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this action it was held that damages could not be recovered in an action for damages for any act of trespass occurring after the commencement of the action. This rule has been followed in numerous cases. Kenyon v. N. Y. C. & H. R. R. R. Co., 29 App. Div. 80, 51 N. Y. Supp. 386; Van Veghten v. Hudson River Power Transmission Co., 103 App. Div. 130, 92 N. Y. Supp. 956; Ahrens v. City of Rochester, 97 App. Div. 480, 483, 90 N. Y. Supp. 744; Silsby Mfg. Co. v. State of New York, 104 N. Y. 569, 11 N. E. 264.

[3] In all actions at law the rights of the parties must be determined as of the time of the commencement of the action. Miles v. Casualty Co. of America, 203 N. Y. 453-458, 96 N. E. 744; Dean v. Metropolitan E. R. Co., 119 N. Y. 540-545, 23 N. E. 1054; Wisner v. Ocumpaugh, 71 N. Y. 113–117. The defendant, as I read the statute, is not liable for a penalty until there has been a neglect or refusal to furnish gas or electricity "for a space of ten days after such application." In other words the defendant would not be liable for any penalty until its neglect or refusal had continued 10 days. I think this is the reason for the penalty of $10. It is contrary to general experience to inflict the most severe penalty for the first violation. It is a fair assumption that that penalty was intended as a punishment for the violation of the statute during the first 10 days. This view of the statute is supported by Hoch v. Brooklyn Borough Gas Co., 117 App. Div. 882, 103 N. Y. Supp. 370. This being a penal statute, it should be strictly construed. Henry v. Babcock & Wilson Co., 125 App. Div. 538, 109 N. Y. Supp. 853.

The judgment appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event.

Judgment reversed, and new trial granted, with costs to appellant to abide event.

KELLY and CLARK, JJ., concur.

(76 Misc. Rep. 571.)

AMERICAN BILL POSTING CO. V. GEIGER.

(Supreme Court, Appellate Term, Second Department. May, 1912.) EVIDENCE ($ 444*)—PAROL EVIDENCE-WRITTEN LEASE.

In an action for breach of a written lease of the roof of a building for advertising purposes, parol evidence that the lease was delivered on condition that it was not to become effective if a tenant in possession had a lease covering the same period was inadmissible.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. $8 1929–1914, 2049; Dec. Dig. § 444.*) Appeal from Municipal Court, Borough of Brooklyn, Sixth District.

Action by the American Bill Posting Company against William Geiger. From a judgment for breach of a lease of the roof of certain premises for advertising purposes, defendant appeals. Affirmed.

Argued before KELLY, JAYCOX, and CLARK, JJ. •For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Sup. Ct.) JOHN J. DALY IRON, 8. & M. CO. V. U. s. M. & MFG. CO.

149

Alexander & Keenan, for appellant.
Hirsh & Newman, for respondent.

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PER CURIAM. The serious question on this appeal is whether the learned justice below erred in excluding evidence of an oral agreement that the written lease or agreement was delivered conditionally. The defendant delivered the instrument to the plaintiff in June, 1910, which by its terms leased to plaintiff the roof of a building for one year from March 1, 1911, with a right to the tenant to renew for a like period of time on the same terms and conditions. The rental was $200 per year, and the rent for the first year was paid to the landlord, the defendant here, at the date of the execution and delivery of the instrument. The defendant retained the money, but two or three days before the commencement of the term in March, 1911, he notified the plaintiff that he could not deliver possession, because another tenant was in possession under a lease antedating that made to the plaintiff. On the trial the defendant sought to prove an oral agreement with the representatives of the plaintiff that the lease or agreement was delivered conditionally, not to become effective if a tenant then in possession of the premises had a lease for the year from March 1, 1911, to March 1, 1912, a fact which the defendant landlord professed to be ignorant of at the time the writing was delivered. This evidence was excluded by the justice.

While the old rules excluding oral evidence to vary a written instrument have been greatly relaxed (McCreery v. Day, 119 N. Y. 1, 23 N. E. 198, 6 L. R. A. 503, 16 Am. St. Rep. 793), the doctrine that agreements or deeds or instruments conveying an interest in real estate when once delivered cannot be avoided by oral agreements that the delivery was conditional, appears to be firmly established (Blewitt v. Boorum, 142 N. Y. 357, 37 N. E. 119, 40 Am. St. Rep. 600). While it may be as was said by Judge Bronson in Gilbert v. North American Fire Ins. Co., 23 Wend. 43, 35 Am. Dec. 543, that the doctrine prevents the law from giving effect to the honest intention of the parties, the reason appears to be that the avoidance of duly delivered written instruments conveying interest in lands by parol would be to render titles to real estate insecure, and this class of instruments is excepted from the relaxed rule.

The award of damages appears to be reasonable. Judgment affirmed, with costs.

(76 Misc. Rep. 576.) JOHN J. DALY IRON, STEEL & METAL CO. 1. UNITED STATES

METAL & MFG. CO.

(Supreme Court, Appellate Term, Second Department. May, 1912.) DEPOSITIONS (8 37*)—MOTION FOR COMMISSION.

Where defendant moved in October for a commission to take testi

mony, and established a prima facie case, to which plaintiff filed no affi'For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

davits in opposition, and the case was not tried until December, an orde denying the motion, without stating any grounds, would be reversed.

(Ed. Note. For other cases, see Depositions, Cent. Dig. $ 52; Dec. Dig. § 37.*] Appeal from Municipal Court, Borough of Brooklyn, First District.

Action by the John J. Daly Iron, Steel & Metal Company against the United States Metal & Manufacturing Company. From an order denying defendant's motion for a commission to take testimony of witnesses, it appeals. Reversed.

Argued before KELLY, JAYCOX, and CLARK, JJ.
Charles J. Hardy, for appellant.
Lawrence T. Gresser, for respondent.

PER CURIAM. As to the appeal from the order, there is nothing to show why it was refused. Defendant made out a prima facie case for a commission. The order recites the motion and affidavits, and that plaintiff's attorney was heard in opposition, and then denies the motion—no ground stated and no affidavits in opposition.

Respondent says no appeal was taken from the order, but he is wrong. Notice of appeal, with his admission of service, is returned. The motion for commission was made in October. The case was not tried until December. The evidence sought was material. One of the issues in dispute was the weight of the material delivered. While it is true the plaintiff claimed that the test was the weight when loaded in Long Island City, and these witnesses unloaded the freight at the point of delivery, it would seem that in any event the evidence was admissible. But no reason is given for denying the motion to which defendant appears to have been entitled under Municipal Court Act (Laws 1902, c. 580) $$ 205-207.

Defendant claimed under the printed order blank that it was the weight at the mill which governed. Order says payment to be made by mill returns. Plaintiff claimed that the written part of the order, providing for delivery on board at Long Island City, governed. Without passing on this question, we think the evidence was admissible.

Order denying motion for commission reversed, with $10 costs to appellant. Order reversed, with $10 costs to appellant.

(76 Misc. Rep. 574.) JOHN J. DALY IRON, STEEL & METAL CO. v. UNITED STATES

METAL & MFG. CO. (Supreme Court, Appellate Term, Second Department. May, 1912.) ACCORD AND SATISFACTION (8 11*)--COMPROMISE AND SETTLEMENT (8 5*)—

CHECKS-ACCEPTANCE.

Where voucher checks reciting that they were payments "in full” were received by plaintiff, and he receipted and deposited them after crossing out the words "in full," and there was no explanation as to why such words were erased, they constituted an accord and satisfaction.

[Ed. Note.--For other cases, see Accord and Satisfaction, Cent. Dig. $8 75-82 ; Dec. Dig. $ 11;* Compromise and Settlement, Cent. Dig. $$ 10–16;

Dec. Dig. $ 5.*] *For other cases see same topic & $ NUMBER 10 Dec. & Am. Digs. 1907 to date, & Rep's Indexes

Appeal from Municipal Court, Borough of Brooklyn, First District.

Action by the John J. Daly Iron, Steel & Metal Company against the United States Metal & Manufacturing Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

Argued before KELLY, JAYCOX, and CLARK, JJ.
Charles J. Hardy, for appellant.
Lawrence T. Gresser, for respondent.

PER CURIAM. We think that the receipt and deposit of the voucher checks, reciting that the payments were “in full,” constituted an accord and satisfaction, unless explained in some way. Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695; Gribble v. R. Van Praag Supply Co., 124 App. Div. 829, 109 N. Y. Supp. 242. The amount due was in dispute. The parties were at odds over the weights. Plaintiff received the vouchers, but crossed out the words "in full,” receipting them and depositing them. Nothing is said about it on the trial, except the bare statement of plaintiff's president that he "scratched out” the words. Unless there is some explanation, this constitutes an accord and satisfaction.

Again, the plaintiff failed to show the weights as returned by the mills. We do not say this was an essential part of plaintiff's case, and defendant failed to show these weights, possibly because it was denied a commission to examine the witnesses at the mill. The written order provides that payments are to be made according to the weights shown by the returns from the mill. There is nothing inconsistent in the written and printed part of the order. If there were, doubtless the written part would control. But they relate to different subjects--one, the written part, provides for delivery in Long Island City; the other, the printed part, for weighing by the mill. If the weight at Long Island City and the weight at the mill differed, it may be that plaintiff can explain it, or that the court will find that part of the goods was lost in transit. But we think it is clear that defendant had the right to show the weight at the mill. Judgment reversed, and new trial ordered, with costs to abide event.

In re MARA. (Surrogate's Court, New York County. July 17, 1911.) 1 EXECUTORS AND

ADMINISTRATORS ($ 221*)-CLAIMS AGAINST ESTATEPROOF.

While the burden of proving a disputed claim against a decedent's estate is on claimant, and a claim withheld during decedent's life and sought to be enforced after his death should be carefully scrutinized, and admitted only on satisfactory proofs, yet having been rejected, and claimant put to his proofs, no different evidence from that required in other proceedings for enforcement of debts of a similar nature is required; so that production of a note purporting to have been made by deceased and proof of consideration is prima facie sufficient, putting on the executrix the burden of sustaining her plea of the note being spurious.

(Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 88 901-90343, 1858, 1861–1863, 1865, 1866, 1871-1874, 1876; Dec. Dig.

& 221.) For other cases see samo topic & A NUMBER la Doc. de Am. Diga. 1907 to date, & Rop'r Indexer

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2. EVIDENCE (8 60*)—PRESUMPTION-INNOCENCE.

As against a litigant claiming forgery is the presumption of innocence, putting on her, in a civil case, the burden of establishing the claim by a preponderance of proof.

[Ed. Note.--For other cases, see Evidence, Cent, Dig. $ 81; Dec. Dig.

§ 60.*] 3. EVIDENCE (8 568*)-OPINION EVIDENCE.

Opinion evidence is merely an aid to the trlor of facts, and never conclusive, especially when the opinion is founded on a hypothesis demonstrably incomplete or inconclusive.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 2392–2391;

Dec. Dig. & 568.*] 4. EVIDENCE (8 573*)-OPINION EVIDENCE-CONFLICT WITH OTHER EVIDENCE,

As against an opinion of a bandwriting expert, a note must be found genuine; a disinterested and unimpeached witness testifying that, on its holders offering to sell it to him in the presence of the person whose name was signed to it as maker, such person objected, and said he would "take it up shortly."

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2399; Dec. Dig.
$ 573.]
In the matter of the judicial settlement of the account of Elizabeth
Mara, executrix of Patrick Harris, deceased. Claim of William B.
Koller & Bro. sustained.

John H. Rogan, for claimant.
Frank T. Fitzgerald, for executrix.

FOWLER, S. This matter came on for hearing before the late surrogate pursuant to a written consent of the parties, and was thereafter continued before his successor, the present incumbent, pursuant to a like consent.

The sole question presented to the surrogate for his determination involves the validity of a promissory note for $500, dated New York, April 16, 1903, and payable on demand to the order of William B. Koller & Bro., with interest at 6 per cent. This note of hand purports to be made by Patrick Harris, deceased, and payment of such note, with balance of interest, is now claimed from the accounting executrix by William B. Koller & Bro., the payees named in the note. Receipts of interest are indorsed on the note as follows:

Rec. Jan. 1, '07, ninety doll., int. to April 16, '06. W. K. & Bro." "Received Jan. 3, '09, sixty doll., int. to Apl. 16, '08."

The $150 interest thus conceded to be paid is credited by Koller & Bro. in their proof of claim.

It seems that Koller & Bro. filed objections to the account of the executrix, and that those objections resulted in the stipulations submitting the validity of the note mentioned to the surrogate. The trial of the issue of fact was not very formal, and objections to the competency of interested witnesses seem to be waived in most instances. Yet, if the contention of the executrix is analyzed, it raises no less grave an issue than forgery of the note thus presented by the claimants for payment. •For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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