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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. II, 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 GOODS

VALIDITY 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.

11. See Corporations, vol. 12, Cent. Dig. $ 2545.

and 118 New York State Reporter

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(Supreme Court, Appellate Term. June 22, 1903.) 1. LANDLORD AND TENANT-SUMMARY PROCEEDINGS-EVIDENCE.

Where, in a summary proceeding by a landlord against his tenant, the allegation of the petition that a certain amount of rent was due was denied by a verified answer, judgment for plaintiff, without any evidence that any rent was due, was erroneous. Appeal from Municipal Court, Borough of Manhattan, Second District.

Summary proceedings by Max Brill against William S. Norkett to recover possession of certain premises belonging to plaintiff. From a judgment in favor of plaintiff, defendant appeals. Reversed.

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

A. S. Gilbert, for appellant.
William G. McCrea, for respondent.

MacLEAN, J. Upon a verified petition alleging three months' rent due and owing, and demand therefor, and upon a verified answer denying each and every allegation in said petition contained, except "that on or about the gth day of March, 1903, one Max Brill demanded of this tenant the sum of five hundred dollars," the trial justice, without any evidence that the rent claimed in the petition or any rent was due, rendered judgment by final order in favor of the landlord, awarding him possession of the premises for nonpayment of rent. The final order must therefore be reversed, and a new trial ordered, with costs to abide the event.

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

ROSS v. NILES et al. (Supreme Court, Appellate Term. June 22, 1903.) 1. ATTORNEYS-LIABILITY FOR SERVICES RENDERED-Evidence-SUFFICIENCY.

In an action to recover for services rendered as an expert on values in street opening proceedings, wherein defendants appeared as attorneys for the property owners, evidence considered, and held sufficient to sup. port a verdict for plaintiff on the theory that defendants had such an interest in the proceedings as to render them personally liable, and that the principals were undisclosed. Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by John R. Ross against William W. Niles and another. From a judgment for plaintiff, defendants appeal. Affirmed.

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

John J. Cunneen, for appellants.
Fred. Cyrus Leubuscher, for respondent.

MacLEAN, J. In this action, brought to recover the reasonable value of services rendered by plaintiff as an expert on values in street opening proceeding, wherein the defendants, who are attorneys at law, and in partnership, appeared for the property owners, evidence was given of employment by the first-named defendant of the circumstances of the engagement, of the services rendered, and their value, and some evidence tending to show that the employment was by the defendant Niles for himself upon his personal promise of compensation; also that, as to some of the parcels at least, the plaintiff was not unable to ascertain their ownership; and, further, that the services were for the benefit of the partnership. Concerning each of these matters the evidence was such as to warrant the jury in finding for either party. A letter written by the defendant Niles, especially if taken with the statement attributed to him, would imply that he had undertaken the proceedings on behalf, it is true, of the owners of the property, but under such circumstances that the procuring and submission of evidence relating to values was something for which he was personally to, and promised to, pay-an inference supported by the well-known fact that proceedings of this sort are often, if not commonly, undertaken under arrangements contingent upon success, the attorneys stipulating to bear all the expenses, and look for their compensation and reimbursement solely from the amount of the award. It was not shown by the defendants, nor is it to be inferred from the evidence, that the names of the principals for whom they were acting were disclosed to the plaintiff, or that he had actual knowledge of their names, so as to absolve the agents from the liability assumed by them.

Judgment should be affirmed, with costs. All concur.

WILSON et al. v. PLATT.

(Supreme Court, Appellate Term. June 22, 1903.) 1. CARRIERS-FREIGHT-LIMITATION OF LIABILITY.

Where a package given an express company was lost by it, and no explanation given, and the receipt issued by the carrier stipulated that the carrier should not be liable for damages unless the result of gross negligence or fraud, and that the shipper should not demand more than $50, unless otherwise expressed in the receipt, and the shipper made no statement of value, and none was expressed in the receipt, the shipper could recover no more than $50, though the actual value of the package was greater. Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Peter R. Wilson and others against Thomas C. Platt, as president of the United States Express Company. From a judgment in favor of plaintiffs, both parties appeal. Appeals dismissed.

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

11. See Carriers, vol. 9, Cent. Dig. $ 665.

and 118 New York State Reporter Wilder & Anderson, for plaintiffs. Boardman, Platt & Soley, for defendant.

PER CURIAM. The plaintiffs delivered a package to the United States Express Company for transportation to Chicago. "The package was lost, and no explanation given for such loss. The plaintiffs were awarded judgment, but their recovery was limited to $50, by reason of certain stipulations in the receipt furnished by defendant company. The plaintiffs appeal on the ground that they should have recovered $101.33, which was conceded at the trial to be the real value of the package. The defendant appeals, for the reason that, under another stipulation in the receipt, the defendant was entitled to judgment. The facts in this case come within the doctrine laid down in Bernstein v. Weir (decided at the April Appellate Term, and not yet officially reported) 83 N. Y. Supp. 48. The court below has written an opinion in which good and sufficient reasons are given in support of the decision. Both appeals should be dismissed, and the judgment affirmed, without costs to either party as against the other.

Judgment affirmed, without costs. All concur.

FREIFELD et al. v. SIRE.

(Supreme Court, Appellate Term. June 22, 1903.) 1. DISPOSSESS PROCEEDINGS-RIGHT TO JURY TRIAL-WAIVER-RETRIAL.

Under Code, $ 2247, providing that in a dispossess case the issues must be tried by the judge or justice, unless either party shall, within the time designated in the precept for showing cause, demand a jury trial, and section 3065, providing that where a new trial is directed before a justice the parties must appear at the time and place specified in the order of the appellate court, and like proceedings be had as upon the return of a summons personally served, a defendant who has failed to demand a jury trial in dispossess proceedings does not thereby waive his right to demand a jury upon a retrial pursuant to an order of the appellate court. Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by George Freifeld and another against Henry B. Sire. From a judgment for plaintiffs, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. Meyer Greenberg, for appellant. Charles Gibson Bennett, for respondents.

PER CURIAM. A former trial was had, at which no proper demand for a jury was made. The judgment was reversed, and a new trial ordered. When the case came on again for trial, the defendant demanded a jury. The court denied the motion on the following ground:

"The case is proceeding on the same footing as the former trial. The issues are the same, and this is simply a new trial ordered by the Appellate Term."

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