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plaintiff will be compelled to prove affirmatively that defendant spoke and wrote the words complained of. He is entitled to prove this fact by defendant himself.

The order appealed from will therefore be reversed, without costs to either party, and the order for defendant's examination be so limited as to permit an inquiry only as.to the utterance of the alleged slander and libel. All concur.

PAUL GERLI & CO., Inc. v. DOORLY.

SAME V DOORLY et al.

(Supreme Court, Appellate Term, First Department. February 4, 1915.) BILLS AND NOTES (8 493*)–CONSIDERATION-BURDEN OF PROOF.

Where, in an action on notes stating they were for value received, plaintiff proves the defendants' signatures and demand for payment and refusal, a prima facie case is established, and the burden of proving lack of consideration as a defense is on defendants; a dismissal of the complaint on the ground that, while the answer alleged lack of consideration, plaintiff had proved none, being error.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. $8 1652– 1662; Dec. Dig. & 493.*] Appeals from Municipal Court, Borough of Manhattan, First District.

Actions by Paul Gerli & Co., a corporation, against George Doorly and against George Doorly and Daniel B. Bentley. Judgment for defendants, and plaintiff appeals. Reversed.

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

Blau, Zalkin & Cohen, of New York City (Maurice Brandt, of New York City, on the brief), for appellant.

Favour & Colwell, of New York City (Neil P. Cullom, of New York City, of counsel), for respondents.

GAVEGAN, J. The above actions were tried together, and the same proposition of law was involved in each case. In the case of Gerli v. Doorly, the plaintiff's cause of action is upon three promissory notes, aggregating $355, with interest to the amount of $19.52, making a total of $374.52. The second action, that against George Doorly and Daniel B. Bentley, is based upon two promissory notes, aggregating $410, with interest to the amount of $21.32, making a total of $431.32. The answer of both defendants in both actions set up a general denial, and, as separate and distinct defenses, lack of consideration and payment.

After plaintiff had presented its case, defendants' counsel moved to dismiss the complaint, upon the ground that the second defense alleged that no consideration had passed, and that the plaintiff had not proved any consideration. The defendants' motion to dismiss the complaints was then denied, but thereafter granted, when the defendants rested without putting in any evidence. The testimony shows that the plaintiff proved the signature of the notes which were in its possession, and *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

that payment thereon had been demanded and refused, which was sufficient to make out a prima facie case. The burden of proving that there was a want of consideration rested on the defendants. The notes, which contained on their face the words "value received,” were made payable by the defendants, respectively, as makers, to the plaintiff, as payee, thereby raising a presumption of consideration, which the defendants were bound to rebut.

The case of Smith v. Unangst, 20 Misc. Rep. 564, 46 N. Y. Supp. 340, is not an authority in point on the question of presentment, raised by the respondent in this case, since it relates to a draft, and not a promissory note. Hills v. Place, 48 N. Y. 520, 8 Am. Rep. 568.

Judgments dismissing the complaints in both actions should be reversed, and new trials ordered, with costs to the appellant to abide the event in each action. All concur.

BRAUNE v. HENRICHS.

(Supreme Court, Appellate Term, First Department. February 4, 1915.), BROKERS (8 61*)—COMMISSIONS—WHEN EARNED.

A broker employed to procure a purchaser, who procures a purchaser, who contracts in writing with the owner for the purchase, has earned his commissions, though the purchaser refuses to complete the contract because of an outstanding mortgage which the owner refuses to satisfy; the broker not being guilty of any fraud nor responsible for the failure of the owner to satisfy the mortgage.

(Ed. Note.-For other cases, see Brokers, Cent. Dig. 88 77, 78, 92, 93; Dec. Dig. 8 61.*]

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

Action by Paul Braune against Joseph Henrichs. From a judgment of dismissal at the close of plaintiff's case, plaintiff appeals. Reversed, and new trial ordered.

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

David Kornblueh, of New York City, for appellant.
John S. Bennett, of Brooklyn, for respondent.

GAVEGAN, J. Plaintiff was employed by defendant to procure a purchaser for his saloon and restaurant. As a result of his efforts,

, defendant entered into a written contract of sale with a purchaser introduced by plaintiff. Upon the signing of the contract of sale, the purchaser delivered to defendant two checks for $100 each, and requested defendant to hold them for a few days, which defendant agreed to do. Subsequently the purchaser learned that an outstanding chattel mortgage had not been satisfied, and he then refused to complete the purchase. The checks referred to were deposited by defendant and returned and marked "Not sufficient funds." Defendant thereupon elected to rescind the contract.

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

Since no fraud was claimed, and the plaintiff was not responsible for the owner's failure to satisfy the chattel mortgage, I am of the opinion that the agreement of sale was binding and enforceable. The plaintiff's right to commissions cannot be defeated by the subsequent acts of the parties. Kutyn v. Sandrovitz (Sup.) 133 Ñ. Y. Supp. 359.

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

RYAN V. BRAENDER BLDG, & CONST. CO.

(Supreme Court, Appellate Division, Second Department. January 22, 1915.) EVIDENCE (8 589*)-SUFFICIENCY.

The testimony of an employé on the second trial of his action for a personal injury, inconsistent with his testimony on the first trial, and contrary to the testimony of all other employés engaged in the same line of work, does not support a verdict in his favor.

(Ed. Note.-For other cases, see Evidence, Cerit. Dig. § 2438; Dec. Dig. $ 589.*] Appeal from Trial Term, Westchester County.

Action by Martin Ryan against the Braender Building & Construction Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

Argued before JENKS, P. J., and THOMAS, STAPLETON, RICH, and PUTNAM, JJ.

Edward J. Redington, of New York City, for appellant.
Sydney A. Syme, of Mt. Vernon, for respondent.

PER CURIAM. This verdict is against the weight of evidence. The proofs on the first trial showed that in greasing machinery over elevator shafts they waited till the elevator came to the upper floors, where the operator holds his car until the dangerous places had been lubricated. Hence the plaintiff was blamed for consciously departing from this safe and simple system, and greasing the machinery with the car down at the first floor. 154 App. Div. 278, 138 N. Y. Supp. 862. On the second trial, plaintiff would make out a different practice; that while greasing this top machinery the elevator car is kept down at the foot of the shaft, and this in a 20-story building. Such a course would be impracticable and dangerous, where, as here, the shaft was more than 250 feet in depth, with only the cars in the side shafts to carry the necessary communication to stop and start hoisting. This testimony was inconsistent with plaintiff's first account, and was against that of all other employés engaged on these elevators. It cannot save plaintiff from the application of our former decision.

Judgment and order reversed, and a new trial granted; costs to abide the event. *For other cases see same topic & $ NUMEER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

HATTON V. COOK. (No. 6734.)

(Supreme Court, Appellate Division, First Department.

February 5, 1915.)

1. FRAUD (8 11*)-FRAUDULENT REPRESENTATIONS–MATTERS OF OPINION.

Statements of the president and fiscal agent of a corporation that it was in a flourishing financial condition and was able to pay 6 per cent. dividends, whereby plaintiff was induced to exchange bonds of the corporation for its preferred stock, were mere expressions of opinion, and would not support an action for deceit, as plaintiff must have recognized that the dividends must depend on the future prosperity of the company, while the meaning of the words “flourishing financial condition" depend largely on the history and policy of the business to which they apply, as well as to the judgment or opinion of the persons using them.

[Ed. Note.-For other cases, see Fraud, Cent. Dig. $8 12, 13; Dec. Dig.

§ 11.*] 2. FRAUD ($ 59*)—ACTIONS FOR DECFIT-MEASURE OF DAMAGES.

Where a person, induced by the false representations of the president and fiscal agent of a corporation as to its financial condition to exchange the bonds of the corporation for preferred stock, instead of treating the contract as void and seeking to recover the bonds or their value, sued the president for deceit, the measure of damages was the difference between the value of the stock and what it would have been worth, had the representations been true.

[Ed. Note.-For other cases, see Fraud, Cent. Dig. 88 60–62, 64; Dec. Dig. § 59.*]

Appeal from Trial Term, New York County.

Action by Elizabeth S. Hatton against George D. Cook. From a judgment on a verdict for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and new trial ordered.

Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, SCOTT, and DOWLING, JJ.

Robert B. Honeyman, of New York City, for appellant.
George B. Covington, of New York City, for respondent.

CO.

MCLAUGHLIN, J. Action to recover damages for deceit. The defendant, for some time prior to the transactions involved in the subject-matter of this action, was president of the Cafetal Carlota Company, a corporation owning and operating a coffee plantation in Mexi

He was also a partner in the banking firm of George D. Cook & Co., in the city of New York, which acted as the fiscal agent of the corporation. Some time prior to May, 1911, plaintiff was the owner of 17 out of a total issue of 150 of the first mortgage bonds of the Cafetal Company, of the par value of $1,000 each, and stock of the same par value, which was issued as a bonus with the bonds. Up to the date last mentioned the interest had been paid upon the bonds, but no dividend had been paid upon the stock. In the spring of 1911 the Cafetal Company proposed to its stockholders an issue of $200,000 preferred stock, for the purpose of improving its property and retiring its outstanding bonds. A stockholders' meeting was accordingly called for April 15, 1911, to authorize such issue, of which plaintiff had notice. *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1997 to date, & Rep'r Indexes

151 N.Y.S.-37

Shortly before this meeting, but after the same had been called, the plaintiff, being desirous of disposing of at least a part of her bonds, called at defendant's office and had an interview with him. She then knew that a meeting of the stockholders had been called for the purpose of authorizing an issue of preferred stock, and, after talking the matter over with the defendant, agreed to exchange with the corporation $14,000 of her bonds for a like amount of its preferred stock, when issued. Her version of the conversation which took place immediately prior to her agreement to the exchange was as follows:

“I asked him if he could sell the bonds, and we talked about it a while, and he said they were about to issue certificates for preferr:d stock, and that the Cafetal was a good investment. He would advise me to exchange my bonds, of which I had $17,000, for the certificates of preferred stock that they were about to issue. I asked him if the financial condition of the Cafetal was good, and he said it was in flourishing condition. Then I asked him if they were able to pay me 6 per cent., which I was getting on the bonds I held. He said they were. Then I agreed, after talking with him about it, to turn over $11,000 worth of my bonds for the preferred stock.

Shortly thereafter she sent to the corporation 14 of the bonds, in return for which the following receipt was given:

"Cafetal Carlota Company.

“Temporary Receipt. “6 Per Cent. Cumulative Stock, Cafetal Carlota Company. "Received of Elizabeth Snyder Hatton fourteen thousand dollars, being payment in full for 140 shares of 6 per cent. cumulative stock of the Cafetal Carlota Company, of par value of $100.00. Such stock to be authorized and issued upon an increase of the capital stock of such company, and to be delivered when and as issued. “[Seal.)

Cafetal Carlota Company,

"Geo. D. Cook, President. "New York, March 1, 1911."

There is no evidence that this receipt was ever returned to the company, or that certificates for stock were ever delivered to the plaintiff. In November, 1911, the Cafetal Company defaulted for the first time in the payment of interest on its bonds, and this action was commenced a year later to recover from the defendant the damages alleged to have been sustained by the plaintiff by reason of his inducing her to make the exchange referred to. The plaintiff had a verdict for $10,500, and from the judgment entered thereon defendant appeals.

[1] The contention of the plaintiff is that the judgment can be sustained, because she was deceived by defendant as to the financial condition of the corporation. At the trial, when asked which statement of defendant induced her to exchange the bonds for preferred stock, she replied:

"Because he said the company was in flourishing condition, and they were able to pay me the 6 per cent. dividend, which was the rate of interest I was getting on my bonds."

I think this is insufficient to maintain an action to recover damages for deceit. Defendant's statement as to the financial condition of the company and the dividends which it could thereafter pay were expressions of opinion and nothing more. In Sparman v. Keim, 83 N. Y. 245, the defendant was charged with fraud in representing that a business

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