Misc.] Supreme Court, Appellate Term, January, 1915.

on the ground that it was a trade secret. The defendant's attorney took exceptions to the trial judge's rulings.

It will be seen from the foregoing and from an inspection of the record below, which is very much complicated, that the witness Bauer testified, first, to a cost price at forty cents, then at fifty cents, then at sixtyfive cents per dozen, and that to get the cost he would have to refer to the factory records. Throughout his testimony, he seemingly confused the terms "depreciation," "cost price," "value," "loss," etc., as meaning one and the same thing, and did not know on what value he based his claim of depreciation.

The plaintiff affects to sue for the value of the depreciation of the lost goods which he had refused to receive when offered for delivery too late. This is not the measure of damage. He claimed that it became necessary for him to replace the goods, and that he did replace them, and we may assume that the cost of replacing the goods was the measure of the damage which he sustained. To the attempt to bring out on cross-examination the cost of production of the replaced goods, the plaintiff objected on the ground that the cost of production was a trade secret, and under exceptions these objections were sustained. This was, we think, error; first, in allowing improper evidence as to the damage, and, secondly, in denying to the defendant a proper cross-examination which might have shown among other things, the loss sustained. The privilege of what is called" trade secret " is not available under these circumstances.

LEHMAN and WHITAKER, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Supreme Court, Appellate Term, January, 1915. [Vol. 88

LAWRENCE MULLIGAN, as Agent for LAWRENCE MULLIGAN and Others, Landlord, Appellant, v. David KRAUS and FANNY KRAUS, as Executor and Executrix under the Last Will and Testament of GEORGE J. KRAUS, Deceased, and JOHN Z. Lowe, Jr., as Temporary Receiver of the Property of the Copartnership of SULLIVAN & KRAUS, Tenants, and JACOB P. ADLER and Others, Undertenants, Respondents.

(Supreme Court, Appellate Term, First Department, January, 1915.)

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Lease provisions of what sufficient to sustain summary proceedings recovery of possession by landlord.

Where a lease provides that the yearly rent shall be the payment of a certain sum and, in addition, the interest on a first mortgage on the property together with the taxes, water rates and assessments against it, the reservation of the rates, etc., as rent is sufficient to sustain summary proceedings by the landlord because of their nonpayment.

Where, after an owner of property had leased it to a firm of which he was a member, a new partnership agreement was made by which his sole and exclusive ownership of said property was recognized and that the interest of the firm therein was solely that of lessee, the executor of the landlord may maintain summary proceedings to recover possession of the premises for nonpayment by the firm of the sum agreed upon as the yearly rent without waiting for an accounting of the partnership. A right of re-entry contained in a lease does not restrict the landlord to an action of ejectment.

APPEAL from an order of Municipal Court of the city of New York, borough of Manhattan, second district, dismissing a summary proceeding brought by the landlord against George J. Kraus, as survivor of the copartnership of Sullivan & Kraus, tenants.

Misc.]

Supreme Court, Appellate Term, January, 1915.

Ellison & Ellison (William B. Ellison and Benjamin F. Allen, Jr., of counsel), for appellant.

Charles L. Hoffman and Henry A. Friedman, for respondents.

DELANY, J. The proceeding was brought by the landlord to dispossess the tenant Kraus as survivor, etc., of the copartnership tenant by reason of the failure of the tenant to pay the rent of the premises demised.

It appears that on May 22, 1907, Timothy D. Sullivan and George J. Kraus were and for some time before that date had been engaged in the theatrical business as copartners, and that the said Timothy D. Sullivan was and had been the owner of the fee of the premises located at No. 123 to 127 East Thirteenth street and at No. 126 to 128 East Fourteenth street, known as the Dewey Theater, in the borough of Manhattan, city of New York.

On May 22, 1907, the said owner of the premises, Timothy D. Sullivan, as landlord, leased them for a term of twenty-one years to Timothy D. Sullivan and George J. Kraus, as tenants. By the terms of the written lease the letting was agreed to be "at the yearly rent or sum as follows: The payment of the fixed sum of $2,600 and in addition the interest on the first mortgage on said property for the sum of one hundred thousand dollars, together with taxes, water rates and assessments against the said property to be paid semi-annually or as the said obligations may accrue."

Subsequently, and on the 9th of October, 1907, Timothy D. Sullivan and George J. Kraus made an agreement which provided, among other things, that:

Supreme Court, Appellate Term, January, 1915. [Vol. 88.

"First. The parties hereto hereby enter into copartnership under the firm name of Sullivan & Kraus, and as such to be equal owners of all property of every kind and nature formerly belonging to the firm of Sullivan & Kraus

"Third. The said copartnership shall commence on the date hereof and continue for the period of twenty-one years.

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Sixth. The party of the second part shall have the exclusive management of the business of said copartnership.

"Eleventh. It is understood between the parties. hereto that the ownership of the land and building on which the Dewey Theatre premises are situated, is solely and exclusively in Timothy D. Sullivan, the party of the first part hereto, and nothing herein contained is intended to vest in the party of the second part any interest as owner in said land or building, and that the interest of the firm of Sullivan & Kraus shall be solely that of lessees and also owners of the theatrical business therein conducted. It is agreed that the party of the first part for the rent of the said Dewey Theatre premises is to receive the sum of twenty-six hundred ($2,600) dollars per annum net. Said firm is to pay in addition to said sum of $2,600, all carrying charges of any kind or nature on the said Dewey Theatre premises, except interest on mortgages over one hundred thousand ($100,000) dollars which is to be paid personally by party of first part.

"This Agreement is intended to supersede and take the place of all previous agreements in existence between the parties hereto and shall be binding on their heirs, legal representatives and assigns."

After the making of the said agreement Timothy D. Sullivan was paid $2,600 yearly up to September, 1912. He died August 31, 1913, and his will probated October

Mise.] Supreme Court, Appellate Term, January, 1915.

28, 1913, is the source from which the landlord in this proceeding acquired title.

Since the decease of Timothy D. Sullivan and on March 1, 1914, there was due to the landlord under the lease $14,752.62 in water rates, taxes, interest on mortgages and several fixed sums of $2,600 each, which were by the terms of the lease reserved as rent.

Demand was made by the present landlord as successor of Timothy D. Sullivan, upon the defendant Kraus, the survivor of the copartnership of Sullivan & Kraus, tenant, for the rent due and unpaid, and no part of it having been paid this proceeding to dispossess the tenant and the latter's subtenants was taken by the filing of the petition herein, which alleged the title of the petitioning landlord, the original ownership of Timothy D. Sullivan of the fee of the premises, the making of the lease between Sullivan as landlord, and Sullivan & Kraus as tenant, the reservation of the various sums as yearly rent, the provisions for reentry in case of default in payment of the rent, the decease of Sullivan, the probate of his will, the issue of letters testamentary thereon to the petitioning landlord and others, the devise of the said premises in the said will to the said petitioner and others, the sum due as rent and unpaid, the demand for payment and the tenant's failure to pay the same.

The tenant's answer admits the making of the lease between Timothy D. Sullivan, as landlord, and the firm of Sullivan & Kraus, consisting of Timothy D. Sullivan and George J. Kraus, as tenant, the reservation therein of the aforesaid sums as rent, and the provision for re-entry by the landlord in the event of tenant's failure to pay rent. It further admits the copartnership existing between Sullivan & Kraus before the making of the lease, and the making of the copartnership agreement on October 9, 1907, after the making