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and 118 New York State Reporter

recover the sum of $82.75, being the amount of a check drawn by a third party to the order of the defendant, indorsed by him, delivered to the plaintiff, returned for nonpayment, and subsequently delivered to the defendant upon his promise to pay the same. The defendant objected that such an amendment would change the whole cause of action. The motion was granted. To this the defendant took an exception, but declined to ask for an adjournment. This amendment. completely changed the issues, but, under section 166 of the Municipal Court act (Laws 1902, p. 1542, c. 580), it was within the power of the court to grant it. This, however, did not prevent the defendant from exposing plaintiff's inconsistency upon cross-examination, and thus to test his credibility. The denial of this right to the defendant constituted error. Upon the whole case, the interests of justice require a new trial.

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

MORITZ v. INTERURBAN ST. RY. CO.

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

1. CARRIERS-INJURY TO PASSENGER-OPINION EVIDENCE.

Where, in an action against a street railway for injuries sustained by a passenger owing to defendant's motorman having struck him in the chest, a physician testified that he found plaintiff's heart affected, and that his trouble could have been caused by the accident, but that it might have come from other causes, it was proper to refuse to strike the evidence as too uncertain.

2. SAME-EVIDENCE-CAUSE OF INJURY.

In an action against a street railway, plaintiff testified that while standing on the platform of a car the motorman struck him on the chest violently, that he felt faint and had pains in his chest for two or three hours afterwards, and that he had dreams at night of being struck and falling from a car, which sensations apparently continued from the time of the accident. A physician testified that he found plaintiff's heart weak, and that such blows might have caused the injuries. Held, that the evidence warranted a finding that the blows caused the injuries.

3. SAME-PLEADING-VARIANCE.

In an action against a street railway the complaint detailed the striking of plaintiff by defendant's motorman, and alleged a cause of action founded not only on negligence, but upon violence, on the part of defendant's servant. The evidence showed that, as plaintiff stepped on the car, the motorman, without cause, struck plaintiff violently, saying, “You get off." Held that, though the proofs showed a willful assault, the variance was immaterial, as it could not have misled defendant.

4. SAME TORT OF MOTORMAN-WILLFUL ASSAULT.

Where, as a passenger stepped on the front step of a street car, the motorman said, "You get off," and, without cause, struck him, the carrier was liable for injuries sustained by the passenger.

Appeal from Municipal Court, Borough of Manhattan, Sixth Dis

trict.

Action by Joseph Moritz against the Interurban Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

14. See Carriers, vol. 9, Cent. Dig. § 1123.

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

Arthur K. Wing and Wm. E. Weaver, for appellant.
Kneeland, La Fetra & Glaze, for respondent.

GILDERSLEEVE, J. The action is for personal injuries. The plaintiff testifies as follows:

"On the morning of September 12, 1902, my employer, Mr. Coe, and I boarded a south-bound car [of defendant]-a Bowling Green car on the northwest corner of Broadway and Third street. My employer got on the car first. The car was perfectly still. I stood on the first step of the car, and the motorman started the car; and, without any cause at all, the motorman struck me violently on the chest, and he says to me, 'You get off,' and he repeated this the second time, and he wanted to strike me the third time, when my employer stopped him. Q. You got on the step of the front platform? A. Yes; I had this tripod and the carrying case in my hands at the time. I felt kind of faint and nervous afterward. He struck me twice, both times on the chest, with his fist. Q. Did he knock you off the car? A. No; I hung on. The car was moving, but it was not going when I first entered on the platform."

He testified that he felt faint and had a pain in his chest for two or three hours afterwards, and that he had dreams at night of being struck and falling from a car, which sensations apparently continued from the time of the accident to the early part of February, 1903. He further says he never suffered from these sensations previous to the accident. A doctor was called, who testified that he first began treating plaintiff in December, 1902, about three months after. the accident. The doctor found plaintiff's heart affected. The doctor charged $35 for such treatment. He thinks plaintiff's trouble could have been caused by the accident, but that it might have come from other causes.

The justice gave judgment for plaintiff in the sum of $272 damages and costs.

The defendant relies upon appeal on the alleged error of the court in refusing to strike out the doctor's evidence as too uncertain. The motion was properly denied. We think the testimony of the plaintiff, together with the opinion testimony, all unimpeached and uncontradicted, established affirmatively, and with reasonable certainty, the fact that the blows the plaintiff received from the defendant's servant were the proximate cause of the plaintiff's injuries. At least, it must be said to be sufficient to sustain the findings of the trial judge on that branch of the case. It was the positive statement of the physician that blows such as the plaintiff testified he received would produce the conditions of which plaintiff complained, and which the physician observed.

The defendant also urges that plaintiff failed to establish his cause of action as pleaded, inasmuch as the complaint is founded on the gross negligence and carelessness of defendant, and the incompetence and reckless disregard of plaintiff's rights on the part of the motorman, while the proofs show a willful assault. The complaint, however, stated the entire occurrence, in detail, and alleged a cause of action founded not only on negligence, but upon violence upon the

and 118 New York State Reporter

part of defendant's servant. Certainly the alleged variance between the allegations as to negligence in the complaint and the proofs of the assault cannot be said to have misled the defendant, to its prejudice, in maintaining its defense on the merits, in view of the allegations of the complaint setting forth the assault, and hence such alleged variance was immaterial. Code Civ. Proc. § 539. The defendant carrier is civilly liable for all the unlawful acts of its servant, done in the prosecution of the business intrusted to him, if its passengers are thereby injured. It is liable for the acts of injury by an employé, although in departure from the authority conferred or implied, if they occur in the course of the employment. Palmeri v. Manhattan Ry. Co., 133 N. Y. 261, 30 N. E. 1001, 16 L. R. A. 136, 28 Am. St. Rep. 632.

No errors are shown of such weight as to call for a reversal.
The judgment is affirmed, with costs. All concur.

CITY OF NEW YORK v. CHILDS.

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

1. MUNICIPAL CORPORATIONS-OBSTRUCTION OF SIDEWALK-PROCEEDINGS FOR PENALTY-BURDEN OF Proof.

Where, in an action by a municipality for a penalty for maintaining steps and railings projecting on a street, there was no evidence showing the street line in question, it was error to permit a recovery on the assumption that the street line was the same as the house line, as the burden of showing that the defendant had encroached on the street was on the plaintiff.

2. EVIDENCE-JUDICIAL NOTICE.

In an action to recover a penalty for encroaching on a street with steps and railings, the court cannot take judicial notice that the street line and house line on a certain street are the same.

Appeal from Municipal Court, Borough of Manhattan.

Proceedings by the city of New York against Elsworth Childs to recover penalties for violation of the Revised Ordinances, §§ 330, 331, in maintaining steps and railings projecting on the street. Judgment for plaintiff, and defendant appeals. Reversed.

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

Dudley R. Horton (Henry D. Hotchkiss, of counsel), for appellant. Geo. L. Roves (Arthur S. Cosby, of counsel), for respondent.

PER CURIAM. We are of the opinion that the evidence does not show that the ordinances above referred to have been violated by the defendant. No evidence was given on' the trial showing the street line of the street. It was taken for granted by the plaintiff that the street line was the same as the house line. The burden of showing that the defendant had encroached upon the street more than 12 inches was upon the plaintiff. We cannot take judicial notice that the street line and the house line on Broadway are the same, and in fact the evidence shows that all the houses on Broadway at Twenty

Eighth street, where the building in question is situated, do not have the same line, whether it be called "house line" or "street line."

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

DE STEFANO v. BROWN et al. (two cases). ROMAN v. SAME.
DINORCIA v. SAME.

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

1. SECURITY FOR COSTS-ORDER AFTER ANSWER-SETTING ASIDE-DISCRETION. It rests within the discretion of the trial court to set aside an order requiring plaintiff to give security for costs, made after defendants had answered.

2. SAME-ABUSE OF DISCRETION.

Where a satisfactory excuse was given for defendants' failure to ask for an order requiring plaintiff to give security for costs till after answer, and it appeared that plaintiff was financially irresponsible, and that the cause of action arose outside of the state, the trial court did not abuse its discretion in afterwards refusing to set aside the order.

Appeal from City Court of New York.

Actions by Bartolomeo De Stefano, Anna De Stefano, Teresa Roman, an infant, by Chas. Roman, her guardian ad litem, and Louisa Dinorcia, an infant, by Rafaela Dinorcia, her guardian, against Charles A. Brown and John Fleming, doing business as Brown & Fleming. From orders in each of the four cases denying motions to set aside orders requiring plaintiffs to file securities for costs, plaintiffs appeal. Affirmed.

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

Palmieri & Wechsler, for appellants.
F. W. Park, for respondents.

PER CURIAM. In each of these cases the plaintiff is a nonresident, and, if the defendants had moved for security for costs before answer, they would have been entitled to it as a matter of right. Having obtained the order after answer, the question, on plaintiffs' motion to vacate it, was addressed to the discretion of the court. Upon all the facts as they were made to appear, and especially as a satisfactory excuse for the delay was presented, and the plaintiff was shown to be financially irresponsible, and the alleged cause of action arose outside. of this state, we cannot hold that there was an abuse of discretion. The order in each case is affirmed, with costs.

and 118 New York State Reporter

CALL v. CASE.

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

1. LANDLORD AND TENANT-EVICTION-SURRENDER-QUESTIONS OF FACT-CONFLICTING EVIDENCE-REVIEW.

Questions, in a suit for rent, as to whether the escape of smoke and sewer gas into the leased apartment amounted to an eviction, and as to whether the lease was canceled and the premises surrendered at the landlord's request, are questions of fact, as to which the appellate court will not review conflicting evidence.

Appeal from City Court of New York.

Action by William Call against Elizabeth Gertrude Case. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

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

A. S. Gilbert, for appellant.

Avery, Schlessinger & Paul, for respondent.

FREEDMAN, P. J. This action was brought by the plaintiff to recover for four months' rental of an apartment under a lease made by the defendant expiring October 1, 1902, the defendant having surrendered the premises prior to May 1, 1902, and having paid the rent up to that time. The making of the lease and the amount of unpaid. rent was admitted, and the sole issues submitted to the jury were two, viz.: (1) Whether there was a constructive eviction by reason of the escape of smoke and sewer gas into the apartment; and (2) whether the lease was canceled by the plaintiff, and the premises surrendered at his request. These were questions of fact (Hall v. Irvin, 78 App. Div. 107, 79 N. Y. Supp. 614), and the testimony upon this question was conflicting, and the jury found in favor of the defendant. The testimony in the case contains 25 pages, and the charge of the judge 4, and not an objection or exception was taken by either party during the trial, or to any portion of the charge. The only exception appearing in the record is the one taken to the refusal of the trial judge to set aside the verdict and for a new trial, made by plaintiff's counsel. Neither party made any request for the direction of a verdict, and there is not the slightest reason for claiming that the verdict is against the weight of evidence, and the judgment must be affirmed. Judgment affirmed, with costs. All concur.

NATIONAL CASH REGISTER CO. v. CAILLIAS.

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

1. BAILMENT-FAILURE TO RETURN PROPERTY-LIABILITY.

Where defendant, by written agreement, promises to hold himself responsible in a certain sum for the return of a register, his liability on default is the amount fixed in the agreement.

Appeal from Municipal Court, Borough of Manhattan, Sixth Dis

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