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tached to the record is sworn to January 27, 1903, and issue was joined January 6, 1903, by verified pleadings. The affiant swears "that on the return day of the summons, before issue was joined, a motion was made to dismiss the complaint or transfer the case to some other district upon the ground that neither party to the action live in the Second district.” Assuming such a demand as stated to have been made, it was insufficient, as it did not comply with subdivision 4 of section 25, p. 1497, of the Municipal Court act, supra, as it did not "specify the district to which the defendant requests the action to be transferred.” Moreover, in the absence of anything in the record going to show that such demand, at or before issue was joined, was made, and the trial judge having decided that no such demand was made at the time before stated, the affidavit should not prevail. The section referred to providing that the court should make an order transferring the action to the proper district iipon an application for a change of the place of trial, it would be better practice, in the event of a refusal by a trial judge to transfer a cause in a proper case, to take and enter an order denying defendant's motion, and then bring up the order for review upon an appeal from the judgment. The judgment in this action should be affirmed.

Judgment affirmed, with costs. All concur.

PEOPLE y. DUNSTON et al.

(Supreme Court, Appellate Term. June 22, 1903.) 1. GAME LAWS-ILLEGAL POSSESSION OF QUAIL-Qui Tam ACTION-SUFFICIENCY

OF EVIDENCE.

In a qui tam action for the penalty provided by Laws 1900, p. 22, c. 20, for having quail in possession during the close season, the informer's evidence disclosed that he and three other persons entered defendant's "place," and ordered quail from the "waiter," who said he would "have to see," and who then went back and spoke to some one in the rear of the place-ostensibly the manager-and afterwards returned, and served the party with quail. Held, that the evidence was insufficient to show possession in the defendants, and the complaint was properly dismissed.

Truax, J., dissenting. Appeal from Municipal Court, Borough of Manhattan, Eleventh District.

Action by the people of the state of New York against John Dunston and others. From a judgment in favor of defendants dismissing plaintiff's complaint, plaintiff appeals. Affirmed.

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

B. Frank Wood, for the People.
L. J. Morrison (1. F. C. Blackhurst, of counsel), for respondents.

FREEDMAN, P. J. This action was brought to recover penalties prescribed for an alleged violation of the act commonly known as the “Forest, Fish and Game Laws" (chapter 20, p. 22, Laws 1900). The complaint charges the defendant with having "unlawfully, willfully,

84 N.Y.S.-17

and 118 New York State Reporter and knowingly possessed four quail during the close season for quail, contrary to the form of the statute in such cases made and provided.” The section claimed to have been violated is section 28, which provides that "quail shall not be sold or possessed during the close season, etc. The penalties imposed are one for $60, and an additional one for $25 for each bird or part of a bird taken or possessed in violation of the act, and also declaring the offending party guilty of a misdemeanor. The complaint in this action contained no allegation as to the nature of the business carried on by the defendants, nor was there any proof offered on the trial as to what kind of business the defendants were engaged in. The only proof adduced on the trial was that given by one John E. Overton, who was a state game constable, and who testified that he was entitled to receive one-half of the penalty collected, after expenses are deducted; and one Franklin N. Moore, who was in company with Overton at the time he testified the quail were eaten. This action being a qui tam action, the proof must be strict. “Every fact necessary to constitute the offense for which the recovery is sought must be averred, and no intendments are allowed in favor of the person for whose benefit the suit is brought." Higgins v. Dakin, 86 Hun, 461, 33 N. Y. Supp. 890; People ex rel. Mutual Life Ins. Co., 72 Ill. App. 569. Wood's testimony is the most favorable of any given in the case to sustain the plaintiff's complaint. He testifies that Overton and himself, with two young ladies, on the evening of the 18th of February, 1902, went into the defendants' place about half past II. “We ordered quail from the waiter, and he said, 'I will have to see,' and he went back and spoke to some one in the rear of the place—ostensibly the manager—and afterwards he came back, and said it was all right, and he served us with four quail." The quail were eaten by the party, and this action was brought. This is the only testimony in the record that in any way points to defendants. It is admitted by the witnesses that they did not see either of the defendants about the place. Who the waiter or manager was does not appear, if in fact there was a manager at all, and the only proof in support of the complaint is that some one in the premises of the defendants called by the witnesses a "waiter" served said witnesses with quail. This fails to show possession in fact in the defendants, and the decision of the trial justice in dismissing the complaint in view of the nature of this action upon the meager facts shown was correct. In the case cited by the appellantPeople v. Buffalo Fish Co., 164 N. Y. 99, 58 N. E. 34, 52 L. R. A. 803, 79 Am. St. Rep. 622—actual possession in the defendant was shown, and the court there held that the burden was cast upon the defendant of proving such possession was legal.

Judgment affirmed, with costs.

GILDERSLEEVE, J. I concur in the opinion of the Presiding Justice. It cannot be said, except from inference, that defendants were proprietors of the business in which the waiter was employed who served the quail, nor that the waiter was employed by defendants, There is no proof that any of the defendants were present at the time the quail were served. Upon the proof offered, the court could not deny the defendants' motion to dismiss the complaint without assuming

by inference that which the plaintiff was bound to establish by direct and conclusive proof.

The judgment should be affirmed, with costs.

TRUAX, J. (dissenting). I am as fond of quail, in season and out of season, à la broche, au laurier, aux petits pois, au gratin, aux laitues, en cronstades, à l' Anglaise, aux truffes, à la poile, à la ceudre, aux ecrerisses, vous la ceudre, au salficon, en compote, au basilic, aspic, galantine, chandfroid, bisque of quail, pate chand, tourte de quails, or any other way, as is either one of my associates, but I cannot concur in the conclusions reached by them. It is alleged in the complaint in this action, and admitted by the answer, that the defendants were engaged in business at 761 and 763 Sixth avenue in this city. The evidence shows that the business carried on there was that of a restaurant. On the trial the witnesses called it a restaurant, and it was frequently referred to as the premises of the defendants and as Mr. Dunston's restaurant. The evidence shows that quail were purchased on the premises mentioned in the complaint from a waiter who was employed in the restaurant. This evidence was not disputed by the defendants, and but one conclusion can be drawn from the evidence, and that is that the defendants had quail in their possession on the day testified to by the plaintiff's witnesses.

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

SCHATZBERG V. GROSWIRTH.

(Supreme Court, Appellate Term. June 22, 1903.) 1. BROKERS-COMMISSIONS-CONTRACT PERFORMANCE-EVIDENCE-BURDEN OF

PROOF.

Where, in an action to recover a commission, plaintiff relied on an express promise of defendant to pay a commission if plaintiff procured certain premises for him at a price not exceeding a specified sum, and it was shown that plaintiff, as well as other brokers, had been employed by the owner of the property to sell it, and defendant claimed that he acquired the property through the efforts of another broker to whom the owner paid a commission, plaintiff had the burden of establishing by a clear preponderance of the evidence not only the express contract sued on, but

also that he procured by his own efforts the premises for defendant. Appeal from City Court of New York.

Action by Isidore Schatzberg against Ludwig Groswirth. From a judgment of the City Court in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

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

Louis Steckler and J. Brownson Ker, for appellant.
Max D. Steuer and Wales F. Severance, for respondent.

FREEDMAN, P. J. The action was brought by the plaintiff, a real estate broker, to recover for services performed by him at defend

and 118 New York State Reporter ant's request in and about the purchase by defendant of certain premises of one Englander. The plaintiff, in his complaint and testimony, relied upon an express promise of the defendant to pay the plaintiff a commission of i per cent. upon the amount of the purchase price in case the plaintiff should procure the premises for the defendant at a price not exceeding $73,000. The plaintiff, as well as other brokers, had been employed by Englander to sell the the property. The defendant did acquire the property, but, as he claimed, through the efforts of another broker, one Jacobowitz, to whom Englander paid a commission. The burden was therefore upon the plaintiff to establish by a clear preponderance of evidence not only the express contract sued upon, but also that he procured by his own efforts the premises for the defendant. Upon the latter proposition the evidence appears to preponderate in favor of the defendant, and in the interests of justice there should be a retrial of the issues.

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

HARRIS v. CHILDS' UNIQUE DAIRY CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. RESTAURANT KEEPER-PROPERTY OF GUESTS-THEFT-LIABILITY.

The proprietor of a quick-lunch restaurant, having provided nails in the walls on which hats and overcoats could be hung, also posted placards containing the words: “Numerous Thieves. Watch your Overcoat and Hat." At the bottom of the bills of fare on the tables was printed: “Not responsible for personal property unless checked by the manager." A manager was in attendance and on the watch to protect the property of patrons, and the checking system provided ample protection for overcoats. Held, that the proprietor was not negligent in respect to the protection of a patron's overcoat hung by its owner on a nail and stolen

therefrom. Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Lewis Harris against the Childs' Unique Dairy Company. Judgment for plaintiff, and defendant appeals. Reversed.

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

Frayer, Smith, White & Seamon, for appellant.
Daniel W. Blumenthal, for respondent.

GILDERSLEEVE, J. On February 24, 1903, plaintiff entered defendant's restaurant for lunch. It was a so-called "quick-lunch restaurant,” where no rule of etiquette required the removal of either hat or overcoat by the customers. Nevertheless there were nails in the walls upon which customers could hang their hats and overcoats, if they wished. Also upon the walls were posted large printed placards containing the words: "Numerous Thieves. Watch your Overcoat and Hat.” Plaintiff adinits that he had observed these placards. Upon each table were four bills of fare, upon the bottom

of which were printed the words: “Not responsible for personal property unless checked by the manager.” Plaintiff had frequently eaten at said restaurant, and was presumably well aware of this notice. On the occasion in question plaintiff took off his overcoat, and first handed it to a waitress, but immediately took it back from her, and then hung it on a nail, and seated himself at a table in a position from which he could not see his overcoat without turning around. He paid no further attention to it until he had finished his meal, when he discovered that his overcoat had been stolen. He brought this action against the owner of the restaurant for the alleged value of the overcoat, and recovered a judgment for $40 damages and $4.41 costs. Defendant appeals.

The rules of law applicable here have been clearly laid down by this court in the case of Montgomery v. Ladjing, 30 Misc. Rep. 96, 61 N. Y. Supp. 840. We think the plaintiff failed to sustai the burden of showing absence of such care, in respect of the plaintiff's overcoat, as the circumstances required. On the contrary, it appears from uncontradicted testimony that the defendant had in attendance a manager, constantly on the watch to protect the property of his patrons ; that he provided a system of checking, which, if availed of by patrons, afforded ample protection for overcoats; and that conspicious placards were posted containing warning against thieves. Moreover, there is no sufficient evidence of the value of the coat, since the only testimony on this question is hearsay. Upon a careful reading of all the testimony, it must be said that the facts essential to the plaintiff's right to recover are not established by a fair preponderance of evidence.

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

GRABENSTEIN V, METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. CARRIERS-STREET RAILWAYS-PERSONAL INJURIES.

Where, in an action against a street railway company for personal injuries received by a passenger in alighting, alleged to have resulted from a premature starting of the car, there was no evidence that he had signaled the conductor or motorman to stop, or that either of them had notice of bis intention to alight, or that the car had been started again with a knowledge on their part that he was in the act of alighting, the

complaint should have been dismissed. 2. SAME-EVIDENCE-COMPETENCY.

In an action against a street railway company by a passenger for personal injuries received in alighting, plaintiff having testified on his own behalf in rebuttal, it was error to refuse to permit him on cross-examination to answer a question as to whether he knew that, if he got off the

car while it was in motion, he could not recover in the action. Appeal from City Court of New York.

Action by Herman Grabenstein against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

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