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and 102 New York State Reporter The learned counsel for the respondent insists that the disposition of the proceeding was right, for the reason that the plaintiff omitted to prove the notice required by section 2236 of the Code of Civil Procedure. But the defendant appeared generally, and joined issue and went to a hearing on the merits, and made no motion at any time based upon the alleged defect. He thus waived the jurisdictional defect, and even if it were necessary for the plaintiff to prove such service, as part of his case, the defendant cannot first avail him. self of the point upon this appeal. McNish v. Village of Peekskill, 91 Hun, 324, 326, 36 N. Y. Supp. 1022; Haines v. Railroad Co., 145 N. Y. 235, 238, 39 N. E. 949; Flandrow v. Hammond, 148 N. Y. 129, 135, 42 N. E. 511.

The judgment of the municipal court must be reversed, and a new trial ordered, with costs to abide the event. All concur, except SEWELL, J., taking no part.

SMITH V. COE et al.

(Supreme Court, Appellate Division, First Department. January 25, 1901.) 1. SALES-PERFORMANCE OF CONTRACT-ACCEPTANCE.

Where a contract requiring the manufacture and delivery of a quality of bicycles does not contain a warranty, and the goods furnished are not according to contract, and are all equally bad, but the purchaser allows the manufacturer to deliver all the wheels after he has had a reasonable time to examine the first shipment, he cannot maintain a counterclaim to an action on the contract for the manufacturer's failure to furnish goods of the quality required by the contract, since his act constitutes

an acceptance. 2. SAME-AUTHORITY OF AGENT-ACCEPTANCE OF Goods.

Where it is in issue whether defendant refused to receive goods delivered under a contract made with the receiver for their manufacture and sale, evidence of statements made by defendant to the agent of the firm for which the receiver was appointed are not admissible against the receiver, since the agent could not bind the receiver of his principal.

.

Motion for reargument. Denied.
For former opinion, see 67 N. Y. Supp. 350.

Argued before VAN BRUNT, P. J., and RUMSEY, MCLAUGH. LIN, PATTERSON, and O'BRIEN, JJ.

PER CURIAM. Upon the motion for a reargument the defendants insist that this court overlooked the case of Cahen v. Platt, 69 N. Y. 348. It was therein held, as stated in the headnote, that:

“Where a vendee has received and accepted under a contract of sale a portion of the goods contracted for, the fact that the goods as accepted were of a quality inferior to that called for by the contract does not authorize him to repudiate the contract altogether and to refuse to accept the residue. He may demand goods of the stipulated quality, and if the balance, when offered, prove to be of an inferior quality, may refuse to accept; but, if such as the contract calls for, he is bound to receive them."

The principle of that case is not here involved, for here the wheels included in the first as well as the subsequent shipments were all of the same quality, equally good or equally bad, and therefore upon the question of delivery and acceptance it was proper to consider what was the attitude of the defendants with respect to the first shipment. Our decision was based upon the conclusion that under the contract between the parties there was no warranty, express or implied, that survived delivery and acceptance. We added, "It may not be amiss, however, to discuss briefly the question of delivery and acceptance," and in that connection called attention to the fact that all the wheels were of the same quality, and no point was made of a difference in quality between the first and subsequent shipments. If any were bad or of an inferior quality, then all were in the same category. That the first shipments were delivered, shipped to Germany, and received by the defendants, are facts not in dispute; and assuming, without deciding, in favor of the appellant's contention, that delivery was to be made in Germany, it was incumbent upon the defendants, in order to sustain their counterclaim, to prove that the wheels were not accepted, but were promptly rejected by them, as being inferior to those for which they had contracted. Upon the racts we concluded that the burden placed upon the defendants of showing that upon arrival of the first shipments they acted promptly, by rejecting or refusing to accept the wheels, had not been sustained. In that connection we did not overlook the exception taken to the refusal to allow defendants to show what was done in notifying one McDonald, but we agreed with the trial judge that such evidence was neither competent nor binding upon the plaintiff; for, though McDonald had been the agent of the firm for which the plaintiff was appointed receiver, it did not appear, nor was there sufficient founda: tion to show, that he was the authorized agent of the plaintiff, or in a position to bind him by his acts or declarations. Nor do we agree with the defendants that the case of Carleton v. Lombard, 149 N. Y. 137, 43 N. E. 422, which is an authority as to latent defects, is applicable. The defects here alleged were of such a character that they must have been apparent from the merest inspection of the wheels themselves. Furthermore, we did not assume that defendants' entire argument upon the counterclaim was on the theory of a sale by sample, but considered, in addition, the question as to whether there was a warranty, express or implied, which survived acceptance, and found, as stated, that there was neither an express warranty nor an implied warranty, such as might arise upon a sale by sample, or in a sale of standard goods.

The motion for a reargument should be denied, with $10 costs.

(57 App. Div. 381.)

TYRRIOL V. SEAMEN'S BANK FOR SAVINGS.

(Supreme Court, Appellate Division, First Department. January 25, 1901.) BANKS AND BANKING-Writs-PARTIES-Fictitious NAME.

Under Code, $ 451, authorizing a plaintiff who is ignorant of the name of a defendant to designate him in the summons by a fictitious name, a bank, on being sued by an assignee of deposits left with it, could not ask that the original depositor or his representatives be made parties, the whereabouts of such depositor being unknown, since the statute implies the existence of a definite defendant of unknown name, sued or about and 102 New York State Reporter to be sued, and both the depositor and his representatives could not at the same time be claimants.

Appeal from special term, New York county.

Action by Daniel Tyrrel against the Seamen's Bank for Savings. From an order allowing defendant to bring in additional defendants, plaintiff appeals. Reversed.

Argued before VAN BRUNT, P. J., and RUMSEY, MCLAUGH LIN, PATTERSON, and O'BRIEN, JJ.

Theodore Prince, for appellant.
W. W. Thompson, for respondent.

PER CURIAM. There does not seem to be any authority for the order appealed from. If John Sweeney is a claimant of the fund in the hands of the savings bank, certainly his widow, next of kin, executors, administrators, or assigns, if any, cannot be such claimants, and section 451 of the Code was not intended to permit the making of persons parties who under no circumstances could have any claim or interest in the action. The case of Town of Hancock v. First Nat. Bank, 93 N. Y. 82, expressly holds that this provision of the Code, authorizing a plaintiff who is ignorant of the name of a defendant to designate him in the summons by a fictitious name, implies an action commenced, and a defendant sued, or intended to be sued, whose name is unknown. Therefore, if John Sweeney is a claimant, his personal representatives would not be proper parties to the action; and, if John Sweeney is dead, then he would not be a proper party to the action, but his personal representatives would. Under the rule laid down in the case cited, there must be some definite allegation of claim which has its foundation in common sense, at least, in order to permit a person to be made a party by a fictitious name, under the section in question.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, with leave, however, upon payment of such costs and disbursements, to apply upon new papers, if the defendant shall be so advised, to bring in parties claimant.

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(Supreme Court, Appellate Division, First Department. January 25. 1901.) CRIMINAL LAW-FAILURE OF MAGISTRATE TO REDUCE TESTIMONY TO WRITING.

Failure of a magistrate to reduce to writing the testimony taken on which a conviction is had is ground for reversal; Code Cr. Proc. $ 204, subd. 5, under which a magistrate is required to reduce the testimony to writing only when a demand is made, having reference to proceedings bad on preliminary examination, which may result either in the commitment of accused to await the action of the grand jury or in his discharge, and not to cases finally disposed of by the magistrate.

Van Brunt, P. J., and O'Brien, J., dissenting. Appeal from special term.

Charles W. Hines was convicted of vagrancy, and he appeals. Reversed.

Argued before VAN BRUNT, P. J., and RUMSEY, MCLAUGHLIN, PATTERSON, and O'BRIEN, JJ.

Louis Lowenstein, for appellant.
Charles Le Barbier, for the People.

MCLAUGHLIN, J. The defendant was tried and convicted of the crime of vagrancy, and sentenced to be imprisoned in the city prison of the city of New York for the term of six months. From this judg. ment he appealed to the court of general sessions of the city of New York, where the judgment was affirmed, and from the order and judgment of affirmance he has appealed to this court. He asks for a reversal of the judgment (1) because it is unsupported by evidence; (2) because the magistrate before whom the trial was had failed to keep the minutes of testimony; (3) because the evidence was insufficient to warrant a judgment of conviction; (4) because incompetent, irrelevant, and immaterial evidence was admitted upon the trial.

The magistrate before whom the trial was had, according to the return as set out in the record before us, did not keep any minutes of the testimony taken upon the trial. In the return he states, “I do hereby further certify that no testimony was reduced to writing, except the papers which are herewith included in this return;" and the only. papers included in the return are the information upon which the warrant was issued, and the formal statement of the defendant to the effect that he was not guilty of the charge. The only error alleged, therefore,—inasmuch as the minutes of the trial are not returned,—which can be considered by us, is the second one; and as to this the question seems to have been disposed of in People v. Giles, 12 App. Div. 496, 42 N. Y. Supp. 749. The same question was there presented and determined, and this court held that, where a magistrate fails to reduce to writing the testimony taken upon which the conviction is had, that fact, in and of itself, is a sufficient ground for a reversal of the judgment. But it is urged by the respondent that a magistrate now is only required, in the city of New York, to reduce testimony to writing when a demand to that effect is made either by the district attorney or the defendant; and, as authority for that suggestion, our attention is called to subdivision 5 of section 204 of the Code of Criminal Procedure. But this same suggestion was made in People v. Giles when that case was before this court, and a conclusion reached adversely to the present contention. Mr. Justice Rumsey, in delivering the opinion, said:

"It is said, however, that the magistrate was only required to reduce this testimony to writing when a demand to that effect was made either by the district attorney or the defendant, and as authority for that proposition is cited section 204 of the Code of Criminal Procedure. That section is part 4 of the Code of Criminal Procedure, which treats of the proceedings in crimipal actions prosecuted by indictment. It is in that special part of part 4 which prescribes the proceedings to be had upon the preliminary examination which may result either in the commitment of the defendant to a wait the action of the grand jury or in his discharge. The proceeding which is the subject of examination here is regulated, so far as it is regulated at all by statute, by part 5 of the Code of Criminal Procedure, which treats of proceedings in courts of special sessions and police courts, and which also contain regulations regarding proceedings before police magistrates. The direcand 102 New York State Reporter tions contained in part 4 for the regulation of proceedings in criminal actions prosecuted by indictment do not apply to the proceedings mentioned in part 5 of the Code of Criminal Procedure, unless they are made so to apply by special provision of the statute. People v. Cook, 45 Hun, 34. Therefore section 204, referring as it does only to preliminary examinations, in no way affects the duty of the magistrate in proceedings had under section 291 of the Penal Code, which are regulated, as we have seen, by part 5 of the Code of Criminal Procedure. All these proceedings in part 5, including this particular one, may result in a judgment detaining the defendant or subjecting him to a fine. They therefore necessarily and finally dispose of the rights of the person who is brought before the magistrate, and a proper protection of those rights requires that the evidence taken before the magistrate, and which he holds is sufficient to warrant his action in depriving the defendant of his liberty, should be reduced to writing, so that upon an appeal the correctness of his conclusion may be examined."

It is true that upon appeal the conclusion of this court was reversed. People v. Giles, 152 N. Y. 136, 46 N. E. 326. But it was reversed only upon the ground that the affidavit upon which the appeal was allowed did not contain an allegation to the effect that the judgment of the magistrate was unsupported by evidence, and for that reason it was unnecessary to return the evidence. But that court approved of the conclusion of this court, so far as such approval may be gathered from the opinion delivered, that in a criminal case it is error sufficient to call for the reversal of a judgment of conviction if the magistrate did not keep the minutes upon which the judgment of conviction was given. Judge Haight, in delivering the opinion, said:

“Our magistrates are invested with important powers. Many offenses of a criminal nature may be tried and summarily disposed of by them. Their determinations in many instances involve the liberties and properties of citizens. To permit them to exercise these important powers without keeping any minutes or records of the testimony upon which their determination can be reviewed would be contrary to public policy, and would be investing them with autocratic powers greater than those possessed by any other officer of the government."

It cannot be that the legislature intended that a magistrate should be invested with power to deprive a citizen of his liberty without keeping any record of the evidence upon which the judgment is based. If one can be deprived of his liberty in this way, then it does not require a vivid imagination to see how insecure personal liberty is. But this is not the law, and public policy forbids that it should be. When one is deprived either of his property or his liberty, the court depriving him of it must have record evidence justifying the action taken, which can be produced when called for, in order that a review may be had by an appellate tribunal.

It follows that the judgment and order appealed from must be re versed, and the case must be remitted to the court of general sessions, with directions to order a new trial, which should be had in that court according to law.

VAN BRUNT, P. J.,

RUMSEY and PATTERSON, JJ., concur. and O'BRIEN, J., dissent.

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