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U. S. Rubber Co. v. Silverstein, 166 N. Y. Supp., Western Union Tel. Co. v. Gest, 170 N. Y.

1117. Judgment reversed 128 N. E. 123, Supp. 808. Order affirmed 127 N. E. 923, 228 229 N. Y. 168.

N. Y. 606.
Williams v. Gallatin, 181 N. Y. Supp. 91. Judg-

ment reversed 128 N. E. 121, 229 N. Y. 248. Verschleiser v. Joseph Stern Son, 176 N. Y. Wolff v. United Drug Co., 174 N. Y. Supp.

Supp. 41. Order reversed 128 N. E. 126, 229 926. Judgment reversed 128 N. E. 130, N. Y. 192.

229 N. Y. memoranda, 25. Woodruff v. R. H. Howes Const. Co., 178 N.

Y. Supp. 418. Decree reversed 127 N. E. 270, Walters v. Lehigh Valley R. Co., 167 N. Y. 228 N. Y. 276.

Supp. 1132. Judgment affirmed 127 N. E. Worth v. Burns Bros., 172 N. Y. Supp. 926. 923, 228 N. Y. 588.

Judgment reversed 128 N. E. 111, 229 N. Y. 148.

THE

NEW YORK SUPPLEMENT

VOLUME

183

(192 App. Div. 788)

LEICHTUNG v. NATKIN et al. (Supreme Court, Appellate Division, Third Department. July 8, 1920.) Evidence 593—Hearsay evidence insufficient to support verdict.

In an action by lessee of a boarding house to recover overcharges for transporting guests, defendants charging for transportation of plaintiff's guests, whether transported by them or not, a judgment for such overcharges was not supported, where based on testimony of plaintiff's bookkeeper that she had no recollection of the facts, and did not in all cases have personal knowledge of the method of transportation when she made the entries, but that they were based on inquiries, and that she could not tell what entries or how many she made from personal knowledge; the

evidence being hearsay. Appeal from Sullivan County Court.

Action by Esther Leichtung against Simon Natkin and Meyer Natkin. From a judgment on the verdict of a jury for the plaintiff, and from an order denying defendants' motion for a new trial, after removal of the action to the County Court from a justice of the peace, by notice of appeal demanding a new trial, defendants appeal. Judgment modified and affirmed, and order affirmed.

Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.

Ellsworth Baker, of Hurleyville, and Isadore Rothenberg, of Woodbridge, for appellants.

Nellie Childs Smith, of Monticello, for respondent.

COCHRANE, J. Defendants owned a summer boarding house and leased it to the plaintiff. They agreed to transport boarders between the railroad station and the boarding house on their arrival and departure, for which the defendants were to be paid by the plaintiff 25 cents for each passenger and the same price for each trunk. Bills for these services were to be paid weekly.

It is claimed by the plaintiff that the defendants charged for transporting guests who arrived or departed otherwise than by means of the conveyance of defendants, and that they coerced the payment of such overcharges by depriving the house of its supply of water and gas, and that, compelled by necessity, she paid the bills under protest. She makes a similar claim in regard to machine oil, which the defendants, contrary to the terms of their contract, compelled her to furnish for the gasoline engine which pumped water into the house. This action is brought to recover such overcharges.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

183 N.Y.S.--1

The defendants admit that they deprived the plaintiff of water and gas until she paid her bills, but deny any overcharges.

As submitted to the jury, the plaintiff's claim for transportation overcharges was $29.75, and for the machine oil $12.80, from which was deducted a conceded credit to the defendants of $9.85 for loss of furniture in the house belonging to them, leaving a balance due the plaintiff of $32.70, as claimed by her. This was the amount of the verdict rendered by the jury.

Although the defendants rendered weekly bills, the plaintiff did not produce them at the trial and indicate therefrom which items were incorrect. She attempted to establish the transportation overcharges by her daughter, who acted as her bookkeeper and manager. The daughter testified she indicated in a book, in connection with the arrival and departure of guests, whether they did so by means of the defendants' conveyance or otherwise ; that she had no recollection of the facts, other than from those entries, and she attempted to give her recollection as refreshed thereby. She testified, however, that she did not in all cases have personal knowledge of the method of transportation when she made the entries, but that they were based on inquiries made by her of different individuals, and that she could not tell what entries, or how many, she made from personal knowledge. There were numerous entries, nearly all of which may have been made from statements to the witness by others. The verdict as to these overcharges rests entirely on this hearsay evidence; no other evidence having been offered in support thereof.

It follows that the judgment should be modified, by deducting $29.75 therefrom, and the judgment, as so modified, and order, should be affirmed, without costs. All concur.

(192 App. Div. 834)

WINSLOW v. DAY.

(Supreme Court, Appellate Division, Third Department. July 8, 1920.)

Brokers Om66—Entitled to division of commission, where sale is completed

with known customer before termination of contract for division.

Plaintiff, a broker, had an agreement with defendant, another broker, for a division of commission for sale of land. Plaintiff procured a customer, who made an offer for less than the stated price of the tract, and defendant thereafter closed the sale with that customer for the stated price, knowing that he was plaintiff's customer, but pot knowing of a better offer made by him to plaintiff than plaintiff had communicated. Held, that plaintiff was entitled to his share of the commission. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(183 N.Y.S.) Appeal from Trial Term, Rensselaer County.

Action by Edgar W. Winslow against Joseph P. Day. Judgment for plaintiff. Defendant's motion to set aside the verdict was denied, and defendant appeals. Judgment and order affirmed.

Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.

Sayers Bros., of New York City (Ignatius A. Scannell, of New York City, of counsel), for appellant.

Thomas F. Maxwell, of Troy (Abbott H. Jones, of Troy, of counsel), for respondent.

COCHRANE, J. The defendant, a real estate broker in New York City, placed in the hands of the plaintiff, a real estate broker in the city of Troy, the sale of certain real estate in the last-mentioned city, promising to divide with the plaintiff the commissions of 5 per cent. if the latter procured a purchaser at the price of $20,000. This is an action to recover such commissions. The plaintiff advertised the property and procured a prospective purchaser, who offered $15,000, which offer he subsequently raised to $19,000. The plaintiff, by letter on January 7, 1918, communicated the fact of this last offer to the defendant, but not the name of the person who made it. The defendant on the following day acknowledged receipt of the proposition, saying that he would submit it to the owner, but that he did not think the latter would recede from his offering price. Plaintiff submitted this letter to his customer, and gave him the address of the defendant in New York, and the customer went to the office of the defendant on January 11, 1918, and purchased the property for $20,000, and subsequently consummated the purchase. It is admitted that the purchaser informed the defendant that he had been negotiating with the plaintiff, and had offered him $15,000; but the defendant did not know that he was the same person who had offered $19,000.

The defendant, therefore, knew he was negotiating with the plaintiff's customer. It is immaterial that he received that information from the purchaser, rather than from the plaintiff. Under such circumstances the defendant could not defeat the right of the plaintiff to commissions by himself completing the negotiations which had been begun by the plaintiff. Lloyd v. Matthews, 51 N. Y. 124; Travis v. Bowron, 138 App. Div. 554, 123 N. Y. Supp. 290. The mere fact that defendant did not know all of the negotiations between the plaintiff and the purchaser, resulting in a higher offer for the property than the purchaser admitted he had made, does not affect the question. Had the defendant been in possession of such information, it would not have affected the result. He procured for the property the price which he was demanding. The case of Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, 38 Am. Rep. 441, relied on by the defendant, is not in point. There the negotiations by the plaintiff with his customer were unsuccessful, and the defendant in good faith terminated the plaintiff's contract, and subsequently opened negotiations with the same prospective purchaser, and eventually sold him the property. No such question here exists.

The judgment and order should be affirmed, with costs. All concur.

ODDO v. SMITH. (Supreme Court, Appellate Term, First Department. June 29, 1920.) 1. Courts Cw190 (2)—Denial of interpleader in Municipal Court not appealable.

Order denying motion for interpleader is not appealable. 2. Interpleader m41Money paid into court on mistaken expectation of in

terpleader held improperly ordered paid to plaintiff.

Though defendant had physically paid money into court in mistaken expectation that his motion for interpleader would be granted, yet, it having never been legally considered "ip court," it could not be directed to be paid to plaintiff.

Wagner, J., dissenting. Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Rosolino Oddo against Herbert C. Smith. From two orders, one denying a motion for an order of interpleader, the other directing the city chamberlain to pay over to plaintiff money deposited with the clerk of the Municipal Court to the credit of the action, defendant appeals. Appeal from first order dismissed; second order reversed, and motion denied.

Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ.

Alfonso Bivona, of New York City, for appellant.
Michael Gold, of New York City, for respondent.

PER CURIAM. [1, 2] The order denying the motion for interpleader is not appealable. As to the order directing payment of the fund to plaintiff, although the defendant had physically paid the money into court in the expectation that his motion for interpleader would be granted, the money was never legally considered "in court," and the judge had no power to direct it to be paid to the plaintiff.

Appeal from order denying interpleader dismissed. Order directing payment reversed, with $10 costs, and motion for payment denied, with $10 costs.

BIJUR and MULLAN, JJ., concur.
WAGNER, J., dissents.

UNITED DISPLAY FIXTURE CO., Inc., v. S. & W. BAUMAN. (Supreme Court, Appellate Term, First Department. June 29, 1920.) 1. Frauds, statute of ww115 (2)—Printed name on order blank is to be con

sidered as appropriated for signature.

Where a party ordering goods places the order on an order blank containing its printed name, such printed name is to be considered as appro

priated for a signature, so as to take the case outside the statute. 2. Sales Ow52 (6) -Contract of sale in name of predecessor held contract with

successor.

A written contract of sale of goods containing the name of plaintiff's

predecessor held a contract with plaintiff, under the evidence. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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