FIRST DEPARTMENT, MAY TERM, 1898. MCLAUGHLIN, J. (dissenting). [Vol. 29. I think the order appealed from should be affirmed. (1) The moving papers did not show any valid reason for opening the default. The defendant had actual knowledge of the time when the trial was to take place, but she did not then have interest enough therein to even attend the same. (2) The moving papers did not establish that the defendant had any defense to the action. Indeed there is nothing contained in the record before us from which it can be fairly inferred that if the default were opened the defendant could successfully defend the action. And a judgment ought not to be set aside and an opportunity afforded for a new trial unless there be at least a probability of a different result being reached. (Blank v. Blank, 107 N. Y. 91.) To justify opening a default a satisfactory excuse must not only be presented, but facts must be stated from which the court can reach a legal conclusion based thereon that a different judgment may be rendered at the conclusion of another hearing; and as there is not a single allegation in the moving papers which would have justified the court at Special Term in reaching that result, the motion for that reason was properly denied. It will be observed that the defendant did not deny the truth of a single fact found by the trial court upon which the judgment sought to be set aside was rendered. The only excuse urged upon the oral argument before us, and the same plainly appears from the record, for opening the default is that the defendant desired to be in a position to appeal from the judgment and ultimately have the Supreme Court of the United States pass upon the validity of the Connecticut judgment. Under the law of this State as declared by numerous decisions, the defendant has no defense to the action. (McGown v. McGown, 19 App. Div. 369; Bell v. Bell, 4 id. 527; Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 id. 30; People v. Baker, 76 id. 78; O'Dea v. O'Dea, 101 id. 23.) And this being so the judgment regularly rendered, upon the strength and validity of which the rights of other persons may have become involved, ought not to be disturbed. For these reasons I am unable to concur in the opinion of Mr. Justice O'BRIEN. PATTERSON, J., concurred. Order reversed, without costs, and motion granted, without costs. FIRST DEPARTMENT, MAY TERM, 1898. App. Div.] GEORGE A. GUMBY, an Infant, by MARY L. CLAYTON, his Guardian ad Litem, Appellant, v. THE METROPOLITAN STREET RAILWAY COMPANY, Respondent. Negligence - driver of a street car increasing the speed of his horses when in view of a boy standing between the tracks. In an action based on the alleged negligence of a street railroad corporation, proof that the plaintiff, a boy five years of age, when crossing a city street, in company with an older brother, stopped in the space between the defendant's tracks to wait for a wagon to pass, and that the driver of a car, which was then from twenty to forty feet distant, although there was nothing to obstruct his view, regardless of the position of the child or the possibility of injury to him, urged his horses to a rapid rate of speed, with the result that one of them struck and injured the boy before he had crossed the farthest rail, renders proper the submission to the jury of the question of the defendant's negligence. APPEAL by the plaintiff, George A. Gumby, an infant, by Mary L. Clayton, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 10th day of January, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. M. P. O'Connor, for the appellant. John T. Little, Jr., for the respondent. O'BRIEN, J.: The complaint in this action was dismissed on the ground that no negligence on the part of the defendant was shown in connection with the occurrence which resulted in grave injuries to the infant plaintiff. On this appeal, which is from the judgment entered on the dismissal of the complaint, it is necessary only to examine the record to ascertain whether the action of the court below was right. It appeared in evidence that on the 22d day of May, 1897, the plaintiff, an infant of five years of age, in company with an older boy, about eleven years of age, was crossing Sixth avenue, at the southerly crosswalk of Third street. It also appeared that they were passing from the west to the east side of the avenue, and that there was a wagon proceeding northward on the uptown track of the FIRST DEPARTMENT, MAY TERM, 1898. [Vol. 29. defendant's railway. The boys had reached a position in the street between the two tracks. While they were there standing, waiting for the wagon or truck to pass, one of the defendant's cars was approaching, its distance being variously estimated at from twenty to forty feet. There was evidence tending to show that the horses attached to the car were proceeding at a rapid rate. The older boy crossed to the easterly sidewalk in safety. The younger boy, following him, was overtaken and struck by one of the horses drawing the car. The boy had almost reached the easterly rail of the track and was struck by the right hand horse, and sustained injuries which resulted in the loss of his right arm. There was evidence to show that, at the time he was struck, the car was still proceeding at a very rapid rate, and it was also sworn to by two of the witnesses that the driver was urging the horses, striking them on their backs with the reins and thus increasing their speed instead of abating it, as he should have done. In determining the question of the right to maintain the action, we must, of course, consider the proof in the most favorable light in which it may be viewed for the plaintiff, and so doing it needs no argument to show that the case should have gone to the jury on the question of the defendant's negligence. If the car was from twenty to forty feet away from the boy as he was standing between the tracks with nothing to obstruct the driver's view, and if the driver urged his horses to a rapid rate of speed, regardless of the position of the child and the possibility of injury to him, the inference of negligence is not to be escaped. The boy was at the crosswalk on the southerly side of Third street, and, according to the testimony, the driver of the car was urging his horses to increase their speed at that point, and kept on urging them, apparently without looking to what might be at the crossing in front of him. No question can be raised here with reference to those casual variations in the versions of different witnesses as to the same occurrence, which are always to be found in cases of this character. The trial judge had nothing to do with the matter of the credibility of witnesses. On the simple issue of the defendant's negligence, it was merely for him to say whether there was any evidence that would support the plaintiff's action; and we think there was enough to carry the case to the jury upon the facts as testified to by all the App. Div.] witnesses for the plaintiff. The evidence here was of such a character that it would warrant the jury in finding a verdict in favor of the plaintiff on the subject of the defendant's negligence. The question of contributory negligence does not seem to have entered into the decision of the court below; but upon that subject it may be said that if the question was in the case, it was for the jury also to pass upon that, because it cannot be held as matter of law on this record that there was contributory negligence. The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event. VAN BRUNT, P. J., BARRETT, RUMSEY and PATTERSON, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event. AND JAMES W. CHRISTOPHER, Appellant, v. THE LANGDON GRANGER BREWING COMPANY (LIMITED), Respondent, Impleaded with Others. Conversion of property by a wrongful levy and sale — use in its removal of the wagons of the assignor of the claim under which the judgment was recovered. A party, whose property is wrongfully levied upon in an action brought by the assignee of a brewing company against a third party and is taken to the brewery premises and subsequently sold, does not establish a cause of action against the brewing company for the illegal conversion of the property merely by proof that the trucks of the brewing company were used for the purpose of removing the property. APPEAL by the plaintiff, James W. Christopher, from a judgment of the Supreme Court in favor of the defendant, The Langdon and Granger Brewing Company, Limited, entered in the office of the clerk of the county of New York on the 24th day of January, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. The complaint alleges two causes of action, one for conspiracy and the other for conversion, but the plaintiff elected to try the case only upon the question of conversion. The material allegations of the complaint are, that on May 15, 1893, the plaintiff was the owner APP. DIV.-VOL. XXIX. 43 FIRST DEPARTMENT, MAY TERM, 1898. [Vol. 29. of a liquor business and all personal property and fixtures in the store No. 2337 Second avenue; that on said day the defendants caused to be executed illegal seizures or levies upon said property, and illegally removed and converted the same, and wholly omitted to comply with the statutes in making such seizures; that the plain tiff made a demand for the return of said property, but that the defendants wrongfully sold the same on May 22, 1893. All the defendants except Mullen appeared, but only the Langdon and Granger Brewing Company answered. Their answer is a general denial. The plaintiff offered evidence tending to show that on October 11, 1892, he and the defendant Mullen entered into written articles of copartnership for the purpose of carrying on the liquor business under the firm name of Mullen & Christopher, and commenced business at No. 2337 Second avenue, where a saloon had theretofore been conducted by one O'Toole. Prior to the formation of the copartnership the defendant company had left on storage at O'Toole's saloon certain stock ale, which remained there unbroached after Mullen & Christopher took the business. Up to some time in November, 1892, the copartnership bought certain malt liquors from the defendant company and fully paid for the same, excepting the sum of thirty dollars, which the plaintiff claims was adjusted by returning some casks of ale. The plaintiff personally purchased all the liquors bought after the formation of the copartnership, and in November, 1892, ceased to deal with the defendant company and bought instead from another brewing concern. About April 20, 1893, the business being unprofitable and the rent unpaid, Mullen told the plaintiff that he was going to abandon the business and that if the plaintiff wanted to he could go on with it alone. The plaintiff asked Mullen how that was to be done and Mullen said, "Yon can go on and I will just drop out of sight in regard to this store.” The liquor license was in Mullen's name, and as a transfer would cost twenty dollars, Mullen advised the plaintiff to let it remain until the license expired, when a new one could be obtained in the plaintiff's name. The plaintiff informed the defendant Mortimer of this arrangement between him and Mullen within a week or two after it was made. Mortimer was an agent or representative of the defendant company. |