MINKOFF v. LIPSCHUETZ et al. (Supreme Court, Appellate Term. May 5, 1904.) 1. JUDGMENTS-CONCLUSIVENESS-SIMILARITY OF ISSUES. Where, in an action for the price of goods, the only question litigated was whether the goods were of the kind and quality ordered, which issue was resolved in favor of the sellers, the acceptance of a return of the goods being in no way involved, a judgment therein was not conclusive of a subsequent action by the buyers for the wrongful detention of the goods. Appeal from Municipal Court, Borough of Manhattan, Thirteenth District. Action by Hyman Minkoff against Harris Lipschuetz and another. From the Municipal Court judgment in favor of plaintiff, defendants appeal. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Abraham Harawitz, for appellants. Louis J. Jacoves, for respondent. PER CURIAM. The action was brought to recover damages for the wrongful detention of two pieces of goods. The answer admits the demand and refusal, but denies the previous delivery of the goods. to the defendants, and, as an affirmative defense, pleads a judgment previously recovered in the Municipal Court in an action wherein these defendants were plaintiffs and the present plaintiff the defendant, to recover the purchase price of the goods in suit upon a sale and delivery of them to the then defendant. The only question litigated in the former action was whether the goods were of the kind and quality ordered, and that issue was resolved in favor of the vendors. Although evidence was introduced tending to show that the goods were returned to the vendors, the acceptance of the goods by the plaintiffs in the former action was in no way involved in the issues presented in that case. The question in this case is one of possession, and the judgment in the former action is not a bar to a recovery here. Upon the evidence, however, we feel that the plaintiff has failed to sustain the burden of proof upon the question of delivery. The testimony of the plaintiff's witnesses was contradictory, and in conflict with their testimony given on the former trial, and upon the whole case we think that the interests of justice require a new trial. Judgment reversed and new trial ordered, with costs to appellants to abide the event. and 122 New York State Reporter BERRY V. METROPOLITAN LIFE INS. CO. (Supreme Court, Appellate Term. May 5, 1904.) 1, LIFE INSURANCE-ACTION ON POLICY-EVIDENCE. Where plaintiff introduced the policy sued on in evidence, on the back of which appeared a copy of the application purporting to have been signed by insured, and plaintiff herself had stated that deceased made the ap plication, she was estopped to introduce proof that insured never signed the application, for the purpose of obviating the effect of evidence of a physician showing a breach of warranty. 2. SAME-SUFFICIENCY OF EVIDENCE. Evidence that plaintiff's deceased husband did not sign an application for the policy sued on on a particular occasion was insuflicient to establish the fact that he did not sign the policy. Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by Henrietta Berry against the Metropolitan Life Insurance Company. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Ritch, Woodford, Bovee & Butcher, for appellant. GREENBAUM, J. The defense to this action on a policy of life insurance was a breach of warranty by the insured. The application, a copy of which appeared on the back of the policy, which the plaintiff put in evidence, contained a statement that the insured had "never been under treatment in any dispensary, hospital, or asylum, nor been an inmate of any almshouse or other institution, except two years ago, rheumatism, Mt. Sinai Dispensary." The plaintiff herself admitted en cross-examination that in 1901 her husband, the insured, had been at the Presbyterian Hospital for three days for treatment of his arm, and defendant's proofs tended to establish the same fact. To avoid the effect of this, the plaintiff, after both sides had rested, moved to strike out the physician's testimony. This motion having been denied, she was permitted, over defendant's objection, to give evidence tending to prove that the insured never signed the application for the policy. Both sides practically acquiesced in the theory of the case, as presented to the jury, that, if the insured did make the application, the proofs showed a breach of warranty. In allowing such proof, the trial court clearly committed error. Plaintiff was concluded by her own evidence from establishing this fact. She had herself offered in evidence, and her case rested upon, the policy and claim of loss. The former recited that it was issued "in consideration of the statements in the printed and written application for this policy, a copy of which is hereto annexed, all of which are hereby made warranties and part of this contract," and the copy of the application is marked, "[Signed] Michael J. Barry." In the latter plaintiff herself states in answer to question 20, "Who made application for this insurance? State name and relationship": "Deceased himself." Having asserted her contract, she could not attack the basis and consideration for it, which she herself proved to support it. Beyond what has been said, she wholly failed in establishing the fact that her husband did not sign the application. Her testimony merely proved that on the occasion of the doctor's visit at their home her husband signed no paper. Non constat that at some other time and at some other place he did sign it. The original application was not brought into court with proof either that there was no signature annexed thereto or that the signature was not that of her husband. The judgment must be reversed, and a new trial ordered, with costs. to the appellant to abide the event. All concur. LIPPMANN et al. v. BROWN. (Supreme Court, Appellate Term. May 5, 1904.) 1. FACTORS INSTRUCTIONS-DISOBEDIENCE-EMERGENCIES. Where defendant consigned oranges to factors for sale, with instructions. not to sacrifice the fruit, but, if they could not get an average price of between $3 and $4, they should place the fruit in cold storage, but on arrival the fruit was so decayed that it could not have been so preserved, and the only recourse was to reassort and sell as soon as possible, which the factors did, it was no defense to their action to recover the difference between the amount advanced, with expenses and commissions, and the sum realized on the sale, that they violated their duty to defendant, in disobeying his instructions. Appeal from City Court of New York, Trial Term. Action by Jacob Lippmann and another against William M. Brown. From a City Court judgment in favor of plaintiffs, defendant appeals. Affirmed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Jones, Dodd & Steinbrink, for appellant. Wilder & Anderson (Frederick E. Anderson and John Ewen, of counsel), for respondents. GREENBAUM, J. The plaintiffs, commission merchants in New York, received a car load of oranges from Florida for sale here. Previous to the arrival of the consignment, the defendant wrote to the plaintiffs that he did not "want to have this fruit sacrificed, and if you cannot get for me a satisfactory price for it-and by satisfactory I mean an average price between $3 and $4-I would want you to hold it in cold storage until such time as you could get a good price." It was proven and remained undisputed that the goods arrived in a decayed and unsound condition, that in such condition they were unsalable, that they could not have been preserved in cold storage, and that the only recourse to minimize the certain loss upon them was to reassort the goods and sell them at the earliest possible moment. This course the plaintiffs took, and the oranges were reassorted and sold. The defendant contends that, treating the plaintiffs as his factors, they should not be now permitted to recover from him the loss sustained in the sale-being the difference between the amounts advanced by and 122 New York State Reporter them on the goods, the amounts paid for freight and expenses, and commissions, and the net sum realized-on the ground that they violated their duty to him, as factors, in disobeying his instructions. Concededly, a factor is bound, as a general rule, to obey the orders of his principal. As was stated in Jervis v. Hoyt, 2 Hun, 638, however: "Emergencies may arise in which an agent or factor may, from the neces sities of the case, be justified in assuming extraordinary powers, and his acts fairly done under such circumstances bind the principal. Amongst other emergencies, acts done in the bona fide effort to save perishing property is one." Clearly the precise exception to the general rule pointed out in Jervis v. Hoyt, supra, exists here. The plaintiffs did not only all they could have done, but also all they could have been expected to do, for their own and defendant's best interests. Moreover, in this case the defendant, upon his cross-examination, admitted that, if he had been aware of the condition of the fruit on its arrival, he would not have wanted it placed in cold storage, but should have wanted it sold to the best advantage. The question as to whether the defendant was in fact the consignor of the goods and the principal of the plaintiffs was left to the jury, under a clear and unequivocal instruction, and there was ample evidence to support their finding in that regard. The judgment must be affirmed, with costs. All concur. AUSTRIAN BENTWOOD FURNITURE CO. v. WRIGHT. (Supreme Court, Appellate Term. May 5, 1904.) 1. ATTACHMENT-ALLEGATIONS-DAMAGES. Where, in an action for injury to plaintiff's furniture, caused by an overflow of water alleged to have been due to defendant's negligence, the complaint alleged that plaintiff had suffered damages in a specified sum, and the papers on which an attachment was based merely alleged the amount of damages, but neither the value of the furniture before or after the overflow was given, and the manner in which the amount of damages was arrived at did not appear, the insufficient allegation of damages precluded the maintenance of the attachment. 2. ATTACHMENT-MOTION TO VACATE-RULES OF PRACTICE. Where the motion papers of a party moving to vacate an attachment do not comply with General Practice Rule 37, providing that on a motion to show cause why an attachment should not be vacated the moving party shall, in his affidavit, state the present condition of the action, and whether at issue, and, if not yet tried, the time appointed for holding the next term where the action is triable, the motion must be denied. 3. APPEAL-REVIEW. An objection that the motion papers of a party moving for the vacation of an attachment do not comply with General Practice Rule 37 cannot be raised for the first time on appeal. Appeal from City Court of New York, Special Term. Action by the Austrian Bentwood Furniture Company against Charlotte E. Wright. From an order denying a motion to vacate a warrant of attachment, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. L. & U. A. Zinke, for appellant. Austin & McLanahan, for respondent. LEVENTRITT, J. Appeal from an order denying a motion to vacate warrant of attachment. The ground of the attachment is the nonresidence of the defendant, and the cause of action is injury to plaintiff's furniture, occasioned by an overflow of water ascribed to defendant's negligence. The attachment is attacked for the insufficiency of the allegations respecting the defendant's nonresidence and the extent of the damage sustained. The former is amply supported. Even if the two affidavits which are based on information and belief be rejected, notwithstanding that the sources of the information and the grounds of belief are set forth in reliable detail, the third affidavit, made on positive knowledge, would alone satisfy all requirements. A more serious question arises with reference to the amount of damage which the plaintiff claims to have suffered. Upon this subject there is nothing in the complaint except the allegations that the overflow caused "the said furniture to be damaged, spoiled, and made unfit for use or sale by the plaintiff company," and "through the negligence of the defendant, as above set forth, the plaintiff company has suffered damage in the sum of six hundred dollars." The only other reference in the papers on attachment to the cause of action and extent of damage appears in the affidavit of the plaintiff's secretary, and is couched in this language: "That the said water flowed in such quantities, and for such a length of time, on the furniture of the plaintiff, as to make a large quantity of said furniture unfit for use and sale, and to seriously injure and damage the same; and that by reason of said negligence of the defendant the plaintiff company has been damaged in the sum of six hundred dollars." There is no indication anywhere how that damage is computed or arrived at. Neither the value of the furniture before nor after the overflow is given. The court is in no wise apprised of the method by which the plaintiff fixed the amount claimed, and, for aught that appears, it is an arbitrary sum. If the damages are merely nominal, attachment will not lie; if substantial, they are ascertainable, and should be set forth by affidavit to satisfy the court within the requirements of the Code. "Where the damages are unliquidated, it is necessary to set out the facts which the plaintiff claims prove the damage, in order that the court may determine whether any damage has been sustained." James v. Signell, 60 App. Div. 75, 76, 69 N. Y. Supp. 680. The insufficient allegation of damage is fatal to the maintenance of the attachment. There is no merit to the plaintiff's point that, even if the defendant's contention be well founded, she cannot prevail, as her motion papers are insufficient by reason of the omission therefrom of allegations required by rule 37 of the general rules of practice. The presentation of that objection upon the hearing of the motion would have called for its denial (Cole v. Smith, 84 App. Div. 500, 82 N. Y. Supp. 982); but the record does not disclose that the objection was then taken, and, as it |