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specified under title "The Second Schedule,' sections to remain in force until changed by the board of aldermen."
This ordinance continued the prohibition against certain exhibitions on Sunday, with a proviso that:
"Nothing herein contained shall be deemed to prohibit at any such place or places on the first day of the week, commonly called Sunday, sacred or educational, vocal or instrumental concerts, lectures, addresses, recitations and singing, provided that such above mentioned entertainments shall be given in such a manner as not to disturb the public peace, or amount to a serious interruption of the repose and religious liberty of the community."
And then provided:
"Any person willfully offending against the provisions of this section and every owner or lessee of any building who shall lease or let out the same for the purpose of any such exhibition or performance * * shall be subject to a penalty of $500, which penalty the corporation counsel of said city is hereby authorized, in the name of the city of New York, to prosecute, sue for and recover; and on the recovery of a judgment for the penalty herein provided for against any manager, proprietor, owner or lessee, consenting to or causing or allowing, or letting any part of the building for the purpose of any exhibition or performance prohibited by this ordinance, the license which shall have been previously obtained by such manager, proprietor, owner or lessee, is of itself vacated and annulled."
As section 1476 provides for a summary proceeding for the revocation of a license, "upon proof of a violation of any of the provisions of this title," and as section 1481, which was the provision of that title which prohibited certain Sunday performances, has been repealed by the board of aldermen in conformity with the power granted to said board to legislate upon such subject by the Legislature, under the provisions of section 3 of section 1620 of the charter of 1901, there does not now exist any section in said title, to wit, title 2 of chapter 22, governing or controlling Sunday performances. The Legislature, while it might confer power upon the board of aldermen to pass ordinances upon the subjects enumerated in said title, could not confer power upon the board of aldermen to amend, add to, or change the charter. While the charter provided for a continuation of the said provisions until the board of aldermen acted, it was expressly provided that:
"Upon the passing of any such ordinance regulating the matters provided for in any one of said sections respectively, such section shall cease to have any force and effect and the same is and shall be repealed."
It follows that section 1481 has been repealed by the passage of the ordinance, but that ordinance has not been inserted in place of section 1481 in the title from whence it was taken. Therefore, there being left in that title no provisions as to Sunday performances, section 1476 of that title can no longer be held to apply to violations of the Sunday law, but must be confined in its application to the other sections of said title remaining unrepealed. The result follows that the only way in which a license is to be revoked for violations of said ordinance is upon the obtaining of a judgment for the penalty prescribed.
difference between section 1481 and the new ordinance is that under section 1481 the prohibited performance itself forfeited, vacated, and rendered of no effect the license, while under the new ordinance the judgment accomplished that result. A summary proceeding was provided for in section 1476 to reach a violation of section 1481, while under the new ordinance the revocation is an incident of a judgment in a civil action, or as the result of a criminal prosecution under the Penal Code.
This leads to the conclusion that the Special Term had no jurisdiction to entertain this proceeding. But the respondent claims that the order is not appealable, claiming that as by section 1476 of the original charter, providing for the summary proceeding, it is provided that no appeal shall be taken from such determination, it follows that an order overruling preliminary objections to the proceeding as without jurisdiction cannot be appealable, and that the only way to test the question of jurisdiction is by writ of prohibition-the method employed in People ex rel. Hammerstein v. O'Gorman, 124 App. Div. 222. 108 N. Y. Supp. 737. The order appealed from not only overrules the preliminary objections, but appoints a referee. Section 1356 of the Code of Civil Procedure provides that an appeal may be taken to the Appellate Division of the Supreme Court from an order affecting a substantial right, made in a special proceeding at a Special Term or Trial Term of the Supreme Court, or made by a justice thereof in a special proceeding instituted before him pursuant to a special statutory provision. Section 1361 of the Code provides:
"This title does not confer the right to appeal from an order in a case where it is specially prescribed by law that the order cannot be reviewed."
The summary proceeding provided by section 1476 of the original charter is a special statutory proceeding. That section provides that said judge or justice shall hear the proofs and allegations in the case and determine the same summarily. There is no provision therein contained for the appointment of a referee, and such appointment would seem to do violence to the language and intent of the statute. A summary power granted to a justice, who, it is provided, shall hear the proofs and allegations, and from whose determination there is no appeal, would seem to negative the power to appoint a referee. The unauthorized appointment of a referee, with the requirement that the parties shall go before him to make their proofs, with liability for the expenses of said reference, undoubtedly affects a substantial right. As the section of the charter does not contemplate the appointment of a referee, it is not specifically prescribed by law that such an order cannot be reviewed, and so section 1361 of the Code does not apply. The right to appeal is, therefore, conferred by section 1356, supra, and therefore we think the whole question is properly before this court.
It follows, therefore, that the order appealed from should be reversed, and the proceeding dismissed, with $10 costs and disbursements to the appellant. All concur.
LARSON v. BURROUGHS.
(Supreme Court, Appellate Division, Second Department. April 23, 1909.) BROKERS (875*)-COMPENSATION-COMPLIANCE WITH CONTRACT.
To entitle a real estate broker to commissions under an agreement to pay the same when the balance of the cash amount was paid and the deed delivered, he must show either that the balance has been paid and the deed delivered, or that nonperformance was the fault of the owner. For other cases, see Brokers, Dec. Dig. § 75.*]
Appeal from Municipal Court of New York.
Action by Ole E. Larson against Luemma H. Burroughs. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.
Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.
A. M. Price, for appellant.
Jacob Friedman, for respondent.
JENKS, J. The plaintiff has recovered a judgment for broker's commissions as on a sale of real estate. The evidence shows that the proposed vendor refused to execute the contract for sale unless the broker consented to the incorporation therein of the following provision:
"The vendor agrees that Ole E. Larson is the broker who has brought about this sale, and agrees to pay said broker his commission therefor, namely, 1 per cent. when balance of cash amount to be paid is made and deed actually delivered."
It does not appear either that the balance of the cash amount was ever paid or that any deed was ever delivered; on the contrary, it appears that the proposed vendor forfeited the payment made on account of the contract by the proposed vendee. Before the plaintiff could recover, he must show either that the contract was carried out as indicated, or that nonperformance was the fault of the defendant. Seymour v. St. Luke's Hospital, 28 App. Div. 119, 50 N. Y. Supp. 989, and cases cited, appeal dismissed 159 N. Y. 524, 53 N. E. 1132. This he did not do.
The learned Municipal Court rested its judgment for the plaintiff upon Morgan v. Calvert, 126 App. Div. 327, 110 N. Y. Supp. 855. But the point decided in that case was that the vendor who had agreed to sell his property for a specific sum on a certain day could not interpose, as a defense against the broker suing for commissions which the vendor had agreed to pay at the closing of title, his own wrong (his own defect in title) which prevented the closing thereof.
The judgment is reversed, and a new trial is ordered; costs to abide the event. All concur.
*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
WOLVEN v. GABLER.
(Supreme Court, Appellate Division, Second Department.
April 23, 1909.)
1. MASTER AND SERVANT (§ 252*)—INJURIES TO SERVANT-ACTIONS-NOTICE OF INJURY-WAIVER OF STATUTORY REQUIREMENTS BY MASTER.
The notice of the time, place, and cause of the injury required to be given to the employer within 120 days after the accident as a condition precedent to the maintenance of an action for injury or death, under Employer's Liability Act (Laws 1902, p. 1749, c. 600) § 2, is for the employer's benefit, and may be waived by the employer manifesting such an intention, either by words or acts.
[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 252.*] 2. MASTER AND SERVANT (§ 284*)-INJURIES TO SERVANT-ACTIONS-QUESTION FOR JUBY-NOTICE OF INJURY-WAIVER OF STATUTORY REQUIREMENTS BY MASTER.
Where a servant was injured in the master's employment and confined in a hospital, whether the master, by a letter written to the servant's wife, stating that he would not deem it advisable to make any claim until the result of the injury was known, the contents of which was communicated to the servant, waived the giving of notice of the injury within 120 days from the date of the accident causing it, as expressly required by Employer's Liability Act (Laws 1902, p. 1749, c. 600) § 2, held to be for the jury.
[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 284.*] 3. MASTER AND SERVANT (§ 252*)-INJURIES TO SERVANT-ACTIONS-NOTICE OF INJURY-WAIVER BY MASTER-ESTOPPEL.
If the master intended by his letter to consent that the service of the notice be deferred until the extent of the injuries were known, and the servant was thereby led to defer giving notice, the master's estoppel to object that the notice was not given within the time required by the statute would be involved, though estoppel is not necessary to establish a waiver.
[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 252.*] 4. MASTER AND SERVANT (§ 252*)-INJURIES TO SERVANT-ACTIONS-NOTICE OF INJURY-WAIVER OF STATUTORY REQUIREMENTS BY MASTER.
If the master consented that the giving of the notice be deferred, and the servant acted upon the consent, service of the notice within a reasonable time after the extent of the injury was known would be sufficient, and the notice given two weeks after he was removed from the hospital would not be after an unreasonable time.
[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 252.*]
Appeal from Trial Term, Kings County.
Action by Oscar Wolven against John C. Gabler. Judgment of dismissal, and plaintiff appeals. Reversed, and new trial granted.
Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILLER, JJ.
William C. Beecher, for appellant.
MILLER, J. The plaintiff's evidence tends to show that his injuries were caused by a negligent direction given by the defendant's foreman, whose duty appears to have been that of superintendence. The only question involved on this appeal is whether the notice of the time, place, and cause of the injury was served in time to justify the
*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
submission of the case to the jury as an action by the servant to recover damages, caused by an act of superintendence, by one whose sole and principal duty was that of superintendence.
The accident occurred on the 14th of October, 1903. The plaintiff sustained a compound fracture of the leg and was taken to a hospital. An effort was made to save the leg; but, owing to complications, it was found necessary to remove it, which was done on the 27th of February, 1904. The plaintiff left the hospital on the 30th of March, 1904, and the notice was served on the 16th of April. On the 2d of December, 1903, the plaintiff's wife, at his request, wrote to the defendant in reference to the plaintiff's injuries; and on the 4th of December, 1903, the defendant replied by a letter, the contents of which were communicated to the plaintiff. In that letter the defendant said:
"In reference to any claim that you might make, I would not deem it advisable until you know the result of the injury."
Section 2 of the employer's liability act (Laws 1902, p. 1749, c. 600) provides:
"No action for recovery of compensation for injury or death under this act shall be maintained unless notice of the time, place and cause of the injury is given to the employer within one hundred and twenty days after the occurrence of the accident causing the injury or death."
There can be no question that that notice is required to be given for the benefit of the employer, as a condition precedent to the maintenance of an action. It is now too well settled to require the citation of authority that the performance of such a condition may be waived, and that to constitute a waiver it is necessary only that an intention to waive be manifested, either by words or acts. We do not understand that that proposition is seriously combated by the respondent.
The respondent, however, contends that the defendant's letter did. not manifest an intention to waive the service of the statutory notice within the prescribed time; that it referred to a claim for damages, and not to the notice required by the statute. If the language used was equivocal, and open to different inferences, the question was for the jury. I think that people quite commonly refer to the statutory notice as a claim; and we know that the notices, served to comply with the provision of the statute above quoted, usually contain a claim for a specific amount of damages. Certainly, most employers nowadays know of the statutory requirement, even if the employés do not; and when the defendant advised the plaintiff, through his wife, not to make a claim until he knew the result of the injury, I think it probable that he had in mind the notice required by the statute-at least a jury would be justified in finding that he intended to consent that the service of the notice required by the statute be deferred until the extent of the injuries were known, and that the plaintiff was thereby led to defer giving the notice. Thus we have in this case the element of estoppel, although that is not necessary to establish a waiver. See Clark v. West, 193 N. Y. 349, 86 N. E. 1, and cases cited.
I am far from suggesting that the defendant intended to mislead the plaintiff, and assume that he wrote the letter from the best of motives.