Action by Abraham Cohen against Samuel Sobel and another. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.

See, also, 62 Misc. Rep. 306, 114 N. Y. Supp. 774.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

Morris & Samuel Meyers, of New York City (Morris Meyers, of New York City, of counsel), for appellant.

Edward Cahn, of New York City, for respondents.

BIJUR, J. This action is brought to recover $100, the value of goods which defendants had obtained in the following manner: Plaintiff having caused the sheriff to levy on the goods of a corporation (the Block Company), defendants delivered to the sheriff a claim that said goods belonged to them, and in such claim they alleged that they were "the owners of and entitled to the immediate possession of the goods claimed." Relying upon the truth of this statement, plaintiff directed the sheriff to deliver the goods to the defendants. If the statement of defendants in the claim was false, then plaintiff has shown in this action sufficient ground for a recovery against defendants in fraud and deceit.

In order to prove the falsity of defendants' statement in the claim, and presumably, also, defendants' knowledge that the same was false, plaintiff undertook to show by witnesses the entire proceedings in an action which defendants brought against Block (the president of the Block Company) in respect of these very goods; their claim in such action being that the goods were delivered by the plaintiffs therein, the defendants here, to Block, not on memorandum, but pursuant to an absolute sale on 60 days' credit.

The learned trial judge seems to have been of opinion that the evidence offered in regard to the other suit constituted an attempt in some way to use the other suit as res judicata. Both his rulings during the trial and his opinion at the close thereof indicate that his exclusion of that evidence was on theories relating to the subject of res judicata, namely, that the action was between other parties and involved other issues than the case at bar. In this, however, I think that he was in error, which is best illustrated by his refusal to permit a witness to testify to statements made by one of the present defendants in the course of testimony given by him in the suit against Block. These statements, constituting, on the issues of the present case, admissions against interest, were plainly competent and material in any aspect of the case.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

WOOSTER v. NIVEN CO.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) TRIAL (§ 252*)-INSTRUCTIONS-APPLICABILITY TO EVIDENCE-CONTRACTS.

In an action for damages for breach of a contract of employment of plaintiff to act as a foreman cutter "in a good and workmanlike manner, satisfactory" to defendant, an instruction to find for plaintiff, if defendant's claim of dissatisfaction was not made in good faith, was erroneous, where there was no evidence that the claim of dissatisfaction was not made in good faith.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. 252.*]

Appeal from City Court of New York, Trial Term.

Action by Albert Wooster against the Niven Company. From a judgment of the City Court, entered upon the verdict of the jury in favor of plaintiff, and from an order denying defendant's motion for a new trial, defendant appeals. Reversed, and new trial ordered Argued October term, 1912, before SEABURY, GUY, and BI-' JUR, JJ.

Lloyd & Maddox, of New York City (William S. Maddox, of New York City, of counsel), for appellant.

Joseph S. Rosalsky, of New York City (Jacob I. Berman, of New York City, of counsel), for respondent.

SEABURY, J. This action was brought to recover damages for the alleged breach of a contract of employment. The contract of employment disclosed that the plaintiff agreed to perform his duties as a foreman cutter "in a good and workmanlike manner, satisfactory" to the defendant. The learned court below submitted to the jury the issue as to whether the defendant was, in fact, dissatisfied with the plaintiff's services, and discharged him on that account, or whether the claim of dissatisfaction was only a pretense. We are not prepared to say that, under certain circumstances, such a charge would not be a correct instruction to the jury; but it is clear that the record now before us contains no evidence to show that the claim of dissatisfaction was not made in good faith. In the absence of such evidence, we think that the court erred in charging the jury that, if the claim of dissatisfaction was not made in good faith, the jury should find a verdict for the plaintiff. The jury could not, in the absence of any evidence on the subject, arbitrarily infer that the defendant, in discharging the plaintiff, acted in bad faith. Yet this is precisely what the jury have attempted to do in this case.

The judgment is reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

SPANNHAKE v. MOUNTAIN CONST. CO. et al.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) MECHANICS' LIENS (§ 36*)-RIGHT OF ARCHITECT.

An architect was not entitled to a mechanic's lien for his services in drawing plans and specifications separate from his work of supervision. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. § 41; Dec. Dig. § 36.*]

Appeal from City Court of New York, Trial Term.

Action by Otto L. Spannhake against the Mounain Construction Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

Henry Kuntz, of New York City (Abraham P. Wilkes, of New York City, of counsel), for appellants.

Mark Goldberg, of New York City (L. B. Boudin, of New York City, of counsel), for respondent.

SEABURY, J. This action is brought to foreclose a mechanic's lien filed by plaintiff for services performed as an architect. The labor which the lien specified that the plaintiff did consisted in "drawing plans and specifications for new apartment houses, measuring and laying out work." The lien claimed $675 to be due the plaintiff; and $580 of this sum the plaintiff claimed to be due for the preparation of the plans and specifications, and $95 for visits which he made to the premises and for supervision which he claims to have exercised.

The learned court below rendered judgment for the plaintiff upon the ground that services rendered in drawing plans and specifications, even though separate and distinct from the work of supervision, were within the contemplation of the mechanic's lien law. This view seems to be contrary to Rinn v. Electric Power Co., 3 App. Div. 305, 38 N. Y. Supp. 345, and Thompson-Starrett Co. v. Brooklyn Heights Railroad Co., 111 App. Div. 358, 98 N. Y. Supp. 128, which seem to us to be controlling upon the question presented. The case of Stryker v. Cassidy, 76 N. Y. 50, 32 Am. Rep. 262, deals with another subject, and is not pertinent to the question presented for decision.

It follows that the judgment should be reduced, by deducting therefrom the sum of $580, and, as reduced, affirmed, with costs to the appellant. All concur.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

JENNER v. SHOPE.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) APPEAL AND ERROR (§ 1194*)—DECISION ON APPEAL-RETRIAL-QUESTIONS CONCLUDED.

Where the majority opinion of the Court of Appeals declared that, in answer to the suggestion that the evidence was insufficient to show that decedent had no partner, it might be admitted that the evidence was not strong, but was sufficient to place the onus on the administratrix to show that decedent had had a partner, if such were the case, since that was a fact presumptively within her knowledge, the issue whether decedent had a partner was adjudicated, and was res judicata in a subsequent action between the same parties.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 46484656, 4660; Dec. Dig. § 1194.*]

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by Annie Jenner, administratrix of William J. Jenner, deceased, against Julian B. Shope. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

See, also, 140 App. Div. 936, 126 N. Y. Supp. 1133.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

Joseph M. Gazzam, of New York City, for appellant.
Howard Hasbrouck, of New York City, for respondent.

SEABURY, J. The only question presented for determination in this case is whether the judgment recovered in Jenner v. Shope, 205 N. Y. 66, 98 N. E. 325, is res judicata in this action. Whether it is to be so considered depends upon whether it was determined in that action that Jenner & Co. consisted only of William J. Jenner. We think that this issue was adjudicated in the former action, and that the prevailing opinion in the Court of Appeals shows that this issue was necessarily involved. It is true that Judge Haight dissented in that case, on the ground that there was no evidence that William J. Jenner, in his lifetime, ever had a partner. The opinion of the majority of the court held that the evidence on this point, while weak, was sufficient. Thus Judge Cullen said:

"In answer to the suggestion that the evidence is insufficient to show that the deceased, Jenner, had no partner, it may be admitted that the evidence of the plaintiff's attorney, sworn as a witness on her behalf, is not strong; but it was sufficient to place the onus upon the plaintiff of showing that he had had a partner, if such were the case, for that was a fact presumptively within her knowledge."

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

FINCK v. CARLSON.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) BROKERS (49*)-COMPENSATION-SUFFICIENCY OF SERVICES.

A broker, authorized to procure an acceptance of an application for a loan at 42 per cent. for five years, was not entitled to compensation on procuring an acceptance on condition of the production of an appraisal at a certain value, and approval of title by a title company and by the lender, and that the attorneys of the lender receive three-fourths of 1 per cent. fees and out disbursements, in the absence of defendant's consent thereto, since such conditions were materially different from defendant's terms; the fact that other reasons may have actuated the defendant in rejecting the loan being immaterial.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 70-72; Dec. Dig. § 49.*]

Appeal from City Court of New York, Trial Term.

Action by John Finck against Francis A. Carlson. From a judgment of the City Court in favor of plaintiff, entered upon the verdict of the jury, defendant appeals. Reversed, and new trial ordered.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

Elfers & Abberley, of New York City, for appellant.

Charles L. Hoffman, of New York City (Henry A. Friedman, of New York City, of counsel), for respondent.

SEABURY, J. This is an action by a broker to recover commissions alleged to have been earned in procuring an acceptance of the defendant's application for a loan of $160,000 at 42 per cent. Adopting the most favorable inferences that may be drawn from the testimony on behalf of the plaintiff, it appears that the defendant authorized the plaintiff to procure an acceptance of the defendant's application for a loan of $160,000 at 412 per cent. for five years. The only authorized acceptance is contained in a letter which provides as follows:

"On behalf of our client, Trustees of Columbia College in the City of New York, we accept your application for a loan for five years at 4% per cent, on premises southeast corner of 151st street and Broadway. Bond of Francis W. Carlson on the following terms: That Brown or Ely's appraisal be produced, showing a value of said premises of $240,000 or over. That the title to said premises be approved by a title company, and also to be satisfactory to us. That we receive for our fees three-fourths of 1 per cent. and out disbursements. We also agree to take the loan by assignment, if the present mortgage is tax paid. Title to close on or before June 1, 1911. Kindly ac knowledge receipt of this acceptance."

It is evident that this acceptance of defendant's application for the loan was conditional, and that the conditions specified in it were material. The record fails to disclose that the defendant had agreed to the conditions contained in the acceptance. In order to recover, the plaintiff was required to prove that he procured a person ready, willing, and able to make the loan upon the defend

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes