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(53 Misc. Rep. 371.)

and 138 New York State Reporter

CHAMBERLAIN et al. v. CHILDS' UNIQUE DAIRY CO. (Supreme Court, Special Term, New York County. March, 1907.) INJUNCTION-ACTS OF TENANT DAMAGES.

Though a tenant cut an arched opening through the wall of a building without authority, a temporary injunction will not be granted to restrain the tenant's use of the opening after its completion, where no special damage was shown and its use was not in violation of the lease. [Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, 10, 11.]

Action by Samuel S. Chamberlain and others against the Childs' Unique Dairy Company for an injunction. Motion denied.

Hotchkiss & Barber, for plaintiffs.

C. J. Shearn, for defendant.

GREENBAUM, J. The act of the defendant in cutting an arched opening in the wall of the demised premises was surreptitious and unjustifiable. It was in violation of the express provisions of the lease and in defiance of the plaintiffs' refusal to consent thereto when permission had been asked. I have no doubt that the act of the defendant was one of waste. In such a case a tenant may be enjoined from committing the waste, where the act is being done or about to be done (Code Civ. Proc. § 1681), or the tenant may be "compelled at once to make satisfaction or to restore the premises to the condition in which he found them" (Agate v. Lowenbein, 57 N. Y. 604, 612).

It is to be observed, however, that the plaintiffs, upon this motion for an injunction pendente lite, only ask to restrain the defendant, its servants or patrons, from passing from an adjoining building occupied by it to the demised premises through the unauthorized opening, which forms a passage between the store of defendant in the adjoining building and the store in the premises in question. The opening in the wall had been made a considerable time before the commencement of this action, and the waste complained of was, therefore, a completed act. I fail to understand why an injunction as for an unlawful trespass against the defendant, its servants, agents, or customers, should be granted, in the absence of any proof of any special injury to the plaintiffs. It is not claimed that defendant is not lawfully in possession of the demised premises, or that the restaurant business conducted thereon is in violation of any covenant or provision of the lease; nor is any fact alleged that the passage of persons through the opening constitutes any injury to plaintiffs.

The case of Orvis v. National Commercial Bank, 81 App. Div. 631, 80 N. Y. Supp. 1029, is readily distinguishable from the case at bar, in that it there appeared that the business conducted under the lease was in direct violation of a covenant thereof, and it also appears that the work of alteration or waste complained of was in progress when the injunction was sought. No such state of facts is here shown.

I do not think that the desired injunction is available to plaintiffs, and the motion is therefore denied.

Motion denied.

AUB et al. v. HOFFMAN.

(Supreme Court, Appellate Division, First Department. June 7, 1907.)

1. PLEADING-BILL OF PARTICULARS.

In an action to recover a lump sum for attorneys' services, the first 11 folios of the complaint alleged that defendant retained plaintiffs to represent her in legal difficulties, enumerating nine subjects, with an estimate of the amount involved in each subject; the only allegations of services rendered being contained in the third paragraph of the complaint. Held, that an order requiring plaintiffs to furnish a bill of particulars in the form of specified charges for each item enumerated in folios of the complaint numbered 1 to 9, which were not items of services, but only of items submitted for consideration, was erroneous.

2. SAME.

Where, in an action for attorneys' services, the complaint charged that plaintiffs had rendered services with reference to nine distinct subjects, the aggregate value of which was charged to amount to $323,000, and sought to recover a lump sum of $15,000, defendant was entitled to a bill of particulars showing plaintiffs' valuation of the services rendered in each of the specified suits or proceedings, and also for the value of any other outside services of a general nature.

Appeal from Special Term, New York County.

Action by Theodor Aub and another against Wilhelmina E. Hoffman to recover for attorneys' services. From an order requiring a bill of particulars, plaintiffs appeal. Modified and affirmed.

Argued before INGRAHAM, LAUGHLIN, CLARKE, SCOTT, and LAMBERT, JJ.

Theodor Aub, for appellants.

Richard D. Currier, for respondent.

CLARKE, J. The complaint alleges that the value of professional services rendered was $15,000; that the plaintiffs have been paid $2,500. The first 11 folios of the complaint set forth that:

"The defendant retained the plaintiffs with regard to legal difficulties involving the consideration, among other things, of the following matters and items. * which, after being unravelled and arranged, presented for consideration and action the following subjects and amounts."

Then follows an enumeration of nine subjects, with an estimate of the amount involved in each subject, aggregating $323,000. The matter covered by these folios, therefore, is simply the subjects presented by the client to the attorneys for consideration. In the third folio the complaint proceeds:

"That pursuant to such submissions, and after systematizing and arranging the various subjects by intense labor and with the speed made necessary by the impending sale of the real property aforementioned, the plaintiffs devised a comprehensive course of action by which, with particular regard to the peculiar circumstances and situation, the rights and claims * * * were in the first place to be prosecuted, * * which plan was adopted after discussion with and explanation to the defendant and with her assent, and in pursuit thereof a suit was brought, in the first instance, for the purpose of enjoining the sale of said real property in Fifty-Sixth street; next, a proceeding was prepared for involuntary accounting against the executors of Henry Steubing, which was changed into a voluntary accounting, which was minutely 104 N.Y.S.-58

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examined; then a proceeding was had in the Supreme Court for the substitation of a trust company in lieu of the testamentary trustees named in the will of Henry Steubing."

And then follows in the complaint a statement of the results obtained by such proceedings.

The defendant made an application for a bill of particulars, in which the plaintiffs should set forth the nature of said work in detail and the charges placed upon each item specified, and the particulars showing how the sum of $15,000, as alleged in the complaint, was computed. The motion was granted, and the order provided that the plaintiffs furnish to the defendant a bill of particulars in the form of specified charges in each item enumerated under Nos. 1 to 9, folios 11 to 15 in the complaint, from which order the plaintiffs appeal. The items 1 to 9 in the complaint contained are not items of services rendered by the plaintiffs as alleged by them, but items of matters submitted to them by the defendant for their consideration. The allegations of services rendered are all contained in the third paragraph of the complaint, as hereinbefore pointed out.

We think that the defendant is entitled to a bill of particulars under this complaint, and that she should be informed in what manner the plaintiffs have made up their lump charge in the sum of $15,000. We think that the order appealed from should be modified, so as to provide that the plaintiffs give a bill of particulars in which they shall enumerate each of the suits or proceedings instituted by them, and the details of the services claimed to have been performed in each of those suits or proceedings, and place a valuation upon the services rendered in each one; that is, we do not require a valuation of each detail, but a valuation of the services rendered which may be by way of a lump sum for each of the suits or proceedings, and, if there be outside of the specific suits or proceedings other services of a general nature, they should be enumerated with such particularity as to indicate the method of computing the bill.

It is clear that, unless such a bill of particulars is furnished, it would be impossible upon this complaint for a defendant to properly prepare for trial. There would be no way in which the charges made for the services rendered could be submitted to other members of the profession for the purpose of obtaining expert evidence to submit to the jury upon the question of the value of the services claimed for. The purpose of a bill of particulars is to make definite that which is indefinite and to facilitate the prompt and orderly trial of the action by confining the issues within definite limits. Under this complaint a bill of particulars is a necessity.

The order appealed from should be modified as indicated, and, as modified, affirmed, without costs. All concur.

VESELL V. SCHREIBER.

(Supreme Court, Appellate Term. June 6, 1907.)

COURTS-MUNICIPAL COURts-Default-OPENING.

In an action in the Municipal Court, where defendant appeared on the return day, the jurisdiction of the court was complete, and the denial of plaintiff's motion to open his default upon the ground that the court was without jurisdiction was error.

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

Action by Albert Vesell against Ezekiel Schreiber. From an order denying plaintiff's motion to open his default, he appeals. Reversed. Argued before GILDERSLEEVE, P. J., and FITZGERALD and GOFF, JJ.

Isadore M. Levy, for appellant.

Ignace Ircing Apfel, for respondent.

PER CURIAM. The defendant having appeared upon the return day, the jurisdiction of the court was complete, and the denial of the motion to open the default upon the ground specified in the order, "that the court was without jurisdiction," was error. Bevins & Rogers, App. Term Pr. c. 10, § 111; Elfenbein v. Rosenthal, 47 Misc. Rep. 380, 94 N. Y. Supp. 40; Droege v. Hertz et al. (Sup.) 95 N. Y. Supp. 570; Wolfert v. N. Y. City Ry. Co. (Sup.) 103 N. Y. Supp. 768. Örder reversed, with costs.

MEISE v. WACHTEL.

(Supreme Court, Appellate Term. June 6, 1907.)

TROVER AND CONVERSION-DESTRUCTION OF PROPERTY.

Where plaintiff delivered to defendant a horse of which defendant was the prospective purchaser for a preliminary trial, on an understanding that if the horse proved satisfactory defendant would pay the agreed price, and the horse during the period of the trial was accidently killed, a subsequent demand for the horse did not render defendant guilty of a conversion thereof.

[Ed. Note. For cases in point, see Cent. Dig. vol. 47, Trover and Conversion, § 99.]

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

Action by Henry Meise against Frederick Wachtel. From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and FITZGERALD and GOFF, JJ.

Hillquit & Hillquit, for appellant.

Welch, Heine & Fall, for respondent.

FITZGERALD, J. Plaintiff was the owner of a mare, which he delivered to the defendant, an intending purchaser, for the purpose

and 138 New York State Reporter

of a preliminary trial, upon the agreement that if the animal proved satisfactory he (defendant) would pay the agreed price. It is conceded that within the period allowed for the trial the mare was accidently killed. The action was tried upon written pleadings, and the complaint sufficiently alleges causes of action in replevin and convertion, and judgment was rendered by the terms of which execution against the person might issue.

It was conceded that plaintiff delivered the mare to the defendant, so that no unlawful taking was established; and the undisputed evidence is that defendant was neither in possession of the property at the time of the demand, nor that he had voluntarily fraudulently or intentionally parted with the same, and consequently could not be chargeable with unlawful detention. Sinnot v. Feiock, 165 N. Y. 444, 59 N. E. 265, 80 Am. St. Rep. 736. The accidental destruction of the property while lawfully in the possession of a defendant is not a conversion. While it may constitute negligence, "the failure to deliver that which is not in being and cannot be delivered furnishes no evidence of an appropriation." Salt Springs Nat. Bank v. Wheeler, 48 N. Y. 492, 8 Am. Rep. 564. Irrespective of the character of the judgment rendered, the record conclusively shows that the question of negligence was not litigated, the learned trial justice having stated:

"All the plaintiff has to make is a demand, which is conceded, and he makes out a cause of action in conversion."

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

LINSLEY v. NEW YORK CITY RY. CO.

(Supreme Court, Appellate Term. June 6, 1907.)

TRIAL INSTRUCTIONS-WITNESSES-FAILURE TO PRODUCE.

Plaintiff was injured while alighting from defendant's street car, and testified that the car was started while he was alighting, while defendant claimed that he attempted to get off after the car had started. Defendant did not produce the conductor as a witness, but defendant produced its investigator, whose duty it was to subpoena witnesses, who testified to his efforts to subpoena the conductor, which were unsuccessful. Held, that it was proper to charge that it was for the jury to say whether defendant's efforts to obtain the conductor were reasonable, so as to overcome the inference that, if present, he would testify against defendant, though the jury was not bound to indulge such inference.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 505.]

Appeal from City Court of New York, Trial Term.

Action by Henry G. Linsley against the New York City Railway Company. From a judgment of the New York City Court in favor of plaintiff, and from an order denying defendant's motion for a new trial, it appeals. Affirmed.

Argued before GILDERSLEEVE, P. J., and FITZGERALD and GOFF, JJ.

Henry A. Robinson (Bayard H. Ames, of counsel), for appellant. Joseph H. Radigan, for respondent.

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