of the City of New York entered upon a directed verdict, defendant appeals. Reversed, and new trial granted.

Argued October term, 1916, before GUY, BIJUR, and SHEARN, JJ. Cushing & Cushing, of New York City (Geo. B. Holbert, of New York City, of counsel), for appellant.

Harris & Harris, of New York City (Edward W. Harris, of New York City, of counsel), for respondent.

BIJUR, J. Plaintiff sued for rent of an apartment after March, 1914. Defendant pleaded a constructive eviction. The testimony was to the effect that during the entire time of occupancy, from September, 1913, to March, 1914, the paper and decorations on the walls of the living room (parlor) and defendant's bedroom kept peeling off and becoming discolored. Serious dampness showed on the walls; indeed, they were practically wet and mold developed on the walls behind the pictures. The landlord kept constantly promising to remedy the defect and made efforts to do so, which were unavailing. There was also a lack of sufficient heat. No testimony in rebuttal was offered. The court directed a verdict not on the ground urged by the plaintiff, namely, that "retention of the premises from September, 1913, to March, 1914, precluded the defendant from maintaining the defense of constructive eviction," probably because such continued occupancy_was explained and excused by the landlord's continued promise and efforts to repair. See Marks v. Dellaglio, 56 App. Div. 299, 67 N. Y. Supp. 736; Graecen v. Barker (Sup.) 130 N. Y. Supp. 141. The court ruled, "Your (defendant's) proof in this case has not sustained the statement of facts." This statement of facts, as given by the learned court, was "that the premises became so damp and saturated with. water that the decorations rotted off and the premises were rendered unfit for habitation, unsanitary, and dangerous to defendant's health." While it is true that defendant did not adduce any medical testimony to the precise point of the injury to her health, the testimony clearly shows the premises to have been unfit for habitation in the usual sense of that term and unsanitary as a matter of common knowledge. Plaintiff should have been put to its rebuttal, and the issue of fact submitted to the jury.

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

(97 Misc. Rep. 10)

GOLDBERG v. MASSACHUSETTS BONDING & INS. CO. (Supreme Court, Appellate Term, First Department. October 25, 1916.) INSURANCE 288(1)-INSURANCE AGAINST THEFT-BREACH OF WARRANTY.

Where a policy insuring against theft contained in an annexed schedule warranty that assured had "no burglary insurance, and has made no application for such insurance," a clause in the policy itself, providing that "if assured carried other insurance the insurer should be liable only for its pro rata share of any loss," and assured had had a similar policy, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 160 N.Y.S.-69

which had been recalled by the insurer under its absolute right, there was no breach of warranty by insured, as the warranty applied only to existing insurance, or any outstanding application for it.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 660–669; Dec. Dig. 288(1).]

Appeal from City Court of New York, Trial Term.

Action by David Goldberg against the Massachusetts Bonding & Insurance Company. From a judgment for defendant, plaintiff appeals. Judgment reversed, and new trial granted.

Argued October term, 1916, before GUY, BIJUR, and SHEARN, JJ.

Goldstein & Goldstein, of New York City (David Goldstein, of New York City, of counsel), for appellant.

Joseph L. Prager, of New York City, for respondent.

BIJUR, J. The action was brought for a loss by theft covered by a policy of insurance issued by the defendant. The verdict was directed on the ground that it appeared affirmatively that plaintiff had breached a warranty contained in the policy.

The only question involved on this appeal is the interpretation of the warranty. This warranty is contained in a "schedule" annexed to the policy, which schedule is a series of questions with the answers of the insured. The warranty reads:

"10. The assured has no burglary insurance, and has made no application for such insurance except as follows: None."

It developed on the trial that the assured had had a similar policy from another company, issued in March, 1913, which was recalled by the insurer (under its absolute right under the terms of the policy) on April 29, 1913. The policy in suit was issued June 14, 1913.

The error in respondent's contention consists in a failure to recognize the terms of the warranty.

In point 1 the respondent's counsel says:

"It being undisputed that plaintiff had made a previous application for insurance, it was clear that there was a breach of warranty." And further: "If the warranty here merely read that the assured had no other prior insurance, there might be some merit to the appellant's claim; but the warranty also stated that the assured had made no application for such insurance."

The terms of the warranty, however, do not expressly nor impliedly relate to prior insurance.

any out

It seems quite plain to me that the inquiry was directed to ascertain whether the assured had any other existing insurance or had standing application for such. This meaning was emphasized by a clause in the policy itself which provides:

"7. If the assured carry other insurance liable only for its pro rata share of any such loss."

the company shall be

In another connection, the respondent, in order to emphasize the claimed importance of this warranty, speaks of the "moral risk which the insurance companies have to consider and weigh." But it is plain

that this inquiry is not directed to the moral risk, and respondent's counsel accentuates that consideration by citing Wolowitch v. National Ins. Co., 152 App. Div. 14, 136 N. Y. Supp. 793, in which, as he says: "The assured warranted that he had never been refused burglary insurance and had applied for none other than the policy in suit."

No inquiry like that indicated in the Wolowitch Case is contained in the warranty in the case at bar.

It does not require the application of the well-established principle (recognized in Rosenthal v. Am. Bonding Co., 207 N. Y. 162, 168, 169, 100 N. E. 716, 46 L. R. A. [N. S.] 561) that, the policy having been drawn by the defendant-respondent, its terms must be strictly construed as against it, to compel the inference that the terms of this warranty could not reasonably have been expected to suggest to the insured an inquiry as to prior, insurance obtained by him which had either expired or been canceled or as to the applications therefor; and, indeed, its terms do not refer to such a contingency.

There having been, therefore, no breach of the warranty, as matter of law, the judgment must be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

(97 Misc. Rep. 1)

COHEN v. ERIE R. CO.

(Supreme Court, Appellate Term, First Department. October 25, 1916.) 1. CARRIERS 356(1)-EXPULSION OF PASSENGERS-FAILURE TO RETURN TICKET.

Where the regulations of a railroad required passengers holding excursion tickets to surrender the entire ticket to the conductor, such company was responsible for a conductor's neglect to return to a passenger the part of the ticket entitling him to the return trip, and was liable when the passenger was put off on the return trip by a second conductor, to whom he tendered the portion of the ticket returned him by the first. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1409, 1410, 1423, 1426; Dec. Dig. 356(1).]

2. CARRIERS 383-EXPULSION OF PASSENGERS-CONTRIBUTORY NEGLIGENCE. A passenger, who did not look at his round-trip ticket after he purchased it and before he gave it to the first conductor, and paid no attention to the part given back to him, and did not know that he had the wrong part until the back-trip conductor called his attention to the fact, was not guilty of contributory negligence as matter of law.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1492-1496; Dec. Dig. 383.]

Appeal from City Court of New York, Trial Term.

Action by Harry Cohen against the Erie Railroad Company. From a judgment dismissing the complaint, plaintiff appeals. Judgment reversed, and new trial ordered.

Argued October term, 1916,

SHEARN, JJ.

1916, before GUY,

BIJUR, and

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

Kogan & Goldstein, of New York City (Samuel S. Kogan, of New York City, of counsel), for appellant.

Stetson, Jennings & Russell, of New York City (W. C. Cannon and R. L. von Bernuth, both of New York City, of counsel), for respond

ent.

GUY, J. On May 29, 1915, the plaintiff at the Chambers street ferry in this city bought a round-trip ticket on defendant's railroad to Port Jervis and back from Port Jervis to New York. On the part of the ticket which entitled plaintiff to passage to Port Jervis was printed, "Not good if detached from ticket bearing signature.” The signature was on the part calling for transportation from Port Jervis to New York, and on both parts it appeared that they could be used on or before October 31st of the year in which sold. After the plaintiff boarded the train for Port Jervis, he handed the roundtrip ticket to the conductor, and the latter tore off part of the ticket, and returned the other part to the plaintiff, who put it in his vest pocket. On the following day, the plaintiff took the first train from Port Jervis to New York, and, when the conductor of that train (whom I will refer to as the second conductor) demanded a ticket, plaintiff took from his vest pocket the ticket which had been given him by the first conductor and handed it to the second conductor. He, however, called plaintiff's attention to the fact that the ticket produced was for passage from New York to Port Jervis, said it was no good on the return trip, and, as plaintiff had no cash to pay for another ticket, the second conductor compelled him to get off the train at the next station, from which plaintiff testified he had to travel about eight miles through the woods before he could procure the necessary money to buy a ticket for New York. The action was to recover damages resulting from the negligence of defendant's conductor in retaining the wrong part of plaintiff's round-trip ticket on plaintiff's journey to Port Jervis, and at the close of plaintiff's case the court dismissed the complaint.

[1, 2] The ruling presents reversible error. The regulations of the defendant requiring passengers holding excursion tickets to surrender to its conductor the entire ticket, it is clear that the company is responsible for the neglect of the conductor to return to the passenger that part of the ticket entitling him to the return trip. The plaintiff testified he did not look at the ticket after he purchased it and before he gave it to the conductor, and that he paid no attention to the part given back to him by the first conductor, and that he did not know he had the wrong part of the ticket until the second conductor called it to his attention on May 30th; and on these facts it is claimed plaintiff was guilty of contributory negligence as matter of law. We cannot agree with this contention. It seems to us that plaintiff had a right to assume that defendant's conductor would use reasonable care in performing his duties, and, regarding these facts in the light most favorable to defendant, they at most require the submission of the question of contributory negligence to the jury.

This case is manifestly different from Elmore v. Sands, 54 N. Y.

512, 13 Am. Rep. 617, relied upon by defendant, in which the passenger purchased a ticket upon which was stamped, "Good this date only," and it was held that after retaining the ticket for several days before using it he could not complain because he was put off the train. In that case, by the terms of the contract the passenger was not entitled to transportation on the day he boarded the train and presented his ticket; while here the plaintiff's contract entitled him. to a return trip, and he would have made that trip and been spared the annoyance and humiliation to which he was subjected were it not for the negligence of the first conductor. Townsend v. N. Y. Central & H. R. R. Co., 56 N. Y. 295, 15 Am. Rep. 419.

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

(174 App. Div. 205)

In re BERKELEY.

(Supreme Court, Appellate Division, First Department. October 20, 1916.) 1. ATTORNEY AND CLIENT 45-DISBARMENT-PROFESSIONAL MISCONDUCT. In a proceeding for disbarment, it appeared that the respondent's partner brought an action for an accounting, recovered a judgment affirmed on appeal, that execution was returned unsatisfied, and that his partner then obtained a judgment that respondent's conveyances were made without consideration to his father with intent to defraud creditors, and that a client of the same name alleged to be the grantee was fictitious, and that the respondent reopened a bank account in his name as administrator, after his discharge as such, and deposited therein rents from the properties so fraudulently conveyed with intent to defraud his former partner, in violation of the Penal Law (Consol. Laws, c. 40). Held, that such acts involved a lack of character and common honesty not to be tolerated in an attorney at law, and that the respondent will be disbarred.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. § 63; Dec. Dig. 45.]

2. ATTORNEY AND CLIENT 53(1)—PROCEEDING FOR DISBARMENT-EVIDENCE -RECORD.

The record in the action of his former partner against the respondent was competent proof as to his conduct therein.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. § 74; Dec. Dig. 53(1).]

3. FRAUDULENT CONVEYANCES 271(3)-WHAT CONSTITUTES.

An attorney's voluntary conveyances of real estate, after judgment in his former partner's action for an accounting and return of execution unsatisfied, will be conclusively presumed to be fraudulent.

[Ed. Note. For other cases, see Fraudulent Conveyances, Cent. Dig. § 798; Dec. Dig. 271(3).]

Proceeding instituted by the New York County Lawyers' Association to discipline Lancelot M. Berkeley, an attorney, for alleged professional misconduct. Respondent disbarred.

Argued before CLARKE, P. J., and SCOTT, DOWLING, SMITH, and PAGE, JJ.

Mason Trowbridge, of New York City (Richard H. Clarke and George R. Adams, both of New York City, of counsel), for petitioner. Lancelot M. Berkeley, of New York City, in pro. per.

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