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suffering. If upon the whole case you are satisfied that the injuries will involve consequences in the future, you may consider those consequences, provided upon the evidence you can say, with reasonable certainty, that they are the direct and natural result of the assault for which the defendants are liable.

Any consequences which are merely likely to result from the first injury, must be disregarded. For any remote consequences which are not the direct and natural result of the assault you can award no compensation.

You, therefore, cannot give the plaintiff anything for any consequences flowing from the fact that he was subject to chills and fever. So no damages can be given solely by reason of the fact that the vessel had no doctor or surgeon on board, for the owners were under no obligation to have one on board; nor can any damages be given for the reason that the vessel did not put into the port of Havana or any other port.

This, I believe, is all that the facts of the case call upon me to say. If there is anything else which counsel desire me to submit, they should speak.

The jury then withdrew, and after some time they returned with a verdict in favor of the plaintiff in the sum of $1,200.

PETER DE LACY, App'lt, v. ALFRED L. WALCOTT et al., Resp❜ts.

(New York Superior Court, General Term, Filed March 2, 1891.) DEPOSITIONS EXAMINATION BEFORE TRIAL.

An affidavit to procure an order for the examination of a defendant before trial to enable plaintiff to frame his complaint, should show a want of information as to subject matters, information of which will enable the party to make allegations that are material to the proper framing of a pleading, and should contain such particularity of statement as to the subject matter that the court may designate and limit the matters to be inquired into. An ignorance of details and particulars generally referred to without specification as to the kind of detail or particularity does not show that sufficient knowledge or information is not possessed to enable the plaintiff to frame a complaint without uncalled for particularity or minuteness.

APPEAL by plaintiff from an order vacating order for exami nation of defendant to enable plaintiff to frame complaint.

F. J. Myers, for app'lt; Lowrey, Stone & Auerbach, for resp'ts.

PER CURIAM.-The affidavit on which the order for the examination was based, after giving the usual preliminary statements, proceeded to give the facts that would show the nature of the action, and proceeded as follows: "The complaint to be framed herein will, after the discovery sought, state appropriate allegations based upon said facts and demand judgment, etc. I do further say I have diligently endeavored to ascertain information and evidence of the details and particulars of the matters herein before set forth, and as I am informed and believe, my said attorneys have likewise endeavored so to do, but cannot procure or obtain the same either by statements or admissions of the defendant, Alfred L. Walcott, and also by reason of the fact that

the book and record of the defendant, The Rapid Transit & Bridge Construction Company, are obliged to be kept in the city of Chicago aforesaid, so that proceeding for an inspection of their records is not available to deponent or his attorneys."

It thus appears that the affidavit does not show the materiality or the necessity of the examination for the admitted purpose of the application to frame a complaint. To make appropriate allegations does not call for new knowledge to be gained from an examination, for they are to be based upon "said facts" which are known and stated in the affidavit. An ignorance of details and particulars, generally referred to without specification as to the kind of detail or particularity, does not show that sufficient knowledge or information is not possessed to enable the plaintiff properly to frame a complaint without uncalled for particularity or minuteness.

Indeed it does not appear that the plaintiff is not possessed of all the information the examination might furnish, although the affidavit avers that he has been unable to obtain the information from certain specified persons. Non constat that there have not been other sufficient sources of knowledge. The vacating of the order was called for on these grounds.

An affidavit to be sufficient to maintain such an order should show a want of information as to subject matters, information of which will enable the party to make allegations that are material to the proper framing of a pleading. The affidavit is so vague and indefinite as to the matters that it cannot be perceived from all the averments taken together that what the plaintiff seeks in the examination will be necessary to the complaint. Therefore it does not appear that the examination is necessary and material within the meaning of the Code.

There should be such a particularity of statement as to the subject matter referred to, § 873, that the court may "designate and limit the particular matters as to which" a party to an action shall be examined. This provision is for the benefit of the party to be examined, and the papers should disclose sufficient to enable the judge, in his discretion, to direct what course the examination may take, and the party should have the means of claiming his right in that regard. On the present affidavits a judge could not make such a direction as the section intends.

Order affirmed, with ten dollars costs.
SEDGWICK, Ch. J., and TRUAX, J., concur.

DENNIS W. MORAN, Pl'ff, v. GEORGE CONOMA et al., Def'ts. In the Matter of MAYER and SIMON LOEB, Purchasers, App'lts.

(New York Superior Court, General Term, Filed March 2, 1891.) FORECLOSURE-PARTIES-UNKNOWN OWNERS.

George Conoma executed a mortgage in 1853, and shortly afterward left the city, he being a sailor, and has never since been heard from. On foreclosure of such mortgage the plaintiff made Conoma a party defendant, and also all unknown owners, "such owners being herein described as the wife, widow, heirs at law, devisees, grantees, assignees or next of kin, if any, of said defendant George Conoma, and their respective husbands and

wives, if any, all of whose names" were unknown. Held, that the unknown parties were properly designated; that judgment could be entered against them without evidence that they were in fact unknown or absentees, or that Conoma died without heirs at law or next of kin, and that a sale on the foreclosure conveyed a good title.

(Wheeler v. Scully, 50 N. Y., 667, followed.)

THIS is an appeal from an order made at the special term, granting the plaintiff's motion to compel Mayer Loeb and Simon Loeb, appellants, as purchasers of certain mortgaged premises described in the decree of foreclosure and sale herein, to comply with the referee's terms of sale and complete their said purchase.

F. J. Myers, for app'lts; James Kearney, for pl'ff; S. F. Higgins et al., for def'ts.

TRUAX, J.-The action was brought to foreclose a mortgage made in February, 1853, by the above named George Conoma. Shortly after making the mortgage the said George Conoma, who was then a sailor, left New York, and has never since been heard from.

The plaintiff made said mortgagor, George Conoma, a party to the action, and he also made "all persons unknown having or claiming an interest in the premises described in the complaint, such unknown persons or owners being herein described as the wife, widow, heirs at law, devisees, grantees, assignees, or next of kin, if any, of said defendant George Conoma, and their respective husbands and wives, if any, all of whom and whose names, except as stated, are unknown to the plaintiff."

There were other persons made defendants with the same general description. It is not necessary to set out in full the names of those so made defendants.

The appellants contend that the court could not render judg ment against the alleged unknown owners without some evidence that they were in fact unknown or absentees, or that the said George Čonoma died without heirs at law or next of kin, and refer to 451 of the Code of Civil Procedure, and to certain cases as authority for that contention.

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Section 451 says that "where the plaintiff is ignorant of the name, or part of the name, of a defendant, he may designate that defendant in the summons *by a fictitious name, or by as much of his name as is known, adding a description indentify ing the person intended. Where the plaintiff demands judgment against an unknown person, he may designate that person as unknown, adding a description tending to identify him. In either case the person intended is thereupon regarded as a defendant in the action and as sufficiently described therein for all purposes, including service of the summons as prescribed in article second of the last title." This section is composed of § 175 and part of § 135 of the old Code.

We are of the opinion that Wheeler v. Scully, 50 N. Y., 667, is a direct authority against the appellants in this action. That was an action for the foreclosure of a mortgage executed by the defendant, Scully, and, as in this case, in that the mortgagor, Scully, left the state in the year 1853 and has not been since heard from. N. Y. STATE REP., VOL. XXXVI.

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Service of the summons was made under subdivision 6 of 135 of the old Code, which is as follows: "In actions for the foreclosure of mortgages on real estate * * * if any party or parties having any interest in or lien upon such mortgaged premises are unknown to the plaintiff, and the residence of such party or parties cannot with reasonable diligence be ascertained by him, and such fact shall be made to appear by affidavit to the court * such court * * * may grant an order that the summons be served on such unknown party or parties by publishing the same which publication shall be equiva

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lent to a personal service on such unknown party or parties.

In Wheeler v. Scully, the printed book on appeal shows that the action was brought against "Patrick Scully if living, and his wife, if any, whose name is unknown to plaintiff, and the widow, devisees, heirs at law and next of kin of the said Patrick Scully, if deceased, who are unknown to the plaintiff." Judgment was perfected in that action, and upon the sale the premises were bid off by one Cabre. He refused to take title and complete the purchase upon the ground that from the length of time which had elapsed it was to be presumed that the mortgagor was dead; that it was as much to be presumed that his heirs at law were infants as that they were adults, and if infants the judgment did not bar them as the service of summons was not sufficient as against infants. Whereupon a motion was made to compel him to complete the purchase. It was held by the court of appeals that if it be conceded that the presumption was that the mortgagor was dead, as to which the court expressed doubt, and if the unknown heirs were infants, they were bound by the service as the subdivision of 135 above referred to made no exception in case the unknown defendants were infants; and that if otherwise, there was no presumption that they were infants, and this was for the purchaser to show in order to justify his refusal.

We are unable to distinguish Wheeler v. Scully from the case before us.

The order appealed from is affirmed, with costs to the plaintiff. SEDGWICK, Ch. J., and DUGRO, J., concur.

JAMES RENWICK, Resp't, v. THE NEW YORK ELEVATED R. R. Co. et al., App'lts.

(New York Superior Court, General Term, Filed March 2, 1891.)

1. CASE-CERTIFICATE.

A certificate that the case on appeal contains all the evidence does not mean that it contains in fact every word of evidence that was given on the trial; but that it contains all the material evidence given. 2. SAME.

It is the duty of an appellant to insert in the case so much of the evidence as he considers material to present the questions involved on the appeal. If it does not fairly present the testimony the respondent may propose amendments and it is the duty of the judge to settle the case. But where the respondent does not call the attention of the judge to any material testimony that has been left out, the appellant is entitled as of strict right to a certificate that it contains all the evidence.

APPEAL from an order denying a motion made by the defendants why the case on appeal herein should not be resettled in certain specified particulars.

Davies & Rapallo, for app'lts; Peckham & Tyler, for resp't.

TRUAX, J.-The trial judge in settling the case struck out the following words: "The foregoing case on appeal contains all the evidence taken upon the trial of this action," and of his action in striking out those words the appellant complains.

The respondent contends that the action of the trial judge was right, because in fact the case does not contain all the evidence taken upon the trial of this action. It, therefore, becomes necessary for us to determine the duties of the respective parties in making and settling a case.

This court will not consider questions of fact on appeal unless the case contains a statement of the kind above noted; but those words do not mean that the case in fact contains every word of evidence that was given on the trial. It means that it contains all of the material evidence that was given on the trial. Courts have frequently condemned the practice of transcribing stenographer's minutes and calling them a bill of exceptions or a case.

It was the duty of the appellant to make the case, inserting so much of the evidence as he considered material to present the questions involved on the appeal. If the case, as proposed by him, did not fairly present the testimony, the respondent could then propose amendments, and it was then the duty of the trial judge to settle the case. Lidgerwood Manufacturing Co. v. Rogers, 56 N. Y. Supr. Ct., 350; 21 N. Y. State Rep., 452.

In Perkins v. Hill, 56 N. Y., 87, it was said that when exceptions are taken to findings of fact and a case is made for the purpose of reviewing those findings, it must be assumed that all the evidence in support of the findings excepted to is inserted in the If the party making up the case omits any such evidence it is the plain duty of the other party to cause to be inserted by amendment the evidence which he deems material to sustain the findings excepted to.

case.

This case was cited with approval by the same court in Porter v. Smith, 107 N. Y., 531; 12 N. Y. State Rep., 479, in which it was said that under the new Code forbidding exceptions to findings of fact, the respondent gets no warning or notice of an intention to review questions of fact unless the case certifies that all the evidence has been included. If it so certifies, the respondent must look to it that nothing which he deems essential is omitted; but if it does not so certify, he is not in fault for supposing that questions of law only are intended to be reviewed and omitting to load the case with needless proof.

I think under these decisions it must be taken for granted that the case presented by the appellant did contain all of the material evidence that had been given on the trial. It so contained all the material evidence because the respondent had not seen fit to call the attention of the trial judge to any material evidence that had been left out.

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