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BURGER V. AGNEW. (No. 6923.) (Supreme Court, Appellate Division, First Department. March 12, 1915.) Appeal from City Court of New York, Trial Term.

Action by Clarence L. Burger against George B. Agnew. From a determination of the Appellate Term, aifirming a judgment of the City Court of the City of New York, defendant appeals. Reversed, and new trial granted.

See, also, 150 N. Y. Supp. 1078.

Argued before CLARKE, LAUGHLIN, SCOTT, DOWLING, and HOTCH. KISS, JJ.

Alfred A. Wheat, of New York City, for appellant.
Charles Oakes, of New York City, for resisondent.

PER CURIAM. Plaintiff's verdict, directed by the trial court, was for the balance claimed to be due on a contract for the sale to defendant of the rights to an unpatented invention. Plaintiff claims that the transaction was consummated by a telephone conversation on December 9, 1913, by which the defendant bought from him the United States rights and also all foreign rights, for which latter he was to pay $50 for each country in which he (defendant) might thereafter elect to take out patents, the sum so to be paid to include plaintiff's services in preparing and filing the necessary applications; that defendant paid the agreed amount for the United States rights, but failed to exercise his election to apply for patents in any of the foreign countries.

The defendant's version of the agreement is that the United States rights were sold to him outright, and that he had the privilege to elect in what, if any, foreign countries applications for patents should thereafter be filed, and that, on his making such election, the plaintiff should file applications for the countries covered thereby, and that, in consideration of the payment of $50 for his services with respect to each of such applications and his necessary disbursements, the patents when issued should belong to defendant.

The substantial difference between the parties lies in the fact that plaintiff claims that there was a present sale to defendant of the right to file applications in all foreign countries, or in such as the defendant might elect, for each of which plaintiff was to receive $50 and his necessary disbursements, his services in preparing and filing applications to be given gratis; whereas, the contention of defendant is that the contract was one for future services only, and with respect to such applications or countries as he might elect. A careful reailing of the oral testimony of the parties and the roluminous correspondence, beginning with December 1, 1913, and extending down to March 12, 1914, convinces us that there was a question of fact for the jury, and that the court erred in directing a verdict for the plaintiff.

For this reason, the determination and judgment must be reversed, and a new trial ordered, with costs to appellant in all courts tò abide the event.

PEOPLE ex rel. CHAMBERS v. SHULTS, County Treasurer, et al.

(Supreme Court, Appellate Division, Fourth Department. March 3, 1915.)

INTOXICATING LIQUORS (8 4612*)-LICENSES-DUTY OF COUNTY TREASURER.

Under Liquor Tax Law (Consol. Laws, 1909, c. 34) $ 8, as amended by Ratio Act (Laws 1910, c. 491) $ 9, subd. 1, limiting the number of liquor tax certificates to be issued, based on population, and Liquor Tax Law, § 17, as amended, to require the county treasurer to refuse an application for a certificate, if the traffic at the premises is prohibited by the Ratio Act, the county treasurer properly refused relator's application for a certificate which, if issued, would exceed the number permitted to be issued in the city; and the provision that the prohibition should not apply to any premises in which the liquor traffic was lawfully carried on within one year preceding the act had no application where relator's premises were partly in the city and partly in the adjoining town, and his last certificate was issued for premises in the town, and where, if he had carried on the traffic in the premises located in the city, he had done so unlawfully.

[Ed. Note. For other cases, see Intoxicating Liquors, Dec. Dig. $ 4642.* |

Appeal from Special Term, Steuben County.

Certiorari by the People, on relation of George Chambers, against Daniel W. Shults, as County Treasurer of Steuben County, and another. Writ denied (149 N. Y. Supp. 913), and relator appeals. Affirmed.

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

Frank J. Saxton, of Corning, for appellant.
Louis M. King, of Schenectady, for respondents.

PER CURIAM. We are of the opinion that the county treasurer properly refused the relator's application for a liquor tax certificate, for the reason that such certificate, if issued, would exceed the number permitted to be issued in the city of Corning under the provisions of the Ratio Act. Laws 1910, c. 494, § 1, subd. 9, amending Laws 1909, c. 39, § 8, being chapter 34 of the Consolidated Laws, as amended by Laws 1909, c. 281.

The exception contained in that act to the effect that the prohibition therein contained shall not apply to any premises in which such traffic in liquors was lawfully carried on at some time within one year immediately preceding the passage of the act, providing such traffic was not abandoned thereat during said period, has no application to the case in hand, for the reason that the premises covered by the liquor tax certificate in force during that period of time did not include that part of the hotel situate in the city of Corning. The dividing line between the town and city passes through the relator's hotel, so that a part of the hotel is in the town and another part is in the city. The liquor tax is less for premises in the town than in the city, and it seems that the bar of the hotel has been moved from time to time from one part of the hotel building, over the line to another part, and liquor tax certificates have been issued accordingly upon relator's application, in which the *For other cases see same topic & $ NUMBER IN Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

premises were described as being in the town or city as seemed to his advantage.

His last certificate was issued for premises in the town, but the vote of the town upon the local option question prevents the relator from obtaining a liquor tax certificate for the premises in the town, and to avoid the effect of the Ratio Act it is now contended on behalf of the relator that the entire building, including that part located in the city, was covered by his certificate for the town. We are not in accord with this view, but are of the opinion that, if the relator has carried on the traffic in that part of the building located in the city, he has not done so lawfully, and therefore is not within the exception.

As regards the point that the county treasurer is a ministerial officer, and that therefore he was required to issue a certificate if the papers presented to him by the appellant were regular and sufficient on their face, although in fact the certificate would have exceeded the number permitted by the Ratio Act, it is sufficient to say that under the amendment to section 17 of the Liquor Tax Law by chapter 494 of the Laws of 1910, the county treasurer is required to refuse an application for a liquor tax certificate if the traffic at the premises is prohibited by virtue of the Ratio Act; and upon the conceded facts contained in the record, as we view the law, the certificate would be in excess of the number permitted under the Ratio Act, and therefore illegal.

We are therefore of the opinion that the application was properly denied, and that the order dismissing the writ of certiorari and sustaining the action of the county treasurer should be affirmed, with costs.

WORMSER et al. v. RUBINSTEIN et al. (Supreme Court, Appellate Term, First Department. March 4, 1915.) ESTOPPEL (8 102*)-EXTENT OF ESTOPPEL.

Where purchasers of goods, who had paid therefor by delivering notes, paid in due course, after learning that the accounts had been assigned, failed to make any claim to the assignees that the accounts had been paid, though they were estopped to set up payment, they were only estopped to the extent to which the assignees had been damaged, and the assignees could only recover the consideration paid for the assignments, as the doctrine of estoppel can be invoked only so far as necessary to make the injured party whole, and the fact that the seller and the purchasers, who exchanged notes, were kiting notes, did not change the rule.

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. $ 294; Dec. Dig. 8 102.*) Appeal from City Court of New York, Trial Term.

Action by Moritz Wormser and another against Morris Rubinstein and others. From a judgment in favor of plaintiffs for $902.86 damages and costs, and from an order denying a motion to set aside the verdict and for a new trial, defendants appeal. Reversed, and new trial ordered.

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

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

Joseph Sapinsky, of New York City, for appellants.
J. Garfield Moses, of New York City, for respondents.

SHEARN, J. The action is for goods sold and delivered on accounts assigned to plaintiffs. The defense is payment by the delivery of notes to plaintiffs' assignor, which were paid in due course. Defendants purchased yarn manufactured by plaintiffs' assignor. Plaintiffs are bankers.

It is uncontradicted that there was an arrangement made between plaintiffs' assignor, Reissman, who was out of funds and could not make prompt deliveries, that defendants should give their notes to Reissman in lieu of cash advances, the notes to be considered as advances against yarn to be delivered, and that pursuant to the arrangement defendants gave Reissman notes for $873.35 (which included $272.58 for yarn already delivered), $914.75, and $793.11. Simultaneously with the delivery of these notes, Reissman gave defendants notes of his concern for $603.15, $914.75, and $793.11, respectively. It is established without contradiction that defendants paid these three notes last mentioned, aggregating $2,311.01, out of defendants' funds in defendants' bank, and at the time of payment received other notes from Reissman in corresponding amounts, which notes were never paid by Reissman. Defendants contend that these payments were, according to the arrangement made, payments for the merchandise against which the defendants' original notes had been delivered.

Reissman assigned the accounts for the merchandise in question to plaintiffs, who sent invoices to defendants. Although the merchandise had been paid for according to defendants' contention, defendants did not notify plaintiffs of such fact on receipt of the invoices, but now, when sued by the bankers, rely for their defense upon the aforesaid claim of payment. Plaintiffs insist that the defendants are estopped from setting up payment by their conduct in failing to reveal to the bankers that the bills had been paid.

Defendants' conduct was such as to work an estoppel. But defendants are only estopped to the extent to which the plaintiffs have been damaged. Here, concededly, if defendants are held, they will have been obliged to pay twice for these goods. If the defendants are to pay twice, and if this result is to follow from sustaining plaintiffs contention of estoppel, the application of the rule of estoppel necessitates proof of the consideration that the plaintiffs parted with for the assignments. There is no satisfactory evidence in the record showing what the plaintiffs advanced to Reissman for the assignments. If it appeared that the plaintiffs had only advanced half the amount of the bills, it would work a manifest injustice to compel the defendants, on the theory of an equitable estoppel, to pay the plaintiffs the face of their claim, when the full amount of it had already been paid to plaintiffs' assignor. The doctrine of estoppel can be invoked only so far as necessary to make the injured party whole.

It is no answer to this to assert that Reissman and the defendants were kiting notes. Moreover, as pointed out, it is uncontradicted that the amount of the bills, represented by the exchanged notes, was actually paid by defendants in cash. The verdict is contrary to law

and contrary to the evidence, for the estoppel should only apply to the extent to which plaintiffs prove that they have been damaged.

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

cur.

HANER et al. v. FARGO.

(Supreme Court, Appellate Division, Third Department. March 3, 1915.) 1. CARRIERS (8218*)—CARRIAGE OF LIVE STOCK-LIABILITY FOR INJURIESCONFINEMENT WITHOUT Food, WATER AND REST.

Under Act June 29, 1906, c. 3594, § 1, 34 Stat. 607 (U. S. Comp. St. 1913, § 8561), forbidding carriers to confine horses beyond 36 hours without unloading, watering, and resting them, unless prevented by accidental causes, where shippers agreed to load, transship, and unload the horses at their own risk, and during the transportation thereof to unload them whenever necessary, and one of the shippers accompanied them to take care of them, the carrier was not liable for injuries caused by confinement for more than 36 hours, whether or not it had any sufficient excuse to offer to the federal authorities, especially where the shipper accompanying the horses never requested or desired that they be unloaded.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 674-696, 927,

928, 933-919; Dec. Dig. § 218.*] 2. CARRIERS (8 217*)-INJURIES TO LIVE STOCK-LIABILITY-EXEMPTION CON

TRACTS,

Under a contract for the transportation of horses, by which the shippers agreed to take care of the horses while on the road, and one of them was carried free for this purpose, where the car was equipped with ventilators and windows, it was the duty of the shipper accompanying the horses to open the ventilators, or cause the carrier to do so, and where he made no effort in that direction the carrier could not be held liable for injuries to the horses from lack of ventilation.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. $ 931; Dec. Dig.

$ 217.*] 3. CARRIERS 228*)-ACTIONS FOR INJURIES TO LIVE STOCK-SUFFICIENCY OF

EVIDENCE.

In an action for injuries to a shipment of horses, evidence held insufficient to support a jury finding that a delay in transportation of 5 hours beyond the 36 hours provided by the contract caused contagious pneumonia, assuming that such delay was negligent.

(Ed. Note.--For other cases, see Carriers, Cent. Dig. $8 957-960; Dec. Dig. 8 228.*]

Appeal from Trial Term, Greene County.

Action by Henry Haner and another against James C. Fargo, as president of the American Express Company. From a judgment entered in favor of plaintiffs, and against defendant, for $2,387.50 damages and costs, in the sum of $123.25, and from an order denying a motion to set aside the verdict, and for a new trial, defendant appeals. Reversed and new trial granted.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ. •For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

151 N.Y.S.-58

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