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(182 N.Y.S.) and that they did not intend thereby to retain plaintiff as attorney, is so incredible that we find it difficult to believe the jury based their verdict upon such a finding. Upon the undefined issues submitted by the charge, it seems more probable that the jury' erroneously based their verdict on the fact that plaintiff did not participate in the making of the settlement, as to which he was not notified, or upon some other erroneous theory.

In Swift v. Poole, 172 App. Div. 10, 157 N. Y. Supp. 928, defendant pleaded fraud as a defense, and the court charged the jury, without objection by plaintiff, that the burden of proof with respect to the facts in controversy was upon the plaintiff. The court held that the case had been submitted to the jury upon an erroneous theory, and that upon the record there presented the ends of justice required a new trial.

[2] For the reasons before stated, we feel in the case ‘at hand that the interests of justice require a retrial on clearly defined issues, and a submission of the case to the "jury on a charge stating the principles of law by which the jury should be governed in determining the controversy.

Judgments reversed, and a new trial ordered, with $30 costs to appellant to abide the event in each case. All concur.

(111 Misc. Rep. 620)

SAPORTAS V. HAYECK et al. (Supreme Court, Appellate Term, First Department. May 18, 1920.) 1. Innkeepers' m15—Lodging persons in tenement for less than week held

to constitute violation of Tenement House Law.

Where a lessee of a tenement house receives and lodges for hire persons for a single night or less than a week at any one time, such action constitutes a violation of Tenement House Law, $ 109, providing that no tene

ment house shall be used as a lodging house. 2. Landlord and tenant Ewa 296 (1)-Operating lodging house in tenement in

violation of law held “illegal business," justifying summary removal.

Where a tenant uses a tenement house as a lodging house, in violation of Tenement House Law, $ 109, such use constitutes an “illegal business," within Code Civ. Proc. $ 2231, subd. 5, authorizing summary removal of

tenants where premises are used for illegal business. 3. Landlord and tenant Eww296 (1)-Statutes held to authorize summary re

moval of tenant for violation of Tenement House Law.

Summary proceedings may be maintained to eject a tenant for violation of the Tenement House Law, prohibiting use of a tenement for a lodging house notwithstanding that the Tenement House Law does not expressly authorize such proceedings; Code Civ. Proc. $ 2231, containing a sufficient

authority for that purpose. Appeal from Municipal Court, Borough of Manhattan, First District.

Summary proceedings by Regina B. Saportas, landlord, against Thomas Hayeck, tenant, and Zikos Kiramaris, undertenant. From a final order dismissing the proceedings, the landlord appeals. Reversed, and new trial ordered.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ.

Beamish & Steinbugler, of Brooklyn (Edgar T. Beamish, of Brooklyn, of counsel), for appellant.

Jacob I. Berman, of New York City, for respondent.

WAGNER, J. This summary proceeding was commenced to remove the tenant and undertenant from certain premises occupied and used as a tenement house. The petition verified by the agent of the landlord properly sets forth the latter's interest in compliance with the statute, and then alleges:

"That the said premises are being used and occupied by the said tenant and by persons connected with him therein and by the said undertenant for illegal purposes, to wit, that the said undertenant, Zikos Kiramaris, with the knowledge and consent of the defendant Thomas Hayeck, harbors, receives, and lodges for hire persons for a single night and less than a week at any one time, and that the said persons are lodged as aforesaid in the same building and premises, or portions thereof, and hire the same for the purpose of sleeping therein for terms and periods less than a week, and that the said defendants are conducting the business of a lodging house; that the defendants and each of them are conducting the said lodging house and the business of lodging as aforesaid, in violation of the statutes of the state of New York, particularly in violation of the requirements and provisions of the Tenement House Law of the state of New York (Consol. Laws, c. 61];

and that such tenants and each of them continue in the possession of the said premises and use and occupy the said premises for the said illegal purpose and violation of law and without the permission of the landlord" -following with a prayer that a precept be issued requiring the defendants to vacate the said premises.

Section 109 of the Tenement House Law provides :

"No tenement house, or the lot, or premises thereof shall be used for a lodging house," etc.

And section 124 of the same law provides :

“Every person who shall violate or assist in the violation of any provision of this chapter shall be guilty of a misdemeanor punishable by imprisonment. The owner of any tenement house or part thereof,

where any violation of this chapter or a nuisance exists,

shall for each such violation

be subject to a civil penalty of $50." [1] It is manifest that, if the facts alleged in the petition are established by proof, the defendants are permitting the premises in question to be used as a lodging house in violation of the Tenement House Law. The landlord maintains that he is within his legal rights in seeking to summarily remove the defendants; that section 2231 of the Code of Civil Procedure, subdivision 5, provides that a tenant or undertenant may be summarily removed, “where the demised premises, or any part thereof, are used or occupied as a bawdyhouse or house or place of assignation for lewd persons, or for purposes of prostitution, or for any illegal trade or manufacture, or other illegal business”; that since the defendants were occupying or permitting the premises to be occupied for an illegal business, namely, that of a lodging house, as defined in section 2231, supra, he may compel them summarily to vacate.

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(182 N.Y.S.) The defendants answered the petition, and on the day upon which the issue was on for trial their counsel moved for a dismissal of the proceedings. The grounds of the motion, as we gather them from a rather confused discussion, are:

[2] First, that the words "illegal business," as used in section 2231 of the Code of Civil Procedure, have application only where the business complained of is illegal by general statute, no matter where conducted; that is, that the business itself is an illegal one, frowned upon by the law wherever it may appear. We see no force to such contention. Section 2231 has to do solely with the occupation of an illegal business. The defendants, if the facts alleged in the petition can be established, were occupying a tenement house for lodging house purposes. That is an illegal business when conducted in a tenement house, and is an illegal business as defined in section 2231, subdivision 5, of the Code, supra. To adopt the respondent's construction, we think, would make the owner helpless, subject to response to continued civil penalties for violation thereof by the municipal authorities, and the law well-nigh useless to prevent the occupation of premises for an illegal business.

[3] The second ground urged upon the trial judge for dismissal of the proceedings was that the summary proceedings did not lie because of the Tenement House Law, which makes the occupation of a tenement house for lodging house purposes a crime, does not expressly authorize the proceedings. We think sufficient authorization is found in the section of the Code above adverted to. Conforti v. Romano, 50 Misc. Rep. 148, 98 N. Y. Supp. 194.

The trial judge dismissed the proceedings and awarded a final order to the tenants. This was error which requires a reversal.

The final order is reversed, with $30 costs, and a new trial ordered, with costs to the appellant to abide the event. All concur.

(111 Misc. Rep. 617)

BLUM et al. v. GERARDI. (Supreme Court, Appellate Term, First Department. May 13, 1920.) 1. Negligence Ow136 (26) -Contributory negligence question of fact.

To justify a finding of contributory negligence as a matter of law, the evidence must be such as to justify absolutely no other inference than that plaintiff failed to exercise reasonable care; the question otherwise

being for the jury. 2. Municipal corporations Ow706 (7) -Contributory negligence of taxicab

driver in crossing street intersection held for jury.

Taxicab driver, who proceeded to cross street intersection at the rate of from 8 to 10 miles an hour, without decreasing or increasing such speed on discovery of truck approaching on intersecting street at a distance of 100 feet, traveling at the rate of 18 to 20 miles an hour, held not contribu

torily negligent as a matter of law. 3. Municipal corporations Ew705 (4) --Truck driver held not to have right of

way over taxicab under circumstances.

The mere fact that automobile truck driver was proceeding northerly on Seventh avenue, approaching Thirty-First street, did not give him the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

right of way over taxicab driver approaching Seventh avenue on ThirtyFirst street, under New York City Ordinance; the question of whether taxicab driver was bound to yield to truck driver depending on the imminency of collision. Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Harry Blum and another against Paul Gerardi. From an order setting aside a verdict for plaintiffs and granting a new trial, plaintiffs appeal. Reversed, verdict reinstated, and judgment ordered thereon.

Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ.

Cohen, Haas & Schimmel, of New York City (Isidore Cohen, of New York City, of counsel), for appellants.

Bertrand L. Pettigrew, of New York City (Walter L. Glenney, of New York City, of counsel), for respondent.

WAGNER, J. The action was brought to recover damages sustained to plaintiffs' taxicab, resulting from a collision with defendant's automobile truck, by reason of the defendant's alleged negligence. It appeared that on July 3, 1919, while the taxicab operated by one of the plaintiffs in person, after proceeding west on ThirtyFirst street, between Sixth and Seventh avenues, had reached the curb line of the latter avenue, the driver looked north and south, and saw defendant's truck proceeding north on Seventh avenue on the car tracks. At that time the truck was about 100 feet south of ThirtyFirst street, traveling at the rate of 18 to 20 miles per hour. The plaintiff then proceeded to cross Seventh avenue going about 8 to 10 miles an hour, and had almost cleared the north-bound car tracks, on which the defendant's truck was proceeding, when its left rear wheel was struck by defendant.

The nearest car track from a point where the plaintiff looked and saw the truck, when 100 feet distant, was about 15 or 18 feet from the position in which the plaintiff then was, It therefore appeared that while traveling at'a rate of 8 to 10 miles per hour, the taxicab had to traverse a distance of a little more than 15 or 18 feet, while the defendant's motor truck was traveling at 100 feet distance at an 18 or 20 mile rate, in order to cross the intersection with safety. The plaintiff's testimony was corroborated in the above respects by the chauffeur of another taxicab, who was driving along Seventh avenue parallel to the defendant's truck, and who witnessed the collision. No proof was offered by defendant. The case was submitted to the jury by the learned trial justice in a comprehensive and clear charge, dwelling fully upon the facts, and correctly stating the law applicable thereto, who rendered a verdict for the plaintiffs. The decision of the defendant's motion to set aside the verdict was reserved, and subsequently granted, by the trial justice, on the ground that the plaintiff was guilty of contributory negligence as a matter of law.

[1] To justify a finding of contributory negligence as matter of law, it must be conclusively established that the plaintiff was negligent, to be determined in the light of all the facts of the case. In

(182 N.Y.S.) other words, before warrant may be given to such a conclusion, the evidence must be such as to justify absolutely no other inference than that the plaintiff has failed to exercise reasonable care. In the event that other inferences are reasonably deducible from the evidence, the court has no power to deal with this question, but must remit it for determination to the triers of fact.

[2] The learned trial justice's decision in setting aside the verdict, as disclosed by his opinion, was equivalent to a holding that the law imposed upon the plaintiff under the circumstances at bar the obligation and duty of either slowing up or going faster than 8 or 10 miles an hour, when he saw the truck 100 feet away from him. We do not think that such obligation or duty was cast upon him as matter of law. Under the circumstances of the case, the question of his negligence was for the jury. Whether his assumption that a safe passage could be effected was the act of a reasonably prudent and careful driver in the situation presented was an issue of fact upon which the minds of men might differ. Feigin v. Malbin, 171 N. Y. Supp. 245.

[3] The fact that the defendant was proceeding northerly did not ipso facto afford to him the right of way. That depended, as the ordinance provides, upon the imminency of a collision, where neither vehicle altered its speed in approaching a common crossing. It is only when, in the exercise of reasonable care and foresight, it becomes apparent that a collision is likely to occur that one must give way. Even then, as said by Shearn, J., in Boston Insurance Co. v. Brooklyn Heights Railroad Co., 182 App. Div. 9, 169 N. Y. Supp. 251:

“The rule is not arbitrary and confers no absolute rights. It takes into account the exercise of reasonable judgment, the obligation of drivers of vehicles to have their vehicles under reasonable control at street crossings, and the obligation to avoid inflicting injury upon another, where it may be avoided in the exercise of reasonable care.”

We think the evidence permits an inference, as the jury found, that the plaintiff was not guilty of contributory negligence, and we see no valid reason for the trial court's disturbing or overriding their ultimate judgment in that respect.

The order must be reversed, with $30 costs to appellants, the verdict reinstated, and judgment entered thereon, with appropriate costs to the appellants in the court below. All concur.

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