ness in an action pending in the supreme court, and was privileged, defendant appeals. Affirmed.

Argued before FITZSIMONS, and BOTTY, JJ.

Root & Marsh, for appellant.

A. Edward Woodruff, for respondent.

BOTTY, J. In determining the questions arising on this appeal we must be guided solely by the printed record as made up for that purpose. The contention made by the respondent, upon the argument of this appeal, that the defendant appeared generally in this action since the taking of the appeal cannot be considered here. To bring this question before the court, the respondent should have moved for a dismissal of the appeal, on notice to the appellant. The record shows that the plaintiff, a practicing lawyer at the time of the commencement of this action, resided in the city of Rahway, N. J., and had an office for the regular transaction of his business in person within the city of New York. The fact that plaintiff had such an office within the city of New York was sufficient to give the court jurisdiction, as, under the provision of section 3160 of the Code of Civil Procedure, he is deemed a resident of that city.

It also appears from the record that the defendant is a resident of Boston, Mass. He came to New York on the morning of November 7, 1895, for the purpose of attending as a witness in behalf of the plaintiff in the trial of the action of Chrimes against Squier, pending in the New York supreme court. On that day said cause appeared on the day calendar, and was marked "Ready," but at the request of the attorney for the defendant the same was passed for the day. The case did not again appear on the day calendar until November 18th, although the same was marked "Ready," and was liable to be called up at any time. On the morning of November 14th the witness was informed by counsel for the plaintiff that his attendance at court was not required on that day, and that he might go back to Boston, and return on November 18th. The witness, however, remained in the city, and on the afternoon of November 14th, between the hours of 4 and 5 o'clock, he called at the office of Mr. Woodruff, the plaintiff in this action, and was thereafter, and on the same day, served with the summons herein, the service of which he now seeks to set aside.

It seems that the witness' delay in returning home on the day in question was unnecessarily prolonged, and that, at or about the time of the service of the process, he was attending to business of a private nature. By reason of the premises he forfeited his privilege of exemption from service of process. The motion to set aside the

service of the summons was, therefore, properly denied.

Order of November 27, 1895, and the order of resettlement of November 29, 1895, appealed from, affirmed, with costs.

(15 Misc. Rep. 443.)

FUCHS & LANG MANUF'G CO. v. SPRINGER & WELTY CO. (two cases). (City Court of New York, General Term. January 28, 1896.)

1. OPENING DEFAULT-REASONABLE CONDITIONS.

Requiring defendant, as a condition on which a judgment by default will be opened, to deposit with the clerk of the court a certain sum to secure plaintiff's claim, costs, and disbursements, is a fair exercise of the court's discretionary power, where there were subsequent judgments against defendant which would become prior liens if plaintiff's judgment were set aside.

2. SAME-DENYING RIGHT TO APPEAL.

Requiring defendant, as a condition on which a judgment by default will be opened, to consent that the verdict on the trial should be final, and that no appeal should be taken therefrom for any reason, affects the substantial right, and will not be sustained.

Appeal from special term.

Two actions by the Fuchs & Lang Manufacturing Company against the Springer & Welty Company. From a conditional order, made in each case, opening the judgment obtained by default, and allowing defendant to come in and defend the action, and from a final order denying defendant's motion to open the default, because of defendant's failure to comply with the conditions imposed on it by the first order, defendant appeals. Conditional order affirmed in part. order reversed.

Argued before MCCARTHY and BOTTY, JJ.
Boothby & Warren, for appellant.

J. E. Ludden, for respondent.

Final

BOTTY, J. The facts disclosed by the affidavits used on the mo tion to open the judgment taken by default against the defendant show that the defendant was unable to meet its debts, and that its property was sold by the sheriff under and by virtue of several executions issued upon judgments recovered by plaintiff and other credit

ors.

To grant the defendant's motion to open the default without requiring it to furnish security of some sort to satisfy the plaintiff's claims, costs, disbursements, etc., would, in effect, defeat the plaintiff in the collection of its claim, and give other execution creditors a preference over plaintiff. Under the circumstances, the requirement of the deposit with the clerk of this court of the sum mentioned in the order, to secure the plaintiff's claim, costs, disbursements, and expenses of sale, as a condition of opening the default and setting aside the judgment and execution, was not unreasonable; but the same was a fair exercise of the court's discretionary power in the premises, and the same should be sustained.

The other condition imposed upon the defendant by the terms of said order, viz. that it consent that the verdict of the jury upon the trial of the action should be final, and no appeal taken therefrom for any reason, affects a substantial right, of which no litigant should be deprived. We are therefore unable to sustain that part of the order.

Order of September 27, 1895, appealed from, affirmed, without costs, except as to that part thereof which required the defendant to

consent that the verdict of the jury shall be final, and no appeal taken therefrom for any reason. Let the defendant (appellant) have 10 days from the date of the service of the order on this appeal within which to comply with the conditions of said order opening the default; and let the trial of the actions be set down for Monday, February 17, 1896.

The conditional order of September 27, 1895, having been affirmed in part only, it follows that the final order of October 8, 1895, must be reversed. The same is accordingly reversed, without costs.

(15 Misc. Rep. 493.)

BEAL v. AMERICAN DIAMOND ROCK BORING CO.

(City Court of New York, General Term. January 28, 1896.) APPEAL-REVIEW-WEIGHT OF EVIDENCE.

A verdict rendered on conflicting evidence will not be disturbed on appeal. Appeal from trial term.

Action by Byron A. Beal against the American Diamond Rock Boring Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion to set aside the verdict and for a new trial, defendant appeals. Affirmed.

Argued before FITZSIMONS, CONLAN, and BOTTY, JJ.
Burton N. Harrison, for appellant.
Putney & Bishop, for respondent.

BOTTY, J. This action was brought to recover for money loaned by the plaintiff to the defendant through its president. The defense was a general denial, and upon the trial of this action the defendant was allowed to amend its answer by setting up the further defense that the loan was not made to the defendant, but to one Charles A. Tombkins individually, and that said Tombkins paid said indebtedness. No exception was taken by either party to the admission or exclusion of evidence during the course of the trial, nor was any motion made for a dismissal of the complaint; but at the close of the case the defendant moved for the direction of a verdict in its favor, which motion was denied by the court, and an exception was duly taken by the defendant. The case was then submitted to the jury, who found for the plaintiff in the sum of $907.50. The defendant then moved to set aside the verdict, and for a new trial, on the ground that the verdict was against the evidence, and on the further ground that it was against the weight of evidence as well as the sufficiency of evidence, and also that it was against the law.

The questions to be determined on this appeal are: First, does the evidence show that the plaintiff established his cause of action? and, second, whether there was a material question of fact to go to the jury. To arrive at a proper solution of these questions, we must look to the evidence, which shows as follows: That plaintiff, on May 4, 1891, exchanged checks with Charles H. Tombkins, each check being for the sum of $750. The check then held by Tombkins was drawn by said C. H. Tombkins, as president, and Louis F. Bostelman,

as treasurer, of defendant, to the order of said C. H. Tombkins, individually, and was indorsed and delivered by him to the plaintiff in exchange for a check dated May 4, 1891, drawn by the plaintiff to the order of the American Diamond Rock Boring Company, which latter check was indorsed by the defendant in the following manner, viz.: "American Diamond Rock Boring Co., C. H. Tombkins, President." No other indorsement appeared on said check, and the same, thus indorsed, was duly presented for payment, and was paid; whereas the check given by Mr. Tombkins to the plaintiff, which was presented, remained unpaid. But later on, to wit, on or about May 15, 1891, Mr. Tombkins obtained possession of this check which he had thus given to plaintiff, on depositing with the plaintiff some bonds of the Idaho Mining & Irrigation Company, belonging to Mr. Tombkins individually, as collateral security for the payment of a loan on or before June 6, 1891, which said bonds are still retained by the plaintiff. The evidence also shows that the plaintiff had other dealings with the defendant, and also with Mr. Tombkins individually, consisting of loans made by him to defendant and to Mr. Tombkins, and that in the month of September, 1891, the plaintiff, with the consent of the defendant, collected money on the sale of some goods due to defendant, and that he applied part of said money so received by him on account of an indebtedness for money loaned, due from the defendant to the plaintiff, and that at that time the plaintiff was about to apply a portion of the surplus on account of the loan in question, to wit, the sum of $750, but upon the urgent request of Mr. Tombkins, the president of the defendant, he paid over the same to defendant, relying on Mr. Tombkins' promise to pay said sum of $750 within a week or so. Mr. Tombkins, however, testified that the loan of $750 was made to him individually, and that on May 15, 1891, he took up plaintiff's check, which he had received on May 4, 1891, and which was drawn to the order of defendant, and that in lieu thereof he gave the plaintiff certain bonds belonging to him individually, and also $37.50, by check, for interest and commissions due on said loan. We think that the evidence above referred to, as well as the other evidence adduced upon the trial, was of a conflicting character, and presented material questions of fact upon the issues involved, sufficient to justify a submission to the jury. The denial of the defendant's motion for a direction of a verdict in its favor was therefore no error, and the verdict of the jury was in accordance with the law and evidence, and the same was not against the weight of evidence. The judgment and order appealed from must therefore be affirmed, with costs. All concur.

(15 Misc. Rep. 453.)

WALTON v. MATHER.

(City Court of New York, General Term. January 28, 1896.)

JUDGMENT-RES JUDICATA-MISTRIAL.

Rulings as to the admission or exclusion of evidence are without force or effect as to either party, where there was a mistrial.

Appeal from trial term.

Action by Henry E. Walton against Margaret Mather. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed. Argued before FITZSIMONS and BOTTY, JJ.

Dittenhoefer, Gerber & James, for appellant.

Nathan Lewis (Samuel G. Adams, of counsel), for respondent.

BOTTY, J. This action was brought by the plaintiff for damages for breach of a contract of hiring, in discharging the plaintiff, with out cause, before the termination of such contract. On a former trial of this action, upon facts somewhat similar to those adduced upon the last trial, now before us for review, the plaintiff was nonsuited, and an appeal taken to the general term of this court from the judgment entered in favor of the defendant upon such nonsuit. The court, after an elaborate and careful review of the facts before it, reversed the said judgment, and granted a new trial. Walton v. Mather, 4 Misc. Rep. 261, 24 N. Y. Supp. 307. It was there held that the memorandum relied on by the plaintiff, bearing date the 12th day of June, 1890, standing alone, was not a contract, because, by its terms, it was subject to conditions and regulations to be thereafter agreed upon by the parties; that those conditions and regulations could be waived or agreed upon by the parties orally; that the proofs in regard to the authority of Mr. Willoughby to act as the agent of the defendant, and in regard to the question of the waiver of the conditions and regulations on the part of the defendant prescribed in said memorandum, together with the other questions in the case, were sufficient for submission to the jury; and that it was error to nonsuit the plaintiff. We see no reason for dissenting from the views then entertained by the appellate branch of this court.

The question of res adjudicata, raised by the defendant on this appeal,-viz. that on the second trial of this action the trial justice excluded proof offered by the plaintiff of an alleged conversation or interview claimed by the plaintiff to have been had with the defendant in August, 1890, whereby the plaintiff sought to establish the fact that the defendant had waived the conditions and regulations prescribed in the memorandum of June 12, 1890, and accepted the remaining part of said memorandum as the original contract between the parties,-cannot avail the appellant in this instance, because of the fact that the trial justice, after making such ruling, allowed a juror to be withdrawn, with leave to plaintiff to apply at special term to amend his complaint. This, therefore, was but a mistrial, and any ruling as to the admission or exclusion of evidence during the course of such trial is of no binding force and effect upon either party. By reason of the withdrawal of the juror, the case was left in the same condition in which it stood before the commencement of said trial. The questions of law and fact, as presented by the record on this appeal (with the above exception), being almost identical with those presented on the former appeal, we therefore think that the case was properly submitted to the jury, and that the verdict rendered should not be disturbed.

Judgment and order appealed from affirmed, with costs.