Derrenbacker agt. Lehigh Valley Railroad Company.

ence, when put in issue by an answer, and the appearance of a corporation, when sued as defendant, on putting in an answer in the name by which it is sued. At all events, in such a case, it is enough to show user or corporate acts to make a prima facie case of the entity and identity of the artificial person that has appeared and is defending the suit. In this case the issues were tried all through the plaintiff's case upon the assumption that the Lehigh Valley Railroad Company was an existing corporation. It was quite right, therefore, not to permit the defendant to railroad itself out of court because its charter was not produced and proven. The prima facie case was sufficient to call upon the defendant to give some of the evidence which the learned counsel says his client was misled into not producing, to wit, "negative proof of its non-existence," if any such it had.

The question whether the plaintiff's own negligence contributed to his injury was properly submitted to the jury. It cannot be said, as matter of law, that the act of pushing the iron tub when it stopped, as described in the evidence, was per se evidence of negligence. It was an act which the plaintiff, or some other person, was accustomed to perform whenever a similar delay occurred, and there was no evidence to show that the plaintiff knew, or had reason to believe, that there was any greater danger than usual on the occasion. The rope happened to break while he was doing an act customary under similar circumstances. The evidence does not tend to show that his act broke the rope, but merely that it brought himself into a position to receive the injury. The charge upon the question was correct in law, and we are satisfied with the finding of the jury upon it.

The principal and difficult question in the case is whether sufficient was shown to justify the court in submitting to the jury the question of the liability of the defendant. Some evidence was given tending to show that the defendant was the owner of the derrick, and the rope used, the breaking of which caused the injury, was purchased for, and belonged to,

Derrenbacker agt. Lehigh Valley Railroad Company.

the defendant. From the slight evidence produced by plaintiff it might well be inferred that the derrick was one belonging to the defendant and used generally on the dock for the purpose of transferring property from boats to the defendant's cars and from such cars to the boats, the object of defendant being to furnish facilities for making such transfers with ease and promptitude. Of course this was much for the benefit of defendant, as it avoided delay and detention of its cars, and expedited its business transactions. The consignees of the cargo of iron ore appear to have been using the derrick on the occasion of the injury; but as they were transferring the ore in the usual way from plaintiff's boat to defendant's cars, and as it should not be presumed that the consignees were trespassers in making use of the derrick, in the absence of all explanation on the part of the defendant, the jury were justified in finding that the consignees were using the derrick in the usual way with the knowledge and consent of the defendant, and for its and their mutual benefit. Under such circumstances, the liability of the defendant would depend upon the question whether it had furnished a rope suitable for the purpose and capable of sustaining the weight to be put upon it in doing the usual work for which it was to be used, or, having done So, it was continued in use after it had become so worn and weakened by strains and observable injuries as to be unsafe and unfit for the work.

There was some evidence to go to the jury upon both of these questions. There was slight evidence to show that the rope was not large enough when purchased to bear the weight of the quantity of iron ore usually taken in the tub. This evidence is not satisfactory to our minds; but when taken in connection with the proof as to the condition of the rope when it broke, and with the fact that it had broken the day before in unloading another cargo, and was then stranded or repaired and put into use for unloading plaintiff's boat when it broke again, with the serious consequences to plaintiff, under circumstances tending to show that due precaution was

The People ex rel. Rosenthal agt. Cowles.

not used in repairing or in allowing it to be used, we are not able to see that the court erred in submitting the question to the jury. Some force is certainly to be given to the omission of defendant to give explanatory evidence to rebut the inferences from the evidence given by plaintiff.

It is easy to see that if the derrick and rope were not the property of defendant, or if they were not in use by its knowledge or consent, or if the derrick was not a facility provided by defendant for the benefit of its business, furnished to be used as above suggested, proof must have been in defendant's power to rebut the evidence given by plaintiff and the inferences a jury could draw therefrom.

We see no error in the charge as given by the court, or in his refusals to charge, and our conclusion is that the judgment must be affirmed.

BARRETT, J., concurs.

SUPREME COURT.

THE PEOPLE ex rel. ROBERT J. ROSENTHAL agt. SAMUEL N. COWLES.

Habeas corpus — To whom application for the writ must be made - Form of petition.

The restriction in the habeas corpus act that application for a writ must be to a judge or officer within the county where the prisoner is detained, or an adjoining county, does not apply to the supreme court or one of its justices.

The plain reading of the statute is that an application may be made to the supreme court, or to one of its justices anywhere, but when it is made "to any officer who may be authorized to perform the duties of a justice of the supreme court at chambers," that officer must be or reside "within the county where the prisoner is detained," unless there "be no such officer within such county, or if he be absent, or for any cause be incapable of acting, or have refused to grant such writ." Where the petition fails to state the locality of the confinement it is

The People ex rel. Rosenthal agt. Cowles.

defective. The locality of the detention should be stated so that the discretion of the court or judge, as to the place of the return of the writ, could be exercised.

The petition is required to state “that such prisoner is not committed or detained by virtue of any process, judgment, decree or judgment specified in the preceding twenty-second section." A detention for one of the causes specified in said section should be negatived. The petition should show the party detained to be without the exception.

Special Term, August, 1880.

MOTION to punish the respondent for contempt in not producing the body of James Smith pursuant to the command of a writ of habeas corpus.

A. H. Purdy, for the motion.

L. L. Delafield, opposed.

WESTBROOK, J.-Upon the application of Robert J. Rosenthal, who claims to be the guardian of James Smith, an infant child whose parents are both dead, a writ of habeas corpus was allowed by a justice of this court, in the city of New York, sitting in a special term, then and there held by him, requiring Samuel N. Cowles, then residing in the city of Syracuse, in the county of Onondaga, to produce before the judge allowing the writ in said special term in the said city of New York the body of said James Smith in order that his alleged illegal detention might be inquired into.

The writ was duly served upon Cowles at the city of Syracuse, and on the return day thereof he did not produce the child but appeared by counsel and asked that the writ should be quashed for reasons which will be examined in the order in which they were made.

First. It is claimed that a justice of the supreme court has no power to require the body of a person detained in a county other than that in which the writ issues and in which it is made returnable, to be brought before him, unless there be no

The People ex rel. Rosenthal agt. Cowles.

officer within the county where the person is so detained who has power to issue such writ, or unless "he be absent or have refused to grant such writ."

The objection is founded upon the provisions of the habeas corpus act, which will be found in 3d Revised Statutes (6th edition, pages 875, 876, &c.).

There is no such limitation upon the power of the supreme court, or one of its justices as is contended for by the counsel for the respondent. Section 37 (section 23 of the old statute) provides for an application: "1. To the supreme court during its sitting; or, 2. During any term or vacation of the supreme court to any one of the justices of the supreme court, or any officer who may be authorized to perform the duties of a justice of the supreme court at chambers, being or residing within the county where the prisoner is detained; or if there be no such officer within such county, or if he absent, or for any cause be incapable of acting or have refused to grant such writ, then to some officer having such authority residing in any adjoining county."

This section designates three tribunals to which the application for the writ can be made: 1st, "The supreme court during its sittings;" 2d, "Any one of the justices of the supreme court," and, 3d, "Any officer who may be authorized to perform the duties of a justice of the supreme court at chambers, being or residing within the county where the prisoner is detained.”

If the nomenclature of the statute in defining the jurisdictions from which the writ issues is borne in mind there is no difficulty in its construction. A justice of the supreme court is an officer, but he is not one of those whom the section includes under that general term, for he is specially designated by his peculiar title, and those who are embraced by the words "any officer" are also so specifically defined that we know that a justice of the supreme court is not referred to, but only those "who may be authorized to perform the duties of a justice of the supreme court at chambers." The plain readVOL. LIX

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