He called about 8 o'clock, and the plaintiff, who was an unmarried lady of 25 years of age, and Miss Bishop, her roommate, were present. Mr. Hamilton made an offer of $50, which was not accepted, but after considerable bantering they agreed upon the sum of $90. The plaintiff and Miss Bishop testified that Mr. Hamilton agreed also to pay the expenses of the physician who had attended the plaintiff, and also the expenses incurred at the hospital, where she had been cared for about two weeks. Hamilton testified that he promised to reimburse her for the hospital charge. There is no great importance to this testimony, for the defendant has not been presented with or requested to pay either of these items. A release in full under seal was executed by the plaintiff and witnessed by her friend, Miss Bishop, and the $90 paid to her. A week later she returned the money to the defendant, with a notice that she canceled the release; but the defendant declined to receive the money, and advised her that it was on deposit, subject to her order. The plaintiff testified that at the time of the execution of the release she was nervous, and Miss Bishop confirms this statement, and further testified that she herself was also in the same mental condition. Miss Bishop testified:

"I had full opportunity to read this release; I had it in my hands. Mr. Hamilton didn't say anything to me about not reading it. He didn't make any pretense to keep me from reading it. I wouldn't say that Miss Blair didn't have this instrument in her hands. I won't say that she didn't have opportunity enough to read it. I won't swear that Mr. Hamilton did not read this release. I will not swear that Mr. Hamilton did not read this release exactly as it reads to-day."

There is no pretense that Mr. Hamilton tried to prevent either the plaintiff or her friend from reading this release, or that he did not read it aloud, as testified to by him. Beyond that, the parties testified that the haggling over the price continued for some time, and, as a result of it, the agreement to accept $90 was reached. The release simply evidences the agreement. It was fully understood that the cause of action was to be satisfied upon the payment of this sum, except as to the doctor's bill and the account at the hospital, which is unimportant, for the action is not to reform the original release, or to recover on a collateral independent agreement.

The trial judge instructed the jury that:

"If this defendant was guilty of a fraud or imposition or undue influence whereby the release in question was obtained from this plaintiff, then your verdict in this case must be for the plaintiff."

Again, he stated to the jury that the plaintiff claimed the "release was a fraud"; and further, that:

"It was an imposition, due to undue influence and fraudulent design; a fraudulent attempt to obtain from her, her signature to the instrument in question. If on this testimony you believe that that instrument was signed and executed by her through undue influence, or fraud, or imposition, and that it was not her real contract, then you will find on that question that this release is not a bar to a recovery here if the plaintiff is right."

There was no evidence justifying the inference that the release was obtained through fraud, or that any compulsion or undue influence was. exerted on the plaintiff to induce the execution of the release. The

and 132 New York State Reporter

clain agent met her by appointment. She knew the object of his errand. She was about the room and with her roommate. There was no excitement; no threats were indulged in; no fear was manifested. She signed the release voluntarily, appreciating its contents, and expecting that the money received was in payment of her claim for the injuries she claimed to have suffered. The settlement may have been unfortunate for her. She possibly ought to have received a greater sum. Courts, however, will not interfere to annul the compromise of a pending litigation evidenced by a sealed instrument, unless convinced that an unfair advantage has been taken by one party over the other. The mere fact that, in the light of subsequent events, one party has been benefited at the expense or detriment of the other is not sufficient to nullify an adjustment made by the parties willingly and knowingly. Before the plaintiff can recover, she must be relieved from the effect of this release. Szymanski v. Chapman, 45 App. Div. 369, 61 N. Y. Supp. 310. Undoubtedly, the plaintiff may be permitted to impeach the instrument. Fleming v. Brooklyn Heights R. R. Co., 95 App. Div. 110, 88 N. Y. Supp. 732; Grockie v. Hirshfield, 50 App. Div. 87, 63 N. Y. Supp. 365. Presumptively it is valid, and there was not sufficient proof in this case to warrant the jury in finding that the settlement was not honestly made, and the terms of the release fairly comprehended.

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

Judgment reversed, and a new trial granted, with costs to appellant to abide the event upon questions of law only. All concur.

DIKER v. HUTCHINSON.

(Supreme Court, Appellate Term. April 24, 1906.)

LANDLORD AND TENANT-TERMINATION OF LEASE-Surrender.

A lease dated January 25th for a year and three months stipulated that two months' notice should be given before the expiration of the lease, or the same should be renewed for one year at the same terms. The lessee vacated the premises about May 1st in the following year. No written notice of his intention to vacate was given. He did not know whether he gave the key to the landlord or to the elevator boy, or whether he left it in the office. He did not know when the landlord said he would accept the surrender of the lease. Held not to warrant a finding that the landlord accepted a surrender before the expiration of the lease.

Appeal from Municipal Court, Borough of Manhattan, Eleventh District.

Action by George Diker against Edwin B. Hutchinson. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. Simon Sultan, for appellant.

McLaughlin & Stern, for respondent.

TRUAX, J. The action was brought to recover three months' rent, under the lease made by the plaintiff as lessor to the defendant as lessee. The lease is under seal, and is dated January 25, 1904, and is for the term of one year and three months. The lease contains the provision:

"That, in case of default of any of the covenants, the landlord may resume possession of the premises, and relet the same for the remainder of the term at the best rent he can obtain for and on account of the tenant, who shall make good any deficiency."

It also contained a provision that:

"Two months' notice shall be given by either party before the expiration of the lease, and that in case such notice was not given, the lease shall be renewed for one year at the same terms, and the same for each subsequent year."

The defendant vacated the premises on or about the 1st day of May, 1905. It is conceded that no written notice was given by him of his intention to vacate the premises. He claims, however, that he notified the plaintiff of his intention to move on the 1st day of May, and that the plaintiff said "All right," and that subsequently he delivered the key of the apartments to the plaintiff, or some one connected with the plair.tiff.

I am of the opinion that the evidence did not warrant the justice in finding that the plaintiff accepted a surrender of the apartment before the expiration of the lease. The defendant's testimony is altogether too vague and uncertain. He does not know whether he gave the key to the plaintiff, or whether he gave it to the elevator boy, or whether he left it in the office. He does not know when the plaintiff said he would accept the surrender of the lease.

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

(50 Misc. Rep. 631)

STEWART v. NEW YORK CITY RY. CO. et al.

(Supreme Court, Appellate Term. April 24, 1906.)

COURTS-TIME FOR RENDITION OF JUDGMENT-JURISDICTION.

Where at the close of a trial in the Municipal Court it was stipulated that briefs were to be submitted by January 15th, and that the time for decision should run from January 15th, the court was without jurisdiction to render judgment on January 31st.

Appeal from Municipal Court, Borough of Manhattan, Tenth Dis

trict.

Action by James E. Stewart against the New York City Railway Company and another. From a judgment of the Municipal Court of the city of New York in favor of plaintiff, defendant the New York City Railway Company appeals. Reversed, with costs.

Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. William E. Weaver, for appellant.

Frank A. Acer, for respondent.

and 132 New York State Reporter

PER CURIAM. At the close of the case it was stipulated upon the record that briefs were to be submitted by January 15, 1906, "and the court's time for decision to begin to run from that date." The judgment should therefore have been rendered on or before January 29, 1906. It was not rendered until January 31, 1906. The court therefore lost jurisdiction of the cause, and the judgment must be reversed. Moscowitz v. N. Y. City Ry. Co. (Sup.) 91 N. Y. Supp. 352; A. M. Eisenberg Co. v. Janzlik (Sup.) 92 N. Y. Supp. 247. Judgment reversed, with costs.

(50 Misc. Rep. 644)

MASLON v. SPRICKERHOFF et al.

(Supreme Court, Appellate Term. April 24, 1906.)

1. APPEAL-PRESUMPTIONS-DISPOSITION OF MOTION.

Where the record does not show what disposition was made of a motion to strike out testimony, the appellate court will assume that it was decided in favor of the successful party.

2. EVIDENCE-ADMISSIONS-FORMER HOLDER OF NOTE.

In an action on a check by an alleged bona fide holder, evidence of statements alleged to have been made by the original payee to persons other than plaintiff, and not in his presence, was not admissible to coutradict his testimony as to the bona fides of his ownership.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, $§§ 873-875.]

Appeal from Municipal Court, Borough of Manhattan, Fourth Dis

trict.

Action by Wolf Maslon against George Sprickerhoff and another. From a judgment for defendants, plaintiff appeals. Reversed and re

manded.

Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. Meyer Greenberg, for appellant.

Menken Bros. (Mortimer M. Menken, of counsel), for respondents.

TRUAX, J. This action was brought to recover the amount of a check made by the defendants to one Rabinowitz, and by him transferred to the plaintiff. The sole question litigated was whether or not the plaintiff was a holder for value in due course. The check was given to Rabinowitz on the evening of December 7, 1905, and on December 8, 1905, the defendants stopped payment thereon. The plaintiff testified that he got the check the night of December 7, 1905, of Rabinowitz, paying in cash the full face value of the check. Aside from statements alleged to have been made by Rabinowitz to several persons after the time payment of the check was stopped by the defendants, there is but slight testimony tending to contradict the testimony of the plaintiff as to the bona fides of his ownership. These alleged statements are not claimed or shown to have been made in the presence of the plaintiff, and were objected to, and were received only upon the promise of the defendants' attorney that they would be connected with the plaintiff. This not having been done, the plaintiff's attorney moved at the close of the case to strike from the record all such testimony. Decision upon

this motion was reserved by the trial judge, who subsequently gave a judgment in favor of the defendants. As the record contains nothing from which we can determine what disposition was made of the motion, we must assume that it was decided in favor of the successful party. Herzfeld v. Reinach, 44 App. Div. 326-328, 60 N. Y. Supp. 658; Hillman v. De Rosa, 46 Misc. Rep. 261, 92 N. Y. Supp. 67. Such testimony was clearly inadmissible (Paige v. Cagwin, Hill, 361; Clews v. Kehr, 90 N. Y. 633), and what effect it may have had upon the mind of the court in determining the issue in favor of the defendants it is impossible to say, and the judgment must therefore be reversed.

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

(50 Misc. Rep. 626)

KOPPEL v. HATCH.

(Supreme Court, Appellate Term. April 24, 1906.)

1. DISCOVERY-EXAMINATION OF PLAINTIFF BEFORE ANSWER.

A defendant in an action on a note, seeking to raise the question whether plaintiff is a bona fide holder, is entitled to an examination of plaintiff before answer, for the purpose of obtaining facts necessary in the framing of an answer raising the issue.

[Ed. Note. For cases in point, see vol. 16, Cent. Dig. Discovery, § 50.] 2. BILLS AND NOTES-ANSWER-DEFENSES.

A defendant sued on a note must, in order to avail himself of the defense that plaintiff is not a bona fide holder, allege that fact in his

answer.

[Ed. Note. For cases in point, see vol. 7, Cent. Dig. Bills and Notes, §§ 1532, 1561.]

Appeal from City Court of New York, Special Term.

Action by Sigfried Koppel against Walter P. Hatch. From an order vacating an order requiring plaintiff to appear and be examined, in order to enable defendant to frame his answer, defendant appeals. Reversed, with costs.

Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. George H. Mallory, for appellant.

Simis & Coyle, for respondent.

PER CURIAM. The affidavits presented by the defendant on the application for an order to compel the plaintiff to appear for examination complied with the statute, and showed that the information sought by the defendant was material and necessary. In the language of the Appellate Division in Kramer v. Kramer, 70 App. Div. 615, 74 N. Y. Supp. 1049:

*

**

"It is evident that the testimony of the plaintiff, in view of the peculiar circumstances surrounding the execution and the delivery of the note, is material and necessary to the defense of this action. The facts as to how the plaintiff became possessed of the note and the consideration, if any, that was paid are peculiarly within the knowledge of the plaintiff, and upon such a subject the defendant must be presumed to be absolutely ignorant. It