Johnson v. Cayuga & Susquehanna Railroad

11 Barb. 621, 1852 N.Y. App. Div. LEXIS 15

• Court: New York Supreme Court
• Decided: May 11, 1852
• Status: Published

Opinion

By the Court,

Shankland, J.

Two questions are discussed in the points submitted; first, could the defendant be sued by long summons 1 second, was there any evidence to sustain the verdict of the jury 1

On the first question I am of opinion that the defendant was properly sued by long summons. The constitution of 1846 provides that corporations may be sued in like cases as natural persons, before justices; and § 45 of the act amending the judiciary act of 1847, provides the mode of service of process in such cases, and directs it to be served on the presiding officer, secretary, cashier, treasurer, or any director or trustee thereof. In the absence of statutory regulations to the contrary, the ordinary long summons is the proper and legitimate process of a justice’s court. In cases of corporations, no provision is made for process by warrant, or attachment, or short summons. The provisions made by statute for process by warrant, attachment and short summons, are for the cases of natural persons sued as defendants, and not corporations. The words “resident” and “non-resident,” used in the statute, in respect of process by warrant and short summons, seem inappropriate when applied to corporations.

On the second point I am of opinion that there is no evidence of any agreement, express or implied, that the defendants were to weigh the plaster or cause it to be done, or to pay for it at Seymour’s. Although the defendants had done it, in previous years, for their own convenience, yet they had not done so after the. scales were broken. Mor could there be an implication of an agreement to do it, from a previous habity-when it arose from motives of mere convenience to themselves, in order to regulate their own charges. Had the defendants weighed this plaster, the plaintiff would not have heen bound by it, when he came to pay for the transportation; nor was the weighing of it, by the company, a condition precedent to the right of recovery.

[Madison General Term, May 11, 1852.

Mason, Crippen, Shankland and Gray, Justices.]

The plaster in this case was weighed by the plaintiff’s own request, and at his own suggestion, and before it was delivered to the defendants to be carried; and without the knowledge of the defendants, when they received it, that it had been weighed.

As there was not any evidence tending to prove a liability on the part of the defendants to pay for weighing the plaster, the judgment was properly reversed.

Judgment of county court affirmed.