MONTROSE FARMS, Inc., v. ROGERSON. Supreme Court. Appellate Term, First Department. June 24, 1920.) 1. Clerks of enarts 66–Landlord and tenant 314-Clerk cannot dismiss summary proceeding on tenant's payment into court of rent claimed. Thench payment by the tenant into court of the amount claimed in a petition in a summary proceeding for nonpayment of rent entitled the tenant to dismissal of the proceeding, the clerk has no authority to grant sub dismissal, and the proceeding remains on the court calendar, notwithstanding an order of dismissal by the clerk. 2. Courts 190 (2)—Order of Municipal Court denying motion to reinstate esse on calendar not appealable. An order denying a motion to restore to the calendar a case dismissed by the clerk is not appealable, since it is not a final order in a special proceeding, nor is it an order specially enumerated, under Municipal Court Code, § 154, as appealable, nor an order which the court had no power to make. Appeal from Municipal Court, Borough of Manhattan, Seventh Dis trict. Summary proceeding by Montrose Farms, Incorporated, landlord, against Thomas Rogerson, tenant. From an order denying a motion to restore the proceeding to the calendar for trial, the landlord appeals. Appeal dismissed. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ. Christian S. Lorentzen, of New York City, for appellant. PER CURIAM. The landlord herein instituted summary proceedings against the tenant, alleging that the tenant was holding over without having paid the rent for the month of May, 1920. He claimed that by the terms of the lease there was due as rent the sum of $208.34. A precept was issued and made returnable on May 6, 1920. While attending court for the purpose of answering the call of the calendar, the landlord's attorney discovered that, by mistake of the person who drew the petition, it was drawn for nonpayment of rent, when it had been intended that it should be drawn as for a holding over after expiration of the term of letting. The case was not called, however, and upon inquiry it was ascertained that the tenant had paid into court the amount claimed in the petition, and the clerk had marked the case "settled," and refused to return the papers to the court. Thereupon the landlord made a motion "to restore the case to the calendar,” intending, if the motion was granted, either to move to amend the petition or to discontinue the proceeding. This motion was denied, and the landlord appeals from the order denying the motion. [1] It has been held, under the circumstances here disclosed, that the payment by the tenant into court of the amount claimed entitles the tenant to a dismissal of the proceeding. Flewwellin v. Lent, 91 App. Div. 430, 86 N. Y. Supp. 919. But we know of no authority granted to a clerk of the court to dismiss a proceeding. As we view For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (183 N.Y.S.) the situation, the case is still on the calendar of the court, and we have no doubt that, upon an appropriate application to the court to call the case, it will be called, and the question then determined whether the plaintiff has not the right, at any stage of the proceeding before final order or judgment, as the case may be, to discontinue on payment of costs, where the rights of the defendant (here the tenant) are not prejudiced thereby. See Matter of Butler, 101 N. Y. 307, 4 N. E. 518. [2] The present order, however, is not appealable. It is not a final order in special proceedings; it is not one of the orders specially enumerated under section 154 of the Municipal Court Code (Laws 1915, c. 279) as appealable; and it is not an order which the court has no power to make, because clearly the court has power over its own calendar. Appeal dismissed, with $10 costs. BAXTER v. IGLESIAS et al. (Supreme Court, Appellate Term, First Department. June 24, 1920.) 1. Sales 52 (5) —Insufficiency of evidence as to which of two contracts was agreed on cannot be aided by fact that respondent relies on contract least favorable to it. In action against buyers for failure to accept and pay for goods, insufficiency of the evidence to show which of two orders had been accepted as the real contract between the parties cannot be remedied by respondent seller's claim that the terms of the order upon which he relies "are more favorable to defendants than those of" the other order, as the court cannot impose upon a party a bargain which the court thinks is more favorable than some other, in the absence of proof that it was the bargain made. 2. Evidence 265 (18) —Admission as to uncertainty as to contract no less binding because made after other party's cancellation. In action against buyers for failure to accept and pay for goods, defended on the ground that the evidence was insufficient to show which of two orders had been accepted as the real contract between the parties, an admission by plaintiff in his correspondence with defendants, indicating his inability to determine which contract was the one upon which he actually relied, lost none of its force as such an admission from the fact that it "was written after defendants' cancellation." Appeal from Municipal Court, Borough of Manhattan, Third Dis trict. Action by William J. Baxter against Laurens Iglesias and others. From a judgment for plaintiff, after a trial by a judge without a jury, defendants appeal. Reversed, and complaint dismissed on the merits. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ. Joseph Kahn, of New York City (Louis Ogust, of New York City, of counsel), for appellants. Eugene E. Sperry, of New York City (Nicholas A. Heymsfeld, of New York City, of counsel), for respondent. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the street was dangerous for travel, nor any person working there at the time; the workmen presumably having left for the day. It was conceded on the record that the defendant company, under a contract with the city of New York requiring it to observe the ordinances of the city as to the placing of guards about portions of the street where paving work was in progress, was on the day in question repaving the street on its westerly side near Eighty-Ninth street, which work had not been completed. We think that the trial justice, in granting the motion to dismiss at the end of plaintiff's case, committed error, that the plaintiff was made out a prima facie case, and that defendant should have been put to its proof. Under the evidence as disclosed, the jury could have readily inferred, in the absence of any evidence to the contrary offered by the defendant, that the latter under its contract with the city was repaving the very portion of the street where the plaintiff fell, and that it had not fulfilled its obligation to maintain it in a safe condition at the time of the accident and during the performance of its work. The very nature of the accident, in the absence of proper explanation by the defendant, afforded reasonable evidence that it was caused by the latter's negligence. Marmer v. Richard Carvel Co., 167 N. Y. Supp. 850. Under such circumstances, the dismissal of the complaint was improper, and the judgment must be reversed. Judgment reversed, and new trial ordered, with $30 costs to the appellant to abide the event. BIJUR, J., concurs. DELEHANTY, J. I dissent. There is not the slightest bit of evidence connecting defendant with the condition which caused plaintiff's accident, and the complaint was therefore properly dismissed. The judgment, in my opinion, should be affirmed, with costs. GLADSTEIN et al. v. MANHATTAN SWISS EMBROIDERY CO. (Supreme Court, Appellate Term, First Department. June 16, 1920.) 1. Sales 168 (2) -Buyer must give prompt notice of rejection but has a reasonable time for examination. It is the duty of a buyer to promptly examine goods, to see whether they comply with his order, and to give notice of rejection if they are defective; but he has a reasonable time for such acts. 2. Sales 182 (4)—Question of reasonable time for examination ordinarily for the jury. What is a reasonable time for examination to determine whether goods correspond to an order is usually a question of fact for the jury, to be determined under all the circumstances, including the situation and liability of injury to the seller from delay, as well as the convenience and necessities of the buyer. 3. Sales 168 (3)—Where test of goods cannot be made until used, buyer is not foreclosed before test. When, from the terms of the contract or nature of the property, an examination of goods sold can be made only when used, and that was the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (183 N.Y.S.) mode of examination contemplated, the buyer is not foreclosed until the test is made. 4. Sales 182 (4)—Whether buyer was warranted in rejecting goods on test made nearly two months after delivery is for the jury. Where defendant ordered net to be manufactured into embroidery, and asserted plaintiff's salesman represented it was suitable for that purpose, the question whether the buyer could reject the goods, nearly two months after delivery, when being placed on a machine, they proved defective, held, under the evidence, a question for the jury. Appeal from City Court of New York, Trial Term. Action by Sam Gladstein and others against the Manhattan Swiss Embroidery Company, a New York corporation. From a judgment and order for plaintiffs, defendant appeals. Judgment and order reversed, and new trial granted. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ. S. Goodelman, of New York City (Frank Walling, of New York City, of counsel), for appellant. Milton G. Buchdahl, of New York City (J. George Metz, of New York City, of counsel), for respondents. DELEHANTY, J. The question raised upon this appeal is whether a verdict for $521.65 in favor of the plaintiff was properly directed in the court below. The record shows that the plaintiffs' salesman visited the defendant for the purpose of selling a quantity of ecru net, and obtained an order therefor; the goods being delivered on or about October 29, 1919. On December 15th following the defendant placed the net upon its looms for the purpose of testing it out, and manufacturing embroidery thereon, when, according to defendant's claim, the net was found to be unsuitable for the purpose for which it was sold, and that defendant thereupon rescinded the contract of sale. The court below ruled that the date upon which the defendant made its test was as a matter of law beyond a reasonable length of time, and that the contract, therefore, could not be rescinded, and directed the jury to find a verdict in favor of the plaintiff for the purchase price of the goods. [1-3] The law in such cases has been frequently stated to the effect that it is the duty of the purchaser to act promptly in making examination of goods sent upon his order, to see whether they comply therewith, and to give prompt notice to the vendor of their rejection, if found defective, if he intends to avail himself of that remedy. But the vendee has a reasonable time for examination and to give notice, and what is a reasonable time is usually a question of fact, and not of law, to be determined by the jury upon all the circumstances, including as well the situation and liability of injury to the vendor from delay, as the convenience and necessities of the vendee. Pierson v. Crooks, 115 N. Y. 539, 551, 22 N. E. 349, 12 Am. St. Rep. 831; Salmon v. Grosvenor, 66 Barb. 160, 165; Cross v. Beard, 26 N. Y. 85, 89; Graecen v. Poehlman, 191 N. Y. 493, 84 N. E. 390, 14 Ann. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 183 N.Y.S.-2 Cas. 329. But when from the terms of the contract or the nature of the property, the examination can be made only when it is used, and such was therefore the mode of examination contemplated, the vendee is not foreclosed until the test is made. Sorg Co. v. Crouse, 88 Hun, 246, 34 N. Y. Supp. 741, 743; Gurney v. Railroad Co., 58 N. Y. 358, 364. [4] In the case at bar we find that the defendant was in the market for a quantity of net upon which to manufacture embroidery for a concern known as Maksoud & Co.; that the plaintiff's salesman called at defendant's office, and stated that he was sent there by Mr. Maksoud, and exhibited a sample of ecru net. Defendant's president inquired if the goods would be suitable for manufacturing embroidery, and the salesman stated he was selling it to embroidery manufacturers for that purpose. The president of defendant also testified, referring to the conversation had with the salesman at the time: "I told him: The only way I can tell if that goods could be made into lace is to put that on the machine.' He said to me: 'Why, I am selling that to the embroidery trade. We never had a complaint.' And I said: 'All right, so long as you haven't any complaint, we can try it. As soon as we get the net, and put it on the machine, we will manufacture and see whether these are good.'" He further testified that the salesman said: "All right; I will send them up, and at any time you are ready to put them on the machine, I am satisfied." There was some dispute as to whether these statements were made by the salesman, but it appears to me that it was the duty of the court to submit the question of reasonableness of time to the jury for decision, in view of the foregoing evidence in the record, together with the fact that during the interim from October 29, 1919, the date of the delivery of the goods, up to the 15th day of December, 1919, the defendant was busily engaged in manufacturing embroidery for its customers and on the 15th day of December, 1919, it took out the net in question from the storeroom to fill the order of Maksoud & Co., which date defendant testified was the first opportunity it had to do so. If the parties contemplated that the goods were to be of a high grade, suitable for the manufacture of embroidery, and that defendant was to have the privilege of testing them out at any time when he was ready to put them on the machine, then the facts adduced by the defendant may have justified his delay in making the examination. At any rate it was, under the circumstances, a question that should have been submitted to the jury. Judgment and order accordingly reversed, and new trial granted, with costs to appellant to abide the event. All concur. |