Appellate Term, First Department, January, 1922. [Vol. 117.

and by mistake has delivered it to a stranger, and in neither case has he assumed any right of his own to dispose of the goods, and thereby exercised dominion over them; but in both cases the question still always remains whether the holder in so acting was free from negligence.

Even if under these pleadings we could consider the question of negligence, I find no evidence upon this question to sustain a judgment in favor of the plaintiffs. There is no doubt that the defendants acted in good faith and in the honest belief that they were handing back the bond to the messenger who deliv ered it. They had assumed no obligation of any kind to the plaintiffs; any act they performed was for the plaintiffs' benefit and it was through plaintiffs' mistake that they were called upon to act at all in the premises. Doubtless if they had foreseen the possibility of mistake they would not have delivered the bond to the wrong messenger; but it was not unreasonable to suppose that the messenger might be waiting or that if he had left, no thief would be in the office who would claim to represent the plaintiffs. They probably committed an error of judgment but for such error they cannot be held liable. Since they owed no obligation to the plaintiffs and acted in good faith under the reasonable belief that they were returning the bond to the messenger who delivered it, I see no ground for imposing upon them liability for the loss of a bond which would never have been lost but for the plaintiffs' mistake, due apparently to the plaintiffs' negligence.

The contention of the plaintiffs that under sections 129 and 131 of the Personal Property Law the defendants are liable for the price of the Oregon Short Line Railroad Company bond which they had agreed to purchase from the plaintiffs because they failed to return

Misc.] Appellate Term, First Department, January, 1922.

to the plaintiffs the Oregon and California Railroad Company bond delivered in attempted compliance with the contract between the parties seems to require no detailed consideration. Even if the Personal Property Law applies to the sale of a bond, these sections would not be applicable to the facts in this case for the evidence shows that the plaintiffs delivered the bond by mistake and without any intent to pass title to the bond in compliance with their contract and that the defendants did not " retain " the bond but, on the contrary, promptly divested themselves of its possession.

For these reasons it seems to me that the judgment should be reversed, with costs, and the complaint dismissed, with costs.

Judgment affirmed, with twenty-five dollars costs, with leave to defendants to appeal to the Appellate Division.

GUIDE REALTY COMPANY, Respondent, v. NATHAN BLOOм, Appellant.

(Supreme Court, Appellate Term, First Department, December, Filed January, 1922.)

1921, Term

Landlord and tenant New York city

date of delivery of lease governs

emergency rent laws case at issue when bill

of particulars filed-practice-motion for jury trial right of tenant to bill of particulars and to jury trial when demanded in time.

Whether a lease comes within the scope of the emergency laws depends upon the date of the delivery of the instrument.

Where in an action for rent the answer pleads the statutory defense that the rent demanded is unjust and unreasonable the case is not deemed at issue until plaintiff has filed the statutory bill of particulars.

The defendant in a Municipal Court action for rent by inadvertence neglected to demand a jury trial within three

Appellate Term, First Department, January, 1922. [Vol. 117.

days after the service of the answer. By the service of an amended answer the date of the joinder of issue was changed. A motion to compel plaintiff to file and serve the statutory bill of particulars was denied on the theory that it was not required. After unsuccessful efforts on the part of defendant to obtain a jury trial judgment was rendered as the result of a trial by the court alone. Upon reversing the judgment and ordering a new trial, held, that defendant's demand for a jury trial was timely and his motion to direct the filing of the bill of particulars will be granted.

APPEAL by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of the plaintiff, also from order of same court denying defendant's motion for a bill of particulars.

Benjamin I. Shiverts (Milton Elias Schattman and I. Maurice Wormser, of counsel), for appellant.

Winthrop & Stimson (John M. Bovey, of counsel), for respondent.

66

GUY, J. The pleadings in this action stated the nature and substance of the cause of action and defense, the indorsement on the summons being “ February and March 1921, rent of apartment B on the tenth floor of the premises 801 West End Avenue in the borough of Manhattan, City of New York, under written lease between parties hereto, dated March 16, 1920," and the tenant answering "general denial. Rent is unjust, unreasonable and oppressive," and subsequently filing, by leave of the court, a formal unverified answer setting up the Statute of Frauds in addition to what was contained in the original answer.

Within three days after service of the original answer the tenant, apparently by inadvertence, neglected to demand a jury trial, and after unsuccessful efforts to obtain a jury the case was finally called for trial and against his objection tried by the court

Misc.] Appellate Term, First Department, January, 1922.

without a jury and judgment entered against him, defendant not offering any proofs. The tenant also moved that plaintiff be required to file and serve the statutory bill of particulars, but his application in that regard was denied apparently on the theory that the action was not one in which such a bill of particulars was required.

The action being for rent on a lease, and the defendant having set up the defense that the rent was unjust, unreasonable and oppressive he was entitled under chapter 136 of the Laws of 1920 to the statutory bill of particulars. Respondent claims that because in the statement of the cause of action the lease is said to be dated March 16, 1920 (two weeks before the statute referred to went into effect) defendant was not entitled to avail himself of the statutory defense, and accordingly the bill of particulars was properly denied. As far as the complaint is concerned the lease might or might not come within the scope of the emergency laws; whether it did or not depends upon the date of the delivery of the instrument (Kramer v. Borgenicht, 188 N. Y. Supp. 477; 176 W. 87 St. Corp. v. Fleischmann, 117 Misc. Rep. 316), and as the statutory defense was interposed the case was one "Where the answer contains the defense mentioned in section one of this act" (Laws of 1920, chap. 136, § 2, as amd. by Laws of 1920, chap. 944), and plaintiff was, therefore, required to file the bill of particulars. Moreover, it is further provided by section 2 of the same statute (Laws of 1920, chap. 944) that "Issue shall not be deemed joined until the filing of such bill of particulars," and as under section 118, subdivision 1, of the Municipal Court Code "either party at the time of pleading or within three days after joinder of issue may demand a trial by jury," by reason of the plaintiff's refusal to file the bill, issue was never joined and

Appellate Term, First Department, January, 1922. [Vol. 117.

defendant's rights were unimpaired. If there be any doubt on this point, however, the service of an amended answer changed the date of joinder of issue, and his application for a jury was timely and should have been granted.

Having seasonably demanded a jury trial and judgment having gone against him as the result of a trial by the court alone, upon the facts stated the judgment against defendant cannot be upheld.

Judgment and order reversed and a new trial ordered, with thirty dollars costs to the appellant to abide the event, and motion to direct plaintiff to file a bill of particulars granted.

GAVEGAN and MULLAN, JJ., concur.

Ordered accordingly.

MORRIS PAPARO et al., Respondents, v. JOSHUA S. SHULMAN, Appellant.

(Supreme Court, Appellate Term, First Department, January,

1922.)

City Court of New York-practice-commercial calendar breach of contract to manufacture when consolidation of actions will not be ordered.

The answer in an action brought in the City Court of New York to recover damages for breach of contract upon allegations that defendant improperly manufactured certain shirts, admitted the agreement, denied the other allegations of the complaint, but pleaded no counterclaim. The answer in an action subsequently brought in the City Court by the defendant in the first action against the plaintiffs therein for the manufacture, sale and delivery of the same shirts, denied most of the material allegations of the complaint and set up two counterclaims; one identical with the cause of action set forth in the first action and the other for additional damages and allow