and 122 New York State Reporter Action by Charles K. Moore against the Encyclopædia Britannica Company. From an order of the New York City Court denying a motion for an inspection, plaintiff appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. William P. Maloney, for appellant. LEVENTRITT, J. This is an appeal from an order denying an inspection of an alleged written agreement. The plaintiff sued for damages for alleged unlawful discharge under a yearly agreement of employment. As a separate defense the defendant pleaded that the original agreement was abrogated in the course of the year, and that a new contract in writing between the parties was made. The plaintiff, after demand, made a motion to compel inspection of this alleged new written contract, and from a denial of his motion takes this appeal. The moving papers show that he has no knowledge of any such contract, has no copy in his possession or under his control, and he specifically denies that he ever entered into such a contract. There are the usual allegations of materiality and necessity. On these facts he was entitled to an inspection. It is an old and well-settled rule that the remedy extends to all evidence of a documentary nature relating to the merits of the action, whether on the part of the plaintiff or the defendant. Townsend v. Lawrence, 9 Wend. 458. Where it appears that the plaintiff has no copy of a contract which is in the possession of the defendant, an order for inspection is proper. Smith v. Seattle, Lake Shore & Eastern R. R. Co. (Sup.) 16 N. Y. Supp. 417; Bank Note Co. v. Hamilton Bank Note, etc., Co., 5 App. Div. 126, 39 N. Y. Supp. 86. Under the Code provisions and the special authority of rule 14 of the general rules of practice, the plaintiff was entitled to the relief sought. Order reversed, with costs, and motion granted. All concur. ROSENBERG v. KLEIN. (Supreme Court, Appellate Term. May 5, 1904.) 1. EVIDENCE-MEMORANDUM. Where, on an issue as to the delivery of certain silk, a witness testified positively to the facts contained in an entry made by him in a book at the time the silk was returned, and there was no contention that a reference to the book was necessary to refresh the witness' recollection as to the facts, the introduction of the entry in evidence was erroneous, though it was an original memorandum. Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Myer Rosenberg against Philip H. Klein. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Cohen & Cohen, for appellant. Aaron Morris, for respondent. FREEDMAN, P. J. This action was brought by plaintiff to recover the value of two pieces of silk sold to the defendant by the firm of Spielman & Co., assignors of one Rosenfield, the assignor of plaintiff The delivery of four pieces of silk was admitted by the defendant, but he claimed that he had returned them to Spielman & Co. on or about the day of the purchase, and the only question at issue between the parties is whether all four or only two pieces of the silk were returned. On the trial, one Just, a witness called by the plaintiff, testified that at the time the silk was claimed to have been returned by the defendant he was in the employ of Spielman & Co., that he remembered the return of a package received by his employers from the defendant, that he opened the package, and that it contained but two pieces of silk. The package evidently was the one in which the defendant claimed he had returned the four pieces of silk purchased by him. The witness was then allowed to testify, over the objection of the defendant, that he made an entry in a book of the return of two pieces of silk; and the book containing such entry was offered and received in evidence, to which the defendant also objected. The witness testified fully and positively to the facts contained in the entry made by him, and the entry contained no more than the facts embodied in his testimony; and he evinced no lack of memory regarding the facts stated by him, nor was it intimated that his memory was at fault. Although the entry in such a book was undoubtedly an original memorandum, nevertheless there was no reason or necessity for resorting to it, and it does not appear that the defendant had any knowledge of such entry; and it did appear that the witness remembered all the facts contained therein, and to which the entry had reference. It was error to permit such entry to be introduced in evidence under the circumstances disclosed herein. Textile Pub. Co. v. Smith, 31 Misc. Rep. 271, 64 N. Y. Supp. 123; National Ulster Co. Bank v. Madden, 114 N. Y. 280, 285, 21 N. E. 408, 11 Am. St. Rep. 633; Cullman v. Moncrief, 90 App. Div. 538, 541; Driggs v. Smith, 36 N. Y. Super. Ct. 283. The case was sharply litigated, and the testimony pretty evenly balanced. It was tried by a jury, and we cannot say that the error in so admitting the book entry was not prejudicial to the defendant's interest. The book was taken into the jury room, and presumably examined, and we cannot regard the admission of this book in evidence as harmless. Judgment reversed. New trial ordered, with costs to the appellant to abide the event. All concur. BANTJO v. CLARK. (Supreme Court, Appellate Term. May 5, 1904.) 1. LANDLORD AND TENANT-NOTICE TO QUIT-WAIVER-INTENTION. Whether a demand for rent made after the giving of a notice to quit is a waiver of the landlord's rights under the notice is, in summary proceedings to oust the tenant, a question of intention, to be determined by the trial court. and 122 New York State Reporter Appeal from Municipal Court, Borough of Manhattan, Twelfth Dis trict. Summary proceedings by William Bantjo, as trustee, etc., landlord, against George W. Clark, tenant. From a final order for the landlord, the tenant appeals. Affirmed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. H. Huffman Browne, for appellant. Elmer E. Cooley, for respondent. GREENBAUM, J. The facts show that the appellant was a tenant at will, and appellant's counsel concedes that the 30-days notice served upon his client would effect a termination of the tenancy on the date therein fixed. The petition and proofs amply justified the granting of an order awarding possession of the premises to the landlord for a holding over beyond the tenant's term. Appellant claims, however, that the proceedings were not maintainable, because they were brought on two inconsistent grounds-the one for a holding over, the other for nonpayment of rent. It is true that the petition contains a number of allegations relating to the failure of the tenant to pay rent, but they were superfluous, and may well be treated as surplusage. As to whether or not the subsequent demand for rent was a waiver of the landlord's rights under the notice to quit was a question of intention, to be determined by the court below, and his finding in that respect should not be disturbed. The order in summary proceedings is affirmed, with costs. All con cur. COYLE v. INTERURBAN ST. RY. CO. (Supreme Court, Appellate Term. May 5, 1904.) 1. STREET RAILWAYS-REFUSAL OF TRANSFERS-PENALTY-RECOVERY BY ASSIGNEE. The penalty of $50 provided by Railroad Law, § 104, Laws 1892, p. 1406, c. 676, for refusal of a street railroad company to give a transfer, is one "regulated by special provision of law," within Code Civ. Proc. § 1910, making it in such case not enforceable by an assignee. Appeal from Municipal Court, Borough of Manhattan, Ninth Dis trict. Action by Charles J. Coyle against the Interurban Street Railway Company. From the judgment the parties prosecute cross-appeals. Affirmed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Harcourt Bull, for plaintiff. Robert McMarsh, for defendant. GREENBAUM, J. These are cross-appeals from a judgment rendered in an action brought under section 104 of the railroad law (Laws 1892, p. 1406, c. 676) to recover three penalties of $50 each, based on three alleged refusals by defendant to furnish transfers from one street railroad line to another. Judgment was given in favor of plaintiff for two penalties based upon defendant's refusals to furnish him transfers on two separate occasions. The third penalty was sought to be recovered under an assigned claim of one Roach, to whom a transfer had been also refused on one of the occasions when the plaintiff failed to obtain a transfer. The judgment, so far as defendant's appeal is concerned, must be affirmed under the authority of Topham v. Interurban St. Ry. Co., 86 N. Y. Supp. 295, Fox, an Infant, v. The Same, 86 N. Y. Supp. 64, and other cases recently decided in this court. The appeal taken by the plaintiff from the judgment of dismissal upon the alleged cause of action arising out of the assigned claim may be disposed of under the authority of Blake v. Griswold, 104 N. Y. 613. II N. E. 137, which sufficiently discusses the point raised by plaintiff (appellant), and points out that section 1910 of the Code of Civil Procedure confers no right upon a transferee to enforce the payment of a penalty in view of the declaration contained in section 1909 of the Code that an assigned claim is not enforceable "where the rights or liabilities. of a party to a claim or demand which is transferred are regulated by special provisions of law." The penalty here sought to be recovered is both created and "regulated by special provisions of law," and in principle is entirely analogous to the penalty which was the subject of the attempted recovery in the Blake Case, supra. The learned justice properly dismissed the complaint so far as this penalty was concerned. Judgment affirmed, without costs to either party. All concur. PARKER v. HOMAN et al. (Supreme Court, Appellate Term. May 5, 1904.) 1. TRIAL-MOTION TO DISMISS-FAILURE TO MOVE-EFFECT. Failure of a defendant to move to dismiss the complaint, or for judgment at the close of the case, constitutes an admission that the case was properly left to the court for decision. 2. AUTOMOBILES-ACCIDENTS-IMPUTED NEGLIGENCE. Where there was evidence that defendants' employé, on the occasion of an accident with an automobile, had been directed by defendants to accompany the operator of the machine for the purpose of instructing and assisting him in its operation, and that the machine was under defendants' control at the time, the negligence of the operator was imputable to defendants. Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by Patrick Parker against Frank B. Homan and others. From a Municipal Court judgment in favor of plaintiff, defendants Homan and Schulz appeal. Affirmed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Edward Miehling, for appellants. and 122 New York State Reporter PER CURIAM. As no motion for the dismissal of the complaint or for judgment in their favor was made by any of the defendants at the close of the case, they conceded that the case was properly left to the court for decision. Moreover, an examination of the record discloses that the ownership of the automobile at the time of the accident was not conclusively proven to have existed either in the defendants Homan or Schulz or in the defendant Pendleton, and there was sufficient evidence from which the judge could have found that the appellants were still the owners at that time. There was also sufficient evidence to justify the conclusion that the appellants' employé was on the occasion of the accident directed to accompany the operator of the machine for the purpose of instructing and assisting him in its operation, and that, therefore, the negligence of the operator was imputable to the appellants, and that the machine was under their control. The judgment must be affirmed, with costs. TAYLOR v. ENTHOVEN. (Supreme Court, Appellate Term. May 5, 1904.) 1. CHAMPERTY-CONTINGENT FEE-PAYMENT OF Court Costs. Under Code Civ. Proc. § 74, providing that an attorney shall not promise or give a valuable consideration to any person as an inducement to placing in his hands a demand of any kind for the purpose of bringing an action thereon, an agreement by an attorney for a contingent fee of 50 per cent. of the recovery, the attorney to advance all the court costs, is champertous and unenforceable. Appeal from Municipal Court, Borough of Manhattan, Tenth Dis trict. Action by John H. Taylor against Jacques Enthoven. From a judgment for plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Max L. Arnstein, for appellant. PER CURIAM. The letter written by plaintiff's assignor, an attorney at law, to the defendant, explicitly states that the agreement for legal services upon which the recovery is sought provided for a contingent fee of 50 per cent. upon a recovery, the attorney to advance all the court costs. Such an agreement is champertous and unlawful, within the meaning of section 74 of the Code of Civil Procedure. Stedwell v. Hartmann, 74 App. Div. 126, 77 N. Y. Supp. 498; In the Matter of Fitzsimons, 174 N. Y. 15, 23, 66 N. E. 554. The motions to dismiss, made at the close of plaintiff's case and of the entire case upon the ground that the contract was void, should have been granted. Judgment reversed, and new trial granted, with costs to appellant to abide the event. ¶ 1. See Champerty and Maintenance, vol. 9, Cent. Dig. § 26. |