-(195 N.Y.S.) that is, its limited personal interest for the value of the work done, as distinguished from its technical insurable interest to the full value of the goods, as that insurable interest is defined in the cases. The question is whether the reference to interest was for strict inclusion of the personal interest, with strict exclusion of the insurable interest. I think not. Doubt disappears when it is noticed that the term "interest" is used in direct conjunction with the term "legal liability for," so that the full phrase reads (and the policy covers) the "interest in and legal liability for" the goods "in trust.". The bailee's legal liability for loss of the goods in his care extends to loss from riot or commotion as much as from any other risk against which he might forefend by whatever reasonable care required, and since this legal liability is recognized and insured against by these policies in express words, the entire phrase is, as to meaning, controlled thereby. Read as a whole, the phrase is an accurate expression of the rule of the insurer's liability for the insured's full insurable interest, declared in the authorities. And if this construction were matter of doubt, and the terms used consonant as well with the contention of the defendant, an insurable contract must be construed against the insurer, because the insurer wrote the contract, and that interpretation adopted which is most favorable to the insured. Goldman v. Insurance Co. of North America, 194 App. Div. 266, 267, 185 N. Y. Supp. 210; Preston v. Ætna Insurance Co., 193 N. Y. 142, 144, 85 N. E. 1006, 19 L. R. A. (N. S.) 133. [4] The minor contention of the defendant that rule 113 does not apply, because the claim is not on a debt or liquidated damage, is unsound. After loss has occurred under a policy, the liability, theretofore conditional, becomes an absolute one; that is to say, a debt. New York Life Ins. Co. v. Universal Life Ins. Co., 88 N. Y. 424, 429. In Peninsular Transportation Co. v. Greater Britain Ins. Corporation (Sup.) 193 N. Y. Supp. 885, rule 113 was applied in an action for an insurance loss, apparently without question. Motion for judgment in each case is granted. GUNSBERG v. GUNSBERG. (Supreme Court, Appellate Division, Second Department. May 26, 1922.) Appeal and error 203(3)-Objection to improper evidence too late on appeal. It was too late to raise the question on appeal that testimony of defendant was received in violation of Code Civ. Proc. § 831 (Civil Practice Act, § 349), such evidence being offered and received without objection on the part of plaintiff, and plaintiff being given a fair trial and every opportunity to make out a defense. Action by Sophie Gunsberg against Nathan L. Gunsberg. Order denying plaintiff's motion to set aside verdict and for a new trial unanimously affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes PER CURIAM. Order denying plaintiff's motion to set aside the verdict and for a new trial unanimously affirmed, without costs. The testimony of defendant alleged to have been received in violation of section 831 of the Code (section 349 of the Civil Practice Act) was not necessary to prove the charges made. Plaintiff testified on her direct examination as to the same subject-matter. It further appears that all of the so-called improper evidence was offered and received without objection on the part of plaintiff, and presented to the jury with her acquiescence. It is too late to raise the question on appeal, especially in view of the situation disclosed by this record, where it appears that plaintiff was given a fair trial and had every opportunity to make out her defense. See Valentine v. Valentine, 87 App. Div. 156, 84 N. Y. Supp. 37; Lunham v. Lunham, 133 App. Div. 215, 117 N. Y. Supp. 396. HIGGINS v. FOX. (Supreme Court, Appellate Division, Second Department. April 28, 1922.) Landlord and tenant 164(1)-Tenant assumes risk of condition of premises, in absence of inspection or express covenant. Where there was no express covenant of warranty contained in the lease, and lessee did not examine the premises, he assumed the risk of the condition of the premises. Action by Ames Higgins against Robert Fox. Judgment for de- ́ fendant, and plaintiff appeals. Judgment and order reversed on the law and the facts, and new trial ordered. Argued before BLACKMAR, P. J., and RICH, JAYCOX, MANNING, and KELBY, JJ. PER CURIAM. Judgment and order of the City Court of New Rochelle reversed upon the law and the facts, with costs, and a new trial ordered. It was incumbent upon defendant to examine the premises prior to the execution of the lease, and the responsibility of doing this rested upon him. Franklin v. Brown, 118 N. Y. 110, 115, 23 N. E. 126, 6 L. R. A. 770, 16 Am. St. Rep. 744. There was no express covenant or warranty contained in the lease, and under the circumstances defendant assumed the risk of the condition of the premises. Zerega v. Will, 34 App. Div. 488, 490, 54 N. Y. Supp. 361. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (195 N.Y.S.) LUBOW v. LUBOW. (Supreme Court, Special Term, Bronx County. June 27, 1922.) 1. Divorce 255-Judgment dismissing action on the merits concludes parties on all matters involved. Judgment dismissing a complaint on its merits concludes the parties on the subject of alimony as well as other matters involved. 2. Divorce 269 (2)—Remedy of enforcing payment of alimony orders by contempt proceeding held preserved. Where, under the terms of a judgment dismissing a divorce complaint, the orders for alimony and counsel fees were, in effect, continued until the entry of judgment, the remedy of enforcing payment of sums due under the orders by contempt proceedings, under Civil Practice Act, § 1172, was preserved. 3. Divorce 269 (2)-Payment of motion costs not enforced by contempt proceedings. Payment of motion costs cannot be enforced by contempt proceedings. Action by Marie Lubow against Isaac Lubow. On motion to punish defendant for contempt for his failure to pay alimony and additional counsel fee. Motion granted in part. Henry Lieb, of New York City, for the motion. GIEGERICH, J. [1, 2] The plaintiff moves to punish the defendant for contempt for his failure to pay certain arrears for alimony and an additional counsel fee. The motion is opposed by the defendant in person who has filed an answering affidavit. Neither of the parties has submitted a brief. The action was brought by the plaintiff to obtain a separation from her husband on the ground of cruel and inhuman treatment. It appears that on October 17, 1921, Mr. Justice Mitchell made an order. granting to the plaintiff alimony at the rate of $15 per week and a counsel fee of $100. An additional counsel fee of $100 was awarded to the plaintiff by an order dated June 12, 1922, and filed on the following day. The action was tried in March, 1922, and on May 8, 1922, my memorandum dismissing the complaint upon the merits was filed. The decision and judgment were signed on June 13, 1922, and accord-ing to the county clerk's file mark they were filed on June 15, 1922. On June 15, 1922, the plaintiff brought on this motion by an order to show cause dated June 12, 1922, and returnable on the date first mentioned, and on such date the motion was referred to me by the justice presiding at Special Term. By the express provisions of the judgment herein the payment of the alimony heretofore granted under the order of Mr. Justice Mitchell shall cease with the entry thereof, and the order of May 16, 1922, awarding to the plaintiff an additional counsel fee of $100 remains in full force and effect. "The judgment concludes the parties on the subject of alimony, as well as other matters involved in the suit" (Wood v. Wood, 7 Lans. 204, 205), and under its terms the alimony was, in effect, continued until the entry of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes judgment and the order awarding an additional counsel fee was continued in full force and effect. The remedy of enforcing payment of any sums due under the said orders by contempt proceedings was thus preserved. These provisions clearly distinguish the instant case from that of Hayes v. Hayes, 150 App. Div. 842, 135 N. Y. Supp. 225, affirmed 208 N. Y. 600, 102 N. E. 1104, because the judgment of dismissal in the latter case does not appear to have contained any saving clause whatever relative to any intermediate, preliminary, or provisional orders; whereas in the case at bar the prior orders awarding temporary alimony and an additional counsel fee, respectively, were, as seen, expressly continued in full force and effect by the judgment. Such orders, therefore, did not, as in the Hayes Case, fall when the judgment was entered, and the arrears for temporary alimony were not superseded by the entry of the judgment, as they would have been, but for the said provision as to alimony therein contained. Thurston v. Thurston (Sup.) 136 N. Y. Supp. 340; Dietz v. Dietz (Sup.) 136 N. Y. Supp. 341. It follows that the entry of the judgment did not discharge the defendant from the payment of past due alimony, or the additional counsel fee, and that the court has the power to adjudge him guilty of contempt for not paying such sums as may be found to be due under the two orders in question. The provision in the decision and judgment as to the alimony is based upon a conclusion of law proposed by the defendant and which was found by me. The proposed findings of the respective parties, with my notations on the margins thereof, were filed on May 17, 1922, and, as appears from my memorandum accompanying the same, the parties were requested to submit for my signature on notice a decision embodying without change of language all findings made by me. Lubow v. Lubow, N. Y. Law Journal, May 18, 1922. The proposed decision and judgment were not presented for my signature until June 13, 1922, when they were signed, after making corrections, and if the defendant is now required to pay alimony for any period beyond that which he claims it should have ceased, it is entirely due to his own tardiness. In this connection it should be borne in mind that at the close of the trial of the case the parties were requested to submit, upon the final submission of the case, their requests to find. The plaintiff submitted her requests, but none were submitted on behalf of the defendant. In the memorandum deciding the issues of this case, attention was called to such omission, and the defendant was given an opportunity of submitting proposed findings (Lubow v. Lubow, N. Y. Law Journal, May 9, 1922), which were subsequently submitted by his then attorneys of record. It would appear from the papers submitted that there was due for alimony when the present motion to punish the defendant for contempt was brought on by an order to show cause the sum mentioned in the moving papers, viz. $105. So far as concerns the branch of the motion which seeks to punish the defendant for his failure to pay the arrears for alimony amounting to the sum last mentioned, the motion should therefore be granted. The order awarding an additional counsel fee provides: (195 N.Y.S.) "That the defendant pay to the plaintiff herein the sum of one hundred dollars ($100), as an additional counsel fee, in four installments of $25 each, payable weekly; the first installment being payable within five days after the service of the within order with notice of entry thereof." As appears by one of the moving affidavits, a certified copy of such order was served on the defendant on May 18, 1922, so that under the terms thereof the first installment did not become due until five days thereafter, viz. on May 23. The moving affidavit of the plaintiff, upon which, among other affidavits, the order to show cause was granted, was verified on June 10, 1922, and at that time the most that could have been due under the said order awarding an additional counsel fee was the sum of $75, the total of three installments, which became due on May 23, May 30, and June 6, respectively, and the motion. so far as it seeks to punish the defendant for contempt for his failure to pay the sum last mentioned, should be granted. Civil Practice Act, sec. 1172; see Donovan v. Donovan, 153 App. Div. 883, 137 N. Y.. Supp. 1088. It will be seen from what has preceded that $100 only was awarded as an additional counsel fee, and not $110, as claimed by plaintiff. The additional $10 claimed were for costs granted to the plaintiff upon the denial of the motion for a reargument of the motion for an additional counsel fee. [3] Payment of such motion costs cannot be enforced by contempt proceedings. Shepard v. Shepard, 99 App. Div. 308, 90 N. Y. Supp. 982. As was said in the case last cited (99 App. Div. at page 311, 90 N. Y. Supp. at page 984): "The order, therefore, in this respect, is proper. It, however, has gone further than is authorized, as it also adjudges that the defendant is in contempt for failure to pay costs, expenses, fees, and charges. Failure to pay the sum required by these terms, save such costs as are embraced in the immediate motion, cannot be enforced by a summary proceeding to adjudge the defendant in contempt. To this extent the order is unauthorized." Motion granted, to the extent above indicated, but in all other respects denied, without costs, with leave to renew as to the additional counsel fee. Settle order on notice. (118 Misc. Rep. 626) LEO FINKENBERG, Inc., v. CROMPTON BLDG. CORPORATION et al. (Supreme Court, Special Term, New York County. May, 1922.) 1. Landlord and tenant 76(3)-Lessees' assignee not entitled to damages from lessor, who canceled lease for violation of covenant prohibiting assignment without lessor's consent. Where lessees and their assignee, in consummating assignment, knew that it was necessary to procure lessor's consent thereto, the assignee, on cancellation of lease because of violation of covenant not to assign it without lessor's consent, and the execution of a new lease to third party, could not recover damages from lessor on the ground that the assignee's negotiations with lessor for purpose of obtaining consent to assignment estopped lessor from canceling lease under such covenant. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 195 N.Y.S.-3 |