against the assured, but against Smith, and is brought upon the theory that he obligated himself to pay for the services in question.

It appears from the testimony that the plaintiff and the defendant were acquaintenances, and that prior to the designation of the plaintiff as appraiser in this matter the plaintiff had spoken to the defendant about acting as appraiser. The plaintiff testified:

"I was talking to Mr. Smith in regard to fire insurance, and asked him if he had any appraisals; if he had, asked him if he would give me some. He said he thought he had one there. If it went to an appraisal, I could have it. He asked what I would charge him. I told him I would be reasonable with him."

That is all the conversation on the car. It appears that later Mr. Smith saw Mr. Underhill at his home, when Mr. Smith stated that it had gone to an appraisal. Smith brought Underhill the appraisal papers, and had a talk with him about the selection of an umpire. It is further contended that after the appraisal had been completed the plaintiff rendered a bill to the defendant, leaving it on his desk in his absence, and that subsequently the defendant called the plaintiff up on the phone and stated to him he had not received the money, and when he got it the plaintiff would be paid, or words to that effect.

We do not think that upon the entire evidence in this case the plaintiff was entitled to recover. His authority to act or to render any services whatever in the premises came, not from the defendant Smith, but from the insured Jackewicz. Without the written appointment from Jackewicz he could not do a day's work or earn a dollar. This written appointment signed by Jackewicz and the insurance company, and referring to the policy and its provisions, was placed in the plaintiff's hands as his authority to act. He testified he knew its provisions and also the provisions of the policy which provided for the insured paying his charges for services as appraiser. He further testified that he knew that Smith, the defendant, was acting in his capacity as adjuster as the agent of the insured. With these undisputed facts in the case, it seems to this court that the plaintiff was not entitled to recover as a matter of law against this defendant. When he assumed to act as appraiser under a written agreement between the insured and the insurance company, referring to the provisions of the policy by which the compensation for the services of the plaintiff was to be borne by the insured, that the plaintiff must be deemed to have consented to act under those terms and conditions, and could not thereafter expect to look for his pay to the agent who brought about his selection. It is not pretended that there was any talk between the plaintiff and Smith, the defendant, subsequent to the execution of the appraisal agreement, which in any way modified or changed the provisions of the policy as to who should pay for the appraiser's services.

This court is quite aware that it is possible for the agent to bind himself personally, although fully authorized to bind his principal, and when he pledges his personal responsibility he can be held. Cobb v. Knapp, 71 N. Y. 348, 27 Am. Rep. 51; Whitney v. Wyman, 101 U. S. 392, 25 L. Ed. 1050. In determining, however, whether an agent has or has not pledged his personal responsibility, this general rule

and 136 New York State Reporter

must be observed, that, "when the agency is disclosed and the contract relates to the matter of the agency and is without the authority conferred, the agent will not be personally bound unless upon clear and explicit evidence of an intention to substitute or to superadd his personal liability for or to that of the principal." Hall v. Lunderdale, 46, N. Y. 74. See, also, cases of Whitney v. Wyman, 101 U. S. 392, 25 L. Ed. 1050; Baer v. Bonynge, 72 Hun, 38, 25 N. Y. Supp. 666. I can find nothing in the testimony of Mr. Underhill, wherein he states the conversation between himself and Mr. Smith, which evidences any intention on the part of Mr. Smith to pledge his personal responsibility for the plaintiff's services. Such a conversation as the plaintiff relates, standing alone by itself, would leave it very doubtful as to any agreement on the part of Mr. Smith to become personally responsible; but, when taken in connection with the policy and the agreement for appointment of appraisers, we think all real question as to the intention. and understanding of the parties is ended.

It is contended by the counsel for plaintiff that the evidence presented simply a question of fact for the determination of the jury, and that this finding should be conclusive. Assuming that it became a question of fact and not one of law, nevertheless the evidence is so very strongly in favor of the defendant's position that it seems to this court. the judgment would have to be reversed under the provisions of section 3063, Code Civ. Proc., as against the weight of evidence. In this connection, attention should be called to the fact that as part of the verdict was included an item of $10 for the services of the umpire. We can find no evidence in the entire case justifying a claim against the defendant for such services.

Our conclusion, therefore, is that the judgment must be reversed, with costs to the appellant.

PHILIP BECKER & CO. v. BEVINS et al.

(Supreme Court, Special Term, Erie County. December, 1906.)

ATTACHMENT-GROUNDS-AFFIDAVITS-SUFFICIENCY.

An affidavit by an officer of a corporation suing for goods sold, which avers that the corporation made the sale and extended credit to the buyer on the strength of his false statement of his financial condition furnished by him to a commercial agency and by it to the corporation. but which fails to show that affiant had any personal knowledge that the buyer made the statement attributed to him, and which is not accompanied by an affidavit of any agent of the commercial agency as to the rendering by the buyer of the statement. is insufficient on which to base an attachment.

[Ed. Note. For cases in point, see Cent. Dig. vol. 5, Attachment, § 246.] Action by Philip Becker & Co. against Ralph S. Bevins and others. On motion to vacate the warrant of attachment on the original papers on which it was granted. Attachment vacated without prejudice. Eugene Bartlett, for the motion.

William C. Carroll, opposed.

WHEELER, J. The attachment was granted principally upon the affidavit of an officer of the plaintiff, stating the action was brought to

recover for goods sold to the defendant, and that the sale was made and credit given upon the strength of an alleged false statement of the financial condition of the defendant furnished to R. G. Dun & Co. and by R. G. Dun & Co. given to the plaintiff. There was furnished to the justice granting the attachment no affidavit by any officer or agent of R. G. Dun & Co. as to the rendering of the statement in question to that concern, nor was there any statement in the moving affiant explaining the omission to supply such an affidavit, or stating the sources of the affiant's information that any such statement had been in fact made.

The recent case of Price v. Levy, 93 App. Div. 274, 87 N. Y. Supp. 740, is practically identical with this in its facts and is decisive of this motion. In that case reliance was put on a statement made to R. G. Dun & Co. It was there held that the moving papers were insufficient to justify the granting of an order of arrest, as there was nothing to show that the affiant had any personal knowledge that the defendants made or signed the statement attributed to them.

For these reasons the attachment should be vacated, with $10 costs of motion, but without prejudice to apply for a new attachment upon further papers.

(116 App. Div. 812)

HOLZHAUSEN v. CITY OF NEW YORK.

(Supreme Court, Appellate Division, Second Department. January 18, 1907.) MUNICIPAL CORPORATIONS-SEWERS-UNUSUAL RAINFALL-LIABILITY OF CITY. A city was not liable for damages resulting from the insufficiency of a sewer to carry away the water of an unprecedented rainstorm, whose fall almost equaled one-fourth of the annual rainfall in that vicinity.

[Ed Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1779.]

Woodward, J., dissents.

Appeal from Trial Term, Kings County.

Action by Herman Holzhausen against the city of New York. From a judgment for plaintiff, defendant appeals. Reversed and new trial granted.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

James D. Bell (John J. Kean, on the brief), for appellant.
Benjamin F. Norris, for respondent.

JENKS, J. The defendant appeals from a judgment against it in an action for damages to personal property from the overflow. of the defendant's sewer. A jury was waived, and the court found that for a period of two years previous to the 13th day of November, 1903, and five or six times every year, during storms the sewers maintained by the defendant were insufficient to carry off the large quantities of waters and refuse that had been collected by the defendant throughout said sewer district and emptied into said lateral and

102 N.Y.S.-10

and 136 New York State Reporter

main sewers, causing said sewers to become choked so as to flood the streets, and casting upon plaintiff's said premises the water, refuse, and sewage matter gathered by the defendant, and that for a period of two years previous to said 13th day of November, 1903, and during and after every large storm throughout said district, and in the immediate vicinity of plaintiff's said premises, through the negligence of the defendant, the refuse, sewage matter, and water collected by the defendant and emptied into its main and lateral sewers caused said sewers to back up and throw their contents out upon the streets and into adjacent houses and stores, flooding the cellars and basements thereof, and notwithstanding these conditions the defendant negligently and carelessly failed to remedy said condition; and, as a conclusion of law, that by reason of the acts aforesaid defendant was guilty of negligence, and was, and now is, liable in damages for the losses sustained by the plaintiff during said period of two years previous to the 13th day of November, 1903. This case does not show that the damages were due to the conditions and consequences found by the learned court, and which are the basis of its finding of negligence. It appears that the damages were due to the single instance of the water coming through the closet and the sink, due to an excessive, exceptional, and, so far as the municipal records show, unprecedented rainstorm, whose fall almost equaled one-fourth of the annual rainfall in the vicinity. We have lately discussed the question. of municipal liability in such cases in Ebbets v. City of New York, 111 App. Div. 364, 97 N. Y. Supp. 833, opinion by Miller, J., and it is unnecessary to enter upon a further general discussion.

All that the evidence shows is that this water flowed up through the closet and sink under this exceptional rainstorm. The city is not bound to provide against extraordinary and excessive rainfalls. Abbott on Municipal Corporations, vol. 3, pp. 22, 31; Jones on Negligence of Municipal Corporations, p. 272, note; Smith v. Mayor, 66 N. Y. 296, 23 Am. Rep. 53. In O'Donnell v. City of Syracuse, 184 N. Y. 1, 14, 76 N. E. 738, 3 L. R. A. (N. S.) 1053, Gray, J., writing for the court, in comment upon Mills v. City of Brooklyn, 32 N. Y. 495, says:

"In deciding adversely to the claim of the plaintiffs for damages, it was held that 'the duty of draining the streets and avenues of a city or village is one requiring the exercise of deliberation, judgment, and discretion. It cannot, in the nature of things, be so executed that in every single moment every square foot of the surface shall be perfectly protected against the consequences of water falling from the clouds upon it. The duty is * ** of a judicial nature; for it requires the qualities of deliberation and judgment. It admits of a choice of means and of the determination of the order of time in which improvements shall be made.'”

The judgment is reversed and a new trial is granted, costs to abide the event. All concur except WOODWARD, J., who dissents.

(52 Misc. Rep. 322)

In re STEDLER.

(Supreme Court, Special Term, Erie County. December, 1906.)

1. INTOXICATING LIQUORS-REVOCATION OF LIQUOR CERTIFICATES-PETITION--DEFECTS-WAIVER.

An objection to a petition. under Liquor Tax Law, Laws 1896, p. 69, c. 112, § 28, authorizing a citizen to commence a proceeding to forfeit the right to carry on the liquor traffic, for the cancellation of a liquor certificate, on the ground that the facts therein alleged are stated on information and belief, raised after answer, without suggesting the ground, and after consent to an order of reference, comes too late.

2. SAME.

A petition under Liquor Tax Law, Laws 1896. p. 69, c. 112, § 23, authorizing a citizen to commence a proceeding to forfeit the right to carry on the liquor traffic, alleged the material facts on information and belief. Respondent answered without suggesting a defect in the petition on that ground, and consented to an order of reference. The evidence returned by the referee justified an order of revocation. Held, that an order of revocation would be entered, and petitioner would be granted leave to amend his petition so as to make it conform to the proof.

In the matter of petition of Robert C. Stedler for an order revoking and canceling a liquor certificate issued to Edward A. Hammell. Certificate canceled.

Charles A. Hahl, for petitioner.

Edward J. Carona, for respondent.

WHEELER, J. This proceeding is brought for the revocation of a liquor tax certificate because the necessary consent of two-thirds of the property owners within 200 feet of the premises had not been obtained, and for the reason that the respondent in the application filed for the license made false answers touching that fact.

The petition on which the proceeding is based, together with the usual order to show cause, was presented to the court, at which time the respondent appeared by attorney and filed an unverified answer denying each and every allegation of the petition. Thereupon by and with the consent of respondent's attorney an order of reference to take and report the evidence was made and entered. Subsequently the parties appeared before the referee, at which time counsel for the respondents moved for a dismissal of the petition and of these proceedings, on the grounds that the petition is on information and belief, and that the material facts necessary for granting of an order are not stated other than on information and belief. The referee, however, proceeded with the hearing, and now reports the testimony and proceedings before him. The relator asks for the usual order canceling the license, while respondent's counsel renews his objection to the proceedings and the granting of the order upon the same grounds stated before the referee. It is conceded by counsel that the evidence returned warrants an order canceling the license, provided the objection made to the sufficiency of the petition is not well taken.

The only question, therefore, to be considered is whether the objection is good. It is held that section 28 of the liquor tax law (Laws 1896, p. 69, c. 112), authorizing a citizen to commence a proceeding to