ever since insured. The plaintiff is uncorroborated by any witness or circumstance, and, although he admitted that he kept a book showing a record of his visits, he failed to produce the book at the trial. Upon cross-examination he contradicted himself by first asserting that the record would show the place where the visits were made, and then later stating that it would not. As the plaintiff is an interested witness, and is uncorroborated, and the defendant's testimony upon a material fact is supported by other witnesses and by records, the judgment is against the weight of evidence, and should be reversed. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. BURGESS v. WILLIS. (Supreme Court, Appellate Term. May 5, 1904.) 1. PRINCIPAL AND AGENT EVIDENCE OF AUTHORITY. Evidence that a landlord's agent collected rents for the landlord; that he had been the intermediary in effecting previous leases with defendant, and while in charge of other properties of the landlord he occasionally, in her absence, effected monthly lettings in tenement houses at rentals previously fixed by her; and that, after receipt of the notice that possession of the premises in question was demanded on a certain date, defendant called on the landlord, at her residence, and tendered the rent for the succeeding month, which she refused to accept, and directed defendant to go to her agent-was insufficient to establish the authority of the agent to agree to renew defendant's lease of the tenement he occupied on the same terms as the former letting. Appeal from Municipal Court, Borough of Manhattan, Sixth District. Action by Annie P. Burgess against Henry Willis. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. James D. Layng, for appellant. GREENBAUM, J. The tenant resisted the summary proceedings instituted by the landlord upon the ground that he was in possession of the premises under a subsisting, valid lease, made with the landlord through her duly authorized agent. The premises in question consisted of an entire building, occupied as a livery stable. The tenant had been lessee of said building for a number of years, but always under written leases. His last written lease expired on February 1, 1904. The testimony of the tenant is to the effect that prior to the last mentioned date he made repeated requests of a Mr. Beam, who, it is asserted, was the agent of the landlord, for a renewal of the lease for another year; that Beam had promised it to him in December; that on the 18th or 19th of January, on the occasion when Beam called to collect rent, the following conversation ensued: "Where is my lease?' He [Beam] replied: "That is all right, old man. I will bring it around to you.' I said: "That is not the question. I want it.' He said: 'You are all right. You have got the place for another year. You need not worry yourself. I will bring the lease around.' ” and 122 New York State Reporter On January 26th the tenant was notified in writing by the landlord that she had sold the premises, and that he would be required to give up possession on February 1, 1904. No written lease was ever executed, and the tenant claims that the acts of Mr. Beam operated as a renewal lease, binding upon the landlord, for the year ending February 1, 1905, upon the same terms as the last prior lease. The reputed agency of Beam was predicated upon the following facts: that he collected the rents for the landlord; that he had been the intermediary in effecting previous leases; that, while in charge of other properties of the landlord, he occasionally, in her absence, effected monthly lettings in tenement houses at rentals previously fixed by her, and that after receipt of the notice that possession of the premises was demanded on February I, 1904, the tenant called upon the landlord at her residence, and handed her the rent for February, which she refused to accept-stating, in substance: "Why do you come here? Why don't you go to my agent?" The testimony of the landlord and Mr. Beam is unqualified, to the effect that the latter had never had authority to make a lease; that he was solely a collector of rents, and attended, on his own responsibility, to emergent repairs upon tenements. While it may be doubted, under the authority of Franke v. Hewitt, 56 App. Div. 499, 68 N. Y. Supp. 968, whether, in the case of the renting of an entire building, a lease was in fact created by a mere promise of a lease for another year, where nothing was said as to any terms, either as to the amount of rent or otherwise, but where everything was left to the surmise or inference that the terms were to be precisely the same as those of the prior lease, it seems to me that there is no proof of the authority of Mr. Beam to bind the plaintiff. His dealings with the tenant in reference to the premises in question were not such as to indicate an agency for leasing the building, and the landlord's statement to go to "her agent," when the tenant called upon her with rent after he had been notified that his tenancy would terminate on February 1, 1904, constituted no facts or circumstances from which an inference might be drawn that Mr. Beam was in fact the agent of the landlord to lease. The situation presented, at most, what proved to be an unrealized expectancy on the part of the tenant. There was no legal proof of agency, and the motion for a direction of a verdict in favor of the landlord should have been granted. The final order is reversed, and a new trial granted, with costs to the appellant to abide the event. All concur. LE BLANC v. INTERURBAN ST. RY. CO. (Supreme Court, Appellate Term. May 5, 1904.) 1. STREET RAILROADS-PERSONS IN STREET-INJURIES-IMPUTED NEGLIGENCE. In an action for injuries to the helper of the driver of a wagon, caused by a collision with a street car, the helper being in the rear of the wagon at the time of the accident, the negligence of the driver, if any, was not imputable to him. Appeal from Municipal Court, Borough of Manhattan, Eighth District. Action by John Le Blanc against the Interurban Street Railway Company. From an order setting aside a verdict in favor of plaintiff, he appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Watts & Merrill, for appellant. Henry W. Goddard and William E. Weaver, for respondent. PER CURIAM. The order appealed from recites that it was made upon a motion to set aside the verdict and for a new trial "upon the exceptions taken on behalf of the defendant at the trial, and because the verdict is contrary to the evidence and contrary to the law and is for excessive damages," and it is impossible to say upon what precise ground the court acted. It is apparent, however, from the cases cited by the learned justice in his brief memorandum, from his rulings upon. the trial, and his charge with reference to the question of contributory negligence, that he was of the opinion that the negligence of the driver, if any, was imputable to the helper, plaintiff herein, who was in the rear of the wagon at the time of the accident, and that he did not set aside the verdict as having been against the weight of evidence. It is settled that the negligence of the driver is not imputable to the plaintiff. Waters v. Metropolitan Street Railway Company (Sup.) 85 N. Y. Supp. 1120. Whether or not the helper was negligent and the defendant free from negligence were questions of fact, which were properly submitted to the jury, and their verdict should not have been disturbed. Order reversed, with costs. ARMSTRONG MFG. CO. v. THOMPSON et al. (Supreme Court, Appellate Term. May 5, 1904.) 1. NEW TRIAL-NEWLY DISCOVERED EVIDENCE-MOVING PAPERS-SUFFICIENCY. Papers on motion for a new trial on the ground of newly discovered evidence are defective where they do not contain an affidavit by the newly discovered witness setting forth his readiness to swear to the facts claimed to be newly discovered, and do not assign any reason for the nonproduction of such an affidavit. Appeal from Municipal Court, Borough of Manhattan, Eighth District. Action by the Armstrong Manufacturing Company against Joseph Thompson and James Moran. From an order denying a new trial on the ground of newly discovered evidence, defendants appeal. Affirmed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Clarence K. McGuire, for appellants. John F. Booth, for respondent. PER CURIAM. It is extremely doubtful if the proposed newly discovered evidence is of that decisive character that, if introduced at the and 122 New York State Reporter trial, a different result would have ensued. But even if it be conceded that such would have been the effect, the motion was properly denied for the reason that the papers are defective, in that they do not contain an affidavit by the newly discovered witness setting forth his readiness to swear to the facts claimed to be newly discovered. Adams v. Bush, 1 Abb. Dec. 7; Seaman v. Clarke, 75 App. Div. 345, 350, 78 N. Y. Supp. 171. And no reason is assigned for the nonproduction of such an affidavit. Matter of Cohen, 84 Hun, 586, 32 N. Y. Supp. 851. Order affirmed, with costs to the respondent. LOCKWOOD TRADE JOURNAL v. NEW YORK SILICATE BOOK SLATE CO. (Supreme Court, Appellate Term. May 5, 1904.) 1. PAYMENT BY POSTDATED CHECK-RETURN OF CHECK-EFFECT. A plea of payment by a postdated check which has been returned is unavailable. Appeal from City Court of New York, Trial Term. Action by the Lockwood Trade Journal against the New York Silicate Book Slate Company. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. George H. Mallory, for appellant. PER CURIAM. There was an undisputed liability on the part of the defendant of $9.14; hence a verdict for defendant cannot be upheld. There was no competent legal proof offered by the defendant upon the trial in contradiction of the plaintiff's testimony that the defendant's postdated check of May 22, 1902, for $48.37, had been returned before May 22d. A plea of payment by a postdated check which has been returned is not available. Bradford v. Fox, 38 N. Y. 289. The motion for a direction of a verdict should have been granted. Judgment reversed and new trial ordered, with costs to appellant to abide the event. SHAW v. O'MEARA. (Supreme Court, Appellate Term. May 5, 1904.) 1. TRIAL-AMENDMENT OF ANSWER-IMPOSITION OF CONDITIONS-ONEROUS CON. DITIONS. Where, in an action on an account stated, defendant's counsel moved for the dismissal of the complaint after a motion by plaintiff for an amendment thereof so as to read for money loaned, and thereafter de fendant moved for leave to amend his answer so as to plead payment and accord and satisfaction, it was error to refuse to grant defendant's motion, save on condition that he withdraw all previous objections. Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by Mary J. Shaw against Patrick B. O'Meara. From a judgment in favor of plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. L. & A. U. Lenke, for appellant. M. Steinert, for respondent. PER CURIAM. This is an appeal from a judgment of the Municipal Court, Seventh District, entered upon the direction of a verdict in plaintiff's favor at the close of the case. The action was brought upon an account stated. When plaintiff first rested, her counsel asked that, in furtherance of justice, the complaint be amended so as to read for money loaned. Defendant's counsel at the same time moved for a dismissal of the complaint on the ground that the cause of action sued upon had not been proven. Without determining either motion, the court, against defendant's objection, ordered the plaintiff to be recalled, and she gave further testimony. When she again rested, defendant's counsel renewed the motion to dismiss. The motion was denied, and the ruling duly excepted to. During defendant's examination, plaintiff's counsel objected to testimony tending to show payment, and defendant's counsel then moved for leave to amend the answer so as to plead payment, and accord and satisfaction. The court refused to grant such motion, except on condition that defendant should withdraw all objections theretofore interposed. Defendant's counsel refused to avail himself of the privilege accorded on the condition imposed, and excepted to the refusal of permission to amend. This exception should be sustained. The practice of imposing such a condition should not be encouraged, and, under all the circumstances disclosed by the record, it was too onerous. We think the ends of justice will be best promoted by ordering a new trial. Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. LARKINS v. McGINLEY. (Supreme Court, Appellate Term. May 5, 1904.) 1. DECEDENTS' ESTATES-ACTION FOR SERVICE-EVIDENCE-SUFFICIENCY. In an action against an executor to recover for services alleged to have been rendered decedent, the evidence showed that services of a certain value were rendered and that decedent agreed to pay for them, and though it was shown that plaintiff had received checks from defendant in at least part payment, these were not introduced in evidence, nor their amount shown. Held to make out a prima facie case for plaintiff. Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by Bridget Larkins against Edward T. McGinley, as executor, etc. From a judgment for defendant, plaintiff appeals. Reversed. |