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and 122 New York State Reporter cannot be successfully raised for the first time on appeal, it can receive no consideration.

Order reversed, with costs and disbursements of appeal, and attachment vacated, with $10 costs. All concur.

SAFFER et al. v. LEVY.

OF

(Supreme Court, Appellate Term. May 5, 1904.) 1. LANDLORD AND TENANT_ACTION FOR RENT-COUNTERCLAIM-BREACH

COVENANT TO REPAIR-EVIDENCE-QUESTION FOR JURY.

Where, in an action for rent under a lease stipulating that, in case of the partial destruction of the demised premises by fire, the lessor shall make all repairs as speedily as possible, defendant sets up a counterclaim for damages based on the lessor's breach of covenant to repair, and his evidence raises a question of fact as to whether the lessor made the necessary repairs as speedily as possible, it is for the jury to determine whether the lessor made the repairs in time, and, if he did not, it is for

them to assess the damages sustained, as shown by the evidence. 2. SAME-MEASURE OF DAMAGES.

The measure of damages for breach of a essor's covenant to repair as speedily as possible in case of the partial destruction of the leased premises by fire is the difference between the rental value of the portion of the premises partially destroyed, in the condition it was in as destroyed, and the condition it would have been in if properly repaired, from the time

it should have been repaired. · Appeal from City Court of New York, Trial Term.

Action by Morris Saffer and others against Julius Levy. From a judgment for plaintiffs, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ.

Johnston & Johnston, for appellant.
Ralph Nathan, for respondents.

FREEDMAN, P. J. The defendant concedes the right of the plaintiffs to recover the amount of rent sued for, and relies wholly on his counterclaim for damages based upon plaintiffs' breach of covenant to repair. Properly construed, the lease provides that if, in case of fire, the damages to the demised premises shall be so extensive as to render them untenantable, the rents shall be proportionately paid up to the time of such damage, and shall from thenceforth cease until such time as the premises shall be put in good repair, but that the lessee's occupation of the premises shall be deemed conclusive proof of their tenantability. By a separate, distinct, and independent clause it is provided that, in case of only partial destruction of the demised premises by fire, the lessors shall make all repairs as speedily as possible. Under this construction of the lease the case should have been submitted to the jury, so far as defendant's counterclaim was concerned, because upon the evidence adduced by the defendant a question of fact was presented as to whether the plaintiffs made the repairs, rendered necessary by the occurrence of a fire, as speedily as possible, and, if they did not, as to the amount of damage sustained by the defendant in consequence

thereof. As to the measure of damages, the decision in Hexter v. Knox, 63 N. Y. 561, does not apply, and the proof offered by the defendant to show loss of profits in his business was properly excluded. The proper measure of damage is the difference between the rental value of the portion of the premises that was partially destroyed in the condition it was in as destroyed, and the condition it would have been in from the time it should have been repaired, if properly repaired. Cook v. Soule, 56 N. Y. 420; Godfrey v. India Wharf Brg. Co., 87 App. Div. 123, 84 N. Y. Supp. 90. Sufficient evidence having been given upon the points indicated to call for the submission of the case to the jury, the direction of a verdict in favor of the plaintiffs was error.

The judgment appealed from must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

MCNAMARA V. VANDERPOEL et al.

(Supreme Court, Appellate Term. May 5, 1904.) 1. PROCESS-APPEARANCE-JURISDICTION.

Where a summons was issued against “the estate of J.," not showing whether J. was dead or alive, the appearance for “the defendant" of an attorney who expressly repudiated any appearance for the trustee of J. could not confer jurisdiction to substitute the trustee as defendant or

render judgment against him. 2. SAME.

Where a summons issued simply against the “estate of J.,” the testimony of a witness that he was a trustee of J. and was there to defend the action was not a voluntary appearance as a defendant, either in an

individual or representative capacity. 3. ESTATES OF DECEDENTS-ACTION-EVIDENCE.

Evidence was insufficient to support a judgment against a trustee under the will of J., where it failed to show that J. was dead, or, if dead, that

he left a will, or the appointment of a trustee under the will. Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Jane McNamara against George B. Vanderpoel and others. From a judgment for plaintiff, defendants appeal. Reversed.

Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ.

Carl Schurz Petrasch, for appellants.
Marcus Helfand, for respondent.

FREEDMAN, P.J. This action was begun by the issuing of a summons against the estate of Jacob Vanderpoel.”. Whether said Vanderpoel was dead or alive does not appear. Service of the summons was made upon the janitor of a house—where is not shown-and it was returned to court without proof that it had ever been served upon anybody. On the return day an attorney appeared for the plaintiff and orally complained against the defendant for work, labor, and services. The return states that an attorney appeared for “the defendant" and denied the complaint and asked for a bill of particulars. The bill of particulars as filed shows that the plaintiff's claim was for personal

88 N.Y.S.—10

and 122 New York State Reporter injuries alleged to have been received by the “falling of the ceiling of the property of the premises in charge and control of the defendant." Subsequently a trial was had, an attorney again appearing for “the defendant.” After the plaintiff had testified that during a visit to the house of her mother a portion of the ceiling of the kitchen, in which the plaintiff was sitting at the time, fell, striking her upon the shoulder and causing the injuries complained of, the plaintiff's counsel called as a witness in behalf of the plaintiff one George B. Vanderpoel, who testified that he was one of the trustees of Jacob Vanderpoel, that he was never served with a summons in the action, but that he knew of the case, and was in court to defend the action. The plaintiff thereupon made a motion to amend the summons, “to make it George B. Vanderpoel, as trustee under the last will and testament of Jacob Vanderpoel." Under objection this motion was allowed, and the plaintiff then rested her case. After the attorney appearing for "the defendant" had moved to dismiss the complaint upon the ground that the plaintiff had not proven facts to establish a cause of action, there being no proof of service of the summons, proof of negligence, nor proof of ownership of the premises, where the injury occurred, by the estate of Vanderpoel, the case was closed, the defendant offered no testimony, and judgment was rendered against "George B. Vanderpoel, as trustee under the last will and testament of Jacob Vanderpoel,” for the sum of $147 damages and costs, and from the judgment so entered the trustee above named appeals.

Upon what legal theory the Appellate Court can be asked or expected to sustain a judgment based upon the record herein is incomprehensible. The summons named no defendant therein known to the law, or that could have been made amenable to the service of process. The attorney who appeared in court and answered for “the defendant" expressly repudiated any appearance by him on behalf of the trustees of Jacob Vanderpoel, and his voluntary appearance for the so-called "estate” could not confer jurisdiction upon the court to substitute the trustee as a defendant or to render a judgment against such trustee. The proof by Vanderpoel that he was a trustee and was present to defend this action was not a voluntary appearance by him as a defendant, either as an individual or in a representative capacity, nor was it shown that Jacob Vanderpoel was dead, or, if dead, that he left a will, or that George B. Vanderpoel was appointed a trustee under and by virtue of such will. There was not the slightest testimony in the case tending to show that the premises where the plaintiff received her alleged injuries were ever owned or controlled or had any connection with Jacob Vanderpoel or his estate, and the same defect of proof existed as to George B. Vanderpoel, either as trustee or individually.

Judgment reversed, with costs. All concur.

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CUPERMAN V. STERN et al.

(Supreme Court, Appellate Term. May 5, 1904.) L. BROKERS-COMMISSIONS-EVIDENCE.

In an action by a broker to recover a balance alleged to be due for commissions in securing a building contract for defendants, evidence held insufficient to support a finding that the agreed compensation was $650,

instead of $150, as contended by defendants. Appeal from Municipal Court, Borough of Manhattan, Twelfth District.

Action by Samuel Cuperman against Beirl Stern and another. From a Municipal Court judgment in favor of plaintiff, defendants appeal. Reversed.

Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ.

Jacob Gordon, for appellants.
H. T. Marston, for respondent.

LEVENTRITT, J. The sole issue litigated was the amount of the balance due the plaintiff for services rendered by him in securing a building contract for the defendants. He claimed that his compensation was agreed at $650, and, as he had received only $97, there remained unpaid $553. Relinquishing the excess, he sued for and recovered $500. The defendants did not dispute the aggregate of the payments made, but insisted that the compensation was fixed at $150, and that only $53 remained unpaid. As there was no third party present at the making of the agreement, as to its terms we have only the testimony of the plaintiff on the one side and that of the defendants on the other. While the inherent probability of the defendants' statements would not justify a reversal, the evidence of events subsequent to the making of the agreement induces the conviction that the judgment is decidedly against the weight of the evidence, and should not stand. The only witness by whom plaintiff sought corroboration was one McGuire, who claimed to have overheard admissions made by each of the defendants as to the balance they owed the plaintiff. It is represented that on one occasion the defendant Yanowsky declared, "We promised to pay you five per cent. [that is, $650), and we will pay you that,” and on another occasion he said, "Mr. Cuperman, can't you wait until the 4th of October; we are going to get another payment then, and we will pay you that $553 in full.” And later on the same day this witness heard the defendant Stern, in a conversation with the plaintiff, inquire the amount of the balance due, and, upon the plaintiff's reply that it was $553, Stern observed, “Yes; well, I guess you are right.” It seems that on each of the three occasions the plaintiff called upon the defendants for the purpose of collecting, and the witness accompanied him. It is scarcely credible that the defendants seized the opportunity in each instance to furnish the witness with damaging confessions. On the other hand, we have not only the testimony of two disinterested witnesses as to admissions made by the plaintiff that there was coming to him from the defendants only $53, we have a convincing

and 122 New York State Reporter piece of evidence in the form of a receipt, written entirely by the plaintiff, and by him delivered to the defendants when they made the last payment to him. It reads:

“Sept. 5th 1903. "Received from B. Stern & Co. Seventy five dollars ac of commission for Elm and Canal Street job. Bal. $53.

S. Cuperman." The only explanation offered by the plaintiff concerning the statement in that receipt to the effect that the balance was $53 was that he had made a mistake in failing to insert a 5 before the 53. It is also to be observed that this receipt was in the possession of the defendants at all the times when McGuire says they admitted that the balance was $553. It is evident that the plaintiff did not sustain the burden of proof. There should be a retrial.

Judgment reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.

ABRAHAMS V. KOCH.

(Supreme Court, Appellate Term. May 5, 1904.) 1. PHYSICIAN'S SERVICES-ACTION FOR COMPENSATION-SUFFICIENCY OF EVI.

DENCE.

In an action for physician's services, a verdict in favor of plaintiff held contrary to the weight of evidence. Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.

Action by Robert Abrahams against Louis Koch. From a Municipal Court judgment in favor of plaintiff, and from an order amending the judgment, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ.

Siegel & Louis, for appellant.
George H. Epstein, for respondent.

PER CURIAM. The claim of plaintiff, a physician, is for professional services alleged to have been rendered the defendant's wife in the fall of 1898. The plaintiff testified positively that these services were rendered at the defendant's residence, either at Orchard or Ludlow street. The defendant and his wife emphatically deny that the plaintiff rendered the services in suit, and assert that in 1898 they neither lived in Orchard nor Ludlow street, but that since the latter part of 1898, and up to the present time, they lived continuously in East Broadway. Defendant admits that he lived at Orchard street between 1895 and 1897, and that the defendant rendered services as physician during that period, for which he was paid, and plaintiff concedes that he was paid for the services then rendered. The defendant's testimony as to his place of residence is corroborated by his son-in-law, and by documentary proof in the shape of a policy of fire insurance with renewals, which unquestionably establish that plaintiff moved from Orchard street in November, 1897, to East Broadway, where he has

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