EWING V. BARNARD.

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

1. LANDLORD AND TENANT-ACTIONS FOR RENT-Surrender-ACCEPTANCEQUESTIONS FOR JURY.

Where, in a suit for rent, the defense is a surrender and acceptance, and defendant testifies to a conversation with plaintiff in which he stated to plaintiff that he intended to pay no more rent, to which plaintiff replied that he had better give possession, and directed him to deliver the key to the janitor, which he did, the question of the surrender and acceptance is for the jury.

Appeal from City Court of New York.

Action by Justus E. Ewing against Arthur W. Barnard. From a judgment for plaintiff, and an order denying his motion for a new trial, defendant appeals. Reversed.

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

L. J. Morrison, for appellant.

Theron G. Strong, for respondent.

GILDERSLEEVE, J. The action is for rent for August, September, and October, 1902. The defense is a surrender and acceptance, and a counterclaim for breach of a collateral agreement. The jury found for plaintiff. Defendant appeals.

The court charged the jury as follows, viz.:

"As to the claim that the premises were surrendered, I charge you, as a matter of law, under the proof presented, that the premises were not surrendered by Mr. Barnard [defendant] to Mr. Ewing [plaintiff), as he has claimed."

At the close of the charge, the defendant's counsel said:

"I except to your honor's charge as to the surrender: 'As a matter of law, the premises were not surrendered.'"

It appears from the testimony of defendant as follows:

"I had a conversation with him [plaintiff] in August about giving up the premises-about the 10th or 11th. He asked me for the August rent. I told him, under the circumstances, I did not intend to pay any more rent, as he had not fulfilled his contract. He said, 'You better give me possession of the premises,' and I said I would as soon as I could make it convenient to get out. I made my arrangements as fast as I could, and I did get out in the month of August. Mr. Ewing [plaintiff] gave me instructions to surrender the key to the janitor. I did surrender the key to the janitor on the 29th or 30th of August."

Under this evidence, the court should have left the question of surrender and acceptance to the jury.

The judgment is reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

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KLOEPFER et al. v. MAHER et al.

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

1. CONTRACTS-SEVERAL ACCOUNTS-PAYMENT APPLICATION-PRESUMPTION. Where, in four separate contracts, plaintiff undertook to do work on four separate buildings, and payments were made to plaintiff from time to time, and plaintiff sued for work on the third building, after the first three were finished, in the absence of evidence that the payments were to apply to any particular contract it would be presumed that they were intended to extinguish the earlier rather than the later debts, and to have extinguished the claims for the first three buildings.

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

Action by William Kloepfer and others against John Maher and another. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

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

James Kearney, for appellants.

Phillips & Avery, for respondents.

MacLEAN, J. In 1902 the plaintiffs undertook, in four separate agreements, to do certain work in four separate buildings, namely, St. Rose's Church for $2,200, the Armory building on Bathgate avenue for $1,180, St. Veronica's Church for $1,700, and in a building on Commerce street for $230, aggregating together $5,310. When the work on all, saving St. Veronica's Church, had been completed, the plaintiffs brought this action, making no mention of the other jobs, but alleging the performance of their agreement respecting the Armory building for $1,180, with certain extra work of the value of $75, together amounting to $1,255, and setting forth that only the sum of $770 had been paid on account, leaving a balance due the plaintiffs from the defendants of $485, with interest, for which the plaintiffs recovered judgment. In their answer the defendants set up at length the entering into the four agreements for work on the several buildings, to be paid for by the defendants in each instance upon the completion of the work specified in the respective agreements; that all the work had been performed, except in St. Veronica's Church, which the plaintiffs had abandoned, leaving work worth $650 to be done; and that they, from time to time, in anticipation and on request, had paid the plaintiffs the sum of $4,900. In other words, according to the answer, the defendants had more than paid the plaintiffs for all the jobs completed, and the only things between the parties were the respective claims relating to the work upon St. Veronica's Church, which had been completed in part, and paid for in part. This contention was supported by an account rendered by the plaintiffs to the defendants, in which were stated, as separate items, the sums for which the four jobs had been undertaken, aggregating, with certain extra work, the sum of $5,502, upon which the plaintiffs had credited.

1. See Payment, vol. 39, Cent. Dig. § 123.

20 payments, in sums ranging from $100 to $500, and amounting to $4,900, as stated above. As there was no proof in the case that either party applied or was to apply the payments to any particular contract, the legal presumption was that they were intended to extinguish the earlier rather than the later debts, and that therefore the plaintiffs had no claim against the defendants for the work upon the armory contract, as that was extinguished. Judgment, therefore, was erroneous, and should be reversed.

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

BRONNER v. HIRSCH.

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

1. CONVEYANCES-ENCROACHMENT-AGREEMENT FOR RELEASE-DEPOSIT - EXTENSION OF TIME-CONSIDERATION-ACTION FOR DEPOSIT.

There being an encroachment on property conveyed, the grantor deposited a certain sum for the benefit of the grantee, to be returned on delivery of a release of the land affected by the encroachment before a certain date. Held, that an extension of time made after such date, and without valuable consideration, was no ground for a recovery of the deposit, in an action brought after tender of the release, subsequent to the time originally specified.

Appeal from City Court of New York.

Action by Ida Koehler Bronner against William Hirsch. From a judgment in favor of plaintiff, defendant appeals. Reversed.

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

Meyer M. Friend, for appellant.

Myers, Goldsmith & Bronner, for respondent.

MacLEAN, J. Upon the sale and conveyance on April 4, 1901, of certain property by the plaintiff to the defendant, and the discovery of the existence of an encroachment, the parties appear to have agreed, as appears from the allegations of the complaint and the depositary's certificate in evidence, to the deposit of $400 by the plaintiff with a third person, the Title Guarantee & Trust Company, for the benefit of the defendant, to be returned to the plaintiff upon the delivery of a proper release of the land affected by the encroachment "on or before April 1, 1902." "If she fails," reads the certificate, "to deliver said agreement on or before that date, and an extension of time be not granted to her or the Title Guarantee & Trust Company upon reasonable cause shown, then said deposit is to be paid to said Hirsch." The plaintiff alleges that prior to April 1, 1902, she represented her inability to procure the release because of some difficulty in reaching the parties who were to execute it, and that thereupon the defendant, "for a good and valuable consideration, duly extended plaintiff's time on and after April 1, 1902, within which to procure said agreement, and promised and agreed to and with the plaintiff to accept said agreement after April 1, 1902," and that on

and 118 New York State Reporter

or about June 8, 1902, she tendered a proper release, demanded the return of the sum deposited, and met with refusal. Too late! There is no evidence of any extension whatever by the defendant himself, and, granting proof of an extension by the third person, the Title Guarantee & Trust Company, even with authority so to act, there is no evidence of such extension prior to April 1, 1902. Whatever, if any, extension there was by that company, was after that date, and was not with good and valuable consideration as alleged, and as the law requires. The direction of a verdict in favor of the plaintiff was therefore against the evidence and the law, and the judgment entered thereon must be reversed, and a new trial ordered, with costs to abide the event.

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

POLACSEK v. MANHATTAN RY. CO.

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

1. RAILROADS-ENGINE SETTING FIRE-NEGLIGENCE-SUFFICIENCY OF EVIDENCE. Evidence in an action for damages from a fire caused by sparks from defendant's engine, which burned an awning and some signs, held insufficient to show negligence in defendant.

Appeal from Municipal Court, Borough of Manhattan.

Action by Leo Polacsek against the Manhattan Railway Company. Judgment for plaintiff, and defendant appeals. Reversed. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Charles A. Gardiner (Merrill W. Gallaway and I. Townsend Burden, Jr., of counsel), for appellant.

Goldfogle, Cohn & Lind, for respondent.

FREEDMAN, P. J. This action is one for damages to personal property, arising out of the following circumstances: The plaintiff's son testified that a shower of sparks from the funnel of one of the defendant's engines fell on the plaintiff's awning, setting it on fire. This fire extended to some signs over the awning, and to a wooden figure below it. Plaintiff claims $69.50 damages, and recovered a judgment.

The evidence does not disclose from which of the defendant's engines the sparks fell, nor were any of the plaintiff's witnesses able to identify the engine. We fail to see how or in what respect the defendant was shown to be negligent. The defendant proved that all of its engines were equipped with the most modern and best appliances known for averting sparks and cinders, and that on the morning in question all the engines used on the line where the awning was burned were carefully inspected, and found to be in good condition. Stress is laid by the respondent upon the testimony of an expert witness called by the defendant, to the effect that, if sparks of the size shown by plaintiff's witness to have been emitted from

the engine were emitted, the engine could not have been in order; but the witness also testified that such emission of sparks would show not only that the engine could not have been in order, but that, under the system of inspection adopted and in force by the defendant, it would show that such engine got out of order in transit from the terminal to the point where the sparks came forth. The case of Flynn v. N. Y. C. R. Co., 142 N. Y. 11, 36 N. E. 1046, is decisive of this case.

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

LEWIS PUB. CO. v. PALMER.

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

1. FOREIGN CORPORATION-AUTHORITY TO DO BUSINESS-ORDER FOR GOODSVALIDITY OF CONTRACT.

A foreign corporation can recover for goods sold, though when its agent took the order therefor it had not filed any certificate of authority entitling it to do business in the state; such certificate having been obtained before the order was filled and the goods delivered.

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

Action by the Lewis Publishing Company against William H. Palmer. From a judgment for plaintiff, defendant appeals. Affirmed. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Henry C. Hunter, for appellant.

Metcalf B. Hatch, for respondent.

PER CURIAM. This action was brought to recover the agreed price for a work called the "History of Long Island," and for a steel engraving of the defendant with impressions inserted in such work. The plaintiff is an Illinois corporation, and its agent took the order for the work done for the defendant in 1900, and prior to the plaintiff's filing any certificate of authority entitling it to do business in this state. The order was not filed and the goods delivered until after such certificate was obtained. If it is to be held that the contract between the parties was completed when the order was taken, the decision in The Neuchatel Asphalte Co. v. Mayor, etc., of New York, 155 N. Y. 373, 49 N. E. 1043, defeats the claim of the defendant that the contract cannot be enforced; and, if the contract was not complete until delivery, the plaintiff had then complied with the law. In either view of the case, judgment for the plaintiff was correct. Judgment affirmed, with costs.

1. See Corporations, vol. 12, Cent. Dig. § 2545.