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and 118 New York State Reporter The defendant swears he never received the notice. If the holder of the note does not know where the indorser lives, but can acquaint himself with the place by a reasonable endeavor, he must do so. Brewing Co. v. Reinheimer, 32 Misc. Rep. 595, 66 N. Y. Supp. 458. The statute itself, in section 183, provides that “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.” In the case at bar there is no evidence that the least effort was made to ascertain defendant's address. In the case of Bacon v. Hanna, 137 N. Y. 382, 33 N. E. 303, 20 L. R. A. 495, it was held that looking for the address in the directory was not sufficiently diligent inquiry. But in the case at bar there is nothing to indicate that even that trouble was taken to ascertain defendant's address. As was said by Mr. Justice Barrett in the case of University Press v. Williams, 48 App. Div. 189, 62 N. Y. Supp. 986, the notary seems to have "simply mailed notice of dishonor to him at haphazard, and neither of these notices was addressed, as we have seen, to his residence or place of business.” Plaintiffs received notice of the protest, but took no steps to have the notice sent to defendant. The notary's clerk sent it, as we have seen, simply to "Clarence Hartman, New York City, New York,” without, apparently, having made the least inquiry to ascertain if defendant lived, or ever had lived, or was sojourning in this city. The case of Mohlman Co. v. McKane, 60 App. Div. 546, 69 N. Y. Supp. 1046, does not apply here. There it was affirmatively shown that defendant had resided at Sheepshead Bay, and the court held that, in the absence of any proof to the contrary, the presumption was that there had been no change of address up to the time of sending the notice. But in the case at bar there is no evidence, as we have already intimated, that defendant lived, or ever had lived, in this city, or was sojourning therein.

For the reasons above indicated, the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

MORTON V, LEDERER et al.

(Supreme Court, Appellate Term. June 22, 1903.) 1. MUNICIPAL COURTS-PLEADING-AMENDMENT.

In the Municipal Court, under Laws 1882, p. 318, c. 410, $ 1347, making Code, & 2944, relating to amendments, applicable to the Municipal Court, before or during trial, an amendment to the pleadings by which substantial justice will be promoted, even though it involve a new cause of action or a new defense, is a legal right, denial of which is reversible

error.

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

Action by Henry B. Morton against Adele R. Lederer and others. From a judgment for plaintiff, defendants appeal. Reversed.

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

H. A. & C. E. Heydt, for appellant Lederer.

George Wilson Morgan (Herman A. Heydt, of counsel), for appellant Morgan.

Franklin Bien, for respondent.

GILDERSLEEVE, J. The plaintiff sues, on an assigned claim, for services alleged to have been rendered by his assignor as a detective. The justice gave judgment for plaintiff. The defendants offered no evidence. They, however, made a motion to amend the answer by setting up, as an additional defense, an allegation that at the times mentioned in the complaint the plaintiff's assignor was not licensed, under the laws of the state of New York, to perform the work specified in the complaint, and was prohibited by the statutes of the state of New York from performing any such work as investigator or detective, and that the services alleged to have been rendered by plaintiff's assignor were illegal, under chapter 422 of the Laws of 1898, as amended by chapter 362, p. 1002, of the Laws of 1901.

In the Municipal Courts, before or during the trial, an amendment to the pleadings by which substantial justice will be promoted, even though involving a new cause of action or new defense, is a legal right, and it is error to deny such a motion under such circumstances. In Shirtcliffe v. Wall, 68 App. Div. 376, 74 N. Y. Supp. 189, the court says:

"Where substantial justice requires, even an amendment changing the form of the defense interposed will be allowed, and it is error to refuse a motion to amend, though it involve a new cause of action or defense."

This court held in Hawkes y. Burke, 34 Misc. Rep. 190, 68 N. Y. Supp. 798, as follows:

"In the Municipal Court, no distinction exists between the Trial and Special Terms, and, if the rule observed in the courts of record with respect to amendments is to be followed, a plaintiff, finding a radical amendment of his complaint necessary, must submit to a nonsuit, and begin his action de novo, while a defendant desiring such an amendment, no matter how meritorious bis defense, is absolutely without redress if he defers his application for amendment until the trial. We think that under section 2944 of the Code, which was made applicable to the Municipal Court by section 1347, Consolidation Act (Laws 1882, p. 348, c. 410), a justice of the Municipal Court has the power, and, if substantial justice will be promoted thereby, it is his duty, to allow an amendment of the pleadings, even though it may involve a new cause of action or a new defense. On allowing such an amendment, the justice should grant a reasonable adjournment, if required, and impose such costs as may be proper."

See, also, Walsh v. Comett, 17 Hun, 27.

The refusal to allow an amendment of the pleadings setting up the statute as a defense was reversible error.

The judgment must be reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.

and 118 New York State Reporter

CARTER v. INTERURBAN ST. RY. CO.
(Supreme Court, Appellate Term. June 22, 1903.)

1. STREET RAILWAYS-CROSSING ACCIDENT- CONTRIBUTORY NEGLIGENCE.

It is not negligence, as a matter of law, for one driving a wagon to attempt to cross street railway tracks when an approaching car is about

a block distant. 2. SAME-EVIDENCE-QUESTION FOR JURY.

Where, in an action against a street railway for injuries, plaintiff's evidence showed that a car was nearly a block away when he started to cross the tracks, and that he had got part of the wagon over the tracks when it was struck by the car, and that it was quite light at the time, and that he looked for the car immediately before he started, the cause should have been submitted to the jury.

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

Action by Edward Carter against the Interurban Street Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.

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

J. Baldwin Hands, for appellant.
A. K. Wing and Wm. E. Weaver, for respondent.

GILDERSLEEVE, J. The action is for personal injuries. The justice directed a verdict for defendant. Plaintiff appeals.

At about 10 o'clock on the night of March 14, 1903, the plaintiff was driving north on the east side of 8th avenue, and, as he reached the south crossing of 141st street, he turned to his left to cross over 8th avenue. As his horse and wagon were crossing the defendant's car track, the wagon was struck by a car approaching from the rear, and plaintiff was injured. The plaintiff was the only witness for himself, while several witnesses were called by defendant. The plaintiff's version of the accident was as follows, viz. :

"Before I got to 141st street my aim was to go across [defendant's tracks), and I looked before turning to see if the car was coming; and, when I looked, the car was coming at about 140th street, or a little this side of 140th street, above 140th street, and I undertook to go across 141st street, and turned. Shortly after I looked to go across 141st street, and then I did not look any more; and, the next thing I heard after starting across 141st street and 8th avenue, I heard a clash, and I looked, and the car was just about on me, and I cut my horse as quick as that (indicating), and, just as I cut the horse, the car struck the wagon. Q. What length of time elapsed between the time that you looked to see if the car was coming and the time that you crossed 141st street? A. Just the length of time for my horse to get all the way across the track. I started to turn immediately after I looked [to see if the car was coming). The car struck the hind part of the wagon. Before I crossed 8th avenue, I turned and looked before turning my horse, and I saw the car coming up Sth avenue about 140th street, maybe a little this side, and I undertook to cross 141st street; and I did not look any more until I heard the man shout, and when he shouted I looked as quick as I could-as quick as that indicating)—and took the whip and cut the horse. That was before the accident occurred. It was perfectly light in the street there at that hour of the night. All the lamps were lit. There was no trouble in my seeing the car. The car was going fast."

Upon this statement of the plaintiff, we are inclined to think that the justice should have submitted the case to the jury, instead of ordering a verdict for the defendant. As we have seen, the plaintiff's evidence, if true, shows that the car was nearly, if not quite, a block away, when he turned to cross the tracks; that he had got the horse and part of the wagon over the track, when the rear part of the wagon was struck by the car; that it was quite light at the time in that locality, owing to the lamps being all lit; that plaintiff looked for the car immediately before he started to cross the track. It was not negligence in plaintiff, as matter of law, to cross when the car was a block away. Under the circumstances above set forth, the defendant's motorman should have seen the wagon crossing the track, and stopped his car before he had traversed the block between 140th and 141st streets. The evidence in the case at bar presents a conflict as to the facts, and raises a question that should have been determined by the jury.

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

HAIGHT v. LE FONCIER DE FRANCE ET DES COLONIES.

(Supreme Court, Appellate Term. June 22, 1903.) 1. SUMMONS-PAPERS AUTHORIZING ORDER OF PUBLICATION.

An action against a foreign corporation to recover damages for breach of a contract made without the state being authorized by Code Civ. Proc. & 1780, only when plaintiff is a resident of the state, and an order for publication of summons being required by section 439 to be founded on papers showing a sufficient cause of action, such an order made on papers not showing that plaintiff is a resident will be vacated. Appeal from City Court of New York.

Action by Charles H. Haight against Le Foncier De France et Des Colonies. From an order denying a motion to vacate an order of publication, defendant appeals. Reversed.

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

Willoughby L. Webb, for appellant.
Peter A. Hargous, for respondent.

MacLEAN, J. Upon a motion to vacate an order of publication herein, and to set aside all proceedings thereunder, it appeared from the verified complaint that the action was brought to recover damages from a foreign corporation defendant for the breach of a contract made in France, and to be performed in North America, by a firm of two persons, of whom the plaintiff was the successor; but there is nothing to show that the plaintiff was a resident of the state-a jurisdictional allegation necessary to the maintenance of the action (section 1780, Code Civ. Proc.), and, which omitted, no sufficient cause of action was shown, upon which to found the order (section 439, Id.). For reason of public policy, our courts are not to be

and 118 New York State Reporter vexed with litigations between nonresident parties over controversies arising outside of our territorial limits, and, the attention of the court having been called to the absence of the jurisdictional allegation, it should have vacated the order. It might ex mero motu at any time refuse to proceed further, and dismiss the action. Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315, 19 N. E. 625, 2 L. R. A. 636.

Order appealed from reversed, and the defendant's motion granted, with costs. All concur.

TRENHOLM v. PROVIDENT SAV. LIFE ASSUR. SOC. OF NEW YORK.

(Supreme Court, Appellate Term. June 22, 1903.) 1. APPEAL-FINDINGS OF Fact-REVIEW.

Plaintiff having, on a second trial, testified to a different date for the agreement from that given by him on the first trial, and his testimony being contradicted, the finding against him will not be disturbed on

appeal. Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Action by William D. Trenholm against the Provident Savings Life Assurance Society of New York. From a judgment for defendant, plaintiff appeals. Affirmed.

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

Frank Trenholm, for appellant.
William T. Gilbert, for respondent.

FREEDMAN, P. J. This action was brought to recover the sum of $159.50 damages for an alleged breach of contract to repair an apartment leased by plaintiff, and sublet by him to one Reimer. The action has been tried twice. Upon the first trial the plaintiff had a judgment, which was reversed by this court, and a new trial ordered. Upon the new trial the defendant had a judgment, from which the plaintiff appeals.

Upon the first trial the plaintiff testified in his own favor, and his evidence was to the effect that the alleged agreement to repair was made by him with the defendant subsequent to the making of the lease, and Mr. Justice Giegerich, in writing the opinion, said:

"It does not appear that the defendant was bound, either by the terms of the original letting or the renewal thereof, to make any repairs. He was therefore under no obligation as landlord to make any, and the alleged promise made subsequently to the renewal was without consideration. Bronner v. Walter, 15 App. Div. 295–297, 44 N. Y. Supp. 583.”

Upon the present trial the plaintiff was again the only witness testifying in his favor to the making of the alleged contract, and he now fixes the time of such making as prior to the making of the lease. In this he is contradicted by the agent of the defendant, with whom the lease was made. Under such circumstances, what credence sliould be placed upon the plaintiff's testimony was wholly for the trial judge to determine, and his decision should stand.

Judgment affirmed, with costs. All concur.

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