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feet away.

knew a north-bound car was approaching from a point 175 to 200

He did not look again, but waited in a dangerous situation for a south-bound car to pass. Had he again looked at the approaching north-bound car, he undoubtedly could have avoided the collision by swinging his horse to the east side of Third avenue.

As was said in Du Frane v. Met. St. Ry. Co. (Sup.) 82 N. Y. Supp. 1-5:

"If a pedestrian reaches the track in time to cross it in safety, provided the speed of an approaching car be not increased, he cannot be said to be negligent in proceeding; but if it is apparent to him, or would be to a person of ordinary prudence exercising ordinary care, that the car will inevitably overtake him unless the speed is slackened, then it is not prudent for him to proceed, even though it be the duty of the motorman to slow down or stop to enable him to cross."

In the case at bar the driver evidently, and, no doubt, properly. assumed when he went upon defendants' north-bound track that he had sufficient time to cross ahead of the north-bound car; but, after observing that he must stop in order to allow a south-bound car to pass before he could proceed, he should again have looked, and ascertained the proximity of the approaching north-bound car, in order to avoid, if possible, any collision. Failure to do this under the circumstances was negligence on his part.

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

WHITE V. LAWYERS SURETY CO. OF NEW YORK.

(Supreme Court, Appellate Term. June 22, 1903.) 1. APPEAL-ORDERS APPEALABLE.

Under Laws 1902, pp. 1562, 1563, 1578, c. 580, 88 253–256, 310, regulating appeals from the Municipal Court, an order making a party de

fendant is not appealable, as it is not mentioned in such sections. Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Action by Juliet White against the Lawyers' Surety Company of New York. From an order making another party defendant, plaintiff appeals. Dismissed.

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

J. T. Williamson, for appellant.
L. E. Kuster, for respondent.

PER CURIAM. The appeal is from an order making Oliver T. Sherwood a party defendant. The order was made on the application of Sherwood, and opposed by plaintiff. Appeals from the Municipal Court are regulated by sections 253–256, 310, Municipal Court Act (Laws 1902, pp. 1562, 1563, 1578, c. 580). In none of these sections is power given to appeal from an order of the character here presented.

1. See Appeal and Error, vol. 2, Cent. Dig. § 651.

and 118 New York State Reporter The power of the Supreme Court to entertain appeals from the Municipal Court is limited to the cases mentioned in the statute. Pascocello v. R. Co., 26 Misc. Rep. 412, 56 N. Y. Supp. 177.

As the order in question is not appealable, the appeal must be dismissed, with $10 costs and disbursements.

IRVING v. PULLMAN CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. CARRIERS-SLEEPING CAR COMPANIES-Loss OF PROPERTY-NEGLIGENCE.

Where a passenger on a sleeping car gave his umbrella to a porter, who was alone in charge of the car, and it was never returned to him, the negligence of the company was sufficiently shown to sustain a judg

ment for its value. Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Richard A. Irving against the Pullman Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

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

Saunders, Webb & Worcester, for appellant.
R. A. Irving, for respondent.

PER CURIAM. The plaintiff was a passenger on defendant's sleeping car. He gave his umbrella to the porter, who alone was in charge of the car, to take to his berth, and then went to bed. The next morning he could not find the umbrella. No explanation of its loss has been furnished by defendant. Apparently the plaintiff did not see the umbrella after giving it to the porter to be carried to his berth. The justice gave judgment for plaintiff for $5 damages and $2 costs. Under the undisputed evidence of plaintiff, we will not interfere with the conclusion of the court below, as the negligence of defendant is sufficiently shown. See William v. Webb, 27 Misc. Rep. 508, 511, 58 N. Y. Supp. 300 (Leventritt, J.); Carpenter v. R. R. Co., 124 Ñ. Y. 53, 57, 26 N. E. 277, 11 L. R. A. 759, 21 Am. St. Rep. 644.

Judgment affirmed, with costs.

BORNSTEIN et al. v. DISKIN et al.

(Supreme Court, Appellate Term. June 22, 1903.) 1. PRACTICE-STRIKING CASE FROM CALENDAR-Moving PAPERS-SUFFICIENCY.

A motion to strike a case from the calendar was properly denied where it did not appear from the moving papers that the attorney for the defendant who appeared and answered was attorney for the codefendants, or that he knew that the latter had not been served, or that the case

was not at issue by default. Appeal from City Court of New York, Special Term.

Action by Joseph Bornstein and another against May Diskin and others. From an order denying a motion to strike the case from the calendar, defendants appeal. Affirmed.

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

Menken Bros., for appellants.
Shapiro & Shapiro, for respondents.

MacLEAN, J. It not appearing from the moving papers that the attorney for the defendant who did appear and answer was the attorney for the codefendants, or that he knew the latter had not been served, or that the case was not at issue by default, the court below properly refused to strike the case from its calendar, and its order must be affirmed, with costs.

Order affirmed, with costs. All concur.

PARK & TILFORD V. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. APPEAL-FINDINGS OF Fact-REVIEW.

A finding of fact by the trial court in an accident case will not be disturbed, though but one witness testified as he found, while several testified the other way; he basing his belief in the credibility of the witnesses on their demeanor. Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by Park & Tilford against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

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

McCurdy & Yard, for appellant.
Henry A. Robinson, for respondent.

MacLEAN, J. That “the decision of the trial justice was contrary to the evidence, and the weight of the evidence,” is principally the point upon which the plaintiff rests its appeal from the determination in favor of the defendant in an accident case, in which the veracity of the witnesses for their respective sides was passed upon by the learned trial justice, who, as he aptly says, reached the conclusion that the evidence preponderated in favor of the defendant, not in regard to the quantity of the testimony, nor the number of witnesses, but in reference to the quality of the evidence; adding that no one who heard the testimony of the only witness called for the defendant, and observed his demeanor on the stand, could doubt the man's veracity, while, on the other hand, the testimony of most of the witnesses for the plaintiff was given in a halting and unsatisfactory manner, and slid not appeal to the intelligence of the court. The judgment should be affirmed.

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

and 118 New York State Reporter

HOLZMAN v. KATZMAN et al.

(Supreme Court, Appellate Term. June 22, 1903.) 1. SERVANTS-INJURIES- ACTIONS-EVIDENCE-SUFFICIENCY.

In an action for servant's injuries caused by a fall of bricks, where there is no proof of the application or violation of the provisions of the labor law (Laws 1897, p. 468, c. 415, $ 20, as amended by Laws 1899, p. 351, c. 192) relative to the protection of persons employed on buildings in cities, nor of the cause of the fall of bricks, a finding of fault on the

part of the owner of the building is without evidence to support it. Appeal from City Court of New York, Trial Term.

Action by Samuel Holzman against John Katzman, impleaded with others. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

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

Nadal & Carrere, for appellant.
Morris Cukor, for respondent.

MacLEAN, J. Assuming the evidence of direction, supervision, and control sufficient to connect the owner of the building in process of construction as common master of the employés of his codefendants who had agreed to do the mason work, there was neither proof nor contention of the application or violation of the provisions of the labor law (Laws 1897, p. 468, c. 415, $ 20, as amended by Laws 1899, P. 351, c. 192), nor does the case disclose the cause of the fall of the bricks in consequence of which the plaintiff sustained his injuries. Under the decision of Van Orden v. Acken, 28 App. Div. 160, 50 N. Y. Supp. 843, the maxim res ipsa loquitur does not apply. The finding of fault on the part of the owner of the building being, therefore, without evidence to support it, the judgment and order below in favor of the plaintiff must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

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

GERRY V. SIEBRECHT et al.

(Supreme Court, Appellate Term. June 22, 1903.) 1. TRIAL-ADMISSION OF EVIDENCE-OBJECTION-ERROR.

Where no grounds are given for an objection to a question calling for material evidence, though improper in form, it is error to sustain such objection, Appeal from City Court of New York.

Action by Elbridge T. Gerry against Henry A. Siebrecht and another. Judgment for plaintiff, and defendants appeal. Reversed.

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

Jno. M. Gardner, for appellants.
Harris & Towne, for respondent.

MacLEAN, J. This action was brought to recover for three months' rent of a store and basement, forming a part of a store basement and conservatory, together forming part of the structure known as the "Windsor Arcade," demised by the plaintiff to the defendants in a written lease, to be occupied only for the sale of flowers, commencing on the ist of August, 1901, it being understood, as stated in the lease, that the arcade was in process of erection; that if completed and ready for occupancy prior to the beginning of the term, the lessees might take possession without further rent, and, in case it were not ready for occupancy at the beginning of the term, possession was to be delivered as soon as it was completed and ready, and rent was to be computed only from the time of readiness for occupancy. was directed for the plaintiff, and properly enough, upon the evidence adduced.

Several exceptions were taken by the defendants to the exclusion of certain questions upon the objections of the plaintiff, which objections would or would not have been good, according to the ground upon which they were put, and cannot be sustained, because the plaintiff did not take the trouble to give any ground at all. Among other counterclaims, it is alleged that the plaintiff agreed (presumably outside of the lease) to permit the defendants to fix up and improve the premises in a manner suitable to their business, in certain particulars, so that they might use and occupy them by the ist of August, but that the plaintiff, in violation of their agreement, refused to allow them so to do, and thereby delayed them from fitting the place for occupation until the 18th of November; and, again, that the plaintiff agreed and undertook not to do, or suffer any act or neglect which would make the premises leased unfit for occupation or untenantable, and that, by wrongful act of the plaintiff, ice fell through the roof of the conservatory, damaging the flowers of the defendants by exposure and falling glass, and preventing of the transaction of business; and further, that the defendants, under stress of protest, had been compelled to pay a quarter's rent which was not due, and for which they were not indebted. These counterclaims amounted to much more than the plaintiff's claim, so that, if valid, the judgment should have been in favor of the former, and not of the latter, party.

Passing by the exceptions taken upon the exclusion of certain questions, to which categorical answers might have been allowed as preliminary to showing agreements outside of the written lease, a bare objection, without mention of any reason, was not tenable to the question put by his counsel to one of the defendants: “Now, before you were able to occupy the same for the sale of flowers, what, if anything, was necessary to be done about the premises?" For an answer, under the circumstances, might have been very material to the counterclaim, although the question was objectionable as a conclusion of the witness, inasmuch as the premises were to be occupied for the sale of flowers, and the terms of the lease not only implied that they would be ready for occupancy upon the beginning of the term, but also con

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