said, unless he recognized his voice, or his identity has been established with reasonable certainty by other evidence. Not only did the witness Thompson identify the voice of plaintiff, after hearing his testimony herein, as to the voice of the individual who conversed with him on the telephone on November 20, 1918, but also recognized his identity from the manner in which he then and on previous occasions on the phone had discussed the intimate details of his stock account with defendants herein. In People v. Strollo, 191 N. Y. 43, 83 N. E. 573, the court directly passed upon the point here discussed. There the witness could not identify the party's voice at the time of the telephone conversation, but met him later, and at the trial testified that the voice which came over the telephone was the voice of defendant. The court held that, while the testimony was weak as to weight, it was not incompetent. Testing the proof submitted by the rule and authorities cited, I conclude that the ruling of the learned court in the respect named was erroneous and highly prejudicial to the rights of defendant, which call for a reversal of the judgment appealed from, and the granting of a new trial, with costs to appellants to abide the event. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur. RICHARD et al. v. P. FRANZ & CO., Inc. (Supreme Court, Appellate Term, First Department. June 24, 1920.) 1. Judgment 255-Covering items not proven erroneous. A judgment for a storage charge cannot stand, where some of the particular items therein through inadvertence were not proven on the trial. 2. Courts 190 (9)-Reduction of judgment of Municipal Court by excluding unproven items not allowed, where record too inaccurate. If the inclusion of unproven items in judgment of Municipal Court were the only appearing error, the appellate court might accept the respondent's offer to reduce by excluding such items; but where there are other errors, this defect merely emphasizes the inaccuracy and infirmity of the judgment. Appeal from Municipal Court, Borough of Manhattan, First District. Action by Oscar L. Richard and others against P. Franz & Co., Incorporated, a domestic corporation. Judgment for defendant after a trial by a judge without a jury, and plaintiffs appeal. Reversed, and new trial granted. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ. John J. Schwartz, of New York City (David Burr Luckey, of New York City, of counsel), for appellants. Wolf & Falk, of New York City (Alexander Wolf, of New York City, of counsel), for respondent. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) PER CURIAM. This was an action in replevin to recover possession of two sections of a bull wheel (part of a derrick), alleged to be wrongfully detained by the defendant, with whom the same had been stored. The defense is, in substance, that the goods were being held by defendant to protect its lien for storage, amounting to $210.82, and defendant demanded judgment for the amount of its lien, which was awarded to defendant. An examination of the record indicates that originally there were four sections, apparently constituting two bull wheels, stored with defendant, and that one wheel was taken away by plaintiffs about a month after the storage began. It is not clear whether the storage charge accrued up to the time of the removal was paid or not, though apparently it had been. It also appears that the reasonable storage charge is $7 per month per section. Even as to this, however, there is some doubt left by the record, since some of the witnesses speak interchangeably of sections and wheels. [1] Respondent in his brief presents a calculation to the effect that a total storage charge of $196 had been proved. In this, however, he fails to give credit for the previous payment, if any. Assuming, however, that the $196 is correct, he explains that the difference between that sum and $210.86 "consisted of several small items for labor * * * for which the plaintiffs were liable." The particular items, however, through inadvertence, were not proven upon the trial. But a judgment cannot be sustained upon testimony that was not offered. [2] Were that the only error appearing, we might accept the respondent's offer to permit a reduction of the judgment to $196, with appropriate costs; but the defect in this respect only emphasizes the inaccuracy of the record as a whole, and the infirmity of the resulting judgment. Plaintiffs' contention is that they made a tender of the amount said by some one on behalf of the defendant to be due at the time a demand for the articles was made. In this respect, also, the testimony is so confusing and inexact as to be incapable of precise formulation, or to form the basis of any legal conclusion. Under the circumstances, therefore, we feel that the judgment must be reversed, and new trial granted, with $30 costs to appellant to abide the event. GRIFFIN ROOFING CO., Inc., v. SEEMAN et al. (Supreme Court, Appellate Term, First Department. June 24, 1920.) Courts 190 (8)—Order of Municipal Court setting aside verdict presumed granted on exceptions taken at trial. In an action in Municipal Court for damages to a motortruck, where the charge was fair, and not excepted to, and no reason is shown for setting aside the verdict, and the order states no reason therefor, this court is bound to assume that the order was granted upon the exceptions taken upon the trial, and, where there were none, the order must be reversed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Appeal from Municipal Court, Borough of Manhattan, Third Dis trict. Action by the Griffin Roofing Company, Incorporated, against Joseph Seeman and others. From an order setting aside the verdict of the jury in his favor for the sum of $250, plaintiff appeals. Order reversed, and verdict reinstated. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ. Jacobson & Pollock, of New York City (H. Louis Jacobson, of New York City, of counsel), for appellant. Bertrand L. Pettigrew, of New York City (Walter L. Glenney, of New York City, of counsel), for respondents. DELEHANTY, J. The action was brought to recover damages done to plaintiff's auto truck, caused by collision with a truck driven by defendant's employé. As is usual in such cases, each side charges the other with negligence; and upon this point nothing but a question of fact was involved. A careful reading of the testimony leads to but one conclusion, and that is that the jury could not reasonably have arrived at any other verdict than one for the plaintiff. The respondent claims that the amount of damages was not established by proper proof. The plaintiff's entire claim, as set up in his bill of particulars, aggregated the sum of $527.13; but it appears that the plaintiff's truck was completely overhauled after the accident, and that a considerable amount of repairs charged for was not the result of the collision. It was shown, however, that the crank case and crank shaft were broken, the chassis and front axle bent, the radiator damaged, and several minor injuries done to the truck, which were directly caused by the accident, and the reasonable value of the replacements and repairs for these injuries equaled, if not exceeded, the sum of $250, for which the verdict was given. The charge to the jury was fair, and there were no exceptions taken thereto by the defendant. There is no reason shown for setting aside the verdict, nor does the order state any reason, and in such cases this court is bound to assume that the order was granted upon the exceptions taken upon the trial, and in this case there were none. This alone requires the reversal of the order. Badanes v. Feder et al., 47 Misc. Rep. 91, 93 N. Y. Supp. 478; John C. Wiarda & Co. v. Ind. Chem. Co., 162 N. Y. Supp. 158. Order reversed, with $30 costs to the appellant, and verdict reinstated. All concur. (182 N.Y.S.) KLASS et al. v. PH. DAVIS & CO., Inc. (Supreme Court, Appellate Term, First Department. June 24, 1920.) 1. Courts 189 (14) —Municipal Court erred in setting aside verdict on conflicting evidence. Where the testimony was conflicting, and verdict was not against the weight of the evidence, it was error for the Municipal Court to set the verdict aside. 2. Courts 150 (8)-Assumed that verdict was set aside upon exceptions Where order of Municipal Court setting aside verdict based on conflicting evidence does not recite grounds for setting it aside, an appellate court is obliged to assume that it was granted upon exceptions taken at the trial; and where no exceptions were taken at trial, order must be reversed. Appeal from Municipal Court, Borough of Manhattan, Sixth District. Action by Calman Klass and Philip Levenson against Ph. Davis & Co., Incorporated. From an order setting aside the verdict for plaintiffs and granting a new trial, plaintiffs appeal. Order reversed, and verdict reinstated. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ. Jacob M. Leibner, of New York City, for appellants. PER CURIAM. [1, 2] The record discloses that only an issue of fact was involved in the trial of this case in the court below, and upon conflicting testimony and under a proper charge the jury found a verdict in favor of the plaintiff. The verdict was not against the weight of the evidence, and it was therefore error on the part of the learned court to set the same aside. Furthermore, since the order appealed from does not recite the grounds for setting aside the verdict, this court is obliged to assume that it was granted upon exceptions taken at the trial. Badanes v. Feder, 47 Misc. Rep. 91, 93 N. Y. Supp. 478; Wiarda v. Ind. Chem. Co., 162 N. Y. Supp. 158. Since there are no exceptions appearing in the record which relate to any material point, no valid argument can be successfully urged to sustain the action of the court below. Order reversed, with $30 costs, and verdict reinstated. COHEN et al. v. NATIONAL LADIES' SPECIALTY CORPORATION. (Supreme Court, Appellate Term, First Department. June 24, 1920.) 1. Courts 190 (6)—Appeal from Municipal Court will be dismissed, where record contains no judgment. Where the record on appeal from Municipal Court contains no judgment either for or against appellant, but merely a notice of appeal purporting to be taken from a described judgment, and where the clerk of the court notified appellant's attorney of the omission the day the return was filed, the appeal will be dismissed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 2. Courts 190 (6)—Appellant's duty to see that return is properly made on appeal from Municipal Court. It is the duty of the appellant, on appeal from Municipal Court, to see that the return is correctly made, since the Appellate Term is bound by the record submitted. Appeal from Municipal Court, Borough of Manhattan, First Dis trict. Action by Joseph Cohen and another against the National Ladies' Specialty Corporation. Judgment for plaintiffs, and defendant appeals. Appeal dismissed. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ. Abraham Rosenbluth, of New York City, for appellant. D. Robert Kaplan, of New York City, for respondents. PER CURIAM. [1, 2] The record herein contains a notice of appeal purporting to be taken from a judgment entered April 16, 1920, adjudging that the plaintiff recover from the defendant the sum of $223. No judgment either for or against the defendant is contained in the record, and the appellant's attorney was notified of this omission by the clerk of the court by mail on May 20, 1920, the day the return was filed. It is the duty of the appellant to see that the return is correctly made, since this court is bound by the record submitted. Under these circumstances, the appeal must be dismissed. Appeal dismissed, with $10 costs. WEINHART v. DOTZEL. (Supreme Court, Appellate Term, First Department. June 24, 1920.) Brokers 56 (3)—Broker, who tried to prevent sale to purchaser he had introduced to owner, not entitled to commission. Where broker introduced purchaser to owner of store, but thereafter advised purchaser not to purchase the store, spoke about another store he wanted purchaser to buy, and induced purchaser to declare negotiations off, he was not the procuring cause of, and was not entitled to commission for, owner's sale to purchaser, made after purchaser had four weeks afterward resumed negotiations directly with owner, since broker did not procure, but tried his best to prevent, the sale. Appeal from Municipal Court, Borough of Manhattan, Eighth District. Action by Wolfgan Weinhart against Charles M. Dotzel. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ. Charles J. Gerlich, Jr., of New York City, for appellant. Katz & Levy, of New York City (William J. Wilson, of New York City, of counsel), for respondent. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |