Appeal from Municipal Court, Borough of Manhattan, First Dis trict. Action by the Boston Dairy Company against the J. H. Jones Corporation. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered. Argued before SEABURY, LEHMAN, and GERARD, JJ. William Ferguson (S. F. Peavey, Jr., of counsel), for appellant. Paul M. Pelletreau, for respondent. SEABURY, J. The complaint alleges, and the answer admits, that the plaintiff is a corporation organized under the laws of Massachusetts, and that the defendant is a corporation organized under the laws of New York, and that on October 28, 1909, the plaintiff, at the special instance and request of defendant, sold and delivered to the defendant 6,200 pounds of condensed milk, of the agreed price and the fair and reasonable value of $310. For a defense the answer alleges that the milk which plaintiff sold defendant was condensed milk manufactured from skimmed milk, and that the sale was void under chapter 1, art. 3, § 37, of the Consolidated Laws of the State of New York of 1909, known as the "Agricultural Law." The section of the agricultural law referred to in the answer provides as follows: "No condensed milk shall be made or offered or exposed for sale or exchange unless manufactured from pure, clean, healthy, fresh, unadulterated and wholesome milk, from which the cream has not been removed either wholly or in part, or unless the portion of milk solids shall be in quantity the equivalent of twelve per centum of milk solids in crude milk, and of which solids twenty-five per centum shall be fats." The violation of this prohibition subjects the offender to liability for the penalty prescribed in the statute, and makes him punishable. for the commission of a crime. It is clear from the evidence that the defendant ordered and the plaintiff delivered "condensed skim milk." The testimony shows that the words "condensed skim milk” have a fixed and certain meaning in the milk trade, and import a product manufactured from milk from which the cream has been separated. The contract between the parties has been fully executed, and the evidence shows that the defendant received the goods which it ordered, and has sold them to its customers, and has therefore received the full benefit of the contract, which it now seeks to repudiate. [1] The sale of condensed milk manufactured from milk from which the cream has been removed was lawful at common law. The sale or exposure for sale of such an article in this state is rendered illegal solely by virtue of the legislative inhibition embodied in the statute quoted above. Such legislative inhibition has no extraterritorial force, and a contract for the sale of such an article, if made and executed in another state, is not unenforceable in this state simply by reason of the statute quoted above. Staples v. Note, 128 N. Y. 403, 28 N. E. 515, 26 Am. St. Rep. 480; Wester T. & C. Company v. Kilderhouse, 87 N. Y. 430. [2] The plaintiff's place of business was in Massachusetts. The correspondence between the parties constituted the contract pursuant to which the milk was sold. This contract makes it clear that the milk was sold "f. o. b. Boston." There is no proof before the court that the law of Massachusetts on this subject is different from the common law. In the absence of proof to the contrary, the presumption which must guide our determination is that the common law still obtains in Massachusetts. "There is no presumption," said Chief Judge Cullen in Robb v. Washington & Jefferson College, 185 N. Y. 485, 496, 78 N. E. 359, 363, "that our statute law prevails in other states. The presumption is that the common law there obtains." So far as the plaintiff is concerned, it did no act in this state which was contrary to law. It is not unlawful, under this statute, to send or bring into this state condensed milk manufactured from skimmed milk. At most, this is all the plaintiff can be charged with having done. It is, however, unlawful under this statute to sell or expose for sale such "condensed skim milk" in this state. Against this statute, not plaintiff, but the defendant, has offended. It was a corporation organized under the laws of this state, and it contracted with a corporation of a foreign state to have condensed milk manufactured from skimmed milk sent into this state, so that it could expose it for sale here contrary to law. Not only did defendant receive these goods, but it concededly sold them in this state in violation of law. The evidence conclusively shows that the defendant knowingly violated the law of this state and committed an act which is denounced by our statute as a crime. Having sold the goods to its customers in this state, it now turns informer, and attempts to cheat its creditor out of the price which it agreed to pay. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur. FOY v. CITY OF NEW YORK et al. (Supreme Court, Appellate Division, First Department. April 21, 1911.) MUNICIPAL CORPORATIONS (§ 225*)-FIRE DEPARTMENT. The fire commissioner of the city of New York, in the absence of statute prohibiting it, has power to permit the Manhattan Fire Alarm Company, in the discharge of its business, to connect its wires with the city fire alarm telegraph system, so as to communicate an alarm of fire directly to fire headquarters, instead of compelling notice to be given by pulling the signal in the fire alarm box in the usual way, thus saving time; this not being the loaning or granting of property by the city to a private corporation. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 225.*] Appeal from Special Term, New York County. Action by James Foy against the City of New York, its Fire Commissioner, and the Manhattan Fire Alarm Company. From an adverse judgment, plaintiff appeals. Affirmed. See, also, 128 App. Div. 930, 113 N. Y. Supp. 1132. The opinion of Dowling, J., in the court below is as follows: The plaintiff herein, upon the opening of the trial of this action, abandoned any attempt to prove fraud, collusion, or bad faith upon the part of the fire commissioner in permitting the defendant corporation to do the acts complained of, and the sole question now remaining for consideration is whether the commissioner has the power to permit defendant corporation, in the discharge of its business, to connect its wires with the city fire alarm telegraph system, so as to communicate an alarm of fire directly to fire headquarters, instead of compelling notice to be given by pulling the signal in the fire alarm box in the usual way. It cannot be disputed that the more speedy method of sending an alarm of fire is preferable, not only for the earlier opportunity afforded of extinguishing the fire, but for the equally important purpose of preventing its spread to other property. But this would not justify the permission given by the fire commissioner, if it contravened the language or spirit of the statutes. I am unable, however, to find any provision of law cited by the learned counsel for plaintiff in their carefully prepared brief which prohibits the granting of the permission heretofore given by the commissioner. adequacy of the consideration therefor does not come before the court for determination; nor do the acts complained of constitute a loaning or granting of property by the municipality to a private corporation. The In deciding that plaintiff is not entitled to the relief sought, I do not determine that defendant corporation has any right to maintain the overhead wires which it concededly has strung. On the contrary, I believe them to be maintained in clear violation of the law. But relief as to that situation cannot be given in this action upon the present state of the pleadings. Judgment in favor of defendants, with costs. Let the decision and judgment herein be settled on notice. Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, and MILLER, JJ. M. Hare, for appellant. C. L. Barber and C. Blandy, for respondents. PER CURIAM. Judgment affirmed, with costs, on opinion of Dowling, J., in the court below. Order filed. BLEISTIFT v. DIENER et al. (Supreme Court, Appellate Term. May 4, 1911.) 1. LANDLORD AND TENANT (§ 114*)-HOLDING OVER AFTER TERM-RIGHTS OF LANDLORD. Where a tenant under a demise for a year or more holds over after the end of the term without a new agreement with the landlord, the landlord may elect to treat him either as a tenant from year to year, and in all other respects as holding upon the terms of the original lease, or may treat him as a trespasser, but cannot treat him as both. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 379; Dec. Dig. § 114.*] 2. LANDLORD AND TENANT (§ 114*)-HOLDING OVER AFTER TERM. In such a case, where the tenants held over for about half a month, and a few days thereafter the landlord sent a man to their new place of business to demand the keys, which they delivered up, the landlord made a conclusive election not to treat them as tenants under an im•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes plied lease for a year, and at most would be entitled to recover for use and occupation. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. § 379; Dec. Dig. § 114.*] Appeal from Municipal Court, Borough of Manhattan, Sixth District. Action by Abraham I. Bleistift against Samuel Diener and others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed, and new trial granted. Argued before SEABURY, LEHMAN, and GERARD, JJ. Rosansky & Goldberg (I. Gainsburg, of counsel), for respondent. LEHMAN, J. [1] Plaintiff has recovered a judgment for rent for the month of May of premises occupied by the defendants. It appears from the plaintiff's testimony that the defendants occupied the premises under a written lease, which expired on May 1st. Thereafter they held over, and used and occupied the premises until about the middle of the month. About May 18th the plaintiff sent a man to defendants' new place of business to demand the keys, and the defendants delivered up the keys. "The law is well settled that, when a tenant under a demise for a year or more holds over after the end of his term without any new agreement with the landlord, he may be treated as a tenant from year to year, and in all other respects as holding upon the terms of the original lease. The landlord has an election to treat him either as a trespasser or as a tenant, and it is for the former to determine how he will treat him. * * But such holding over puts the landlord to his election. He must either accept the tenant as a tenant for a new term, or treat him as a trespasser. He cannot do both." Goldberg v. Mittler, 23 Misc. Rep. 116, 50 N. Y. Supp. 733. [2] In this case it seems to me that when the plaintiff demanded the keys, and received and retained them, he made a conclusive election not to treat the defendants as tenants under an implied lease for a year. At most he is entitled to recover for use and occupation, but he cannot claim that the relation of landlord and tenant continued after May 1st. Judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur. SILVER et al. v. TECOTSKY et al. (Supreme Court, Appellate Term. May 4, 1911.) CONTRACTS ( 183*)-JOINT OR SEVERAL CONTRACT-OBLIGATION. Plaintiff, being a tenant in common with the two defendants of incumbered land, and authorized to collect rents and pay taxes and assessments, was notified by the mortgagee to pay taxes and water charges, and he called a meeting of the parties to induce them to pay a share of the sum necessary to pay the same. Each of the two defendants, in the discussion at the meeting, used the words, "We will pay our share," and "I will pay my share." Plaintiff testified that he understood that one of the defendants promised that each of the defendants would pay his proportionate share, and he subsequently asked each one for his proportionate share. Held, that a judgment holding defendants jointly liable was not sustainable. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 780-788; Dec. Dig. § 183.*] Appeal from Municipal Court, Borough of Manhattan, Eighth Dis trict. Action by Gabriel Silver and another against Samuel Tecotsky and another. From a judgment of the Municipal Court for plaintiffs, defendants appeal. Reversed, and new trial granted. Argued before SEABURY, LEHMAN, and GERARD, JJ. Williams & Ruskay (Louis B. Williams, of counsel), for appellants. Bernard Edelhertz (Louis Lande, of counsel), for respondents. LEHMAN, J. The parties to this action are tenants in common of certain property situated in the borough of the Bronx; the plaintiff Hindes being the owner of an undivided two-fifths interest, and each of the other parties the owner of an undivided one-fifth interest therein. At the time the property was purchased, it was agreed that Hindes should collect all the rents and pay all the disbursements, taxes, and assessments. In April, 1910, Hindes was notified by the mortgagee of the property that, unless the taxes and water charges were paid, the mortgage would be foreclosed. At that time the rents in Hindes' hands were insufficient to pay these charges. Hindes, therefore, called a meeting at the office of his attorney, where he informed the parties that more than $1,200 additional was necessary to meet these charges. Some discussion then took place, in which the defendants both stated that they did not have any money at that time to pay their share of this deficiency; but, according to the testimony of Hindes and his attorney, both the defendants agreed that the plaintiffs should advance the necessary amount, and that they would pay their proportion of the amount of money expended, in addition to that which was then in Hindes' possession. The defendants deny that they ever authorized the plaintiffs to make such payment, or agreed to repay any money expended to protect the property. The trial justice, however, resolved any conflict of testimony in favor of the plaintiffs, and we must accept upon this appeal the testimony of the plaintiff and his corroborating witness as true. It seems to me, however, that this testimony is insufficient as a basis for a joint judgment against the defendants. Apparently each of the two defendants, in the discussion, at times used the words, "We will pay our share," and at other times, "I will pay my share." While the use of the word "we" certainly raises the presumption that they intended to enter into a joint obligation, it seems to me that this presumption is entirely rebutted by the circumstances of this case. It is conceded that the meeting was called in order to induce the defendants to pay their proportionate shares; that they were never requested to enter into a joint obligation, and apparently neither Hindes nor the •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |