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reversed "for error in the sentence." But the "judgment was affirmed.

The proceeding followed in the case at bar is directly in conformity to People v. Bretton, supra, and People v. Griffin, supra, and is directly prescribed and authorized by the said section 543 of the Code of Criminal Procedure. It does not appear that the question presented in the case at bar was ever directly passed upon by this court, or that it was urged upon it in the cases now called to our attention for the first time, save perhaps by a single sentence in the points submitted in one of the cases.

If the punishment prescribed is not sufficient, the remedy lies in an application to the Legislature. The court is of opinion that there is not such doubt as to the correctness of its construction as justifies the allowance of an appeal under the provisions of article 6, section 9, of the Constitution.

The motion is in all respects denied.

SEIDMAN v. McCAHILL, (Supreme Court, Trial Term, New York County. June 30, 1920.) 1. Set-off and counterclaim w29 (3) --Rent due under lease is proper coun

terclaim in action for fraudulent representations inducing lease.

Code of Civil Procedure and corresponding provisions of Code of Procedure relative to counterclaims were designed to prescribe a reciprocal rule, and, in action for fraudulent representation inducing lease, rent due under the lease is a proper counterclaim; both causes arising out of

same transaction. 2. Appeal and error Eww173(1)—Matters not pleaded in lower court not avail

able.

Where matters in defense of counterclaim interposed in an action were not pleaded, it is too late to raise matters on appeal.

Action by David Seidman against Thomas J. McCahill, individually and as trustee under the will of Thomas J. McCahill, deceased. On motion for order granting reargument of motion to set aside verdict for defendant. Motion denied.

Bennett E. Siegelstein, of New York City, for the motion.

Peck, Schmidt & Burns, of Port Chester (William Chilvers, of New York City, of counsel), opposed.

GIEGERICH, J. The plaintiff secks damages for the defendant's alleged false representations in inducing him to make a lease. The defendant counterclaims for rent due under the lease.

[1] Under the ruling of the Appellate Division of this department in Adams v. Schwartz, 137 App. Div. 230, 122 N. Y. Supp. 41, and Stevenson v. Devins, 158 App. Div. 616, 143 N. Y. Supp. 916, the provisions of the Code of Civil Procedure and the corresponding provisions of the Code of Procedure relative to counterclaims were designed to prescribe a reciprocal rule that, where a counterclaim is

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

(182 N.Y.8.) properly pleaded, the cause of action to which it is pleaded might be pleaded as a counterclaim, if the defendant had brought the action. Applying this test to the counterclaim set up in the answer, it is plain that, if the defendant had brought an action for the unpaid rent due under the lease in suit, the plaintiff might have pleaded as a counterclaim the alleged fraudulent representations of the defendant in inducing him to execute the lease and to do the things alleged in the complaint. Stevenson v. Devins, supra, and cases cited. The cause of action alleged in the complaint and the one set up in the counterclaim both arose out of the same transaction, the making of the lease, and the counterclaim was therefore properly interposed. Vandervort v. Mink, 113 App. Div. 601, 98 Ņ. Y. Supp. 772, and cases cited. The jury by their verdict determined that there was no fraud in inducing the making and signing of the lease, and consequently they properly rendered a verdict in favor of the defendant for the unpaid rent, after deducting the sum deposited by the plaintiff pursuant to the terms of the lease,

[2] So far as concerns the point urged by the plaintiff that error was committed in charging the jury that, if the plaintiff is not entitled to a recovery, they must find for the defendant in the sum of $166.64, it is sufficient to say that the plaintiff did not plead any of the facts now sought to be relied upon to defeat the counterclaim, and hence they are not available.

Motion for a reargument denied, without costs. Settle order on notice.

JOSEPHSOHN v. LEVINSOHN et al. (Supreme Court, Appellate Term, First Department. June 29, 1920.) New trial On 103Newly discovered evidence not material to issue not

ground.

In action by holder of check for value against the makers, newly discovered evidence that plaintiff's testimony that no security had been given him was untrue was not material to the issue. Appeal from Municipal Court, Borough of Manhattan, Second District.

Action in Municipal Court by Michael Josephsohn against Sigmund Levinsohn and others. From an order setting aside a judgment in favor of plaintiff, he appeals. Reversed, and judgment reinstated.

Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ.

Adolph Waxenbaum, of New York City, for appellant.
John Bogart, of New York City, for respondent.

BIJUR, J. This order setting aside the judgment was granted on motion papers asking for relief on the ground of “perjury committed by the plaintiff" and "newly discovered evidence."

The action was brought by the plaintiff, as holder, against respondent For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

182 N.Y.S.-51

Levinsohn, as maker, of a check for $1,100 to the order of defendant Joseph Rosenthal, who indorsed the same over to the plaintiff. Prior to such indorsement, defendants Abe Rosenthal and Morris Goldstein had indorsed the check as an inducement to plaintiff to cash it. After plaintiff had thus paid the money therefor, the defendant-respondent Levinsohn stopped payment thereon.

After certain denials, the answer of defendant Levinsohn sets out as a first separate defense a charge of conspiracy, with which we are not concerned, and as a second defense that prior to the commencement of the action the other defendants had paid and discharged plaintiff's claim by delivering to him money and securities.” Plaintiff was asked at the trial whether he had received security of any kind from any one of the three indorsers, and answered in the negative. Defendant Morris Goldstein now swears: "That upon the cashing of the check

the plaintiff demanded security from the deponent and the other defendants, and that deponent personally delivered to plaintiff his savings bank book * * in the sum of $500; that deponent had demanded the return of the book a number of times, and had been refused."

In an answering affidavit made for the plaintiff on this motion, the same Morris Goldstein swears, however, that his bank book was delivered by him to the plaintiff several weeks before the cashing of the check in suit, for the purpose of securing the validity or payment of an altogether different check drawn on an Alabama bank, and that he signed the affidavit previously referred to by inadvertence.

I pass by the consideration that, an issue having been framed by the pleadings, and in part by the answer, in regard to the giving of security for this check by some of the defendants, and the plaintiff having been expressly interrogated in regard thereto, evidence of any of the defendants on that subject cannot be properly regarded as "newly discovered," nor that in any event, in view of the second affidavit referred to, can the alleged newly discovered testimony be reasonably expected to change the result at a new trial. The salient reason for which this order must be reversed is that the alleged newly discovered evidence and the issue to which it relates is manifestly wholly immaterial to the question of defendants' liability on the check. On this point respondent contents himself with the simple statement in a 27

page brief:

“This fact-namely, whether security had been given-was material to the issues."

It is not necessary to refer to Madison Square Bank v. Pierce, 137 N. Y. 444, 33 N. É. 557, 20 L. R. A. 335, 33 Am. St. Rep. 751, or the other cases cited by the appellant, to demonstrate the perfectly selfevident proposition that it has no relation whatsoever to the issue of defendants' liability as maker upon a check of which the plaintiff is concededly the holder for value.

Order reversed, with $30 costs, and judgment reinstated. All con

cur.

(182 N.Y.S.)

YOUNG v. BIJUR et al. (Supreme Court, Appellate Term, First Department. June 14, 1920.) Attorney and client Eww128—Complaint to recover money covered by lien held

demurrable.

Where money is rightfully in possession of a firm entitled to a lien for services, a complaint to recover the money is demurrable, in absence of allegation that sum previously paid was in full for services, or that lien, had been adjusted.

Appeal from City Court of New York, Special Term.

Action by Eleanor L. Young against Harry Bijur and Harold H. Herts, copartners doing business under the name of Bijur & Herts. From an order overruling a demurrer to the complaint, defendants appeal. Reversed, with leave to plaintiff to plead anew.

Argued June term, 1920, before DELEHANTY and WAGNER, JJ. Katz & Sommerich, of New York City (Otto C. Sommerich and Maxwell C. Katz, both of New York City, of counsel), for appellants.

James F. Swanick, of New York City, for respondent.

PER CURIAM. The defendants came rightfully into possession of the moneys upon which they had a lien for their services. Since the complaint contains no allegation that the sum previously paid was in full for services to be rendered, or that the defendants' lien had been adjusted, it is evident that it states no cause of action. Gunning v. Quinn, 81 Hun, 522, 30 N. Y. Supp. 1015; Rose v. Whiteman, 52 Misc. Rep. 210, 101 N. Y. Supp. 1024.

Order reversed, with $10 costs and disbursements, and demurrer sustained, with $10 costs, with leave to plaintiff to plead anew within six days after service of a copy of the order entered hereon and notice of entry thereof, upon payment of costs in this court and in the court below.

BIJUR, J., taking no part.

(111 Misc. Rep. 244)

CLOUGH v. GARDINER. (Supreme Court, Special Term, Kings County. March, 1920.) 1. Abatement and revival Om 49—Action does not survive defendant's death,

though surviving in state where accident occurred.

Under Code Civ. Proc. 8 1902, an action against a resident of New York state for damages for causing death of plaintiff's intestate husband by alleged negligence in killing him with an automobile while defendant was touring in New Hampshire, does not survive defendant's death, and cannot be revived against his administrator, even though under Pub. St. N. H. 1901, c. 191, § 9, a right of revival exists in that state against estate of deceased defendant in such an action, in view of Decedent Estate Law,

$ 120, and Code Civ. Proc. $ 3343, subd. 9. 2. Abatement and revival m52—Generally actions ex delicto abate on death

of either party.

Except as modified by statute, all actions ex delicto abate on the death of either party. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

3. Death 11-Statute creates new cause of action.

The action under Code Civ. Proc. & 1902, for wrongful death is an entirely new, original, and distinct cause of action based upon the theory of an injury, not to the deceased's estate, but to the estate of the bene

ficiaries named in the statute. 4. Courts – Transitory action given by statute of another state will not

be enforced in New York, if contrary to its "public policy.'

Though a foreign statute gives rise to an obligation which, if transitory, follows the person and may be enforced wherever he may be found, the right will not be enforced in New York, if sound reasons of public

policy make it unwise to lend the aid of its courts to its enforcement. 5. Words and phrases_“Public policy."

In a judicial sense, public policy does not mean simply sound policy, or good policy, but it means the policy of a state established for the public weai, either wy law, by courts, or general consent.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Public Policy.]

Action by Frances E. Clough as executrix of Enos M. Clough, deceased, against Clarence R. Gardiner. On motion by plaintiff, after defendant's death since commencement of the action, for an order to revive the action against his administrator. Motion denied.

Philip Carpenter, of New York City, for the motion.
Fred H. Rees, of New York City, opposed.

KAPPER, J. Plaintiff, as executrix, etc., of her deceased husband, brought this action in the Supreme Court, Kings County, to recover damages for his death alleged to have been occasioned by the negligence of the defendant Gardiner. The accident occurred in the state of New Hampshire while Gardiner, a resident of Kings county, N. Y., was touring in an automobile which is said to have struck and killed said deceased. Since the commencement of the action Gardiner died, and this motion is for an order to revive the action against Gardiner's administrator, the effect of which would be to charge Gardiner's estate with liability for Gardiner's negligence. It is conceded that by the Public Statutes of New Hampshire (chapter 191, $ 9) a right of revivor exists in that state against the estate of a deceased defendant in an action of this character, and assuming that to be the law of New Hampshire, as averred in the affidavits both in support of and in opposition to this motion, the question here is whether such an action pending in our state survives the death of a defendant resident in this state.

[1-3] The cause of action set forth in the complaint is transitory in character, and exists, not only in the state where it arose, but whereever the defendant may be found, or, at least, the right to maintain it in this state is fixed. Can such an action, having properly been brought, be continued in this state after the death of the defendant, where under our own law such an action abates, although, had it been brought in the lex loci, such a revivor would have been authorized. The leading case in this state is Hegerich v. Keddie, 99 N. Y. 258, 1 N. E. 787, 52 Am. Rep. 25, where it was held that a cause of action for negligence resulting in death, given by statute to the representa

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

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