and 118 New York State Reporter had got his front legs on said westerly track, the south-bound car struck the horse, and caused the injury for which plaintiff seeks to recover. The horse was struck on the front leg and on the right side by the car, being first struck on the front leg, which shock swung him around, and thus exposed his right side to the car. Plaintiff, on cross-examination, testifies as follows, viz.: "Q. The horse went only that short distance (4 feet), while the car was coming a whole block? A. Yes, sir; the block is very short. That is the shortest block I ever saw, that Broadway block; it is only one house." plaintiff called no witnesses to corroborate his account of the accident, while the defendant called three-the motorman, the conductor, and a tailor named Nordberg, who was a passenger on the car. But from plaintiff's own statement it appears that he drove at a good trot down Fifth avenue to Twenty-Fourth street; that on approaching Broadway, and while four feet east of the easterly track, he saw a south-bound car already at the crossing of Twenty-Fifth street, which he states was a very short block away-"only one house"; that the car was approaching rapidly, and yet he deliberately crossed the easterly track, and then attempted to cross the westerly track, apparently without paying any further attention to this rapidly approaching car. He miscalculated his chances of getting across before the car reached him. It does not appear that he made a signal to the motorman that he was about to cross, but even if he did, and the motorman was guilty of negligence, it still appears from plaintiff's own statement that his own negligence contributed to the accident. We are of opinion that the judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur. STEINHARDT et al. v. EISEN et al. (Supreme Court, Appellate Term. June 22, 1903.) 1. PLEADINGS-AMENDMENT-DEFENSE OF USURY. Municipal court act (Laws 1902, p. 1542, c. 580, § 166), providing that the court must on application allow a pleading to be amended at any time if substantial justice will be promoted thereby, requires the municipal court to allow an amendment to defendants' answer by setting up the defense of usury. Appeal from Municipal Court, Borough of Manhattan, Third District. Action by Louis H. Steinhardt and another against David Eisen and others. From a judgment for plaintiffs, defendants appeal. Reversed. Argued before FREEDMAN, P. J., and GILdersleeve and MacLEAN, JJ. Steuer, Hoffman & Wahle, for appellants. H. J. Hindes, for respondents. PER CURIAM. At the close of the plaintiffs' case, and again at the close of the whole case, the defendants asked leave to amend the answer by setting up the defense of usury. This was denied by the trial court. Municipal Court Act, § 166 (Laws 1902, p. 1542, c. 580), provides "that the court must, upon application, allow a pleading to be amended at any time, if substantial justice will be promoted thereby." This proposed amendment should have been granted, upon such terms, however, as the court might deem proper. The defense sought to be interposed has sometimes been termed an unconscionable one, and not to be encouraged, but it is a legal one nevertheless, and if proven no recovery can be had. The judgment must therefore be reversed. Judgment reversed. New trial ordered, with costs to appellants to abide the event. MEYEROWITZ v. INTERURBAN ST. RY. CO. (Supreme Court, Appellate Term. June 22, 1903.) 1. STREET RAILROADS-PASSENGERS-INJURIES-NEGLIGENCE-SUFFICIENCY. Evidence that while plaintiff was attempting to board a street car, which had stopped in response to his signal, the car started, and plaintiff fell on the street, without showing in what manner the car started, and without showing that plaintiff's fall was caused by the starting of the car, was insufficient to show negligence on the part of defendant. Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Abraham Meyerowitz against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. Morris Cukor, for respondent. FREEDMAN, P. J. This is one of the ordinary actions for personal injuries alleged to have been caused by the negligence of the defendant. The only evidence given by the plaintiff, who was the only witness sworn in his behalf, as to the occurrence, was that one of the defendant's cars stopped in response to his signal, and that plaintiff "stepped with the right foot on the car, and then I was holding. I wanted to get on, and the car started, and I fell off; and the car went right along, and I fell on the street." This is no evidence of negligence on the part of the defendant. The mere starting of a car is not negligence. How or in what manner the car in this case was started does not appear, nor was it shown that the plaintiff's fall was caused by such starting of the car. Judgment reversed. New trial ordered, with costs to the appellant to abide the event. All concur. and 118 New York State Reporter MULLER v. INTERURBAN ST. RY. CO. (Supreme Court, Appellate Term. June 22, 1903.) 1. STREET RAILROADS-CROSSING ACCIDENT-NEGLIGENCE-CONTRIBUTORY NEG LIGENCE-JURY QUESTIONS. Evidence in an action for injuries by the driver of a wagon struck by defendant street railway company's car at a crossing held to justify the submission to the jury of the issues of defendant's negligence and plaintiff's contributory negligence. MacLean, J., dissenting. Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by Christian Muller against the Interurban Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. H. A. Robinson (Arthur K. Wing and Wm. E. Weaver, of counsel), for appellant. Joseph I. Green, for respondent. GILDERSLEEVE, J. The action is for personal injuries. While the plaintiff may have been somewhat confused on cross-examination, still his evidence shows that when his horses got onto the west track of defendant he saw the car a block away on the same track. He was driving slowly. He had his horses over the west track, onto the east track, when he looked again, and saw the car half a block away. Before he could get the hind part of his wagon over the west track, the car struck the wagon, and caused the injuries complained of. The evidence was such that the question of the negligence of defendant's servant in charge of the car and of the plaintiff's contributory negligence was a proper one for the jury. The charge of the learned justice was a correct statement of the law applicable to the case. We can find no reason for disturbing the judgment. Judgment affirmed, with costs. FREEDMAN, P. J., concurs. MacLEAN, J. (dissenting). The plaintiff, driving an empty twohorse stone truck easterly through 111th street, was struck on Second avenue by a south-bound car of the defendant, and in this action charged his injuries upon the defendant. That he looked and saw the car before he got upon its track is clear, but not his direct testimony to where and when. Upon his cross-examination he testified that he saw the car at 112th street as soon as he came out from the house line; that the distance from the first rail to the edge of the street was 43 feet, and he saw the car when he commenced to drive the 43 feet; that his horses were walking, and the car was coming extremely fast, and he kept right on, watching it all the time, and if the motorman did not stop the car he knew he would get struck. The collision occurring at a point where the parties had similar rights and similar duties, the plaintiff might not impose greater duties upon the defendant, or assume for himself superior rights, or recover when the fault of the defendant but equals his own. Judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. ADLER et al. v. SCHAUMBERGER. (Supreme Court, Appellate Term. June 22, 1903.) 1. BROKERS-RIGHT TO COMMISSION-ILLEGAL ACT. A broker may not recover commissions, his services rendered being in violation of Pen. Code, § 640d, because he had no written authority to offer the property for sale. 2. APPEAL-AFFIRMANCE. A judgment for plaintiff for a nominal sum will be affirmed, he alone appealing, though it was for services illegally rendered, so that it would have been reversed had defendant appealed. MacLean, J., dissenting in part. Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Arnold Adler and another against Charles Schaumberger. From a judgment for plaintiffs for a nominal sum, they appeal. Affirmed. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. J. D. Connolly, for appellants. GILDERSLEEVE, J. The action is for broker's commissions. The justice found on sufficient evidence that the services were illegally rendered, for the reason that plaintiffs had no written authority to offer the property for sale. See Pen. Code, § 640d; Whiteley v. Terry (Sup.) 82 N. Y. Supp. 89. Plaintiffs were not entitled to recover anything for such services, which were in themselves a violation of the law. See Griffith v. Wells, 3 Denio, 226. Nevertheless the justice gave judgment for plaintiffs in six cents damages and costs. Had the defendant appealed, the judgment would have been reversed. The plaintiffs have no cause for complaint, as they have obtained a more favorable judgment than, under the facts as found by the justice, they were entitled to have. The judgment must be affirmed, with costs. FREEDMAN, P. J., concurs. MacLEAN, J. (dissenting). "As it appears," reads the memorandum of decision of the trial justice, "that the plaintiffs were employed in the latter part of October, 1901, to sell the premises mentioned, on the sale of which a commission is claimed in this action," and "the 11. See Brokers, vol. 8, Cent. Dig. §§ 44, 79. and 118 New York State Reporter employment alleged was not in writing," the plaintiffs, in offering for sale the property of the defendant, were guilty of a misdemeanor (Laws 1901, p. 312, c. 128), and not entitled to recover (Fox v. Dixon [Sup.] 12 N. Y. Supp. 267, and Charles v. Arthur [decided at this term] 84 N. Y. Supp. 284). The judgment rendered in favor of the plaintiffs, even for nominal sum, with costs, was therefore improper. The complaint should have been dismissed, with judgment in favor of the defendant, with costs. Although the plaintiffs alone appeal, and are without cause for complaint, they should not benefit by an affirmance of a judgment palpably erroneous. The judgment should be reversed, and a new trial ordered. LANGFELDER et al. v. RENOUF. (Supreme Court, Appellate Term. June 22, 1903.) 1. COUNTERCLAIM-CONVERSION OF GOODS-Bailee. A bailee of goods has a right to maintain a counterclaim for conversion thereof. Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by M. Langfelder and others against John J. Renouf. From a judgment for plaintiffs, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. Cantwell, Moore & McDonnell, for appellant. MacLEAN, J. To a complaint of work, labor, and services of the value of $25.62 the defendant answered with a general denial, counterclaim of $30.76, and payment. The pleadings were oral. The plaintiffs proved their claim without objection. The nature of the counterclaim was not disclosed until, in the course of his direct examination, the defendant testified to shortages of goods sent by him to the plaintiffs to be laundered and returned, when the trial judge remarked: "I hold that the defendant cannot recover for these articles unless they are his own; that no articles can be made the subject of a counterclaim except those owned by the defendant, or the claim for which has been assigned to him." To this the defendant excepted. It was error. The defendant, a bailee of these articles, had a right to maintain a counterclaim for conversion of the goods. See Katz v. Diamond, 16 Misc. Rep. 577, 38 N. Y. Supp. 766. Then the defendant, by his counsel, offered to show that the articles he sought to recover were placed in the defendant's custody by several owners, and that he in turn made a contract with the plaintiffs, by which the plaintiffs agreed to perform work upon the property, and return them, but, failing so to do, the defendant claimed damages in the value of the articles for the plaintiffs' failure to perform their contract. Objection to this was sustained, and defendant took an exception. Notwithstanding, the defendant was allowed to proceed, and offered some |