in that it sets up a cause of action for moneys paid and expended on behalf of a corporation known as the International Kaolin Company, but does not make that corporation a party defendant.

The complaint alleges in substance that in the year 1904 the defendant, with certain associates, were interested in and owners of a large amount of the capital stock of the International Kaolin Company, a New Jersey corporation, organized and controlled by them; that the defendant Lida Haines was represented in the transactions therein referred to by her husband, the defendant Charles D. Haines; that in May, 1904, the defendant Charles D. Haines, acting for himself and the defendant Lida Haines as aforesaid, for the purpose of inducing the plaintiff to become interested in the said corporation and to purchase its stock and to incur the expenditures thereinafter referred to, represented to the plaintiff that the properties of the corporation situated in Lake county, Fla., were very valuable, and that the clay produced by it was a staple product; that in its then condition it was capable of producing 30 tons of clay a day; that with the expenditure of $12,000 the output of said plant could be increased to and maintained at 100 tons of clay a day; that there was a demand in the market for the clay of at least 300 tons a day, and that it could be produced and sold up to that amount at a net profit of upwards of $3 a ton; that the entire outstanding indebtedness of the corporation did not exceed $6,000; that the properties of the corporation had been examined by an engineer who was disinterested and was the best kaolin engineer and expert in the country, and that the foregoing statements were based upon a careful examination of the properties by the defendant Charles D. Haines and the said expert; that a contract could be procured from the said engineer and expert guaranteeing an output of at least 100 tons a day at a cost not to exceed $1.15 a ton; and that a contract could be procured from a responsible selling firm guaranteeing the sale of at least 100 tons a day at not less than $5 a ton profit. The complaint then alleges that the plaintiff, relying upon these representations, purchased of the defendants their interest in 2,500 shares of the stock of the corporation and paid the defendants $15,000 therefor, and laid out and expended for the corporation $26,640, and that the representations before mentioned were false and fraudulent, and known by the defendants to be so, and were made by the defendants for the purpose of inducing the plaintiff to make the purchase and incur the expense aforesaid, and did so induce him. It is then alleged that the said properties of the corporation were in fact about to be foreclosed at the time of the negotiations between the parties, and that shortly thereafter they were sold under foreclosure of a mortgage, the bonds secured by which were owned by the defendants and their associates, and that the property was purchased by "said Haines," and bonds and stock of the new corporation, to which said properties were transferred, issued to the defendants and their associates. Various facts are also alleged inconsistent with the representations before mentioned, which seem, however, to have been sufficiently covered by the previous allegation that such representations were false. The complaint then states that

by reason of the foregoing facts the plaintiff has been damaged in the sum of $50,000, and judgment is demanded for that sum.

The third and fourth grounds of demurrer may be disposed of by saying that the plaintiff has not attempted to make the corporation a party, and was not bound to do so in an action for fraud and deceit, even if a cause of action had been stated against it equally with the defendants. No cause of action is stated against the corporation, however, on any theory, and there is only one cause of action attempted to be stated against the defendants, and that is for fraud and deceit.

The separate demurrer of the defendant Lida Haines upon the second ground is based upon the theory that the agency of her husband in making the representation is not sufficiently pleaded. It was, of course, wholly unnecessary for the plaintiff to allege any agency in the making of the representations. The simple allegation that they were made by the defendants was the appropriate form. Krans v. Lewis, 115 App. Div. 106, 100 N. Y. Supp. 674. Such an allegation is contained in the sixth paragraph of the complaint. It is therefore unnecessary to consider or determine the question of the sufficiency of the allegation, elsewhere contained, that her husband "represented" and "acted for" the defendant Lida Haines in the transactions referred to. Even if such allegations be insufficient to show his authority, the complaint is saved by the later averment of her personal participation. The representations concerning certain properties owned by the corporation and concerning its financial condition induced the plaintiff to purchase stock of the corporation and to advance moneys to it. Aside from mere naked representations as to value and representations as to future possibilities, there were misrepresentations of positive and material facts concerning the properties of the corporation and concerning its financial condition. While there is no allegation of the value of the stock at any time, and no allegation that it was at any time worth less than the plaintiff paid for it, the question is not whether it was worth more or less than it cost, but whether it was worth as much as it would have been if the representations relied upon had been true. Vail v. Reynolds, 118 N. Y. 297, 23 N. E. 301. It is manifest that it could not have been worth as much. The value of the assets of the company is evidence of the value of its stock (Vail v. Reynolds, supra); and, indeed, it might be said constitutes the value of its stock. If a corporation does not in fact possess certain assets of value it is alleged to possess, or has liabilities it is represented not to have, it is obvious, without argument and from the nature of things, that its stock is not worth as much as it would be if the facts were as represented. It may be that the plaintiff has not sufficiently pleaded as part of his damages his advances to the corporation; but this does not affect his cause of action for the deceit which induced his purchase of the stock.

My conclusion is that the complaint states facts sufficient to constitute a cause of action against both defendants, and that the separate

draw and answer upon payment of costs within 20 days after service of a copy of the interlocutory judgment to be entered, with notice of the entry thereof.

ELLEFSON v. SINGER.

(Supreme Court, Appellate Division, Second Department. April 30, 1909.) MASTER AND Servant (§ 301*) — INJURIES TO THIRD PERSONS — NEGLIGENCE of PERSON EMPLOYED BY SERVANT.

A master is liable for the negligence of a person employed by his janitor to do the latter's work, though without the master's knowledge, whereby a third person was injured.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 1211; Dec. Dig. § 301.*]

Rich, J., dissenting.

Appeal from Municipal Court of New York.

Action by Albert E. Ellefson against Isaac Singer. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.

Meier Steinbrink, for appellant.
Ed. J. Fandrey, for respondent.

GAYNOR, J. The claim of the plaintiff was that the person who threw the board from the roof of the defendant's tenement house to the yard below and injured the plaintiff's wife, who was a tenant of the adjoining house, was the janitor of the said tenement house. It may be assumed that it was proved by the defendant that she was not his janitor, but that she was employed by the janitor to do his work without the knowledge or consent of the defendant; nevertheless the defendant would be liable for her negligent acts in such work. The familiar case of the servant set to work to shovel snow and ice from the roof permitting a volunteer to help him, who cast ice on the head of one below, is applicable. Althorf v. Wolfe, 22 N. Y. 355; Wellman v. Miner, 19 Misc. Rep. 644, 44 N. Y. Supp. 417. No one would be likely to believe the unlikely testimony of the defendant and his janitor that by the terms of the employment the janitor had nothing to do with seeing to the roof or the outside of the house; if, indeed, it would make a difference if that were true.

The judgment should be affirmed.

Judgment of the Municipal Court affirmed, with costs. All concur, except RICH, J., who dissents.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

LOEWENTHAL v. GLOBE & RUTGERS INS. CO.

(Supreme Court, Appellate Division, Second Department. April 30, 1909.) APPEAL AND Error (§ 960*)-DISCRETION OF TRIAL COURT-REVIEW.

The granting or withholding of a bill of particulars is within the discre tion of the court, and will not be disturbed on appeal, unless abused. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3834; Dec. Dig. § 960.*]

Appeal from Special Term, Nassau County.

Action by Irwin S. Loewenthal against the Globe & Rutgers Insurance Company. From an order requiring plaintiff to furnish an additional and further bill of particulars, he appeals. Affirmed.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

George H. Bruce, for appellant.

F. O. Affeld, Jr., for respondent.

RICH, J. This court held, in Spencer v. Ft. Orange Paper Co., 74 App. Div. 74, 77 N. Y. Supp. 251, that:

"The granting or withholding of a bill of particulars is within the discretion of the court, and, where there has been no abuse of this discretion, the appellate courts will not, as a rule, interfere."

This principle has been universally adopted by the appellate courts of this state. The record in the case at bar presents no abuse of discretion, and the order must be affirmed, with $10 costs and disbursements. All concur.

CARPENTER et al. v. ATLAS IMPROVEMENT CO.

(Supreme Court, Appellate Division, Second Department. April 30, 1909.) APPEAL AND Error (§ 1201*)-REVERSAL-AMENDMENT OF PLEADINGS-TERMS. Where judgment for plaintiff was reversed because the complaint alleged an employment to sell an entire tract, and the averment and proof was as to partial performance only, amendment of the complaint, after remand, to allege and allow proof of complete performance, should not be allowed, except on terms.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4682; Dec. Dig. § 1201.*]

Appeal from Special Term, Westchester County.

Action by Edward T. Carpenter and another against the Atlas Improvement Company. From an order granting leave to amend the complaint, defendant appeals. Modified and affirmed.

See, also, 123 App. Div. 706, 108 N. Y. Supp. 547.

Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILLER, JJ.

Charles A. Baker (H. Aaron, on the brief), for appellant.

H. T. Dykman, for respondents.

RICH, J. In 1905, the plaintiffs commenced this action to recover commissions for the sale of real property. The complaint alleges an employment to sell "a certain plot of land situated on the corner of Railroad avenue and Spring street, in the village of White Plains." The only averment of performance entitling them to commissions is contained in the third subdivision of the complaint in the following language:

"Third. That plaintiffs procured three purchasers for parts of said premises willing and able to purchase and furnished their names and addresses to the defendant."

The defendant, after waiting a reasonable time, independently of plaintiffs, sold and conveyed two parcels of the plot to purchasers whose names were given to it by the plaintiffs. The referee before whom the action was tried found in favor of plaintiffs, upon the theory that the original contract had been changed or modified to an extent rendering a recovery permissible, and judgment was accordingly entered for commissions upon the sales prices of the two parcels sold, which judgment was, on appeal, reversed by this court upon the ground that the complaint averred an employment to sell the entire property, that there had been no modification or change of the contract, and plaintiffs could not recover upon proof of partial performance. 123 App. Div. 706, 108 N. Y. Supp. 547. In October following the case was moved for trial, and plaintiffs offered evidence tending to show a complete performance of the contract. This evidence was objected to as being incompetent under the pleadings. A juror was withdrawn, and a motion was subsequently made at Special Term to amend the complaint by striking out said third averment and inserting in its place the allegation:

"That plaintiffs had procured purchasers for the whole of said premises, willing and able to purchase, and were prevented from doing so by the action of the defendant."

The motion was granted without terms. The case presented is within the rule, uniformly settled, that such an amendment should not be allowed except upon terms. Bates v. Salt Springs National Bank, 43 App. Div. 321, 60 N. Y. Supp. 313; Woolsey v. Brooklyn Heights R. R. Co., 129 App. Div. 410, 113 N. Y. Supp. 245; Palazzo v. Degnon-McLean Contracting Co., 115 App. Div. 172, 100 N. Y. Supp. 681; Town of Palatine v. Canajoharie Water Supply Co., 116 App. Div. 530, 101 N. Y. Supp. 810; Farrelly v. Schaettler, 124 App. Div. 120, 108 N. Y. Supp. 1132; Rosenberg v. Feiering, 124 App. Div. 522, 108 N. Y. Supp. 941.

Order modified, by granting leave to amend only upon condition that the plaintiffs pay the costs and disbursements in the action to the date of the order, with $10 costs of the motion, and, as so modified, affirmed, without costs. All concur.