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(184 N.Y.S.) tained, with leave to serve an amended answer on terms, which right defendant did not exercise, he had no right under Code Civ. Proc. $ 542, and within such 20 days, to serve an amended answer as of course, as the right to plead as of course is the right to plead when the case is in the course of pleading, and as the judgment on the demurrer was final, except as leave was given to amend. Action by Louis Heubschman against Julius G. Kugelman and another. On motion by defendants to compel acceptance of service of an amended answer. Motion denied.

Robert T. Oliver, of New York City (William N. Cohen, of New York City, of counsel), for the motion.

Nathaniel A. Elsberg, of New York City, opposed.

TIERNEY, J. The defendants served an answer containing denials and separate defenses to the several causes of action. The plaintiff demurred to the sufficiency of the separate defenses. The issues of law were brought to trial as contested motions, and the demurrer sustained. Leave was given to serve an amended answer on terms, which the defendants have not availed of. All of this occurred within 20 days after the service of the answer. Within the 20 days the defendants served an amended answer, which differed from the original answer only in a restatement in different form of the separate defenses. The defendants claim the right to serve this amended answer as a matter of right under section 542 of the Code of Civil Procedure.

[1] The decision of the issue of law was a judgment upon that part of the controversy-final, except as leave was given to amend. Pleadings are steps in a litigation preliminary to judgment. The right to amend as of course must be exercised within the period when the case is in the course of pleading. When that stage is passed, and the case has gone to judgment, it is too late to exercise any right to amend. The right to amendment given by the Code must be exercised within the proper season for an amendment, or it is waived. If not expressly so provided, it is a matter of necessary implication from the nature of the case.

[2] If the defendants had desired to amend their answer before there was a trial of the issue of law and a judgment thereon, they should have had the trial postponed until they had exercised the right. Instead, they went to trial on the pleadings as they stood, and must abide the result. It is contrary to reason to suppose that a case may proceed to trial and judgment, and then all proceedings be supersedes by an amendment of the pleadings as a matter of right. The defend ants cannot as a matter of right serve an amendment of the separat defenses. That part of their answer has been litigated. The othe part of their answer, consisting of denials, they do not seek to ament nor is the second answer different in this respect from the forme answer, and it is not an amendment.

The plaintiff was justified in refusing to accept service of the si called amended answer, which was served without right, and the mi tion to compel him to accept service thereof is denied. Motion denied.

184 N.Y.S.-4

(112 Misc. Rep. 240)

BIRNBAUM et al. v. STEIN.

(Supreme Court, Special Term for Trials, Bronx County. June 1, 1920.) Evidence Sans 442 (1)-Receipt for payment on land contract held not to pur

port to embody all terms.

An instrument which purported on its face to be a receipt for payment for the conveyance of land on certain terms, but which recited that an additional payment was to be made on closing the contract the following day, indicates that the parties did not regard the instrument as embracing everything to be included in the contract, so that parol evidence was admissible to show that the parties did not reach an agreement on other terms to the proposed contract.

Action by Charles Birnbaum and another against Wolf Stein. Judgment directed for defendant on the merits.

Philip S. Glickman, of New York City, for plaintiffs.
Samuel Cohen, of New York City, for defendant.

GIEGERICH, J. The action is to compel the defendant to convey real estate which the plaintiffs claim he contracted to sell to them. The paper which was signed by the parties is as follows:

"January 9, 1920. Received from Charles Birnbaum, of 1087 Simpson street, and Sigmund Bendet, of 1076 Simpson street, two hundred dollars ($200.00), as part payment for purchase of property known as 1155 Hoe avenue, Bronx, New York. Price $26,000.00. Five hundred ($500.00) dollars on closing of contract. Five thousand three hundred dollars ($5,300.00) on closing of title. Property purchased subject to a first mortgage of $12,000.00 held by title company; interest at 572%; second mortgage of $8,000.00 for 6 years, payable $700.00 every year, payable semiannually, interest at 6%. Contract expected to be closed January 10, 1920. Rents and interest on mortgages, rents of gas ranges, land taxes and water taxes, fire insurance, if any, to be apportioned. W. Stein. Ch. Birnbaum. S. Bendet. Witnessed by Rudolph Cowan."

The defendant claims that the paper did not include all the points discussed, but that there was a difference between them as to whether he should be allowed a lease for one year or for two years of the apartment he occupied in the building in question and that the determination of this difference should be put over until the contract should be "closed" the next day. He also claims that there was to be a provision that upon the expiration of the first mortgage then upon the property he was to be paid an additional $3,000 in cash. The plaintiffs deny that any such understanding was ever had and claim that the paper contains all the terms which were finally agreed upon between the parties and every essential term of a contract for the sale of real estate.

I am of the opinion that the form of the instrument that was signed is of such a character as to render admissible the testimony given by the defendant and his witnesses. That instrument starts out as a receipt and does not purport to be the expression of the entire agreement between the parties. On the contrary, it provides that $500 shall be paid cm For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(184 N.Y.S.) "on closing of contract” and that "contract expected to be closed January 10, 1920." All this, I think, quite clearly indicates that the parties did not regard the contract as closed in the sense of embracing everything that was to be included within it in its final form, but rather that it was left open for future incorporation of other terms and that the instrument as signed was merely the repository of such terms as they had agreed upon up to the time it was signed.

For these reasons there should be judgment for the defendant upon the merits, with costs. I have passed upon the requests for findings of the respective parties as indicated on the margins thereof. Submit for my signature upon two days' notice of presentation a decision embodying without change of language all findings made by me, with proof of service on the other side.

Judgment accordingly.

(193 App. Div. 246)

EDDY v. CITY OF BUFFALO et al. (Supreme Court, Appellate Division, Fourth Department. July 6, 1920.) 1. Monopolies 4-City can prohibit removal of garbage, except by licensee

or contractor.

A city can impose restrictions on removal of garbage, and can also assume exclusive control thereof, and require it to be removed only by officers of the city, or by a contractor hired by the city; the exclusive

right so created not being open to objection that it is a monopoly. 2. Injunction www 118 (3)-Complaint held to show garbage remover was con

tractor, not employé of plaintiff.

A complaint to enjoin a city from interfering with the removal of plaintiff's garbage by one who had contracted to remove such garbage in receptacles furnished by himself to his own farm, and to pay plaintiff for the stock food thereby obtained, shows that the person removing the garbage was an independent contractor, not an employé of plaintiff, so that performance of the contract could be prohibited by the city, whether or not it had power to prohibit an owner from removing his own garbage.

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Appeal from Special Term, Erie County.

Action for injunction by Edward H. Eddy, who sues on behalf of himself and all other restaurant and hotel operators in the city of Buffalo, N. Y., similarly situated, against the City of Buffalo and oth ers. From an interlocutory judgment sustaining a demurrer to thcomplaint, plaintiff appeals. Affirmed.

Argued before KRUSE, P. J., and LAMBERT, DE ANGELIS
HUBBS, and CLARK, JJ.
William Brennan, Jr., of Buffalo, for appellant.

William S. Rann, of Buffalo (Ralph K. Robertson, of Buffalo, counsel), for respondents.

HUBBS, J. This is an appeal from an interlocutory judgment su taining a demurrer to the complaint. The plaintiff keeps a restaura in the city of Buffalo. He entered into a contract with a third par to collect his garbage, to furnish receptacles, to clean the same, to turn the silver and table ware found in the receptacles, and to pay

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Inde

the plaintiff $3 a month for the stock food taken away in the receptacles. The plaintiff demands an injunction against the city to prevent it from enforcing a city ordinance regulating the collection and transportation of garbage.

[1] The sole question here is whether or not the complaint, excluding conclusions of law, states a cause of action. In the case of City of Rochester v. Gutberlett, 211 N. Y. 309, 105 N. E. 548, L. R. A. 1915D, 209, Ann. Cas. 1915C, 483, an action was brought by the city for an injunction against the defendant to restrain him from violating an ordinance which forbade the collection of garbage in the city of Rochester by any one not having a contract with the city to do such work. In that case there was a trial, findings were made by the Special Term, and an injunction was granted. This court affirmed the judgment of the Special Term (151 App. Div. 900, 135 N. Y. Supp. 1104), and the judgment of this court was affirmed by the Court of Appeals. It was held in the Court of Appeals that it is within the power of a municipality, not only to impose reasonable restrictions and regulations upon the manner of removing garbage, but also, if it seems fit, to assume exclusive control of the subject, and to provide that garbage and refuse matter shall only be removed by the officers of the city, or by a contractor hired by the city, or by some single individual to whom an exclusive license is granted for the purpose.

[2] An exclusive right so created is not open to the objection that it is a monopoly. In his opinion in that case Judge Chase said:

"It will be observed that there is nothing in the ordinance now under consideration to prevent the owner of a restaurant or hotel from removing the garbage, bones, and kitchen refuse on his property to a place where it will not be a nuisance to the public health, there to be fed to hogs or otherwise disposed of in such manner as to such owner may seem desirable."

The plaintiff in this action seeks to bring himself within the statement made by Judge Chase, assuming that, if he does so, the ordinance of the city of Buffalo would not be valid as against him. He argues that from the statement above quoted the Court of Appeals intended it to be understood that, if the facts were as stated in such quotation, the plaintiff in that case could not succeed. The Court of Appeals, however, does not hold any such proposition, and I am of the opinion that, even though the plaintiff in this action came within the fair meaning of the clause quoted above, still he could not succeed in this action. I think the power of the state to regulate the collection of garbage in cities is broad enough to prevent the owner from drawing his own garbage through the city streets in violation of an ordinance.

[3] However, it is not necessary to decide that proposition in disposing of this case, for it appears clearly, from an analysis of the complaint in this action, that the plaintiff comes squarely within the decision of the Court of Appeals in the case cited, and not within that part of the opinion above quoted, which the plaintiff seeks to demonstrate is an exception to the holding of the court. The contract between the plaintiff and the person collecting his garbage shows upon its face that the collector of the garbage is an independent contractor, the same as the defendant in the Rochester Case. The contract provides that the collector was:

(184 N.Y.S.) (1) To furnish, without expense to the plaintiff, water-tight galvanized iron receptacles.

(2) To clean and sterilize the receptacles on his farm.

(3) To perform the labor of placing the receptacles in the plaintiff's building, and to remove them, with the contents, without annoyance and at times convenient for the plaintiff.

(4) To transport the same from the restaurant to his own farm.

(5) To sort the garbage, and to return to the plaintiff silver ware and table ware.

(6) To pay the plaintiff the sum of $3 a month for the stock food received.

The plaintiff argues that this contract makes the farmer, who collects the garbage under the contract, an employé of the plaintiff, and therefore that the Rochester Case is not applicable. It is very clear that the farmer is, in fact, a contractor, who is buying and collecting the garbage for his own purposes, and that he is in no sense an employé of the plaintiff, and we are bound by the decision in the Rochester Case.

Section 153 of chapter 25 of the ordinances in force in the city of Buffalo reads as follows:

"No person shall remove or cause to be removed any of the contents of any garbage receptacle placed in or outside of a building for collection, nor shall any person collect or perform the duties of a collector of garbage, food refuse or kitchen refuse, without a license from the board of health, approved by the council, and no such license shall be issued to any person while the city of "Buffalo, through the department of public works or through a contractor, is collecting such garbage, food refuse and kitchen refuse in the city, and no person except such a licensee or the employés or contractor designated by the department of public works shall convey, carry or transport any garbage, food refuse or kitchen refuse through, over or along any of the streets of the city of Buffalo. Any person violating any of the provisions of this section shall forfeit and pay a penalty or fine of not more than two hundred and fifty dollars for each and every offense."

This ordinance was adopted on September 12, 1919.

Under the wording of such ordinance, the plaintiff cannot succeed if the ordinance in question is valid, and the Rochester Case clearly holds that it is valid, at least as against a contractor. If it is not valid as against a restaurant keeper, who transports his kitchen garbage through the public streets himself or by his employés, still the plaintiff is not in a position to raise that question, as the one who transports the garbage in the case at bar is not an employé, but a contractor. Interlocutory judgment affirmed, with costs.

Interlocutory judgment affirmed with costs, with leave for the plaintiff to plead over within 20 days upon payment of the costs of the demurrer and of this appeal. All concur.

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