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before he got across, touched him in the center, and he fell down, and before the car was to a full stop he was under the bumper of the car; that when he first saw the boy the car was about four or five feet from the south door of the schoolhouse; that as soon as he saw the boy start to run he applied the brake, put on the reverse and used the sand box; that after the car hit the boy it went five or six feet; that when the boy was struck he was about 25 feet north of the north crossing of 129th street, and the motorman's testimony was corroborated by several other witnesses called for the defendant who were passengers upon the car, or were on the street in the immediate vicinity. At the close of the plaintiff's case, and also after all the testimony was in, the defendant moved to dismiss the complaint upon the ground that there was no negligence of the defendant proved, and that the accident was caused by the deceased running in front of the car. This motion was denied, and the plaintiff excepted.

Upon the evidence I can find nothing to justify a finding that the motorman was guilty of negligence. The evidence is entirely too conflicting and uncertain to justify a finding that the car was at such a distance from the deceased, when he started to run upon the track, that it could possibly have been stopped before running him down; on the contrary, it is quite evident that the deceased started to run upon the track immediately in front of the car; that, as soon as he was in a position which indicated that he was in danger, the motorman attempted to stop the car, and the accident that happened was one for which the motorman was not responsible. There is no evidence to justify a finding that the motorman was inattentive, or that the car was going at such a rate of speed past this schoolhouse as would indicate negligence. Some of the witnesses for the plaintiff testified that the car was going fast, but it is established beyond contradiction that the car stopped at the north side of 130th street; that it then proceeded on its way downtown; that the accident happened before the car had reached 129th street. The motorman was compelled to watch all of the people in the street as well as the deceased. He stopped the car within a very short distance after striking the boy, which would have been impossible had the car not been under control, and it follows that the accident was one which, under the circumstances, no care on the part of the motorman would have averted. The rule of law applicable to cases of this kind is well settled. The only difficulty that arises is in applying it to the facts in the particular case under consideration; but, to justify a recovery, the plaintiff must prove that the motorman failed to exercise tlie care of a prudent person under the existing circumstances, and that the accident resulted from a failure to exercise such care. There is no evidence in this record to justify such a finding.

It follows that the judgment and order must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

and 118 New York State Reporter

COOPER V. BROOKLYN TRUST CO. (Supreme Court, Appellate Division, Second Department. October 22, 1903.) 1. EXECUTORS AND ADMINISTRATORS-RECOVERY FOR SERVICES RENDERED

COMPLAINT-ALLEGATIONS.

The allegations of the complaint in an action to recover for services rendered 'a decedent, which alleged a promise to pay for the services and their value, and which averred that decedent agreed to make compensation therefor by will or otherwise, and that decedent made provision for the payment by a deposit of certain bonds, did not show an election to proceed as if on a performance made by the act of deposit. Appeal from Trial Term, Kings County.

Action by Alfred Cooper against the Brooklyn Trust Company, as executor of the will of Mary E. Raymond, deceased. From a judgment dismissing the action, plaintiff appeals. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, and HOOKER, JJ.

James W. Ridgway, for appellant.
William N. Dykman, for respondent.

PER CURIAM. We think that there should be a new trial. As the learned trial court said, the evidence put in by the plaintiff showed that the plaintiff had rendered services to the decedent outside of his duties as her courier, and that the decedent had promised payment therefor. We think that there was some evidence of the value of these services. The decedent deposited bonds in an envelope in her attempt to fulfill her promise. There were found in the envelope six bonds, eachi for $1,000. We think that such deposit of this amount may be regarded in the light of an admission that the services were reasonably worth that sum of money. The testimony as to the services, of the character thereof, of the promise to pay therefor, and of the deposit was received without objection under a complaint of services performed at the decedent's instance and request and her promise of payment. It is true that the plaintiff not only alleges a promise and agreement to pay for the services, but a promise and agreement to make compensation therefor by will or otherwise, coupled with the ailegation that the decedent did make provision for payment by the deposit. But it is not alleged that such deposit was performance, and the plaintiff, by thus pleading, does not elect to proceed as if upon a performance made by such act of deposit. The plaintiff does not plead that the bonds were his property, nor does he virtually take that position by seeking the recovery thereof. On the contrary, he declares upon the services, the promise to pay for the services, and the value thereof. We would not prejudge. But, as the evidence stood at the close of the plaintiff's case, it is clear that the decedent intended to compensate the plaintiff for his services with six $1,000 bonds, and that her intention was not fulfilled by any change of purpose on her part. The 'courts should not be astute to deprive the plaintiff of the trial of his claim by a jury.

The judgment should be reversed, and a new trial ordered; costs to abide the event.

(41 Misc. Rep. 293.)

MCNULTY et al. v. MITCHELL et al.

(Supreme Court, Special Term, New York County. August, 1903.) 1. DEATH-PRESUMPTION-TITLE TO REALTY.

Where property was sold in partition in 1903, and it appeared that a single man of the age of 30 in 1860, and in poor health and of dissipated habits, to whom the property would have descended if he had lived, had not been heard from since 1860, though efforts had been made to find him, the purchaser at the partition sale should be compelled to take the

title. 2. SAME.

An unexplained absence of a single man for 43 years, with evidence of an attempt to discover him, if living, raises the presumption of death, and that be left no heirs surviving him. Action by Mary F. McNulty and others against William A. Mitchell and others. Motion to compel purchaser in partition to complete his purchase. Granted.

R. & E. J. O'Gorman, for the motion.
Philip S. Dean, for purchaser, opposed.

GIEGERICH, J. The purchaser of property sold at a partition sale refuses to take title on the ground that there is no evidence of the death, unmarried and without issue, of one John Mullany, to whom, or to whose issue, if living, the entire property would belong. In 1858, being then about 30 years of age, Mullany was living in this city with his mother, his brother, William, and his sister, Mary. His habits were irregular, and he was partially supported by his mother. In the latter part of the year 1858 he went to Philadelphia, where it appears he remained for about two years, continuing his irregular and dissipated habits, being, when last heard from in the year 1859 or 1860, in poor health, and suffering from a disease generally regarded as incurable and an impediment to marriage. Previous to his disappearance from Philadelphia he had urged a companion to go with him into the West, and a year or two afterward a report came back that he had been killed there in a duel with a cowboy. At intervals his family made unavailing efforts to trace and discover him. In the year 1900 an advertisement for information concerning his whereabouts was inserted for several days in a Philadelphia paper, but no response was received. Upon these facts I think the purchaser should be compelled to take the property under the decisions in Ferry v. Sampson, 112 N. Y. 415, 20 N. E. 387, and McComb v. Wright, 5 Johns. Ch. 263. In Vought v. Williams, 120 N. Y. 253, 24 N. E. 195, 8 L. R. A. 591, 17 Am. St. Rep. 634, in a case where the purchaser was relieved of his contract, it was nevertheless said, at page 260, 120 N. Y., page 197, 24 N. E., 8 L. R. A. 591, 17 Am. St. Rep. 634: "There must be some point of time, of course, when the presumption of death would arise, but we have been referred to no case in this state in which that presumption has prevailed where the absence was

2. See Death, vol. 15, Cent. Dig. $ 2; Descent and Distribution, vol. 16, Cent. Dig. $ 233.

and 118 New York State Reporter less than forty years.” In the present instance we have an absence of 43 years of a man of dissipated habits and impaired health when last heard from, and already over 30 years of age. He knew of the existence of this property, in which he would, in the natural course of events, have a share, and a portion of the income of which he had received. This would act as a constant incentive to his return, or the return of his widow or children, if any. Rumors of his death had come back from the West. Fruitless search had been made for him by his family, the members of which had become satisfied of his death. Under these circumstances, I think there is no reasonable doubt that he is dead, and has left no issue surviving him. The motion should therefore be granted, but without costs.

Motion granted, without costs.

(87 App. Div. 123.)

GODFREY 7. INDIA WHARF BREWING CO. (Supreme Court, Appellate Division, Second Department. October 22, 1903.) 1. LANDLORD AND TENANT-BREACH OF COVENANT TO REPAIR-MEASURE OF

DAMAGES.

The measure of damages in a lessee's action for breach of a covenant to repair is the difference between the rental value of the premises as guarantied and as they really were, and anticipated profits from the business conducted therein cannot be recovered.

Appeal from Municipal Court of City of New York.

Action by George Godfrey against the India Wharf Brewing Company. From a judgment for defendant, entered on a directed verdict, plaintiff appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, HIRSCHBERG, and HOOKER, JJ.

Eugene N. L. Young, for appellant.
Edward C. McParlan, for respondent.

HIRSCHBERG, J. The complaint states two causes of actionone to recover the balance remaining after deducting a small bill for goods sold by the defendant to the plaintiff from the sum of $100 deposited as security by the plaintiff with the defendant on the occasion of hiring certain premises in the borough of Brooklyn, and the other for damages for the alleged breach of covenant on the defendant's part, to the effect that such premises were in good repair at the time the plaintiff hired them, and that they would be so maintained during the plaintiff's tenancy.

The hiring took place in August, 1902; the rent to commence on September ist, at $25 a month, and the tenancy to be from month to month. The place had been and was to be used as a liquor saloon. The liquor tax certificate was transferred by the defendant to the plaintiff, and his demand note taken for the value of the unexpired period. The $100, as appears by a written receipt given at the time,

1. See Landlord and Tenant, vol. 32, Cent. Dig. $ 563.

was deposited not as security merely for bills received by the plaintiff for goods sold, but as security for any and all sums which may become due from him to the defendant. The plaintiff remained in possession of the demnised premises from the time of the hiring until some time in January, 1903, but paid no rent. At the close of the evidence the court directed a verdict in favor of the defendant for the five-months rent, the amount of the conceded bill for goods, and the promissory note, after deducting therefrom the deposit of $100, and the sum of $105, being 15 weekly payments of $2 each made by the plaintiff towards defraying the cost of the liquor tax certificate, and also after deducting the proportionate value of the license from January until its expiration. There appears to be no dispute about these items; they were all pleaded by way of counterclaim; and the disposition of the case was proper, provided the plaintiff made no proof of liis claim for breach of the contract, sufficient to carry the case to the jury.

The plaintiff failed to make such proof. He gave evidence tending to establish that, two or three weeks after his occupancy commenced, a storm arose, and the roof leaked; that it leaked on the occasion of every storm thereafter; and that no repairs were made by the defendant while he remained in possession. He also testified that the defendant's authorized manager at the time of the hiring assured him that the premises were in good repair, and that the defendant would keep them so. This was denied on the defendant's behalf, although it was proven that, on complaint by the plaintiff of the leaky condition of the roof, the defendant caused it to be repaired in December. Assuming that the jury could have found in plaintiff's favor upon this issue, the measure of damages would be the difference between the rental value of the place as represented and guarantied and as it was, and upon this question no evidence whatever was given, beyond the fact that the plaintiff agreed to pay $25 a month. The plaintiff claimed that his profits during the two months preceding the first storm amounted to from $25 to $30 weekly, but, even if loss of profits were recoverable, there was no evidence given showing their amount. There was no proof of the difference in the amount of profits, or anything indicating loss, beyond what has been stated. The anticipated profits could not be made the basis of a claim in this case; the rule applicable to the facts being, as already suggested, the difference in value of the use of the premises as they are, and as the lessor agreed they were, or as he agreed to put them. Myers v. Burns, 35 N. Y. 269; Cook v. Soule, 56 N. Y. 420; Pryor v. Foster, 130 N. Y. 171, 29 N. E. 123; Thomson-Houston Electric Co. v. Durant Land Improvement Co., 144 N. Y. 34, 47, 39 N. E. 7; Drago v. Mead, 30 App. Div. 258, 51 N. Y. Supp. 360; Huber v. Ryan, 57 App. Div. 34, 67 N. Y. Supp. 972. The judgment should be affirmed.

Judgment of the Municipal Court affirmed, with costs.

All concur.

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