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George L. Rives (Arthur F. Cosby, of counsel), for appellant.
Howe & Hummell, for respondent:

GILDERSLEEVE, J. The action is to recover penalties against a theatrical manager for allowing people to stand in the passageway of his theater during a public performance, after his attention had been called thereto. See sections 762 and 773 of the charter (Laws 1897, pp. 263, 272, c. 378). There are several specific occasions (i. e., on September 6, 12, 13, 15, 17, 18, 19 and 20, 1902) when the said offense is alleged to have been committed.

The justice gave judgment for defendant upon each charge. As to all of the charges, he gives as a reason for his decision that the space where the people were standing was not a passageway, within the meaning of the statute; and in the cases of September 6th, 13th, 18th, 19th, and 20th he gives additional reasons, founded upon the insufficiency of plaintiff's proofs as to the facts. With his decision on these additional grounds we will not interfere, under the evidence presented. With respect to the occasions of September 12th, 15th, and 17th, he bases his decision wholly on the ground that the space in which the people were standing was not a passageway, within the meaning of the statute. This ground it will be necessary to examine closely.

The space where the people were standing is in the rear of the orchestra chairs. The question, therefore, presents itself: Was this space a passageway, within the meaning of the statute? "A passageway,” says Mr. Justice Freedman in the case of Sturgis v. Grau, 39 Misc. Rep. 330, 79 N. Y. Supp. 843, "within the meaning of the statute (Charter, $ 762), is that portion of the building through which persons going to or from their seats are accustomed to, and must of necessity, pass.” The theater in question is called the “Knickerbocker Theater,” and is situated on the northeast corner of ThirtyEighth street and Broadway. It has two entrances—a main one on Broadway, and a side entrance on Thirty-Eighth street. One enters irom Broadway into a wide lobby, and then passes through the ticket gates to the theater proper. There are three doors from the main lobby into the theater proper. If one enters from Broadway, the doors through which ingress and egress could be had to and from the aisles between the various portions of the orchestra were all directly opposite the aisles. Therefore the space behind the last orchestra chairs and between the entrances to the different aisles was not of necessity a passageway to persons going to or from their seats, if such people entered by Broadway. If, however, one entered by the Thirty-Eighth street entrance, it would be necessary to use this space in getting to some of the aisles. Whether the space in question was intended for standing room, as claimed by the defendant, or not, the fact remains that, by reason of the existence of the Thirty-Eighth street entrance, custom and usage made this space a passageway. The manager of a theater has the right to utilize to the fullest extent the seating or standing capacity of his house, so long as he complies with the law, but the law does not permit him to obstruct the

and 118 New York State Reporter portion of the auditorium he has voluntarily set aside for passageway. See Sturgis v. Coleman, 38 Misc. .Rep. 304, 77 N. Y. Supp. 886. The public have a right to enter by the Thirty-Eighth street entrance, even if their seats are on an aisle the furthest from such entrance. The management, having invited the public to go in by the Thirty-Eighth street entrance, and to pass along the space in question, behind the last of the orchestra chairs, in order to reach their seats, cannot be heard to claim that they intended such space, not for a passageway, but for a standing place. It makes but little difference whether or not there was kept free a sufficient space behind the standing spectators for the people to pass. It was not the intention of the Legislature to leave it to a manager to say how many persons might stand with safety in a space set apart as a passageway. The statute prohibits the management from permitting a single person to stand or sit during a public performance in a passageway. Its language is as follows: "If the manager shall cause or permit any person, or persons, to stand or sit therein [in a passageway), during any public performance, or, having been so notified, shall neglect or refuse to cause such person or persons to forthwith vacate said passageway,” he shall become liable to the penalties prescribed in this act.

As it is conceded that the management permitted people to stand in this space during a public performance, after having had its attention called to such fact, on September 12, 15, and 17, 1902, we think the judgment as to the claims based upon these three offenses must be reversed, and a new trial granted, with costs to abide the event. As to the remaining claims, based on the events of the other dates, we will not interfere with the conclusions of the trial justice, as his decision is based on other grounds, which seem well taken. As to these claims the judgment is affirmed, with costs.

Judgment reversed as to claims for violations of September 12, 15, and 17, 1902, and new trial ordered, with costs to the appellant to abide the event; and judgment as to the other violations affirmed, with costs. All concur.

FRANSIOLI V. BOORMAN.

(Supreme Court, Appellate Term. June 22, 1903.) 1. DISMISSAL-NEW ACTION-Costs OF PREVIOUS Suit.

Where a new suit for the same cause of action is instituted against the same parties after the dismissal of a former action, a motion to stay the action until the costs in the former are paid will be granted. Appeal from City Court of New York.

Action by Augustus C. Fransioli against Thomas H. Boorman. From an order staying the action until the costs in a previous action were paid, plaintiff appeals. Affirmed.

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

1 1. See Costs, vol. 13, Cent. Dig. $ 1019.

A. C. Fransioli, in pro. per.
A. L. Squiers, for respondent.

GILDERSLEEVE, J. In December last, the appellant brought an action in the City Court against the respondents to recover the balance due on a judgment obtained by him against them. The action was at issue and on the trial calendar March 5th last, on which day, the appellant being in default, the complaint was dismissed, with $73.20 costs. Instead of moving to open his default, the appellant commenced another action against the same parties defendant for the same cause of action stated in the complaint in the first suit. Thereupon the respondents moved for a stay of the second action until the costs in the first one should be paid. The court granted this motion, and from the order staying the appellant's proceedings until the costs were paid, this appeal was taken. The obvious and ordinary mode of obtaining relief in the circumstances was for the appellant to move to open the default, and such a motion would probably have been granted, but he chose to bring a new suit for the same cause of action, apparently in the expectation of avoiding the payment of any costs whatever. The decision of the court below was strictly in accordance with established practice. Hill v. Grant, 2 Thomp. & C. 467; Bates v. Dickerson (Sup.) 12 N. Y. Supp. 773; Sprague v. Bartholdi, 68 Hun, 555, 22 N. Y. Supp. 1090; Farrell v. Juvenile Asylum, 2 App. Div. 496, 37 N. Y. Supp. 1118; Spaulding v. American, etc., 58 App. Div. 314, 68 N. Y. Supp. 945.

Order affirmed, with $10 costs and disbursements. All concur.

OPPENHEIMER et al. v. KRUCKMAN et al.

(Supreme Court, Appellate Term. June 22, 1903.) 1. BILLS AND NOTES-CONTEMPORANEOUS ORAL AGREEMENT-EVIDENCE.

Evidence of what was said between the parties to a promissory note at the time of its execution cannot be received to contradict or vary its

terms. 2. TRIAL BY COURT-RECEPTION OF EVIDENCE.

Where, in an action tried to the court, no proper objection was made to the admission of incompetent evidence, the court could enter a judgment based on a holding that the evidence was incompetent. Appeal from Municipal Court, Borough of Manhattan, Eleventh District.

Action by Sarah Oppenheimer and others against Samuel I. Kruckman and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

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

Frederick B. Downing, for appellants.
Kronfeld & Harris, for respondents.

84 N.Y.S.-9

and 118 New York State Reporter GILDERSLEEVE, J. The action is on two promissory notes made by defendants in favor of plaintiffs, and delivered to the latter. The defense, under an amendment to the answer allowed at the trial, was that at the time of the making and delivery of the notes there was a verbal agreement between the parties to the effect that, should defendants thereafter dissolve partnership, the notes were to be returned to defendants, and also defendants were to return to plaintiffs the certificates for the whisky in bond, which had been delivered to defendants by plaintiffs at the time of the making and delivery of the notes, and for which the notes were given, and that there was a subsequent dissolution of said partnership.

There is a conflict of evidence as to the facts. One of the plaintiffs swears as follows, viz.:

"Q. What was said about the notes (at the time of the making and delivery), and what was said about the conditions? A. There were no conditions."

The justice received all the defendants' evidence as to the oral conditions, and then gave judgment in favor of plaintiffs for the full

Although the record does not disclose the particular grounds upon which the justice based his decision, the appellants' counsel states that it was based, not on the weight of evidence, but upon the authority of the case of Jamestown College v. Allen, 172 N. Y. 291, 64 N. E. 952. The facts in that case were somewhat similar to those in the case at bar, and the court held that:

"The general rule that evidence of what was said between the parties to be a valid instrument in writing, either prior to or at the time of its execution, cannot be received to contradict or vary its terms, applies to promissory notes and bills of exchange."

The appellants' counsel claims that respondents' counsel did not sufficiently object to the admission of the parol evidence offered by defendants to vary the terms of the written contract. Assuming this to be so, it will be remembered that the case was tried by the court without a jury, and when evidence has, upon the trial, been received without objection, the trial judge may, in the exercise of his discretion, subsequently strike it out, if it was incompetent when received. See In re Lasak, 131 N. Y. 628, 30 N. E. 112. If the trial justice, upon looking over the case for decision, determined to disregard the incompetent evidence that appeared upon the record, he was within his powers in so doing, even if such evidence had not been properly objected to by the plaintiffs.

We find no sufficient reason for a reversal. Judgment affirmed, with costs. All concur.

FONSECA et al. v. HARTMAN.

(Supreme Court, Appellate Term. June 22, 1903.) 1. BILLS AND Notes-PROTEST-NOTICE-RESIDENCE OF INDORSER-DUTY TO

ASCERTAIN.

Where the holder of a note does not know where the indorser lives, but can ascertain by reasonable endeavor, in order to hold him liable

he must do so. 2. SAME-INABILITY TO ASCERTAIN REASONABLE DILIGENCE.

By the express provisions of Laws 1897, p. 742, c. 612, $ 183, notice of dishonor is dispensed with when, after the exercise of reasonable diligence, it cannot be given to, or does not reach, the parties sought to be

charged. 3. SAME-NOTICE-ADDRESS-SUFFICIENCY.

Under Laws 1897, p. 739, c. 612, $ 160, providing that, to hold the indorser, notice of protest must be sent to him, and section 179, providing that, where the address of the indorser is not added to his signature, notice must be sent either to the post office nearest his place of residence or to the post office where he is accustomed to receive his letters, or, if he lives in one place and has his place of business in another, notice may be sent to either, or, if he is sojourning in another place, notice may be sent there, a notice of protest, addressed merely "C. H., N. Y.," is insufficient, where there is no evidence that the indorser lived, ever had lived, or was sojourning in New York, and no inquiry was made to ascer

tain whether such was the fact. Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Joshua Fonseca and another against Clarence Hartman. From a judgment for plaintiffs, defendant appeals. Reversed.

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

Stern, Singer & Barr, for appellant.
Mandelbaum Bros., for respondents.

GILDERSLEEVE, J. The defendant is sued as indorser of a promissory note. Judgment was given for plaintiffs. Defendant bases his appeal on the ground that he never received notice of protest. The notice of protest was sent by mail to “Clarence Hartman, New York City, New York.” There is no evidence that he lived in New York. His address was not added to his signature on the note. To hold the indorser, notice of protest must be sent to such indorser. Laws 1897, p. 739, C. 612, § 160. The statute above cited, in section 179, provides that:

"Where a party has added an address to his signature, notice of dishonor must be sent to that address; but if he has not given such address, then the notice must be sent as follows: (1) Either to the post office nearest to his place of residence or to the post office where he is accustomed to receive his letters; or (2) if he lives in one place and has his place of business in another, notice may be sent to either place, or (3) if he is sojourning in another place, notice may be sent to the place where he is sojourning. But where the notice is actually received by the party within the time specified in this act, it will be sufficient, though not sent in accordance with the requirements of this section."

11. See Bills and Notes, vol. 7, Cent. Dig. § 1030.

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