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BRILL V. NORKETT. • (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

manded 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 support a verdict for plaintiff on the theory that defendants had such an in

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 $30, 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.

(1. See Carriers, vol. 9, Cent. Dig. $ 603.

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."

Exception was taken by defendant,

The question presented is one of a waiver by defendant of his right to a jury trial by reason of his failure to demand a jury trial at the time designated in the precept for showing cause. The defendant claims that a party to an action in a Justice's or Municipal Court, who has failed to demand a jury trial at the time designated in the precept for showing cause, as provided by section 2247 of the Code of Civil Procedure, may, upon a retrial of the action after an appeal, demand a trial by jury. In the case of Manheim v. Seitz, 36 App. Div. 352, 55 N. Y. Supp. 321, the Second Department, Appellate Division, by Woodward, J., held, in construing section 3127 of the Code, that, "while there is some reason to doubt this right, we are inclined to believe that it should be granted where the demand is seasonably made upon the parties appearing for retrial.”

Section 3127 applies only to Brooklyn courts, and provides that “a trial by jury is waived, unless a party demands it at the time when an issue of fact is joined,” etc. Section 2247 provides that “the issues joined by the petition and answer in a dispossess case) must be tried by the judge or justice, unless either party to such proceedings shall, at the time designated in such precept for showing cause, demand a jury"; and section 231 of the Municipal Court act (Laws 1902, p. 1557, c. 580) provides, that at any time when an issue of fact is joined, either party may demand a jury trial, and that, unless so demanded at the joining of issue, a jury trial is waived.

The statute passed upon by the Appellate Division, in the case of Manheim v. Seitz, supra, differs somewhat from section 2247, inasmuch as the latter is more mandatory. It provides, as we have seen, that the issues "must" be tried by the justice, unless, at the time specified, a jury trial is demanded. Although in the case at bar, as we have seen, no such demand was made until the case came up for a second trial, pursuant to an order of this court granting a new trial, we think the application was seasonably made.

The order of this appellate court set the retrial of this proceeding for the 23d day of December, 1902. At some time prior to the 23d day of December, 1902, to rectify an error as to the date fixed for the retrial of this proceeding, a stipulation was entered into, in writing, by which the trial of this proceeding was adjourned, without prejudice to any of the rights of the parties hereto, from December 23, 1902, to December 24, 1902. (The stipulation is annexed to the return.) Thus the right of the tenant to demand a jury trial on the 24th day of December, 1902, was the same as though the proceeding were not adjourned.

It is true that this is a statutory proceeding by a landlord to evict a tenant, and the provisions of the statute must be strictly observed. Still it must also be said that the right of the tenant to a jury trial was the same as if he had just been brought into court upon the return of the precept.

Section 3065 of the Code provides:

"Where a new trial is directed before a justice as prescribed in the last two sections, the parties must appear before him at the time and place specified in the order of the appellate court without service of any notice or

84 N.Y.S.-10

and 118 New York State Reporter of a copy of the order. Thereupon the like proceedings must be had in the action, as upon the return of a summons personally served."

This section is no more inconsistent with section 231 of the Municipal Court act than it is with section 3127 of the Code; and the authority above cited holds, as we have seen, that the last-named section does not prevent defendant from demanding a jury trial at the second trial after appeal. Section 3065 of the Code is not among the sections declared inapplicable to the Municipal Court by section 363 of the Municipal Court act (Laws 1902, p. 1595, c. 580). Section 20 of said act (Laws 1902, p. 1496, c. 580) makes all sections of the Code applicable to the Municipal Court, if not inconsistent with the provisions of said act. We are of opinion that the authority of Manheim v. Seitz applies here, and the justice should not have refused a jury trial.

The final order must be reversed, and a new trial granted, with costs to the appellant to abide the event.

BLUM V. FLANAGAN et al. (three cases).

(Supreme Court, Appellate Term. June 22, 1903.) 1. LANDLORD AND TENANT-RENT OF SALOON-AssignMENT OF LEASE TO

BREWERY-RENT-LIABILITY OF MANAGING DIRECTOR.

A tenant leased a hotel and bar for one year, with privilege of renewal for five years. To secure a supply of beer, he visited a brewing company, and was told by the manager to bring down his lease. Accompanied by his landlord, he did so; and the landlord, at the request of a clerk, signed an indorsement on the lease, consenting to its transfer to the managing director; the landlord testifying that this was done because it was supposed she would be better secured. The tenant also executed a lease in blank. He then entered into possession, paid rent and received receipts for three months, and then vacated the premises. Held, that the managing director was not personally liable for subsequently accruing rent. Appeal from Municipal Court, Borough of Manhattan.

Action by Emily M. Blum against De Witt C. Flanagan and others. From a judgment for plaintiff, and from an order substituting defendants as executors of William L. Flanagan, deceased, defendants appeal. Reversed.

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

Guggenheimer, Untermyer & Marshall, for appellants.
Alexander Lamont, for respondent.

FREEDMAN, P. J. This action was brought to recover the sum of $100 as rent of certain premises in this city to be used as a hotel and for a bar business. The facts, as shown by the record, appear to be as follows: On August 14, 1902, the plaintiff made a written lease to one Van Etten, leasing the premises for one year from September I, 1902, with a renewal privilege for five years, at a yearly rental of $1,200, payable monthly in advance. Van Etten entered into pos

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