FIRST DEPARTMENT, JULY TERM, 1903. [Vol. 85. any way by the transaction; that a portion of the money paid to the defendant was paid directly to the corporation, and that the balance was paid by a check, which was sent to the corporation and collected by it. A contract creating the defendant an agent of the company was executed, and the complainant received the stock that he had purchased. I do not think that this is sufficient to sustain a finding that the defendant "with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person by color or aid of fraudulent or false representation or pretense," took from the possession of the complainant any money or personal property. (Penal Code, § 528.) * * Judgment and orders affirmed. TOMPKINS MCILVAINE, as Sole Surviving Partner of the Copartnership of TOWNSEND & McILVAINE, Plaintiff, v. GEORGE STEINSON, Respondent, Impleaded with THE BOARD OF EDUCATION OF THE CITY OF NEW YORK and Others, Appellants, Impleaded with Others, Defendants. Service of a case on appeal — when unnecessary - when necessary, it must be made on all the parties to the appeal. An appellant who desires to present upon the appeal only questions arising upon the judgment roll, need not serve a case upon appeal, but if he desires to present any additional questions, he must serve such a case upon all the parties to the appeal under penalty of being declared in default and to have waived his right thereto. APPEAL by the defendants, The Board of Education of the City of New York and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of May, 1903, denying the said defendants' motion for an order declaring that as to them the defendant Steinson had waived his right to appeal. Terence Farley, for the appellants. George Steinson, respondent, in person. App. Div.] FIRST DEPARTMENT, JULY TERM, 1903. The action herein was instituted by plaintiff as surviving member of the firm of Townsend & McIlvaine, attorneys at law, to foreclose a lien on certain moneys in the hands of the comptroller, which were the proceeds of a certain judgment which the defendant Steinson had recovered against the board of education. By a judgment duly entered herein a lien was established thereon in favor of the plaintiff and one Hart, another attorney, and from such judgment the defendant has duly appealed. Pursuant to an order, the board of education paid over the amount of the judgment against it to the comptroller. By order of the court the comptroller was directed to pay to the chamberlain the amount of the attorney's lien, to be held by him to await the further action of the court, and to pay the remainder of the moneys to the defendant Steinson. This order was complied with by the comptroller, and the amount which Steinson recovered of the defendants in his action would now seem to be in the hands of the court to await the determination of the contest between Steinson and his attorneys. In that litigation the city of New York would seem to be a stranger. It is not made evident how it can have any interest therein, or how any of its rights can be affected, or how its presence is essential to save any right of the defendant Steinson. It is stated in the affidavit of the latter that the presence of the city is needed to determine whether the city of New York should pay interest on the judgment against it, and that such question was reserved by the court, in the order which it made, for determination upon the appeal taken in this action. The order in full is not set out in the record, and it is somewhat difficult to see how any such question can be involved on this appeal, as the judgment entered by the defendant Steinson in his action should have disposed of such question, and interest on the judgment would attach at legal rates until the same was paid. Assuming, however, as we must, that the defendant Steinson has the right to appeal and to make the city a party thereto, it necessarily follows that it is entitled to have served upon it the case upon which the defendant Steinson relies, and to have an opportunity to serve amendments thereto (General Rules of Practice, rule 32), and also to have notice and an opportunity to be heard upon the settlement of the case. The appellant cannot make a case and FIRST DEPARTMENT, JULY TERM, 1903. [Vol. 85. procure it to be settled without notice, and then insist that the respondent shall accept it. By failing to serve the case upon the appellant, The City of New York, within the time prescribed by the rules, the latter was authorized to apply at the Special Term for an order declaring that he must be deemed to have waived his right thereto. (General Rules of Practice, rule 33.) Doubtless the defendant Steinson has the right to have his appeal heard upon the judgment roll, and such questions as are permissible and arise thereon can be determined without serving a case. (Brush v. Blot, 11 App. Div. 626.) It is apparent, however, that the respondent upon this appeal desires to present other questions than such as arise upon the judgment roll. To accomplish this he must serve his case as prescribed by the rules. It follows that the motion should have been granted, unless the court saw fit to relieve the defendant Steinson from his default. The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to the defendant Steinson upon payment of such costs to apply at Special Term to be relieved from his default and for permission to serve a case pursuant to the settled practice. VAN BRUNT, P. J., PATTERSON, INGRAHAM and Laughlin, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to respondent on payment of such costs to apply to the court below to open default. CLARENCE R. CONGER, Individually and as Trustee, and Others, Respondents, v. HYMAN ENSLER, Appellant, Impleaded with Others. Landlord and tenant — refusal of the tenant to allow an arbitrator, appointed by him to value a building to be paid for by the landlord on the termination of the lease, to act — his liability while he continues in possession of the premises after the end of the term-different measure of such liability before and after such refusal — effect of the lessor's refusal to arbitrate. A lease for a term of ten years from May 1, 1887, to May 1, 1897, contained a provision that, if the lessor should not elect to renew the lease at the expiration of the term, he should pay to the lessee the value of a dwelling house stand App. Div.] FIRST DEPARTMENT, JULY TERM, 1903. ing upon the demised premises. The lease provided that in case the value of the dwelling house could not be agreed upon, each party should choose an arbitrator, and, in the event of the arbitrators being unable to agree, they were authorized to choose an umpire. The lessor elected to terminate the lease at the expiration of the term and gave notice of such election to the lessee. On May 1, 1897, at the expiration of the lease, the negotiations with respect to the value of the dwelling house were pending and were continued for some time thereafter. In July, 1897, the parties being unable to agree as to the value of the dwelling house, each of them appointed an arbitrator. November 8, 1897, when the arbitrators met for the purpose of signing the arbitration agreement and entering upon the arbitration, the lessee unreasonably and wrongfully refused to join in the arbitration. Held, that the failure of the lessee to carry out the terms of the covenant absolved the lessor from any obligation to proceed thereunder; That the failure of the parties to agree upon the value of the building or to name arbitrators did not have the effect of extending the term of the lease; That from the expiration of the original term of the lease until November 8, 1897, when the lessee wrongfully refused to proceed with the arbitration, the lessee was liable for the value of the use and occupation of the premises at the amount of the rental reserved in the lease; That, during his subsequent occupation of the premises, he was liable for the fair value of the use and occupation of the premises, including the dwelling house, without regard to the amount of rent fixed by the lease; That, in adjusting the rights of the lessor and lessee, the lessor should be charged with the value of the building as found by the court, together with interest thereon. Semble, that, if the failure of the arbitration proceedings was due to the fault of the lessor, the lessee would be entitled to retain possession of the premises until the lessor performed his covenant and would be required to pay for the use and occupation of the premises only the rent reserved in the lease. VAN BRUNT, P. J., dissented. APPEAL by the defendant, Hyman Ensler, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 21st day of January, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, awarding the plaintiffs possession of certain premises in the city of New York. Joseph Fettretch, for the appellant. Albert F. Hagar, for the respondents. HATCH, J.: On or about the 14th day of September, 1886, the plaintiff for himself and as trustee made and executed a lease of the premises, FIRST DEPARTMENT, JULY TERM, 1903. [Vol. 85. the subject of this action, to one Israel Block for the term of ten years from the 1st day of May, 1887, to the 1st day of May, 1897, at the yearly rental of $400, payable quarterly. By subsequent mesne assignments, the said lease became, and at the time of the commencement of this action was, the property of the defendant Ensler. The lease contained a provision that the plaintiff, his heirs, successors or assigns, might, at their election, grant a renewal of the lease for a further term of ten years at such annual rent as might be mutually agreed upon, or as may be equal to five per centum on the value of the lot of ground demised, to be determined by arbitrators, or in the alternative, if the lease was not renewed, to pay to the owner of the lease the value of the dwelling house standing upon the premises demised, or of such other dwelling house of like description as might stand thereon in its stead as might be mutually agreed upon or be determined by arbitrators. For the purpose of determining the value of the lot or the building the lease provided that in case the value thereof could not be agreed upon, each party should choose a disinterested person, specifying his qualifications, who was to determine the value thereof, and in the event that the said arbitrators, so chosen, were unable to agree, they were authorized to choose an unpire with like qualifications, whose decision therein would fix and determine the value to be paid, and that in the event of an election not to renew the lease the plaintiff, upon making payment or tender of the value of the building, was entitled to enter into possession of the premises demised and of the dwelling house. It appears from the averments of the complaint that the plaintiff elected to terminate the lease and gave notice of such election to the defendant. It appears from the evidence that a verbal notice of such determination was given in January, 1897, and subsequently and on or about the thirteenth day of April following, a written notice was served upon the defendant giving notice of an election not to grant a further renewal of the lease, but to pay the value of the dwelling house, required to be paid in accordance with the terms of the lease. It further appeared that the parties had some negotiation with respect to the value of the dwelling house, but were unable to agree as to such value and had not so agreed at the period of the expiration of the lease, and the negotiations were continued there |