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and 118 New York State Reporter and Wolf constituted an implied contract to pay rent for the use of the premises, Wolf had no authority to bind the defendant.

The defendant's counterclaim having been dismissed, and the plaintiff having failed to sustain a cause of action against the defendant upon his second claim set up in the complaint, the verdict of the jury in favor of the plaintiff for the sum of $279.64 was erroneous. The judgment must therefore be reduced to the sum of $129.64 and costs.

Judgment modified by reducing the amount of judgment to $129.64 and costs, and, as modified, affirmed, without costs to either party of this appeal. All concur.

WHITE MFG. CO. V. DE LA VERGNE REFRIGERATING MACH. CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. SALE-WARRANTY SURVIVING ACCEPTANCE.

Where plaintiff agreed to manufacture for defendant castings made in a good and workmanlike manner, without defect, and suitable for certain use, such warranty survives defendant's acceptance and payment a reasonable time for discovery in the stipulated use of a latent defect,

discoverable only by test of actual use. 2. SAME--BREACH-EVIDENCE.

Where plaintiff manufactured a casting for defendant with warranty that it should be without defect, its history after it was cleaned at plaintiff's foundry is not necessary as foundation for testimony based solely on the appearance of the metal as carrying with it its own history of the defect, and showing that it was a shrinkage crack, coming through manu

facture in an unworkmanlike way. 8. EVIDENCE-HEARSAY.

The question when shrinkage cracks in castings appear, asked of a witness who had said he was not a practical molder, and knew nothing about shrinkage cracks except as he had come across them in his busi

ness, calls for hearsay. Appeal from City Court of New York.

Action by the White Manufacturing Company against the De La Vergne Refrigerating Machine Company. From a judgment on a verdict for defendant, plaintiff appeals. Affirmed.

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

Herbert T. Jennings (Arthur M. Sanders, of counsel), for appellant. Ashbel P. Fitch (Grant C. Fox, of counsel), for respondent.

MacLEAN, J. Upon the pleadings alleging and admitting in counterclaim and reply that the plaintiff agreed to manufacture and deliver to the defendant castings made in a good and workmanlike manner, without defect, and suitable for the use of the defendant in the construction of a refrigerating plant to be erected, it was sufficient for the defendant to show to the due satisfaction of the jury that the casting for which it is here sought to recover had a latent defect, discoverable only upon the test of actual use, and had not been manufactured in a good and workmanlike manner, and that the casting was tendered back with reasonable promptitude upon disclosure of

the defect. The express warranty of which the defect was a breach survived acceptance and payment for a reasonable time for the discovery of the defect in defendant's usage as known to the plaintiff in their dealings. Evidence competent and material having been given by the respective parties as to these facts in issue, the judgment entered upon the verdict is to be sustained without discussion of collateral matters brought forward upon the trial, saving consideration of the two objections, with exceptions, upon which stress is laid. The history of the casting while out of the defendant's possession, or in fact after it was cleaned at the plaintiff's foundry, was not necessarily material as foundation for testimony professedly based solely upon the appearance of the metal itself as carrying with it its own history of the defect, and showing that a "shrinkage crack” came through manufacture in an unworkmanlike way, either in pouring metal too cold or in prematurely removing sand from parts of the cooling casting, knowledge of either or both of which was imputable to the plaintiff through its servants. Whatever its value, the answer of the expert to that effect was competent, and could be met only as the learned counsel tried to meet it by weakening its effect on crossexamination and by contradiction. Evidence of the experience of plaintiff's concern as to the time when these cracks appear might or not have been material. The question relating to it was properly ruled out, as it called, apparently, only for the hearsay of the witness, who had said frankly that he was not a practical molder, and knew nothing about shrinkage cracks except as he had come across them in his business.

Judgment affirmed, with costs. All concur.

BYRNES V. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. NEGLIGENCE-SUFFICIENCY OF EVIDENCE.

Mere proof of defendant's negligence, without any evidence showing freedom from contributory negligence, will not sustain a recovery. Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by William L. Byrnes against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. Henry A. Robinson, for appellant. Cornelius J. Early, for respondent.

PER CURIAM. The plaintiff's driver, in charge of a two-horse truck, was crossing Lexington avenue from the east to the west at 1 28th street, when a collision occurred between the car and the truck or the horses attached thereto, and this action is to recover damages

84 N.Y.S.-13

and 118 New York State Reporter therefor. The truck was in charge of the plaintiff's driver, who was the only person on the truck at the time. Several witnesses were produced on the part of the plaintiff, who saw the occurrence, but the driver was not sworn, and the only excuse given was that he had been subpænaed and had failed to appear, and the plaintiff proceeded to trial without his testimony. Although it may be said that from the testimony of plaintiff's witnesses the court might be justified in finding that the defendant was guilty of negligence, there is no evidence in the case whatever to show whether or not the driver took any precautions to avoid the accident, or was free from contributory negligence himself. This requires a reversal of the judgment.

Judgment reversed. New trial ordered, with costs to the appellant to abide the event.

LONG v. GINGOLD et al.

(Supreme Court, Appellate Term. June 22, 1903.) 1. MANUFACTURE OF CLOTHING-WORKMANLIKE MANNER-EVIDENCE-JUDGMENT-REVERSAL.

Where, in an action by an assignee to recover on a claim for work done by his assignor in the manufacture of certain coats for defendants, the defense was that the coats were not made in a workmanlike manner and according to instructions, and plaintiff's testimony was contradictory as to the directions regarding the manner in which the work was to be done, and his assignor and an expert both admitted that a coat exhibited at the trial was not made in a workmanlike manner, a judgment for

plaintiff in the full amount will be reversed. Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by William Long against Isaac Gingold and another. Judgment for plaintiff, and defendants appeal. Reversed.

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

Samson Friedlander, for appellants.
Marks & Marks, for respondent.

MacLEAN, J. It would be a substantial refusal of justice to deny relief from this judgment upon the traditional doctrine of conflict of evidence. There were contradictions in the testimony given on behalf of the plaintiff and of the defendants, but not so great, if as great, as the contradictions in the statements of the plaintiff's assignor, his chief witness. The action was brought for work, labor, and services rendered by the plaintiff's assignor in the manufacture of certain coats for the defendants, who set up that the work was done in a negligent, unskillful, and unworkmanlike manner, and so contrary to specific instructions as to render them useless, with a counterclaim for damages to their property and injury to their business. Cut cloths were received from the defendants, with tickets, showing lot numbers, quantity, articles, and prices, together with a plainly written statement that edges and seams were to be "double stitched." These the assignor recognized; for, on being asked how he knew how to make the coats, he replied, “The statement showed me." But later, having been shown garments identified by him as his own handwork, which were not double stitched, as required, and the statement having been offered in evidence by his own counsel, he said that coats were never double stitched at the bottom; and upon his re-direct examination he made a statement in direct conflict with his former testimony, as to a change in directions in conversation with one of the defendants, which conversation he used, too, as an explanation for making some of the goods according to the directions upon the statement. It was part of the assignor's undertaking to do his work in a workmanlike manner, but he admitted, as did his expert-for each side had an expert-that the garment exhibited was not made up in a workmanlike manner. Besides, parts not adapted to each other were sewed up together-e. g., a 35 back to a 38 coat—which alone was characterized as improper by the plaintiff's expert.

It is not necessary here to consider the counterclaim, as the judgment must be reversed.

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

KAPNER et al. v. SAMUELS.

(Supreme Court, Appellate Term, June 22, 1903.) 1. JUDGMENT-OPENING DEFAULT-DISCRETION-REVIEW.

Where defendant's attorney, having a physician's verified certificate of defendant's illness, asked an adjournment only on the ground of actual engagement of counsel before the executive, which was refused, and default allowed, the granting of a motion to open the default will not be disturbed, it being a proper exercise of judicial discretion. Appeal from City Court of New York, General Term.

Action by Adolph Kapner and others against Lester W. Samuels. From an order granting defendant's motion to open his default, plaintiffs appeal. Dismissed.

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

Jacob Rieger, for appellants.

Joseph C. Kadane (Benjamin F. Spellman, of counsel), for respondent.

MacLEAN, J. An order of the General Term of the City Court affirming an order entered at Special Term opening a default, and setting aside a consequent judgment, is appealed from by the plaintiffs chiefly on the grounds of a defective affidavit of merits, and as an abuse of legal discretion, because not accompanied by imposition of costs and terms. More adjournments than amenities had been had by the respective counsel, until, having been passed for several successive days upon the day calendar because of the engagements of successive counsel of the plaintiffs, on February 26th the case was set to be tried on the foliowing morning. During that day the defendant became and 118 New York State Reporter so ill that he was obliged to keep to his bed, of which fact word was sent his attorney, who saw the physician, and received a verified certificate of the illness of defendant, and that to leave his house might endanger his life. On the evening of the same day, defendant's counsel, who had been informed of the defendant's inability to attend court, went with a priest and other persons to Albany to lay before the Governor newly discovered evidence relating to a man under sentence of death, and who had been given a brief respite. Inexplicably, at least unexplained here, defendant's attorney asked an adjournment, on the following morning, only upon the ground of actual engagement of counsel before the executive-not a reason enumerated in the rules of practice of this department. The adjournment was refused, and the default allowed. It goes without saying that, had he presented the verified certificate of the defendant's illness, the application would have been granted. These facts being presented and not contradicted, the motion to open the default was granted, without costs, and affirmed in a judicious exercise of discretion. None of the cases cited sustain the appellants' contention respecting the affidavit of merits, not phrased exactly in the customary form, it is true, but substantially meeting the requirements of the rule under the revised procedure.

The appeal is dismissed, with costs to the respondent. All concur.

GRIBBEN v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. DANGEROUS STREETS-NOTICE TO PEDESTRIAN-PRESUMPTION OF SAFE Con.

DITION.

In the absence of an appearance of danger readily discernible by reasonable care, the existence of which is ordinarily a question of fact, pe

destrians have the right to assume that sidewalks and crosswalks are safe. 2. SAME-PARTICULAR DEFECT-NOTICE-QUESTION OF Fact.

Whether a rail extending over a crosswalk constitutes a sufficient notice of danger to a pedestrian to make it her duty to avoid it is a question of fact.

MacLean, J., dissenting in part.
Appeal from City Court of New York.

Action by Jessie Gribben against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

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

H. A. Robinson, for appellant.
Frank Herwig, for respondent.

FREEDMAN, P. J. As a general rule, the sidewalks and crosswalks in the city of New York are for the benefit of all conditions of people, and hence, ordinarily, every one, in passing along over them, has the right to assume that they are safe, and to regulate his

11. See Municipal Corporations, vol. 36, Cent. Dig. $ 1678.

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