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and 118 New York State Reporter

DEPEW et al. v. KRULEWITCH.

(Supreme Court, Appellate Term. June 22, 1903.) 1. INSURANCE-AGENTS TO PROCURE-AGREEMENT TO GIVE REBATE-TERMINA

TION.

Where agents to procure insurance under oral agreement to give certain rebates inform the insured that they will give rebates no longer,

after which insured accepts policies, his right to the rebate is terminated. 2. SAME-SUFFICIENCY OF EVIDENCE.

Evidence held sufficient to show termination of an agreement by insurance agents to give rebates to insured. Appeal from Muncipal Court, Borough of Manhattan.

Action by R. Henry Depew and others against Lewis Krulewitch. From a judgment for defendant on a counterclaim, plaintiffs appeal. Reversed.

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

George S. Clay, for appellants.
Brinn & Greenberg, for respondent.

FREEDMAN, P. J. The plaintiffs sued to recover the sum of $79. The defendant admitted the claim, and sets up a counterclaim for $129.22. The defendant claims, in substance, that the plaintiffs were employed by him to procure policies of insurance upon the property of defendant, and that of the premiums paid for such insurance plaintiffs agreed to allow the defendant 772 per cent. rebate. The amount of premiums upon the insurance secured by plaintiffs for defendant aggregated $1,723, and defendant's claim of 772 per cent. thereof amounted to the sum of $129.22, above mentioned. It was conceded by the plaintiffs that for several years prior to 1901 there had existed an agreement between the parties to allow the defendant certain amounts as 'rebates, which had been done, but that in 1901 a certain rule adopted by the Fire Insurance Exchange had prohibited the plaintiffs from allowing rebates, and thereafter they refused to allow them to the defendant. Depew, one of the plaintiffs, testifies that between April 1 and July 2, 1901, at a conversation had with the defendant in the plaintiffs' office, Depew told the defendant that no more commissions would be allowed him on policies of insurance; that defendant said he could get rebates, and Depew again told him that they (plaintiffs) should not give them any more; that the rules of the insurance exchange prohibited it, and that plaintiffs had signed a pledge not to do so. The defendant, however, accepted his policies obtained by plaintiffs, and continued to hold them, and thereafter paid from time to time on account until the amount due plaintiffs had been reduced to $79, the amount sued for. This conversation was not denied by defendant, who simply testified regarding it that “I don't remember.” Depew is corroborated by his clerk, one Wood, and this testimony stands uncontradicted. The arrangement or agreement as to paying defendant rebates was not in writing, and could have been terminated at any time. When Depew notified defendant of its termination, the defendant could have refused to accept the policies obtained by plaintiffs for him, or could have returned them to plaintiffs and procured them elsewhere. This he did not do. We think the counterclaim was not proven, and should not have been allowed.

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

KRINTZMAN V. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. IMPUTED NEGLIGENCE-FELLOW SERVANT.

The negligence of the driver of a wagon is chargeable to a fellow

servant riding on the wagon with him. 2. STREET RAILWAYS-CROSSING ACCIDENT—CONTRIBUTORY NEGLIGENCE.

Where one driving a wagon on approaching a street railway track saw a car 20 feet distant, approaching rapidly, but drove on the track,

he was guilty of contributory negligence. 3. SAME-CONTRIBUTORY NEGLIGENCE.

Where one sitting on the tailboard of a wagon, which was going slowly toward a railroad track, saw a car approaching 20 feet away, at a rapid rate of speed, but continued to sit where he was until he was thrown

off by a collision, he was guilty of contributory negligence. Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by Samuel Krintzman 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.
Michael B. Feeny, for respondent.

MacLEAN, J. Plaintiff, in the employ of the Nassau News Company, on the 17th day of November, 1902, about 4:50 o'clock in the morning, was injured as a result of a collision between defendant's street car and the wagon of the news company, which was driven by a fellow workman westerly through Warren street, with the plaintiff sitting on the tailboard of the wagon. On reaching West Broadway a north-bound car struck the front wheel of the wagon, turned it over, throwing off the plaintiff, and causing the injury. The driver of the wagon testified:

"I was driving through Warren street. The team of horses just crossed the track, and an American News Company wagon ahead of me. I followed that wagon. I got my horses past and half of the front wheel, and the car struck me, and turned the wagon clean over. There was no space at all hardly between the heads of the horses and the other wagon. I was right on top of him. I followed directly behind the other wagon. What did I do before I got on the track? I drove right straight on. The car came alongcame so fast-and turned it right over. I didn't think the car was coming so fast. I seen the car about twenty-five feet from the track. It was about forty feet away when I first saw it, I imagine. I was about twenty-five feet

1 1. See Negligence, vol. 37, Cent. Dig. $ 147.

and 118 New York State Reporter away from the track, and I see this American News Company wagon pass. I didn't think the car was coming fast, and I followed him right up.”

There were no lights on the wagon, as testified by the plaintiff. The negligence of his comrade, the driver, who was negligent, was chargeable to the plaintiff, who, moreover, says that sitting on the tailboard of the wagon, which was going slowly, he saw the coming car 20 feet away, and continued sitting there until he was thrown off by the collision. The judgment should be reversed, and a new trial ordered, with costs to abide the event.

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

GREENBERG V. ANGERMAN.

(Supreme Court, Appellate Term. June 22, 1903.) 1. APPEAL-ORAL PLEADINGS-SCOPE-EFFECT OF EVIDENCE.

On appeal from a judgment of the Municipal Court in a case in which the pleadings have been oral, their scope must be determined by the

evidence, rather than by the complaint. 2. IDEM SONANS-JUDGMENT-SEIZURE OF Goods.

Goods of "Israel F.” cannot be seized on a judgment against "Isaac F." 8. CONTINUANCE-ABSENCE OF COUNSEL-DEFAULT-REFUSAL 10 OPEN.

After having secured several adjournments of a pending trial, defendant asked a further continuance because his counsel was not present, and he desired to obtain other counsel, and on its refusal left the courtroom. He offered no reason then or on his subsequent motion to open his "default" why his attorney was absent, or explanation as to when he ascertained the attorney's inability to be present. Held, that a refusal to open the “default” was proper.

MacLean, J., dissenting.
Appeal from Municipal Court, Borough of Manhattan.

Action by David Greenberg against Albert M. Angerman. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Aaron Morris, for appellant.
Israel M. Lerner, for respondent.

FREEDMAN, P.J. On the trial of this action, which was begun on December 15, 1902, the plaintiff proved that his assignor, one Israel Finegold, by a bill of sale dated October 29, 1901, purchased of one Charles Hawes all the fixtures, chattels, and stock of merchandise in a store at 1359 Second avenue; that on November 29, 1901, the defendant, a city marshal, came into the store, and, claiming to have a "judgment" against one Isaac Finegold, seized upon $15 in cash in the money drawer, demanded the balance due on the judgment, and began to pack up the goods preparatory to removing the same. Plaintiff's assignor thereupon paid the marshal the sum of $100.50, which, with the sum of $15 already taken, equaled the amount of the judgment, and assigned his cause of action to this plaintiff, who brought this suit. The pleadings were oral, it appearing, however, from the return herein that the court characterized the pleadings on the part of the plaintiff as for "conversion and damage to personal property." Upon the first day of the trial the plaintiff, in addition to the foregoing facts, proved, without objection, that the marshal damaged a quantity of the goods, and the amount and value of such damages. The case was then adjourned until December 26th. On January 5, 1903, the parties again appeared, and the record contains the following:

"On the call of the calendar plaintiff's counsel and the defendant personally appeared, and answered 'Ready,' and when the case was reached for trial the defendant asked for an adjournment on the ground that his lawyer was absent, and he desired to obtain other counsel. The court denied the application for adjournment on the ground that the defendant had had sufficient opportunity to engage other counsel, and that the defendant had answered *Ready' on the call of the calendar, there having been several adjournments granted at the defendant's request since the last hearing of this case.”

It appears that thereupon the defendant withdrew from the courtroom with his witnesses, and took no further part in the trial. Subsequently he made a motion to open what he called his "default," which was denied. After the withdrawal of the defendant from the case, the plaintiff continued his proof, but proved less than $10 in amount of damages in addition to his prior proof. The court below gave a judgment in favor of the plaintiff for the amount of money taken by the defendant and the sum of $31 damages.

The judgment should be affirmed. As before stated, the pleadings were oral, and in such cases we must look to the facts established by the evidence, rather than to the complaint, for the scope of the pleadings. Hart v. Met. St. Ry. Co., 65 App. Div. 493, 72 N. Y. Supp. 797. The judgment rendered herein does not authorize the arrest or imprisonment of the defendant upon execution, and is therefore a money judgment only. The marshal exceeded his authority in seizing the goods of Israel Finegold upon a judgment against Isaac Finegold. The defendant offered no reason, either at the trial or upon the subsequent motion to open "his default," why his attorney was not present, or as to when he ascertained that his attorney was unable to be present, and the court below was, under the circumstances, justified in refusing the defendant's application to adjourn the trial of the cause and to open his alleged "default." The judgment, as rendered, is amply supported by evidence, and technical errors and defects not affecting the merits must be disregarded. Section 326, Municipal Court Act (Laws 1902, p. 1583, c. 580).

Judgment affirmed, with costs.

GILDERSLEEVE, J., concurs.

MacLEAN, J. (dissenting). Complaining orally for "conversion and damage to goods," the plaintiff's evidence on the trial indicated at the most conversion of $15 and the disturbance of some goods which the defendant marshal had prepared to take away, and which, it is said, in testimony so unusual as to call for inquiry by the justice, were of the value of $31. Judgment, however, was given for $146.50, of which amount $100.50 was paid, according to the testimony of the

and 118 New York State Reporter plaintiff, under duress. No amendment to allow either such testimony or recovery was made at the trial, and the judgment should be reversed, especially as the latter portion of the trial was an inquest, having been proceeded with, upon refusal to postpone, in the absence of counsel, after an interval of some days, in which there were repeated adjournments.

CARVANIO V. UNION RY. CO. OF NEW YORK CITY.

(Supreme Court, Appellate Term. June 22, 1903.) 1. STREET RAILROADS-TRAVELER ON THE STREET-INJURIES-CONTRIBUTORY

NEGLIGENCE.

A traveler crossing a street car track held guilty of contrib ory negligence precluding a recovery for injuries sustained to his horse and

wagon by being struck by a car. Appeal from Municipal Court, Borough of Manhattan.

Action by Bernardo Carvanio against the Union Railway Company of New York City. From a judgment for plaintiff, defendant appeals. Reversed.

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

Henry A. Robinson, for appellant.
McNulty & Pratt, for respondent.

FREEDMAN, P. J. This is an action for injuries to personal property alleged to have been occasioned by the negligence of the defendant. Plaintiff's servant in charge of one horse and a wagon was driving north on the east side of Third avenue in the borough of the Bronx. His destination was a point upon Cortlandt avenue. As he reached a point near 146th street, he turned westerly to cross defendant's tracks. His testimony is as follows:

"Just while we were about to cross, I looked back, and a car was approaching at 145th street. That was about 175 or 200 feet away. Then I looked back, and we went across. Then I saw another car coming down south from the north. It was bound south, and it was going fast, and I thought I did not have time, and I stopped there at the track, at the right-hand side.

* I stopped to let the north-bound [south-bound] car through. I stopped at the right-hand side of the track. The horse was on the track when I stopped. I stopped at the right-hand side of the south-bound track and on the north-bound track. My horse was on that track."

The wagon was struck by the north-bound car, and the horse and wagon injured. The witness further testified that he was familiar with the locality; that he did not look for the car, after he saw it at or near 145th street, until after he was struck by it, and that after he drove upon the north-bound track he remained standing there “about half a minute" before proceeding, and that there was nothing to prevent his swinging his horse in an easterly direction into Third avenue, and off the northerly track. I am of the opinion that the driver of the wagon was guilty of contributory negligence. He made no use of his sense of sight that a person of ordinary prudence should have made under the circumstances. When he went upon the track, he

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