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and 136 New York State Reporter fendant rested, whereupon the court submitted the case to the jury which found for the plaintiffs. I think that the learned court erred.

The question is whether there was any evidence to justify the submission to the jury as to whether the plaintiffs brought the minds of the seller and purchaser to an agreement for this sale at the price and at the terms thereof. Sibbald v. The Bethleham Iron Company, 83 N. Y. 378, 38 Am. Rep. 441. We may concede that the attention of Humphreys was called to the land by the plaintiffs' sign on it, that he was brought into contact with Coffin and Kosch by the plaintiffs, that he was induced by them to ask for an option upon the land, and that they made offers for the land on Humphreys' behalf. But all these acts may be characterized by the words of Finch, J., in Sibbald's Case, supra:

“Ile may have introduced to each other parties who otherwise would have never met; he may have created impressions which, under later and more favorable circumstances, naturally lead to and materially assist in the consummation of a sale; he may have planted the very seeds from which others reap the harvest; but all that gives him no claim. It was part of his risk that failing himself, not successful in fulfilling his obligation, others might be left to some extent to avail themselves of the fruit of his labors."

The terms as stated to plaintiffs were $13,000 and commissions. As appears from the letter of September 4th written by plaintiffs to Humphreys, they offered but $12,000 and then $12,500, which offers were refused, for the plaintiffs write in effect that the price is $13,000. And that they had no authority from Humphreys to increase the offer is indicated by the succeeding sentence of the letter, "Better consider again on this valuable plot."

The rule is not affected by the fact that Kosch subsequently sold the land to the wife of Humphreys or to Humphreys himself. Freedman v. Havemeyer, 37 App. Div. 518, 520, 56 N. Y. Supp. 97; Wylie v. Marine National Bank, 61 N. Y. 415, 419. There is no indication that Kosch was guilty of any bad faith. Williamson offered him $12,500, the highest price theretofore submitted by the plaintiffs. He declined it, and then as he himself puts it:

"I was a little tired about dickering with the property, and he raised his offer $12,750, and I accepted the offer."

There is nothing to dispute or to discredit his testimony that he supposed that he had made the sale to some person other than Humphreys. He asked Williamson the question whether the purchaser was Humphreys, and he was told that it was not Humphreys, but a Mrs. Champney. Mrs. Champney signed the contract, and on the next day Kosch received a payment on account, less the broker's commissions.

The learned counsel for the appellant contends that Ware v. Dos Passos, 162 N. Y. 281, 56 N. E. 742, is authority in his favor. In that case the court held that the admission of the defendant to the effect “that he considered the plaintiff to be what the law denominated 'the procuring cause'" was evidence to support the plaintiff, and therefore the judgment of nonsuit should be reversed. In the case at bar, Kosch says it is true that he never took the property out of the plaintiffs' hands until he sold it. But there is no proof that the agency was exclusive, and the inere fact that it was left in their hands did not preclude Kosch from selling it aside from them. Freedman v. Havemeyer, supra. He does not testify that he did not sell through any other agent, but that no one was brought in person to him by any other agent. “I sold the property." This is not in contradiction of his subsequent testimony that he sold through Williamson representing the purchaser. He does not testify in effect that the plaintiffs were "the procuring cause.” It is true that when he ascertained at the time the contract was signed by Mrs. Champney that the title was not to be taken by her but by the wife of Humphreys, that he told Humphreys' attorney that from the facts he had in his possession he deemed the contract was obtained from him by misrepresentation, and that he would resist any attempt to transfer the title, because he would be subject to a lawsuit by the plaintiffs. But Kosch had considered himself entirely free to sell the property, for he had contracted to sell it, and he must have considered that the sale was through Williamson, for he accepted the payment less the commissions to Williamson's employer-another broker. His final hesitation was due plainly to the revelation that the sale was to Humphreys' wife. He did not assert or admit that the plaintiffs had aught to do with this sale, but feared "a lawsuit.” He wished "to be protected and not be subjected to a double claim for commissions.” In fine, his lay mind was disturbed lest he might be subject to a claim on the part of the plaintiffs, because Humphreys had in the beginning through them secured an option (which had expired before the sale), and had made offers (for smaller prices which had been rejected before the sale), and that it came to light that he had after all unwittingly sold the lands to Humphreys' wife. This is quite different from the admission by a defendant who is a lawyer (and the court in Ware v. Dos Passos, supra, lay stress on that circumstance) that the broker is the procuring cause, for the court in Wylie v. Marine National Bank, supra, say:

“Under these circumstances the bank violated none of his rights by selling to the first party who would offer their price; and it matters not that they sold to the very party with whom plaintiff had been negotiating. He failed to find or produce a purchaser upon the terms prescribed in his employment, and the bank was under no obligation to wait any longer, that he might make further efforts."

I think that the learned County Court erred in not granting the motion to dismiss, and that therefore the judgment and order must be reversed, and a new trial be ordered; costs to abide the event. All concur, except HOOKER, J., who dissents.

102 N.Y.S.-2

and 136 New York State Reporter

(116 App. Div. 791)

CROSSMAN V. SMITH,

(Supreme Court, Appellate Division, Second Department. January 11, 1907.) ATTORNEY AND CLIENT-ATTORNEY'S LIEN–ENFORCEMENT.

Plaintiff instituted a dispossession proceeding against defendant in which she was succcessful, whereupon defendant appealed to the County Court. There was no counterclaim involved in the proceeding, and, while the appeal was pending, the parties stipulated for a settlement, which provided that all suits in regard to the property were withdrawn and settled. Held, that defendant's attorney had no lien that entitled him to enter judgment on appeal against plaintiff, notwithstanding the

settlement for the purpose of securing his fees. Appeal from Nassau County Court.

Action by Hannah M. Crossman against William F. Smith. From an order of the Nassau County Court canceling of record a judgment for costs, defendant appeals. Affirmed.

Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ.

Lincoln B. Haskin, for appellant.
George Wallace, for respondent.

WOODWARD, J. Hannah Crossman was the landlord of William F. Smith. They had differences, and Smith sued the respondent in the Supreme Court. The respondent at the same time began a proceeding to dispossess the appellant for the nonpayment of rent. In this proceeding the respondent was successful, but the appellant appealed to the County Court. While this appeal was pending, Smith expressed a desire to settle the differences, resulting in a settlement in which Smith paid the respondent the sum of $133.33 for back rent, and for two months in advance. It was agreed in writing on the part of Smith “that all suits in law in regard to the above property is this day and date withdrawn and settled," and while the agreement is loosely drawn, there can be no doubt that it was intended as an adjustment of the differences between the parties, and was so accepted by both of them in good faith. Some time after this settlement between the parties, Smith's attorney entered a judgment on appeal against Mrs. Crossman for the sum of $38.12; this being done for the purpose of securing his fees, rather than from any doubt as to the settlement and its scope, and upon this appeal from an order setting aside this judgment, the appellant urges that lie had a lien upon the cause of action for his fees.

There was no counterclaim involved in the proceeding, and there could not, therefore, be any statutory lien. No fraud or collusion is shown; the settlement between the parties appears to have been made and accepted in good faith, and just how the defendant's attorney could be entitled to have this judgment stand is more than we have been able to discover. The case of National Exhibition Co. v. Crane, 54 App. Div. 175, 6 N. Y. Supp. 361; 167 N. Y. 505, 60 N. E. 768, rests upon the fraud and collusion practiced on the defendant's attorney, and has no relation to the facts as they appear in the matter now before the court, and the books will, we believe, be searched in vain for a case in which the defendant's attorney has been permitted to prosecute an appeal for the mere purpose of securing his fees, after the parties to the action have settled in good faith.

The order appealed from should be affirmed, with costs. All concur.

(16 App. Div. 709)

REED V. NEW YORK & Q. C. RY. CO. (Supreme Court, Appellate Division, Second Department. January 11, 1907.) 1. CARRIERS-PASSENGERS-INJURIES-ASSAULT BY EMPLOYÉ-WEIGHT OF Evi.

DENCE.

Evidence in an action against a carrier for an assault by one of its conductors upon a passenger held to show that the passenger was the ag

gressor. 2. SAME-LIABILITY FOR ASSAULT BY EMPLOYÉ IN SELF-DEFENSE.

A carrier is not liable for an assault upon a passenger by one of its employés acting in self-defense.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 9, Carriers, $ 1123.) Hirschberg, P. J., dissenting.

Appeal from Queens County Court.

Action by Hyland G. Reed against the New York & Queens County Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

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

I. R. Oeland, for appellant.

George F. Hickey (William E. Stewart, on the brief), for respondent

JENKS, J. In this case a passenger has recovered damages for an assault by the defendant's conductor. During the carriage, an altercation arose over a demand for fare, which the passenger said he had already paid. The altercation continued, both when the demand was repeated and when the passenger made a demand for a transfer ticket. which was refused on the ground of the nonpayment of fare. When the car reached the transfer point, the passenger alighted and the altercation resulted in the alleged assault. As witness to the occurrence, the plaintiff called one passenger and the defendant called the conductor and two passengers. All save the plaintiff agree that after the passenger had alighted he used abusive or threatening words to the conductor, and attempted to take hold of his leg or legs when the conductor had begun to start or had started the car on its way. All save the plaintiff agree that he finally succeeded in catching the conductor by his leg or legs, and three testify that he thus pulled the conductor off his car to the ground. Then blows were interchanged and the combatants fell to the ground. The plaintiff himself first testifies that, when he was on the ground and the conductor was on the car, he grabbed at the conductor's foot, and at that time the foot was raised to kick; but even the plaintiff, further on in his evidence, testifies:

and 136 New York State Reporter "Q. When he started to start the car? A. I made a grab, and he raised his foot, and I grabbed for the foot, and the first thing I knew I got a punch in my face."

The very great preponderance of the evidence is that the plaintiff, after leaving the car, not only used abusive or threatening language, but was the aggressor in physical violence at a time when the conductor was about his business. There was an allegation that the assault was committed by some instrument, but none testified to this but the plaintiff, and he, when pressed by the court, admitted that he drew that as an inference from the wound received in the fight. But his physician finally testifies that such a wound might be produced by a clenched fist. And, moreover, there is evidence that the plaintiff was cut by falling upon the rails during the fight. In fine, the clear preponderance of proof indicates that the plaintiff was the aggressor, and that as the result of his assault a scuffle or a fight ensued, in which blows were exchanged. Both the combatants bore the marks of the battle, and neither was seriously injured. In N. O. & N. E. Railroad Co. v. Jopes, 142 U, S. 18, 25, 12 Sup. Ct. 109, 35 L. Ed. 919, the court, per Brewer, J., after discussing the justifiable use of force in the protection of passengers, say:

"But, if an employé may use force to protect other passengers, so he may to protect bimself. He has not forfeited his right of self-defense by assuming service with a common carrier; nor does the common carrier engage aught against the exercise of that right by his employé. There is no misconduct when a conductor uses force and does injury in simply self-defense; and the rules which determine what is self-defense are of universal application, and are not affected by the character of the employment in which the party is engaged.”

See the rule laid down in Weber v. Brooklyn, Q. C. & S. R. R. Co., 17 App. Div. 306, 309, 62 N. Y. S. 1, et seq.

I am not satisfied with the judgment, but think that there should be a new trial. McDonald v. Metropolitan St. Ry. Co., 167 N, Y, 66, 60 N. E. 282.

A new trial is ordered, with costs to abide the event.

WOODWARD, RICH, and MILLER, JJ., concur. HIRSCHBERG, P. J., dissents.

(116 App. Div. 719)

BLOOMGARDEN V. HOFFMANN et al.

(Supreme Court, Appellate Division, Second Department. January 11, 1907.) 1. SET-OFF AND COUNTEROLAIM-SPECIFIC PERFORMANCE.

was a

Where a vendee refused to perform on the ground of the unmarketability of the title, and sued to recover the portion of the purchase price paid by him, a prayer of defendant for specific performance counterclaim available to him.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Set-off and Counter

claim. $$ 49, 50.] 2. SPECIFIC PERFORMANCE-APPEAL_EFFECT-RIGHT OF OWNER TO DISPOSE OF

PROPERTY.

('ode Civ. Proc. & 501, provides that a counterclaim must be a cause of action against the plaintiff and in favor of the defendant; and section

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