MONTROSE FARMS, Inc., v. ROGERSON. (Supreme Court, Appellate Term, First Department. June 24, 1920.) 1. Clerks of courts 66-Landlord and tenant ~~314-Clerk cannot dismiss summary proceeding on tenant's payment into court of rent claimed. Though 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 such 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 case 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 District. 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 PER CURIAM. This action is brought against defendants for damages for failure on their part to accept and pay for certain goods alleged to have been brought by them from plaintiff. Plaintiff claims that the agreement by which defendants are bound is an order, signed by defendants, addressed to plaintiff, dated August 2, 1918, and marked Plaintiff's Exhibit 1. [1, 2] A previous judgment in plaintiff's favor was reversed by this court (176 N. Y. Supp. 711), because of the refusal of the learned trial judge to admit in evidence another order covering the same goods, similarly signed by defendant, dated August 1st, and on the present trial marked Defendants' Exhibit B. It was intimated in our previous opinion that the introduction of this order would probably be determinative of the question whether the minds of the parties had ever met, since the two orders differed in essential particulars, and both were admittedly signed and sent to the plaintiff at the same time. We also pointed out that in the subsequent correspondence the parties had referred interchangeably to provisions in the one or other order, in so confusing a manner as to make it impossible to determine by their conduct in the premises which order had been accepted as the real contract between them. The respondents' brief frankly concedes that there are material differences in the two papers, but makes the rather startling claim that the terms in the order dated August 2d, upon which plaintiff relies, "are more favorable to defendants than those in the order slip of August 1st." This claim merely emphasizes the impossibility of the court's imposing upon a party a bargain which the court thinks more favorable than some other, in the absence of proof that it was the bargain which the parties made. Respondent also urges that there are "no such promiscuous references" to the two orders in the subsequent correspondence of the parties as were mentioned in the court's previous opinion, "except in plaintiff's letter of January 6th, which was written after defendants' cancellation, and assuredly cannot affect plaintiff's position." While we cannot agree with respondent's counsel's interpretation of the correspondence, it suffices to point out that, regardless of why the plaintiff referred to conflicting provisions of the two contracts, the admission made at any time is equally persuasive of plaintiff's inability to determine which contract was the one upon which he actually relied. We are not convinced by respondent's counsel's conclusion that plaintiff was "quite within his rights in believing *** that the rights of the parties were to be determined by both instruments," since, as hereinbefore mentioned, the provisions were conflicting. We find no escape from the conclusion that the minds of the parties did not meet, and that the judgment must therefore be reversed, with costs of this appeal, and the complaint dismissed on the merits, with appropriate costs in the court below. (183 N.Y.S.) PEOPLE ex rel. HELVETIA REALTY CO. et al. v. LEO et al., Board of Appeals of City of New York. (Supreme Court, Special Term, New York County. June 28, 1920.) 1. Municipal corporations 601-Board of Appeals held to have jurisdiction and not to have abused its discretion by permitting rear wall of additional stories to be built in line of an existing wall. Under the Zone Resolution of the City of New York, § 20, the Board of Appeals had jurisdiction and did not abuse its discretion in permitting owner of four-story building to add five stories by building the rear wall up straight, instead of requiring the wall of additional stories to be back from the line of existing wall, so as to leave a larger rear yard space for light and air, for the building in the rear, where the rear wall of latter building was in the shadow of its own building, and where the court required that rear wall of additional stories of former building be faced with cream or white brick and the upper sash of any windows placed therein to be glazed with prism glass, though performance of such condition would require modification of the design of the steel supports. 2. Certiorari ~64 (1)—New matters included in return to certiorari, but constituting no part of evidence on which determination was based, should be disregarded. On certiorari, where petitioners do not move to strike from the return new matter submitted as a part thereof, such new matter must be regarded as forming a part of the return and included in the papers on which the proceeding is to be determined; but where such matter formed no part of the evidence on which the decision was based, it should be disregarded by the court. 3. Certiorari 64 (1)—Irrelevant matter in return to be disregarded, and not stricken out. Where irrelevant matter is submitted as part of the return, the proper practice is not to strike out such matter from the return, but to disregard it on the hearing on the return made. 4. Certiorari 53-Great liberality allowed in making of returns. Great liberality is allowed officers and boards of officers in making returns, as to the facts upon which they based their action. 5. Certiorari 56 (1)—Facts set forth in return must be accepted as true. On certiorari, facts set forth in the return must be accepted as true, and are conclusive; the court having no right to look behind the return to consider the facts stated in the petition and accompanying papers, except such facts as are admitted. 6. Municipal corporations 192-Review of Board of Appeals' determination limited to matter affecting the board's jurisdiction. On certiorari to review determination of Board of Appeals, under Greater New York Charter, § 719a, the court cannot hear the matter de novo; its jurisdiction being limited to matters affecting the board's jurisdiction under subdivision 4. 7. Municipal corporations 192-Court will not order a reference on certiorari to review determination of Board of Appeals. On certiorari to review determination of Board of Appeals, under Greater New York Charter, § 719a, the court will not order a reference; its only function in such a proceeding being to determine whether the Board of Appeals had jurisdiction, and whether it abused its discretion in taking the action that it did from the evidence before it. Certiorari by the People of the State of New York, on the relation of the Helvetia Realty Company and another, against John P. Leo and others, constituting the Board of Appeals of the City of New York, to review a decision of the Board of Appeals. On defendants' For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes motion for a final order dismissing the writ and confirming the determination. Motion granted. John P. O'Brien, Corp. Counsel, of New York City (William T. Kennedy, of New York City, of counsel), for respondents and the motion. Cravath & Henderson, of New York City (S. Lawrence Miller and Allen B. Flouton, both of New York City, of counsel), for interveners and the motion. Middlebrook & Borland, of New York City (Middleton S. Borland and Percy F. Griffin, both of New York City, of counsel), opposed. GIEGERICH, J. This is a proceeding by certiorari to review the decision of the Board of Appeals under section 719a of the Greater New York Charter (chapter 503 Laws of 1916). The New Pine Street Real Estate Corporation is the owner of the premises Nos. 31 and 33 Pine street, in the borough of Manhattan, New York City, on which stands a four-story building. When the present four stories were erected under permission of the superintendent of buildings in 1905, the plan was ultimately to carry the building to a height of nine stories, and provisions were made accordingly, such as extra strength of the steel frame and extra elevator space reservations. The present owner now wishes to add the projected five stories, and the only question involved concerns the space to be left in the rear between the intervener's building and the building belonging to the relators, which abuts it in the rear. The present owner, the intervener, desires, and the Board of Appeals has granted its application to carry the present rear wall of the building up straight, instead of having the wall for the additional five stories set back from the line of the existing wall, so as to leave a larger rear yard space for light and air. The question for the court to determine is whether, under section 20 of the Zone Resolution, which, so far as necessary to quote, reads as follows: "Section 20. Rules and Regulations-Modifications of Provisions.-The board of standards and appeals, created by chapter 503 of the Laws of 1916, shall adopt from time to time such rules and regulations as they may deem necessary to carry into effect the provisions of this resolution. Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this resolution the board of appeals shall have power in a specific case to vary any such provision in harmony with its general purpose and intent, so that the public health, safety and general welfare may be secured and substantial justice done," -the Board of Appeals has jurisdiction to grant the permission it did in the present case. The board granted the application "on condition that the additional portion of the rear wall of the structure shall be faced with cream or white glazed brick, and that the upper sash of any windows placed in said wall shall be glazed with prism glass." The transcript of the proceedings held before the board on the hearing of the application shows that the board took the view that, inasmuch as the rear wall of the petitioners' building faces the north, it was in the shadow of its own building and could not in any event receive sunlight or light directly from the south, and that the only light those windows could have must be reflected light from the north, |