Item 4 of the bill of particulars was abandoned at the trial, and proof was offered only to sustain items 1, 2, and 3; judgment being rendered for the amount of the actual damage as fixed by the verdict of the jury. The complaint was dismissed before the trial as to the defendant the Wilson & Baillie Manufacturing Company.

The plaintiff's testimony was to the effect that he was induced by the defendants Camardella and Amato to board a Ward Line Steamer in the city of New York, where he lived, upon representations made to him. by the said defendants that he was to be taken to a village within about five hours' sail of New York, where he was to be given employment, but that, instead of making a landing to allow the plaintiff to disembark within the prescribed distance, the steamer proceeded directly to Havana, Cuba, where the plaintiff was not permitted to land, and from there to Yucatan, where he was compelled to remain several days before he could start on the return voyage. The plaintiff was an Italian laborer, having but a meager understanding of the English language, and only the slightest knowledge of the geography of this country. His testimony, so far as it referred to the agreement with the said defendants and their representations to him, was fully corroborated by five witnesses who were present when the contract of employment was made, and there is no dispute about the fact that the plaintiff did actually go to Yucatan as above indicated. The defendants Camardella and Amato denied that they made any false representations to the plaintiff, and testified that they fully informed the plaintiff where the work was to be done, and that the steamer would take him to Yucatan; but the verdict of the jury, sustained as it is by a fair preponderance of evidence, requires that the case be disposed of in this court on the assumption that the plaintiff's testimony is true. This testimony and that of the plaintiff's other witnesses afford ample support for the inference that the defendants induced the plaintiff to sail for Yucatan by representations that were false, and known by the defendants to be false. The inference is also a fair one that these representations were made to deceive the plaintiff, keep him in ignorance of the true state of facts, and induce him to sail on board the steamer. The plaintiff has suffered certain damage by reason of these representations, the amount was established at the trial, and the judgment rendered was proper.

Kidnapping may be accomplished without the use of physical force. Inveiglement, is sufficient. People v. De Leon, 109 N. Y. 226, 229,⚫ 16 N. E. 46, 4 Am. St. Rep. 444. The very essence of inveiglement is deceit. It may be that every deceptive practice does not constitute an inveiglement, but here, as in the De Leon Case, supra, a distinct, affirmative wrong was done the plaintiff. He was induced to go far from his home, into an unknown country, where the climate and sanitary conditions were, as the event proved, practically unbearable, by representations that he was to be given employment at a village near New York, only a few miles away-five hours' sail on the steamer-where the railroad fare back to New York was only 90 cents. See People v. Fitzpatrick, 57 Hun, 459, 461, 10 N. Y. Supp. 629.

A liberal construction of the complaint, to which the plaintiff is entitled, does not require a more definite allegation of fraud and deceit than that contained in the words "inveigled and kidnapped."

and 122 New York State Reporter

The defendants were fully apprised of the nature of the charge against them. The gravamen of the action was fraud and deceit. It was not necessary to characterize the acts charged as fraudulent. The allega

tion of facts from which such a conclusion necessarily results was suf ficient. Warren v. Union Bank of Rochester, 157 N. Y. 259, 273, 51 N. E. 1036, 43 L. R. A. 256, 68 Am. St. Rep. 777. The Municipal Court is expressly given jurisdiction in such actions by subdivision 13 of section 1 of the Municipal Court act (chapter 580, p. 1489, Laws 1902). There is no force in the contention that that court was without jurisdiction in this case because subdivision 14 of section 1 of that act excepts actions for false imprisonment from those within the jurisdiction of the Municipal Court.

The defendants cannot well protest that the plaintiff is not entitled to whatever benefit he may have received at the hands of the jury by reason of his testimony that the captain of the steamer refused to allow him to go ashore at Havana. The captain explained at the trial that the plaintiff was not allowed to leave the ship at that port for the reason that he could not comply with the immigration laws, requiring him to have a certain amount of money. The defendants were responsible for the plaintiff being on board the vessel. They had selected the means of transportation, and presumably knew that a landing would be made at Havana, and the laws of that port. They surely did not intend that the plaintiff should leave the ship at Havana, but, even if he had done so, his damage would not necessarily have been less. The judgment should be affirmed.

HOOKER, J. (dissenting). The return on appeal shows that an oral complaint was stated at the time issue was joined, but what was embodied in that complaint does not appear. It is clear, however, that a bill of particulars subsequently filed by the plaintiff was treated as the complaint in the action. That paper reads as follows:

"The defendants are indebted to plaintiff in the sum of five hundred dollars ($500.00), in that they co-operated, inveigled, and kidnapped plaintiff from Brooklyn, and carried him to Yucatan, Mexico, against his will, to his loss: 1. Loss of time from March 12, 1903, to April 4, 1903, at $2 per

day, 22 days ....

2. To expenses while away, 75c. per day, 22 days.

3. To passage from Yucatan to Brooklyn..........

To detention, imprisonment, loss of peace of mind.

The plaintiff had a verdict of a jury for the sum of $60.70. fendants appeal.

.$ 44 00

16.50 25 50 414 00"

The de

The principal question presented on the appeal is whether the Municipal Court had jurisdiction of the subject-matter of the action. At the close of plaintiff's opening, defendants moved to dismiss the complaint on the ground, among others, that the Municipal Court was without jurisdiction to entertain any such complaint as was set up in the complaint and bill of particulars. This motion was denied, and defendants excepted. By the provisions of subdivision 14 of section 1 of the Municipal Court act (Laws 1902, p. 1489, c. 580), jurisdiction in actions to recover damages for false imprisonment is expressly denied to the Municipal Court, and it is upon the contents of that

subdivision that the defendants place their reliance. The question then presented is whether this is an action for false imprisonment, or an action of some other character. If the former, the complaint should have been dismissed, and this appeal should prevail.

I am inclined to believe that the action was for breach of contract. The bill of particulars in part alleges that "the defendants are indebted to the plaintiff in the sum of five hundred dollars

expenses

* * *

* * *

loss of time *** passage," etc. The evidence clearly sustains the theory that the defendants entered into a contract with the plaintiff and others to furnish them employment at a place within a few hours' ride from New York, and they were to be paid for their "time" and return "passage." Nowhere in the case is any evidence offered affecting any other question than that of breach of contract. The case was submitted to the jury by the trial court upon the theory of breach of contract, and that alone. There is nowhere in the evidence any intimation that plaintiff suffered any damages for false imprisonment, or for fraud and deceit, except loss of time, expenses while away, and passage back. The jury evidently did not consider any elements of damage except these. The defendants did not object, by way of exception or requests to charge, to the submission of the case to the jury on the theory that the action was one for breach of contract. The proof of the plaintiff that he was carried a seven-days journey from New York, is evidence of breach of contract to convey him a five-hours trip, as well as it is evidence of kidnapping. The notion that this is an action for false imprisonment seems to be based entirely upon the use of the word "kidnapped" in the bill of particulars. I think, however, that the word "indebted" should be accorded predominant force. The allegation is that "the defendants are indebted to the plaintiff in the sum of five hundred dollars." It seems to me that the use of the word showed an intention to plead indebitatus assumpsit, or merely assumpsit, and that this intention is clearer than that to plead false imprisonment, which is said to follow from the use of the word "kidnapped." The pleading was, of course, ambiguous, but, in denying the defendants' motion at the close of plaintiff's case to dismiss the complaint on the ground of want of jurisdiction, the trial court determined that this was not an action for false imprisonment. Its ruling on this question should be upheld, on the theory that the action was one for breach of contract, and of such an action the Municipal Court possesses jurisdiction.

No other question seems to require comment, and I advise the affirmance of the judgment.

and 122 New York State Reporter

JAMES V. LIBBY, MCNEIL & LIBBY.

(Supreme Court, Appellate Term. June 13, 1904.)

1. SALES-INSPECTION-ACCEPTANCE-BREACH OF WARRANTY-ESTOPPEL. Acceptance, after inspection by the buyer, of sausages delivered under contract of sale, warranting that they should be dry enough for export, estops him from relying on a breach of the warranty, where the acceptance was not accompanied by a renewal of the warranty manifesting an intention to have it survive acceptance.

2. SAME-CONTRACT OF INDEMNITY.

A contract for the sale of sausages provided that they should be microscopically inspected, and dry enough for export. On delivery, the buyer opened some of the boxes and inspected their contents, and expressed to the seller his doubts whether they were sufficiently dry or free from fat to be accepted by his customer, who was a resident of a foreign country, and asked for a reduction in price on that account, which the seller refused to concede, but agreed in writing that if any claim should be made for too much fat he would make the same good. Held, that the writing was not a warranty, but a contract of indemnity.

3. SAME CONSIDERATION.

Where the buyer and seller of sausages under a written contract, on tendering delivery thereof, differed as to the quality of the sausages, and especially as to whether they were too fat to satisfy a particular customer, and thereupon the seller wrote out and handed to the buyer a contract of indemnity for any claim that should be made for too much fat by the customer, there was a sufficient consideration for the contract, in that the buyer waived his objections and accepted the goods.

4. SAME-ACTION FOR BREACH-FAILURE OF PROof.

Where a buyer and seller of sausages under written contract, on tendering delivery thereof, differed as to the quality of the sausages, especially as to whether they were too fat to satisfy a particular customer of the buyer in a foreign country, and thereupon the seller wrote out and handed to the buyer a memorandum contract, agreeing to make good any claim that should be made for too much fat, intending thereby to make good any claim by that particular customer, and the goods were shipped to the customer, but never reached him on account of some unexplained action of the governmental authorities of the country of which he was a resident in refusing to permit the sausages to be received, and they were returned to the buyer, it is immaterial, in an action against the seller to recover on the memorandum contract, whether it was one of indemnity or an extension of the original warranty, since the event against which defendant undertook to indemnify the plaintiff never happened.

Appeal from City Court of New York, Trial Term.

Action by William James against Libby, McNeil & Libby. From a judgment for plaintiff and an order denying a motion for new trial, defendants appeal. Reversed.

Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ. J. Brownson Ker, for appellants.

Dittenhoefer, Gerber & James, for respondent.

SCOTT, J. Plaintiff's assignor, one Willard, on February 20, 1899, purchased from defendants a quantity of unsmoked Farmers' sausages, to be manufactured and delivered on future dates. The contract, which was in writing, provided that the goods should be "all microscopically inspected and dry enough for export," and it appears from the evidence

that the dryness of a sausage is mainly determined by the amount of fat it contains.

In April defendants shipped 100 boxes of sausages to Willard, which arrived in New York on April 22d. Willard, with the assistance of a clerk, examined the sausages by opening some of the boxes and cutting open some of the sausages. So far as appears, he had ample opportunity to make, and did make, as thorough an examination as he deemed necessary, and there is nothing from which it can be inferred that the sausages he actually examined were not a fair sample of the whole consignment. Willard had purchased the sausages for shipment to a customer in France, and after he had examined the goods he expressed doubts whether they were sufficiently dry, or free from fat, to be accepted by his customer. Defendants were represented by one Davenport, who had negotiated the sale and was present when the goods were examined, and who insisted that they were not too fat, but were of the quality specified in the memorandum of sale. Willard asked for a reduction in price, which Davenport refused to concede. Finally Davenport agreed, in writing, on behalf of defendants, if any claim should be made "for too much fat in 100 boxes Farmers [sausages], to make the same good." It is quite evident, from the discussion leading up to the making of this agreement, that what both parties understood was that defendants were to make good to Willard if his customer in France should make a claim against him for excessive fat in the sausages. Upon the receipt of this agreement, and undoubtedly in reliance upon it, Willard waived his objection to the quality of the sausages, and accepted and paid for them. They were shipped to France, but never reached Willard's customer, because the French authorities refused to permit them to be landed; consequently, of course, no claim for excessive fatness was ever made upon Willard by his customer. What particular defect the French authorities found in them does not appear. The sausages were reshipped to New York, and in July were sold for much less than the price paid defendants by Willard. On their arrival here they were examined by an expert employed by Willard, who testified that he found signs of deterioration in the sausages, indicating that they had been at the time of original packing not sufficiently dried; but, although the question was twice put to him point-blank, he declined to say that they had been too fat for export, only saying that they "evidently contained an abundance of fat, a trifle more than is usually put in a dry sausage." This was the only witness called by plaintiff to establish the fact of the inferior quality of the sausages. The defendant produced two witnesses, who testified that the sausages, when delivered to Willard, were in perfect condition, and conformed, as to quality, with the terms of the contract of sale.

It is urged, in support of the judgment, that defendants' undertaking in the memorandum of sale, that the sausages should be dry enough for export, was a warranty, and that, inasmuch as the general rule is that a warranty survives acceptance, Willard might, notwithstanding his acceptance of and payment for the goods, afterwards sue defendants for breach of the warranty. There is no magic in mere words, and the relative rights of the parties will not be altered whether