(182 N.Y.S.) in the temporary use of busses or stages to meet an emergency. That is not the question before us. We are considering the installation, maintenance, and continued operation of busses upon established routes. The rule justifying action by a municipality under emergency is of limited application. An emergency may justify the omission of prescribed conditions to the exercise of municipal power. This doctrine rests on the reasoning that the Legislature, in granting the power and prescribing methods of and conditions to its exercise, could not have intended such conditions and methods to apply to cases where it is impossible to meet them. The important point is that the municipality has the power; the method of its exercise is a secondary consideration. And in times of stressing emergency, when prompt action is required for the public welfare, it is better that methods and conditions be unfulfilled than that the municipality should fail to act. North River Electric Co. v. New York, 48 App. Div. 14, 62 N. Y. Supp. 726. But the grant of power to the city is not changed by an emergency, nor can it authorize acts that are entirely outside the chartered purpose. [10] Although the city has no power to operate bus lines, it may grant franchises for that purpose. That is done through the board of estimate and the mayor (section 242 of the charter); but there are certain limitations and conditions under which this power is to be exercised, none of which have been complied with in this case (section 73 of the charter). Section 25 of the Transportation Corporations Law (Consol. Laws, c. 63) requires the owner or operator of a stage route in the streets of any city to obtain a certificate of convenience and necessity. This has not been done. There is no pretense that a franchise has been granted to operate the bus lines in question, and the argument of the corporation counsel attempts to sustain it as municipal operation. The anomalous situation is that, while the statute expressly prohibits the operation unless under a franchise (section 1458 of the charter), the city has, in plain disregard of the provisions of its own charter, without granting a franchise, authorized individuals to run these automobile stages on established routes through the streets for their own profit. If the welfare and convenience of the citizens require additional accommodations for transit, such as would be furnished by established stage routes, there is a legal way to accomplish the result. The city has power to grant a franchise, subject to the determination of its necessity and convenience. But the city has no power of municipal operation; nor has it the right to authorize others so to use the streets without observing the conditions to a legal and regular grant of a franchise. [11, 12] The plaintiff plainly suffers a special injury from the competition of these stage lines and from the added obstruction to the operation of its cars under its franchise. Even if the purpose of establishing the lines is not to injure the plaintiff in the exercise of its legal rights, it has that effect. Moreover, no bus line can be established in streets occupied by the plaintiff, unless a certificate of convenience and necessity be secured, and upon an application for such certificate the plaintiff has a right to be heard. Section 26, Transportation Corporations Law; People ex rel. N. Y. C., etc., Co. v. P. S. Com., 195 N. Y. 157, 88 N. E. 261. A common carrier, therefore, has a legal right to question the necessity and convenience to the people of a paralleling common carrier. Matter of Kings, Queens & Suffolk R. R. Co., 6 App. Div. 241, 39 N. Y. Supp. 1004. In the days before the power of public regulation and control of common carriers was established and recognized as it is now, competing roads were built, not for the benefit of the public, but so to injure the established road as to compel it to purchase in self-defense. This was recognized as an abuse, and the correction applied was the law that no line of transportation should be established without a certificate of public convenience and necessity. Whether that requirement would apply to municipal operation is irrelevant to this inquiry. If the Legislature should authorize municipal operation, the act authorizing it would probably determine whether the certificate should be required. The plaintiff, having a franchise to operate in the public streets, and being under financial pressure of the prevailing economic conditions, suddenly finds its most profitable lines paralleled by stages operating under the control of the defendant, without authority of law, and without having obtained a certificate of public convenience and necessity. I think the plaintiff has a standing in a court of equity for relief. Whether the plaintiff has failed in fulfilling the obligations of its franchise has nothing to do with the question now before us. If it has, the law affords a remedy. The orderly processes of the law are better and probably more effective than an attempt at correction by an unauthorized and illegal administrative act. The order should be affirmed, with $10 costs and disbursements. All concur. ADLER v. I. D. WOLFSON, Inc. (Supreme Court, Special Term, New York County. June 1, 1920.) Master and servant 80 (4)—Salesman's complaint demurrable for lack of allegation of sale of goods on which commissions were to be paid. Complaint alleging plaintiff was employed as a salesman of goods manufactured by defendant, without limitation or specification as to goods he was to sell, with allegation he was to receive commission on sales of neckties and collars, and general allegation goods were sold by plaintiff and by defendant directly, but no allegation that any goods so sold were neckties or collars, held demurrable for lack of such allegation. Action by Morton M. Adler against I. D. Wolfson, Incorporated. On motion by plaintiff for order overruling defendant's demurrer to the complaint for insufficiency. Motion denied, and order entered sustaining demurrer, with leave to plaintiff to amend. Milton Dammann, of New York City (Maurice R. Roche, of New York City, of counsel), for the motion. Thomas & Friedman, of New York City (Avrom M. Jacobs, of New York City, of counsel), opposed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) GIEGERICH, J. The plaintiff has moved for an order overruling the defendant's demurrer interposed to the complaint on the ground of insufficiency. The complaint alleges that the defendant employed the plaintiff as a salesman "of the goods, wares, and merchandise manufactured by the defendant," the plaintiff agreeing to solicit sales therefor in certain territory agreed upon, and that the defendant agreed to pay the plaintiff commissions upon all sales made by the plaintiff within such territory and on all orders received directly from customers within said territory. The complaint then specifies that such commissions were to be at certain varying rates on neckties of different material and collars of different prices, without stating that there were to be any commissions allowed on any other goods except such neckties and collars. The complaint then alleges that during the period of his employment the plaintiff "made sales of defendant's goods, wares, and merchandise in said territory, and likewise during the said period the defendant directly received orders from and directly made sales to customers within the said territory," and that "by reason of the employment as aforesaid the plaintiff earned large commissions, and there became due and owing to the plaintiff from the defendant large sums of money, payments on account of which were from time to time made, leaving a balance now due and owing to the plaintiff from the defendant of $10,000, no part of which has been paid." Even under the rule that pleadings are to be liberally construed, I do not think it can be held that there is here any allegation that the plaintiff sold any goods of the kinds specified as those upon which he was to receive commissions. There is, first, the allegation that the plaintiff was employed as a salesman of the goods, wares, and merchandise manufactured by the defendant, without any limitation or specification as to the goods he was to sell. Then follows an allegation that he was to receive commissions on sales of certain neckties and collars. Then follows again a general allegation that goods, wares, and merchandise were sold by the plaintiff, and were sold by the defendant directly, but no allegation that any of the goods, wares, and merchandise so sold were neckties or collars. The motion for an order overruling the demurrer should therefore be denied, and an order entered sustaining the demurrer, with $10 costs to the defendant, with leave to the plaintiff to amend within 20 days after service of a copy of the order to be entered hereon, with notice of entry thereof, and on payment of such costs. Settle order on notice. 182 N.Y.S.-19 (111 Misc. Rep. 605) ROSCO TRADING CO., Inc., v. W. M. PRINGLE & CO., Inc. 1. Indemnity 3-Waiver of claim for improper packing is consideration. Where the buyer claimed that the goods delivered by seller were not packed in the manner required by the contract, but paid the purchase price on receipt from the seller of a written agreement to indemnify the buyer against any claims by his clients for improper packing, the waiver of buyer's claims for defective condition of the goods, which it might have enforced, even after accepting them under Sales Act (Personal Property Law, art. 5) § 130, was sufficient consideration for the contract of indemnity. 2. Indemnity9 (1) -Contract held to indemnify only against legal claim. A written contract by seller to be responsible for claims against buyer by its clients on account of deficiency in packing the goods requires the seller to repay any sum which the plaintiff was legally obliged to pay to its client, but does not render the seller liable for claims paid by the buyer, if it was not obliged to pay them. 3. Indemnity ~15 (7) —Evidence held not to show legal damages to indemnitee. In an action on a contract by a seller to indemnify his buyer against claims for defective packing of the goods, evidence which showed that the buyer had paid a claim for defective condition of the goods, but which showed that other defects beside the packing entered therein, without showing the amount of damage caused by the defective packing, or that the claim was valid, held insufficient to show any legal damage which the indemnitor was bound to repay. Appeal from Municipal Court, Borough of Manhattan, First District. Action by the Rosco Trading Company, Incorporated, against W. M. Pringle & Co., Incorporated. Judgment for defendant, and plaintiff appeals. Affirmed. Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ. Everett B. Heymann, of New York City (Jacob Schnebel, of New York City, of counsel), for appellant. Julius Miller, of New York City, for respondent. GUY, J. Plaintiff appeals from a judgment dismissing its complaint in an action brought to recover the sum of $408.20 for damages for breach of a contract of indemnity. The answer was a general denial. The contract of indemnity was given under the following circumstances: In May, 1918, defendant gave plaintiff an order for certain paper, the invoice price of which was $613.80. The order given by defendant and accepted by plaintiff contains the following provision: "Goods must be packed in smallest possible cubic space, but sufficiently strong to withstand ocean transportation, etc. Cases must be iron-strapped. This order is placed subject to conditions and particulars specified in your letter of May 7, 1918. Packing-In bales of 500 pounds each. Bales to be covered with waterproof paper, with boards on top and bottom and iron-strapped." * For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) The letter of defendant, dated May 7, 1918, referred to in the above order, contains the same clause: "To be packed in bales of 500 pounds each. Bales are covered with waterproof paper, with boards top and bottom and iron-strapped, which is the regular packing for export." The goods were delivered, as per plaintiff's shipping instructions, on board vessel on or about August 14, 1918: On August 21, 1918, defendant wrote plaintiff : "Inclosed please find dock receipts for 23 and 45 bales of newspaper print, which we trust are satisfactory." The 45 bales refer to another order, and the 23 bales refer to the matter in controversy herein. On August 14, 1918, plaintiff wrote defendant: "Referring to shipment on our orders Nos. CH/542-543, which you have partly effected to the steamship Melderskin, of the Wessel-Duval Steamship Line, we had one of our representatives at the pier to-day, and he reports that the bales delivered by you are in a lamentable condition, and it is a question as to what condition these packages will arrive at destination. The packing is extremely frail for packages of their weight. Besides, they are in no way protected with waterproof paper or boards and strapping as they should be, if packed in bales, as specified on our above-mentioned orders. Please bear in mind that we will have to hold you responsible for any claims that may result from this very poor packing, if such you can call it. Payment of these invoices will be passed only on receipt of clean dock receipts." * Order No. 543, referred to in the foregoing letter, is the contract of sale between the parties hereto. On receipt of defendant's letter of August 21st inclosing dock receipts, some conversation appears to have taken place between the parties; and on August 28th defendant wrote plaintiff: "In furtherance of the conversation held this morning with our Mr. Strange, we appreciate your position in this matter. We are willing to be held responsible for any neglect on our part as to the packing of these goods, and feel confident that you would not impose upon us in case of any trouble with your client. We are more than pleased at all times to make good when we are at fault." Plaintiff replied on August 29th as follows: "We, however, regret to state that, while we believe that your intentions are sincere in this matter, the wording of your letter is not in accordance with the arrangements talked over with your Mr. Strange, and, in order to expedite settlement of your bills, we will gladly pay same if you will agree, in writing, to be responsible for any claims that we may receive from our clients on account of the deficient packing of the paper in question." In reply to said letter defendant wrote plaintiff (Exhibit 7): "Answering your favor of the 29th inst., we herewith express to you our readiness to be responsible for any claims that may be made to you by your client on account of any deficiency in the packing of the 15 tons of newsprint paper which we delivered to you." Following the receipt of this letter, plaintiff paid defendant in full for the goods ordered, and subsequently plaintiff received a claim. from its client for $408.20, which claim plaintiff paid, and demanded |
