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failed to sustain the burden of proof cast upon him to show that the accident occurred as claimed by him, and there should be a new trial.

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

ROSEN V. WERLE.

(Supreme Court, Appellate Term, First Department. May 5, 1915.) 1. Costs 232—MUNICIPAL COURT-DISMISSAL OF APPEAL.

Where defendant, who had appealed from a default judgment against him in the Municipal Court, thereafter complied with the condition re quired by that court and had the judgment vacated, and his appeal was dismissed, plaintiff did not thereby become entitled to the costs deposited by defendant on taking the appeal, as required by Municipal Court Act (Laws 1902, c. 580) $ 311.

[Ed. Note.-For other cases, see Costs, Cent. Dig. 88 877-883; Dec.

Dig. Om 232.) 2. COURTS 190 — MUNICIPAL COURTS APPEALABLE ORDER - COSTS DE

POSITED ON FORMER APPEAL.

An order of the Municipal Court, directing payment to plaintiff of costs deposited by defendant on appeal from a default judgment which was thereafter vacated, is not appealable.

[Ed. Note.-For other cases, see Courts, Dec. Dig. 190; Appeal and Error, Cent. Dig. § 103.)

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

Action by Samuel Rosen against John Werle, doing business under the firm name and style of the Century Storage Warehouse. From an order directing the clerk of the Municipal Court to pay to plaintiff's attorney the costs deposited by defendant on an appeal from a judgment subsequently vacated, defendant appeals. Appeal dismissed.

Argued March term, 1915, before LEHMAN, HENDRICK, and COHALAN, JJ.

Abraham Harris, of New York City, for appellant.
Harry Rittenberg, of New York City, for respondent.

COHALAN, J. Judgment was taken against the defendant herein by default. He moved to open the default

, and an order was made granting the motion, upon condition that he give an undertaking to secure the amount of the judgment, or deposit the amount in court. The defendant failed within the time allowed to comply with these terms, and instead appealed from the judgment and the order entered thereon. Upon the appeal he deposited the costs with the clerk of the court as required by section 311 of the Municipal Court Act. The defendant later moved to be allowed to comply with the terms of the order opening the default. This motion was granted, and he thereupon filed a bond, and his default was opened. The plaintiff then moved in this court to dismiss the appeal, and, there being no objection

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by the defendant, the appeal was dismissed without costs. The plaintiff thereupon made a motion in the lower court for an order directing the clerk to pay to him the costs deposited by the defendant upon taking the appeal from the judgment. This motion was granted, and from the order entered thereon this appeal has been taken.

[1] The court below had no authority to make such an order. When the defendant complied with the terms of the order, his default was opened, and the judgment was vacated. There no longer existed any reason for the appeal, and it was properly dismissed. These proceedings left the matter as though no judgment had ever been entered, or an appeal taken therefrom, and any costs deposited by the defendant under the circumstances belonged to him, and not to the plaintiff, or his attorney. Money deposited under section 311 is not only one of the requisites to perfect an appeal, but is for the purpose of reimbursing the plaintiff for the costs and disbursements, provided the judgment appealed from is affirmed, or the case on appeal is dismissed. The plaintiff does not become entitled to the costs when the judgment is vacated, and it is upon the judgment alone that the right to costs is predicated.

[2] The order herein, however, is not an appealable order; but, should the trial of the action result in a judgment for the plaintiff, the costs improperly obtained by him should be credited thereon.

Appeal dismissed, without costs. All concur.

CHURCHILL V. COYNE et al. (Supreme Court, Appellate Term, First Department. May 5, 1915.) REFERENCE On 76_FEES OF REFEREE.

Under Code Civ. Proc. § 3296, limiting the fees of a referee to $10 for each day necessarily spent in the business of reference, unless a stipulation for an amount in excess of that sum be entered into, a referee cannot recover the reasonable value of his services in the absence of a stipulation, and so must show the time necessarily spent on the matter referred.

[Ed. Note.-For other cases, see Reference, Cent. Dig. 88 109-113; Dec. Dig. Ow76.] Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Thomas W. Churchill against Thomas J. Coyne, individually and as executor of and trustee under the last will and testament of Mary Coyne, deceased, and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Argued March term, 1915, before LEHMAN, HENDRICK, and COHALAN, JJ. J. Baldwin Hand, of New York City (Richard B. Hand, of New

of , for Ernest W. Marlow, of New York City, for respondent.

HENDRICK, J. The action is brought to recover for services rendered by plaintiff as a referee appointed in an action in the Supreme For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

152 N.Y.S.-63

Court. Plaintiff framed his complaint and the case was tried on the theory that he was entitled to recover for the reasonable value of his services. This is error.

The fees of a referee in an action or special proceeding are regulated by section 3296 of the Code of Civil Procedure, and are limited to $10 for each day necessarily spent in the business of the reference, unless a stipulation in excess of that sum is entered into. The stipulation must be in writing and must fix the rate of compensation (N. Y. Mutual Savings & Loan Ass'n v. Westchester Fire Ins. Co., 98 App. Div. 285, 90 N. Y. Supp. 710), and in the absence of a stipulation, a referee is only entitled to the fee fixed by statute (Matter of Bieber, 36 Misc. Rep. 341, 73 N. Y. Supp. 552). It is incumbent upon the referee to show that the time spent on the reference was necessarily required. Finkel v. Kohn, 24 Misc. Rep. 368, 53 N. Y. Supp. 694; Matter of Piatti, 26 Misc. Rep. 434, 56 N. Y. Supp. 132.

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

MAJESTIC METAL BED CO., Inc., v. MUTUAL FURNITURE CO., Inc.

(Supreme Court, Appellate Term, First Department. May 5, 1915.) 1. COURTS Om 189—MUNICIPAL COURTS-PROCEDURE-TRAVERSE OF RETURK.

Where defendant in the Municipal Court appears specially and by affidavit traverses the return to the summons, the issue is properly set down for trial.

[Ed. Note.—For other cases, see Courts, Cent. Dig. 88 409, 412, 413, 429,

458; Dec. Dig. Omw 189.]
2. CORPORATIONS 507—PROCESS-SERVICE-REQUISITES.

Where the affidavit of the process server averred that he served the summons on H. U., the secretary of defendant corporation, and the uncontradicted evidence showed that the service was on J. U., who nerer had been an officer of the corporation, and who informed the process server of that fact, the court should sustain a traverse to the return and dismiss the action.

(Ed. Note.-For other cases, see Corporations, Cent. Dig. $$ 1971-1975, 1976-2000; Dec. Dig. 507.) Appeal from Municipal Court, Borough of Manhattan, First District.

Action by the Majestic Metal Bed Company, Incorporated, against the Mutual Furniture Company, Incorporated. From a judgment of the Municipal Court, bringing up for review an order overruling a traverse of the return after trial of issue of fact raised thereby, defendant appeals. Reversed, and complaint dismissed.

Argued March term, 1915, before LEHMAN, HENDRICK, and
COHALAN, JJ.

Herman A. Brand, of New York City, for appellant.
Jacob Neumark, of New York City, for respondent.

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COHALAN, J. [1] The process server in this case made an affidavit in which he testified that he served the summons upon Hayward Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Ulman, the "secretary" of the defendant. Upon the return day of the summons the defendant appeared specially, and filed an affidavit made by one Jack Ulman, in which he stated that he was the person served, and that he was not and never had been an officer of the defendant corporation. The issue thus raised was set down for trial for December 11, 1915, and this practice was correct. Robert & Lewis Co. v. Dale, 74 Misc. Rep. 390, 132 N. Y. Supp. 405; Phillips v. Albert, 81 Misc. Rep. 131, 142 N. Y. Supp. 325.

[2] Upon the trial no testimony whatever was offered by the plaintiff. Jack Ulman, in testifying that the process server handed him a summons in the action, said:

"I saw that it was against the company, and I told him that I was no officer of the company, and never was. I told bim my name, and he said it makes no difference."

Hayward Ulman, in addition, testified that he was the secretary of the defendant, and that he had not been served with the summons in the action. Upon this undisputed testimony the court below should have sustained the traverse and dismissed the action.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.

BERNSTEIN v. FULSON REALTY CO.

(Supreme Court, Appellate Term, First Department. May 6, 1915.) BROKERS C 52—REAL ESTATE AGENT-PROCURING PURCHASER-AGREEMENT

AS TO COMPENSATION_EFFECT.

Where a real estate broker procured a purchaser on his principal's terms, but agreed, without consideration, that his right to commissions should not accrue until the closing of the contract and the payment of the consideration by the buyer, the broker could recover commissions, irrespective of the consummation of the sale, which failed through his principal's inability to convey as contracted, since his agreement postponing his right to commissions was without consideration. [Ed. Note.--For other cases, see Brokers, Cent. Dig. § 73; Dec. Dig. 52.] ]

Appeal from City Court of New York, Trial Term.

Action by Jacob Bernstein against the Fulson Realty Company. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.

Argued April term, 1915, before GUY, BIJUR, and PENDLETON, JJ.

Paul Englander, of New York City, for appellant.
Edward Herrmann, of New York City, for respondent.

GUY, J. The action is to recover broker's commissions for procuring a purchaser of real estate. The plaintiff procured a purchaser on the defendant's terms, but on the day fixed for the signing of the contract, and before it was executed by the vendor and vendee, the

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defendant's president prepared the following paper and had it signed by the plaintiff and one Jackson:

"We hereby agree, in consideration of the making of the contract this day, between Fulson Realty Company and Progress Holding Company, and as part of the said contract, that our commissions for the sale of the premises on Tinton avenue and 150th street for the Fulson Realty Company is not to be paid until the closing of the said contract and the payment of the consideration by the Progress Holding Company."

The deed was not delivered by the vendor at the time fixed in the contract, the closing was adjourned from time to time, and the title never passed because of the inability of the vendor to convey in accordance with the terms of the agreement.

At the close of the plaintiff's case the learned trial judge dismissed the complaint, for the reason that the plaintiff failed to prove a tender by the vendee to the defendant, although the evidence showed that the vendee had made a contract with one Wartell to sell him the property in question, and that Wartell's attorney tendered the money to the defendant.

The ruling was erroneous. The plaintiff earned his commissions when he procured a purchaser ready, able, and willing to buy the property on the defendant's terms, and there was no consideration for the plaintiff's alleged subsequent promise to wait for his commissions until the closing of the contract and the payment of the consideration. Connor v. Munsees, 145 N. Y. Supp. 891; Tanenbaum v. Boehm, 202 N. Y. 293, 95 N. E. 708.

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

DEUTSCH v. CIRKER. (Supreme Court, Appellate Term, First Department. May 5, 1915.) 1. EVIDENCE 441–PAROL EVIDENCE RULE.

Where a lease contract provided for the furnishing of the demised premises by the lessor, and also referred to his duty with respect to repairs, prior oral negotiations were merged in the written instrument.

[Ed. Note.--For other cases, see Evidence, Cent. Dig. 88 1719, 1723

176:3, 1765–1845, 2030-2047; Dec. Dig. 441.) 2. LANDLORD AND TENANT Om 159-COVENANTS--ACTIONS FOR BREACH.

A lease required the demised premises to be furnished according to inventory, and the plumbing, etc., to be placed in good condition. The lessee claimed that the landlord breached his covenant. Held, that where the inventory was not produced, and there was no showing as to want of repairs, there was no basis as to an award of damages.

[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. $s

573, 608, 611; Dec. Dig. 159.) 3. LANDLORD AND TENANT Cw159-COVENANTS—RECOVERY.

Where a landlord agreed to furnish the demised premises, but failed to supply all of the furniture agreed upon, the lessee cannot recover as damages the value of the omitted furniture.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 573, 608, 611; Dec. Dig. 159.)

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