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fusal of a jury trial to defendant upon the adjourned day, she having previously waived a trial by jury, was reversible error.

Another point raised by the appellant is that the return fails to show that defendant committed the offense of which she was convicted. One of the errors alleged in appellant's affidavit was that all the evidence, papers, and proceedings taken and had did not warrant the conviction of defendant of the crime of assault in the third degree. That return required the City Court of Utica to return all the evidence upon the subject. Code Cr. Proc. § 756; People ex rel. Baker v. Beatty, 39 Hun, 478. The return failed to show that any evidence. was given proving or tending to prove that defendant committed the alleged offense. Counsel for neither party applied for an amended or further return. Counsel for the people contended that, in the absence of a certificate in the return that it contains all the evidence, the appellate court must presume that evidence was given sufficient to sustain the finding, and cites Soule v. Veyrac, 13 Misc. Rep. 167, 34 N. Y. Supp. 112; Brooker v. Filkins, 9 Misc. Rep. 146, 29 N. Y. Supp. 68; and Schwinger v. Raymond, 105 N. Y. 648, 11 N. E. 952. I do not think the rule invoked applies to appeals from Justices' Courts or Courts of Special Sessions. My attention has been called to no case so holding. The proceedings, practice, and pleadings, including appeals from the City Court, are governed by the provisions of the Code of Criminal Procedure relating to Courts of Special Sessions, except as otherwise in said City Court act provided. City Court Act (Laws 1882, p. 94, c. 103, § 6). Furthermore, such a rule could not very well apply to appeals of this kind, for the reason that on appeals from Courts of Special Sessions the court is not required to return all the evidence, but only so much of the evidence as pertains to the errors alleged in the affidavit. People v. McGann, 43 Hun, 57. I am therefore of the opinion that, unless the return contains sufficient evidence to show that the defendant was guilty of the offense of which she was convicted, it is the duty of this court to reverse the conviction. As the return contains no evidence proving or tending to prove that defendant committed the crime of assault in the third degree, the judgment must be reversed. Judgment of conviction reversed.

VERRA v. COSTANTINO et al.

(Municipal Court of the City of New York, Borough of Manhattan, Second District. November, 1902.)

1. REPLEVIN-SUIT ON BOND-NECESSITY OF RETURN OF EXECUTION.

Where, in replevin, the property is seized, but the plaintiff suffers the action to abate, suit may be maintained on the replevin bond, notwithstanding Municipal Court Act, § 126 (Laws 1902, p. 1531, c. 580), provides that a defendant "who has recovered final judgment" cannot sue on the bond until return of execution.

2. SAME.

Defendant is not required on the return day to present the papers to the trial justice, and have the case marked dismissed, under Municipal

Court Act, § 248 (Laws 1902, p. 1561, c. 580), authorizing judgment dismissing an action without prejudice where the plaintiff fails to appear, as such judgment would not be a final one.

Action by John Verra against Domenico Costantino and another. Judgment for plaintiff.

Cohen Bros., for plaintiff.

Sullivan, Goldsmith & Engel, for defendants.

RASQUIN, J. This action is brought to recover damages on an undertaking by the defendants in an action in replevin brought by John Graziuso against Raffaelo Baltinetti in the Municipal Court, Ninth District, in which the property was taken, as appears by the marshal's return and from the evidence of the plaintiff and his assignor, Baltinetti, who had assigned his claim to the plaintiff. The answer interposed by the defendants is to the effect that, no final judgment having been rendered in that action, the plaintiff cannot recover. It is conceded by the defendants that the action in the Ninth District Court was instituted; that a writ of replevin was issued; that a marshal of the city of New York replevied the articles mentioned in the affidavit; that no trial fee was paid; and that the case never appeared on the calendar for the joinder of issue or for trial, and therefore abated. Section 1733 of the Code of Civil Procedure, which is identical with section 126 of the Municipal Court Act (Laws 1902, p. 1531, c. 580), provides that:

"A plaintiff who has recovered a final judgment cannot maintain an action against the sureties in an undertaking given in behalf of the defendants to procure a return of the chattel, or against the bail of a defendant who has been arrested, until after the return, wholly or partly unsatisfied or unexecuted, of an execution in his favor, for the delivery of the possession of the chattel, or to satisfy a sum of money out of the property of the defendant, or for both purposes, as the case requires. A defendant who has recovered a final judgment cannot maintain an action against sureties in the plaintiff's undertaking, given to procure a replevin, until after a like return of similar execution against the plaintiff."

If the contention of the defendant be good, then the complaint must be dismissed. I think, however, that it is untenable, especially when we consider what irreparable injury would be worked if such a doctrine were upheld.

Under the well-settled practice of this court, and by the provisions of the Municipal Court act, the plaintiff may, before final submission, withdraw and discontinue the action; or, as in this case, he may fail to pay the required fee, and place the case upon the calendar, or the court may lose jurisdiction. In either event, where would the remedy of the defendant on the undertaking be? Certainly he could get no final judgment, for the reason that the court was without jurisdiction to grant it. It would work an abatement, and so bring the case within Tone v. Hetherington, Daily Reg. Oct. 7, 1881; Frost v. Kopp, 13 Civ. Proc. R. 377. The section clearly applies in an action in replevin. Where either party has obtained a judgment, he must first issue execution on the judgment before he can proceed on the undertaking. In other words, the law has provided that,

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where the action has been disposed of on the merits between the parties, recourse must first be exhausted against the other, in that action, before an action can be maintained on an undertaking. The defendant, being unable to obtain final judgment in such a case, would, if the contention of the defendant is good, be without remedy. It might be argued that the defendant has a right on the return day to present a copy of the papers to the trial justice, and have the case marked dismissed, under section 248 of the Municipal Court act. That section provides:

"Judgment that the action be dismissed with costs, without prejudice to a new action, shall be rendered in the following cases: (1) Where the plaintiff voluntarily discontinues the action before it is finally submitted. (2) When he fails to appear at the time specified in the summons or upon adjournment."

This certainly would not be a final judgment, for it would not determine the rights of the parties, as it would be without prejudice to a new action, and the defendants could, under such circumstances, advance the same defense as now.

I think the case at bar is identical with that of Tyler v. Millen, 8 N. Y. Week. Dig. 290. In that case the defendant brought an action in replevin in a justice's court against one Howland, to obtain possession of a horse, who gave an undertaking for the prosecution of the action, or the return of the property, if adjudged to belong to the defendant. After the joining of issue, and on the day fixed for trial, plaintiff withdrew the action, defendant protesting, and judgment of discontinuance was entered. Howland assigned his claim to plaintiffs, and in an action brought on an undertaking judgment was rendered in favor of plaintiffs. On appeal to the General Term, Third Department, it was held that:

"When Millen discontinued the action, he was guilty of a breach of the condition of his bond, and became liable for damages. His conduct was an attempt to pervert the law by gaining possession of the horse, and stopping proceedings in time to retain such possession, and thus compel the defendant to revive the action on his own behalf. The recovery is just and proper. Millen's affidavit before the justice was introduced in evidence in this action over objection. His admission of the value of the horse was proof, and is sufficient evidence of value."

I think the doctrine laid down in the Tyler Case is sound and controlling, and I shall follow it. No evidence was introduced on behalf of the defendant to offset plaintiff's evidence as to damages, and I think, under the authorities cited, plaintiff is entitled to judgment for $150 and costs.

Let judgment be entered accordingly.

(41 Misc. Rep. 396.)

AMERICAN LAW BOOK CO. v. EDWARD THOMPSON CO. (Supreme Court, Special Term, New York County. October 2, 1903.) 1. TRADE-UNLAWFUL COMPETITION INDUCING BREACH OF CONTRACT - IN

JUNCTION.

Where defendant fraudulently induced persons dealing with complainant to break their contract for the purchase of complainant's books, for the intended benefit of defendant and to the intended injury of complainant, and defendant agreed to indemnify any of complainant's subscribers against claims for damages for their breach of contract in declining to receive and pay for complainant's books, and for conducting and defraying the expenses of the defense of any actions brought against such subscribers by defendant for breach of such contracts, complainant was entitled to an injunction restraining defendant from making such agreements.

2. SAME-FRAUDULENT REPRESENTATIONS.

Where, in a suit to restrain a competing publisher from inducing complainant's subscribers to break their contracts, intentional false statements concerning complainant's publications, made with a view to obstruct complainant's business and to divert it to defendant, were charged, whether the subscribers to complainant's publications in each instance were actually led by defendant's misrepresentations to break their particular contracts was not material.

8. SAME-ADequate Remedy at Law.

Where a competing publisher fraudulently induced complainant's subscribers to break their contracts by means of misrepresentations and agreements to indemnify such subscribers against damages and consequent litigation, complainant had no adequate remedy at law by its action for breach of such contracts, so as to preclude it from obtaining an injunction to restrain defendants from such acts.

4. SAME-WRONGFUL ACTS-DISCONTINUANCE-EFFECT.

Where complainant sought an injunction against a competing publisher to restrain defendant from inducing complainant's subscribers to break their contracts, and agreeing to indemnify them from damages accruing therefrom, the fact that defendant had discontinued the practice of offering such indemnity agreements did not deprive complainant of its right to injunctive relief.

Bill by the American Law Book Company against the Edward Thompson Company. Preliminary injunction granted.

Fred C. Leubuscher, for plaintiff.

Walter Large, for defendant.

BISCHOFF, J. By preliminary injunction in an action for injunctive relief the plaintiff seeks to restrain the defendant from making agreements with subscribers to the plaintiff's encyclopædia, whereby the defendant undertakes to indemnify these subscribers against claims for damages for their breach of contract in declining to receive and pay for the plaintiff's books, and from conducting and defraying the expenses of the defense to any action brought against the subscriber by the plaintiff. The complaint alleges that these agreements have been systematically offered by the defendant to the plaintiff's subscribers for the purpose of causing them to subscribe to the defendant's encyclopædia, and to repudiate their subscriptions for the work published by the plaintiff; and the allegations further disclose the making of intentional misrepresentations by the defendant to these subscribers as to the relative merits of the encyclopædias

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for the purpose of inducing the breach of contract. The defendant admits the making of the agreements in question, but asserts that the plaintiff has no remedy in equity upon the allegations of the complaint, the contention being that the plaintiff has his remedy at law for each contract broken, that the party to that contract has the right to break it and pay damages, and that what the party can do another person may ask him to do without restraint by injunction. It is also argued that the cases in which an injunction has been granted to prevent the solicitation of a breach of contract are found to have involved only contracts for personal services, and that there is no precedent for such an injunction as the plaintiff seeks. If there be no exact precedent for this injunction, none is needed. The complaint avers, and the affidavits support the averment, that the defendant is engaged in an attempt to obtain business which the plaintiff has secured, having no regard to fairness of competition but with resort to trick and device.

Whether the subscribers are in each instance actually led by the defendant's misrepresentations to break the particular contracts is not important, and is not an essential averment of the complaint. Intentional false statements, made with a view to obstruct the plaintiff's business and to divert it to the defendant, are charged, and the solicitation of the subscriber's breach of contract is but a more active step in the same scheme of unfair competition. The fraudulent intent, followed to fruition in the actual inducement of persons dealing with the plaintiff to break their contracts for the intended benefit of the defendant and to the intended injury of the plaintiff, is the basis of the defendant's wrong; a wrong which our system of remedial justice recognizes as the subject of relief. Rice v. Manley, 66 N. Y. 82, 23 Am. Rep. 30; Rich v. R. R. Co., 87 N. Y. 390, and, see, Bowen v. Hall, 6 Q. B. D. 333.

That an action for damages would not afford an adequate remedy is obvious. The loss of business and the injury to business reputation resulting from the defendant's acts of obstruction, and from the consequent litigation between the plaintiff and its delinquent subscribers, could not be estimated nor proven with any degree of certainty for the purposes of a recovery; nor could the plaintiff properly estimate the additional burden of the future litigation with subscribers, whose defense would (as is to be inferred from the past) be conducted by the defendant at great pains and expense, bearing no relation to the amount of the claim, but solely in the interest of obstruction and for advertising purposes. The invasion of a legal right being apparent, and the inadequacy of relief at law being clear, a case for injunctive relief is made out; and, indeed, direct authority for an injunction upon a very similar state of facts is not wanting. Stoddard v. Key, 62 How. Prac. 137.

The suggestion that the plaintiff has solicited the breach of subscribers' contracts with the defendant is not supported by proof, which would be readily obtainable if this were the fact, and the papers disclose the contrary.

That the practice of offering these indemnity agreements is claimed to have been discontinued would not affect the right to an injunction,