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

James L. Quackenbush (John Montgomery, of counsel), for appellant.

PER CURIAM. The action is for personal injuries, and as the court charged the jury, without any exception on the part of either party, the case hinged upon a mere question of fact, viz.: Was or was not the car at a standstill when plaintiff attempted to board it? The jury found for defendant. The court set aside the verdict, and defendant appeals.

The jury had a right to believe those witnesses for the defendant who showed that the car was moving rapidly when plaintiff tried to get onto it, and that plaintiff was guilty of contributory negligence. The mere fact that there was some difference of opinion among defendant's witnesses as to the exact rate of speed does not render de fendant's evidence unworthy of belief.

The order should be reversed, and the verdict reinstated, with costs.

LIND V. DEMOREST. (Supreme Court, Appellate Term. May 7, 1909.) SET-OFF AND COUNTERCLAIM (25*)-CLAIMS FROM SAME TRANSACTION-ACTION

BY SERVANT-COUNTERCLAIM.

In an action by an employé, discharged for irregularities, to recover the sum deposited as security for his honesty, the employer may counterclaim for the sum collected by the employé and not accounted for, and for the damages sustained because of the employé wantonly suing out an attachment for the deposit, which attachment was vacated.

[Ed. Note. For other cases, see Set-Off and Counterclaim, Cent. Dig. $ 43; Dec. Dig. $ 25.*] Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by David Lind, by Ostas Lind, guardian ad litem, against Horace E. Demorest. From a judgment for defendant, plaintiff appeals. Affirmed.

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

Jacob Langsam, for appellant.
Aaron Honig, for respondent.

PER CURIAM. Plaintiff entered employ of defendant, and deposited as security for his honesty the sum of $150. Because of irregu iarities in accounting for collection of bills, he was discharged. Then he brought suit against defendant to recover the money so deposited, and obtained an attachment, under which certain chattels were seized and held. This attachment was vacated, and it appears to have been wanton. Then plaintiff instituted the present action for the recovery

of $150, and the defendant interposed a counterclaim for $300 damages. On the trial evidence was given that the plaintiff had collected $70.03 while in defendant's employ, which he failed to account for, and that the defendant had sustained damage by reason of the attachment to the amount of $75, making a total of $145.03. On all of the items we are of opinion that the justice decided properly, on competent and sufficient evidence, and the judgment should be affirmed.

Judgment affirmed, with costs.

TALLEY et al. V. JAMES EVERARD'S BREWERIES.

(Supreme Court, Appellate Term. May 7, 1909.) 1 LANDLORD AND TENANT (8042*)-ASSIGNMENT OF LEASE-EVIDENCE.

In an action for rent, evidence held to show that defendant took posses sion as an assignee of the lease, so as to render it liable for the rent.

(Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. & 231 ;

Dec. Dig. $ 8042.*] 2. USE AND OCCUPATION (8 1*)_OCCUPATION BY THIRD PERSON.

A chattel mortgagee could not take possession of leased premises, either absolutely or to protect its property therein, without liability to the lessor for the use thereof at their rental value.

(Ed. Note.-For other cases, see Use and Occupation, Cent. Dig. § 4; Dec. Dig. § 1.*] Appeal from Municipal Court, Borough of Manhattan, First District.

Action by John J. Talley and others, executors of John J. Talley, deceased, against James Everard's Breweries. From a judgment for defendant, plaintiffs appeal. Reversed.

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

Alfred J. Talley, for appellants.
David M. Neuberger, for respondent.

PER CURIAM. Action to recover rent for the month of August, 1908. James Cosgrove was lessee for a term of five years of John J. Talley. Cosgrove gave a mortgage to defendant upon saloon fixtures in the premises, and assigned the lease as collateral, and subsequently made another assignment of the lease as security for his promissory note to defendant. Failing to pay his rent for June, 1908, he, to the knowledge of Mr. Talley's representative, delivered the keys of the premises to defendant: The rent for June and July, 1908, was paid by the checks of defendant to the "order of John J. Talley a/c James Cosgrove." The check for July rent was inclosed in a letter from defendant to Mr. Talley, in evidence, which reads:

"Inclosed find check for $416.66, being July, '08, rent of premises No. 262 Seventh avenue, this city. Kindly receipt, and return bill herewith to James Everard's Breweries."

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

116 N.Y.S.-42

Cosgrove had a bootblack as subtenant, from whom the defendant collected rent after taking the keys. Up to the time of this trial defendant had retained the keys. Defendant employed a watchman in relation to the premises.

The checks to the order of Mr. Talley for account of Cosgrove do not affect plaintiffs' rights, for the reason that Cosgrove, with the consent of Mr. Talley, had given the keys to defendant, who, inferentially, at least, Mr. Talley might assume intended to enter into possession. Besides, there is no proof that Mr. Cosgrove requested defendant to pay this rent for his account, or that he requested any loan for that purpose. Whať defendant desired was the control of the premises, where were the fixtures upon which it held the chattel mortgage, and Cosgrove unable to pay the rent, with the consent of Mr. Talley and at defendant's request, gave the keys to defendant.

Defendant contends that its acts and payments were solely for the purpose of protecting property covered by its mortgage and the assignment of the lease. The trial court decided that defendant did not take possession as absolute assignee of the lease, and that the relation of landlord and tenant had not been shown, and therefore rendered judgment in favor of defendant, with costs. The record fails to show that defendant in terms canceled its assignments or removed its property from the premises. This case was tried in October or November, 1908, at which time defendant still retained the keys. In September, 1908, one of plaintiffs' representatives, by permission of defendant's watchman, who unlocked the door, entered the premises to show them to a Mr. Harburger, pursuant to a notice sent to defendant, who had refused to pay the August rent, that plaintiff would proceed to rent the said premises to the best advantage as agent for the defendant. It would be difficult to more conclusively prove absolute possession than has been done here. The defendant may not take and hold possession of plaintiffs' premises, either absolutely or to "protect” its property therein, without liability for the use thereof at a rental value which is undisputed. The pleadings here were oral, and on the record plaintiff should have recovered.

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

HOUGH V. CITY OF NEW YORK.

(Supreme Court, Appellate Term. May 7, 1909.)

MUNICIPAL CORPORATIONS (& 785*)-INJURIES TO PEDESTRIAN,

A pedestrian is not entitled to recover for injuries caused by falling into a hole in a sidewalk, where the dimensions of the hole were two by three feet at its edges and sloping to a depth of about two inches.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. && 1636, 1637; Dec. Dig. & 785.*] Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by Jennie Hough against the City of New York. From a judgment for plaintiff, defendant appeals. Reversed.

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

Francis K. Pendleton (Theodore Connoly and Thomas F. Noonan, of counsel), for appellant.

John F. Cowan, for respondent.

PER CURIAM. Plaintiff sued to recover for injuries occasioned by falling into a hole in a sidewalk. The jury gave her a verdict for $300. The city appeals.

Without passing upon certain of plaintiff's testimony, which was quite effectively overcome by the defendant, or upon the amount of damages awarded, this judgment must be reversed. The dimensions of the hole were about two by three feet at its edges and sloping to a depth of about two inches. On the record here the city is entitled to the application of the rule laid down in Hamilton v. City of Buffalo, 173 N. Y. 72, 65 N. E. 944, and Gastel v. City of New York, 194 N. Y. 15, 86 N. E. 833.

Judgment reversed, and complaint dismissed, with costs to appellant in this court and in the court below.

KANN et al. v. COOPER.

(Supreme Court, Appellate Term. May 7, 1909.) NEGLIGENCE (§ 134*)—EVIDENCE-SUFFICIENCY.

Where plaintiff's evidence, in an action for damages caused by water from defendant's rooms, over plaintiff's rooms, failed to show defendant's negligence, or to overcome defendant's evidence that the water flowed from rooms not occupied by defendant, a judgment for plaintiff will be reversed, as not supported by evidence.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 267; Dec. Dig. § 134.*] Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by George E. Kann and another, doing business under the name of G. E. Kann & Co., against Michael Cooper. From a judgment for plaintiffs, defendant appeals. Reversed.

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

Ira Bliss Stewart, for appellant.
Harry Kempner, for respondents.

PER CURIAM. Action to recover $20 damages caused by water from defendant's premises, viz., a loft over that of plaintiffs. The evidence offered by plaintiff, not only failed to show defendant's negligence, but did not overcome defendant's proof that the water complained of came from a loft above that occupied by defendant. The “For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep's Indexes

damages awarded were not established by anything more than the say-so of the witnesses.

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

NYBOE V. STERN 'et al.

(Supreme Court, Appellate Term. May 7, 1909.) MASTER AND SERVANT (8 101*)—INJURIES TO SERVANT-CONDITION OF APPLI•

ANCES.

The duty imposed by law on an employer is to keep his ways and machinery in as reasonably safe a condition as a reasonably prudent man would keep them; that they shall be in an absolutely perfect condition not being required.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 171174; Dec. Dig. § 101.*] Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by William Nyboe against Joseph Stern and others, doing business under the firm name of Joseph Stern & Sons. From a judgment for plaintiff, defendants appeal. Reversed.

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

Frank V. Johnson (Thomas P. Dunphy, of counsel), for appellants. Alfred E. Ommen (A. Mitchell Leslie, of counsel), for respondent.

PER CURIAM. The action was brought under the employer's liability law. The plaintiff was a fireman in defendants' slaughterhouse. On the morning of the accident he found a written order from the chief engineer directing him to clean out a boiler. He went into the drying room with a wrench in his hand to open the valve to blow out the boiler. As he bent down to apply the wrench, a large iron cover standing against a partition near by fell forward upon his foot, causing the injury. This cover was of cast iron, 5 feet in diameter, 12 inches thick, and weighed 1,500 pounds. The question of the plaintiff's contributory negligence was closely contested, and the case went to the jury. The court charged:

"It is the duty of an employer to see that the ways, works, and machinery are in perfect condition and to furnish a safe place for an employé to work. That is the law."

The defendants' counsel, in excepting, said:

"I take an exception to that part of your charge where you say it is the law that an employer shall keep ways, works, and machinery in perfect condition. The law imposes the duty, and I request your honor to charge the jury, in modification of that, that it is the duty imposed by law upon an employer to keep his ways, works, and machinery in a reasonably safe condition as a reasonably prudent man would keep them; that the law does not oblige him to keep them in an absolutely perfect condition.

“The Court: I charge as I did charge. You are granted an exception " This defendants' counsel took.

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