The defendant excepted, and the record immediately thereafter reads:

"Motion reserved to strike out, if the evidence is irrelevant."

Thereupon the witness said that he had asked the boy whether he had a chauffeur's license, who replied that he did not have one, that he was about to apply for one that very day, but that some business of the defendant had detained him from going to get the license. The motion, then made, to strike out the answer as irrelevant, incompetent, and immaterial, and not binding upon the defendant, was denied under exception. The court charged:

"The fact that a man had no license would not prove that he was careless at that point or on that day."

And at the close of the charge the counsel for the plaintiff requested the instruction that:

"Under the highway law of the state of New York, it was not lawful for the defendant to permit the automobile to be operated by a man who did not have a license issued to him pursuant to law."

The court said:

"That I will refuse to charge; but I will say to the jury that it is what the man did, and not what he was, that is controlling in this case. If he never had a license, and never drove an automobile before, yet if he on that day drove prudently and intelligently, the fact that he had no license should not be considered by you in deciding who was to blame."

The same counsel then said:

"I ask your honor to charge, if they find the automobile was operated by a man without a license granted under the state law, that that would be some evidence of negligence in this case."

"The Court: I will decline that."

None of these instructions was excepted to, and no modification or further instruction upon this feature was requested. Thus it appears that the court at the outset but admitted the testimony tentatively, expressly stating at the time that the question was still open whether it was or was not negligence, that subsequently the court instructed the jury that the fact that the chauffeur was unlicensed would not prove that he was careless in this accident, that the court refused to charge that the defendant violated the Highway Law in permitting his servant to work the motor car, that the court instructed the jury that the culpability of the defendant depended upon his acts, not his status as a licensed or unlicensed chauffeur, and that the fact that he was unlicensed was not any evidence of negligence.

Thus the learned counsel for the appellant is forced to contend that the mere admission of the fact of no license, not even as evidence, but as possible evidence, although afterwards expressly and affirmatively excised from the case, was prejudicial error. I think that the point is not well made. The rule that applies is that it will be presumed "that the instructions" of the court "were obeyed and the error in its admission cured." Holmes v. Moffat, 120 N. Y. at page 163, 24 N. E. at page 276, citing Pennsylvania Co. v. Roy, 102 U.

S. 459, 26 L. Ed. 141. See, too, People v. Schooley, 149 N. Y. 103, 43 N. E. 536; Ives v. Ellis, 169 N. Y. 91, 62 N. E. 138; People v. Smith, 172 N. Y. 239, 64 N. E. 814. The case is not controlled by Erben v. Lorillard, 19 N. Y. 299, and the other cases cited by the learned counsel for the appellant. Erben v. Lorillard, supra, is discriminated in Holmes v. Moffat, supra, in that, when the court instructed the jury to disregard the testimony that was improper, the case was bare of any evidence that supported the verdict.

[2] The verdict was for $14,000 in round numbers. Since the death of her husband 15 years ago, the plaintiff has been supporting herself by earning $18 a week by draping gowns and making threatrical costumes. The accident occurred in August, 1911. The plaintiff was taken at once to the Roosevelt Hospital, and was confined there, still undischarged at the time of the trial, October 30, 1911. Dr. Mott, the house surgeon, who had personal charge of the plaintiff, testified that, when admitted, she was suffering from two scalp wounds, which had been sewed up in the accident room, and that both arms and her left leg were in temporary splints. She had suffered a deep scalp wound of 5 inches on the head, extending down to the bone, and a smaller scalp wound on the head 21⁄2 inches long. There was a large contusion on the back of her head, where a large blood clot was formed. Both arms were broken. The break of the left arm was a simple and that of the right arm a compound fracture, with the bone projecting through the skin. There was a simple fracture of both bones of the left leg from below the knee joint into the knee joint. The witness testified that the left leg will be permanently shortened by one-half an inch, that the right arm will be fairly good for use, but that permanently the left arm will be of very little use; and he further testified that the patient lay unconscious for three days, which indicated a very severe case of concussion. The defendant did not offer any testimony in contradiction or in diminution. I think that the damages were not excessive.

The judgment and order must be affirmed, with costs. All concur.

POSNER v. ROSENBERG et al.

(Supreme Court, Appellate Division, Second Department. November 15, 1912.) 1. PLEADING (§ 244*)-AMENDMENT PERMITTING AFTER APPEAL.

Where a court held that the liquidated damages provided for on a breach of an employment contract were not unconscionable, and that, in view of the provision for such damages, no recovery of a share of the profits provided for in the contract could be had, and also that a count of the complaint was technically bad as a count for liquidated damages, because it did not allege their nonpayment, such a count could not be good as declaring for the share of the proceeds, and where there was another count declaring on the liquidated damages, no amendment thereof was warranted.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 652; Dec. Dig. § 244.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

2. PLEADING (§ 193*)-Demurrer-SeeKING IMPROPER RELIEF.

Where necessary facts are pleaded, a pleading is not necessarily bad on demurrer because improper relief is sought.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 425, 428-435, 437-443; Dec. Dig. § 193.*]

3. PLEADING (§ 350*)—JudGMENT ON PLEADING NECESSITY OF CROSS-MOTION. Where a plaintiff, in an action for breach of a contract, after a demurrer, on the ground that a count of the complaint did not state facts sufficient to constitute a cause of action, had been interposed, moved for judgment on the pleadings, under Code Civ. Proc. § 547, which authorizes the court to give such judgment on motion at any time after issue joined, judgment for the defendant could not be given on a refusal of the plaintiff's motion, in the absence of a cross-motion for judgment, and the issue of law raised by the demurrer can only be disposed of by trial. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1053, 1054, 1070-1077; Dec. Dig. § 350.*]

4. ACTION (§ 60*)-SEVERANCE-SAME ISSUE.

Where to an action on an employment contract, for liquidated and unliquidated damages, the defendants counterclaimed that it was the plaintiff, rather than they, who breached the contract, the single issue is as to who was guilty of the breach, and as, if the two causes had been commenced separately, they could have been consolidated, under Code Civ. Proc. § 817, which provides that, where two or more actions in favor of the same plaintiff against the same defendant for causes of action which may be joined are pending in the same court, the court may, in its discretion, by order consolidate any or all of them into one action, a severance of the two causes, under authority of Code Civ. Proc. § 1220, was improperly granted.

[Ed. Note. For other cases, see Action, Cent. Dig. §§ 699-707; Dec. Dig. § 60.*]

Appeal from Special Term, Westchester County.

Action by Sarah C. Posner against Max Rosenberg and another, copartners under the firm name of Max Rosenberg Company. From an order permitting the plaintiff to amend her complaint, and to proceed with each cause of action stated therein independently of the other cause of action, defendants appeal. Ordered reversed, and motion denied.

See, also, 149 App. Div. 272, 133 N. Y. Supp. 704.

Argued before JENKS, P. J., and HIRSCHBERG, BURR, THOMAS, and CARR, JJ.

Charles A. Brodek, of New York City, for appellants.

Charles Goldzier, of New York City (Gerald B. Rosenheim, of New York City, on the brief), for respondent.

BURR, J. Plaintiff and defendants entered into a contract, to begin on the 1st day of January, 1909, and to expire on the 31st day of December, 1911. Under its terms plaintiff was to render services to defendants as designer and superintendent of the dress and costume department of the business carried on by them. Her compensation was to be a stated salary of $100 per week, and in addition thereto a sum equal to 30 per cent. of the net profits made by defendants in said dress and costume department, which latter sums were to be ascertained semiannually and credited to plaintiff's account, but were

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

not payable to her until the "end of the term" of said agreement and upon performance of its terms and conditions on her part. The contract also contained a clause which was as follows:

"It is further understood and agreed that, in the event of a breach of this contract by either party hereto, the party so breaching will pay to the other the sum of ten thousand ($10,000) dollars as and for their or her liquidated damages in the premises, and not as a penalty; but this provision of the agreement or the payment of such sum as liquidated damages shall not debar the nonbreaching party from applying for and obtaining such equitable relief as they or she might be entitled to, irrespective of such provision and such payment."

Before the expiration of the term of said contract plaintiff was discharged as she claims, wrongfully; as defendants assert, for just cause. Thereafter she brought this action for a breach of the covenants contained in said contract, alleging one contract, to wit, that of employment, and one breach thereof, to wit, her wrongful discharge. Plaintiff sought, under the guise of stating in her complaint two separate causes of action, founded upon such contract and said breach, to recover both the liquidated damages provided for as above set forth, and also, as unliquidated damages, her proportionate part of the profits to which she might have become entitled, had the contract continued in force. As a first cause of action she attempted to state her claim for liquidated damages, and as a second cause of action her claim for unliquidated damages.

To the second cause of action defendants demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action. Upon a motion made by plaintiff, which was treated as a motion, under section 547 of the Code of Civil Procedure, for judgment on the pleadings, we considered the sufficiency of that portion of the complaint, and concluded that it failed to state a cause of action, and reversed an order entered by the learned court at Special Term in plaintiff's favor. Posner v. Rosenberg, 149 App. Div. 272, 133 N. Y. Supp. 704. After such decision plaintiff moved to amend her complaint, by including in that portion thereof denominated as a second cause of action an allegation as follows:

"Tenth. That the plaintiff received no part of the said net profits, except the sum of about $9,133.25, and the defendants have not paid the plaintiff the $10,000 liquidated damages as provided in said contract, or any part thereof, although the same was demanded prior to the commencement of this action."

In the same motion she asked as further relief that an order should be made severing the first and second causes of action attempted to be stated in her complaint. The motion was granted in its entirety, and by the terms of the order plaintiff is not only allowed to amend her complaint, but is permitted "to proceed with each cause of action independently of the other cause of action."

[1] Upon this appeal we shall first consider so much of the order as allows an amendment to the complaint. Upon the previous appeal we concluded that the plaintiff failed to state a "second cause of action" by reason of two defects, one technical in character and the other substantive. We then said "that for a breach of the contract

plaintiff's entire compensation must be limited to the sum named as liquidated damages," and pointed out that the provisions of the contract in respect thereto were peculiarly applicable to that portion of the contract relating to profits. Posner v. Rosenberg, supra.

[2] If, however, necessary facts are alleged, a pleading is not necessarily bad on demurrer because inappropriate relief is sought. In that connection we pointed out that the portion of the complaint now under consideration could not be "construed as an action to recover the sum named as liquidated damages, for there is no allegation of the nonpayment thereof." By her proposed amendment plaintiff seeks to overcome the technical objection only. She finds herself in this dilemma: Unless with this proposed amendment plaintiff seeks in her second cause of action to recover only liquidated damages for breach of the contract, and to abandon her claim for profits in addition thereto, her complaint is still defective for the substantive reason hereinbefore stated. If that is her purpose, then the amendment is unnecessary, for she has in her first cause of action attempted to allege a breach, with her consequent right to such damages. Her second cause of action becomes, then, in legal effect, a repetition of the first cause of action, and is unnecessary. We think, therefore, that the motion to amend should have been denied.

We think, also, that the motion for severance was improperly granted. Plaintiff seeks statutory authority for such relief in the provisions of the Code of Civil Procedure, § 1220, which is as follows:

"Where an issue of law and an issue of fact arise, with respect to different causes of action, set forth in the complaint, and final judgment can be taken, with respect to one or more of the causes of action, without prejudice to either party in maintaining the action, or a defense or counterclaim, with respect to the other causes of action, or in the recovery of final judgment upon the whole issue, the court may, in its discretion, and at any stage of the action, direct that the action be divided into two or more actions, as the case requires."

[3] She contends that, notwithstanding her motion for judgment on the pleadings was denied, in the absence of a counter motion on the defendants' part the demurrer still stands, and thereby an issue of law is raised, which can only be disposed of by trial. In this she is correct. Ventriniglia v. Eichner, 138 App. Div. 274, 122 N. Y. Supp. 966; Zeikus v. Florida East Coast R. Co., 70 Misc. Rep. 339, 128 N. Y. Supp. 931, affirmed 144 App. Div. 91, 128 N. Y. Supp. 933. If our former decision is correct, plaintiff has but one cause of action.

[4] But if it should be ultimately determined that we were wrong, and that plaintiff has two causes of action, one for liquidated damages, and the other for unliquidated damages by way of profits, we still think that in the exercise of wise discretion the causes of action should not be severed. The question lying at the foundation of the rights of the respective parties is: Who was guilty of the breach of the contract? Plaintiff asserts that it was the defendants, and asks to recover the damages resulting therefrom. Defendants contend that it was the plaintiff, and seek to recover from her by way of counterclaim their resulting damages. It is in the interests of justice, from