O'BRIEN v. JAFFE. (Supreme Court, Appellate Term. June 23, 1904.) 1. LANDLORD AND TENANT-CONDITIONS OF LEASE-WAIVER. A lease provided that rent should commence from the day certain alterations were completed. The landlord notified the tenant that the work was finished, and rent would be expected from a certain date; and the tenant, though the alterations were not then completed, took the keys and stated to the architect that, though there were several things to be done, he would let them go, as he wanted to get in. Held to show a waiver of the condition that the alterations were to be finished before rent began, and an acceptance of the landlord's proposition that rent should commence from the date of the notice of completion. Appeal from City Court of New York. Summary proceedings under Code Civ. Proc. § 2231, by William R. O'Brien as landlord against Jacob Jaffe as tenant. From a judgment for the landlord, the tenant appeals. Affirmed. Argued before FREEDMAN, P. J., and MacLEAN and SCOTT, JJ. Frank J. Griffin, for appellant. Thomas O'Gallaghan, Jr., for respondent. MacLEAN, J. Summary proceedings were instituted by the landlord against his tenant, as holdover, for nonpayment of rent from April 1, 1904, and final order therefor was obtained. By the terms of the lease for five years from January 1, 1904, and coincident writing, it was agreed that the landlord should, among other things, install a steam and hot-water plant in the leased building, and rent, payable on the 1st day of each month in advance, was to commence from the day when the alterations provided for in said writing were completed. At signing, the tenant paid $750, of which the sum of $250 was for rent for the first month, and $500 as security to be applied to the last two months of the term, earning meanwhile 3 per centum. On the 1st day of March, 1904, the landlord, by an attorney, addressed the tenant as follows: "Dear Sir: The building No. 55 Irving Place is now finished and ready for occupancy, and after this date we will look to you for the rent of said premises, and look to you to take charge of and control of the same. "Yours, etc., W. R. O'Brien, "Charles G. Cronin, Atty, &c." No reply seems to have been made, at least during that month. The architect employed by the landlord testified that about the 1st or 2d of March the tenant came to the premises, and— "When he came there, I told him that I was going to take my man out, who was a night watchman, because he said he was coming into the premises. He said, 'All right!' that he would look after it; and that Saturday night I took my man out, and I obtained from my man all the keys which were in his possession, and I turned all those keys over to Mr. Jaffe at that time." The tenant himself testified that he moved into the house about the 19th of March. Later said architect testified that: "Mr. Jaffe on several occasions positively stated to me that there were several little things to be done, but that they would do, and they were satisfactory 88 N.Y.S.-64 to him. and 122 New York State Reporter One occasion was when Mr. O'Brien was present, about the 1st of March. There were several things connected with the building, which according to my views were not just as they should be. Mr. Jaffe said: They are all right. I want the place, and I want to get in there, and we will let them go.' On one occasion, on the 1st of March, he stated that everything was satisfactory to him." This was not denied. There was, therefore, sufficient to find a waiver of conditions and an acceptance of the written proposition of March 1st, notwithstanding the testimony of the architect that prior to the 9th of April he had been working steadily on those premises, and of one Garvey, who did the work on the steam heating plant, that "I turned the steam-heating plant on, on the 13th day of March, and the outlets we ran them on the ceiling and they would not work. We changed them around, so that the people could use the boiler. We had them off for three days; then we turned them around, and steam has been on ever since," and that "the hot-water plant was completed on April 15th." The final order must, therefore, be affirmed. Judgment affirmed, with costs. All concur. LEDERER v. ADLER et al. (Supreme Court, Appellate Term. June 23, 1904.) 1. PROCEDURE-NOTE OF ISSUE-NOTICE OF TRIAL-CONTEMPORANEOUS SERVICE. Under Code Civ. Proc. § 3162, providing that the note of issue must state the date or term for which notice has been given, a cause in which the note of issue was filed before 1 o'clock on a certain day, and the notice of trial served at 4 on the same day, was not improperly on the docket on the ground that the notice of trial should have been served first. Appeal from City Court of New York, Special Term. Action by Emil Lederer against Ettie Adler and others. From an order denying a motion to strike the cause from the calendar, defendants appeal. Affirmed. Argued before FREEDMAN, P. J., and MacLEAN and SCOTT, JJ. Benjamin Reass, for appellants. Henry Kuntz, for respondent. MacLEAN, J. On one and the same date-April 16, 1904-the plaintiff filed his note of issue and served his notice of trial. Inasmuch as the note of issue must have been filed before 1 o'clock in the afternoon of that day, it being a Saturday, and the notice of trial was served at half past 4 o'clock in the afternoon, the appellant contends that this cause was improperly upon the calendar, for the reason that under section 3162, Code Civ. Proc., as interpreted in Miner v. Galvanotype Engraving Co., 30 Misc. Rep. 200, 61 N. Y. Supp. 1102, the notice of trial should be served before the filing of a note of issue, which "must * * * state the date or the term for which the notice has been given." The nicety of sequence in events is hardly commanded by the statute, which does not forbid an attorney or his clerk from preparing the two papers on the same day, and carrying both out at the same time for service and filing, although one may by an hour or two anticipate the other, for, provided due and timely information be given, the law, especially in matters of practice, seldom takes account of immaterial fractions of a day, or depends upon casuistical sequences and subsequences. The order should be affirmed. Order appealed from affirmed, with costs and disbursements. All concur. SALZSTEIN v. KLEINBERG et al. (Supreme Court, Appellate Term. June 23, 1904.) 1. QUANTUM MERUIT-REASONABLE VALUE-FAILURE OF PROOF. A recovery cannot be had on a quantum meruit for services, where there is no evidence of the reasonable value of the services or of any agreed compensation. Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Abraham L. Salzstein against Ignatz Kleinberg and others. From a judgment for plaintiff, defendants appeal. Reversed. Argued before FREEDMAN, P. J., and MacLEAN and SCOTT, JJ. Aaron A. Feinberg, for appellants. William Hauser, for respondent. MacLEAN, J. The plaintiff declared on a quantum meruit in two cases for services rendered at Washington, D. C., at the special instance and request of the defendants, in the matter of obtaining refunds of certain customs charges or duties. He was not entitled to recover upon his first cause, for his brother, whom he made the agent of the defendants, did not appear to have authority, beyond procuring information, to make bargains for services on their behalf, and so, in a measure, confessed. Had there been authority, there was no evidence of reasonable value, or of specified sum agreed upon, if any, for the matter was settled here. As to the second cause, direct negotiations between the parties herein seemingly never ripened into agreement. For these reasons, it being unnecessary to comment on improper receptions of evidence, the judgment rendered in favor of the plaintiff must be reversed, and a new trial ordered. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur. and 122 New York State Reporter LE GENDRE v. SCOTTISH UNION & NATIONAL INS. CO. (Supreme Court, Appellate Division, First Department. June 29, 1904.) 1. FIRE INSURANCE-POLICY-DESCRIPTION-REFORMATION. Where plaintiff intended to insure goods in his house and residence, which was situated in the midst of a large tract of land in a rural community and was the only house plaintiff owned in that county, and the policy described it as located on the "southerly" side of a certain road, when it was on the "northerly" side, plaintiff was entitled to have the policy reformed after loss. 2. SAME ESTOPPEL. There was no estoppel from the fact that plaintiff's agent may have represented the house as on the "southerly" side of the road. Appeal from Special Term, New York County. Action by William G. Le Gendre against the Scottish Union & National Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed. Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O'BRIEN, and LAUGHLIN, JJ. Robert L. Harrison, for appellant. LAUGHLIN, J. This is an action to reform an insurance policy, and to recover upon it, as reformed, a loss sustained by fire. The insurance was upon personal property owned by the plaintiff "or any member of his household," consisting principally of household furniture and effects, "while contained in the frame building, owned by the assured, situate on the southerly side of the upper road leading from Mt. Kisco to Bedford, Westchester county, N. Y. This insurance also to cover the property insured while in transit from Pelham Bridge to the residence of the assured at Bedford." The residence of the plaintiff containing the property was in fact situated on the northerly side of the road specified in the policy. He alleges that the property intended by both parties to be insured was in his house on the northerly side of the road, and that the word "southerly" was inserted in the policy through inadvertence. It appears that at the time this policy was issued the plaintiff owned no other house, and had no other similar personal property, in the county of Westchester. The house is in the middle of an 18-acre tract of land in a rural community, outside of the protection of any regular fire department. At the time of the fire the plaintiff had two other policies of insurance issued by the defendant on his dwelling and contents, one of which was issued before and the other after the policy in question. The first of these likewise erroneously described the dwelling as on the south side of the highway. About six months after the issue of the second policy, the mistake in the first was discovered by Messrs. Harrison & Byrd, insurance agents, who had the first and last policies in their possession, and they forwarded it to the home office, where the mistake was corrected by substitution of a new form containing 1. See Insurance, vol. 28, Cent. Dig. § 267. a correct description. The plaintiff was not aware of the discovery or correction of that mistake, and he did not discover the mistake in the policy now sued upon. The third policy correctly described the location of the property. It was taken out by a mortgagee, and the plaintiff never saw it. The company paid its liability under the first and third policies, but denied its liability under the second, on account of the mistake in the location of the property. The applications for the first and second policies were made, in behalf of the plaintiff, by an insurance broker upon blanks furnished by the company. It described the property as contained in the frame building owned by the plaintiff and situate on the southerly side of this road. The description of the location in the policies was taken from these applications, respectively. The broker had never seen the premises, but testified that he applied for the insurance under written instructions from the plaintiff, and produced the plaintiff's letter, containing the order for the insurance, which was marked for identification, but not introduced in evidence, and it does not appear whether the mistake was made by the plaintiff or by his agent. We regard this as a plain case for the reformation of the policy. It is manifest that the plaintiff intended to insure the property contained in his residence. He doubtless knew, although even that has not been shown, that his house was on the north, instead of the south, side of the road; and it is evident that the erroneous description in the policy, locating his house on the south side of the road, was, at least so far as he is concerned, the result of some inadvertence or mistake. The defendant, however, contends that there was no mistake on its part. It offered no evidence, and, consequently, there is nothing but the facts already stated from which inferences on that subject may be drawn. If the defendant knew the true location of the plaintiff's house, and with such knowledge issued its policy, intending to describe the location erroneously, it was guilty of a fraud which would require the reformation of the contract; but the plaintiff does not charge fraud, and it is not ordinarily inferred where the evidence is susceptible of an interpretation consistent with innocence. Assuming, therefore, that the defendant meant to act in good faith, and that it had no knowledge concerning the location of the property except that presented in the application, then it also labored under a mistake in describing the location of the property. Upon this assumption the defendant intended to insure the plaintiff's personal property contained in his residence. The policy correctly describes the property, and describes it as belonging to the plaintiff and being in his residence; but it erroneously states that the residence was on the southerly, instead of on the northerly, side of the highway. In supposing or believing that the plaintiff's residence was on the southerly side of the road the defendant was mistaken. Plaintiff intended to procure insurance upon the household property in his residence, and that is the property the defendant intended to insure; but in reducing their agreement to writing the word "south" was erroneously inserted, instead of the word "north," as indicating the location of the residence of the assured with reference to the highway. The case, therefore, falls within the doctrine of the au |