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Surely this appeal should not have been taken or pressed after the attorneys of the defendants had so waived the presumable laches of the plaintiff through his former attorney. The material matter of acceptance of the new situation proposed by the new attorney having been shown, it was and is of little moment that the statement of the anterior circumstances was upon hearsay—the sole excuse for this appeal offered in a brief of five pages of print. That hearsay statement defendants' attorneys had heard once before, and given it their approval and acceptance.

Order appealed from affirmed, with costs. All concur.

GUBNER v. FARRELL et al.

(Supreme Court, Appellate Term. June 22, 1903.) 1. APPEAL-PROOF-RECORD.

On appeal in a personal injury action, where it was in issue which of two different names was on the truck which caused the injury, that question must be determined on the testimony contained in the return, and cannot be determined on affidavits. Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Action by Henrietta Gubner, as executrix, against Edward J. Farrell and others. From a judgment for plaintiff, defendants appeal. Reversed.

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

Philip Carpenter, for appellants.
M. P. O'Connor and J. Brownson Ker, for respondent.

FREEDMAN, P. J. The affirmance of a judgment after the first argument of the appeal was placed upon the ground that there was sufficient before the justice to warrant the determination that the truck belonged to the defendants whose name it bore. It was probably assumed that the plaintiff's witnesses had testified, as was claimed in respondent's brief, that the name on the truck was "Farrell, Hopper & Co.” It has now been pointed out that, according to the testimony of said witnesses, the name was “Farrell Rubber Co." The appeal must be considered and determined on the testimony contained in the return, which the trial justice to whom it was referred back declined to amend, and according to the return the name was “Farrell Rubber Co." The question cannot be determined upon affidavits. That being so, the evidence, as it stands, is insufficient to show that any one of the three defendants had any ownership or interest in the truck that caused the alleged injury, or any connection with the truck driver. But, even if it could be assumed that the witnesses intended to testify that the name on the truck was “Farrell, Hopper & Co.," there is great doubt whether the plaintiff sufficiently showed that at the time of the accident the driver of the truck was engaged in any business of the defendants, and that all the defendants were partners. The ends of justice re

and 118 New York State Reporter quire a new trial, upon which the facts may be more fully developed.

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

HENNESSEY v. FORTY-SECOND ST., M. & ST. N. AVE. RY. CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. STREET RAILROADS-INJURIES TO WORKMAN ON TRACK-EVIDENCE-SUFFI.

CIENCY

Plaintiff was attending blasting wires, passing them to the foreman, who was beneath the street level, and connecting them with the explosive. He had placed danger flags warning cars to go slowly. Prerious to bending over, he looked for approaching cars, and then dropped the wire into the tunnel to the foreman. He was struck by a car which came rapidly along without giving signal or warning before he had recovered the wires. Held sufficient to sustain a judgment for plaintiff.

MacLean, J., dissenting. Appeal from City Court of New York. Action by. William Hennessey against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company. From a judgment for plaintiff and an order denying its motion for a new trial, defendant appeals. Affirmed.

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

Bayard H. Ames and F. Angelo Gaynor, for appellant.
Bernard Vorhaus (Joseph Fischer, of counsel), for respondent.

PER CURIAM. Action for personal injuries. Tury found for plaintiff. Defendant claims that verdict is against the evidence. The plaintiff's testimony shows that he was in the employ of Naughton & Co. in blasting tunnels underneath Broadway. His duties were to attend to the blasting wires and to the battery, passing the wires down to the foreman, who was beneath the street level, and who connected them with the explosive. The plaintiff then connected the wires with the battery, stationed alongside of him, and upon a signal from the foreman set off the blast. In doing this work it was necessary for the plaintiff to watch the man working underneath, and to receive a signal from the foreman before connecting the wires, and when he was putting in the wires he had to bend over the tracks to see that the wires were all right underneath. As usual under such circumstances, plaintiff, on the morning of the accident, had put up seven red flags between the two sets of tracks, indicating danger ahead, and warning the cars to go slowly. On previous occasions, when the plaintiff had done this work, and was in a bending position, the cars came along slowly, and rang the bell, and, when necessary, came to a stop; and, whenever the plaintiff was charging the battery, the car would stop until he got out of the way. On the occasion of the accident plaintiff was engaged in the work at a point between 50 and 75 feet from Fifty-Seventh street on Broadway, and was laying down the wires. He was on the uptown track. While bending, he watched for approaching cars. He looked ahead of him, but did not see any uptown car approaching. He then dropped the wire into the tunnel to the foreman, and, before he had a chance to get the wires out, a

north-bound car came rapidly along, and, without prior signal or warning, struck him, throwing him against a downtown car, which was approaching, which also struck and dragged him. The car that first struck plaintiff was identified by plaintiff's witnesses as a red car of the Forty-Second street line. There was a conflict as to some of the facts, but the jury believed plaintiff, and there is sufficient evidence to sustain the verdict.

Judgment and order affirmed, with costs.

(November 12, 1903.) MacLEAN, J. (dissenting). From his own account, the plaintiff, stationed and working, as he had been for four months, between the uptown and downtown tracks, upon both which, as he knew, cars were moving with frequency, looked only at the downtown track, and was struck by one of the uptown cars, to which he gave, and had given, no heed. There was room for him between the two. He was struck, it would seem, because he changed his position after the front of the car had passed him, which position the motorman may well have anticipated he would keep, rather than thrust himself into danger. There is only the happening of the accident from which to attribute negligence to the motorman; nothing from which one may infer care on the part of the plaintiff, but enough to show that, instead of being continuously alert, as he was bound to be, when confroned with continuing peril, he was careless, and chiefly brought the harm he suffered upon himself.

SCHERZER v. MUIRHEAD.

(Supreme Court, Appellate Term. June 22, 1903.) 1. STATUTE OF FRAUDS-AGREEMENT TO ANSWER FOR DEBT OF ANOTHER.

In a dispute between a mortgagee who had seized the property and an attaching creditor of the mortgagor, a stipulation was entered in the attachment suit, signed by the mortgagor and mortgagee, reciting no consideration, and providing that the property should be delivered to the mortgagee, to be sold by him or the attaching creditor, and the proceeds applied first to the mortgage debt, and the surplus to be paid the creditor. Held, on refusal of the mortgagee to pay over such surplus, that the stipu

tion was not void, as an agreement to answer for the debt of another. 2. CHATTEL MORTGAGE-ATTACHMENT-PRIORITY--SALE.

A demand on the mortgagee by the mortgagor for the surplus did not

excuse its retention. 3. SAME-LIEN OF EMPLOYES.

Workmen employed by the mortgagor had no claim on the proceeds, and a demand by them did not justify the mortgagee in retaining the

surplus. Appeal from City Court of New York.

Action by Herman Scherzer against William Muirhead. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

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

Joseph Martin, for appellant.
D. W. Rockmore, for respondent.

App.com by Helaintiff, a

and 118 New York State Reporter GILDERSLEEVE, J. On September 11, 1902, William Muirhead, the defendant, held a mortgage on certain goods, made to him by Berkowitz & Cooper to secure the payment of $200. The mortgagors being in default, Muirhead on that day took possession of the property and foreclosed the mortgage. On the following day the plaintiff, in an action brought by him against Berkowitz & Cooper, obtained an attachment against their property, and under it the sheriff seized the goods covered by Muirhead's mortgage. Muirhead immediately gave the sheriff notice that he claimed to own the goods seized by the sheriff, and the question of title was thereupon tried by a sheriff's jury and found in favor of Muirhead. Threats being made by Scherzer that he would indemnify the sheriff to take the property in question, Muirhead was induced to enter into an arrangement which on September 17, 1902, took the form of a stipulation in the attachment suit, signed by Berkowitz & Cooper, on the one part, and by Muirhead, on the other part, by the terms of which the property covered by the mortgage was to be delivered to Muirhead or his attorney, to be sold by Scherzer or Muirhead, and, after retaining the amount of Muirhead's debt and legal disbursements, the surplus was to be paid to Scherzer. Muirhead was not a party to the attachment suit, nor was the stipulation signed by the attorney of any of the parties. No consideration was recited in the stipulation, and there was no formal expression of any promise on the part of Muirhead. Muirhead thereupon took the property and sold it for $600, and this action was brought to recover the sum of $375, claimed to be due to the plaintiff by virtue of the stipulation. At the trial, Scherzer had a verdict for $350, and this appeal was taken from the judgment in that action.

The defense, aside from the question as to the amount due to Muirhead for the legal disbursements mentioned in the stipulation, rested on the grounds that the stipulation was void, under the statute of frauds, for the reason that it was a contract on the part of Muirhead to answer for the debt of Berkowitz & Cooper, and was without consideration; also that the plaintiff's remedy, if any, was by an action for an accounting, and that the court below had no jurisdiction to entertain such an action. The appellant also took several exceptions in the course of the trial to the admission or exclusion of evidence, to which we shall refer. Whatever force may be given to the stipulation, it certainly was not an undertaking by Muirhead to answer for the debt of Berkowitz & Cooper. On the contrary, if it imports any obligation at all on his part, it was a promise to pay his own debt. By the terms of the mortgage, he was to pay the overplus above his own debt and expenses to Berkowitz & Cooper, the mortgagors, which they, of course, could assign to Scherzer, and make it payable to him. We can conceive that the defendant might have made a plausible argument on the construction of the stipulation that it imposed no liability on Muirhead to pay the overplus to Scherzer, but we express no opinion on that point, and could not do so, since the defendant, not having raised the question on the trial, cannot present it here for the first time.

The exceptions taken by the appellant do not constitute any ground of reversal. The exclusion of evidence of a demand by Berkowitz for the balance in Muirhead's hands was quite right. If Scherzer was entitled to the money, no mere claim by Berkowitz would justify Muirhead in withholding it. The same is true of workmen employed by Berkowitz & Cooper. They had not the remotest connection with the mortgage, nor right to the proceeds of the sale of the mortgaged property. The question put to Mr. Rockmore, plaintiff's attorney, was perhaps improper, as calling for an estimate of the amount of the “legal disbursements” provided for in the stipulation, but he did not answer that question. He answered that the fair compensation for collecting $200 was $25. This was not responsive, and might have been stricken out on motion, but it was allowed to remain in the evidence without objection. Substantial justice appears to have been done by the verdict. The judgment is right, and should stand.

Judgment affirmed, with costs. All concur.

BLAKE V. MALLIET. (Supreme Court, Appellate Term. June 22, 1903.) 1. ACCOUNT STATED-COMPLAINT-- AMENDMENT.

Under Municipal Court Act, $ 166 (Laws 1902, p. 1542, c. 580), requiring the Municipal Court of New York City to permit the amendment of pleadings at any time, if substantial justice will be promoted thereby, the court can grant leave at the beginning of a trial to amend a complaint on an account stated to an action to recover on a check indorsed by de

fendant and returned for nonpayment. 2. SAME-TRIAL-CROSS-EXAMINATION-ERROR.

Where, at the beginning of a trial, a plaintiff was permitted to amend his complaint so as to change his action from one on an account stated to one on an indorsement of a check returned for nonpayment, it was error to refuse defendant the right to test plaintiff's credibility by exposing his inconsistency on cross-examination. Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by George H. Blake against William A. Malliet. Judginent for plaintiff, and defendant appeals. Reversed.

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

Louis Steckler, for appellant.
Watson & Kristeller, for respondent.

MacLEAN, J. As the action was originally brought, the plaintiff alleged in a written complaint an account stated, and claimed the balance due under that account, of $82.75. The answer denied the account stated, affirmatively alleged payment, and set up as a defense that the parties plaintiff and defendant were copartners, and that the accounts between them were still unadjusted. At the very beginning of the trial, the plaintiff having taken the stand and been sworn for himself, the plaintiff moved to amend the complaint to an action to

84 N.Y.S.-11

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