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Hickson to procure a new lease from the new owners or secure other quarters.

At about the time the property was to change hands, Hickson became ill and was confined for three weeks in a hospital. In order to lighten his expenses, Hickson reduced plaintiff's salary one-half and told him to keep alive the negotiations for a new lease with defendant. Pursuant to this last employment, plaintiff went to defendant's office and there had several conferences with its officers and agents. It is conceded that subsequently Hickson became a tenant of defendant under a lease satisfactory in every detail. There was a dispute, however, as to whether plaintiff was the procuring cause of the successful determination of the negotiations between Hickson and defendant.

Plaintiff called no witnesses to corroborate his testimony, but, giving it the most favorable construction, I consider it entirely insufficient to overcome the uncontradicted testimony of defendant. Plaintiff's testimony, in substance, was that before and after Hickson's disability he had several conversations with defendant's president and secretary, at which defendant's general agents were present, and said agents, according to the testimony of all the witnesses, were the brokers who really brought about the leasing of the premises in question. Plaintiff informed defendant that Hickson wanted to procure a lease; and, when the question of commissions was broached, defendant's president promised to give plaintiff full commissions, provided he procured Hickson's consent. To this condition plaintiff agreed. After the execution of the lease, plaintiff produced a letter which purported to be such consent. Hickson, admitting that he wrote the letter, stated that it had been altered by striking out the word "other," and that, if produced as originally written, it would have expressed his real meaning, namely, that he had no objection to plaintiff's receiving a commission on other leases; but he positively denied that he consented to plaintiff's obtaining any commission on this particular lease. On the contrary, Hickson testified that he thought it a reprehensible thing for plaintiff to do while still in his employ, and that he was determined plaintiff should receive no commission, in view of the fact that he was paid $25 a week merely to keep alive negotiations begun and terminated by himself. Plaintiff's failure to take the stand to contradict this testimony or explain the alteration in the letter above mentioned is significant as bearing on the probabilities of the case. Hickson further testified, and in this he is corroborated by the witness McCready, who was defendant's president, that he himself first talked about procuring a lease to Kingsland & Clark, defendant's agents. Fearing the negotiations so started by him might be terminated because of his illness, he employed plaintiff for the special purpose of keeping them alive. Plaintiff, however, told him that he could not "put the lease over," but that he could secure desirable quarters in another part of the city, whereupon Hickson again took the matter up with Kingsland & Clark and consummated it.

It clearly appears, therefore, that plaintiff, without his employer's knowledge or consent, was endeavoring to obtain a commission froni defendant while employed by Hickson, for the purpose of negotiating a lease. In fact, plaintiff on cross-examination admitted that he had

been sent to defendant by Hickson. The courts have uniformly refused to aid a broker in obtaining double commissions, unless the utmost good faith is shown, and I am of the opinion that it was not shown in this case. Goodell v. Hurlbut, 5 App. Div. 77, 38 N. Y. Supp. 749 ; Summers v. Carey, 69 App. Div. 428, 74 N. Y. Sup. 980; Nekarda v. Presberger, 123 App. Div. 418, 107 N. Y. Supp. 897.

I think the verdict for the plaintiff was against the overwhelming weight of evidence. It should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur; BIJUR, J., concurring in opinion.

BIJUR, J. I concur on the ground that there is no intelligible evidence from which the jury might infer that plaintiff was the procuring cause of the lease.

TITUS v. SPENCER.

(Supreme Court, Appellate Term, First Department. February 4, 1915.) APPEAL AND ERROR ($ 1001*)-REVIEW-VERDICT-INCOMPETENT EVIDENCE.

A verdict supported only by evidence, which was incompetent under Code Civ. Proc. $ 834, forbidding physicians to divulge information acquired by them in their professional capacity, and admitted over objections on that ground, will be reversed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3922, 3928–3934; Dec. Dig. $ 1001.*]

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

Action by Edward C. Titus against Lydia A. Spencer, as executrix of the last will and testament of Armon Spencer, deceased. Judgment for the plaintiff, and defendant appeals. Reversed, and new trial ordered.

Argued January term, 1915, before GUY, BIJUR, and GAVEGAN, JJ.

William H. Darrow, of New York City, for appellant.

Booth & Ellis, of New York City (Raymond C. Thompson, of New York City, of counsel), for respondent.

GAVEGAN, J. For the third time this case comes before this court on appeal. On the first and second appeals the judgment for the plaintiff was reversed in each instance and a new trial ordered because of error in the admission of incompetent evidence. (Sup.) 145 N. Y. Supp. 40, and (Sup.) 147 N. Y. Supp. 343. There is still a failure of competent evidence in the case showing what services the plaintiff performed for the decedent. The evidence received was clearly inadmissible under section 834 of the Code, and it was reversible error on the part of the trial justice to overrule defendant's objection made on that specific ground.

If a proper foundation for the introduction of plaintiff's books in evidence had been laid in accordance with the rule set forth in Vos•For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

burgh v. Thayer, 12 Johns. 461, there might have been some evidence to justify the conclusion reached by the court.

A careful examination of the record fails to disclose any other evidence than that which was erroneously admitted as to the nature of the services performed by the plaintiff; the testimony on that point sought to be elicited from the plaintiff's witness Travell having been properly excluded by the court upon objection raised by defendant. It follows that the judgment, being based entirely upon incompetent evidence, must be reversed.

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

WOLFORD et al. v. SOTER CO.

(Supreme Court, Appellate Term, First Department. February 4, 1915.) CORPORATIONS (8 406*)–CONTRACTS-ULTRA VIRES—UNAUTHORIZED ACTS OF

OFFICERS.

A contract by the president of a corporation on its behalf to furnish its employés suits of clothes is ultra vires on the part of the officer, in the absence of proof of custom of the corporation to provide clothes to employés, especially where the other officers did not know of the transaction.

[Ed. Note. For other cases, see Corporations, Cent. Dig. 88 1611-1614; Dec. Dig. 8 406.*]

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

Action by Julius Wolford and another against the Soter Company. From a judgment for plaintiffs, defendant appeals. Reversed, and complaint dismissed.

Argued January term, 1915, before GUY, BIJUR, and GAVEGAN, JJ.

D. W. Steele, Jr., of New York City (Bernard Naumberg, of New York City, of counsel), for appellant.

Wilber, Norman & Kahn, of New York City (Louis L. Kahn, of New York City, of counsel), for respondents.

GAVEGAN, J. Defendant appeals from a judgment of the Municipal Court in favor of plaintiffs in an action for goods sold and delivered.

The action is based upon an oral contract made by plaintiffs with one Soter, defendant's president, who told plaintiff Wolford, in substance, that he made it a practice to furnish his employés with suits of clothes about twice yearly, and that, if plaintiffs' work was satisfactory, they would do a large business with defendant. There is nothing in the record from which it could be inferred that Soter acted in behalf of defendant. On the contrary, Soter stated that the suits were ordered by him personally for members of his family, and plaintiff Wolford admitted on cross-examination that Soter in his presence selected two suits for himself, one for a relation of his and one for an employé. *For other cases see same topic & $ NUMBLR in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Moreover, monthly statements sent by plaintiffs to defendant were directed to "Mr. Soter."

It affirmatively appears that no such custom as plaintiffs claimed Soter stated to him prevailed in defendant's business, and that none of defendant's officers knew of the transaction which is the subject of plaintiffs' claim. Furthermore, even if Soter intended to bind the defendant to such a contract, his acts were ultra vires.

The judgment must be reversed, with costs, and the complaint dismissed, with costs. All concur.

NAGEL REALTY CO. v. FREUND et al.

(Supreme Court, Appellate Term, First Department. February 4, 1915.) 1. APPEAL AND ERROR (§ 1046*)—Trial ($ 25*)—HARMLESS ERROR-DENIAL OF

RIGHT TO OPEN AND CLOSE.

In a summary proceeding by a landlord against a tenant alleged to have held over, where the only issue tried was that raised by the defense that the lease had been extended, and the evidence was conflicting on this issue, it was prejudicial error to deny defendant the right to close the case to the jury, especially where the court specifically charged that the burden was on defendant to establish this defense.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $8 4128– 4131, 4134; Dec. Dig. $ 1046;* Trial, Cent. Dig. 88 44–75; Dec. Dig. $ 25.*} 2. LANDLORD AND TENANT (309*)-SUMMARY PROCEEDINGS FOR POSSESSION

INSTRUCTIONS.

In a summary proceeding by a landlord against a tenant claimed to have held over, in which the tenant alleged an extension of the lease by reason of dealings with a janitor in the landlord's employ, it was error to charge that it was the tenant's duty to call the janitor to prove this defense, and that his failure to do so might be considered by the jury.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $ 1317, 1318; Dec. Dig. $ 309.*]

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

Summary proceeding by the Nagel Realty Company against Edward Freund and others. From a final order dispossessing a tenant and undertenants for holding over, entered on a verdict for the landlord, defendants appeal. Reversed, and new trial ordered.

Argued January term, 1915, before GUY, BIJUR, and GAVEGAN, JJ.

Einstein, Townsend & Guiterman, of New York City (M. S. Guiterman, of New York City, of counsel), for appellant H. Koehler & Co.

Jacob I. Berman, of New York City, for respondent.

GUY, J. This was a summary proceeding to dispossess a tenant and undertenants for holding over. The answer denied various allegations of the petition, including that of holding over, and also averred, as a separate defense, an extension of the lease until September 30, 1915. On the trial the undertenant withdrew all denials, so that there

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

was but one issue to be tried—the special agreement for a lease. A motion by plaintiff for judgment upon the pleadings was denied.

[1] The defendants appellants gave proof on an extension of the lease, including alleged dealings with a janitor in plaintiff's employ. The landlord denied the extension and introduced proof in support of such denial. The janitor was not called by either side. The defendants claimed the affirmative, and asked leave to close with the jury on the only issue of fact submitted to the jury; i. e., whether, as alleged in the separate defense set up in the answer, plaintiff and defendant entered into an agreement for the extension of the lease until September 30, 1915. This motion was denied, under exception by the defendant, nothwithstanding the fact that the court in its charge subsequently specifically submitted that issue to the jury, and charged the jury that the burden was upon the defendant to establish such defense by a preponderance of proof, and that, if he failed to do so, they must find a verdict in favor of plaintiff. In a close jury trial, the denial of the right to close is prejudicial error. Lake Ontario Nat. Bank v. Judson, 122 N. Y. 278, 282, 285, 25 N. E. 367.

[2] The learned court also erroneously charged the jury that it was the tenant's duty to call the janitor (who was admittedly in the landlord's employ) to prove the alleged separate defense, and that the failure of the defendant to do so might be considered by the jury. Although this was subsequently somewhat modified in the judge's charge, it was, even in the modified form, so prejudicial to the defendant as to call for a reversal of the order.

The order must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

MISTRETTA V. FAMILIAR ASS'N OF MUT. BENEVOLENCE.

(Supreme Court, Appellate Term, First Department. February 4, 1915.)

1. APPEAL AND ERROR ( 1177*)—AGREED STATEMENT OF FACTS-REQUISITES.

A judginent rendered upon an agreed statement of facts which is contradictory and confusing, so that the situation of the parties cannot be determined, will be reversed and the cause remanded for a new trial after the statement has been corrected.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 4597

4604, 4606–4610; Dec. Dig. § 1177.*] 2. BENEFICIAL ASSOCIATIONS ($ 18*)—BENEFITS—By-Laws.

A member of a fraternal benefit association, who had received a refund of a portion of his dues in lieu of sick benefits, cannot question the validity of a by-law denying sick benefits to nonresident members.

[Ed. Note.-For other cases, see Beneficial Associations, Cent. Dig. 88 41-50; Dec. Dig. $ 18.*]

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

Action by Fillippo Mistretta against the Familiar Association of Mutual Benevolence. From a judgment for defendant for the amount of *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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