were each to advance an equal amount for the purchase of machinery; that defendant had advanced the full amount necessary for the purchase, namely, $700; and that one-half of such sum-$350--he had credited on the amount due from defendant for the patents. The defendant admitted that there was $80 still coming to plaintiff for services, but claimed that the sum of $350 above mentioned should be applied on plaintiff's salary. The jury returned a verdict of $430 for plaintiff, and defendant appeals.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. Doherty, Durnon & Hendrick, for appellant. Goodrich, Deady & Goodrich, for respondent.

PRATT, J. There is no question that plaintiff became entitled to receive $1,500 from defendant upon fulfillment of his duty under the contract. This he did until May, when his discharge by defendant operated to relieve him from further fulfillment of its terms. Therefore, as to the $430 claimed under the contract for services, the only question is, have they been paid for? It is not claimed that they have been directly paid for, but defendant claims that he has expended $700 upon a certain business in which plaintiff had some interest, and that for one-half of that sum, viz., $350, the plaintiff became liable in defendant's debt; and the claim is made that said sum of $350 should be taken as a payment to the $1,500 agreed to be paid for the year's services. There is no evidence that any agreement was made by the parties when the $700 was expended, or at any other time, that plaintiff's share $350—should be taken as a payment upon his wages. It follows that advantage of that $350 could only be taken by way of set-off or counter-claim. Neither is pleaded. Had the jury found in defendant's favor upon the question of payment, the verdict would have been erroneous, as there is no evidence to sustain that plea. The plaintiff was therefore entitled to a verdict

in his favor for $430.

As to the second cause of action the jury found a verdict in favor of defendant, and, as plaintiff does not appeal, we have no need to consider whether the verdict was right.

Two exceptions only were made to the judge's charge. One was to the refusal of court to charge that plaintiff had no interest in the patents which he could convey. It appears that one Lawton had advanced $1,500 upon the patents, secured by an assignment absolute in form. Upon those facts the court wisely declined to charge that plaintiff had no interest to convey. But were that error, yet, as the verdict on that branch of the case is in defendant's favor, such error has not prejudiced defendant. Defendant's request that the jury be charged that the $350 which plaintiff alleged was paid as part of the purchase price of the patents might be offset against the $430 due for wages, on the ground that the consideration for the patent transfer had failed, was properly denied for various reasons: First, as already pointed out, no such set-off or counter-claim is pleaded; second, as plaintiff had an interest remaining in the patents, notwithstanding his conveyance to Lawton, the consideration had not failed; third, the request required the court to disregard the evidence offered in behalf of defendant that the $350 was not paid in part payment for the transfer of the patents, but for an entirely different purpose. The plaintiff is clearly entitled to the verdict in his favor, and judgment is affirmed, with costs. All concur.

COHN v. ANATHAN et al.

(City Court of New York, General Term. February 26, 1889.)

PRACTICE IN CIVIL CASES-DISCONTINUANCE-COUNTER-CLAIM.

Since the adoption of an amendment to Code Civil Proc. N. Y. § 412, saving a counter-claim from the operation of the statute of limitations in case a discontinuance is allowed, plaintiff's motion for a discontinuance, on payment of defendant's taxable costs, should always be granted.

Appeal from special term.

Action by William Cohn against Moses Anathan and others. Plaintiff appeals from an order denying his motion to discountinue on payment of costs. Argued before MCADAM, C. J., and McGOWN, J.

David Tim, for appellant. Horwitz & Hirschfield, for respondents.

PER CURIAM. A party should no more be compelled to continue a litigation than to commence one, except where the substantial rights of other parties have accrued, or injustice would be done by permitting a discontinuance, and we have failed to discover any substantial reason why the plaintiff's motion to discontinue, on payment of the defendants' costs, should not have been granted. It seems to have been denied upon the ground that the defendants pleaded a counter-claim; but there is nothing in this circumstance which precluded the plaintiff from having his application granted. There are reported cases holding that a discontinuance should not be allowed where a counter-claim was interposed, but these were owing to peculiar circumstances. Some held that the discontinuance should not be allowed where the counterclaim was admitted by the plaintiff, or where the application for leave to discontinue was made after the time to reply had expired, or in cases where the statute of limitations would run against the counter-claim in case the discontinuance was allowed, and in order to prevent this result it was deemed inequitable to allow a discontinuance; but the objection last suggested has been obviated by an amendment to section 412 of the Code of Civil Procedure, which saves such counter-claim from the operation of the statute. So that it may now be laid down as a rule applicable to all cases that the plaintiff may at any time discontinue his action on paying the defendant's taxable costs to the date of discontinuance. See cases cited in 2 Rumsey, Pr. 155; In re Butler, 101 N. Y. 307, 4 N. E. Rep. 518. It follows that the order appealed from should be reversed, with costs, and the motion for leave to discontinue on payment of costs granted.

BEEBE . PARKER.

(City Court of New York, General Term. February 26, 1889.) COSTS-SECURITY-NON-RESIDENT-OFFICE IN NEW YORK CITY.

Code Civil Proc. N. Y. §§ 3268, 3269, requiring non-resident plaintiffs to give security for costs, use the phrase "non-residents of the state" with reference to courts of record generally, and "non-residents of the county" with reference to the city court of New York. Section 3160 provides that a plaintiff in an action in the latter court "who has an office for the regular transaction of business in person, within the city of New York, is deemed a resident of that city within the meaning of sections 3268, 3269. " Held, that a plaintiff in an action in the city court, who is a non-resident of the state, but has an office for the transaction of business in person in the city of New York, cannot be required to file security for costs, and it is immaterial that under another section of the Code such a non-resident is liable to attachment.

Appeal from special term.

Action by Charles Beebe against Samuel Webber Parker. Plaintiff resides in New Jersey, but has an office in New York city for the transaction of busi

V.4N.Y.S.no.2-7

ness in person, and appeals from an order requiring him to file security for costs. Argued before MCADAM, C. J., and McGOWN, J.

Warner & Frayer, for appellant. P. B. Vermilya, for respondent.

PER CURIAM. There is no statute requiring a non-resident plaintiff to file security for costs, except that contained in sections 3268 and 3269 of the Code, which are limited, in their application to this court, as follows: "A plaintiff in an action brought in the court, who has an office for the regular transaction of business in person within the city of New York, is deemed a resident of that city, within the meaning of sections 3268 and 3269 of this act." Code $3160. Those sections, in referring to the courts of record generally, refer to "non-residents of the state," and in referring to this court use the phrase "non-residents of the county," the latter term being more comprehensive than the former, as the words "non-residents of the county" necessarily include all "non-residents of the state," while the latter phrase does not include the residents of other counties of this state. The term "non-resident of the county" is therefore used in its most comprehensive and significant sense, and the qualification imposed by section 3160 is applicable, therefore, to all non-residents of the county, whether they reside in other counties or states. This is the construction placed on the act by the special term of this court in Wyckoff v. Devlin, 8 Civ. Proc. R. 138, and is the correct interpretation. Glass v. Place, 5 Daly, 110. It accords with the natural and obvious meaning of the words employed, which should be taken without resorting to subtle and forced construction. Courts cannot supply supposed errors, omissions, or defects. The office of interpretation is to bring a sense out of the words, not to bring a sense into them. McCluskey v. Cromwell, 11 N. Y. 593. The words used in section 3160 are plain and unambiguous, are special in their nature, and are in no way to be confuted by the general provisions of sections 3268 and 3269. Potter's Dwar. St. 273. It may well be that the legislature thought that a resident of Jersey City who invested his capital in business in the city of New York should be as favorably considered in respect to the right of prosecuting his demands as the resident of any other county of this state, (outside of New York city,) so long as each conducted his business in that city in person. The fact that a non-resident of the state, who does business in this city, is liable to attachment, (Code, § 3169,) is no argument against the construction adopted. There is no reason why a resident of another state should contract bills to creditors resident here, and escape attachment against his just demands because he has a place of business within this city. But where honest debts are owing to the non-resident doing business here, there is some propriety in allowing him the same facilities to collect them that are allowed to residents of other counties of the state similarly situated. The one is to protect our own citizens against the frauds of non-residents; the other is to protect the non-resident against the frauds of residents here. The moneys collected by nonresidents doing business here will, if honestly applied, be devoted to paying debts contracted here. If not so applied, the creditor resident here has his remedy by attachment against the non-resident, and his place of business will not protect him from the writ. We cannot discover anything unreasonable or illogical in all this, and it may be that such was the legislative impression. At all events, this is the legal result of what has been done. It is quite competent for the legislature to give a person a constructive residence in one place for specified purposes, leaving his domicile unaffected as to others. The act was therefore a legal exercise of legislative power. The costs awarded against an unsuccessful plaintiff are, as a rule, not large, but comparatively small, and the probability of collecting them might be equally as good from a Jerseyman doing business here as from a resident of an interior or remote county of this state doing a like business. For this one purpose of suing, both are made constructive residents of this city. But we need not search studiously for the

motives that led to the law. uous, and must be enforced. be reversed, with costs.

It is on the statute-book, is plain and unambig-
For these reasons the order appealed from must

VOGLE v. KIRBY.

(City Court of New York, Special Term. October, 1888.) CONTRACTS-ACTION-PLEADING-EXECUTION.

*

A complaint simply alleging that the action is on an instrument for the payment of money only, of which a copy is given, but not alleging the making of the instrument by defendant, is demurrable under Code Civil Proc. N. Y. § 534, which provides that "where a cause of action * * is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum which he claims. "

Action by Vogle against Kirby on a written instrument. Defendant demurred to the complaint, and plaintiff moves for judgment. Code Civil Proc. N. Y§ 534. referred to in the opinion, provides that "where a cause of action, defense, or counter-claim is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum which he claims."

Charles E. Hall, for motion. A. Paigelow, contra.

MCADAM, C. J. If the complaint had alleged the making of the note by the defendant, it would have been sufficient under section 534 of the Code, but, this essential allegation having been omitted, it is defective. Simply alleging that the action is on an instrument for the payment of money only, of which a copy is given, affords the defendant no opportunity of putting in issue the execution of the instrument. See Broome v. Taylor, 13 Hun, 341. The demurrer will therefore be sustained, with leave to the plaintiff to amend his complaint; $10 costs to defendant to abide the event.

KELLY v. WOMAN PUB. Co.

(City Court of New York, Special Term. October 8, 1888.) CORPORATIONS-ACTIONS-PLEADING-VERIFICATION.

Under Code Civil Proc. N. Y. § 525, subd. 1, requiring the pleadings of domestic corporations to be verified by an officer thereof, a verification by one who stated in the affidavit that he was "the former president of the defendant;" that all the offcers, including deponent, had tendered their resignations; and that "no other officers have yet been elected or chosen in their places, "-is insufficient.

Motion by defendant, the Woman Publishing Company, to compel plaintiff to accept an answer served by it; also a counter-motion by plaintiff to vacate a stay of proceedings heretofore granted, and for leave to enter judgment for want of an answer. Defendant is a domestic corporation, and is sued for a balance of rent. It served an answer in due time, verified by one Edward Goodenough, which verification, omitting formal parts, was as follows: "Edward Goodenough, being duly sworn, says that he is the former president of the defendant; that all the officers of the defendant, including deponent, tendered their resignations from office in said defendant prior to the commencement of this action, and no other officers have yet been elected or chosen in their place; that the foregoing answer is true," etc. Plaintiff refused to accept this answer, on the ground that it was not properly verified. Hence this motion.

H. Huffman Browne, for defendant. Charles H. Johnson, for plaintiff.

MCADAM, C. J. The Code requires that a verification of a pleading by a domestic corporation must be made "by an officer thereof." Code, § 525,

subd. 1. A verification by an ex-officer is unauthorized and insufficient; hence the plaintiff was under no obligation to accept the answer tendered, and the motion to compel him to accept it will be denied. The decision of this motion makes it unnecessary to decide the counter-motion made by the plaintiff. If the plaintiff enters judgment, the corporation may, upon the proper application, be heard as to the validity of the service made. No motion having as yet been made to test the validity of the service, that question cannot now be determined. No costs.

MCPARTLAND v. THOMS.

(City Court of Brooklyn, General Term. January 28, 1889.) NEGLIGENCE-DANGEROUS PREMISES-NUISANCE-LIABILITY OF LESSEE.

A lessee of the first floor of a building, who receives the benefit, as a part of the demised premises, of an awning over the sidewalk, which is there without a license from the city, maintains a nuisance, and is liable to one injured by its fall. Appeal from trial term.

Action by Ann McPartland against Henry Thoms for personal injuries. There was a judgment for plaintiff, and defendant appeals.

Argued before CLEMENT, C. J., and OSBORNE, J.

Robert Johnstone, for appellant. Charles J. Patterson, for respondent.

CLEMENT, C. J. The plaintiff, a child of the age of seven years, was playing on the sidewalk in the evening of December 26, 1883, in front of premises occupied by the defendant on Degraw street in this city, when the wooden awning over such sidewalk fell by the weight of the snow, and she thereby sustained injuries, and to recover compensation therefor this action was brought. The jury found a verdict for the plaintiff, and from the judgment entered thereon, and the order denying a new trial, this appeal is taken. This action was tried prior to the decision in the case of Jennings v. Van Schaick, 108 N. Y. 531, 15 N. E. Rep. 424, and a reversal is now asked on that authority. The difficulty in such contention by the counsel for the appellant is that there was no exception taken which brings up the point decided in that case; but, even if the question was before us, we do not think that the authority would help the counsel, for the reason that a license on the part of the city authorities was not pleaded in the answer. Clifford v. Dam, 81 N. Y. 52. The defendant had occupied the first floor of the building as a grocery store for over two years prior to the time when plaintiff was injured, and received the benefits of the awning as a part of the demised premises, and, if such awning was there without a license from the city authorities, it was a nuisanse, because an encroachment on the highway, and we do not see that it makes any difference in the law whether the defendant was a tenant by the month or by the year, for he is held liable for the reason that he maintained a nuisance, and not because he failed to make repairs. The exceptions at pages 21 and 22 of the case were not well taken, because the requests had no application, in view of the fact that the action was not brought for the negligence of the defendant. The question of contributory negligence was properly submitted to the jury. The judgment and order denying new trial must be affirmed, with costs. All concur.

WHITBECK v. ATLANTIC AVE. R. Co.

(City Court of Brooklyn, General Term. February 26, 1889.)

HORSE AND STREET RAILROADS-ACCIDENTS AT CROSSINGS-EVIDENce.

In an action for injuries received while a passenger on defendant's street car, plaintiff having introduced evidence to show that the car was striving to pass a crossing before another car, a question asked of a witness, as to whether he had seen races of that kind, was properly dia allowed.