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MOSZKOWITZ V. INTERNATIONAL NAV. CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. CARRIER OF PASSENGERS - REVOCATION OF CONTRACT — LIEN FOR UNPAID

PASSAGE MONEY.

Where a passenger has obtained a ticket in regular course upon a prepaid certificate procured for her by her husband from the carrier, the fact that without notice to her the carrier bas refunded the money to the husband, though without requiring him to deliver up the certificate,

will not give the carrier a lien on her baggage for unpaid passage money. Appeal from City Court of New York.

Action by Amalie Moszkowitz against the International Navigation Company. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Robinson, Biddle & Ward, for appellant.
Gordon & Rosenblum, for respondent.

PER CURIAM. It may be conceded that as a general rule a common carrier of passengers has a lien upon the passenger's baggage for unpaid passage money. But upon exceptional facts of this case the defendant is estopped from asserting its claim against plaintiff's personal baggage.

The plaintiff had in good faith become a passenger pursuant to a ticket obtained by her in due and regular course, upon a prepaid certificate procured for her by her husband from the defendant. The fact that the defendant refunded the money received for the prepaid certificate to the husband without notice to or knowledge on the part of the plaintiff, and without requiring the husband to deliver up the certificate, is not sufficient to deprive the plaintiff of her property.

At the end of the case there was nothing left for submission to the jury except the question of damages. The record discloses no re. versible error.

Judgment affirmed, with costs.

KROMBACK V. PENNSYLVANIA STEEL CO.

(Supreme Court, Appellate Term. June 22, 1903.) 1. ORDER DISMISSING COMPLAINT-APPEALABLE.

No appeal lies from an order of the trial court dismissing a complaint; the appeal must be from the judgment entered thereon. Appeal from City Court of New York, Special Term.

Action by Joseph Kromback against the Pennsylvania Steel Company. From an order of the city court setting aside the verdict of a jury in plaintiff's favor and dismissing the complaint, plaintiff appeals. Appeal dismissed.

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

and 118 New York State Reporter Alexander Rosenthal, for appellant. McCurdy & Yard, for respondent.

GILDERSLEEVE, J. At the end of plaintiff's case defendant's attorney moved to dismiss the complaint, which motion was denied. At the end of the whole case he renewed the motion, which was again denied. The court then submitted the whole case to the jury on the facts. The jury found a general verdict for the plaintiff, and fixed the damages at $415

The action, as set forth in the complaint, was for services rendered "upon promise of defendant to pay plaintiff therefor the reasonable value thereof." Upon the bringing in of the verdict, the defendant's counsel made a motion to set aside the same and for a dismissal of the complaint. The court reserved its decision, but subsequently granted the said motion. From an order setting aside the verdict and dismissing the complaint, plaintiff appeals.

The opinion of the court below shows that the complaint was dismissed for the failure of plaintiff to establish his cause of action by showing an agreement to pay for extra work. In the cases of Citron v. Bayley, 36 App. Div. 130, 55 N. Y. Supp. 382, and Robinson v. Chinese Ass'n, 42 App. Div. 65, 58 N. Y. Supp. 885, it was held, in this department, that no appeal lies from an order of the trial court dismissing a complaint, as such ruling must be reversed by an appeal from the judgment.

This appeal from the order must be dismissed, with $10 costs and disbursements. All concur.

GREEFF et al. v. LEVISON et al.
(Supreme Court, Appellate Term. June 22, 1903.)

1. ACTIONS-CAUSE-ASSIGNMENT.

Plaintiff alleged that defendants refused to accept a portion of goods purchased by them from K., to his damage, and that K. had assigned the cause of action therefor to him, but produced no written assignment. K. testified that he sold the goods as the agent of the manufacturer; that nothing was said as to whom payments should be made, but that the bills received by defendants showed that payments were to be made to plaintiff; that all accounts for goods sold by him were, under an agreement between himself and plaintiff, payable to plaintiff', but that, if defendants were not held liable, the manufacturer would be the loser. Held, that as no assignment was shown-there being nothing to bar a recovery on the same cause of action by K.plaintiff could not maintain the action.

Appeal from City Court of New York, Special Term.

Action by Emil Greeff and others against Bernard Levison and another. From a judgment for plaintiffs, defendants appeal. Reversed.

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

Otto Horwitz, for appellants.
Blumensteil & Blumensteil, for respondents.

FREEDMAN, P. J. Briefly, the complaint in this action alleges that the defendants ordered a certain quantity of goods from one Rudolph Kraft, which amounted to the sum of $4,884.48, which order was accepted, and a portion of the goods delivered; that on July II and July 13 and July 14, 1898, the balance of said goods were duly tendered to defendants, refused by them, held by Kraft subject to the order of defendants, and subsequently sold by Kraft on account of defendants; and claimed that said Kraft was damaged in the sumn of $1,240.27, and also alleged an assignment of said cause of action by Krait to these plaintiffs. Among the allegations in the answer was one expressly denying the assignment aforesaid from Kraft to plaintiffs. Upon the trial, Kraft was sworn, and testified, in substance, that as agent of the firm of Griffon & Co., the manufacturers of the goods in suit, he sold the goods to a Mr. Hempstone, the buyer of the defendants. He said the question was not raised as to whom the bills were to be paid; that the bills received by defendants showed that defendants were to make payments to the plaintiffs, Greeff & Co.; that all accounts for merchandise sold by him were under an agreement between himself and Greeff & Co., and were payable to Greeff & Co.; and subsequently, when recalled, he again testified "that, if the jury decides that these goods are wrongfully manufactured (that being one of the defenses interposed), the mill would stand the loss. Greeff & Co. would not. They are simply the bankers of Griffon & Co.” The “mill” meant Griffon & Co., who were the manufacturers of the goods. The bill sent to defendants on July 13, 1898, has upon it the word “Payable to Greeff & Co.” One of July 9, 1898, says, “Consigned to Greeff & Co.," and "Consigned to Greeff & Co. by the Griffon Co." When plaintiffs rested the record says, “Plaintiffs rest, except to prove the assignment." Subsequently plaintiffs recalled one Kehoe, who testified to sales made by him of a portion of the goods in question to defendants' buyer, Hempstone; and Kehoe testifies:

"I was not a saleman for Greeff & Co. I w general saleman for Rudolph Kraft's place of business. Was with Greeff & Co., who were commis sion merchants. Kraft was engaged in the business of acting as selling agent of the Griffon Company. The goods in controversy were goods that were manufactured by this Griffon Company, and Kraft, as their agent, was selling them. I was employed to assist him.”

No assignment of the cause of action either from Kraft or Griffon & Co. was shown. There is no claim made on this appeal by respondents that any such assignment was produced on the trial. Their right to maintain this action is set forth in their brief as follows:

"The defendants made some point on the trial as to the right of the plaintiffs to bring this action. We do not know whether they will raise any such question upon this appeal. The fact that the plaintiff's were the owners of the account in question was fully proven upon the trial. Mr. Kraft distinctly testified that he sold the goods, and that the account was payable to the plaintiffs. In fact, he testified that all the accounts for goods sold by him were payable to the plaintiffs by written agreement. In the second place, the bills for the goods sold, including the account in suit, were all payable, on their face, to Greeff & Co., and it was so stamped on the bills; the following words appearing on the bills: 'Payable to Greeff & Co.' These bills were accepted by the defendants, and retained by them. In fact, all through

and 118 New York State Reporter the trial there is testimony showing that the account is payable to Greeff & Co. So there can be no doubt as to the right of the plaintiffs to bring this action."

The foregoing statement that "he testified that all the accounts for goods sold by him were payable to the plaintiffs by written agreement” will be seen, by reading Kraft's testimony, to refer to a "written understanding," as he expressed it, between himself and the plaintiffs, and not, as one would be led to believe by the brief, as one between himself and defendants. Although it is clear that defendants knew that their bills might be made payable to the plaintiffs, there is not a particle of testimony in the case to show that the defendants ever promised or agreed to make payments to Greeff & Co., or that Greeff & Co. are the real parties in interest. Kraft says that Hempstone, defendants' buyer, “knew to whom the bills were to be paid." That fact alone would not give plaintiffs a right of action. The record is barren of any testimony upon which a judgment in favor of these plaintiffs would bar an action for the same relief brought by Griffon & Co. The defendants insisted, by motion made to dismiss both at the close of the plaintiffs' case and at the close of the whole case, that plaintiffs had failed to show a cause of action against defendants, and, upon a denial of such motions, duly excepted thereto. The motion to dismiss should have been granted. For the reasons stated, it would have been error on the part of the trial judge to direct a verdict for the plaintiffs at the close of the case, and it was error to direct it nunc pro tunc at the time it was done. That being so, it is unnecessary to determine whether, if the plaintiffs' case had been free from the defect referred to, the trial judge, by implied consent of the parties, had the power, after the adjournment of the term at which the issues were tried, to set aside the general verdict rendered by the jury in favor of the defendants, and to direct a jury which had been discharged to render a verdict for the plaintiffs nunc pro tunc.

The judgment and order appealed from should be reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.

(87 App. Div. 227.).

ROEDECKER v. METROPOLITAN ST. RY. CO. (Supreme Court, Appellate Division, First Department. November 6, 1903.) 1. CARRIERS--STREET RAILROADS--INJURIES TO PASSENGERS-PROXIMATE CAUSE.

Plaintiff, who was directed by the conductor of a horse car to ride on the front platform, was injured by being kicked by one of the horses. By reason of the driver's negligence in driving the horses at a high rate of speed the horse which kicked plaintiff fell as the car was rounding a curve. The car was stopped, and the driver and others moved it back from the fallen horse, which, in his endea vor to release himself, kicked plaintiff while standing on the platform. Held, that the driver's negligence ended with the fall of the horse, and therefore was not the prox

imate cause of plaintiff's injury. Appeal from Trial Term, New York County.

Action by Nicholas Roedecker against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, and from

an order denying defendant's motion for a new trial, it appeals. Reversed.

The plaintiff sues to recover damages for injuries inflicted by being kicked by one of the defendant's horses while he was a passenger on the front platform of defendant's horse car proceeding easterly along Prince street into the Bowery on the afternoon of September 2, 1899. The negligence alleged is that the driver drove the horses so recklessly and at such a high rate of speed at the intersection of Prince street and the Bowery that one of the horses fell, and in endeavoring to extricate himself injured the plaintiff. The Prince street cars turn from an easterly to a northeasterly direction at the Bowery, and proceed across it, and thence easterly into Stanton street. The accident, it is claimed, occurred upon the curve from Prince street, the horse falling just before reaching the westerly rail of the southbound Third avenue track. The plaintiff is a painter, and, with his son, boarded the horse car carrying paint pots, and was told by the conductor to go to the front platform. There he deposited his paint pots, and stood behind and to the right of the driver, about a foot from the right-hand step of the front platform. There were five or six people on the platform, and the car was crowded. The plaintiff's evidence is that as the car approached the Bowery the horses were going fast, and that there was a south-bound Third avenue car in sight, and to get ahead of it the driver whipped the horses into a run, and as they approached the track the right horse fell on his right side, and the car ran up to him and over his hind quarters, and he struggled to extricate himself, and the driver and some others jumped off, while plaintiff stood still upon the platform, and they pushed the car back from the horse, and as the car was moving backward the horse got his left leg out, and kicked in between the car and the front dashboard and struck plaintiff in the leg. A passenger on the car testified that the horses were running, and that one of them fell, and that after the car stopped he got off with two or three men. He says: “We pushed the car back, and I saw the horse after a while rise up his foot and kick the man in the leg." "The car started to go back, and he started to release himself, and he got one foot out before the car was clear of him, and I saw the horse kick Roedecker.” “The car kept on moving back after Mr. Roedecker was kicked." Motion to dismiss the complaint was denied, and exception taken by the defendant, who then introduced evidence tending to support a different version of the accident, Diamely, that the horse did not fall because running and being negligently driven on the curve, but because, while proceeding slowly, he slipped upon the asphalt; and that the plaintiff when kicked was on the street, and not upon the platform. The motion to dismiss the complaint was renewed, and denied, and an exception was taken. The jury found a verdict in plaintiff's favor, and from the judgment so entered and an order denying a new trial the defendant appeals.

Argued before VAN BRUNT, P. T., and HATCH, PATTERSON, and INGRAHAM, JJ.

Arthur Ofner, for appellant.
Louis Steckler, for respondent.

VAN BRUNT, P. J. Assuming that the driver of the car was negligent in whipping his horses in going around a curve, so as to cause one of them to fall upon the ground and under the car, the question still remains whether such negligence in the operation of the car and in the management of the horses was the proximate cause of the plaintiff's injuries, for which the defendant is legally liable. In the disposition of this legal question we are not confronted with any serious conflict as to the facts. The fair inference therefrom is that when the horse had fallen the front part of the dashboard of the car struck him, and so held him that it was necessary, in order that he

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