curred in defending respondent's possession of the premises, occasioned by the acts of appellants in violation of the breach of the covenant of quiet enjoyment; and, third, cost of providing heat necessitated by the cutting off of steam in violation of the covenant of quiet enjoyment. The justice below decided in favor of the tenant, and, upon final order entered upon such decision, the landlords have appealed to this court.

It was undisputed that the tenant had paid no rent after January 1, 1903, and that the total amount of unpaid rent, when the dispossess proceedings were commenced, amounted to $3,523.20. Unless the tenant could establish counterclaims exceeding the total amount of rent due under the lease, the landlord was entitled to a final order awarding him the possession of the premises. Durant Land Improvement Co. v. East R. E. L. Co., 15 Daly, 337, 6 N. Y. Supp. 659; Sheldon v. Testera, 21 Misc. Rep. 477, 47 N. Y. Supp. 653. The total damages counterclaimed by the tenant was $3,696.37, the item of loss of rentals from subtenants alone amounting to $3,206.67. therefore follow that, if the contention of the appellants be correct— that this item was not a proper subject of counterclaim-a considerable sum would then necessarily be due for rent, and the defense of the tenant would fall. The law is clearly settled that, for the failure of a lessor to give a lessee possession of leased property, the damages recoverable are limited to the excess of the actual rental value over the rent reserved in the lease. Dodds v. Hakes, 114 N Y 260, 21 N. E. 398. In the case at bar the respondent tendered no proof as to the actual rental value of the premises which he claims the acts of the landlord prevented him from renting. The proof on this head was to the effect that the tenant, not being in a position to show a written lease, was prevented from effecting rentals. It is difficult to see how this situation would create an exception to the general rule above stated as to the measure of damages. The respondent was in a legal position to sublease his premises, inasmuch as the renewal of the lease from the owner of the building to the appellants effected, at the option of Blum, a sublease in his favor, by reason of the covenant of renewal. It is clear, therefore, that this item of damage for loss of rentals was not a proper subject of counterclaim. Under the view of the case thus taken, it is unnecessary to consider the other items of damage, as the justice is not required to determine the actual amount due, and the final order is not an adjudication upon that issue. It is enough to show that a portion of the rent was due. Sheldon v. Testera, supra. See, also, Natkins v. Wetterer, 76 App. Div. 93, 78 N. Y. Supp. 713, and the same case on motion for reargument or leave to appeal to the Court of Appeals (80 N. Y. Supp. 1143) decided at the December, 1902, term, and not officially reported.

As to the point raised by the respondent that the petition was jurisdictionally defective, it will suffice to say that the petition sufficiently described the interest of the petitioners in the premises by proper allegations of facts, and properly alleged a personal demand for the rent. The final order is reversed, and new trial ordered, with costs to the appellants to abide the event. All concur.

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CITY OF NEW YORK v. BEUK.

(Supreme Court, Appellate Term. May 5, 1904.)

1. MUNICIPAL CORPORATIONS - REGULATIONS - OPENINGS IN STREET UNDER STOOP ORDINANCES-CONSTRUCTION.

Revised Ordinances of the City of New York, § 319, provides that no person shall cause any vault or cistern to be constructed in any street without the written permission of the commissioner. Section 334 declares that every description of opening below the surface of the street in front of any house, if covered over, shall be considered a vault or cistern. Section 182 provides no person or persons shall construct any platform, stoop, or step in any street which shall extend more than one-tenth part of the width of the street, nor more than seven feet, nor with any other than open backs or sides or railings, nor of greater width than is necessary for a convenient passageway into the house or building. Held, that an opening under a lawful stoop was not a vault or cistern within section 319.

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by the city of New York against Charles Beuk. From a judgment in favor of plaintiff, defendant appeals. Reversed.

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

Carlisle Norwood, for appellant.
John J. Delany, for respondent.

GREENBAUM, J. Two actions were brought by plaintiff against the defendant to recover penalties of $100 each for violations of sections 319 and 334 of the Revised Ordinances of the City of New York, which read as follows:

"Sec. 319. No person shall cause or procure any vault or cistern to be constructed or made in any of the streets of the city of New York without the written permission of the commissioner having jurisdiction thereof, under the penalty of one hundred dollars, to be sued for and recovered from such person and the master-builder or person who made the same severally and respectively."

"Sec. 334. Every description of opening below the surface of the street in front of any shop, store, house or other building, if covered over, shall be considered and held to be a vault or cistern within the meaning of this article; and the master-builder or owner, or person for whom the same shall be made or built shall be liable to the provisions, payments and penalties of this article severally and respectively."

By stipulation upon the trial the two actions were tried as one, the decision in the one case to follow that in the other.

The violation complained of was an open space or inclosure under the front stoop, or flat stone platform forming a part of the front stoop, leading into the main entrance of a 35-foot front new American basement house on Fifty-Third street, near Madison avenue. The stoop rested on foundation walls running at right angles to the front of the building. Between the foundation walls is an open cubic space, the dimensions of a horizontal section of which are about nine feet by four feet, and from the lower side of the stoop or slab to the bottom about eight feet, of which about six feet are below the level of the

street. The opening thus formed, which the plaintiff claims is a vault, can only be reached from the cellar of the house. On each side of this alleged vault there is a small window looking into open areas, which are also within the stoop line of the building. It is conceded that the open space as to which complaint is made is entirely within the stoop line. The plaintiff contends that the opening described is a vault, which requires for its construction the permission of the commissioner having jurisdiction of the streets of the city of New York, and that under the provisions of the Revised Ordinances above quoted a failure to obtain such permission subjects the owner of the building to a penalty of $100.

Section 182 of the Revised Ordinances provides:

"No person or persons shall construct or continue any platform, stoop or step in any street in the city of New York which shall extend more than one tenth part of the width of the street nor more than seven feet, nor with any other than open backs or sides or railings, nor of greater width than is necessary for a convenient passageway into the house or building, nor any stoop or step which shall exceed five feet in height, under the penalty of one hundred dollars."

Under the ordinance just quoted it is evident that the stoop or step in question was built in accordance with the ordinances, and it must therefore be held that the defendant constructed the stoop which covers the alleged vault strictly in accordance with the law.

The proofs also show that the stoop was constructed in a way that was entirely proper, usual, and customary in the city of New York, and that the authorities have not heretofore claimed that such an open space under a stoop constituted a vault. Without attempting to define what a vault is, or whether the local Legislature exceeded its powers in defining a vault, as it is claimed it did under section 334, I think the question before us may be disposed of by an interpretation of the ordinances themselves. Under section 182 the local authorities were justified in permitting the erection of the stoop, so that sections 319 and 334, which in effect declared that "no opening below the surface of the street in front of any * * * building" shall be built without permission, must be construed in conjunction with section 182, in order to determine the intent of the lawmaking power. As a reasonable, and not a forced, construction of the ordinances must be adopted, it is clear that section 334. in forbidding owners from making openings or vaults below the street "in front of a building," was not intended to apply to an opening under the stoop formed in the lawful erection of the stoop, but that in such cases the stoop, for the purposes of the ordinances, must be deemed to be a part of the building, and the ordinance would then be limited to openings below the surface of the street in front of the stoop. Such an interpretation would harmonize the apparent conflict between sections 334 and 182 that would arise if section 334 were construed as respondent urges, a conclusion which is fortified by the acquiescence of the public authorities for years, as the evidence shows, in treating such openings under the stoops as not vaults within the meaning of the ordinances. Of course, the failure or neglect of the authorities to enforce an ordinance is no justification for its violation, where the meaning of the ordinance is clear, and the violation is established; but where a forced construction of an ordinance

and 122 New York State Reporter

is attempted the interpretation of the authorities as evidenced by their recognition for years of the right of builders and owners to construct stoops with open spaces under them is a valuable guide in determining the meaning to be given to the ordinance. The conclusion at which I have arrived is further fortified by the fact that the stoop and the inclosed area permitted in front of buildings under section 182 are not traversed by the public, but are universally treated as under the control of the owner, to the exclusion of the traveling public, so that the stoop may well be, so far as the ordinances in question are concerned, deemed an integral part of the building.

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

BAUMWALD v. TRENKMAN.

(Supreme Court, Appellate Term. May 5, 1904.)

1. MASTER AND SERVANT-ASSUMPTION OF RISK-SIMPLE APPLIANCE-PROMISE TO REMEDY DEFECT-SERVANT'S CONTINUANCE IN EMPLOYMENT.

A servant, whose duty it was to wheel coal in a wagon, complained that one of the axle pins was coming out, and threatened to leave his employment if it were not repaired, whereupon the master told him to go on with his work, that the wagon would be repaired, and that he, the master, would be responsible for any accident to the servant. There was nothing complicated in the structure of the wagon, and the wheels and everything connected therewith were in plain sight. Held, that the servant, by thereafter remaining in the master's employment and using the wagon, assumed the risk of any injury from the defect complained of.

2. SAME-NEGLIGENCE-EVIDENCE-SUFFICIENCY.

In an action by a servant for injuries, evidence held insufficient to show that he was injured owing to a wagon breaking down while he was pushing it, and falling on his foot.

Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.

Action by Benjamin Baumwald against August Trenkman. From a judgment in favor of plaintiff, defendant appeals. Reversed.

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

Nadal & Carrere (Edward P. Mowton, of counsel), for appellant. Bernard Nreibart, for respondent.

FREEDMAN, P. J. This action is for damages for personal injuries alleged to have been received by the plaintiff through the negligence of the defendant. The plaintiff was the only witness called in his own behalf, and the judgment in his favor rests upon his unsupported testimony alone. The defendant called but one witness, and his statement as to how the accident happened is irreconcilable with that of the plaintiff.

The plaintiff was in the employ of the defendant, and one of his duties was to wheel coal and ashes. For this purpose he used an iron wagon or car running on three wheels, each about six inches in diameter, one on each side of the car and one in front. The axle on which

the side wheels turned was so placed that the center of the car was just in front of it. The rear of the car was sloped upwards and backwards from this axle, so that the coal or ashes could be readily shoveled out. Plaintiff claims that on the day before the accident he observed that the axle pin holding the right wheel was coming out, and that he complained to the defendant, and said if it was not repaired he would quit work. He says that the defendant told him to go on with the work, that the wagon would be repaired, and that he (defendant) would be responsible for any accident that would happen to the plaintiff. He then swears that on the next day, while he was pushing the wagon along the street to the place where the ashes were to be dumped, the right wheel came off, and the wagon fell upon his foot, causing the injury complained of. There is no testimony in the case showing why the wheel came off. No claim is made that anything broke or gave way, or that the car was not suitable for the purpose for which it was used, nor does it appear that the pin in the axle came out. The pins used were of the ordinary split-pin variety, and could not come out unless broken, and there is no evidence to that effect, or from which it might be inferred that such was the fact. There was nothing complicated in the make-up of the wagon used; the wheels and everything about it were of the plainest character, and in plain sight. For anything that appears, the wagon was safe and suitable to work with.

The respondent claims that this case falls within the rule laid down in Rice v. Eureka Paper Co., 174 N. Y. 385, 66 N. E. 979, 62 L. R. A. 611, 95 Am. St. Rep. 585, and Obanhein v. Arbuckle, 80 App. Div. 465, 81 N. Y. Supp. 133, holding that a servant who continued to use defective tools and appliances, in reliance upon the master's promise to remedy the defects and to compensate him for any injuries he may sustain by reason thereof, may maintain an action for damages for such injuries. We think the case at bar is distinguishable from these cases, as the article used by the plaintiff herein brings the case within that class where it has been held that in the case of simple appliances and conditions the servant continues the employment at his own risk, notwithstanding the master's promise to repair or improve (Marsh v. Chickering, 101 N. Y. 399, 5 N. E. 56; Hannigan v. Smith, 28 App. Div. 178, 50 N. Y. Supp. 845), and that doctrine was cited with approval in Rice v. Eureka Paper Co., 174 N. Y. 397, 66 N. E. 979, 62 L. R. A. 611, 95 Am. St. Rep. 585.

Moreover, the judgment should be reversed for the reason that the plaintiff has failed to sustain the burden of showing that the accident was caused by any negligence on the part of the defendant, for the following reasons: (1) The plaintiff is directly contradicted as to the manner in which the accident occurred by the defendant's witness, who testified that the plaintiff sustained his injuries by tipping the car over, and in so doing it fell upon his foot. (2) His own testimony as to how his injuries were received is of inherent improbability. He swears that he was pushing the car along the street to the place where he wanted to dump the ashes. Evidently the car was loaded. He must necessarily have been required to use considerable power to force the car ahead, and in so doing his foot must have been at a considerable distance behind and away from the axle and bottom of the car, and his relative