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she performed for the deceased incompetent during the last 3 years of his life. The deceased incompetent was her husband, and she lived with him and took personal care of him during these years. He was suffering from paresis and was not competent to care for himself. During the first 2 years he required constant watching to keep him from wandering away from their home, and during the last year he was confined for the most part to his bed, and the care which she gave him was such as a nurse would be expected to give. It was, no doubt, very trying and difficult work; and, if it were legally permitted to award her special compensation, the amount claimed would not be unreasonable under the circumstances. The claim is based upon section 2338 of the Code of Civil Procedure, which is as follows:

"A committee of the property is entitled to the same compensation as an executor or administrator. But in a special case, where his services exceed those of an executor or administrator, the Supreme Court or a County Court within the county may allow him such an additional compensation for such additional services, as it deems Just. The compensation of a committee of the person must be fixed by the court, and paid by the committee of the property, if any, out of the funds in his hands.”

This is not an application to fix the compensation of the committee of the person, but for extra compensation as committee of the property. It would seem that such extra compensation could only be allowed for special and extraordinary services in relation to property; but, however that may be, and assuming that it may be treated as an application to fix the compensation of the committee of the person, I think no allowance can be made to the committee for the services on which her claim is based. They are services rendered by her as the wife of the incompetent, and not as his committee; and they are such services as she would have been expected to render, and would have rendered, exactly the same, had some other person been acting as his committee, in which case it is clear that she would not have been entitled to compensation.

The learned counsel for the committee refers to chapter 289, p. 844, of the Laws of 1902 (now section 60 of the domestic relations law in the Consolidated Laws), as a legislative sanction of the right of the wife to claim compensation here; but this statute certainly was not intended to give the wife a right of action against her husband for services rendered by her in the household. It has reference to services she may render for others, and not for her husband.

My conclusion is that the claim of the committee for compensation for the nursing and personal care of her husband cannot be allowed.

Ordered accordingly.

CAVIN V. O'ROURKE ENGINEERING & CONSTRUCTION CO.

(Supreme Court, Appellate Term. May 7, 1909.) NEW TRIAL ($$ 66, 72*)-GROUNDS-VERDICT CONTRARY TO LAW AND EVIDENCE.

A verdict that is clearly against the weight of the evidence and the instructions consented to by the parties should be set aside on motion.

(Ed. Note.—For other cases, see New Trial, Cent. Dig. $$ 132, 146; Dec. Dig. $$ 66, 72.*]

Appeal from City Court of New York, Trial Term.

Action by Richard W. Cavin against the O'Rourke Engineering & Construction Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

James B. Henney, for appellant.

Feltenstein & Rosenstein (Moses Feltenstein, of counsel), for respondent.

PER CURIAM. This is an action at common law. The verdict is clearly against the weight of evidence and the instructions of the court, which were consented to by plaintiff's counsel. It affirmatively appears from the plaintiff's own testimony, as well as from that of his fellow watchman, Hassett, who was subpænaed by plaintiff, but called by the defendant, that the plaintiff knew of the dangerous condition of the fence, and when he reported it to the foreman the day before the accident the latter at once sent for three or four carpenters and had it

It is testified to by plaintiff, and uncontradicted, that a few months before the accident by which he was injured plaintiff saw a section of the fence to the north of him blown over by the heavy winds, and that he was left to watch the gap by Hassett while the latter went for carpenters to repair the damage. In view of that uncontradicted testimony defendant's counsel requested the court to charge:

"I ask your honor to charge the jury that if the plaintiff, prior to the acci. dent, saw the fence wabble, and knew it was likely to fall, he cannot recover, and that he assumed that risk.

“Plaintiff's Counsel: I consent to its being charged, your honor." And later:

“I ask your honor to charge that, after the men came up there and fixed the fence, and plaintiff saw it was liable to fall on the day of the accident, he assumed that risk, and cannot recover.

"Plaintiff's Counsel: I consent to its being charged."

Both of these requests were charged by the court on the consent of counsel. They are in accord with well-settled principles of law, and the return of a verdict for plaintiff can only be taken as indicating that the jury were so led by sympathy that they ignored the evidence and the instructions of the court.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

BUCHANAN V. PROVIDENT LOAN SOCIETY OF NEW YORK et al.

(Supreme Court, Appellate Term. May 7, 1909.) 1. PLEDGES (8 48*)-RECOVERY BY PLEDGOR-COMPLAINT.

In an action by a pledgor against the pawnbroker for recovery of the pledge, a complaint alleging delivery of the pledge as security for a loan, to be returned on payment thereof, with interest, the value of the pledge, that demand had been made for return of the pledge before action brought, and refused on the ground that the pawnbroker had been notified by third parties not to deliver the pledge to plaintiff, states a cause of action for conversion.

(Ed. Note.-For other cases, see Pledges, Cent. Dig. 8113–117; Dec.

Dig. $ 48.*) 2 PAWXBROKERS (8 9*)-ACTIONS FOR CONVERSION-TENDER OF LOAN-NECES

SITY.

Where a pledgee refused to redeliver the pledged articles on the ground that another claimed some interest therein, the pledgor was not bound to tender the loan and interest in order to maintain conversion therefor against the pledgee.

[Ed. Note.—For other cases, see Pawnbrokers, Dec. Dig. & 9.*] 3. PAWNBROKERS (8 9*)-ENFORCEMENT-ACTION FOR CONVERSION-PARTIES

DEFENDANTS.

The complaint alleged the delivery of articles to defendant association as a security for a loan, and the subsequent tender of the loan, with interest, and a demand for redelivery, which was refused on the ground that the association was notified by other persons not to deliver the articles to plaintiff, and alleged upon information and belief that the individual defendants claimed an interest in the articles. Held that, liberally construed, the complaint was in conversion, and the individual defendants were proper defendants, under Code Civ. Proc. § 447, permitting any person to be made a defendant who claims an interest in the controversy adverse to plaintiff.

[Ed. Note.-For other cases, see Pawnbrokers, Dec. Dig. & 9.*] Appeal from City Court of New York, Special Term.

Action by Martha V. L. Buchanan against James E. Chandler and Henry M. T. Beekman, doing business as Chandler & Beekman, and others. From an interlocutory judgment overruling demurrers to the complaint, defendants named appeal. Affirmed, with leave to answer.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

James E. Chandler, for appellants,
I. T. Flatto, for respondent.

PER CURIAM. The complaint in substance alleges that in March and April, 1907, plaintiff delivered to the Provident Loan Society certain articles of jewelry as a pledge or pawn, of the value of $2,000, to be held, and returned, on demand, upon payment of the amount loaned, with lawful interest; that, prior to the commencement of this action, demand for the return of said articles was made, and refused on the ground that said society had been notified by other person or persons” not to deliver said articles to the plaintiff; and, upon information and belief, that defendants Chandler, Beekman, and Buchanan claim some interest in said articles. The defendants Chandler, Beekman, and For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Provident Loan Society demur. The only ground of demurrer to be considered is that the complaint does not state facts sufficient to constitute a cause of action.

Construed liberally, this complaint is in conversion. The fact that the society issued its pawn tickets for the articles to the plaintiff sufficiently indicates their possession by plaintiff at the time of pawning and that said possession was presumably lawful. In view of the refusal of the society to deliver the articles for the reason stated in the complaint, no tender of the loan and interest was necessary. The society is sufficiently apprised of plaintiff's claim.

While in the caption of the complaint the defendants Chandler and Beekman are sued as copartners, nevertheless the complaint does not allege a copartnership, and those defendants individually, with deiendant Buchanan, are charged with claiming some interest in said articles. It is doubtful whether they are necessary parties; but, under section 447 of the Code of Civil Procedure, they are not improperly brought in, if they are the claimants to these articles.

The interlocutory judgment overruling the demurrer should be aifirmed, with costs, and the defendants permitted to answer, upon pay. ment within six days of the costs in this court and in the court below.

KEYSTONE PUB. CO. V. ROMAN.

(Supreme Court, Appellate Term. May 7, 1909.) CONTRACTS (§ 221*)–CONSTRUCTION-COMPENSATION.

Under a contract to publish an advertisement at a certain rate per month, payment to be made by the shipment of advertiser's goods to per sons who became customers as a result of the advertisements, the publisher is not entitled to recover the contract price without showing that orders from new customers to the extent of the price named were sent in to the advertiser.

[Ed. Note. For other cases, see Contracts, Cent. Dig. $ 10154; Dec. Dig. & 221.*) Appeal from Municipal Court, Borough of Manhattan, First District.

Action by the Keystone Publishing Company against Edward M. Roman, doing business under the name of Hygienic Hair Waver Company. From a judgment for plaintiff, after a trial before the court without a jury, defendant appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Samuel Packard, for appellant.
Isaac F. Russell and Ernest M. Garbe, for respondent.

PER CURIANI. The plaintiff sued on a written contract which provided for the insertion of an advertisement in its magazine for a period of six months at the rate of $56 per month. Payment was to be made by the shipment of defendant's goods to persons not already customers upon orders furnished by the plaintiff as a result of these

advertisements. The amounts received on such orders were to be credited and paid to plaintiff up to the total of its bill for the six months' advertising; that is, $336. It was also provided in the contract that, if the plaintiff furnished no orders, it was to receive no compensation. The defendant's counsel claimed on the trial that before the second publication defendant had notified plaintiff he would not abide by the terms of the contract. It appears from the evidence, however, that subsequent to this alleged notification defendant accepted an order received through plaintiff. Plaintiff claims that no notification was given to cease publication. Evidence was offered to show that one order, amounting to $17.04, was filled, and defendant credited therefor. As to the other two orders, the record shows that one was filled; but, as no invoice was furnished to the plaintiff by defendant, no credit could be given therefor. As to the third order, it does not appear that it was filled. The plaintiff continued publication during the six months' period, bringing its action before the appearance of the magazine for January, 1909, which was the last issue contemplated by the contract. It now claims to be entitled to the full amount of $336 agreed to be paid, less the $47.04 for the invoice on which it credited defendant, and judgment was given on this theory.

If the agreement had been to pay for the advertisement in the ordinary way, the judgment might be sustained; but it was clearly the understanding of the parties that payment was entirely dependent upon the basis of the orders furnished. As the publication was continued throughout the entire period, it was incumbent upon plaintiff to show thať a sufficient number of orders had been furnished to equal the amount of the advertising charge before it could recover. Had the defendant refused such orders, the plaintiff might have still held him liable. But, notwithstanding the alleged breach on defendant's part, inasmuch as these orders were the agreed measure of the contract's value, the plaintiff must show their receipt, to bind the defendant.

The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event.

LEVY V. NEW YORK CITY RY. CO.

(Supreme Court, Appellate Term. May 7, 1909.) CARRIEES (318*)-INJURY TO PASSENGER-EVIDENCE.

Where, in an action against a street railroad for personal injuries, the case hinged on the question whether or not defendant's car was at a standstill when plaintiff endeavored to board it, the jury might believe defendant's witnesses, who showed that the car was moving rapidly at the time, and that he was guilty of contributory negligence, though there was some difference of opinion among them as to the exact rate of speed.

(Ed. Note. For other cases, see Carriers, Dec. Dig. 8 318.*]

Appeal from City Court of New York, Trial Term. Action by Morris Levy against the New York City Railway Company. From an order setting aside a verdict for defendant, and granting a new trial, defendant appeals. Reversed, and verdict reinstated.

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

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