(182 N.Y.S.) ment to her, and that she was the owner of the property; that she duly demanded of said defendants, respectively, that they return the property to her, and that they refused and retained possession of it; that on December 31, 1916, the defendant Barrett resigned, and on or about January 1, 1917, ceased to be property clerk. The complaint then makes allegations not necessary to be set forth at length, showing how the other two defendants came into office as assistant property clerk and as property clerk, respectively, and the plaintiff's demand upon each of them for the return of the property in question after it was delivered to them by their predecessors. The defendant Barrett has demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action against him, either individually or as property clerk, and the plaintiff has moved for judgment on the pleadings, and the defendant Barrett has made a cross-motion for similar judgment in his favor. In support of the demurrer, the counsel for the defendant Barrett relies upon sections 332 and 333 of the Greater New York Charter (Laws 1901, c. 466) and upon sections 685 to 691 of the Code of Criminal Procedure, and argues that the plaintiff should have obtained relief under the sections referred to by obtaining from a magistrate an order directing the property to be turned over to her. Whatever may be made to appear when the demurring defendants answer, there is nothing in the complaint to show that the sections referred to are applicable. Section 332 of the Greater New York Charter by its terms is limited to property "alleged to have been feloniously obtained, or to be the proceeds of crime," and sections 685 to 691 of the Code of Criminal Procedure similarly by their terms are limited to property "alleged to have been stolen or embezzled." In the present case it does not appear from the complaint that any one ever made any claim that the property in question was stolen, or embezzled, or feloniously obtained, or that it was the proceeds of crime. I do not intend by what I have said above to attempt to pass upon the question whether or not the complaint would be demurrable, if it appeared therein that the property in question was of the character specified in the sections above referred to. All I am holding is that the facts before me in this complaint do not require a consideration of the effect of those sections. The plaintiff's motion is therefore granted, and the demurring defendant's motion is denied, with $10 costs, but with leave to the latter to withdraw his demurrer and to answer within 20 days after service of a copy of the order to be entered hereon, with notice of entry thereof, and upon payment of such costs. Settle order on notice. 182 N.Y.S.-57 SZÚNYOG v. KISS. Appeal and error ing on clients. (Supreme Court, Appellate Term, First Department. June 24, 1920.) 1060 (2)—Attorney and client 86-Stipulations bindStipulations made by counsel are conclusive and binding on their clients; and it was prejudicial error, where plaintiff's counsel, after having stipulated not to introduce evidence of any conversations had with defendant, who was absent, to refer to a conversation had with defendant, and to introduce a copy of a letter claimed to have been shown to defendant. Appeal from Municipal Court, Borough of Manhattan, Sixth Dis trict. Action by Alex Szunyog against Emil Kiss. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted. Argued June term, 1920, before BIJUR, DELËHANTY, and WAGNER, JJ. Henry Brill, of New York City, for appellant. J. S. Rosenthal, of New York City, for respondent. PER CURIAM. The action is for the return of $360, which was paid to the defendant by plaintiff on April 4, 1917, for the purchase of 3,000 kronen to be transmitted to the Hungarian Postal Savings Bank. Upon the trial, and before the opening of plaintiff's counsel, the attorney for defendant called the court's attention to the fact that the defendant was then in Europe, and that by reason thereof plaintiff's counsel had stipulated a week before, on defendant's application for a continuance until defendant's return, inasmuch as he was a material witness, that in the event of the case being advanced to an immediate trial, he, the plaintiff's counsel, would introduce no evidence of any conversations had with the defendant arising out of the subject-matter in suit. A controversy then arose as to whether such stipulation had in fact been made, whereupon, in open court, plaintiff's counsel again stipulated to the same effect. The case then proceeded; but, despite the stipulation which had been given, plaintiff's counsel, even in the opening, referred to defendant's conversation with the plaintiff concerning the matter in litigation. Furthermore, during the course of the trial he repeatedly brought out the fact that plaintiff had a conversation with defendant in connection with the matter, and finally introduced in evidence a copy of a letter which he claims was shown to him by defendant. This letter purported to be one from the defendant to his correspondent abroad, and which, if true, had a very material bearing in the determination of the litigation. All this went upon the record subject to defendant's objection and exception. It needs no citation of authorities to demonstrate that stipulations made by counsel are conclusive and binding upon their clients, and that a violation thereof will never be permitted. This court cannot consistently pass over or condone the fact that plaintiff's counsel deviated from his agreement, and not alone in his opening to the jury, but For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) throughout the trial. In view of the absence of the defendant, his aspect of the controversy could not be presented, and as a result thereof his rights were prejudiced, which calls for a reversal of the judgment appealed from. Judgment reversed, and new trial granted, with $30 costs to appellant to abide the event. CONFORTI v. SINGHI. (Supreme Court, Appellate Term, First Department. June 21, 1920.) Contracts 348-No recovery for substantial performance, without showing cost of part unperformed. Excavation contractor cannot recover in action for substantial performance, without showing the cost of the work not performed; the burden of such proof being on him. Appeal from City Court of New York, Trial Term. Action by Antonio Conforti against Henry U. Singhi. From a judgment for plaintiff after trial by the court and jury, and from an order denying a motion for a new trial, defendant appeals. Reversed, and new trial ordered.. Argued February term, 1920, before LEHMAN, MULLAN, and FINCH, JJ. Pallister, Greene & O'Connell, of New York City (Frank R. Greene, of New York City, of counsel), for appellant. Menken Bros., of New York City (Mortimer M. Menken, of New York City, of counsel), for respondent. FINCH, J. The complaint set forth two causes of action-the first on a written contract providing for the excavation of a cellar and sewer, and for the breaking up of the rock taken out into building stone, and all the stone that was not needed on the premises from which the rock was taken was to be delivered to other premises. The second cause of action was upon a claim for labor and material furnished at the special instance and request of the defendant. There was no dispute as to the second cause of action. The complaint alleged a complete performance of the written contract set forth in the first cause of action. The purpose of this contract was certain excavating and disposition of the rock excavated. This rock was valuable, and its value was affected by the size into which it was broken. While unit prices were provided for, it is apparent that such prices were fixed in contemplation of the entire contract being performed. This is shown by the fact that, although all the rock was required to be broken up into building size, payment was to be measured by a portion only of the same. The contract contemplated that the rock was to be broken up at the place of excavation, and then removed as directed by defendant. Upon the trial the plaintiff testified that he failed to break up some of the stone removed, and justified this upon the ground that the defendant had directed him to remove the stone immediately, without For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes giving him an opportunity to break it up at the place of excavation. The evidence on this record is hardly sufficient to show on defendant's part, by giving such directions, a waiver of the plaintiff's obligations to break up the rock. The jury, however, found a verdict in favor of the plaintiff for practically the full amount claimed, and in any event without having before them any testimony from which they could find the value of the work admittedly not performed. Therefore there must be a new trial, for the reason that the plaintiff is seeking to recover for substantially performing the contract (as claimed in the brief submitted by his counsel), and he has not shown the cost of the part unperformed. In other words, by so failing he has omitted to complete his case, by failing to show what he is entitled to. As was said by Mr. Justice Vann in Spence v. Ham, 163 N. Y. 220, at page 226, 57 N. E. 412, at page 413 (51 L. R. A. 238): "He who relies upon substantial as contrasted with complete performance must prove the expense of supplying the omissions, or he fails in his proof, for he cannot recover for full performance when a part of the contract is still unperformed. * The contractor cannot recover the entire contract price when defects or omissions appear, for he must show, not only that they were unsubstantial and unintentional, but also the amount needed to make them good, so that it can be deducted from the contract price, and a recovery had for the balance only. This is an essential part of substantial performance, and hence the proof should be furnished by the one who claims substantial performance." It is also to be noted that the plaintiff is suing on a contract, alleging due performance, while his proof seeks to show a waiver of due performance. It follows that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. GREENE v. POZ. (Supreme Court, Appellate Term, First Department. June 16, 1920.) 1. Bills and notes ~421-Notice to payee in care of indorser not sufficient. Mailing by notary of notice of dishonor to the payee, "in care" of defendant indorser, was not notice to defendant. 2. Bills and notes ~410—Notary's certificate of protest may be contradicted by evidence. Since Code Civ. Proc. § 923, provides merely that, where the affidavit therein referred to is not served by defendant, the notarial certificate of protest shall be presumptive evidence of the matters it states, evidence by defendant to contradict the proof made by such certificate is admissible. 3. Bills and notes 256-Indorser not liable, where payee's indorsement forged and maker paid payee. Where payee's indorsement was forged, and the payee was paid by the maker, one who indorsed the note before transfer was not liable thereon. 4. Bills and notes 537 (8)-Issue of mutilation with intent to cancel held for jury. In view of Negotiable Instruments Law, §§ 200, 201, 204, whether notes were torn with intent to cancel held for the jury. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) Appeal from City Court of New York, Trial Term. Action by John Greene against William M. Poz. From a judgment for plaintiff, entered upon the verdict of a jury directed by the court, defendant appeals. Reversed, and new trial ordered. Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ. Guggenheimer, Strasser & Meyer, of New York City (Charles Harrison Meyer, of New York City, of counsel), for appellant. Morris & Samuel Meyers, of New York City (Samuel Meyers, of New York City, of counsel), for respondent. MULLAN, J. The plaintiff brought this action against the defendant as indorser on three promissory notes, all made by Jacob H. Greenhaus. Abraham S. Greenhaus, a brother of the maker, was the payee of one of the notes, one Shulman was the payee of another, and Envelope Paper & Tag Corporation was the payee of the third. The notes were dated April 2, 1919, and were payable 40 days thereafter. It was conceded upon the trial that Shulman's name, appearing as an indorsement on the note to him, was a forgery. Shulman testified, and it is in effect conceded by the plaintiff, that Shulman's note was paid, by the check of the maker to Shulman, on or about April 9, 1919. A defense, as against all three notes, was that, prior to maturity, they were physically mutilated with intent to cancel. The defendant testified that, a few days after the notes were made, Abraham S. Greenhaus, who, although payee of only one of the notes, had, for some unexplained reason, possession of all three of them, tore the notes in pieces. The defendant's story was: "I was in Abraham Greenhaus' office on the 7th day, five days after these notes were made, April 7th, and Jacob Greenhaus was there, too. They were discussing some business together, and they got into a quarrel, and the quarrel became more severe by degrees, until they almost came to blows. One called the other very insulting names, and Abraham Greenhaus in his anger jumped up from desk, and went to the safe, and took out the three notes, and says, 'I will show you what I think of your lousy money,' to use his own expression. He tore them up and threw them on the floor. Q. Was anything else said? A. That is all. Q. What happened then? A. Well, they gradually made up by degrees. Q. Did they stay there, or go out? A. They went to lunch, and I went along and tried to pacify them. Q. Where were those papers at the time they went out? A. They were lying on the floor in Abraham Greenhaus' office. He stepped on them as he went out. Q. He stepped on them as he went out, and left them lying there? A. Yes." [1] The plaintiff put in evidence certificates of the notary who mailed the notices of dishonor to the defendant. Their sufficiency was and is questioned in certain minor respects, but we think that, under the very liberal rule that has been applied to these instruments (Seneca Bank v. Neass, 3 N. Y. 442; Bell v. Lent, 24 Wend. 230; Burbank v. Beach, 15 Barb. 326; McLean v. Ryan, 36 App. Div. 281, 55 N. Y. Supp. 232; Persons v. Kruger [No. 2] 45 App. Div. 187, 194, 195, 60 N. Y. Supp. 1071), they were prima facie proof of the matters certified. The certificate in relation to the note of which the payee was Envelope Paper & Tag Corporation was, however, clearly insufficient, |
