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and 118 New York State Reporter PER CURIAM. The judgment in this action in favor of the plaintiff should be reversed. It is against the weight of evidence. The plaintiff sued upon an express contract alleged to have been made between himself and the defendant, whereby the defendant agreed to pay plaintiff a commission of 10 per cent. as a broker in procuring the sale of five carriages by defendant to one Wechster. The plaintiff not only failed to prove any express contract as alleged, but was permitted, over objection and exception by defendant, to show a custom existing among carriage dealers of paying a commission of 10 per cent. to persons making sales for and on their behalf. Inasmuch as there must be a new trial, it may as well be said also that the plaintiff failed to show that he was employed by the defendant to make any sale, or was the procuring cause of the sale that was made.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

AMPEL V. SEIFERT et al.

(Supreme Court, Appellate Term. June 22, 1903.) 1. SALES-SUIT FOR PURCHASE PRICE--NATURE OF TRANSACTION-SUFFICIENCY

OF EVIDENCE.

Evidence held insufficient to show that a consignment of furs by a Jewish teacher traveling in Europe to fur merchants in New York was an absolute sale, rather than made under an option in the merchants to elect what furs they would keep, and dispose of the others on com

mission, holding any remainder to the teacher's account. 2. SAME-BURDEN OF PROOF

The burden is on a seller suing for the price of goods, under what he claims was an absolute sale, to substantiate his version of the character

of the transaction. 3. SAME-AMOUNT OF VERDICT

Evidence in a seller's suit for the purchase price of goods held insufficient to sustain a finding as to market value. Appeal from City Court of New York, Special Term.

Action for the price of goods by Efriam Ampel against Wolf Seifert and another. From an order denying a motion for a new trial on a verdict rendered against defendants, and from an order restraining the proceedings of plaintiff and the sheriff under an execution upon certain conditions named therein, defendants appeal. Reversed in part, and affirmed in part.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Kenneson, Crain, Emley & Rubino, for appellants.
Henry Kuntz, for respondent.

FREEDMAN, P. J. The order, as resettled, restraining the plaintiff and the sheriff from proceeding under any and all executions on the judgment, upon certain conditions therein named, should be affirmed, with costs.

The appeal of the defendants from the order denying their motion, which was made under section 999 of the Code, to set aside the

verdict and for a new trial, presents a more serious question. The issue litigated and submitted to the jury was whether certain skins and furs shipped by the plaintiff from Europe to the defendants' firm were unqualifiedly sold to them, to be paid for at the market price in New York, or consigned to them upon the agreement that the defendants should pay him the market price in New York of such of the goods as they might elect to keep; that the remainder should, if possible, be sold by them for plaintiff's account upon a commission of 10 per cent.; and that such of the goods as they did not elcct to keep for themselves, and were unable to dispose of to others, should be held for his account. The only evidence to establish plaintiff's claim of an unqualified sale of all the goods was that which came from his own lips. He was flatly contradicted by the defendants, and their version, viz., that only a consignment was agreed upon, was partially, but materially, corroborated by a disinterested witness. Upon the question of market price, the plaintiff's testimony was also somewhat weakened by his own sworn statements in making oath to the consular invoices. Moreover, upon the wliole case, the plaintiff's version appears to be inherently improbable, and that of the defendants highly probable. The defendauts were fur merchants in New York. The plaintiff was a Jewish teacher of languages-a man who had never been in the fur business, and who did not have, even on the day of the trial, knowledge as to the market value of furs. He wanted the court and jury to believe that the defendants bound themselves absolutely to buy at the market price in New York all furs and skins which during his European trip he might ship to them, regardless of the fact that he was no judge of the quality of furs or skins, regardless of dates of shipment and the seasonableness of the goods in the New York market, and regardless of the length of time during which he might make purchases, and all this without limit as to the quantities which he might elect to purchase. Such an agreement would lack every element of ordinary business prudence on the part of the defendants. The burden of proof was upon the plaintiff, but the preponderance of evidence was so much in favor of the defendants that their motion to set aside the verdict and for a new trial should have been granted.

I am also of opinion that the evidence as to market value in New York is insufficient to sustain the verdict as rendered. The plaintiff himself had no knowledge whatever upon the subject. The only witness he produced had never seen the goods, and such witness, although perhaps otherwise qualified, frankly admitted that the value depended upon what kind of goods they were. It was not shown to him whether the goods in question were good or bad, of superior or inferior quality or fineness, large or small, dressed or undressed, or whether they were German or Austrian furs, and the witness carefully refrained from testifying as to the value of the particular goods in dispute.

The order denying defendants' motion to set aside the verdict and for a new trial should be reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.

and 118 New York State Reporter

HORWITZ V. REINERT.

(Supreme Court, Appellate Term. June 22, 1903.)

1. APPEAL-AFFIRMANCE.

Where the judgment for plaintiff must be affirmed, and in fact has been satisfied, an order vacating the order approving the undertaking on appeal, whether proper or not, will be left undisturbed on appeal therefrom, without costs.

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Isaac Horwitz against Ferdinand Reinert. From an order setting aside a stay of execution and an order denying defendant's motion to resettle the same in favor of plaintiff, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

James E. Smith, for appellant.
Nathaniel Levy, for respondent.

PER CURIAM. On February 25th notice of appeal in an action entitled above, and copy of an undertaking dated February 21, 1903, were served. On March 2d notice of exceptions to the form and sufficiency was served. On March 6th notice of justification, first for March 11th and then for March 9th, and in each case returned as not within the time provided by the statute. On March gth the undertaking was approved, but subsequently it was vacated by the same justice on an order to show cause. This was seemingly proper, under section 315 of the municipal court act (Laws 1902, p. 1580, c. 580). Whether so or not, however, as the judgment itself must be affirmed, and has in fact been satisfied, as stated in his brief by counsel for plaintiff, the orders above mentioned may be left undisturbed, without costs to either party.

Orders affirmed, without costs to either party. .

MONNESS et al. v. LIVINGSTON.
(Supreme Court, Appellate Term. June 22, 1903.)

1. REPLEVIN-DESCRIPTION OF ARTICLES IN JUDGMENT.

In replevin for "220 boys' coats" it appeared on the trial that the articles were pieces of cloth cut in the shape of coats, but not yet made up. Held, that the judgment for possession of "the property mentioned in the affidavit and complaint" was so substantially correct as to require the marshal to take the cut goods tendered to him.

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Hyman Monness and another against Johnstone Livingston. From an order amending the judgment for plaintiffs, they appeal. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Armin Kohn, for appellants.
Carter & Ledyard, for respondent.

MacLEAN, J. In an action of replevin the plaintiffs described the goods to be taken as “220 boys' coats,” adding certain lot numbers and characteristics. It came out upon the trial that the defendant, a common carrier, had received three parcels, contents undisclosed, addressed for delivery to the plaintiffs, C. O. D., with charges for $46.20, which parcels, when opened, were seen to contain goods cut up into the shape of, and to be manufactured into, coats, but which, according to the consignees there (the plaintiffs here), had not been made up at all, but merely cut into the shape of coats, and would be called, in common parlance, "cut goods." These cut goods or coats had been sent by the plaintiffs to working tailors to be made up, and for some reason were, when still unmade up, returned to the plaintiffs, and subject to the unearned charges. After trial the learned justice found “judgment in favor of the plaintiffs for the possession of the property mentioned in the affidavit and complaint herein, if a delivery can be had, and, if such delivery cannot he had, then for the sum of $330, as the assessed value of the said property.” The marshal for some reason—it is claimed at the instance and acting under the instructions of the plaintiffs' attorneydeclined to take the three boxes tendered him by the National Express Company, and which were the identical boxes, with contents undisturbed, for the sole alleged reason that their contents did not consist of “coats” made up, but were only parts of goods; and the marshal thereupon demanded the money value, and levied upon the property of the company. Thereupon the defendant, through his attorneys, moved for the amendment of the judgment by inserting therein in place of “the property mentioned in the affidavit and complaint herein,” the words, "the chattels replevied in this action being three boxes addressed to H. Monness and Son, 112-114 Bleecker street, New York City, containing parts, to wit, the sleeves, bodies, and linings of coats," which motion was granted after a hearing. This amended judgment the plaintiffs claim

is a nullity, because the justice rendering it had no jurisdiction to amend it after five days from the date of the entry thereof, under section 254 of the municipal court act (Laws 1902, p. 1563, c. 580). But, if the justice had no jurisdiction to amend the judgment, the amendment may be considered as surplusage, leaving the judgment stand as originally entered, and which was so substantially correct that there was no excuse, except a quibble, for the marshal's not taking what was tendered him. With this ruling the order appealed from may be reversed, without costs, leaving the judgment as originally entered as sufficient warrant for the process issued to the marshal to take the goods already tendered.

Order appealed from reversed, without costs. All concur.

and 118 New York State Reporter

LEVY et al. v. ZASULY. (Supreme Court, Appellate Term. June 22, 1903.) 1. LANDLORD AND' TENANT-EVICTION-APPEAL.

On a verified precept in proceedings by a landlord to recover possession and for nonpayment of rents the tenant filed a verified answer admitting the hire, but denying the indebtedness, alleging that the landlord had failed to carry out conditions; but there was no evidence of the last defense, and as to the indebtedness the landlord testified for and the tenant against it. Held, that the final order in favor of the landlord would not

be disturbed on appeal. Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by Max Levy and another against Louis Zasuly. From a judgment for plaintiffs, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE. and MacLEAN, JJ.

Henry M. Heymann, for appellant.
L. and A. U. Žinke, for respondents.

MacLEAN, J. Upon the return of a verified precept in proceedings to recover possession of the premises at No. 349 Madison avenue, and for nonpayment of the rents for the months of March and April of the current year, the tenant filed a verified answer admitting the hire, but denying the indebtedness, and alleging that the landlords had failed to carry out the conditions of the agreement. Respecting the last defense, no evidence was given. As to the indebtedness, the landlords testified in support of the allegations in their petition, and the defendant in contradiction. The final order rendered by the learned justice should not be disturbed.

Final order affirmed, with costs and disbursements. All concur.

STURGIS, Fire Com'r, v. HAYMAN.

(Supreme Court, Appellate Term. June 22, 1903.) 1. THEATERS-CONSTRUCTION OF PASSAGEWAY-PENALTY.

Where a theater has a front and a side entrance, both of which are permitted to be used, and people are permitted to stand in a space necessary for a passageway in the use of the side entrance alone, the manager is liable to the penalty imposed by Laws 1897, pp. 263, 272, c. 378 (Charter, $$ 762, 773), forbidding the manager to cause or permit any person to occupy a passageway during a performance. Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by Thomas Sturgis, as fire commissioner, against Alfred Hayman. From a judgment for defendant, plaintiff appeals. Reversed in part.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

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