KUTYN v. COHEN et al. (Supreme Court, Appellate Term. May 7, 1909.) APPEARANCE (§ 24*)—WANT OF SERVICE—Waiver. Defendant, by appearing and answering without objecting to the jurisdiction of the court, waived his right to question the validity of the judgment because no summons had ever been served. [Ed. Note. For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. § 24.*] Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Paul Kutyn against Joseph Cohen and another. From a Municipal Court judgment for plaintiff, defendant Cohen appeals. Affirmed. Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ. Isidor Cohn, for appellant. Joseph Kleiner, for respondent. GILDERSLEEVE, P. J. The defendant Cohen appeals from a judgment rendered against him upon the ground that the summons in the action was never served upon him. He presents affidavits in support of his appeal tending to show such to be the fact. The justice's return, however, shows that on the return day, the case being called, the defendant appeared by an attorney, who answered for him and interposed, without objecting to the jurisdiction of the court, an oral plea to the plaintiff's oral complaint, a general denial, and the case was adjourned by consent for trial. We are bound by the return, and as it now stands the voluntary appearance of the defendant precludes him from questioning the validity of the judgment on the ground of want of jurisdiction in the court below. Judgment affirmed, with costs. All concur. LEVITTAS v. HART. (Supreme Court, Appellate Term. May 7, 1909.) PLEADING (§ 323*)—BILL OF PARTICULARS-SECOND MOTION. Denial, on the ground of laches, of defendant's motion for bill of particulars, the case being then on the day calendar, is no ground for denial of a second motion therefor, the case having in the meantime, at plaintiff's request, been marked off the day calendar and returned to the general calendar, under which situation defendant should be allowed a bill, as it would not delay plaintiff. [Ed. Note. For other cases, see Pleading, Dec. Dig. § 323.*] Appeal from City Court of New York, Special Term. Action by Emanuel Levittas against Frieda Hart. From an order denying a motion for bill of particulars, defendant appeals. Reversed, and motion granted. Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ. Joseph Rosenzweig, for appellant. Henry Kuntz (A. Pinkney Wilkes, of counsel), for respondent. PER CURIAM. The action was brought by plaintiff May 19, 1904, for damages alleged to have been caused to the plaintiff because of the leakage of water through the roof of premises owned by defendant and occupied by plaintiff as a tenant. On June 11, 1904, a demand for a bill of particulars was served upon plaintiff's attorney. On January 8, 1909, an order to show cause why such demand should not be complied with, containing a stay (until the hearing and determination of the motion) of the action, which was then upon the day calendar, was secured. The justice before whom the motion was argued denied it upon the ground that defendant was "guilty of inexcusable laches," and an order denying the motion and vacating the stay was entered. On January 21, 1909, the case, being still undisposed of, was marked off the day calendar at the request of plaintiff and returned to the general calendar. Thereupon, and on February 8, 1909, the defendant secured an order to show cause why a reargument should not be had from the judge who had denied the motion. That motion for reargument, coming on to be heard before another judge, was not referred by him to the judge who had denied the motion, and who granted the reargument, but was denied upon the sole ground that the motion had been previously denied for laches and no appeal had been taken from that decision. It appears that in opposition to the first motion plaintiff's attorney introduced an affidavit in which he stated that the cause was then on the day calendar and that: "The plaintiff was prevented from proceeding in this action by reason of a stay contained in the order to show cause obtained by the defendants in this motion for a bill of particulars." Upon the motion for reargument, however, the plaintiff was not prevented from proceeding, since by his own request the case was then on the general calendar, having been marked off the day calendar. It follows that the plaintiff would not, therefore, lose by the delay, and that the trial would not be postponed if the defendant be allowed her bill of particulars, in which case such motions should be granted. Convery v. Marvin, 128 App. Div. 265, 112 N. Y. Supp. 673. The fact that the first application had been denied, and no appeal taken, is not conclusive in this instance, since a new and different situation had arisen, and that by the plaintiff's own act, so that he could no longer urge his disadvantage as a reason for denying the motion. While it would have been, in our judgment, the better practice to refer the reargument to the judge who denied the original motion and gave leave for its renewal, this was not done. In any event the changed circumstances required a change in the decision and the motion should have been granted, especially in view of the fact that the plaintiff himself was not free from laches, in that he had delayed bringing the case on for trial for 42 years. The order should be reversed, therefore, and the defendant's motion granted, as prayed for in her first motion and as set out in her original demand for a bill of particulars, but not in conformity to the demand made in the second motion, which is in a number of respects unreasonable. Order reversed, with $10 costs and disbursements, and motion granted as indicated in the opinion. HEYMAN v. STRYKER. (Supreme Court, Appellate Term. May 7, 1909.) 1. CARRIERS (§ 108*)-PUBLIC TRUCKMAN-LIABILITY. A public truckman, engaged in transporting for hire the goods of such as chose to employ him, was a common carrier, and liable, as for a breach of contract, to a person delivering goods to him for carriage, where the goods were never delivered, but were stolen by the truckman's driver. [Ed. Note. For other cases, see Carriers, Dec. Dig. § 108.*] 2. CARRIERS (§ 119*)—CARRiage of GoodS-LIABILITY for Loss. A carrier is responsible for loss of goods which he undertakes to carry. irrespective of negligence or fault on his part, if the loss does not occur by the act of God or the public enemies. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 523-530; Dec. Dig. 119.*] Appeal from Municipal Court, Borough of Manhattan, First District. Action by Louis Heyman against Iram H. Stryker, Jr. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered. Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ. Henry C. Burnstine, for appellant. PER CURIAM. The defendant was a public truckman, engaged in the business of transporting for hire the goods of such as chose to employ him. On October 10, 1907, the plaintiff delivered to defendant, for carriage to the named consignee in New York City, certain merchandise. The goods in question were never delivered pursuant to the contract of carriage, but were stolen by the defendant's driver. The trial court dismissed the plaintiff's complaint, and rendered judgment for the defendant upon a counterclaim for services previously rendered to the plaintiff. The defendant is liable It was error to dismiss the complaint. for the damages sustained by the plaintiff in the loss of the goods. His obligation to the plaintiff is that of a common carrier for breach of contract. The defendant was a common carrier, within the rule laid down in Jackson Iron Works v. Hulbut, 158 N. Y. 34, 52 N. E. 665, 70 Am. St. Rep. 432. The question of defendant's negligence is not presented. "The law adjudges the carrier responsible, irrespective of any question of neg ligence or fault on his part, if the loss does not occur by the act of God or the public enemies." Merritt v. Earle, 29 N. Y. 115, 86 Am. Dec. 292. The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. FIXEL V. TALLMAN et al. (Supreme Court, Appellate Term. May 7, 1909.) ATTACHMENT (§ 351*)-WRONGFUL ATTACHMENT-BOND-ELEMENTS OF RECOVERY-ATTORNEY'S FEES. Defendant T. brought attachment against a foreign corporation. The attachment was sustained on that ground, but the complaint was dismissed on the merits, and T. appealed, and the appeal was finally dismissed. Held that, since the attachment was used to secure jurisdiction of the foreign corporation defendant, except for which there would have been no trial, attorney's fees in defending the action on the merits constituted a proper element of damage on the bond for wrongful attachment. [Ed. Note.-For other cases, see Attachment, Cent. Dig. § 1294; Dec. Dig. 351.*] Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Rudolph Fixel, as assignee of the Atlantic Rubber Manufacturing Company, against Charles A. Tallman and others. From a Municipal Court judgment for plaintiff for less than the relief demanded, he appeals. Modified and affirmed. Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ. Samuel P. Goldman, for appellant. Walter L. Pate, for respondent Russell. PER CURIAM. The defendant Charles A. Tallman brought an action against the Atlantic Rubber Manufacturing Company, and procured an attachment against said company on the ground that it was a foreign corporation, as to the merit of which ground there was no dispute, and upon the undertaking given to procure such attachment the defendants in the case at bar were sureties. The Atlantic Rubber Company procured an undertaking to discharge said attachment, upon which undertaking the United States Fidelity Company was the surety, and for which bond the said Atlantic Rubber Company paid a premium of $10. No motion was made to vacate the attachment, for the reason that the compnay was in fact, as above stated, a foreign corporation, and a motion to vacate would have been useless. In order, therefore, to dispose of the attachment, it was necessary to await the result of the trial. Upon the trial, the trial judge, after hearing the evidence of both sides, stated that he would not undertake to decide the issues, and, on motion of the attorney for said Tallman, a second trial was ordered, and the case sent to another justice. Upon a *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes second trial, the justice, having heard the evidence of both sides, reserved his decision and directed the respective counsel to submit briefs, which was done, and subsequently the court rendered his decision, dismissing the complaint on the merits. The costs of that trial have been paid; but said Tallman, the plaintiff therein, appealed to the Appellate Term of the Supreme Court from said judgment, but this appeal was finally dismissed. This action at bar is brought by the assignee of the Atlantic Rubber Manufacturing Company against the sureties on the undertaking given by Tallman to procure the attachment above mentioned, which attachment necessarily fell with the judgment in favor of the Atlantic Rubber Manufacturing Company against Tallman, dismissing the complaint on the merits, with costs. The court allowed plaintiff as damages arising from said attachment $10 damages and $4.41 costs. Plaintiff appeals, on the ground that the court should also have allowed $68 counsel fees. As we have seen, no motion was made to vacate the attachment, and the issues involved at the two trials of the action were by no means identical with any question of the validity of the attachment; but it cannot be said that the labor of counsel at the trials was not attributable to or rendered necessary by the existence of the attachment. It was that attachment which compelled defendant's appearance in the action, since defendant was a foreign corporation, so that, had it not been for the attachment, there would presumably have been no trial, and, therefore, counsel fees incurred in the action are damages which defendant sustained by reason of the attachment, within the meaning of the undertaking in suit. Tyng v. American Surety Co., 48 App. Div. 242, 62 N. Y. Supp. 843; Ives v. Ellis, 35 Misc. Rep. 333, 71 N. Y. Supp. 971, affirmed 67 App. Div. 619, 73 N. Y. Supp. 1137. The counsel for plaintiff sets forth in detail the services performed with regard to the trials and appeal, and the value thereof, and as such services would not have been rendered, were it not for the attachment, they must be regarded as items of damage arising from the issuing of the attachment, and by the terms of the undertaking the defendants are liable for the costs and damages sustained by reason of the attachment. Judgment modified, by increasing the recovery by the sum of $68, and, as modified, affirmed, with costs. (62 Misc. Rep. 324.) In re BOARD OF WATER SUPPLY OF CITY OF NEW YORK. (Supreme Court, Special Term, Westchester County. July, 1907.) 1. COSTS (§ 2*)—Nature. Costs in general are sums allowed to a successful litigant as compensation for his expenses incurred in the litigation. [Ed. Note. For other cases, see Costs, Cent. Dig. § 26; Dec. Dig. § 2.* For other definitions, see Words and Phrases, vol. 2, pp. 1633-1640; vol. 8, p. 7620.] 2. EMINENT DOMAIN (§ 265*)-PROCEEDINGS TO TAKE PROPERTY-COSTS "ExPENSES AND DISBURSEMENTS. Laws 1905, p. 2027, c. 724, as amended by Laws 1906, p. 736, c. 314, being an act to provide for an additional supply of water for the city of New |