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"The fundamental principle of conduct is that of reasonable care and accommodation, measured by the immediate circumstances of each case and exercised by each traveler for the purpose of affording to the other his just and reasonable rights in the highway." Mark v. Fritsch, supra.

There were other errors justifying a reversal, notably the court's refusal at first to charge that plaintiff must show freedom from contributory negligence, upon the assumption that the Labor Law amendment applied; but these need not be considered.

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

REALTY & COMMERCIAL CO. v. WINTER et al. (two cases).

(Supreme Court, Appellate Term, First Department. March 4, 1915.) 1. COURTS ($ 190*) MUNICIPAL COURTS APPEALABLE ORDERS RETAXING

Costs.

An order of the Municipal Court, retaxing costs, is not appealable.

(Ed. Note.-For other cases, see Courts, Dec. Dig. $ 190;* Appeal and

Error, Cent. Dig. § 103.) 2. COURTS ($ 190*)-MUNICIPAL COURTS—TIME FOR APPEAL.

The time for an appeal from a judgment of the Municipal Court does not begin to run until judgment is completed by the entry of, or refusal to enter, costs.

[Ed. Note.---For other cases, see Courts, Dec. Dig. § 190;* Appeal and Error, Cent. Dig. § 103.] Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Two actions by the Realty & Commercial Company against Benjamin Winter and others. From orders directing a retaxation of costs, plaintiff appeals. Appeals dismissed.

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

Hillquit & Levene, of New York City (Alexander Levene, of New York City, of counsel), for appellant.

Bershad & Gossett, of New York City (Morris E. Gossett, of New York City, of counsel), for respondents.

GUY, J. [1] The landlord herein appeals from an order in each of these actions which directed a retaxation of the disbursements of the landlord at the sum of $10 in each case, and refused to direct the clerk to retax disbursements more than said sum of $10. The appeals must be dismissed, as no appeal will lie from an order retaxing costs. Averbuck v. Hochlick, 63 Misc. Rep. 327, 117 N. Y. Supp. 187; Kaliski v. Kaufman, 62 Misc. Rep. 274, 114 N. Y. Supp. 811.

[2] The argument of the appellant, that the time in which to appeal from a judgment might possibly be abridged if a motion made for a retaxation of costs was not decided until the expiration of 14 days from the time it was submitted, is fallacious. The judgment of a Municipal Court is not complete until costs are entered (Allen v. Wells Fargo Express Co., 48 Misc. Rep. 610, 95 N. Y. Supp. 597), and therefore the time in which an appeal can be taken would not begin to run until judgment was completed by the entry of, or refusal to enter, the costs. See People ex rel. Solomon v. Land, 109 App. Div. 706, 96 N. Y. Supp. 555.

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

Appeals dismissed, with $10 costs in each case. All concur.

JAMES EVERARD'S BREWERIES v. NEW YORK RYS. CO.

(Supreme Court, Appellate Term, First Department. March 4, 1915.) STREET RAILROADS ($ 101*)-COLLISION WITH VEHICLE-RIGHT OF WAY.

Neither an auto truck nor a street car had the right of way, and on evidence showing that the drivers of each depended on the other to stop before a crossing in order to avoid a collision, and that both were negligent, the owner of the truck was not entitled to recover.

[Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 101.*] Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by James Everard's Breweries against the New York Railways Company. From a judgment for plaintiff, defendant appeals. Reversed, and complaint ordered dismissed.

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

James L. Quackenbush, of New York City (Albert L. Wilbur, of New York City, of counsel), for appellant.

Maurice B. Gluck, of New York City, for respondent.

The ap

PENDLETON, J. The action is for damages due to a collision between plaintiff's auto truck and defendant's trolley car. peal raises the questions on the evidence as to negligence and absence of contributory negligence.

Plaintiff's evidence showed by its chauffeur and helper that they started from a point on 133d street, west of Madison avenue, intending to go south on Madison avenue. About 7 or 8 yards from the crossing they saw the car approaching about 30 yards south of 134th street “just coming at full power." The helper put up his hand for defendant's car to stop. The car struck the truck's front spring and scraped by in front of the truck. Defendant's motorman made no effort to stop his car. When the truck was 10 feet from the track the car was 25 feet away, coming full speed “as fast as they can go.” Plaintiff's chauffeur says the helper held up his hand, and “I was blowing the horn; that is all I could do.” This is not true. He should have slowed down or stopped. "I stopped as soon as I could, When I seen he was not going to stop."

Defendant's witnesses say the truck started up suddenly and ran into the side of the car near the rear, as it was slowing down to take on a passenger. According to plaintiff's own testimony, the men in *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

charge of the truck saw the car coming at a high rate of speed and kept right on, contenting themselves with signaling the car to stop until too late to avoid the collision. Neither party had the right of way. It was as much their duty to avoid a collision as of the men in charge of the defendant's car. In Tully v. New York City Railway, 127 App. Div. 688, 111 N. Y. Supp. 919, the court said: "The plaintiff

was as much bound to look out for herself as the motorman was. She could not having observed a car approaching, heedlessly cross the street and pay no attention to it, because the motorman had as much right to assume that she would keep out of the way of the car as she had to assume that the motorman would so control the car that it would not injure her."

Both parties, on plaintiff's evidence, kept on relying on the other's giving way. If both were negligent, plaintiff cannot recover. Defendant's motion to dismiss on plaintiff's case should have been granted.

Judgment reversed, and judgment directed for defendant, dismissing the complaint, with costs, and costs of this appeal. All concur.

H. P. SICKLES CO. V. McCURDY & NORWELL CO. (No. 90-65.) (Supreme Court, Appellate Division, Fourth Department. March 3, 1915.) CONTRACTS (§ 323*)–CERTIFICATE OF ARCHITECT-QUESTION FOB JURY.

Whether the architect's certificate, delivered to the owner, was a final certificate under a building contract, or only a memorandum, held, under the evidence, for the jury.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 1311, 1319, 1466, 1543–1548, 1827, 182712 ; Dec. Dig. $ 323.*] Appeal from Trial Term, Monroe County.

Action by the H. P. Sickles Company against the McCurdy & Norwell Company. From a judgment for plaintiff, and from an order denying defendant's motion for a new trial, defendant appeals. Reversed, and new trial ordered.

Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.

Samuel M. Havens, of Rochester, for appellant.
J. M. E. O'Grady, of Rochester, for respondent.

PER CURIAM. The building was not in fact completed at the time the paper was delivered, and, as the evidence tends to show, neither the architect nor the parties to the contract themselves regarded the work covered by the contract as completed. The other certificates had been given to the plaintiff contractor, and according to the testimony of the architect it was usual to give certificates of this character to the contractor, and not to the owner. Mr. McCurdy, the president of the defendant, testifies that the paper was made at his request for the specific purpose of delivering it to the bank as a memorandum of the amount of money which had been paid on the building, and for no other purpose. We are of the opinion that it was a question of fact as *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

to whether the paper delivered by the architect to the owner was a final certificate within the meaning of the contract, or a mere memorandum as claimed by the defendant.

The judgment and order should therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.

OLNEY & WARREN V. DANIEL BIRDSALL & CO. et al.

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

CONTRACTS (8 319*)—BUILDING CONTRACTS-FAILURE OF CONTRACTOR TO COM

PLETE WORK-EFFECT.

Where a contractor to install a boiler for a fixed sum did not complete the work satisfactorily, and failed to do so for some time, the owner could complete the work, and the contractor could at most only recorer the difference between the reasonable cost to the owner of doing the work and the balance due under the contract.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. 8$ 1458, 1476, 1477, 1479, 1493–1507; Dec. Dig. § 319.*]

Guy, J., dissenting.

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

Action by Olney & Warren, a corporation against Daniel Birdsall & Co., a corporation, and another. From a judgment for plaintiff, defendants appeal. Reversed, and complaint dismissed.

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

Sobel & Brand, of New York City (Samuel Sobel, of New York City, of counsel), for appellants.

PENDLETON, J. The action is to recover a balance alleged to be due under a contract to furnish labor and materials in the installation of a boiler for a fixed sum. The defense was accord and satisfaction and that there were defects in the work, which defendants were compelled to have in part done over, and after deducting such reasonable cost defendants paid plaintiff the balance of the contract price.

The defense of accord and satisfaction was not made out on the evidence. It appeared at the trial that there were defects in the work, of which plaintiff was notified, and which it agreed to rectify. Defendants, because they were dissatisfied with the original subcontractor employed by plaintiff, refused to allow it to do the work and had it completed by others at what, apparently, was conceded to be a reasonable cost, and paid plaintiff the balance of its bill, less this amount. The controversy is entirely in regard to this latter amount. The trial court gave judgment for plaintiff. This was error. Assuming plaintiff had the right to go in and remedy the defects, and then recover the full amount of its bill, if defendants prevented it so doing, the damages suffered by them could be, at most, the difference between the *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

reasonable cost of doing the work and the balance due, and this is exactly what defendants paid it.

In a suit for the agreed price on the ground of substantial performance, any expenses necessary to complete the work must be allowed. Plaintiff's recovery is the agreed price, less the cost to complete. This seems an analogous case, or, if it be an action for not allowing to complete, the same rule of damages applies.

Judgment reversed, with costs, and complaint dismissed, with costs.

SHEARN, J. I agree that the judgment should be reversed, and the complaint dismissed. Plaintiff did not perform its contract. It was so notified, and was called upon to perform, and it agreed to do the work necessary to make the job complete and satisfactory. Defendant waited nearly three weeks, at great inconvenience, owing to the season and the requirements of their business, and then, as they were justified in doing, and had a legal right to do, finished the job themselves.

GUY, J., dissents.

JACOBS v. KENYON.

(Supreme Court, Appellate Term, First Department. March 18, 1915.) Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by Jenie Jacobs against Neil Kenyon. From a judgment for defendant, plaintiff appeals. Reversed, and judgment directed for plaintiff.

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

Steinhardt & Goldblatt, of New York City (Harold M. Goldblatt, of New York City, of counsel), for appellant.

Reynolds, Thomas & Friedman, of New York City (George G. Reynolds, of New York City, of counsel), for respondent.

GUY, J. There was sufficient competent evidence in this case to support a finding that Shaw, defendant's London representative, had authority to negotiate with plaintiff's assignor, a New York agency, for procuring theatrical engagements for the defendant in this country; that plaintiff's assignor did procure a four weeks' engagement for the defendant at a salary of $1,250 a week; and that defendant's prolongation of a prior engagement was the cause of his failure to perform the American contract.

The plaintiff fairly sustained the burden of proving her claim, and the judg. ment must therefore be reversed, and judgment directed in favor of plaintiff for the full amount claimed, with interest, and costs in both courts.

Judgment reversed, and judgment directed in favor of plaintiff for the full amount claimed, with interest, and costs in both courts. All concur.

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