(183 N.Y.S.)

and that, consequently, they would be better lighted if the board should require a light-colored glazed brick to be used in the rear wall run up on the present lines than they would be if the new rear wall were set back a few feet from the present line and built of ordinary brick, with inferior light-reflecting qualities. The claim was made before the Board of Appeals upon the hearing that it would be a hardship and injustice to the owner of the building proposed to be added to if it should now have to modify the design of the present steel supports to carry the loads of the setback walls down to the foundations, and thereby change the unit loading for which the foundations were originally designed.

[1, 2] The full significance of this claim could better be determined by the experts, which the law requires shall be members of the Board. of Appeals, than by the court. Without discussing the facts at greater length, I think it is sufficient to say that this appears to be a case coming within the jurisdiction of the Board of Appeals to dispose of as they did, and that the disposition they made of it was not an abuse of their discretion.

The petitioners ask that a referee be appointed to take the proofs. In support of such request the argument is advanced that the return shows, not only that there are questions of fact to be determined upon the hearing of the writ, but that the relators should have an opportunity to present their evidence, not only to sustain the allegations of the petition denied by the return, but also in refutation of the new matters of evidence submitted as part of the return, which were not before the Board of Appeals upon the hearing or at the time that it passed its resolution of February 3, 1920, which constitutes its decision.

[3] The new matters referred to consist of blueprint plans and photographs filed after the passage of the resolution of the board. The petitioners made no motion to strike them from the return. They might have made such a motion, if they deemed such plans and photographs were improperly included in the return, and in default of such a motion they must, under the rule laid down in People ex rel. N. Y. Edison Co. v. Willcox, 149 App. Div. 671, 134 N. Y. Supp. 241, be regarded as forming part of the return and included in the papers upon which the proceeding is to be determined.

[4] On the other hand, if the matter objected to is irrelevant, then under the rule laid down in People ex rel. Joline v. Willcox, 198 N. Y. 433, 91 N. E. 1102, the proper practice is not to strike it out from the return, but to disregard it on the hearing upon the return made. [5] The matter objected to is not foreign to the subject under consideration, and as great liberality is allowed officers and boards of officers in making returns as to the facts upon which they based their action (People ex rel. Joline v. Willcox, supra, 198 N. Y. at page 437, 91 N. E. 1102), the petitioners should not, as urged by the respondents, be precluded from raising the point that the plans and photographs are improperly before the court. They formed no part of the evidence upon which the Board of Appeals based the resolution in question a' the time of its adoption and hence they should be disregarded. I have

therefore not considered them in passing upon the various questions presented.

[6] So far as concerns the taking of proofs relative to the matters set forth in the petition and controverted by the return, it should be borne in mind that under the well-established rule which governs a proceeding of this character the facts set forth in the return must be accepted as true and are conclusive, and that the court is not at liberty to look behind the return to consider facts stated in the petition and accompanying papers, except such facts as to which an admission or what is equivalent to an admission is contained in the return. People ex rel. Bernstein v. La Fetra, 171 App. Div. 269, 270, 157 N. Y. Supp. 386, and cases cited; 4 Encyc. Pl. & Pr. 224; West Side Mort. Co. v. Leo, 174 N. Y. Supp. 451.

[7] Moreover, the taking of proofs "for the proper disposition of the matter," pursuant to the provisions of subdivision 4 of section 719a of the Greater New York Charter (chapter 503, Laws of 1916), is limited to such matters as affect the jurisdiction of the body or officers whose action is sought to be reviewed, and hence the matter cannot be heard de novo. West Side Mort. Co. v. Leo, supra, and citations. Apart from all this, and even if I had the power to order a reference, I see no necessity for such course. If this were the kind of a case in which the facts were to be passed upon by the court, then it might well be that a reference to more fully ascertain and report the facts would be useful; but, inasmuch as the function of the court in a proceeding of this character is merely to determine whether the Board of Appeals had jurisdiction to take the action they did take, and whether they abused their discretion on the evidence before them, I do not think a reference should be ordered. My conclusion is that the decision of the Board of Appeals should be affirmed, and the writ of certiorari dismissed.

The motion of the defendants for a final order dismissing the writ of certiorari issued herein, and confirming the determination of the Board of Appeals, is therefore granted. The question of costs will be determined upon the settlement of the order to be entered hereon. Briefs relative to this point may accompany proposed forms of orders, with proof of service. All papers, including those not physically attached to the return, but produced upon the hearing for inspection and examination by the court, have been returned to the clerk.

Settle order on notice.

(183 N.Y.S.)

WINOKUR v. FEDERMAN et al.

(Supreme Court, Appellate Term, First Department. June 14, 1920.) 1. Religious societies 9-Evidence held not to show that the president of a religious association intended to bind himself for a brokerage commission on sale of its property.

Evidence that the president of a religious society conducted negotiations for sale of its property through a broker who stated he was the only person to see in the matter, and that he signed a receipt as president for a small down payment is not sufficient to show an intent to bind himself personally for a commission.

2. Clerks of courts ~66—Judgment 271-Entered by the clerk against defendant, as to which the court did not make any direction whatever, a nullity.

Where, in an action against two defendants, tried without a jury, the court did not direct judgment either for or against one of them, the entry of a judgment by the clerk against such defendant was a nullity. Appeal from Municipal Court, Borough of Manhattan, Second Dis

trict.

Action by Joseph Winokur against Louis Federman and the Congregation Adas Yeshuren. From a judgment for plaintiff, after trial without a jury, defendant Federman appeals. Reversed, and judgment directed, dismissing the complaint as against Federman on the merits, and judgment against the last-named defendant vacated.

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

Louis J. Moss, of Brooklyn, for appellant.

Harry G. Fromberg, of New York City (Isidor Enselman, of New York City, of counsel), for respondent.

MULLAN, J. The plaintiff has had a recovery against the defendant Federman in this action for a brokerage commission for procuring a purchaser of a parcel of realty. The property, until shortly before the material times, had been used as a synagogue by a Jewish religious association, which had taken possession of a new place of worship. The court below did not direct a judgment either for or against the church; but the clerk, without any authority, entered a judgment against the church, as well as against Federman. Only Federman appeals.

[1, 2] The only, question this appeal raises is whether there was sufficient evidence upon which to hold Federman, who was the president of the religious association. We think there was not, and that, on the contrary, it was amply shown that Federman was acting, and intending to act, for the church alone, and that the plaintiff was fully aware of those facts. See, generally, Argersinger v. Macnaughton, 114 N. Y. 535, 21 N. E. 1022, 11 Am. St. Rep. 687. The plaintiff knew that the religious society owned the property, and that Federman was its president. Presumably he knew something about the general organization of Jewish congregations, as he himself was a cantor, singing occasionally for this very congregation. Everything in the record points to his knowledge that Federman had no intention to

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

bind himself personally, except two items of proof upon which plaintiff places his main, and practically sole, reliance. He says that Federman, in giving him the selling terms, informed him in substance that Federman was the only person to see in the matter. That, however, is quite consistent with Federman's position, as Federman was the chief officer of the religious association, and thus was presumably the person most likely to have the right of negotiation.

Plaintiff also stresses the importance of the receipt for a small down payment made by the customer he produced. This receipt was signed "L. Federman, Pr." Rather than serving as an indication that Federman intended thereby to show that he was binding himself personally, I think the addition of the abbreviation of Federman's title in the church is confirmatory of Federman's intent throughout to act merely for the church. See Metcalf v. William, 104 U. S. 93, 26 L. Ed. 665.

Judgment reversed as to Federman, with $30 costs, and judgment directed, dismissing the complaint as against Federman upon the merits, with appropriate costs in the court below. Judgment against the church is vacated, without costs, as a nullity, being unauthorized by the decision. All concur.

(112 Misc. Rep. 219)

GUDE v. NOBLETT.

(Supreme Court, Appellate Term, First Department. June 14, 1920.)

1. Courts 189 (15)—Application to open default in City Court must show reasonable excuse and meritorious case.

On application to open a default in City Court, the moving papers must show both a reasonable excuse for the default, under Code Civ. Proc. § 724, as well as facts establishing a meritorious case.

2. Courts 189 (15)—Affidavits on application to open default in City Court held insufficient to show good excuse.

Affidavits on application to open a default in City Court, stating that "it was impossible" to prepare and serve the answer within the required time, held an insufficient showing of a reasonable excuse.

3. Courts 189 (15)—Default in Municipal Court not set aside to permit defendant to interpose counterclaim.

A default in Municipal Court will not be set aside to permit defendant to interpose a counterclaim or set-off, since in such a case defendant's cross-claim can be made the basis of an independent suit.

Appeal from City Court of New York, Special Term.

Action by Herbert W. Gude against Edward A. Noblett. From an order granting defendant's motion to open his default, permitting him to serve an answer, and vacating the judgment by default and all proceedings taken thereon, plaintiff appeals. Order reversed, and motion denied.

Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

Breed, Abbott & Morgan, of New York City (John S. Sickels, of New York City, of counsel), for appellant.

William H. Hatfield, Jr., of New York City, for respondent.

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

(183 N.Y.S.)

PER CURIAM. Defendant, personally having secured several extensions (56 days) to serve his answer herein, retained an attorney on the day when the answer was finally due, who thereupon asked for a further extension of time, which was declined by plaintiff's attorneys, with the assurance that, if the pleading was served the following day by 11 a. m., it would be accepted. This condition was acquiesced in by defendant, but not complied with. Judgment having been entered on default, application was duly made to open the same, which resulted in the order appealed from.

[1, 2] It is elementary in applications of this character that the moving papers must show both a reasonable excuse therefor as well as facts establishing a meritorious case. The affidavits fail to disclose the presentation of any such facts as required, other than that "it was impossible" to prepare and serve the answer within the time stipulated. This in our opinion was clearly insufficient. Nor do the moving papers set forth a meritorious defense. The answer consists of a defense and counterclaim. The defense rests upon an alleged agreement that plaintiff would deposit certain shares of stock "in such manner as defendant should designate." While alleging that plaintiff did not deposit the stock in question, it fails to set forth that defendant ever designated the manner in which the deposit should be made. There was therefore no duty resting upon plaintiff to deposit such stock, and the defense is insufficient on the face thereof.

[3] A like defect exists as to the counterclaim, which arises out of the stock agreement referred to. There is a further objection to the sufficiency of this counterclaim. The rule is that a default will not be set aside, in order to permit defendant to interpose a counterclaim or set-off. 23 Cyc. 965, note 53; L. R. A. 1916F, 854. The reason of this is that, if facts can be set up as the basis of an independent suit, there is no need to open defendant's default merely to permit him to litigate his cross-claim in that action. Our appellate courts have repeatedly held that these applications are not mere idle ceremonies, and should not be granted, unless the moving papers show that the case is one of "excusable neglect," within the provisions of section 724 of the Code of Civil Procedure, and that the defense proposed is a valid one.

For the reasons stated, the order appealed from is reversed, with $10 costs and disbursements, and the motion to open default denied, with $10 costs.

O. FRIEDLANDER CHEMICAL CO., Inc., v. SNOWBER. (Supreme Court, Appellate Term, First Department. June 14, 1920.) Courts 189 (7)-Refusal of Municipal Court to allow amendment, increasing counterclaim, improper.

In an action in Municipal Court for $200 balance due on medical goods for use of government, which were to be packed in boxes strapped with a metal strap, where defendant, six months after the pleadings had been served, at trial, asked leave to interpose a counterclaim, held, it appearing that the government rejected many boxes because they were wired, inFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes