網頁圖片
PDF
ePub 版

and 118 New York State Reporter tained a covenant that rent was to be computed only from the time of such readiness. Similarly as to the question put the same witness: "Were they, on the ist day of August, ready for occupation for the sale of flowers?" In like manner, bald objections were taken to questions which, although in a way objectionable, might have brought out information relevant and material to the counterclaims respecting damage done to the wares and business of the defendants by the exposure and injury to the premises alleged to have been due to the wrongful act and neglect of the plaintiff.

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

PECK V. ANTES.

(Supreme Court, Appellate Term. June 22, 1903.) 1. BROKERS-SALE OF REAL ESTATE-COMMISSIONS—WRITTEN CONTRACT.

A broker cannot recover commissions for the sale of real estate without proving written authority from defendant to offer the property for

sale. Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Action by Hulbert Peck against Clara H. Antes. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed.

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

John Hardy, for appellant.
Harris, Corwin, Gunnison & Meyers, for respondent.

PER CURIAM. This action was brought by the plaintiff, as a real estate broker, to recover the sum of $249 as his commission as a broker on the sale of the premises known as No. 498 Ninth avenue, in the borough of Manhattan, city of New York, to one Mrs. Helena Lindemann, on or about the 3d day of May, 1902. The plaintiff in this case, having shown no written authority from the defendant to offer her property for sale, cannot recover commissions from the defendant. Whiteleley v. Terry (Sup.) 82 N. Y. Supp. 89. The defendant brought this question to the attention of the court by his motion to dismiss upon the ground that "no contract that was binding upon the purchaser had ever been produced," and an action cannot lie to recover compensation for doing an act which the statute declares to be a misdemeanor. Moreover, an examination of the whole case shows an entire failure on the part of the plaintiff to maintain the burden of proof cast upon him of proving his employment by the defendant.

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

1 1. See Brokers, vol. 8, Cent. Dig. $8 44, 79.

INSKY V. CHATKOFF. (Supreme Court, Appellate Term. June 22, 1903.) 1 MUNICIPAL COURT-JUDGMENT-AUTHORITY TO VACATE.

Municipal Court Act (Laws 1902, p. 1563, c. 580, $ 254), authorizing the court to, vacate a judgment and grant a new trial in specified cases, does not empower the court to vacate a judgment in favor of one party

and give a judgment in favor of the other party. Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by Sol Insky against Benjamin Chatkoff. From a judgment for plaintiff, defendant appeals. Reversed.

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

A. I. Albert, for appellant.
S. Chugerman, for respondent.

GILDERSLEEVE, J. The record in the case reads as follows, viz.:

"The case here closed, and said justice thereupon, to wit, on the 5th day of March, 1903, rendered judgment in favor of the defendant and against the plaintiff, and subsequently, upon motion to resettle, the same was vacated, and judgment granted in favor of plaintiff and against the defendant for $23.25, and $2 costs."

The court, under the conditions set forth in section 254 of the municipal court act (Laws 1902, p. 1563, c. 580), has the power to vacate a judgment and grant a new trial, but there is no authority given to the court to vacate a judgment in favor of one party and give a judgment in favor of the other party.

The judgment must be reversed and a new trial granted, with costs to appellant to abide the event. All concur.

WALLACE V. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. APPEAL-REFUSAL TO RESETTLE CASE-REVIEW.

The Supreme Court will not reverse an order of a trial judge denying a motion to resettle the case on appeal by inserting exceptions not appearing in the stenographer's minutes, where the proof of error rests on conflicting affidavits and the negative evidence of the stenographer's notes. Appeal from City Court of New York, Special Term.

Action by William A. Wallace against the Metropolitan Street Railway Company. From an order denying defendant's motion for an order resettling the case on appeal, defendant appeals. Affirmed.

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

Henry A. Robinson, for appellant.
Perkins & Butler, for respondent.

and 118 New York State Reporter MacLEAN, J. The learned justice before whom this cause was tried has denied a motion to resettle the case on appeal by inserting exceptions not appearing in the minutes of the stenographer. While it might be expected that counsel of experience would take the exceptions claimed to have been taken during the trial, this court will not revise the determination of the trial justice upon conflicting affidavits and the negative evidence of the stenographer's minutes.

Order affirmed, with costs. All concur.

HORWITZ v. REINERT. (Supreme Court, Appellate Term. June 22, 1903.) 1. APPEAL-JUDGMENT-EVIDENCE-SUFFICIENCY.

A judgment supported by evidence allowed to go in generally without objection, and without the taking of a tenable exception, will not be disturbed on appeal, though the evidence is slight. Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Isaac Horwitz against Ferdinand Reinert. From a judgment for plaintiff, defendant appeals. Affirmed.

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

James E. Smith, for appellant.
Nathaniel Levy, for respondent.

PER CURIAM. This is an appeal from a judgment for damages to personal property of the plaintiff

, whose cart containing notions, fancy goods, and hardware was run down by a wagon belonging to the defendant, and driven by one of his employés. Although resting upon very slight proof, and seemingly for a large amount, the judgment may not be disturbed, as the evidence, slight as it is, was allowed to go in, generally without objection, and without the taking of a tenable exception.

Judgment affirmed, with costs to the respondent.

FISCHER v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. APPEAL-DEFAULT JUDGMENT-NEW TRIAL.

Code Civ. Proc. $ 3064, providing, if appeal is taken by defendant, who failed to appear before the justice, and he shows, by affidavit or otherwise, that manifest injustice has been done, and renders a satisfactory excuse for his default, a new trial may be ordered, does not apply where defendant was in the trial court when the case was called, took part all

through the trial, and cross-examined plaintiff's witnesses. 2. JURY-EXAMINATION.

Defendant is not deprived of an opportunity to examine the jury, he having one attorney in court, merely because the court will not wait for his associate counsel.

3. CHANGE OF VENUE-TIME FOR DEMANDING TRANSFER.

Under the Municipal Court act (Laws 1902, p. 1497, c. 580, $ 25, subd. 4), providing, if the district in which the action is brought is not the proper one, the action may be tried there, unless it is transferred on demand of defendant made on or before joinder of issue, in writing, or in open court, such demand before joinder of issue is essential to right of

transfer. 4. SAME-PROVISION OF DEMAND.

Under the Municipal Court act (Laws 1902, p. 1497, c. 580, $ 25, subd. 4), providing for trial in the district in which an action is brought, though it is not the proper one, unless defendant transfer, specifying the district to which he requires the action to be transferred, a demand for

transfer “to some other district,” is insufficient. 5. APPEAL-REVIEW.

An affidavit that demand for transfer of place of trial was made at a certain time will not prevail on appeal, there being nothing in the record to show such a demand, and the trial judge having decided that it was

not made. Appeal from Municipal Court, Borough of Manhattan.

Action by Louis Fischer against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

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

George D. Yeomans, for appellant.
Steiner & Petersen, for respondent.

FREEDMAN, P. J. This was an action to recover damages for personal injuries. The facts are not disputed, and the only material questions raised upon the appeal are: First, that the court refused to allow the defendant to examine the jury; and, second, that the court had no jurisdiction to try the case, it appearing upon the trial that neither plaintiff nor defendant were residents of the district in which the trial was had.

Several affidavits have been handed up with the return in this appeal, and it is claimed that this court can consider them, and our attention has been called to section 3064 of the Code of Civil Procedure as containing authority for such practice. Assuming, but not deciding, that section 3064 can be deemed a part of the new Municipal Court act, Laws 1902, p. 1496, c. 580, under provision of section 20 of said act, the defendant is in no position to invoke it, as that section applies only to cases where the defendant has failed to appear before the court below, and shows a satisfactory excuse for his default, and that manifest injustice has been done. The defendant was in court when the case was called, and took part all through the trial, cross-examining every witness present on the part of the plaintiff; and upon what theory of the law the defendant now calls the trial so had an "inquest,” and seeks by affidavits to contradict or vary the record therein, it is impossible to conceive.

Equally without merit is the claim that the defendant had no opportunity to examine the jury impaneled to try the case. The defendant appeared in court by an attorney, and at his request the case was held until all the other cases on the calendar had been called. When it was

and 118 New York State Reporter again called the defendant's attorney asked the court to wait until another one of the defendant's attorneys, who it appears was expected soon, should come. The court said, “A jury is here, and will be impaneled, but the case might not be called for 10 minutes." The defendant's counsel then asked the court to take the inquests first, which was done, and the case again called. The jury were requested to take their seats, and the court asked the attorneys for the respective parties if the jury was satisfactory. Defendant's counsel again asked for delay until his associate counsel could get there. This was refused. Defendant's counsel stood by while the plaintiff's counsel examined the jury, and after such examination was closed again asked the court to wait until the other attorney appeared. This request was again refused, and the jury was sworn.

The record does not disclose any reason why the attorney for the defendant did not make any examination of the jury he desired, or avail himself of his preliminary challenges. It is not claimed that the attorney then present was not equally competent to proceed with the case as the expected attorney, and it does not appear that either attorney ever asked the court to excuse any juror, or asked leave to challenge any juror, either for cause or peremptorily. There is nothing in the record to show that the jury was not a wholly fair and impartial one, or that the defendant was prejudiced in any way by the refusal of the court to allow the first attorney to examine them after they had been sworn, when he had full opportunity to do so before that time, nor in the court's refusal to allow the associate attorney to examine the jury upon his request after his appearance before the court during the progress of the trial. Upon the question of jurisdiction of the court to try the case, neither of the parties being residents of the Second district, subdivision 4 of section 25, p. 1497, of the new Municipal Court act provides :

"If the district in which the action or proceeding is brought is not the proper district, the action may, notwithstanding, be tried therein, unless the action is transferred to the proper district before trial upon demand of the defendant made upon or before joinder of issue in writing or in open court."

As it frequently occurs in the Municipal Court that issue is joined in open court, not in writing or by written pleadings, the proper construction of that section is that the defendant must demand that the change of the place of trial be made upon or before joinder of issue in writing, or upon or before joinder of issue in open court. There is no evidence in the record that any such demand was made at or before the time issue was joined in this case. During the trial, when the plaintiff testified as to her residence, the defendant's counsel then asked to have the case transferred to another district, as her testimony showed that she was not a resident of the district when the case was being tried, and in his motion stated that he had made such a demand upon the return day of the summons, and also stated that he had handed up an affidavit (which a fidavit is attached to the record) setting forth that the parties were not residents of the district in which the action was brought. The court stated that such affidavit was not handed up until after three adjournments had been had, and refused to transier the action, on the ground that the motion to transfer had been made too late. The affidavit handed up and at

« 上一頁繼續 »