sideration, on the ground that plaintiffs had no valid claim against the third party. The defendant also set up the statute of frauds.

[1, 2] That a promise to pay in consideration of a release of the debt of another is not within the statute of frauds is well settled and needs no discussion. While the release of an invalid claim may be no consideration, the release of a doubtful claim, as to which there is a dispute in good faith, is a sufficient consideration for a promise. The bills, one sent to Bayer & Pretzfelder, and one by them to the Liberty Clothing Company at a higher figure, are declarations, part of the res gestæ, giving character to the act, as showing to whom credit was given, and, with the other testimony, made out at least a case to go to the jury, and the dismissal of the complaint was error.

Judgment reversed, and new trial ordered; costs to appellants to abide the event. All concur.

SHANKLAND v. CRANE OXYGEN WORKS & AMBULANCE CO., Inc.

(Supreme Court, Appellate Term, First Department. March 4, 1915.) CORPORATIONS (§ 407*)-CONTRACTS-LIABILITY FOR CONTRACTS OF SHARE

HOLDERS.

The owner of stock in a corporation agreed in writing to sell such stock to S., and the corporation was made a party to the agreement by which it employed S. as its manager and agreed to lease from the seller certain premises. The agreement recited that the report of plaintiff, a certified public accountant, as to earnings, had been exhibited to S., and that the seller represented the report true; but this part was later canceled by an agreement that, if S. desired an examination of the books, he would have it made by plaintiff. Plaintiff testified that the seller told him that S. had taken charge of the plant and wished to see him, and that S. employed him to examine the books. Held, that the contract of employment was that of S., and the corporation was not liable thereon.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1615-1619; Dec. Dig. § 407.*]

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

Action by James A. Shankland against the Crane Oxygen Works & Ambulance Company, Incorporated. From judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed.

Argued February term, 1915, before GUY, PENDLETON, and SHEARN, JJ.

Goodale & Hanson, of New York City (Frank J. Weeks, of New York City, of counsel), for appellant.

John C. Van Loon, of New York City, for respondent.

SHEARN, J. Appeal by defendant from judgment of $122.12, rendered by the court in an action for work, labor, and services claimed to have been performed by plaintiff, a public accountant, in an examination of the books of the defendant, and for the defendant.

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

Mrs. Heydecker, secretary and treasurer of the defendant and the owner of a large part of its capital stock, agreed in writing on June 10, 1914, to sell all of her shares and certain other shares that she controlled to Messrs. Cundy and Schnopp. The defendant corporation was made a party to the agreement, for by the agreement it employed Schnopp as its general manager for a period of years, and further agreed to lease from Mrs. Heydecker certain premises for a period of six years.

Paragraph 6 of the agreement provided that the report of J. A. Shankland, a certified public accountant (this plaintiff), in respect to the earnings of the business for the years of 1912 and 1913, had been exhibited to Messrs. Cundy and Schnopp, and that Mrs. Heydecker represented that the report was true. On July 10, 1914, said paragraph 6 was by a supplemental written agreement canceled, and in its place it was provided that:

"If Mr. Schnopp, in behalf of Cundy and Schnopp, desires to have an examination of the books, he will have the same made by J. A. Shankland, a certified public accountant, and he will have same made within a month from date. And if the said Shankland reports from such examination that his report in respect of the earnings of the business from 1912 to 1913, which has been exhibited to Messrs. Cundy and Schnopp, is correct, that will be satisfactory to Messrs. Cundy and Schnopp as to the condition of the business."

Plaintiff testified that between July 15 and August 5, 1914. Mrs. Heydecker told him "that Cundy and Schnopp had taken, charge of the business from the 15th," and that Mr. Schnopp wished to see him, and that Mr. Schnopp employed him to make an examination of the books, but that he charged Mrs. Heydecker for the work.

It is perfectly clear that it would have been entirely improper for the corporation to have been charged with an audit made either for the benefit of Mrs. Heydecker or Messrs. Cundy and Schnopp,, who were respectively merely vendor and purchasers of shares of its stock. It is equally clear from the contract that the audit was for the benefit of Cundy and Schnopp, and, having been ordered by Mr. Schnopp, the bill should have been paid by Messrs. Cundy and Schnopp. In no event was the defendant liable.

Judgment reversed, with costs, and complaint dismissed upon the merits, with costs. All concur.

MURPHY et al. v. WILSON.

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

1. COURTS ( 189*)-MUNICIPAL COURT-SUMMONS-WAIVER.

Where the summons was not signed by the clerk of the Municipal Court, but by another person, defendant's appearance in court by attorney on the return day, and his arrangement with plaintiff's attorney to have the cause adjourned for trial, waived any defect in the summons, and conferred jurisdiction.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]

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

2. COURTS (§ 189*)-MUNICIPAL COURT-DEFAULT-POWER OF COURT.

Where a case was adjourned from the return day until December 18th, upon the oral understanding between the attorneys that defendant should file his answer on the 14th, the cause remained in statu quo until the 18th, and no valid judgment could be entered against defendant in the interim, even though no answer was filed.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]

Appeal from Municipal Court, Borough of the Bronx; Second District.

Action by Edward D. Murphy and another against William Wilson. From an order denying a motion to vacate a judgment, defendant appeals. Order reversed, judgment vacated, and new trial ordered. Argued February term, 1915, before GUY, PENDLETON, and SHEARN, JJ.

Goetz & Jacoby, of New York City (Arnold Jacoby, of New York City, of counsel), for appellant.

Wallace S. Fraser, of New York City, for respondents.

GUY, J. [1] Much of the appellant's brief is devoted to showing that the summons served upon him was not signed by the clerk of the Municipal Court, but by another person. It clearly appears, however, that he was represented in court upon the return day of the summons and that his attorney had arranged with the plaintiff's attorney to have the cause adjourned for trial from December 11th to December 18th. This voluntary appearance waived any defect in the summons served, and conferred jurisdiction upon the court below. The order appealed from provided that the judgment be vacated and set aside, and the case set for trial upon January 4th, upon condition that the defendant "filed a good and sufficient bond in the sum of the judgment herein otherwise the motion is denied."

[2] It appears from the papers used upon the motion resulting in the order appealed from that on December 11, 1914, the return day of the summons, the case was adjourned by consent until December 18, 1914; the understanding between the attorneys being that the defendant should file his answer on December 14th. Upon December 14th the plaintiff's attorney ascertained from the clerk of the court that no answer had been filed, and on December 15, 1914, entered judgment against the defendant by default. The cause having been adjourned until December 18th, the action remained in statu quo until that day, and no valid judgment could be entered against defendant in the interim, even if no answer was filed. Whitman & Barnes Mfg. Co. v. Hamilton, 27 Misc. Rep. 198, 57 N. Y. Supp. 760.

It is true that an attorney representing the plaintiff's attorney makes an affidavit used upon the motion, in which he says that the adjournment was granted upon condition that defendant file his answer on or before December 14, 1914; "otherwise, judgment to be entered on the complaint herein." No written stipulation was entered into of that character, and if an oral understanding to that effect was made. it conferred no authority upon the court to enter a judgment, when

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

its functions had been suspended by an adjournment regularly granted until December 18th. Defendant's default should therefore have been opened without terms.

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

GAUTIER v. LANGE.

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

1. HIGHWAYS (§ 184*)-USE BY AUTOMOBILES-ACTION-INSTRUCTIONS.

In an action to recover damages for injuries to an automobile from a collision with defendant's automobile, where the jury might have found that plaintiff's automobile was on the left of the center of the highway, and that defendant overtook it, sounded a horn, and was left barely room to pass on the left side, the jury should have been given the law governing the situation.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 471-474; Dec. Dig. § 184.*]

2. HIGHWAYS (§ 176*)-USE BY AUTOMOBILES-OVERTAKEN AUTOMOBILE.

If the position of an overtaken car in the center of a highway does not leave room for passage, it must, upon request, or equivalent notice, if practicable and safe, so turn aside as to leave room for passage.

[Ed. Note. For other cases, see Highways, Cent. Dig. § 465; Dec. Dig. § 176.*]

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

Action by Ida Gautier against plaintiff, and defendant appeals. Argued February term, 1915, SHEARN, JJ.

Gustave Lange, Jr. Judgment for Reversed, and new trial ordered. before GUY, PENDLETON, and

James T. Brady, of New York City (Ralph Barnett, of New York City, of counsel), for appellant.

Lewis F. Glaser, of New York City, for respondent.

SHEARN, J. Appeal by defendant from a judgment entered on the verdict of a jury, and from an order denying defendant's motion for a new trial, in an action to recover damages for injuries to plaintiff's automobile, caused by a collision with defendant's automobile while both were traveling in the same direction on a highway in Pennsylvania.

The law was not given to the jury correctly on the relative rights and duties governing the management of automobiles in the situation. presented. Plaintiff's claim is that her automobile was on the extreme right of the highway, which was from 20 to 25 feet wide, and that while traveling 15 miles an hour the left front hub of her automobile was struck by the right rear wheel of defendant's automobile, which came up from behind without warning and passed at the rate of 30 miles an hour.

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

Defendant's claim is that plaintiff's automobile was to the left of the center of the highway; that for a considerable time defendant had been traveling behind plaintiff's car in the dust; that defendant desired to pass the slow-going vehicle and sounded a horn from a position 200 yards in the rear until plaintiff's car was overtaken; that there was barely room to pass on the left, even leaving the roadway and scraping along a stone wall on the extreme left; and that plaintiff's car, instead of yielding any room, which was entirely practicable, edged over further to the left and thus caused the collision. [1, 2] Defendant's counsel requested the court to charge:

"That plaintiff was obliged, as soon as practicable after knowing of the presence of the car of the defendant, to turn and yield him the road."

The court responded:

"There is no such absolute right. The rule is that a slow-going vehicle should give way to a quick-going vehicle. But that does not mean that a man who is lawfully in the highway must pull aside and let a man go by him in a fast automobile at any rate of speed the following vehicle choses to assume."

The court also refused to charge:

"That, if the jury is satisfied that this accident would not have happened if the plaintiff had turned out of this road upon reasonable notice by the defendant, the plaintiff cannot recover."

If the plaintiff's car was on the extreme right, these requests to charge would not have been applicable. If, however, as the jury might well have found, the relative position of the automobiles was as defendant contended, the requests were very pertinent, and the jury should have been given the law governing this situation. Such law is well settled:

"If the position of the forward car in the center of the highway does not leave such room for passage, then it must, upon request or equivalent notice, if practicable and safe, so turn aside as to leave such room for passage." Mark v. Fritsch, 195 N. Y. 282, 284, 88 N. E. 380, 381 (22 L. R. A. [N. S.] 632, 133 Am. St. Rep. 800); Adolph v. Central Park, N. & E. R. R. Co., 76 N. Y. 530, 534.

While the defendant might have been held negligent in attempting to pass in so narrow a space at such a rate of speed, nevertheless, in determining this, the jury should have understood that, assuming defendant's version to be true, defendant had a right to expect the plaintiff to turn to the right and yield sufficient room for defendant to pass as soon as it became evident that defendant was endeavoring to pass. The jury must have understood, from the charge and from the court's refusal to charge as requested, that there was no real obligation resting on plaintiff to yield any room, even if entirely practicable, and that defendant's liability was to be determined upon the assumption that he had no right to expect the plaintiff to yield him more room. In other words, if the jury found from the evidence that the relative position of the automobiles in the roadway was as testified to by defendant's witnesses, the instructions as to how to deal with this situation were contrary to the settled law governing, namely: