AUGUSTE A. BATES v. JACOB A. REYNOLDS and HENRY SLIN

GERLAND.

1. The Superior Court of the city of New York has jurisdiction of an action on contract, where one or more of several defendants, jointly liable on the contract, reside, or are personally served with the summons within that city. (Code, § 33, sub. 2.)

2. Where the complaint in an action against two persons as common carriers, who are partners in that business, avers the delivery of goods to them, at New Baltimore, Greene county, to be carried thence to New York city; that they were common carriers between those places, and partners in that business; that they received the goods, and "then and there undertook to convey the same from New Baltimore to the city of New York, and to deliver the same to the plaintiff;" that they did not safely carry and deliver, but so negligently conducted that the goods were wholly lost, it states an action on contract, where the defendants are jointly liable.

3. Where, in such an action, one of the defendants is served with the summons within the city of New York, that court has jurisdiction of the action; and where the defendant so served alleges in his answer that both defendants reside in Greene county, and did at the time of, and since the commencing of the suit, and that his co-defendant was served with a copy of the summons and complaint in Greene county, and not within the city of New York; that part of the answer will be stricken out on motion as irrelevant.

Special Term, March 8. 1861. Before WOODRuff, J.

THIS action was commenced by the service of the summons and complaint herein upon the defendant, Reynolds, in the city of New York. After which service, a copy of the summons and complaint was served on the defendant, Slingerland, by the sheriff of Greene county, at New Baltimore, in that county.

The complaint alleges, in substance, that the defendants were copartners, and as such were common carriers; and doing business as common carriers, in the conveyance of goods for hire between New Baltimore and the city of New York. That on the 25th day of August, 1860, at New Baltimore, the plaintiff delivered to the defendants, to be carried and delivered to the plaintiff, at New York, for a reasonable compensation, &c., a certain trunk, containing

Bates v. Reynolds.

apparel, &c., belonging to the plaintiff, of the value of $300; and the defendants received the same, and then and there undertook to convey the same from New Baltimore to New York, and to deliver the same to the plaintiff. That the defendants did not safely carry and deliver the same, but so negligently conducted, in regard to the same, that the same was wholly lost to the plaintiff; whereby she sustained damage to the amount of $300, with interest from the said 25th day of August, 1860, which the plaintiff claims to recover.

The defendant, Reynolds, by his answer, admits his copartnership with the defendant, Slingerland, in the business of carrying merchandise and produce from New Baltimore, in the county of Greene, to the city of New York, and denies all the other allegations in the complaint. And for a second' or further defense, he alleges that his copartner, Slingerland, was served with a copy of the summons and complaint herein, in the county of Greene, and not in the city of New York; and that both of the defendants were, at and prior to the time of such service of the summons and complaint in this action upon them, and still are, resident in the town of New Baltimore, in the county of Greene, and not in the city and county of New York.

The plaintiff now moves to strike out of the answer this second or further defense, as irrelevant

William Allen Butler, for the Plaintiff, in support of the motion.

William A. Whitbeck, for Defendant, Reynolds, in opposition.

WOODRUFF, J.-The notice of motion in this case proposes to strike out, as irrelevant and immaterial, so much of the answer of the defendant, Reynolds, as sets up, by way of defense, that this court has no jurisdiction of this action, or for such other or further relief, &c.

As nothing is said in the answer on the subject of juris

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diction, the notice in those terms can hardly be said to designate, with appropriate distinctness, the precise portion. of the answer to which it refers. The motion was nevertheless argued, without objection as to the form of the notice; and, as argued, it was applied to those averments in the answer which, if they do not warrant the claim that this court has no jurisdiction of the action, are clearly irrelevant for, confessedly, they can serve no purpose if they do not raise that question.

They are contained in the defendant's second or further defense, and consist of averments that both of the defendants reside in the county of Greene; and that the co-defendant was served with the summons and complaint in that county, and not in the city of New York. The motion, made and argued, was to strike out this defense as irrelevant; and the motion is resisted, on the ground that the action against a common carrier, for the loss of goods. received for carriage, is in substance an action of tort; and that this court has, therefore, no jurisdiction, unless both of the defendants reside or are served with the summons in this city.

The Code declares, (§ 33,) that the jurisdiction of this court shall extend to certain specified actions; and "to all other actions where all the defendants reside, or are personally served, within" this city; "or where one or more of several defendants, jointly liable on contract, reside, or are personally served, within" this city.

One of the defendants in this case has been personally served within this city.

It is insisted on the part of the defendant that the action is an action of tort, and, therefore, not within the last clause above cited; and that in actions of tort this court has no jurisdiction, unless all of the defendants reside, or are served, within this city. If we were to adopt the suggestion, that all actions against common carriers for lass of property committed to them for carriage are actions of tort, and were we also to follow the cases cited to us by the defendants' counsel, Ansell v. Waterhouse, (2 Chitty, 1,)

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and Bretherton et al. v. Wood, 3 (Brod. & Bing. 54,) in both of which the action, in form of tort against the common carrier, was held to involve a charge of misfeasance, and therefore to lie against one of them severally — the non-joinder of others not being pleadable in abatement, or otherwise available to defeat the action; Low v. Mum ford, (14 J. R. 426;) I say, if we were to follow these cases and others therein cited, and apply them to the present action, the inquiry would be interesting, whether under the views expressed in Mc Kensie v. Hackstaff, (2 E. D. Smith, 75,) the defendant, who is served with process within this city, can avail himself of the non-service or the irregular service upon another defendant. Each being severally liable, the court has jurisdiction as to the defendant served here; and the plaintiff may, at any time before the trial, discontinue as to the other defendant, and proceed to trial and judgment against the defendant so served.

I do not, however, deem it necessary to place the dispo sition of this motion upon that ground; nor to say whether, though the objection cannot be taken by motion, it may by answer. The view that I take of the nature of the action, determines the question before me.

It is not questionable, that an action on the case would lie at the common law against a common carrier; and that in this form of action, prior to the case of Dale v. Hall, (1 Wilson, 281,) the gravamen of the action, as laid in the declaration, was in general tort; and yet Denison, J., says, in the case last cited, that in the old forms it was averred that the defendant undertook, &c., which he says shows that the action was ex contractu; and in Boson v. Sandford, (2 Salk. 440, and 2 Show. 478,) in 1689, the declaration was that the defendants undertook, &c., and the action was held ex quasi contractu; and the nonjoinder of some of the shipowners was fatal. [In noticing this case in Rice v. Shute, (5 Burr. 2612,) it was held that the non-joinder should be pleaded in abatement.] The discussion in the case of Govett v. Radwidge et al., (3 East. 62,) shows that, at all events since the case of Dale v.

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Hall, it was permitted to the plaintiff to declare in tort for a breach of the duty of the common carrier, or to declare in assumpsit upon his express or implied promise or undertaking to carry. And in modern times, it is stated. in the elementary works that the plaintiff has his option; and the advantages and disadvantages of either form of declaring are stated. As, for example, if the form of the action be tort, counts in trover may be added, and nonjoinder of defendants cannot be pleaded. (Dickon v. Clifton, 2 Wils. 319; Mitchell v. Tarbutt, 5 T. R. 649; Govett v. Radwidge, 3 East. 62; Ansell v. Waterhouse, 2 Chit. 1; Bretherton v. Wood, 3 Brod. & Bing. 54; and, in this State, Bank of Orange v. Brown, 3 Wend. 158.) But if the form of the action be assumpsit, it is founded upon the defendant's contract, express or implied; all of the copartners or joint contractors must be made defendants, and other counts in assumpsit may be united therewith. (Powell v. Layton, 2 Bos. & Pul. N. R. 365; Max v. Roberts, 2 Id. 454; see note to Weall v. King, 12 East. 452-454; 1 Chit. Pl. 96, 136, 137; 1 Selwyn's Nisi Prius, title "Carriers," V.; 3 Wend. 158, cited above.)

Attention being given to the distinction between the cases in which the contract or undertaking of the defendant, and the breach thereof, is made the ground of the action, and those in which no contract or undertaking, express or implied, is stated, but the action is plainly a case for a breach of duty, most of the apparent discrepancies between the cases will disappear. The result is that a plaintiff may, if he think proper, bring his action against the common carrier in assumpsit on his undertaking or agreement to carry and deliver. Such an action is an action on contract, and in that action all the co-contractors must be joined as defendants.

And in another aspect, this point seems to my mind. quite clear whatever be the forms of remedy provided for a plaintiff proceeding against the carrier, the ground work and substance of the liability of the latter is an acceptance of the goods, either under an express agreement to carry, VOL. VII.

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