of the estate, and defendant, who assumed to have knowledge, and had information, as to its character and extent, and was in a position of confidence, calling for the fullest information from her, having, according to plaintiff's testimony, told him it was worth only $200, and, according to her own testimony, told him it amounted to $1,800, while in fact it was worth more than $2,700. Appeal from Judgment on Report of Referee. Action by Thomas Toomey against Bridget T. Whitney, individually and as administratrix of Nora Toomey, deceased, to cancel and set aside a release of interest in the estate of deceased. From a judgment dismissing the complaint on the report of a referee, plaintiff appeals. Reversed. See 80 N. Y. Supp. 826. Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ. D. M. Darrin, for appellant. STOVER, J. Nora Toomey died on March 4, 1900, leaving, her surviving, the plaintiff, her brother, and the defendant, her sister, her only heirs and next of kin. Plaintiff resided at St. Joseph, Mo., and had no acquaintance in Belmont, in this state, where defendant resided; he having gone to Missouri when 20 years of age, and had not been in New York state for 21 years. He was inexperienced in business, and apparently with but little education. He was not informed of his sister's death until after the funeral. On March 14, 1900, defendant wrote to plaintiff that "Nora had a little money and as soon as I am appointed administratrix I can tell you what there is." On April 2d plaintiff arrived at Belmont, and subsequently some conversation was had with defendant as to Nora's estate, and about which there is a dispute; plaintiff saying that defendant told him Nora had but $200, as $1,600 of the $1,800 which she had was in bonds of no value, while defendant contends that she told him the estate amounted to $1,800, and nothing was said about bonds of no value. On April 18th plaintiff executed a release of his interest in Nora's estate upon a consideration of $150. On April 21st defendant was appointed administratrix. It is conceded that Nora's estate was worth more than $2,700. We think that, under the circumstances of this case, defendant owed the duty to plaintiff to fairly inform him of the condition of the estate of his sister. She assumed to have knowledge, and he was entirely ignorant of her circumstances. She seems to have been in possession of information as to its character and extent. She had already filed a petition for administration, and, while not yet acting, was in such a position of confidence as to call for the fullest information from her to those with whom she was dealing. She was bound to disclose and had no right to conceal the extent of the estate to her own profit. There can be no doubt that plaintiff relied upon her statement, and it is almost incredible that he should have released his interest in the estate for $150, had he known that his share was at least 10 times as much. Upon the defendant's own statement, the estate was larger than stated by her to plaintiff, and it is clear that for almost nominal consideration she has received a large benefit. We think that under these circumstances the release was not fairly obtained, and the dismissal of the complaint was error. Judgment reversed and new trial ordered, with costs to the appellant to abide the event. All concur. HOROWITZ v. DECKER. (Supreme Court, Appellate Term. May 5, 1904.) 1. CHATTEL MORTGAGE-MUNICIPAL COURT ACT-REPLEVIN. Under Municipal Court Act, § 139 (Laws 1902, p. 1533, c. 580), providing that no action shall be maintained in such court, arising on a written contract of conditional sale of personal property, where title is not to vest in the buyer until payment of a certain sum, or where a chattel mortgage is made to secure the purchase price, except an action to foreclose the lien, where a chattel mortgage was given to secure the purchase price of furniture sold to defendant, replevin could not be maintained in the Municipal Court to recover the property after condition broken. and 122 New York State Reporter 2. SAME INQUEST-APPEAL-REVIEW. An appeal lies from an inquest taken without jurisdiction, and brings up the entire proceedings for review. 3. SAME-AMENDMENT JURISDICTION. Where replevin was erroneously brought to recover mortgaged chattels in the Municipal Court, and the defendant appeared generally, the justice had jurisdiction to grant leave to amend the summons in the action so as to change it from replevin to an action to foreclose a lien, as authorized by Code Civ. Proc. § 723, and Municipal Court Act, § 166 (Laws 1902, p. 1542, c. 580). 4. SAME-RESTORATION OF PROPERTY. Where replevin erroneously brought in a Municipal Court to recover mortgaged chattels was changed by amendment to an action to foreclose a lien thereon, such amendment operated to terminate the replevin action, and entitled the defendant to a restoration of the property taken under the writ, in the absence of an attachment issued against the property as authorized by Municipal Court Act, § 138 (Laws 1902, p. 1532, c. 580). 5. SAME-CONDITIONS-COMPLIANCE. Where replevin was erroneously brought in a Municipal Court to recover mortgaged chattels on breach of condition, and the court permitted an amendment of the summons so as to change the action to one to foreclose a lien, on payment of $10 costs and the immediate and unconditional restoration of the chattels to the defendant, and plaintiff paid the costs, but failed to restore the chattels, it was proper for the court to dismiss the action. 6. SAME INQUEST. Where an action was dismissed for failure of plaintiff to comply with one of the conditions imposed on an amendment of the summons, the court had no further jurisdiction to permit an inquest. Where replevin was erroneously brought in the Municipal Court to recover chattels mortgaged to secure the purchase price on an alleged breach of condition, and, after an attempted amendment of the summons so as to change the action to one to foreclose a lien, an inquest was taken, without an attachment of the property, an order entered directing a sale of the chattels "replevied at the commencement of the action" was erroneous, since the replevied chattels had been taken without jurisdiction. Appeal from Municipal Court, Borough of Manhattan, Fourth Dis trict. Action by Samuel Horowitz against Davis Decker. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Rosenthal & Brown, for appellant. LEVENTRITT, J. It is a matter of some difficulty to state intelligently the involved history of events resulting in the judgment appealed from. The action was originally brought as one in replevin. On the usual affidavit, undertaking, and requisition, summons was issued to the marshal, who served it on the 8th day of September, 1903, by posting a copy on the outer door of the defendant's last known place of residence, and depositing another copy in the post office, addressed to the same place. It also appears by the marshal's affidavit annexed to the return that the property was actually replevied from |