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(183 N.Y.S.).

3. Evidence-462-Parol evidence inadmissible to vary terms of written

contract.

Parol evidence was inadmissible to show that a written contract of sale was in fact an exchange of goods.

4. Trial 284-Failure to except to charge no elimination of valid exceptions to admission of testimony.

Failure to except to court's charge concerning issues raised by incompetent evidence did not eliminate valid exceptions to the admission of the incompetent evidence.

Guy, J., dissenting.

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

Action by the United Display Fixture Company, Incorporated, against S. & W. Bauman. From a judgment entered on a verdict for defendants, plaintiff appeals. Reversed, and new trial ordered. Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ. S. Goodelman, of New York City, for appellant. Samuel I. Frankenstein, of New York City, for respondents.

FINCH, J. The complaint alleges: That defendants purchased from plaintiff certain merchandise, and at the same time plaintiff purchased from defendants certain cloak racks, to be delivered to plaintiff upon the payment of $64.50, made up as follows: Price of racks purchased from defendants by plaintiff...... Price of merchandise purchased by defendants from plaintiff..$54.00 Then due to plaintiff from defendant on a previous transaction 6.50

Balance due defendants....

$125.00

60.50

.$ 64.50

That plaintiff paid to defendants said sum of $64.50, and demanded delivery of the racks, but defendants refused to deliver the same. That said racks, to defendants' knowledge, were purchased for purpose of resale, and were resold by plaintiff for $312.50, for which amount plaintiff demands damages.

The defense was that the contract was made, not with the plaintiff, but with the Royal Display Fixture Company; that the transaction between the parties was not intended to be a sale, but an exchange, with an option to the defendant to refuse to deliver the racks to plaintiff in the event it was not satisfied with the goods which the Royal Display Company "agreed to sell and deliver to the defendants." Defendants also pleaded the statute of frauds.

[1] The contract of sale upon which plaintiff claims was written upon the defendants' order blank by the defendants. It was not actually signed by the defendants, but the defendants' name was printed upon said blank, and under the circumstances said printed. name is to be considered appropriated for a signature, so as to take the case outside the statute of frauds. Cohen v. Wolgel, 107 Misc. Rep. 505, 176 N. Y. Supp. 764.

[2] As to the claim that the contract was not with the plaintiff, it was testified that the plaintiff was a successor of the Royal Company;

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that when the order was presented by defendants' representative, made out in the old name, his attention was called to it, and change requested, but he said, "Never mind; it is the same thing." There is no attempt to rebut this testimony, and in addition the fact that the plaintiff is identical with the Royal Company named in the order, is corroborated by defendant's letter of May 9, 1918 (Plaintiff's Exhibit 8).

[3, 4] The plaintiff, therefore, proved a written contract of purchase and sale between the parties, and it was error to permit testimony to the effect that the agreement was one of exchange, rather than sale, and to further charge that the case depended upon whether there was a sale or an exchange. It is true that the plaintiff did not except to the court's charge, but his omission to do so did not eliminate his valid exceptions to the admission of the aforesaid testimony. Smith v. Appelton, 155 App. Div. 520, at page 523, 140 N. Y. Supp. 565. This error calls for a reversal of the judgment and a new trial. Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event.

WAGNER, J., concurs.
GUY, J., dissents.

(111 Misc. Rep. 224)

CITY OF NEW YORK v. NIXON et al.

(Supreme Court, Special Term, New York County. March, 1920.)

1. Certiorari 60-Motion to quash writ may be made either before or after return thereto.

The writ of certiorari is a discretionary writ, and a motion may be made to quash it, either on the papers on which it was granted or on additional affidavits, and either before or after the return thereto.

2. Carriers 12 (9)-Order of Public Service Commission as to transfers held not to violate franchise or impair reserved rights of city in streets.

An order of the Public Service Commission, authorizing receiver of New York Railways Company to charge two cents for transfers on its line, and excepting any contract rights of city of New York from its operation, does not, in view of the express exception violate previous franchises requiring free transfers; nor does it affect the city in its proprietary capacity as owner of the city streets under Greater New York Charter, §§ 71-74, as no rights of city in its highways are impaired because the transfer charge is not in violation of any contract rights reserved to city in connection with the use of streets.

3. Carriers 18 (2) —Allegations of petition for certiorari to review order of commission as to street car transfers held to be only conclusions.

In a petition for certiorari by the city of New York to review an order of the Public Service Commission, First District, on July 15, 1919, authorizing the receiver of the New York Railways Company to charge two cents for transfers on its lines to July 7, 1920, and an order denying city's application for a reversal or modification of the order, allegations that orders "were made without adequate or competent proof" and that "the receiver ** * failed to submit proper competent or adequate proofs that the proposed increased rate was just or reasonable," were mere conclusions, in view of Public Service Commissions Law, § 49, subd. 1.

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

(183 N.Y.S.)

4. Carriers 18 (2)-Objection in petition for certiorari to review order of commission that appraisal of street railroad did not include inventories held not to make such proof inadmissible.

Objection in such case that the appraisal of company's properties did not include the inventories on which it was based, did not make such proof inadmissible, or make it impossible for Appellate Division to find that there was "competent proof of all the facts necessary to be proved, to authorize the making of the determination" within Code Civ. Proc. § 2140, and in view of Public Service Commissions Law, § 20.

5. Certiorari 60-On motion to quash only the petition need be examined. On a motion to quash certiorari only the petition for the writ need be examined on principles analogous to those on a motion for judgment on the pleadings, in order to ascertain whether petitioner has made out a prima facie case for the issuance of the writ.

6. Certiorari 60-On motion to quash the court must first determine whether the petition establishes a prima facie case.

On a motion to quash a writ of certiorari, the court must first determine whether it appears from the petition that a prima facie case is established which would, under any possible interpretation of the facts as therein alleged, warrant the appellate court in answering questions made by petitioner in the affirmative.

7. Carriers 18 (2) -Conclusions of law, alleged in petition for certiorari to review order of commission, held not to merit consideration.

On certiorari by the city of New York to review an order of the Public Service Commission authorizing the receiver of the New York Railways Company to charge two cents for transfers on its lines to July 7, 1920, allegations in the petition of the commission's violation of certain provisions of the Public Service Commissions Law, without allegations of fact showing wherein such provisions were violated, are conclusions of law not meriting further consideration, within Code Civ. Proc. § 2140. 8. Carriers 12 (61⁄2 ) —Public Service Commission may waive rules as to form of application as to rates.

The Public Service Commission may waive the requirements of its rules as to the form of an application by a carrier for permission to put new rates into effect.

9. Certiorari 31-Writ should not be allowed, except to prevent some substantial injury to applicant.

Before allowing or acting on the writ of certiorari, the court should be satisfied that it is essential to prevent some substantial injury to the applicant, and it should seldom, if ever, be allowed to enable a party to take advantage of mere technical objections.

Certiorari by the City of New York against Lewis Nixon, constituting the Public Service Commission of the State of New York for the First District, and the Public Service Commission, to review an order made by the Commission and an order denying the City's application for a reversal or modification of such order. Motion by the Public Service Commission, First District, to quash the writ, granted.

William P. Burr, Corp. Counsel, of New York City (E. J. Kohler, of New York City, of counsel), for relator.

Terence Farley, of New York City (George H. Stover, of New York City, of counsel), for Public Service Commission.

Winthrop & Stimson, of New York City, for receiver Hedges. GREENBAUM, J. This is a motion made by the Public Service Commission for the First District to quash a writ of certiorari ob

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tained by the city of New York to review an order made by the commission on July 15, 1919, authorizing the receiver of the New York Railways Company to charge two cents for transfers on its lines, to continue in effect up to and including July 7, 1920, and also an order made on October 1, 1919, denying the relator's application for a reversal or modification of the order of July 15th.

[1] The preliminary objection raised by the relator, the city of New York, that the motion is prematurely brought, because made before the return to the writ, is not well taken. As was said in People ex rel. Brooklyn Heights R. R. Co. v. Public Service Commission, 101 Misc. Rep. 10, 11, 166 N. Y. Supp. 825, 826, affirmed 180 App. Div. 895, 167 N. Y. Supp. 1121:

"It is well settled that the writ of certiorari is a discretionary writ, and that a motion may be made to quash the same, either upon the papers upon which it was granted or upon additional affidavits, and either before or after return thereto."

The order of the Public Service Commission now under consideration reads (the italicizing being the court's):

"Ordered that from the date of this order to and including the 7th day of July, 1920, unless hereafter extended by order of the commission, the receiver of the New York Railways Company and the said New York Railways be, and they hereby are, and each of them is, authorized to charge in addition to the regular fare two cents for each transfer demanded by a passenger desiring to make one continuous trip or to take one continuous ride between any two points on the lines, owned, operated or controlled by the said New York Railways Company or its receiver according to the local and joint passenger tariff No. 1 of said company issued and filed under the order of the Public Service Commission for the First District and effective June 1, 1918, except in the case of transfers required by the terms of a municipal franchise, agreement or consent, it being the purpose and intent of this order to authorize the receiver or the company to charge for transfers at and only at such points as the commission is empowered by law to authorize them to charge for transfers."

[2] The principal grounds upon which the motion is based are: (1) · That the city of New York is not a party aggrieved by the determination to be reviewed, since all franchises, whether granted by the city or by its predecessor corporations, and whether granted before or after 1875, are expressly excluded from the operation of the order; and (2) that the petition is insufficient to justify the issuance of the writ. The relator insists that this order constitutes a violation of the terms of various franchises previously granted by the city, which it alleges require the issuance of free transfers at numerous points on the New York Railways Company's lines. It is conceded by the receiver and by the commission that 14 of such transfer points come within the protection of municipal franchises, but it is a disputed question as to whether or not the other 99 of the 113 points where free transfers were given up to the date of the issuance of the order are covered by any franchises granted by the city. It is plain from a reading of the order of July 15th that according to its express terms no rights of the city are affected thereby.

The relator appears to attach considerable importance to International Railway Co. v. Rann, 224 N. Y. 83, 120 N. E. 153, Matter of

(183 N.Y.S.)

Quinby v. Public Service Commission, 223 N. Y. 244, 119 N. E. 433, 3 A. L. R. 685, and other cases which in effect hold that where the city has by the granting of franchises or otherwise entered into contracts with a public service company the public service commission has no authority to pass regulations which will interfere with such pre-existing contract rights. Such holdings are indisputably sound and are not questioned by the respondent here. They are, however, inapplicable to the situation now under consideration, because whatever contract rights the city may have are by the express terms of the order excepted from its operation. A sufficient answer to the relator's contention that it is affected in its ultimate proprietary capacity as owner of the city streets, under sections 71-74 of the Greater New York Charter (Laws 1901, c. 466), is that no rights of the city in its highways are impaired, since the transfer charge is not in violation. of any contract rights of the city reserved in connection with the use thereof.

[3] Turning to the petition itself upon which the writ was originally granted, we find that it is totally devoid of allegations of any facts which might tend to show that the commission did not have before it competent proof of all the facts necessary to be proved in order to authorize the making of the determination. Section 49, subdivision 1, of the Public Service Commissions Law (Consol. Laws, c. 48) authorizes the commission

* * *

"whenever [it] shall be of opinion that the maximum rates, fares or charges collected or charged by any such common carrier, railroad or street railroad corporation are insuflicient to yield reasonable compensation for the service rendered, and are unjust and unreasonable" to "determine the just and reasonable rates, fares and charges to be thereafter observed * with due regard, among other things, to a reasonable average return upon the value of the property actually used in the public service," etc.

*

* * *

The recitals in the petition that "the orders of July 15 and October 1, 1919, were made without adequate or competent proof," and that "the receiver failed to submit proper, competent, or adequate proofs that the proposed increased rate was just or reasonable," are mere conclusions. See People ex rel. Miller v. Peck, 73 App. Div. 89, 92, 76 N. Y. Supp. 328. The allegation that "the receiver in the present case failed to submit any proof of the value of the properties of the New York Railways Company or of the individual companies within the system" is impaired by the statement in the next succeeding sentence that "the receiver, over your petitioner's objection, introduced during the course of this proceeding an appraisal purporting to be an appraisal of the properties of the New York Railways Company made in a previous case."

[4] The objection that this appraisal did not include the inventories upon which it was based, although possibly going to the weight of such evidence, does not make such proof inadmissible and does not therefore render it impossible for the Appellate Division to find that there was "competent proof of all the facts, necessary to be proved, in order to authorize the making of the determination" (Code Civ. Proc. § 2140), particularly in the light of section 20 of the Pub

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