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and 125 New York State Reporter

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

(45 Misc. Rep. 599)

GOLDSTEIN v. MICHELSON et al.

(Supreme Court, Appellate Term. December 7, 1904.)

1. PLEADING AMENDED ANSWER-REFERENCE TO ORIGINAL PLEADING-CONSOLIDATION.

Where an amended answer contained an allegation that defendants realleged every allegation contained in certain paragraphs of the original answer, the original answer was nevertheless superseded by the amended one; and, the plaintiff not having in any manner consented to a consolidation, the original answer was properly stricken out, on settlement of the case on appeal, as forming no part of the judgment roll. 2. SAME JUDGMENT ROLL-INTERLOCUTORY ORDer.

Defendants served an amended answer, alleging that they realleged the allegations set forth in certain paragraphs of the original answer. Plaintiff's motion for judgment on this answer as frivolous was denied, but he obtained judgment on the pleadings, on which defendant appealed. Held that, on settlement of the case on appeal, the court properly struck out the order denying said motion. as forming no part of the judgment roll, as the motion merely raised the question that the pleading was insufficient on a bare inspection, and did not touch its legal sufficiency, and therefore was not within Code Civ. Proc. § 1237, under which an interlocutory order, to become a part of the judgment roll, must be one which in some way "involves the merits or necessarily affects the judgment." Appeal from City Court of New York, Special Term.

Action by Louis Goldstein against Lena Michelson and others. From an order granting a motion for resettlement of the case on appeal by striking out certain papers, defendants appeal. Affirmed.

Argued before FREEDMAN, P. J., and BISCHOFF and GILDERSLEEVE, JJ.

Jacob Gordon, for appellants.

A. B. Schleimer, for respondent.

BISCHOFF, J. The action was to enforce the liability of sureties upon an undertaking given to discharge a mechanic's lien; and the answer, after denying certain allegations of the complaint, set up affirmative defenses based upon the pendency of an appeal from the judgment in the action to establish the lien. Thereafter the defendants served an amended answer alleging that they "reiterate and reallege each and every allegation set forth and contained" in certain paragraphs of the original answer, with amendment of the affirmative defenses. A motion for judgment upon this amended answer, as frivolous, was denied; but, upon the case being called for trial, the plaintiff obtained judgment on the pleadings, and the defendants took an appeal from the judgment. Upon the settlement of the case on appeal, the court struck out the order which denied the plaintiff's earlier motion for judgment on the amended answer, as frivolous, and also struck out the original an

swer; both papers having been included in the proposed case on appeal, as a part of the judgment roll.,

In our opinion, the court committed no error in striking out these papers, and the order appealed from should not be disturbed. When the defendants served their amended answer, so described, the carlier answer was superseded for all purposes of the record (Dexter v. Dustin, 24 N. Ý. Supp. 129, 70 Hun, 515; Thornton v. R. Co., 6 Daly, 511); and the defendants could not change its status by the mistaken practice of referring to it in the amended pleading, at least without the plaintiff's consent. Here the plaintiff did nothing in the slightest degree inconsistent with the position that the amended answer was to be treated as such, and the court therefore was not required to take the pleadings as consolidated, by consent, without an order, as in Kline v. Corey, 18 Hun, 524-a case where the amended complaint was futile unless treated as a supplemental complaint, and where the defendant answered to the merits, with recognition of the original complaint, after the amendment. We must hold, therefore, that the original answer had no place in the judgment roll; and so, too, of the order denying the plaintiff's motion for judgment upon the amended answer as frivolous. The order was, of course, no adjudication that the amended answer was sufficient as matter of law. The motion presented no more than the proposition that the pleading was insufficient upon a bare inspection, without the need of argument, and the order denying that motion necessarily left the question of the legal sufficiency of the pleading wholly unaffected. An interlocutory order, to become a part of the judgment roll, must be one which in some way "involves the merits or necessarily affects the judgment" (Code Civ. Proc. § 1237)-qualities which the order in question cannot, in any sense, be said to possess.

We conclude that the order appealed from should be affirmed, with $10 costs and disbursements. All concur.

(45 Misc. Rep. 601)

GOLDSTEIN v. MICHELSON et al.

(Supreme Court, Appellate Term. December 7, 1904.)

1. PLEADING-DEMURRER-JUDGMENT ON PLEADINGS.

Though affirmative matter pleaded in an amended answer was not a sufficient defense, defendants could assail a judgment rendered on the pleadings if no cause of action was stated in the complaint.

2. ACTIONS-BENEFICIAL PLAINTIFF-PERMISSION TO SUE.

In an action on an undertaking running to the clerk of the county, given to procure a discharge of a mechanic's lien filed by the plaintiff's assignor, the obtaining of leave to sue was an essential fact which the plaintiff was bound to allege under Code Civ. Proc. § 814, providing that where a bond has been given in the course of an action to the people or to a public officer for the benefit of a party, and provision is not specially made for the prosecution thereof, the party may maintain an action in his own name for a breach of condition upon procuring an order granting leave.

91 N.Y.S.-3

3. SAME.

and 125 New York State Reporter

The averment of the complaint that the undertaking ran to the plaintiff's assignor is rendered nugatory by the annexation of the instrument, which runs to the county clerk, and the form of the instrument controls over the pleader's conclusion as to its legal effect.

Appeal from City Court of New York, Special Term.

Action by Louis Goldstein against Lena Michelson and others. From a judgment for plaintiff, defendants appeal. Reversed. Argued before FREEDMAN, P. J., and BISCHOFF and GILDERSLEEVE, JJ.

Jacob Gordon, for appellants.

A. B. Schleimer, for respondent.

BISCHOFF, J. Granting that the affirmative matter pleaded by the amended answer was not sufficient in law for the purposes of a defense, still the defendants may assail the judgment rendered upon the pleadings, if no cause of action was stated in the complaint, since the judgment, of course, depends upon the admission of the statement of a cause of action. The appellants raise the point that the complaint is insufficient, and correctly, as we view the case. The action is brought upon an undertaking running to the clerk of the county of New York, given to procure the discharge of a mechanic's lien filed by the plaintiff's assignor; the undertaking being annexed to and made a part of the complaint. The obligation thus being one which the plaintiff or his assignor could not enforce without some statutory authority, because running to some other person, the cause of action depends upon compliance with the statute which permits an action, by the individual interested, upon a bond or undertaking running to a public officer (section 814, Code Civ. Proc.; Ringle v. W. T. Wks., 16 Misc. Rep. 167, 38 N. Y. Supp. 875; In re John P. Kane Co. [Sup.] 66 N. Y. Supp. 684, affirmed 52 App. Div. 630, 65 N. Y. Supp. 1136); and therefore the obtaining of leave to sue-the condition imposed by section 814 of the Code-was an essential fact which the plaintiff was bound to allege for the purposes of a statement of a cause of action (18 Abb. N. C. 149, note).

In the absence of an allegation that leave to sue had been obtained, the complaint afforded no basis for judgment upon the pleadings, and the judgment must therefore be reversed, with costs. All concur.

NATHAN v. NEW YORK CITY RY. CO.

(Supreme Court, Appellate Term. December 7, 1904.)

1. STREET RAILROADS-INJURIES TO PASSENGERS-TIME TO Board Car-NEGLIGENCE.

Where a street car slowed down as it approached plaintiff, in response to a signal, and plaintiff attempted to step on the rail platform while the car was in motion, and was thrown down and injured by a sudden acceleration of speed, plaintiff was not entitled to recover in the absence of proof that the motorman had actual notice that plaintiff was in the act of boarding the car, or that the place where he attempted to board it was a usual stopping place.

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

Action by Adolph Nathan against the New York City Railway Company. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and BISCHOFF and GILDERSLEEVE, JJ.

Grauer & Rathkopf, for appellant.

Henry W. Goddard and Wm. E. Weaver, for respondent.

BISCHOFF, J. The plaintiff attempted to board a south-bound car on Madison avenue, at Seventy-Ninth street, standing, as it approached, 10 feet north of the northerly cross-walk, from which point he signaled the motorman to stop. The car slowed as it approached him, and he attempted to step upon the rear platform while the car was thus in motion; but its speed was then suddenly accelerated, with the result that he was thrown.

The dismissal of the complaint for failure of proof of the de-. fendant's negligence is supported by the authority upon which_the justice based his ruling. Monroe v. Met. St. Ry. Co., 79 App. Div. 587, 80 N. Y. Supp. 177. In that case it was held that the motorman was not chargeable with neglect of reasonable care in increasing the car's speed as it passed the intending passenger, and before it actually stopped, although slowing at his signal when it approached him, unless actual notice that the passenger was in the act of boarding the moving car were shown to have been received. Possibly the case might be distinguished, if the plaintiff had attempted to board the moving car as the rear platform came opposite to him, with the speed lessened at his signal, at a usual place of stoppage, as in Clinton v. R. Co., 91 App. Div. 374, 86 N. Y. Supp. 932; but there was no proof of any custom or of a city ordinance which made a point 10 feet north of a northerly crosswalk the proper place for boarding a south-bound car. Judgment affirmed, with costs. All concur.

11. See Carriers, vol. 9, Cent, Dig. § 1161.

and 125 New York State Reporter

VAN HOUTEN v. OLIVER.

(Supreme Court, Appellate Term. December 7, 1904.)

1. BANKRUPTCY-SUIT BY TRUSTEE-OFFICIAL CAPACITY-PROOF.

Where plaintiff sued as the trustee in bankruptcy of defendant's creditor, and plaintiff's appointment as trustee was denied, a judgment in his favor without proof of such appointment was erroneous.

Appeal from City Court of New York, Special Term.

Action by Erskine J. R. Van Houten, as trustee in bankruptcy of the Rochester Lamp Company, against Joseph H. Oliver. From a City Court judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, he appeals. Reversed. Argued before FREEDMAN, P. J., and BISCHOFF and GILDERSLEEVE, JJ.

W. E. Morris, for appellant.
White & Case, for respondent.

FREEDMAN, P. J. The action was brought by the plaintiff upon an allegation that he had been duly appointed trustee in bankruptcy of the Rochester Lamp Company, and other allegations to the effect that two monthly installments of rent had become due to him from the defendant by virtue of the terms of a lease from the Rochester Lamp Company to the defendant. Assuming that the complaint sufficiently alleged the due appointment of the plaintiff as trustee, yet, as the said allegation was denied by the answer, the plaintiff was bound to establish its truth by proof on the trial. No such proof having been adduced, the judgment cannot be sustained.

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

(45 Misc. Rep. 572)

DICKSON v. MANHATTAN RY. CO.

(Supreme Court, Appellate Term. December 7, 1904.)

1. COURTS-JURISDICTION-APPELLATE TERM-ACTION IN CITY COURT-HEABING EXCEPTIONS BY APPELLATE TERM IN FIRST INSTANCE.

The Constitution taking effect January 1, 1895, and Code Civ. Proc. c. 12, tit. 3, § 1344, provided that an appeal from the City Court of the City of New York should be heard by the Appellate Division of the Supreme Court, or by such justices as might be designated by the Justices of the Appellate Division sitting in the First Department, and that the provisions of chapter 12, tit. 4, should apply to an appeal taken as prescribed in title 3. Sections 1346-1350, contained in title 4, relate to appeals to the Appellate Division from final judgments in actions brought in the Supreme Court or a Superior City Court, and sections 3188 and 3189 of chapter 20, tit. 1, provide for the taking of appeals from judgments, interlocutory judgments, and orders of the City Court to the Supreme Court. By section 3190 it is provided that titles 3 and 4 of chapter 12. so far as applicable, shall apply to and govern an appeal taken as prescribed in either of the last two sections. Chapter 10, tit. 1, § 1000, provides that a judge presiding at a jury trial may direct that exceptions be heard in the first instance by the Appellate Division of the Supreme Court, and

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