146 NEW YORK SUPPLEMENT (Sur. Ct. 663, 39 N. E. 360). For this purpose proof merely that a brother of defendant was taken to court as a witness seems to me palpably insufficient. It follows that judgment in this action based upon a judgment roll, not binding on the defendant, should be reversed, and a new trial or dered, with costs to appellant to abide the event. All concur. GASPAROWICZ v. OSHINSKY. (Supreme Court, Appellate Term, First Department. April 14, 1914.) SET-OFF AND COUNTERCLAIM (§ 57*)—JUDGMENT FOR PLAINTIFF. In an action for wages, where defendant expressly admitted the claim, but interposed a counterclaim for a less amount, plaintiff was, at all events, entitled to a judgment for the difference between her claim and the counterclaim, and a dismissal of the complaint was erroneous. [Ed. Note.-For other cases, see Set-Off and Counterclaim, Cent. Dig. § 128; Dec. Dig. § 57.*] Appeal from Municipal Court, Borough of Manhattan, Eighth Dis trict. Action by Tessie Gasparowicz against Isidor M. Oshinsky. From a judgment dismissing the complaint without prejudice, plaintiff appeals. Reversed and remanded. Argued March term, 1914, before SEABURY, LEHMAN, and BIJUR, JJ. Nathan April, of New York City, for appellant. Charles S. Rosenberg, of New York City, for respondent. BIJUR, J. The record of the case shows so irregular a course of practice, both previous to and at the trial, as alone to require a reversal; but, on what may be called the merits, plaintiff sued for $17 wages, which claim defendant expressly admitted and interposed a counterclaim of $12. In any view of the controversy therefore, plaintiff was entitled to a judgment for $5. Judgment reversed, and new, trial granted, with costs to appellant to abide the event. All concur. In re PFEIFFER'S ESTATE. (Surrogate's Court, New York County. April 10, 1914.) PRINCIPAL AND AGENT (§ 143*)-UNDISCLOSED PRINCIPAL. As a rule an undisclosed principal may enforce a contract made by an undisclosed agent, unless it be inequitable to do so, so that, where claimant's father, who was formerly in the undertaking business, made over his business to him, but afterwards sometimes acted as his son's agent in receiving orders for funerals, etc., and so acted in contracting for deceFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes dent's funeral, claimant could enforce his claim under such contract against the estate for such funeral expenses. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 392; Dec. Dig. § 143.*] In the matter of the Estate of Joseph Pfeiffer. Application for payment of funeral expenses. Prayer granted. Cornelius Huth, of New York City, for petitioner. Kelley & Connelly, of New York City, for executors. FOWLER, S. This is an application for payment of a reasonable expense for the burial and funeral of the deceased. The reasonableness of the bill is conceded, and that the estate is liable therefor to some one is also conceded. It is disclosed that there are funds applicable to the payment of the funeral expenses. It appears that the contract was made with an undisclosed agent who was treated as principal throughout. The father in this case acted as the agent of his son. The father had been an old undertaker known to the neighborhood, but before this funeral he had made over the business to his only son of the same name. Thereafter the father, who was in ill health, continued to act as agent of the son, sometimes receiving orders for funerals from his old customers and conducting the funerals as in this instance. But at the same time, in fact, the business had become the son's sole business. The father has since died intestate, leaving no estate or debts, and there is no need of an administration. Had there been any defense or set-off to the bill as against the father, another question would arise, as the estate of Pfeiffer would, under the circumstances, be entitled to such set-off as against the undisclosed principal (Taintor v. Prendergast, 3 Hill, 72, 38 Am. Dec. 618). But there is no claim of set-off. The only point here is the right of the undisclosed principal to payment. As a general rule an undisclosed principal may enforce a contract made by an undisclosed agent, unless it is inequitable so to do. Anson on Contracts, 425; Pollock on Contracts, 100. No authority to the contrary of this general common-law rule has been cited to me. Of course there may be a state of facts shown under which the real principal could not sue on a contract by an undisclosed agent. But nothing is shown here to take this matter out of the operation of the general rule. I am convinced that the son was the real principal in this matter. The father and son were evidently respectable people, and the arrangement between them was bona fide, and not in order to deceive or defraud any one. I think the estate will be protected by a payment to the son, in view of the son's uncontradicted testimony. Prayer of petition granted. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes MEMORANDUM DECISIONS ABE BRILL CO., Appellant, v. PATTEE, Respondent, et al. (Supreme Court, Appellate Division, First Department. February 20, 1914.) Appeal from Trial Term, New York County. Action by the Abe Brill Company against John G. Pattee, impleaded, etc. From a judgment dismissing the complaint at the close of plaintiff's case upon a trial, plaintiff appeals. Reversed, and new trial ordered. I. Ñ. Jacobson, of New York City, for appellant. PER CURIAM. We think the evidence offered by the plaintiff to prove the condition of the accounts at the time the representations were made, and excluded by the court, was competent, as tending to show the falsity of the representations made by the defendant which were directly connected with the purchase of the bill of goods in question. It follows that the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event. MCLAUGHLIN, J., dissents, upon the ground that the offer to prove on the 31st of December, 10 days after the letter in which it is claimed a false statement was made, did not establish that the statement was false at the time it was made. AINSWORTH, Respondent, v. NEW YORK CENT. & H. R. R. CO., Appellant. (Supreme Court, Appellate Division, Third Department. March 4, 1914.) Appeal from Trial Term, Albany County. Action by Effie M. Ainsworth, as administratrix of William I. Ainsworth, deceased, against the New York Central & Hudson River Railroad Company. From a judgment on an assessment of damages in favor of plaintiff for $20,345.50, and from an order denying a motion to set aside the award and assessment of damages and for a new assessment of damages, defendant appeals. Reversed, and new trial granted, unless plaintiff stipulates to reduce the recovery. See, also, 151 App. Div. 332, 135 N. Y. Supp. 474. Visscher, Whalen & Austin, of Albany (William L. Visscher, of Albany, of counsel), for appellant. Richard O. Bassett and Thomas Francis Woods, both of Albany, for respondent. PER CURIAM. Judgment and order reversed, and new trial granted, with costs to appellant to abide event, unless the plaintiff stipulates to reduce the verdict to $12,000, and if she so stipulates the judgment is modified, and, as so modified, judgment and order affirmed, with out costs. WOODWARD, J. (dissenting). I vote to affirm this judgment, and expressly dissent from that part of the decision which provides for a reduction of the amount of the recovery. In my judgment, this is not a case calling for any such action by this court. The plaintiff's intestate was a man 42 years of age, intelligent, fairly well educated, sober, and industrious, a respected member of society. He was actually earning at the time of his death $1,200 per annum, and had all the chances of a good American citizen to increase this amount indefinitely. He left a widow and two young children, the latter of the ages of 12 and 7 years, respectively. The breadwinner of this family is dead by the negligent act of the defendant. The actual financial loss possibly largely exceeds the recovery, and the loss to these children of the companionship, advice, counsel, and guidance of a good father is difficult to overestimate. A jury of 12 men has fixed what I regard as a reasonable sum. The litigation has been protracted and expensive, and I do not think the alternative should be forced upon the plaintiff of accepting a reduction or the burden of a new trial. HOWARD, J., concurs. ALLEN v. BECKER et al. (Supreme Court, Appellate Division, First Department. March 27, 1914.) Action by Horace G. Allen, as executor, etc., against Neal D. Becker, impleaded No opinion. Motion to dismiss with others. appeal granted, with $10 costs, unless appellant comply with terms stated in order. Order filed. ALLEN, Respondent, v. CITY OF NEW Division, Second Department. March 6, 1914) YORK, Appellant. (Supreme Court, Appellate Action by Robert L. Allen against the City of New York. No opinion. Motion for reargn ment (of 160 App. Div. 534, 145 N. Y. Supp. 1022) denied, without costs. ALTHAUSE v. UNITED STATES STEEL CORPORATION. (Supreme Court, Appellate 1914.) Action by Walter Althause against the Division, First Department. February 13, United States Steel Corporation. With this case have been consolidated in this court cases bearing titles as follows: Walter Althause v Richard Trimble; William Theile v. United States Steel Corporation; Same v. Richard Trimble. No opinions. ders filed. See, also, 145 N. Y. Supp. 1111. Motions granted. Or AMERICAN STONE RENOVATING & STUCCO CO. v. GARVER et al. (Supreme Court, Appellate Division, Second Department. April 3, 1914.) Action by the American Stone Renovating & Stucco Company against John A. Garver and others. PER CURIAM. Judgment, in so far as ap pealed from, affirmed, with costs, on authority of Toop v. Smith, 181 N. Y. 283, 287, 73 N. E. 1113. JENKS, P. J., taking no part. ANDERSON et al. v. BRADY. ANDERSON v. SAME. (Supreme Court, Appellate Di vision, First Department. February 20, 1914.) Actions by Rasmus Anderson and others and by Rasmus Anderson against Frank G. Brady. I. H. Levy, of New York City, for appellants. J. H. Buck, of New York City, for respondent. No opinion. Order filed. ANSON, Appellant, v. SAVINGS BANK OF UTICA, Respondent. (Supreme Court, Appellate Division, Fourth Department. March 4, 1914.) Action by Albert N. Anson, as administrator, etc., against the Savings Bank of Utica. No opinion. Appeal dismissed, without costs, upon stipulation filed. See, also, 155 App. Div. 937, 140 N. Y. Supp. 1017. ASHLEY, Respondent, v. ERIE R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. March 6, 1914.) Action by Joseph Ashley against the Erie Railroad Company. PER CURIAM. This case was submitted to the jury on the theories that they might find that either the defendant's engineer or the defendant's conductor was guilty of negligence in the handling of the train, and so caused plaintiff's injuries. We fail to find in the record any evidence of negligence on the part of either the engineer or the conductor. We are of opinion, therefore, that the judgment and order must be reversed, and the complaint dismissed, with costs. Judgment and order reversed, and complaint_dismissed, with costs. See, also, 156 App. Div. 888, 140 N. Y. Supp. 1109. AUERBACH, Respondent, v. NUSBAUM et al., Appellants. (Supreme Court, Appellate Division, First Department. February 13, 1914.) Action by Louis Auerbach against Aaron E. Nusbaum and others. F. C. Avery, of New York City, for appellants. E. J. Bernheimer, of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. AUGUST R. OHMAN MAP CO., Respondent, v. MORRIS PARK ESTATES, Appellant. (Supreme Court, Appellate Division, First Department. February 27, 1914.) Action by the August R. Ohman Map Company against the Morris Park Estates. In the matter of the petition of Alexander S. Bacon, etc. No opinion. Order affirmed, with $10 costs and disbursements, without prejudice to any action that the petitioner may bring to enforce his claim to a lien. Order filed. In re BALL. (Supreme Court, Appellate Division, Second Department. March 6, 1914.) In the matter of the accounting of John Oscar Ball, as trustee, etc., of Mary Caulfield, deceased. No opinion. Motion to dismiss appeal denied, on condition that the appellant perfect his appeal, place the case on the May calendar, and be ready for argument when reached; otherwise, motion granted, with $10 costs. See, also, 159 App. Div. 913, 144 N. Y. Supp. 1104. V. BARKIN CONST. CO., Appellant, HERSHFIELD et al., Respondents. (Supreme Court, Appellate Division, First Department. March 27, 1914.) Action by the Barkin Construction Company against Henry G. Hershfield and others. J. A. Seidman, of New York City, for appellant. M. H. Cane, of New York City, for respondents. No opinion. Order modified, by requiring defendants to pay all costs of action to date, to be taxed, and that the amendment shall be without prejudice to the position of the case on the calendar, and, as so modified, affirmed, without costs. Settle order on notice. BECKER v. LEVIN. R. Victor, of New York City, for appellant. M. W. Ehrich, of New York City, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed. BACHMAN et al., Respondents, v. PENDLETON, Appellant. (Supreme Court, Appellate Division, Second Department. April 3, 1914.) Action by Frank H. Bachman and others against Nathaniel G. Pendleton. PER CURIAM. Orders affirmed, with $10 costs and disbursements. JENKS, P. J., taking no part. In re BACON. (Supreme Court, Appellate Division, First Department. March 13, 1914.) (Supreme Court, Appellate Division, First Department. March 27, 1914.) Action by Louis Becker against Hyman Levin. No opinion. Application denied, with $10 costs. Order signed. Motion for stay denied, with $10 costs. Order filed. BERTINI, Respondent, v. HEYMANN et al., Appellants. (Supreme Court, Appellate Division, First Department. March 27, 1914.) Action by Amadeo A. Bertini against Sidney Heymann and others. M. Horowitz, of New York City, for appellants. A. Rosenberg, of New York City, for respondent. No opinion. Order reversed, with $10 costs and disbursements, and motion granted, in so far as to limit examination to allegations of complaint; the date of examination to be fixed on settlement of order. Settle order on notice. BLACK v. FONDA et al. (Supreme Court, Appellate Division, First Department. March 27, 1914.) Action by William H. Black against Bayard Fonds and others. No opinion. Application granted. Order signed. BLOHM, Appellant, v. T. A. GILLESPIE CO., Respondent. (Supreme Court, Appellate Division, Second Department. March 27, 1914.) Action by Lizzie M. Blohm, as administratrix, etc., of Rudolph D. Blohm, deceased, against the T. A. Gillespie Company. No opinion. Judg ment and order unanimously affirmed, with costs. BODENHEIM, Respondent, v. CITY OF NEW YORK, Appellant, et al. (Supreme Court, Appellate Division, First Department. April 3, 1914.) Appeal from Municipal Court of New York. Action by Julius Bodenheim against the City of New York, impleaded with others. From a judgment for plaintiff, and an order denying new trial, defendant appeals. Reversed, and judgment directed for defendant. See, also, 144 N. Y. Supp. 1106. William E. C. Mayer, of New York City, for appellant. Anthony J. Romagna, of New York City, for respondent. PER CURIAM. There was no evidence that the defendant was negligent. The determination of the Appellate Term and the judgment of the Municipal Court are therefore reversed, and judgment directed for the defendant, with costs in all courts. |