and proved nothing material. In it the notary certified that he mailed the notice to the payee, "in care" of the defendant. Obviously, that was not notice to the defendant. [2] The learned trial judge refused to receive evidence offered by the defendant tending to contradict the proofs made by the certificates. Under the very plain language of the Code, and upon authority (Meise v. Newman, 76 Hun, 341, 27 N. Y. Supp. 708), that was error. Section 923, C. C. P., provides merely that where, as here, the affidavit therein referred to is not served by the defendant, the notarial certificate shall be presumptive evidence of the matters it states. [3, 4] At the close of the whole case the court directed judgment for the plaintiff on all three notes. Instead, the plaintiff should have been nonsuited as to the note made to the Envelope Corporation, for failure to prove notice of dishonor; the complaint should have been dismissed on the merits as to the note made to Shulman, for the reasons hereinbefore stated; and the case should have been given to the jury as to the note made to Abraham S. Greenhaus, after the taking of proofs, on the issue of cancellation, and on the issue of the giving of notice of dishonor. The physical appearance of the notes, together with the testimony of the defendant, raised a question as to whether the notes were torn with intent to cancel. Negotiable Instruments Law (Consol. Laws, c. 38) §§ 200, 201, 204. It may be argued with some force that the circumstances of mutilation are more indicative of a mere outburst of temper than of a real intent to give up the right to collect the moneys represented by the notes; but the mutilation plainly creates, we think, a question of fact, that must be passed upon by the jury. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur. DAYTON v. WHITE. (Supreme Court, Appellate Term, First Department. June 21, 1920.) 1. Mortgages 278-Demand that bond and mortgage be executed breach of contract to convey subject to mortgage. An agreement to tender a deed subject to a mortgage was breached by refusing to convey unless a bond and mortgage be executed by the purchaser. 2. Contracts 187 (2)—Third person could not recover on promise for his benefit. Where bank breached a contract to tender a deed subject to a mortgage by refusing to convey unless a bond and mortgage be executed, an attorney for the bank could not recover from the purchaser on the purchaser's promise to the bank to pay such attorney's fee, since the attorney was but a substitute for the promisee, and, the promisee having no action, the beneficiary had none. Appeal from Municipal Court, Borough of Manhattan, Ninth Dis trict. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 1 (182 N.Y.S.) Action by Charles W. Dayton against Major A. White. From a judgment for plaintiff, entered upon the verdict of a jury, defendant appeals. Judgment reversed, and judgment directed for defendant, dismissing the complaint on the merits. Argued February term, 1920, before LEHMAN, FINCH, and MULLAN, JJ. William H. Freedman, of New York City, for appellant. PER CURIAM. [1] We are of the opinion that the minds of the bank and defendant never met in respect of whether the mortgage upon the property to be sold was to be an obligation of the defendant buyer. Assuming an agreement, however, it was made either by the defendant's letter, and the broker's letter notifying defendant of the bank's acceptance of the defendant's terms, one of which plainly was that the bank should tender a deed subject to a mortgage, or by defendant's letter and the bank's letter. As the latter, in order to be given the effect of creating a contract, must be deemed an acceptance of defendant's terms, the bank agreed to convey subject to a mortgage, No matter, therefore, which letter made the contract, if one were made, the bank breached by refusing to convey unless defendant's principals would execute the bond and mortgage. The second cause of action which is on an assigned claim from the bank for its disbursements, is therefore not sustainable because of the bank's breach. [2] The first cause of action is brought by the attorney in his own right, without an assignment from the bank, upon defendant's promise to the bank to pay plaintiff's fees as the bank's attorney. This claim cannot be sustained under Lawrence v. Fox, 20 N. Y. 268, as the beneficiary entitled to sue under that doctrine does so as a substitute for the promisee, and where the promisee, as here, has no action, the beneficiary has none. Nor can it, in our view, be contended that, when the bank employed the plaintiff it did so as agent for the defendant. In the agreement the plaintiff is described as the bank's attorney, he acted throughout for the bank, and in the very nature of the circumstances he could not properly have acted for the defendant. Judgment reversed, with $30 costs, and judgment directed for defendant, dismissing the complaint upon the merits as to both causes of action, with costs. HOERST v. FOREST BOX & LUMBER CO. (Supreme Court, Appellate Term, First Department. June 24, 1920.) 1. Accord and satisfaction 11 (1)-Compromise and settlement ~5 (2) — Acceptance of check, with indorsement of payment in full, evidences accord and satisfaction. If there was a dispute between employer and employé as to employé's right to additional compensation, employé's acceptance of check with indorsement, "In full settlement of all claims to date," would constitute, in the absence of fraud, an accord and satisfaction. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 2. Alteration of instruments 30-Whether indorsement was on check when received held for jury. In employe's action for additional compensation, where defense was that employé had received check with indorsement that it was "in full settlement of all claims to date," question whether such indorsement was on check when employé received it held for the jury. Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Henry Hoerst against the Forest Box & Lumber Company. From an order vacating and setting aside a verdict for plaintiff for $967.86, plaintiff appeals. Order reversed, and verdict reinstated. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ. Alfred R. Bunnell, of New York City, for appellant. John L. Bernstein, of New York City (Jacob M. Zinaman, of New York City, of counsel), for respondent. PER CURIAM. It appears that in the month of March, 1917, defendant was engaged in the manufacture for the United States government of certain war supplies, and at that time plaintiff entered his employ as a shop foreman; that he continued to work for the defendant until June, 1919, during which time he frequently worked overtime, entailing an expense for meals at restaurants adjacent to the factory. It is the contention of the plaintiff that defendant agreed to pay therefor, and this defendant denied. It is conceded, however, that defendant voluntarily paid to plaintiff, over and above his weekly wages a bonus of 1 cent per box on all cartridge boxes manufactured in plaintiff's department. The amount of this bonus money, unpaid at the time plaintiff ceased working for the defendant, was the sum of $100, and the defendant gave to plaintiff a check for that amount with the indorsement thereon, "In full settlement of all claims to date." This check was accepted and cashed by plaintiff. In view of plaintiff's testimony that he was uncertain as to whether the indorsement quoted was upon the check at the time he (plaintiff) received it, the court submitted, on the defense of accord and satisfaction, that point to the jury, instructing them that, if it was so indorsed, their verdict must be for the defendant. No exception whatever was taken to this or any portion of the charge. The verdict was for plaintiff for the full amount claimed, which the court subsequently set aside, and granted a new trial, on the ground: "That plaintiff accepted and indorsed the check for $100, marked 'In full payment of all claims to date,' which constituted an accord and satisfaction." [1, 2] It is from the order entered thereon that this appeal is taken. We think the learned court erroneously set aside the verdict. Of course, if there was a dispute between the parties concerning the payment to plaintiff of extra services, etc., the conscious acceptance of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) the check bearing the indorsement in question constituted, in the absence of fraud, an accord and satisfaction. But the primary question for determination, in the light of the testimony, was whether such indorsement was on the check when plaintiff received it. This was purely a question of fact, and not one of law for the court's decision. The finding of the jury resolved that point in favor of plaintiff, and in the circumstances we conclude that the order appealed from must be reversed, and the verdict reinstated, with $30 costs to the appellant. VILBIG v. KYLE & PURDY, Inc. (Supreme Court, Appellate Term, First Department. June 24, 1920.) Assignments ~46-Assignment of wages to pay for property need not be filed. Personal Property Law, § 42, requiring assignments of wages to secure an advance of money or loan to be filed within three days, does not apply to an assignment of wages as security for the purchase price of property. Appeal from Municipal Court, Borough of Bronx, Second District. Action by Charles Vilbig against Kyle & Purdy, Incorporated. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ. Herman J. Rubenstein, of New York City, for appellant. Arnstein & Levine, of New York City (Sidney S. Levine, of New York City, of counsel), for respondent. PER CURIAM. The plaintiff worked for the defendants until he had a balance due him of $78, which he claimed they "held back" on him, and he sued and has recovered a judgment for that amount. The defendants claimed payment, and introduced two assignments of wages given by the plaintiff to a concern known as the Metropolitan Credit Company. These instruments were given as security for the purchase price of some jewelry, which plaintiff admitted he had purchased, and had failed to pay therefor the sum of $78. The defendants proved that they had paid that sum to the Credit Company in accordance with the provisions of the assignments. The respondent urges that these assignments are void under section 42 of the Personal Property Law (Consol. Laws, c. 41), for the reason that they were not filed within three days, as provided in said section. That section, however, applies only to "an advance of money, or loan, on account of salary or wages," and has no application to an assignment given as security for the purchase price of property. A similar contract was presented to this court in Sacks v. Ñ. Āms. Cas. Co., at the November, 1919, term, and the same construction given, and a judgment based thereon affirmed without opinion. Judgment reversed, with $30 costs, and complaint dismissed, with costs. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes BAUM v. BRESLAUER. (Supreme Court, Appellate Term, First Department. June 24, 1920.) 1. Master and servant 330 (2)—Evidence of instructions to chauffeur held competent. In an action for negligence of defendant's chauffeur, where defendant's son and the chauffeur testified that the son and another had been taken to a theater, and that the chauffeur was instructed to return, it was error to exclude their testimony as to what further instructions were given to the chauffeur, who was driving on an errand of his own when the collision occurred. 2. Master and servant 302 (6)—Automobile owner held not liable for chauffeur's negligence. An automobile owner is not liable for his chauffeur's negligence, while the automobile is used exclusively for chauffeur's private purpose. Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Joseph Baum against Adolph Breslauer. From a judgment for plaintiff, after a trial by the judge without a jury, defendant appeals. Reversed, and judgment directed for defendant. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ. Robert Moers, of New York City (J. M. Fiero, Jr., of New York City, of counsel), for appellant. Samuel L. Sargent, of New York City, for respondent. PER CURIAM. Plaintiff sued to recover damages to his automobile, resulting from a collision alleged to be due to the negligence of defendant's chauffeur. [1, 2] Defendant's son and the chauffeur both testified without objection that the son and a friend had been taken from their residence at the Hotel Netherland, Fifty-Ninth street and Fifth avenue to the Astor Theater at Forty-Fifth street and Broadway at about 8 o'clock in the evening, and that the chauffeur was thereupon instructed to return for them at about 11 p. m., and that the garage was in FiftyEighth street, between Fifth and Madison avenues. All attempts by defendant's counsel thereafter to elicit from the son or the chauffeur what further instructions or permission had been given to the chauffeur were frustrated, on the utterly untenable ground that something (unexplained) had not been affirmatively pleaded in the answer. For this erroneous exclusion of material and competent testimony the judgment would have to be reversed in any event, but enough did appear to demonstrate conclusively that defendant's automobile was at the time of the accident employed exclusively for the private purposes of the chauffeur; whether with or without the permission of defendant's son is immaterial. The accident happened at Broadway and Seventy-Third street, and the chauffeur testified that he was on his way to visit his mother in 108th street. As this testimony was uncontradicted, and is not op For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |
