(180 App. Div. 503) SCHUSTER v. TOMPKINS. (Supreme Court, Appellate Division, Second Department. December 14, 1917.) Though under Code Civ. Proc. § 997, as to motions for new trial, the regular practice is for the motion to be made on a case, if it is made without a case, on affidavits, and opposing counsel proceeds to argument without objection on that score, he waives his right to require a case to be made. 2. NEW TRIAL 150(2)-PROCEDURE-AFFIDAVITS REQUISITES. Affidavits on motion for new trial for newly discovered evidence, made without a case, should clearly give information usually given by the case and necessary to decision, and show that the evidence is not merely cumulative and such as probably would result in a different verdict. Appeal from Special Term, Westchester County. Action by George B. Schuster, as administrator of Edwin Schuster, deceased, against Frederick J. Tompkins. From an order granting motion for new trial on ground of newly discovered evidence, defendant appeals. Reversed, and motion denied. Argued before JENKS, P. J., and THOMAS, STAPLETON, RICH, and BLACKMAR, JJ. C. Everett Hunt, of New York City, for appellant. John A. Goodwin, of New York City (Harry J. Laragh, of New York City, on the brief), for respondent. PER CURIAM. [1] The regular practice is that a motion for a new trial shall be made on a case (section 997, Code Civ. Proc.); but if the motion is made without a case, on affidavits, and the counsel opposing the motion proceeds to argument without objection on that score, he waives his right to require a case to be made, and this was what was done (Russell v. Randall, 123 N. Y. 436, 25 N. E. 931). [2] Nevertheless, the affidavits should clearly give the court the information which is usually supplied by the case and which is necessary to a proper decision of the motion. Such information is that the evidence is not merely cumulative and is of such a nature as would probably result in a different verdict. The affidavits do not satisfactorily show that the evidence was not cumulative, for, although plaintiff's attorney deposes that there was no direct evidence that deceased was struck by the front of the truck, yet defendant's attorney deposes that his recollection is that plaintiff's witness Pollack testified to that fact. Neither does it appear that the proposed evidence of the witness Meitner, a boy 10 years of age, would probably change the result; for in determining this we must have regard to the evidence given by him on the coroner's inquest, which is not at all consistent with his affidavit read in support of the motion. The plaintiff's attorney claims that the boy's evidence was newly discovered, because, whenever he attempted to get a statement from For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the boy, he would cry and run away. After the trial he seems to have had no difficulty in getting a statement, and even an affidavit, from the boy, and before the trial the boy had testified at the coroner's inquest, and had been examined by plaintiff's attorney. To grant a new trial under such circumstances would deprive the judgment of the finality necessary to the orderly administration of justice. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. WILSON & CO. v. BAZAAR. (Supreme Court, Trial Term, Columbia County. December 18, 1917.) 1. CORPORATIONS 672(4)—ACTION BY FOREIGN CORPORATION-COMPLAINTREQUISITES. A complaint, alleging that plaintiff is a foreign corporation and sold to defendant at his request meats and provisions, etc., at Troy, N. Y., showed that the goods were sold and delivered in New York, and was insufficient for failure to allege the procuring of the certificate required by General Corporation Law (Consol. Laws, c. 23) § 15, providing that no foreign stock corporation shall do business in this state without having first procured a certificate that it has complied with all the requirements of the law, and that no such corporation shall sue in this state on any contract made within the state without having first. procured such certificate. 2. CORPORATIONS 673-FOREIGN CORPORATION-PRESUMPTIONS. A foreign corporation, having sold meats and provisions within the state, must be presumed to be a stock corporation. Action by Wilson & Co. against Nicholas Bazaar. On defendant's motion for dismissal of complaint and nonsuit, and plaintiff's motion for directed verdict. Defendant's motion granted, and plaintiff's motion denied. Wm. N. Fessenden, of Saugerties, for plaintiff. NICHOLS, J. [1, 2] This action was brought to trial at the Columbia County, 1917, Trial Term of the Supreme Court. The plaintiff's complaint contains, among other things, the two following allegations: I. That the plaintiff is a foreign corporation, created and existing under the laws of the state of Illinois. II. That between the 25th day of November, 1913, and the 5th day of December, 1913, at Troy, Rensselaer county, New York, the plaintiff sold and delivered to the defendant, at his request, goods, wares, and merchandise, consisting of meats and provisions, of the agreed value of $77.21, and the defendant agreed to pay the said sum therefor. Upon the trial the plaintiff proved the cause of action set forth in paragraph II; one witness testifying that he was an agent of the plaintiff, connected with the Troy office of the plaintiff, which had sold the goods to the defendant, and another witness testifying that For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes he was employed by the Saugerties office of the plaintiff, to which office the account had been transferred, and that he had repeatedly called on the defendant for payment, and that some small payments had been made thereon. The defendant offered no proof, and at the close of the plaintiff's case made a motion for a dismissal of the complaint and for a nonsuit, upon the ground that the complaint did not show that the plaintiff was authorized to do business in the state of New York, as required by section 15 of the General Corporation Law. Plaintiff made a motion for a direction of a verdict for sum of $62.21, the amount unpaid, with interest from December 25, 1913. The plaintiff, being a foreign corporation created and existing under the laws of the state of Illinois, and having sold goods, wares, and merchandise, consisting of meats and provisions, at Troy, Rensselaer county, N. Y., must be presumed to be a stock corporation. Portland Co. v. Hall & Grant Construction Co., 123 App. Div. 495, 108 N. Y. Supp. 821. The fact that this foreign corporation is doing business in the state of New York is shown by the allegation in the complaint, wherein it is stated that the goods were sold and delivered at Troy, Rensselaer county, N. Y.; and that fact is further established by the two witnesses sworn for the plaintiff, one representing the plaintiff's Troy agency, which claims to have sold the goods, and a representative of the plaintiff's Saugerties office, to which the account was transferred. This is not the case of the making of a single sale, or a series of sales, through a mere selling agency, by means of orders directed to the foreign corporation in its own state, where the goods were delivered to a common carrier of that state under the terms of the contract, as was the case of Angldile Computing Scale Co. v. Gladstone, 164 App. Div. 370, 149 N. Y. Supp. 807, but was a case of a foreign stock corporation having an office in the city of Troy, N. Y., for the sale of meats and provisions, and of sales thereof, to recover the price of which this action is brought. The court in the case of Angldile Computing Scale Co. y. Gladstone, 164 App. Div. at page 374, 149 N. Y. Supp. at page 811, says: "Where the complaint, as in the present instance, shows that the plaintiff is a foreign corporation, the presumption is that it is doing business in its own state. If it is, in fact, doing business within the state of New York, in the sense in which that term is used in the Tax Law and the General Corporation Law, then this fact should be pleaded by the plaintiff, and in connection therewith it should allege that it had, before the making of the contract, procured the certificate required by section 15 of the General Corporation Law. That is necessary to the statement of a cause of action under the circumstances mentioned." See Wood & Selick v. Ball, 190 N. Y. 217, 83 N. E. 21. The plaintiff's motion for the direction of a verdict must be denied, giving the plaintiff an exception, and the defendant's motion for a dismissal of the complaint and a nonsuit granted, with costs, giving the plaintiff an exception. (180 App. Div. 559) RITACCO v. CITY OF NEW ROCHELLE. (Supreme Court, Appellate Division, Second Department. December 14, 1917.) 1. TRIAL 127-REMARKS OF COUNSEL. In action against city for fall on an icy sidewalk, a railroad company being the abutting owner, remark of plaintiff's counsel to jury, "You don't imagine for a moment the city is going to pay; you know well enough who is going to pay," was improper. 2. APPEAL AND ERROR 181-EXCEPTIONS IN LOWER COURT. The Appellate Division on appeal may look to the facts, as well as to the exceptions taken, and grant new trial for a statement of counsel calculated to arouse prejudice and lead the jury away from the evidence. Appeal from Trial Term, Westchester County. Action by Bambino Ritacco against the City of New Rochelle. From judgment for plaintiff, and order denying motion for new trial, defendant appeals. Reversed, and new trial granted. Argued before JENKS, P. J., and THOMAS, STAPLETON, RICH, and BLACKMAR, JJ. Edward W. Davidson, Corp. Counsel, of New Rochelle, for appellant. Michael J. Tierney, of New Rochelle, for respondent. PER CURIAM. Without consideration of the merits, we reverse this judgment and order and grant a new trial. The plaintiff recovered a verdict for personal injuries from a fall upon a sidewalk of the city whereon there was ice or snow. The record shows that, at the close of the address to the jury by plaintiff's counsel, the defendant's counsel said: "I want to take an exception on the record to the remarks of counsel for the plaintiff, in which he stated, in substance, to the jury: 'You don't imagine for a moment that the city is going to pay. You know well enough who is going to pay.' "The Court (addressing counsel for the plaintiff): Have you anything to say about that statement-whether it exactly quotes you? As I recall it, it was made, in substance, in that form, at the time counsel was commenting upon the testimony of certain witnesses who appeared to be in the employ of the landowner. "Counsel for Defendant: The railroad company; yes, sir. "The Court: Well, I call them the landowner. I think I will have to give you the benefit of an exception." Although the defendant's counsel used the word "exception," yet we think that upon this record it was equipollent with the word "objection," inasmuch as the trial court thus regarded it, as is shown by a ruling that awarded "an exception" to the defendant. [1] In this case, as in that of Hordern v. Salvation Army, 124 App. Div. 674, 109 N. Y. Supp. 131, there was neither request for withdrawal of a juror nor to impanel a new jury; but we think, for the reasons that moved the court in that case, we should make a like decision. The remark was manifestly improper, to the prejudice of the defendant. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes [2] We are cited by the learned counsel for the respondent to two judgments of the Court of Appeals. But it must not be forgotten that our power is different from their power. We need but cite one of these very cases to sustain this statement. In Cattano v. Metropolitan Street Ry. Co., 173 N. Y. 571, 66 N. E. 565, Vann, J., for the court, writing of the power of this court to grant a new trial for a statement "calculated to arouse prejudice and lead the jury away from the evidence," says: "It would have justified the trial court or the Appellate Division in exercising the great power of dealing with the facts, which is intrusted to them, but not to us, by setting aside the verdict and granting a new trial. The Court of Appeals, however, can reverse only on an exception taken to a ruling of the court, and no exception relating to the subject raises an error that we can review." Thus, quite aside from the technicalities of the record, this court, in the interest of justice, can thus dispose of this appeal. The judgment and order are reversed, and a new trial is granted; costs to abide the event. BOYCE v. GREELEY SQUARE HOTEL CO. (Supreme Court, Appellate Division, Second Department. December 29, 1917.) In a guest's action against a hotelkeeper for damages for being charged with immorality while in a room in the hotel with her husband, a rule of the hotel keeper prohibiting a man from visiting a woman in her room without permission being first obtained from the manager's office constituted no defense, although not complied with, where the manager had been apprised of the relation of the parties and the purpose of the occupancy of the room, and had himself assigned the room with a view to plaintiff's convenience. 2. DAMAGES 216(4)-INSTRUCTIONS-PHYSICAL PAIN. In a guest's action against a hotel keeper for damages owing to a charge of immorality, an instruction excluding from the grounds of recovery physical pain and suffering was properly refused; such ground not being separate from that of mental suffering, pain, and anguish. 3. INNKEEPERS 10-BREACH OF CONTRACT-ACTIONS. In a guest's action against a hotel keeper for damages growing out of a charge for immorality, a letter of apology from defendant's manager was not inadmissible in evidence; the writers being engaged in the business of the principal and acting within the scope of their authority. 4. APPEAL AND ERROR 1050(1)-REVIEW-HARMLESS ERROR. In a guest's action against a hotel keeper for damages arising from a charge of immoral conduct, the admission in evidence of a letter of apology from defendant's manager, if error, held harmless. 5. INNKEEPERS 10-BREACH OF CONTRACT-DAMAGES. A verdict of $8,000 was not excessive, in an action by a guest against a hotel keeper for damages arising from a charge of immoral conduct, where she was an invalid, and her nervous condition was made worse, and she suffered shame and anguish. Jenks, P. J., and Blackmar, J., dissenting as to excessiveness of recovery. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |