HOAG against LAMONT

HOAG against LAMONT. City Court of Brooklyn, General Term ; 1874. Jurisdiction.— Brooklyn City Court. —Corporation.—Principal AND AG-ENT. The city court of Brooklyn acquires jurisdiction by the appearance, generally, without objection, of the defendants, though they are not residents of Brooklyn, in cases where it has jurisdiction of the subject-matter of the action, and where the appearance is with full knowledge of all the facts ; as where the complaint was served with the summons, on defendants, before the appearance. It seems, that the residence in the city of Brooklyn, of one only of defendants jointly sued, gives that court jurisdiction as to all the parties. The patentee of a process of manufacture, on behalf of himself and two others, all of whom were afterward trustees of a company subsequently formed for carrying on business under the patent, contracted that plaintiff and another should be sole agents in certain States, for the sale on commission of the wares of such company when organized ; that the company should furnish them specified quantities of the wares, or in default thereof pay them quarterly the sums which would be derived from their commissions if the quantities specified were furnished and sold ;—Held, that a verbal ratification of such agreement by the president of the company, after the organization thereof, a written recognition of the existence of the agreement and of the amount of commissions due under it by the secretary of the company, the payment of the first installment in lieu of such commissions when due, a verbal promise by the managing trustee and treasurer, that the company should pay the second installment, and the ordinary .recognition of them as agents by the ■company, was sufficient, without a resolution of the board of trustees, or a writing expressly assuming the agreement, to charge the company under it. William II. Hoag brought an action in this court against Charles A. Lamont, Calvin T. Hubbard, Hernán D. Walbridge, and William S. Andrews, trustees of the American and European Crystalized Egg Company, to charge them personally with a demand against said company, for the reason that no report was made by the company within twenty days-after January 1, 1871, as required by law. The following facts were proved. April 22, 1870, the defendant Lamont, patentee of a. new process, and contracting in his own behalf and for Hiram Walbridge and the defendant Andrews, executed articles of agreement constituting Anton C. Crondal and John Dreyer, sole agents for any firm or company formed or to be formed to manufacture under the patent, for the sale on commission, the rate of which was specified, of such manufacture, and undertaking that such firm or company should furnish to them specified quantities of the manufacture, or in default thereof pay them quarterly the amounts which would, had the quantities specified been furnished and sold, have accrued to them as commissions. August 5, 1870, the above-named company was-formed for such manufacture and all the defendants signed the certificate of incorporation, and were named therein as trustees for the first year. The company never furnished the goods called for by the agreement. Shortly after its organization the president of the company verbally ratified on its behalf the foreg.oing agreement, and the secretary of the company at tlieen d of the first quarter thereafter, gave Crondal and Dreyer a writing, recognizing the existence of the agreement, and the amount in lieu of commissions, seven hundred and fifty dollars, then due according to its terms, which was paid. Subsequently the managing trustee and treasurer of the company promised that the company should pay them the installment in lieu of commissions, for the second quarter, ending December 30, 1870, amounting to one thousand dollars, which was never paid, and is the foundation of this action. Crondal and Dreyer occupied the offices of the company and with the assent of its officers used cards describing them as its agents, and negotiated sales of its manufacture. In January, 1871, Crondal assigned his interest under the agreement to Dreyer. In August, 1871, Dreyer recovered judgment in the marine court of the city of New York against the said company for one thousand dollars, the amount of the unpaid installment, and for fifty dollars nineteen cents costs. Execution thereon having been returned unsatisfied, Dreyer, August 11, 1871, assigned the judgment and all the claims on which it was founded to the plaintiff in this action, who sues the defendants as above. No report of the company was,filed in the office of the county clerk as required by law from the date of its organization in 1870 to May 20, 1872. There was some evidence that the defendant Walbridge resided in Brooklyn in December 1871, when this action was begun. He appeared and answered without objecting to the jurisdiction. The other defendants, who resided without the city of Brooklyn, were served with summons and complaint, gave general notice of appearance, but subsequently set up a want of jurisdiction. Trial was had in November 1873, before Neilsoh, Ch. J., and a jury. Defendants moved to dismiss the complaint on the grounds. 1. That the court had no jurisdiction. 2. That no cause of action had been made out. The motion was denied, and defendants excepted. Defendants’ counsel asked the court to charge that an assumption by the company of the above agreement must, to be binding upon it, be in writing; and, also, that, a resolution.of the board of trustees was necessary to. the binding adoption of the contract by the company. These requests were denied, and exception was taken to such denial. On verdict for plaintiff, for one thousand one hundred, and thirty dollars, judgment was entered for that amount with costs, amounting in all to one thousand five hundred and thirty-nine dollars and sixty-eight cents, and defendants appealed to the general term. Lewis 8. Thomas, attorney for defendants appellant- Paine <6 New, attorneys for plaintiffs respondent,, on the question of the ratification of Lamont’s contract by the company, cited Hooker v. Eagle Bank, 30 N. Y., 83; Phillips v. Campbell, 43 Id., 271; 17 Id., 453; 42 Vt., 128. And on the question of jurisdiction, Code of Procedure, §§ 33, 139 ; Laws of 1870, ch. 470,. § 5; Laws of 1871, ch. 282; Porter v. Lord, 4 Abb. Pr., 43 ; S. C., 13 How. Pr., 254 ; Bates v. Reynolds, 7 Bosw., 685; Spyer v. Fisher, N. Y. Super. Ct. (Feb. Gen. Term), 1874; 35 N. Y. Super. Ct. (3 Jones & S.),. 94 ; Vose v. Cockroft, 44 N. Y., 422 ; McKeon v. Lee, 51 N. Y., 482 ; Connors v. People, 50 N. Y., 241: Clapp v. Graves, 26 N. Y., 418; McCormick v. Penn, 49 N. Y., 308; Gracie v. Palmer, 8 Wheat., 699. Compare Sanborn v. Lefferts, p. 42 of this vol [MAJORITY — Reyholds, J.] By the Court. Reyholds, J. We think there-was sufficient evidence of the adoption by the company of the contract originally made by Lamont, in anticipation ot its formation, and that the plaintiff’s assignors were in the employ of the company during the quarter for which a recovery was had. It seems to us that upon the merits the case was properly disposed of by the court and jury. The more serious question is whether this court has. acquired jurisdiction of the action. The action was commenced under the statute of 1871. So far as that statute undertook to confer jurisdiction upon the court by reason of the residence of the plaintiff, it was unconstitutional. Whether the residence of one or several defendants jointly liable (as in this case) may not be made the ground of jurisdiction, has not, so far as we are advised, been yet decided by the court of last resort, and we do not clearly perceive how such legislation is obnoxious to the condemnation passed upon the act of 1873, by that court. At the time of the adoption of the present judiciary article of the constitution, the superior court and court of common pleas, in New York city, had jurisdiction in actions, “where one or more of several defendants jointly liable on contract reside, or are personally served with the summons” in said city (Qode, § 33.) That jurisdiction was “continued” by the judiciary article, showing that it was not intended, in the adoption of that part of the constitution, to make the courts of this class so strictly local, that they could not in any case send their process outside of their respective cities, and bring non-residents within their jurisdiction. It would seem then, not to be a. violation of the con stitution, to confer jurisdiction upon this court where any of the defendants jointly liable should reside in this city, and this at least was done by the act of 1871. The evidence, however, to show the residence of Wal bridge, in Brooklyn, is quite meager, but even if it should be held insufficient, we still think the court acquired jurisdiction by consent. ' The defendant Walbridge answered, without raising the question of jurisdiction ; and the other defendants appeared generally in the action, previous to the time of answering. We think this was a waiver of the objection. It is now provided by the Code (section 139) that “ a voluntary appearance of a defendant is equivalent to personal service upon Mm,” by which we understand that it is equivalent to legal effectual service. A voluntary general appearance with full knowledge of all the facts relating to the jurisdiction of the court, is a submission of the person to that jurisdiction, and is effectual, where the court has jurisdiction óf the subject-matter. In this case all that was necessary to give the court jurisdiction of the cause was residence of the defendants, or service of process within the city. Such service was dispensed with by its equivalent, a voluntary appearance. It is true that Judge Allen says, in Landers v. Staten Island R. R. Co. (53 N. Y., 460), “the objection to the jurisdiction was not waived by an appearance in the action, and an answer therein setting up the objection,” but this, of course, had reference to the facts of that case. The summons therein was served without any complaint, and there was no appearance beyond a notice of retainer and demand of copy of complaint. The defendant could not legally know but the action was one of which the court had undisputed jurisdiction. When the complaint was served notifying the defendant of the nature of the action, and showing that the court had not jurisdiction, the defendant answered, setting up that under such circumstances, such a notice and demand could not be held to be a waiver. In the case now before us, the summons and complaint were annexed ; and with the whole case before them the defendants gave a general notice of appearance in the action before answering. It may be that the court of appeals will hold that we have no jurisdiction upon these facts; but we prefer to await that decision rather than go beyond what it has already held in disclaiming a jurisdiction which the legislature has attempted to confer upon us. The judgment is affirmed, with costs. Present, McOtjb and Reynolds, JJ.