year 1910, including some toll service, and that payment had been made for only the first quarter and the toll service, and demanded judgment for the remaining three quarters. An answer was interposed, and subsequently an amended answer was filed, which, as it has been held insufficient, we must briefly consider: It admits the making of a "certain contract" between the plaintiff and the defendant, and the payment of the first quarter's rental and of the toll charges, and continues: "Defendant alleges that from and after April 1, 1910, the service was defective and of no value whatever to the defendant, and that defendant could not use the same." It is further alleged that notice was given to the plaintiff, and a request to remove the phone, and the plaintiff failed to do so, and continues: "Defendant by reason of such defective service, and failure of plaintiff to remove said telephone, denies that there is now due and owing plaintiff the sum of $28 as alleged in said complaint or any part thereof." Appellant insists in his brief and argument that there is a general denial in his answer. There was a general denial in his original answer, but there is none in the amended answer. Unquestionably his original answer is out of the case, and he must stand upon what is in his amended answer. Nichols' Practice, p. 1047. His original answer was practically the same as the amended answer, and in view of his attempted, and I think abortive, denials, I do not think that following them up by denials "of each and every allegation not hereinbefore admitted or denied," would aid him materially; but on the whole his original answer was, I think, better than his amended answer. The question remains as to whether an issue was raised by the amended answer recapitulated above. We have here the case of a contract for telephone service, alleged on the one side and admitted on the other. The defendant alleges by way of defense that "the service was defective and of no value." It seems to me that that is not a statement of any fact, but is a conclusion of law only. It should have been followed up by the words "in that," followed by a specification of facts which defendant claims made the service "defective and of no value." The case is quite similar to that of Hoffman v. Richter, 7 Misc. Rep. 438, 27 N. Y. Supp. 935, wherein it was alleged: "That defendant had failed to carry out his agreement, in that he had furnished plaintiff with only one-half of the neckties for manufacture," etc. I think we might read into this defendant's answer an allegation (which it certainly does not contain) that the contract of the plaintiff provided for a fair, reasonable, prompt, or faithful service, or something to that effect. Marie v. Garrison, 83 N. Y. 23. But I do not think that we can also read into it a statement of the facts construing a breach of that contract. It is undoubtedly true that much latitude is allowed in pleading in justice's court, and that the rules governing justice's court are applicable to the procedure in the City Court of Utica. Section 2940 of the Civil Code provides that a pleading is not required to be in any particular form, but must be so expressed as to enable a person of common understanding to know what is meant. I do not see how the plaintiff, whether of common understanding or of uncommon understanding, could ascertain from the answer interposed in this case what it was charged with. The rules governing pleading in justice's court are very clearly stated in Wait's Law and Practice (7th Ed.) vol. 3, p. 258: "A party framing an answer or complaint must allege some act or thing which the other has done or has omitted to do, in consequence of which there is a cause of action on the one hand or a ground of defense upon the other. The rules of pleading exclude the allegation of those facts or matters of evidence which go to prove that the other party has done or omitted to do the alleged acts or things, and also exclude an allegation of the legal conclusion which follows or results from the doing or the omission of the acts or things mentioned. The statute requires a statement of facts." Applying the above principles to the fourth paragraph of the answer in question, it seems to me that the words "defective and of no value" are conclusions of law simply and only. "An averment of a conclusion of law is in general invalid. It raises no issue, does not prevent judgment being rendered on the pleadings, need not be denied, and is not admitted by demurrer." Bates, Pleading, Practice, Parties and Forms, 254. Defendant should have alleged wherein the service was "defective." An allegation that a party "wrongfully" detains an article is a legal conclusion. Facts should be pleaded from which this conclusion may be deduced. Scofield v. Whitelegge, 49 N. Y. 259. A complaint for negligence must state the particular act or omission which constitutes that negligence. Evers v. Ostheimer, 37 Misc. Rep. 163, 74 N. Y. Supp. 872. "Wrongful and unlawful" are conclusions from other facts stated. Rector of St. James Church v. Huntington, 82 Hun, 138, 31 N. Y. Supp. 100. The remaining statement in the fourth paragraph, that "defendant could not use the same," is equally bad. For all that appears it may have been because he was deaf and dumb. He does not say why. If it was because the service was "defective," as per his previous allegation, he has not said wherein. The following denial in the seventh clause, of an indebtedness, is too clearly insufficient to need any consideration, A motion such as plaintiff made is in effect a demurrer to the answer. Quinlan v. Fairchild, 76 Hun, 314, 27 N. Y. Supp. 689. I think no error was made in granting the motion for judgment on the pleadings, and the judgment must therefore be affirmed, with costs. Judgment affirmed, with costs. SHORWITZ v. CAMINEZ. (Supreme Court, Appellate Division, Second Department. October 4, 1912.) 1. EXECUTION (§ 417*)—SUPPLEMENTARY PROCEEDINGS-CONTEMPT. A judgment debtor in supplementary proceedings, who submits to an examination, but who gives evasive answers, may not be adjudged guilty of contempt, under Code Civ. Proc. § 2457, authorizing punishment for contempt for refusal to obey any direction of the judge in supplementary proceedings, where the judgment creditor made no objection to the answers, and did not request the court to direct the judgment debtor to make more specific answers. [Ed. Note. For other cases, see Execution, Cent. Dig. §§ 1646-1651; Dec. Dig. 417.*] 2. EXECUTION (§ 417*)—SUPPLEMENTARY PROCEEDINGS CONTEMPT. Where the examination of a judgment debtor in supplementary proceedings showed that some of his answers were evasive, and that the questions not answered related to matters not necessarily within his knowledge, or were immaterial, his conduct was not a civil contempt, punishable under Judiciary Law (Consol. Laws 1909, c. 30) § 753, subd 8, authorizing punishment for contempt where any proceeding to punish for contempt has been usually adopted to enforce a civil remedy. [Ed. Note. For other cases, see Execution, Cent. Dig. §§ 1646-1651; Dec. Dig. 417.*] 3. EXECUTION (§ 417*) — SUPPLEMENTARY PROCEEDINGS CONSTITUTING. CONTEMPT ACTS A contempt proceeding must be based on a violation of a clear mandate of the court, and, before a judgment creditor in supplementary proceedings resorts to a proceeding to punish the judgment debtor for contempt, he should indicate his dissatisfaction with the answers of the judgment debtor, and attempt to obtain more specific answers, and he may not apparently acquiesce in the answers, and subsequently make their form the basis of an application for punishment for contempt. [Ed. Note. For other cases, see Execution, Cent. Dig. §§ 1646-1651; Dec. Dig. 417.*] Appeal from Kings County Court. Supplementary proceedings by Joseph Shorwitz, judgment creditor, against Jacob Caminez, judgment debtor. From an order adjudging the judgment debtor guilty of contempt of court, he appeals. Reversed. Argued before HIRSCHBERG, BURR, THOMAS, WOODWARD, and RICH, JJ. Otto A. Samuels and Joseph I. Stahl, both of New York City, for appellant. Max H. Newman, of Brooklyn, for respondent. BURR, J. On January 9, 1912, respondent obtained from one of the county judges of Kings county an order requiring appellant to appear in proceedings supplementary to execution and to be examined. concerning his property. He appeared in obedience to the order, and the examination was adjourned until the next day, when he was examined at great length. The examination was then adjourned to February 29th, when he was further examined, and so far as he is •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 137 N.Y.S.-35 concerned the examination was closed, and a motion made for the appointment of a receiver, which motion was granted. [1] His examination discloses the fact that he was a reluctant witness. Some of his answers were doubtless evasive, although many of the questions, the failure to answer which constituted contempt according to the specific findings of the County Court, did not relate to matters necessarily within his knowledge, and many of them were immaterial. So far as the record discloses, no objection was made to any of the answers given by the judgment debtor, nor any request made to the court to instruct him more specifically to answer the same. We think that the order adjudging him in contempt cannot be sustained. * * "A person who refuses, or without sufficient excuse neglects, to obey an order of a judge * * made pursuant to any provision of this article, [which relates to supplementary proceedings], and duly served upon him, or an oral direction, given directly to him by a judge * in the course of the special proceedings • may be punas for a contempt." Code of Civil Procedure, § 2457. * * ished The judgment debtor did not fail to obey the order for his examination, so far as his appearance and submission to such examination were concerned. As we have before pointed out, no oral direction was sought for or obtained from the judge before whom the proceeding was pending. Of necessity, therefore, there was no failure to obey such direction. It follows that no warrant for the order complained of can be here found. Matter of East River Bank v. De Lacy, 37 Misc. Rep. 765, 76 N. Y. Supp. 927. See, also, Burnett v. Phalon, 11 Abb. Prac. 157, 162. [2] If it be claimed that the conduct of the judgment debtor constituted a civil contempt, punishable under the Judiciary Law (Consol. Laws, c. 30 [Laws of 1909, c. 35] § 753, subd. 8; see Matter of Becker v. Gerlich, 72 Misc. Rep. 159, 129 N. Y. Supp. 614), we do not think that the evidence here discloses such persistent denial of matters palpably within the knowledge of the judgment debtor as would justify the order appealed from. [3] Before resorting to the drastic remedy of a proceeding to punish for contempt, the judgment creditor should in some manner have indicated his dissatisfaction with the answers given and attempted to obtain more specific statements. He should not be allowed by apparent acquiescence in the form thereof to leave the judgment debtor to suppose that the answers were satisfactory to him, and subsequently make the form of such answers the basis of an application of such a character. "Contempt proceedings must be based upon the violation of a clear and precise mandate of the court. 'As punishment for contempt involves, or may involve, not only loss of property, but liberty, it is a reasonable requirement that the mandate alleged to be violated should be clearly expressed, and when applied to the act complained of it should appear with reasonable certainty that it had been violated.'" Ziegfeld v. Norworth, 148 App. Div. 185, 133 N. Y. Supp. 208. The order of the County Court of Kings County should be reversed, with $10 costs and disbursements, and the motion denied. All concur. WILSON V. ROSENTHAL, (Supreme Court, Appellate Division, Second Department. October 4, 1912.) Action by William S. Wilson against Samuel Rosenthal. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed. Argued before HIRSCHBERG, BURR, THOMAS, WOODWARD, and RICH, JJ. David Goldstein, of New York City, for appellant. PER CURIAM. Judgment and order affirmed, with costs. BURR, THOMAS, and RICH, JJ., concur. WOODWARD, J., reads for reversal, with whom HIRSCHBERG, J., concurs. WOODWARD, J. (dissenting). This action was brought to recover $400 rent for the last four months of a lease of premises used as a saloon, or place for the sale of liquors, in the village of Sag Harbor, and $100 damages to the property. The defense is surrender by the defendant of the premises for that part of the term, and acceptance thereof by the plaintiff. Defendant counterclaims also for $150.50 for alleged failure of the plaintiff to repair and deliver possession of the property, as required by the terms of the lease. The jury found for the plaintiff in the sum of $400, and the defendant appeals from the judgment upon the verdict, and from the order denying his motion for a new trial. The lease was for two years, beginning October 1, 1909, at $1,200 a year, in monthly installments of $100, payable in advance on the 1st day of each month. The defendant occupied the premises and paid the rent up to May 31, 1911, when he vacated the same, sent the key to the plaintiff, and claims a surrender as of that time. Whether what was said and done, or omitted, in relation thereto, amounts to a surrender and acceptance of the premises, is the controlling question. The law upon the subject is well settled: "A surrender is the yielding up the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties. It is either in express words, by which the lessee manifests his intention of yielding up his interest in the premises, or by operation of law, when the parties without express surrender do some act which implies that they have both agreed to consider the surrender as made." Beall v. White, 94 U. S. 382, 389, 24 L. Ed. 173; Levitt v. Zindler, 136 App. Div. 695, 696, 121 N. Y. Supp. 483, 484. "It is so well settled," says the Court of Appeals, "as to be almost axiomatic that a surrender of premises is created by operation of law when the parties to a lease do some act so inconsistent with the subsisting relation of landlord and tenant as to imply that they have both agreed to consider the surrender as made." Gray v. Kaufman Dairy & I. C. Co., 162 N. Y. 388, 394, 56 N. E. 903, 904 (49 L. R. A. 580, 76 Am. St. Rep. 327). A surrender, therefore, may be effected by express words, sometimes called an express surrender or a surrender in fact, or by acts of the parties, so inconsistent with the relation of landlord and ten |