(182 N.Y.S.) of this memorandum. The defendants first will be required to offer a deed executed by both, or to refuse so to do, and, if there is such a refusal, the plaintiff will have 10 days thereafter in which to make his election to take subject to the dower or to seek damages. (110 Misc. Rep. 703) CAMPIONE v. ECKERT et al. (Supreme Court, Special Term for Trials, Kings County. March, 1920.) Specific performance 10 (2)-Contract for sale of realty may be enforced, with an abatement in price, where vendor's wife refuses to sign. Where one contracts to sell his real property, and refuses to perform on the claim that his wife will not sign the deed, specific performance may be decreed, with the provision that, if she does not sign, an abatement in the purchase price be made, representing her dower interest. Action for specific performance by Giovanni Campione against Max Eckert and another. Judgment for plaintiff. Aaron Bearman, of Brooklyn, for plaintiff. Kornblueh & Hutter, of New York City (Arthur Hutter, of New York City, of counsel), for defendants. CROPSEY, J. Where a man makes a contract to sell his property, and then refuses to perform upon the claim that his wife will not sign the deed, a performance may be decreed, with the provision that, if the wife does not join in the conveyance, an abatement in the purchase price be made, representing her dower interest. Granoff v. Korpus, 182 N. Y. Supp. 136; Bostwick v. Beach, 103 N. Y. 414, 9 N. E. 41. This imposes no hardship upon the owner. If he is not certain he can obtain his wife's signature, he should not execute the contract; and, if he would protect himself, he should secure his wife's signature to the contract. If he does not do so, he must take the risk of being obliged to convey subject to his wife's dower, upon an abatement in the purchase price being made. In the present condition of the realty market, the refusal of a wife to join in a deed to perform a contract made by her husband is suggestive of bad faith. These parties are living together and agreed to the sale. Now, with the rising market, the 'claim is advanced that the wives will not sign. They cannot be compelled to, as they did not join in the contract; but, if they refuse, there must be an abatement in the purchase price, and the husbands required to convey their interests. Judgment accordingly. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (192 App. Div. 44) McMAGH v. RUHE et al. (Supreme Court, Appellate Division, First Department. May 14, 1920.) 1. Witnesses 268 (1)—Question to plaintiff's assignor on cross-examination should have been allowed. In action for services in installing pressure gas lamps on agreed salary. a defendant in his testimony having absolutely contradicted plaintiff's assignor as to any agreement to pay for installation work, question to plaintiff's assignor on cross-examination as to what possible benefit the work could have been to defendant personally should have been allowed. 2. Partnership 217 (3) —Evidence held not to warrant finding a copartner personally obligated himself to pay for work. In an action against copartners for services, evidence held insufficient to warrant finding by appellate court as a fact that a defendant had personally obligated himself to pay for the work. Appeal from Appellate Term, First Department. Action by Katharine McMagh against Francis H. Ruhe, impleaded, etc. From a determination of the Appellate Term, affirming as to defendant Ruhe a judgment of the Municipal Court, and reversing it. and dismissing the complaint as against another defendant, Ruhe appeals. Determination of Appellate Term, affirming judgment as to defendant Ruhe, reversed, and new trial ordered as to such defendant. Argued before CLARKE, P. J., and DOWLING, SMITH, MERRELL, and GREENBAUM, JJ. Theodore L. Frothingham, of New York City (Frank R. Greene, of New York City, of counsel, and Harold James Baily, of New York City, on the brief), for appellant. J. Solon Einsohn, of New York City, for respondent. * * un GREENBAUM, J. The action was brought against these defendants "as copartners engaged in the glassware business * der the firm name and style of Fensterer & Ruhe." Briefly stated, the complaint alleges the due performance on the part of the plaintiff's assignor, one Momand, of certain work, labor, and services at the special instance and request of the defendants, in connection with the preparation and installation of 100 pressure lamps at Long Beach, N. Y., at an agreed salary of $100 per week. It also alleges that the services rendered pursuant to the agreement extended over a period of eight weeks, and that there became due and owing thereunder the sum of $800, no part of which has been paid to him. The case was tried before the court without a jury, and judgment rendered against both defendants for the full amount claimed. The theory upon which the Appellate Term determined the appeal was that the evidence established that the alleged agreement of hiring, which was made through the defendant Ruhe, was not binding upon his partner, the other defendant, and that under the authority of Stedeker v. Bernard, 102 N. Y. 327, 6 N. E. 791, the defendant Ruhe being personally liable, judgment should be rendered against him individually. Plaintiff's assignor, Momand, testified without qualification that he For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) was employed by "Ruhe and Fensterer" to superintend the testing and installation of certain street lamps at Long Beach, for which that firm was to pay him $100 per week, and at no time claimed that Ruhe individually had hired him. The testimony further shows without contradiction that, at the time when the alleged contract of employment was made and for several years prior thereto, the defendant Ruhe was president of a company known as the Public Lighting Service Corporation, of which Momand was the consulting engineer, in active charge of its street lighting work, and particularly so of a certain contract which it had with the city of Newark, and that during all this time he was paid for his services by the Public Lighting Service Corporation. It was uncontradictedly shown that Ruhe was the largest holder of stock in the company, and was in the habit of advancing moneys to it from time to time for the payment of its obligations; his method being to draw checks upon his own firm's bank account, which were charged against his personal account on the firm's books. There was also a concern, known as the Pressure Lighting Company, of which Momand was the vice president and a stockholder. Its principal asset seems to have been a certain patented pressure lamp used in connection with gas lighting, which was the invention of Momand. The plaintiff testified as to the conversations which he claimed resulted in his employment, as follows: That Ruhe told him that he had met a Mr. Newbold, of Philadelphia, who was vice president of the Welsbach Street Lighting Company of America, and called his attention to the pressure lamp which would relieve one of the difficulties in the gas-lighting business, due to the high cost of labor and materials; that Newbold stated that he would have nothing to do with Momand, as they had been very bitter competitors for many years in street-lighting work throughout the United States; that Ruhe convinced him that it was foolish to allow such matters to interfere in a case where it would be to his advantage to utilize the pressure lamp; that thereupon Newbold asked Ruhe if Momand could construct a pressure lamp in the form of a burner to be used in the lamps of his company; that Momand thereupon suggested to Ruhe that Newbold send over one of the lamp heads used by his company, and he would place one of his burners therein, which could be shown Newbold; that a few days later Fensterer & Ruhe sent over a lamp head, and Ruhe told him that he would have Newbold come over and look at it; that a few days thereafter Newbold did come over, pursuant to an appointment, and Momand's secretary demonstrated the efficiency of the pressure lamp. Momand also testified that he saw Ruhe a couple of hours after the demonstration, and was told that Newbold was well satisfied with the lamp which he had seen, and had given him an order for 100 lamps. to be used at Long Beach, where the Welsbach Company had a lighting contract, in order to show their advantages to his directors. He stated that Ruhe told him that Newbold would pay for the entire cost of installation, and told him to spare no expense, and hurry it up, and get it in as good shape as possible. Momand then stated: 182 NEW YORK SUPPLEMENT "I told Mr. Ruhe that I would have nothing to do with Mr. Newbold. I (Sup. Ct. told him that the work would entail a great deal of extra work; that I had my regular work to attend to; that I was attending to my lamps in Newark; that I wanted to get paid for my installation at Long Beach; that I would have nothing to do with Mr. Newbold, and that I would do this work for your firm (meaning Fensterer & Ruhe); that Ruhe said that was all right-'I understand what your relations have been; you go ahead and do the work." Upon cross-examination Momand was asked whether he or the Pressure Lighting Company was benefited by the installation of the pressure lamps which were to be made for Newbold's firm. He answered that it was not his idea that it was a benefit to his company. He then was asked this question: "Why did you go into it, if it was of no benefit to your company? A. I was willing to do this work for Mr. Ruhe, if he paid me for it. Q. What possible benefit could it be to Mr. Ruhe personally? "Plaintiff's Counsel: Objected to. "The Court: Objection sustained. [1] The learned court clearly erred in not allowing this question upon the cross-examination. Ruhe in his testimony absolutely contradicted Momand as to any agreement to pay him $100 per week, or any other sum, for the installation work. He testified that the work was to be done for Newbold; that he had told Mr. Momand that this was the last chance to prove whether his Pressure Lighting Company was any good or not, and therefore to take pains in installing this equipment; that he never stated to him that it was a "Fensterer & Ruhe matter," or that it was an "F. H. Ruhe matter," but that it was a Public Service Corporation matter. The record of the trial shows that Newbold had a representative at Long Beach when the pressure lamps were being installed. Sufficient has been stated to indicate that there was a hopeless conflict of testimony in regard to the alleged agreement of hiring. Plaintiff was an employé of the Public Lighting Service Corporation, and was interested in the Patent Pressure Lighting Company, which he admitted was in a hopeless angle at that time. Fensterer & Ruhe were engaged in a business wholly foreign to the gas business, and were not interested as a firm in any of these matters. Ruhe was advancing moneys to the Public Lighting Service Corporation, and was anxious in behalf of that company to interest Newbold, in the hope that the Welsbach Street Lighting Company would buy out both the Pressure Company and the Pressure Lighting Company. The trial court evidently decided as it did because it accepted Momand's version of the hiring, which was that he had been hired by the firm of "Fensterer & Ruhe." vidually had employed Momand. The Appellate Term was justified, There was no finding that Ruhe indiupon the state of the proofs, to hold that the trial court's conclusion that the defendants had obligated themselves as a firm to Momand was contrary to the weight of the credible testimony. If the testimony established that Ruhe personally had obligated himself to Momand, the Appellate Term might have been justified in disposing of the (182 N.Y.S.) matter as it did, and directing judgment against Ruhe individually, under the authority of Stedeker v. Bernard, supra. We thus have a situation in which the plaintiff made no claim at the trial that Ruhe had personally promised to pay him for his services, and where the defendant Ruhe, by reason of a direction of judgment against him personally by the appellate court, would be deprived of his day in court to show that he was not individually liable for the claim of the plaintiff, and that he was acting in behalf of the Public Service Lighting Corporation, and to interpose any affirmative defenses or counterclaims personal to him. [2] In view of the fact that the trial court did not find Ruhe individually liable, and that the appellate court reversed the trial court's finding and considering that the proofs were conflicting, an appellate court would scarcely be warranted in finding as a fact that Ruhe had personally obligated himself to pay for the alleged work performed by Momand. We are of opinion that the court should have reversed the judgment and ordered a new trial. There is, however, no appeal to this court from the reversal of the judgment as against Fensterer and the dismissal of the complaint as against him. The only appellant is the defendant Ruhe. The determination of the Appellate Term, so far as it affirms the judgment as to the defendant Ruhe, is reversed, and a new trial ordered as to said defendant, with costs to the appellant in all courts to abide the event. All concur. (Supreme Court, Appellate Division, First Department. May 14, 1920.) Appeal from Trial Term, New York County. Action by Mary Irwin against Franklin Simon, impleaded with the J. J. Steindler Company. From a judgment for defendant J. J. Steindler Company, and from an order denying a motion for new trial, plaintiff appeals. Judgment and order affirmed. Argued before DOWLING, LAUGHLIN, PAGE, MERRELL, and GREENBAUM, JJ. Gillespie & O'Connor, of New York City (William F. Delaney, of New York City, of counsel, and George J. Gillespie, of New York City, on the brief), for appellant. Horwitz & Rosston, of New York City (Lyman A. Spalding, of New York City, of counsel, and Walter J. Rosston, of New York City, on the brief), for respondent. PER CURIAM. Judgment and order affirmed, with costs. GREENBAUM, J. (dissenting). This case has been before this court on two previous appeals. Upon the first appeal the court set aside a verdict of $3,000 in favor of the plaintiff, upon the ground of the erroneous admission of certain evidence, detrimental to defendant. Irwin v. Simon, 170 App. Div. 811, 156 N. Y. Supp. 483. |