stead of being strapped, and the counterclaim was for strapping not done, it was improper at the close of the trial to refuse to allow defendant to increase the counterclaim to $300, the amount first claimed.

Appeal from Municipal Court, Borough of Manhattan, First Dis

trict.

Action by the O. Friedlander Chemical Company, Incorporated, against John L. Snowber. From a judgment for plaintiff, after trial by the court without a jury, defendant appeals. Reversed, and new trial ordered.

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

Timothy & McCarthy, of New York City, for appellant.

Coller & Coller, of New York City (Edward H. Coller, of New York City, of counsel), for respondent.

PER CURIAM. Plaintiff sued for a $200 balance due on an order given by defendant for certain medical goods for the use of the government, to be packed in 2,500 boxes. The boxes were to be strapped with a metal strap, and the defendant was to pay 15 cents for strapping. The action was for goods sold and delivered. The answer was a general denial.

When the case was called for trial, six months after the pleadings had been served, defendant asked leave to interpose a counterclaim for $300. This was opposed by plaintiff's counsel, who said he was willing to allow a counterclaim to be pleaded for $140. Defendant then offered to adjourn the trial, if plaintiff claimed surprise. It appeared that the government rejected 2,000 of the boxes because they were wired, instead of strapped. The counterclaim, which was for money paid for the strapping not done, was treated below as one for damages for failure to strap properly. At the close of the case the defendant again moved for leave to increase the counterclaim to the sum of $300. We think amendment should have been permitted, in the exercise of sound discretion.

Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event. ·

UNITED SWEEPING COMPOUND CORPORATION v. OPPENHEIM. (Supreme Court, Appellate Term, First Department. June 14, 1920.)

1. Landlord and tenant 160 (4) —Evidence of condition after termination of the lease insufficient to show breach.

In an action against a guarantor on a lease, which required the tenant to deliver possession in good order and condition, testimony merely as to its condition some time after the tenant had surrendered possession, without any proof of its condition at the expiration of the term, or that the tenant was responsible, is insufficient to sustain recovery.

2. Landlord and tenant ~160 (4) —Where stairway was destroyed, damage recoverable is expense of reconstructing.

Where a lease required the tenant to deliver the premises in good condition, and a stairway was injured or destroyed, the measure of damages For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(183 N.Y.S.)

is the cost of reconstructing a stairway of similar character to that upon the premises when the lease was made, and damages cannot be based on the cost of one in general, as testified to by a layman, which would conform to the factory laws.

Appeal from Municipal Court, Borough of Manhattan, First Dis

trict.

Action by the United Sweeping Compound Corporation against. William Oppenheim. From a judgment for plaintiff, after trial by the court without a jury, defendant appeals. Reversed, and new trial ordered.

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

Bernard Bogart, of New York City, for appellant.

Aron & Wise, of New York City (J. Harlin O'Connell, of New York City, of counsel), for respondent.

WAGNER, J. The indorsement upon the summons was for the breach of covenant in a lease and the action brought against this guarantor. The bill of particulars alleged the lease of the premises to the Benzo Chemical Company, containing covenants that the lessee pay the water rents and charges and assessments during the term, that the tenant should take good care of the premises, make all necessary repairs at his own expense, and at the expiration of the lease deliver up the premises in good order and condition. A breach of both covenants by the tenant was alleged, resulting in a judgment against the defendant, who guaranteed their performance.

[1] We think the judgment must be reversed, for the reason of failure of proof of any breach by the tenant of the covenant to return the premises in the order and condition so provided for in the agreement of letting. The plaintiff attempted to prove that one of the stairways or means of egress from the second floor of the leased factory building was torn down by the tenant and such part of the premises damaged. It appeared that, before the expiration of the tenant's term, the latter had gone into bankruptcy and surrendered the premises to the possession of the plaintiff, and the sole proof of the condition of the building with respect to the stairway is that of plaintiff's representative, who testified to its condition at the time the auctioneer conducted the sale on behalf of the assignee, which was after the defendant had given up possession, and the testimony of another witness who saw the premises even later. During the time of occupancy of the premises by the tenant, no one from defendant's concern had visited the place, and the day of the sale above alluded to was considerably after the tenant had left. There being no proof of the condition at the expiration of the term, or any proof that the lessees were in any way responsible for the alleged situation thereafter found, the judgment cannot stand.

[2] It might be added that, independent of the above, there was no competent evidence offered in the case as to what the damages suffered by reason of the breach of the covenant were. The measure of damage would be the cost of reconstructing a stairway of similar

character to that upon the premises when the lease was made, and not based, as herein, upon the cost of one in general, as testified to by a layman, which conform with the factory laws of the state. The obligation of the tenant was expressly defined by the conditions of the lease, and cannot be further extended.

There are several other errors appearing in the record, which we deem unnecessary to discuss, in view of the above conclusion we have reached.

Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event. All concur.

(192 App. Div. 430)

PEOPLE v. HALL.

(Supreme Court, Appellate Division, Second Department. June 18, 1920.) 20-Evidence held insufficient to show contribution to delinquency

Infants
of child.

In a proceeding under Penal Law, § 494, punishing parents, guardians, or other persons for contributing to the delinquency and offenses of children, evidence held insufficient to convict.

Appeal from Kings County Court.

George Hall was convicted of contributing to the delinquency of a child, under Penal Law, § 494, the judgment was affirmed by the County Court, and he appeals. Reversed, and defendant discharged. Argued before JENKS, P. J., and MILLS, BLACKMAR, KËLLY, and JAYCOX, JJ.

George Gordon Battle, of New York City (Lanman Crosby, of New York City, on the brief), for appellant.

Ralph E. Hemstreet, Asst. Dist. Atty., of Brooklyn (Harry E. Lewis, Dist. Atty., of Brooklyn, on the brief), for the People.

PER CURIAM. The appellant was convicted in the Domestic Relations Court, before one of the city magistrates in the borough of Brooklyn, of violation of Penal Law (Consol. Laws, c. 40) § 494, which reads:

"§ 494. Punishment of Parents, Guardians or Other Persons for Contributing to the Delinquency and Offenses of Children.-1. A parent, guardian or other person having custody of a child actually or apparently under sixteen years of age, who omits to exercise reasonable diligence in the control of such child to prevent such child from becoming guilty of juvenile delinquency as defined by statute, or from becoming adjudged by a children's court in need of the care and protection of the state as defined by statute, or who permits such a child to associate with vicious, immoral or criminal persons, or to grow up in idleness, or to beg or solicit alms, or to wander about the streets of any city, town or village late at night without being in any lawful business or occupation, or to furnish entertainment for gain upon the streets or in any public place, or to be an habitual truant from school, or to habitually wander around any railroad yard or tracks, to enter any house of prostitution or assignation, or any place where gambling is carried on, or any gambling device is operated, or any policy shop, or to enter any place where the morals of such child may be endangered or depraved or may be likely to be impaired, and any such person or any other person who knowingly or willfully is responsibleFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(183 N.Y.S.)

for, encourages, aids, causes, or connives at, or who knowingly or willfully does any act or acts to produce, promote or contribute to the conditions which cause such child to be adjudged guilty of juvenile delinquency, or to be in need of the care and protection of the state, or to do any of the acts hereinbefore enumerated, shall be guilty of a misdemeanor."

Upon appeal the judgment of conviction was affirmed in the County Court of Kings County, and defendant appeals.

We conclude that the evidence before the magistrate did not warrant the conviction of the defendant. The crime specified in the statute involves actual or threatened juvenile delinquency or truancy on the part of the child. The hoy, 11 years of age, was not a truant within the meaning of the statute, nor was there any evidence of delinquency present or prospective. Therefore there was no evidence of lack of reasonable diligence on the part of the defendant, the father of the child, to prevent such delinquency or truancy. It appears that the boy has never attended school, but has been regularly instructed at home by his mother, an educated woman, who had practical experience as a teacher. His instruction is conducted by regular system, of which the mother keeps a record. The hours of study, the course of the teaching, and the regulation of holidays and vacations, appear to be in accordance with those in the authorized schools for children of his age. Upon the whole case we think the judgment of conviction is erroneous, which conclusion is shared by the learned district attorney. Judgment of the County Court of Kings County, affirming judgment of conviction of the City Magistrates' Court (Domestic Relations Court), Borough of Brooklyn, City of New York, reversed, and defendant discharged.

GILLMAN v. DUNMORE WORSTED CO., Inc.

(Supreme Court, Appellate Term, First Department. June 28, 1920.) Sales 82 (3)—Seller can require cash under contract authorizing him to impose credit limit.

Where the sale was "subject to a credit limit, which might be fixed by seller at any time during execution of the order," seller was not liable for refusal to deliver, where for adequate reason it insisted on cash on delivery, which terms the buyer refused to meet.

Appeal from City Court of New York, Trial Term.

Action by George Gillman against the Dunmore Worsted Company, Incorporated. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed.

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

Kleiner, Britwitz & Nadel, of New York City (Lewis Nadel and Joseph Kleiner, both of New York City, of counsel), for appellant. Charles Eno, of New York City, for respondent.

PER CURIAM. It is difficult to make out from the record just. what issue the respective parties thought they were litigating. It is

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

clear, however, that plaintiff is suing for breach of a contract of sale made by defendant to plaintiff, in which it was stipulated that the delivery of goods under the contract "shall be subject to a credit limit, which may be fixed by us [defendants] at any time during the execution of said order." It appears that for adequate reason the defendant, after a time, insisted on cash upon delivery, which terms plaintiff refused to meet. Under such circumstances there was no liability on defendant's part for the further execution of the contract. Judgment reversed, with costs, and complaint dismissed, with costs.

(112 Misc. Rep. 487)

AVERETT v. AVERETT.

(Supreme Court, Appellate Term, First Department.

June 24, 1920.)

Divorce 287—Husband liable on checks for alimony for a period prior to reversal of decree of separation.

A husband is liable on his checks given to his wife, in payment, or to represent the amount of alimony due her under a decree of separation, subsisting and valid when the checks were given and when due, though before they were presented the decree was reversed; he having furnished her no other support for the period covered by the checks.

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

Action by Birdie Averett against Abraham M. Averett. From a judgment (111 Misc. Rep. 542, 183 N. Y. Supp. 702) for defendant, after a trial by the court without a jury, plaintiff appeals. Reversed and directed.

See, also, 189 App. Div. 250, 178 N. Y. Supp. 405; 110 Misc. Rep. 584, 181 N. Y. Supp. 645; 191 App. Div. 945, 181 N. Y. Supp. 927. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

Max D. Steuer, of New York City (Jerome A. Strauss, of New York City, of counsel), for appellant.

William Macy, of New York City, for respondent.

BIJUR, J. Only a question of law is involved in this appeal. Plaintiff sues upon four checks of defendant, dated, respectively, September 22, October 14, October 20, and November 3, 1919, which were presented for payment November 17, 1919, but returned, marked "Payment stopped." It is conceded that the checks were given by the defendant to plaintiff to represent installments of alimony under a decree of separation entered June 27, 1918, at the rate of $60 weekly. The judgment of separation was reversed by the Appellate Division on November 7, 1919 (189 App. Div. 250, 178 N. Y. Supp. 405), and thereupon defendant stopped payment on these checks. It is also conceded that defendant furnished plaintiff no other support than is represented by these checks for the period covered by them. Plaintiff explains that the reason she did not deposit the checks earlier than November 17th was because of the advice of her lawyer on a question. of law.

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