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(182 N.Y.S.)

ance of an alleged agreement, dated November 18, 1919, whereby the defendant gave to the plaintiff an option for a period of 60 days to purchase the premises 471-473 Fifth avenue and 4-6 East FortyFirst street at a consideration of $1,200,000, upon certain terms and conditions therein specified. One of the terms and conditions is:

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"(6) In the event that this option is exercised, and contract made, upon such terms, as are acceptable to us [defendant], that the purchaser pay down on contract on account of purchase price a sum of $25,000. Title is to be taken and passed on or about March 1, 1920, if option to purchase is exercised."

Thereafter, and on the 27th day of December, the defendant entered into a contract to sell the premises to the Barclay Holding Company, together with other premises therein described. This contract recites that the premises are subject to the following incumbrances: (4) An option for the sale of said premises for $1,200,000, which expires on January 17, 1920. It is understood and agreed that, should the party who holds the option for the purchase of said premises elect to purchase the same, and the party of the first part herein is unwilling [stated to be a misprint for willing] to have a conveyance made to such party upon the terms provided for in said option, then this agreement may, at the option of the party of the first part [Barclay Holding Company], be declared null and void."

On or about the 5th day of January, 1920, the Barclay Holding Corporation entered into a contract with James T. Lee wherein and whereby it agreed to sell to Lee the premises in suit, subject to the following incumbrances:

"(2) Rights, if any, of Henry Mandel under an option of purchase dated November 18, 1919."

On the 13th day of January, 1920, the complaint alleges, the plaintiff duly tendered to the defendant the sum of $25,000 as deposit on the contract of purchase of said premises, pursuant to the terms of said agreement, and requested performance by the defendant; that the defendant refused and still refuses to present to the plaintiff a properly drawn contract of sale of said premises signed by the defendant, which will conform to the terms of said agreement as herein provided. Immediately thereafter this action was commenced. The summons, complaint, and notice of the pendency of the action were filed in the office of the clerk of the county of New York on the 14th day of January, 1920. On February 2, 1920, the defendant conveyed the property to the Barclay Holding Corporation. On January 22d a motion was made on behalf of James T. Lee to be allowed to intervene as a party defendant. This motion was denied, with leave to renew upon papers which shall set forth a copy of the agreement between Lee and the Barclay Holding Company and a copy of the agreement between the corporation and the defendant, if it can be procured, and which should clearly show on what ground the applicant bases his contention that his rights are superior to those of plaintiff. Pursuant to this leave, a notice of motion was served on February 5th for leave to intervene, and was denied by the justice then presiding, for the reason that the papers did not, as required

by the leave to renew the motion, "clearly show on what ground the appellant bases his contention that his rights are superior to those of the plaintiff."

In my opinion the motion should have been granted. Section 452 of the Code of Civil Procedure provides:

"The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, or in real property for injury to which the complaint demands relief, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment."

[1-3] This section is not so narrowly limited as the justice at Special Term would seem to imply. It is not necessary that the third party shall have rights in the subject-matter of the action or in the real estate that is to be affected by the judgment in the action superior to the plaintiff. It is sufficient that such party is necessary to complete determination of the controversy, or has an interest in real property the title to which may in any manner be affected by the judgment. It is clear that the title to this property will be affected by the judgment if the plaintiff should succeed, and that the rights of the moving party, Lee, will be seriously affected thereby, unless it be that the action is not brought in good faith, and merely for the purpose of recovering damages against the defendant for a breach of the contract which it will be required to make and which it cannot perform. If the plaintiff by his opposition to this motion intends to rely upon the latter ground, he cannot sustain this action, for his remedy is for a breach of the contract to give an option, and not for specific performance of the option agreement, whereby the contract which it is now impossible for the defendant to perform should be given.

The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

GUTMAN et al. v. WEISBARTH et al.

(Supreme Court, Appellate Term, First Department. June 9, 1920.)

Appeal and error 1099 (6) -Former decision conclusive on second appeal on same evidence.

Where the case was on former appeal reversed, on the ground that plaintiffs had failed to sustain their burden of proof, a judgment on verdict for the plaintiffs on a second appeal, on substantially the same evidence in legal effect and weight, will also be reversed for new trial.

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

Action by Eugene Gutman and another against Benjamin Weisbarth and others. Judgment for plaintiffs on verdict of a jury, and defendants appeal. Reversed, and new trial granted.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ.

David Drechsler, of New York City, for appellants.

Seligsberg, Lewis & Strouse, of New York City (Clarence M. Lewis and Jay Leo Rothschild, both of New York City, of counsel), for respondents.

PER CURIAM. This case upon a former appeal to this court was reversed, upon the ground that the plaintiffs had failed to sustain the burden of proof cast upon them. Gutman v. Weisbarth et al., 178 N. Y. Supp. 377. The record presented herein is substantially the same as it was on the former appeal, and the evidence in legal effect and weight the same.

Judgment reversed, and new trial granted, with $30 costs to appellants to abide the event.

BURKWITT v. NEW JERSEY FIDELITY & PLATE GLASS INS. CO. (Supreme Court, Appellate Term, First Department. June 9, 1920.)

1. Courts 190 (9)-After affirmance of judgment including interest Municipal Court cannot strike out provision for interest.

A judgment as originally rendered did not include interest, though the complaint demanded the same, and thereafter an order was made directing the clerk to compute and add the interest, and the judgment was affirmed on defendant's appeal, on which no point was made that the addition of interest was error. Held, that the Municipal Court, in which the cause was tried, could not vary the decision.

2. Courts 481-One justice of the Municipal Court cannot review an order of another.

Where, on order of one justice, the clerk was directed to add interest to judgment, which did not provide for the same, the defendant cannot have the provision stricken on application to another justice, for the order of one justice cannot be reviewed by another.

Appeal from Municipal Court, Borough of the Bronx, Second Dis

trict.

Action by Benjamin F. Burkwitt against the New Jersey Fidelity & Plate Glass Insurance Company. From an order granting defendant's motion to strike from the judgment an item representing interest, plaintiff appeals. Order reversed.

See, also, 176 N. Y. Supp. 706.

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Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ.

Benjamin F. Burkwitt, of New York City (John Clifford Hawkins, of New York City, of counsel), for appellant.

Joseph L. Prager, of New York City (Harding Cowan, of New York City, of counsel), for respondent.

PER CURIAM. This is an appeal by the plaintiff from an order granting defendant's motion to strike from the judgment the sum of $58.68, an item representing the interest on plaintiff's recovery.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 182 N.Y.S.-44

[1, 2] The case was tried on October 15, 1919, and a verdict rendered in favor of the plaintiff for the sum of $978.25. It appears that a judgment was entered, which did not include any interest, although the complaint demanded the same. On December 12, 1919, an order was made by a justice of the Municipal Court, directing the clerk to compute and add interest to the judgment, which was done; the amount being the aforesaid sum of $58.68. Thereafter the defendant appealed from the judgment, but upon appeal made no point that the addition of the interest to the judgment was error, and did not ask for a review of the order directing the interest to be added to the judgment. Subsequently the judgment was affirmed by this court. After such affirmance, the defendant obtained the order appealed from. After the precise question involved in this appeal had been passed upon by the Appellate Court, the Municipal Court was without power to vary our decision. Moreover, the defendant sought to review an order of one justice of the Municipal Court by application to another justice, and this practice is unauthorized.

Order reversed with $10 costs, and motion denied, with $10 costs.

MacARTHUR v. WALTER.

(Supreme Court, Appellate Term, First Department. June 3, 1920.) 1. Landlord and tenant 296 (1)—Where original entry was with permission, summary proceeding, on the theory that tenant was an intruder and squatter, cannot be maintained.

Where the tenant's original entry was by permission of the owner's agent, summary proceeding, under Code Civ. Proc. § 2232, subd. 4, on the theory that he was a squatter and an intruder, cannot be maintained. 2. Principal and agent 120 (3)-Postal card admissible to show that agent had some authority to rent.

In summary proceeding, where the tenant claimed under a lease for three years executed by an agent, a postal card sent by the owner, telling the agent that she wished to rent her premises, was admissible as showing he had some authority to rent, though it did not constitute written authority to lease for term of three years, thereafter required by Real Property Law, § 242.

3. Landlord and tenant 118 (3)-Where agent has some authority in leas ing premises, and landlord disaffirmed, a tenancy at will resulted.

Where the landlord's agent had some authority, though not authorized in writing, as required by Real Property Law, § 242, to make a lease for longer than a year, and the landlord disaffirmed the lease, nevertheless a tenancy at will results.

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

Summary proceeding by Pauline A. MacArthur against Otto Walter. From a final order awarding possession to the landlord, the tenant appeals. Reversed, and petition dismissed.

Argued April term 1920, before GUY, FINCH, and WAGNER, JJ. Harris & Towne, of New York City (Richard H. McIntyre, Jr., of New York City, of counsel), for appellant.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

Goodale & Hanson, of New York City (Henry W. Simpson, of New York City, of counsel), for respondent.

FINCH, J. [1] The proceeding was instituted in accordance with the provisions of subdivision 4 of section 2232 of the Code of Civil Procedure, upon the ground that the defendant was an intruder and squatter and was occupying the premises without the owner's permission. It appears that the petitioner left the United States in January, 1919, at which time the premises were vacant. An agent was looking after the property for the owner, to whom the owner admits that she said, "That house had better be occupied during my absence," and thereafter the agent installed the tenant herein as a caretaker. It therefore fairly appears, and is practically conceded, that the tenant entered into possession with permission. This order must therefore be reversed, and petition dismissed, upon the ground that this proceeding cannot be maintained under subdivision 4 of section 2232 of the Code of Civil Procedure, since the original entry was with permission. Matter of Stockwell v. Washburn, 59 Misc. Rep. 543, 111 N. Y. Supp. 413.

[2, 3] Moreover, the agent testified that the landlord had told him to rent the property, and he thereafter executed a three-year lease to the tenant, under which the latter was holding. As some evidence of the agent's authority, there was offered a postal card written to him. by the owner, stating that she wished to rent the premises. This was excluded, on the ground that it did not constitute authority to lease. This was error. While the postal card would be incompetent as evidence of authority to create a lease for three years, because under section 242 of the Real Property Law (Consol. Laws, c. 50) an agent's authority to make a lease for longer than a year must be in writing, yet the postal card was admissible as showing that the agent had some authority to rent. Even though a landlord might disaffirm an unauthorized lease, a tenancy at will results (Altschuler v. Lipschitz, 113 N. Y. Supp. 1058), and the proceeding could not be maintained under the section above quoted, upon which the petitioner is relying.

It follows that the order should be reversed, with $30 costs, and the petition dismissed. All concur.

(192 App. Div, 410)

SOFIELD et al. v. W. BECKER'S ANILINE & CHEMICAL WORKS, Inc. (Supreme Court, Appellate Division, Second Department. June 11, 1920.) Parties 53-Trial amendment, adding party plaintiff, without notice or justifying proof, not allowable.

A trial amendment, without notice or justifying proof, bringing in a new party plaintiff, and changing the theory of ownership of the oysters, which were the subject of litigation, cannot be granted under Code Civ. Proc. § 723, during the course of trial, over objection duly made, since it introduces a radically different action, and particularly where no amendment of the answer to meet the new situation was allowed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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