(182 N.Y.S.) it cannot thereafter change the salary. As was said by Mr. Justice Clarke: "When we consider the legislative character of these bodies, no other conclusion can be arrived at but that in the exercise of their governmental functions the power to fix was merely the power to regulate, and was continuous." Buckbee v. Bd. of Education, 115 App. Div. 366, 375, 100 N. Y. Supp. 943, 949, affirmed on this opinion 187 N. Y. 544, 80 N. E. 1106. His salary having been established by the board of estimate and apportionment, the plaintiff was given the opportunity of accepting the same and retaining his position or leaving the city employment. He elected to accept the reduced salary and is concluded thereby. The cases relied upon by the appellant are where the rate of compensation for several positions is fixed by law, and a person holding a position paying the higher salary is transferred to a position for which. a lower salary is fixed. In such case, of course, this is a reduction, and can only be made for cause. The case of Matter of Shepard v. Oakley, 181 N. Y. 339, 74 N. E. 227, upon which the plaintiff relies, is clearly distinguishable from the instant case. That was an appeal from an order denying the motion for a peremptory writ of mandamus. The relator was appointed originally at a salary of $12 a week, which was afterwards changed to $1,500 a year. His salary was increased from time to time. He was transferred from the finance department to the water department. His salary was subsequently increased in that department to $2,700. Thereafter the commissioner of the water department reduced the salary to $1,500, on the ground that the increase in the relator's salary had not been authorized by the board of estimate and apportionment, and that therefore his legal salary was $1,500. The Court of Appeals discussed several contingencies, in which case the relator would have been entitled to a restoration of his salary, and reversed the order denying a peremptory writ, and remitted the case to the Special Term, with directions to issue an alternative writ of mandamus. The plaintiff has no right to the difference in salary for which he has brought this action. The judgment should be affirmed, with costs. All concur. (192 App. Div. 49) ORGEL v. GOLDSTEIN et al. (Supreme Court, Appellate Division, First Department. May 14, 1920.) Insurance 103-Evidence held not to show brokers' failure to notify of inability to procure. In action against insurance brokers for damages to their customer by breach of duty on their part in negligently failing to procure insurance for him or to notify of inability to do so, evidence as to defendants' failure to notify held insufficient to support verdict for plaintiff. Appeal from Appellate Term, First Department. Action by Harry Orgel against Max Goldstein and Benjamin Goldsmith, copartners, etc. From a determination of the Appellate Term, affirming a judgment of the Municipal Court, Borough of Manhat For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes. tan, Fifth District, for plaintiff, defendants appeal. Determination of Appellate Term and judgment of Municipal Court reversed, and new trial ordered. Argued before CLARKE, P. J., and DOWLING, SMITH, MERRELL, and GREENBAUM, JJ. Max Shlivek, of New York City, for appellants. Benjamin Bernstein, of New York City, for respondent. GREENBAUM, J. This is an appeal from a determination of the Appellate Term, affirming a judgment of the Municipal Court in favor of the plaintiff for the sum of $544.30. The action was brought by the plaintiff against the defendants, as insurance brokers, to recover damages sustained by him by reason of an alleged breach of duty on the part of the defendants in negligently failing to procure a policy of insurance for him, or to notify him of their inability so to do. Plaintiff was a dealer in feathers, engaged in business at 681 Broadway, in the city of New York. The defendants had acted as his insurance brokers for about three years. On May 7, 1918, they procured a policy of fire insurance in the Royal Insurance Company in the amount of $750, covering merchandise belonging to the plaintiff. The premium of the policy was $19.50. On August 20, 1918, the company notified the plaintiff in writing that the policy would be canceled within five days for nonpayment of the premium. On August 26, 1918, the company notified the plaintiff in writing that the policy had been canceled. Up to the time of cancellation, the premium had not been paid, and there can be no doubt that the policy was properly canceled. On or about September 20, 1918, the plaintiff sent a check for $19.59, the amount of the premium, to the defendants. According to plaintiff's testimony, he was called up on the telephone by defendants' manager, on or about September 25th, and told that his check for $19.59, which he had mailed to the defendants, was not good, and upon that occasion he was told by the person talking in behalf of the defendants that he must have the cash right away; "if not, he will cancel the old policy; if not, he will make good the old policy, or he will give me a new policy and make good; he must have it right away, the cash." Plaintiff thereupon sent $19.59 in cash to the defendants, which the latter received. On September 26, 1918, defendants wrote to plaintiff, acknowledging receipt of the cash, and advising him that, after trying to make payment of the premium, the Royal Insurance Company informed them of the cancellation of the policy on August 26th, and that the company refused to reinstate the policy "on account of your bad trade report and bad physical condition of the building in which you are located." This letter closes as follows: "However, we will endeavor to replace this insurance in another direction, and if we succeed we will so advise you." (182 N.Y.S.) The plaintiff admitted that he did not notify the defendants of the notice of cancellation which he had received from the insurance company, and it is quite apparent from the evidence that the defendants only learned of the cancellation after the plaintiff had forwarded the check for $19.59 on September 20th. The evidence is that, upon receipt of that check, defendants immediately sent their own check, dated September 20th, for $17.63, being the difference between the amount of the premium and of their brokerage commission, and that the company refused to accept the check or to reinstate the policy, for the reasons stated by the defendants in their letter to plaintiff of September 26th. Plaintiff's cause of action, according to the complaint, is based upon the alleged conversation had between the plaintiff and defendants on the 25th of September, to which reference has heretofore been made. Defendants deny that conversation in all its details. They, however, concede that they retained the $19.59 for the purpose of endeavoring to replace the insurance in another company. There is thus a sharp difference between the parties as to what defendants had stated they would do with reference to new insurance. Defendants put in evidence a series of important letters, written before the date. of the fire, which occurred on the 26th of October, 1918. The first of these was dated October 1, 1918, in which the defendants advised the plaintiff : “That we have up to date been unsuccessful in placing this insurance for your account. However, as soon as we succeed in securing this insurance, we will so advise you." The next letter is dated October 9th, in which the defendants state that they have been unsuccessful in securing insurance in place of the Royal Insurance policy which was canceled in August "on account of the bad physical condition of the building you occupy, and also on account of trade reports which the companies have on record, and which do not show up to the standard." The letter also stated: "I personally would advise you to therefore try other insurance brokers, and let us hear from you if they are successful in obtaining this insurance for your account." On October 18th a third letter was mailed to the plaintiff, which reads as follows: "Will you kindly advise us if you have secured the $750 insurance in another company, in place of the Royal Insurance policy which was recalled. When I last saw you, you said that you have asked another insurance broker to try and get this $750 insurance for your account. Has he been successful? Up to the present writing, and again referring to our various letters written you, we have failed to place $750 insurance." Plaintiff denied the receipt of any of these letters. Indeed, he also denied the receipt of several other letters, which his counsel, however, conceded upon the trial had been received by him. Plaintiff claimed that he was not very familiar with the English language, but he admitted there was in his employ a young woman who acted as book keeper, and who was in the habit of reading his letters. One of the critical issues in the case is whether plaintiff received the letters which the defendants testified were written and mailed to him. The omission on the part of the plaintiff to call his bookkeeper with respect to such an important matter, without any explanation why she was not called, casts considerable doubt upon the plaintiff's veracity. His testimony in other respects was also very unsatisfactory. Defendants, on the other hand, produced a typist, who was in their employ at the time that the letters were claimed to have been written, who testified that she wrote them at the time when they were dated, and corroborated the manager of the defendants, who swore positively to his signing such letters and mailing them. It is highly improbable that defendants manufactured these letters. If these letters were sent, it would establish that the defendants were diligent in keeping plaintiff informed of their inability to procure insurance, and that they advised him to secure the services of another broker. It also appears in evidence that the plaintiff held a policy in the Hartford Insurance Company, procured through the efforts of the defendants, and that it was impossible to induce that company to renew it. According to defendants' testimony, plaintiff was advised that the goods in which he was dealing were among the worst forms of hazardous risks. There was not the slightest contradiction of defendants' assertions that insurance was not obtainable for the plaintiff. The verdict is overwhelmingly against the weight of the credible evidence, and the determination of the Appellate Term and the judgment of the Municipal Court should be reversed, and a new trial ordered, with costs. in all courts to the appellants to abide the event. All concur. (192 App. Div. 42) JACOBSON v. SILBERSTEIN. (Supreme Court, Appellate Division, First Department. May 14, 1920.) 1. Witnesses 268 (5)—Considerable latitude allowed on cross-examination, where only issue presents question of veracity. In seller's action against buyer, where only issue involved, relating to price agreed on, presented a question of veracity between buyer and seller's agent, who negotiated contract, considerable latitude should have been allowed on cross-examination. 2. Sales 52 (2)-Seller's difficulty in disposing of goods prior to negotia tions held admissible on issue of price. In seller's action against buyer, where only issue involved was as to price agreed on, cross-examination as to seller's difficulty and efforts in disposing of the goods prior to negotiations with buyer held proper; such testimony being relevant on question of whether it was probable that the seller assented to the lower price, as claimed by buyer. 3. Sales 52 (2) -Evidence as to length of pieces of cloth held admissible on issue of price. In action by seller of cloth against buyer involving the issue as to the price agreed on, cross-examination of seller's agent as to whether goods were the usual length per piece held proper on question of whether it was probable that seller assented to the lower price claimed by buyer. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 4. Witnesses (182 N.Y.S.) 268 (12)-Cross-examination as to price paid by seller held admissible on issue of price agreed on. In seller's action against buyer, involving the issue as to the price agreed on, where witness had testified without objection on direct examination that price seller had paid for goods was a price in excess of that claimed by buyer to be the contract price, cross-examination as to price paid by seller was proper. 5. Witnesses 268 (12) -Cross-examination of seller's salesman as to his authority held proper on issue of price. In seller's action against buyer, involving dispute as to price agreed on, cross-examination of seller's agent as to whether his authority was limited as to price at which he was to sell the goods held proper, in view of seller's testimony on direct examination that his salesman did not have such authority. 6. Evidence 155 (8)—Reply to letter admitted in evidence held admissible. In seller's action against buyer, involving a dispute as to the price agreed on, where buyer's letter to seller was admitted in evidence without objection, seller's letter to buyer should have been admitted, in so far as it constituted a reply, but paragraphs thereof having no connection with buyer's letter, which were self-serving and merely argumentative, should have been excised. Appeal from Trial Term, New York County. Action by Louis Jacobson against Meyer Silberstein. From a judgment for plaintiff on the verdict of a jury, and from an order denying a motion for new trial, defendant appeals. Judgment and order reversed, and new trial ordered. Argued before CLARKE, P. J., and DOWLING, SMITH, MERRELL, and GREENBAUM, JJ. Burnstine & Geist, of New York City (Henry C. Burnstine, of New York City, of counsel), for appellant. Samuel Kahan, of New York City (Horace G. Marks, of New York City, of counsel), for respondent. GREENBAUM, J. The sole issue presented in this case is whether the price fixed for the cotton drills contracted for was 2212 cents or 172 cents a yard. The jury found in favor of the plaintiff's contention, and the case reaches us on defendant's exceptions to the exclusion of questions propounded on cross-examination of plaintiff's witnesses and to the admission and exclusion of correspondence. Le [1] In view of the narrow and very close issue in the case, which presented a question of veracity between plaintiff and his employé, Kaplan, who negotiated the contract for him, on the one hand, and defendant, on the other hand, this is peculiarly a case where considerable latitude should have been allowed on cross-examination. vant Am. Com. Co., Inc., v. W. Well & Co., Inc., 186 App. Div. 497, 500, 174 N. Y. Supp. 303; Garfield v. Kirk, 65 Barb. 464, 472. Defendant's counsel was prevented, however, from cross-examining the witness Kaplan on matters pertaining to plaintiff's asserted difficulty and efforts in disposing of the goods prior to the negotiations with defendant, the question whether the goods were of the usual length per piece, the price paid by plaintiff for the material, and whether the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |