Thomas v. New York & Greenwood Lake Railway Co.

may have been necessary to put either in a first-class condition.

It was the duty of the plaintiff to set forth in his complaint facts upon which the court could determine whether the work alleged to have been done upon the railway of the defendant company could be considered "necessary repairs." He has not, however, stated any specific facts, but has made general allegations, which are partly merely expressions of opinion, and, so far as they can be regarded as statements of facts, are so vague, indefinite, and uncertain that it is difficult, if not impossible, to determine what they do mean. There is no allegation as to how much of the defendant company's railway has been rebuilt, nor how much new railway, or how many new structures have been built, and the allegations in regard to the rebuilding of the railway of the defendant company and in regard to building new railway and structures might be true, although the actual rebuilding and building, as distinguished from "necessary repairs," were of the most trifling and insignificant amount.

These features of the complaint are not aided by section 519 of the Code. In Clark v. Dillon (97 N. Y. 373), RUGER, Ch.J., delivering the opinion of the court, said: "It was formerly the settled rule to construe doubtful pleadings most strongly against the pleader, but this rule has been so far modified by the Code as now to require them to be liberally construed, with a view to substantial justice between the parties. This modification has, however, been held to extend only to matters of form, and not to apply to the fundamental requisites of the cause of action" (citing authorities).

"A construction of doubtful or uncertain allegations in a pleading which enables a party by thus pleading to throw upon his adversary the hazard of correctly interpreting their meaning is no more allowable now than formerly; and when a pleading is susceptible of two

Thomas . New York & Greenwood Lake Railway Co.

meanings, that shall be taken which is most unfavorable to the pleader" (citing authorities).

"It is in the nature of things that a party who is required to frame his issues for the information of his adversary and the court must be responsible for any failure to express his meaning clearly and unmistakably. While it is competent for a party to move to make the pleadings of his adversary more definite and certain, yet, inasmuch as it is the primary duty of the party pleading to present a clear and unequivocal statement of his allegations, the onus of having them made so cannot be cast upon his adversary by his own fault in failing to perform his duty."

We think that, applying the rule thus laid down, the allegations of the complaint as to the rebuilding of the defendant's railway, and the building of new railway and structures, taken in connection with the other allegations of the complaint, do not state a good cause of action against either of the defendants, because upon these demurrers they cannot be considered as sufficient allegations that the money expended for those purposes was not covered by the term "all expenses, including necessary repairs," contained in the proviso inserted in each bond.

So far as the leasing of the Watchung Railroad, and the operating the same, are concerned, the allegations of the complaint in effect amount to a charge that the board of directors acted improvidently in making such lease, and in operating that road at a loss. It is sufficient to say that the question whether such lease should be made, and upon what terms, and whether the road should be operated, was devolved by law upon the board of directors of the defendant railway; and as there is no allegation that they acted in bad faith, or exceeded their powers, in this respect, the alleged improvidence in making the lease, and operating the road, does not, in connection with the other allegations of the complaint.

Adler v. Order of American Fraternal Circle of Baltimore City.

constitute a good cause of action against either of the defendants.

The judgment should be affirmed, with costs.

VAN BRUNT, P.J., and O'BRIEN, J., concurred.

ADLER v. ORDER OF AMERICAN FRATERNAL CIRCLE OF BALTIMORE CITY.

SUPREME COURT, FIRST DEPARTMENT, NEW YORK COUNTY SPECIAL TERM; MAY, 1892.

§§ 635 et seq., 1780.

Attachment-what must be shown in action against foreign corporation.

The affidavits upon which an attachment is granted against the property of a foreign corporation must show that the court has jurisdiction over the subject-matter, and that a cause of action exists in favor of the plaintiff and against the defendant, by alleging either that the plaintiff is a resident of this state, or that the action is brought to recover damages for the breach of a contract made within this state, or that the cause of action arose within this state; and unless it does so, there is no jurisdiction in the court or judge to grant an attachment; the omission is jurisdictional, and cannot be cured by an amendment. (Decided May, 1892.)

Motion by the defendant to vacate an attachment issued against its property.

This action was brought by the plaintiff against the defendant, a corporation organized under the laws of the state of Maryland, to recover the sum of $200, being a

Adler v. Order of American Fraternal Circle of Baltimore City.

benefit to which the plaintiff alleges she, as a member of the defendant's society or corporation, became entitled under its constitution and by-laws because she was during eight weeks, between November 15, 1891, and January 15, 1892, sick.

Upon an affidavit setting forth these facts an attachment was issued against the property of the defendant after the summons in the action had been served upon it, and the defendant moved to vacate said attachment. upon the papers on which said attachment was granted, on the ground that it did not appear therefrom that the cause of action arose within this state or that the plaintiff resided within this state.

Gruber & Landon, for defendant and motion.

Samuel F. Hyman (Hyman & Heinzleman, attorneys), for plaintiff, opposed.

INGRAHAM, J.-In an action of this character, by section 1780 of the Code, this court has jurisdiction in an action against a foreign corporation only when it appears that the plaintiff is a resident of this state, or where it appears that the action is brought to recover damages for breach of a contract made within this state, or where the cause of action arose within the state.

To give the court jurisdiction to grant an attachment it must appear by affidavit that a cause of action exists in favor of plaintiff against defendant, and the general term of this court has held that, unless the facts appear in the affidavit that give the court jurisdiction of the subject-matter of the action, the judge has no jurisdiction to grant the attachment (Oliver v. Heyward Chair M'f'g Co., 10 N. Y. Supp. 771; s. c., 32 St. Rep. 542). This is distinct from the court acquiring jurisdiction over the person of the defendant. Unless the facts

VOL. XXII.-22.

Beckley v. Chamberlain.

appear to bring the case within section 1780 of the Code, the court has no jurisdiction over the subject-matter, and there is, therefore, no cause of action alleged. This is jurisdictional, and cannot be cured by amendments.

The motion must, therefore, be granted, and the attachment vacated; $10 costs to abide the event.

BECKLEY, APPELLANT, v. CHAMBERLAIN, RE

SPONDENT.

SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM; JUNE, 1892.

$$ 523, 529.

Verification of pleading-when, cannot be omitted in action for deceit and false representations.

In an action to recover damages for deceit and false representations in the sale of stock the defendant's answer must be verified. The provision of section 523 of the Code of Civil Procedure that the verification of a pleading may be omitted “in a case where it is not otherwise specially prescribed by law, where the party verifying would be privileged from testifying as a witness concerning an allegation or denial contained in a pleading, is limited by section 529 of the Code, under which a defendant is not excused from verifying his answer, not only in actions relating to confessed judgments, fraudulent conveyances and actions affecting specific property," but also where the complaint charges him "with any fraud whatsoever affecting the right or property of another." In construing section 529 it should not be limited simply to fraudulent transfers of property, but effect must be given to every provision of it.

Frist . Climm (6 N. Y. Civ. Pro. 30) questioned and not followed. (Decided June, 1892.)