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Action by the National Cash Register Company against Frederic C. Caillias. From a judgment for plaintiff, defendant appeals. Affirmed.

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

Crane & Baer, for appellant. Perkins & Butler, for respondent. MacLEAN, J. The defendant hired from the plaintiff a cash register for the summer season of 1902, from June 26 to September 26, 1902, at Coney Island, and agreed in writing to hold himself responsible to the plaintiff in the sum of $100 for its safe custody, and for its safe and peaceable return. He did not return it, and when its return was demanded from him he said he could not, as he did not know where it was. As he testified, he had left Coney Island on September 5th. Then the cash register was in the kitchen. Later it could not be found. Just when it disappeared from the premises was not shown. Some testimony was indulgently received upon abortive attempts to vary the written evidence of the defendant's obligation, and to limit his liability by notice. It was all incompetent. As the learned justice held, however, the liability of the defendant was in the amount fixed by him in his express agreement of bailment.

Judgment affirmed, with costs to the respondent. All concur.

LEE et al. v. CALLAHAN et al.

(Supreme Court, Appellate Term. June 22, 1903.) 1. INJURY TO ANIMAL-EVIDENCE OF VALUE-SUFFICIENCY.

In an action for a negligent injury to a horse, the estimate of one plaintiff, who does not appear to have ever bought an animal, and a statement of the other plaintiff as to what he paid for the horse a year and a half before, with an admission that he does not know its market value,

are insufficient to sustain a finding as to its value. 2. SAME-MANNER OF RAISING OBJECTION.

Defendant's motion, at the close of the case, to dismiss the complaint for failure to show facts constituting the cause of action, is sufficient to raise the question of the sufficiency of the evidence to sustain a finding of the value of the animal for injury to which suit is brought. Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Action by Irving H. Lee and James M. Gale, doing business under the firm name of the West End Delivery Company, against William H. Callahan and Frank McDermott, doing business under the firm name of the O. K. Bottling Company. From a judgment for plaintiffs, defendants appeal. Reversed.

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

James E. Smith, for appellants.
Morris Kamber, for respondents.

and 118 New York State Reporter MacLEAN, J. In this action, brought "for damages arising out of negligence," the plaintiffs adduced evidence to show, among other things, that the leg of their horse was broken in a collision between their vehicle and that of the defendants. They recovered judgment for their loss, in which an important item was the value of the horse, as to which no evidence was given, except the statement by one of the plaintiffs who does not appear to have ever bought an animal, and of the other that he had paid $65 for it a year and a half before, and that he did not know what was its market value. Much of the evidence might or should have been excluded upon proper objection. The defendants' motion, however, at the close of the case, to dismiss the complaint for failure to show facts constituting a cause of action, is sufficient to require reversal of the judgment founded upon an arbitrary judicial estimation of the value of the horse.

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

HESS-MOTT CO. v. BROWN.

(Supreme Court, Appellate Term. June 22, 1903.) 1. INSURANCE-ADVANCING PREMIUMS-SECONDARY EVIDENCE.

Where, in an action by an insurance agent to recover premiums advanced on insurance policies, defendant was served with due notice to produce the policies, it was competent, on his failure so to do, for the agent of plaintiff', who testified to having delivered the policies, to state their contents. Appeal from City Court of New York.

Action by the Hess-Mott Company against William L. Brown. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.

Plaintiff, an insurance agent, brings this action to recover the premiums alleged to have been advanced by it for defendant on two policies of accident and health insurance. A notice was duly served on defendant to produce the policies at the trial, and on his failure to do so, one of plaintiff's officers, who testified to having delivered the policies to defendant, was permitted to state their contents.

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

Ferguson & Sinnott, for appellant.
Henry B. Wesselman, for respondent.

PER CURIAM. The one exception taken during the trial, and which is pressed, is not tenable. Inasmuch as the defendant's counsel did not produce upon due notice the instruments testified as having been delivered him, secondary evidence in the form and of the sort given by the plaintiff's witness was competent. The remaining point --that the verdict was against the weight of the evidence--is not sup

11. See Evidence, vol. 20, Cent. Dig. $ 596.

ported by sufficient considerations, and the appeal raised thereon will be overruled, and the judgment affirmed, upon the memorandum made by the learned justice upon the motion to set aside the verdict and grant a new trial.

Judgment affirmed, with costs to the respondent.

SIFF v. FORBES, Treasurer.

(Supreme Court, Appellate Term. June 22, 1903.) 1. BILLS AND NOTES-INTERÈST-PROMISE TO PAY.

In an action on a note interest cannot be allowed in the absence of any promise to pay it. Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by Jacob Siff against Eber Forbes, as treasurer of the Socialist Labor Party. From a judgment for plaintiff, defendant appeals. Modified.

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

Benjamin Patterson, for appellant.
Joseph Sapinsky, for respondent.

MacLEAN, J. This action is brought upon a promissory note made and delivered by the defendant May 24, 1902, to pay the sum of $400 after date; therefore upon demand. It was given in consideration of the surrender and cancellation of a prior note for $500 and $100 in money. Some 11 weeks after its execution and delivery, and following, as found herein, a demand for its payment, it was assigned by the original payee to the present plaintiff, who thus acquired it after maturity, and subjeet to all the equities. The plaintiff's assignor testified that he had received $150 on account of the note, $85 of which he had applied in payment of three years' interest upon the note for $100, and credited $65 upon the note for $400, leaving a balance of $335, for which the learned justice rendered judgment. Inasmuch as, before interest can be allowed in any case, it must be by virtue of some contract, express or implied, or by virtue of some statute, or as damages for the default of a party liable to pay (In re Clark, 137 N. Y. 98, 32 N. E. 1054), and as there was no promise to pay interest in either the second note or its predecessor, this was error. The judgment must be modified by deducting the sum of $85.

Judgment modified by deducting therefrom the sum of $85, and, as modified, affirmed, without costs. All concur.

11. See Bills and Notes, vol. 7, Cent. Dig. $ 276.

and 118 New York State Reporter

McMYLER v. UNION CASUALTY & SURETY CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. PLATE-GLASS INSURANCE-NONEXISTENCE OF SUBJECT-MATTER-EVIDENCE

SUFFICIENCY.

In an action on a plate-glass insurance policy, evidence that defendant's inspector viewed the glass on the day when it issued the policy, and discovered a hole near its center, does not show that the glass was not

in existence at the time of the issuance of the policy. 2. SAME-BROKEN GLASS-INSURABILITY.

Where a plate-glass insurance policy contains no provision that the glass must be without hole or perforation when insured, a hole through

a pane of glass does not render it uninsurable under such policy. 3. SAME-DESTRUCTION OF GLASS-CAUSE.

The fact that a pane of glass had a hole in its center at the time of the issuance of insurance thereon does not show that a break in the glass from top to bottom one week thereafter was in consequence of, or

connected with, such hole. Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Thomas McMyler against the Union Casualty & Surety Company. From a judgment for defendant, plaintiff appeals. Reversed.

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

A. J. Barrett, for appellant.
John Mott Stearns, for respondent.

MacLEAN, J. The plaintiff sought recovery for a broken pane of plate glass upon a policy of insurance issued to him by the defendant. The defendant contended that the glass in question was broken before the policy was issued; that it, too late, it would seem, had requested return of the policy in order to exempt this particular pane from its application; and that there can be no liability where the subject-matter is not in existence when the policy is issued. There is no evidence of representations of any kind by the assured, while it does appear that the defendant, by its inspector, viewed the glass on the day when it issued the policy, and discovered that "it was broken by a hole through it * * * about the center of the glass, * * * covered by a telephone sign * * * a glass bell sign * * * that was cemented onto the glass.” On cross-examination the inspector was asked, “You found what kind of a break, * * * a perforation?” And he answered, “A perforation in the glass.” This surely does not show that the glass was not in existence at the time of the issuance of the policy; nor does it show that it was damaged and not insurable under the terms of the policy, for its terms nowhere recite that the glass must be without hole or perforation when insured; nor does it prove that the break one week thereafter, when, as the bartender and general manager, the plaintiff testified: "The whole business was broken. * * * It was broken right through from the top to the bottom; broke in about four parts”—was in consequence of or connected with the

hole or perforation earlier discovered by the defendant. The judgment in favor of the defendant must therefore be reversed, and a new trial ordered, with costs to abide the event.

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

ROSENBERG V. HYMAN et al.

(Supreme Court, Appellate Term. June 22, 1903.) 1. ACTION ON BOND-ANSWER-DENIAL OF MATERIAL ALLEGATIONS.

The complaint in an action on a bond conditioned to be void if H. should pay plaintiff $200 in a certain time alleged that he failed to pay any part of it, and in the tbird paragraph alleged that plaintiff duly demanded the $200 of defendants, but no part thereof has been paid. Held, that the answers, denying "the third allegation of the complaint," that H. has failed to comply with the conditions of the bond, and that $200 are due and owing from defendants to plaintiff, deny material allegations, so as to prevent judgment on the pleadings. Appeal from City Court of New York.

Action by Adolph Rosenberg against Adolph Hyman and another. From a judgment for plaintiff on the pleadings, defendants appeal. Reversed.

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

Newman & Butler, for appellants.
M. H. Hochdorf, for respondent.

GILDERSLEEVE, J. The complaint sets forth that on or about the 12th day of December, 1901, the defendants, for the purpose of securing the payment to plaintiff of the sum of $200, duly executed and delivered to the plaintiff a bond bearing date on that day, sealed with their separate seals, whereby they bound themselves, in the penalty of $400, upon condition that the same should be void if the defendant Adolph Hyman should pay to the plaintiff the sum of $200 within 60 days from the date thereof; that the defendant Adolph Hyman failed to pay said sum of $200, which became due on February 10, 1902, or any part thereof, and that therefore the sum of $200 is due on said bond, with interest from February 10, 1902; that payment has been duly demanded and refused; and the complaint demands judgment for $200, with interest from February 10, 1902, with costs. The answer of defendant Hyman admits the execution of a bond, "but denies that the only condition contained therein was that Adolph Hyman should pay to the plaintiff the sum of $200 within sixty days from the date thereof." The answer also denies that said defendant Hyman "failed to comply with the conditions of said bond, or that there is now due or owing to the plaintiff the sum of $200.” The said answer further denies the plaintiff's allegation of a demand for payment, and a refusal thereof, and that no part of the sum of $200 has been paid. The answer of the defendant Eisler is identical with that of the said defendant Hyman, but the defendants appear by separate

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