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The charge was error, and clearly prejudicial error. Its effect in this controversy was practically to take from the jury the question of contributory negligence, plaintiff's freedom from which he was bound to establish, and also was equivalent to a declaration that the plaintiff was negligent; for, of course, if the ways, works, and machinery had been in an absolutely perfect condition, the accident would not have happened. Under the charge it is difficult to see how the jury upon any theory could have rendered a verdict for the defendants.

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

MENDEL et al. v. HERLING.

(Supreme Court, Appellate Term. May 7, 1909.) COURTS (8 189*)-MUNICIPAL COURTS-REPLEVIN-JUDGMENT-SPECIAL PROP

ERTY IN CHATTEL.

Under Municipal Court Act (Laws 1902, p. 1530, C. 580) $ 123, providing that final judgment for defendant must award to him the sum fixed, under section 120 where he has a special property in the chattel less than its full value, and, if it is not collected, the delivery of the chattel sued for, the owner of horses boarded in defendant's stable having recovered them in replevin, and the justice having awarded defendant the amount of his claim for boarding the horses, the judgment should contain a provision that, if the amount awarded could not be collected, then the property replevied should be delivered to defendant's possession until the sum so awarded was collected or paid.

[Ed. Note. For other cases, see Courts, Dec. Dig. $ 189.*] Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Max Mendel and another against Elizabeth Herling, as administratrix of the estate of John Herling, Jr., deceased. From a Municipal Court judgment for defendant on a counterclaim, plaintiffs appeal. Modified and affirmed.

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

Charles Tolleris, for appellants.
Lester W. Eisenberg, for respondent.

PER CURIAM. This is an action in replevin. Plaintiffs boarded their horses in defendant's stable, where they had an account. Upon desiring to move to another stable, defendant refused to deliver up the property, although plaintiffs alleged that they tendered the full amount of the bill due. Defendant now claims a greater amount than that tendered. Plaintiffs recovered possession of the chattels, and upon the trial of this action the justice rendered judgment in favor of the defendant for $239.

Although the amount is warranted by the evidence, the judgment is not in the form required by section 123 of the Municipal Court act (Laws 1902, p. 1530, c. 580), which requires that: •For other cases see same topic & S NUMBER In Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

“Final judgment in favor of the defendant must award to him the sum fix: ed as therein specified [section 120], and, if it is not collected, the delivery of the chattel.

The judgment must therefore be modified, so as to conform to the quirements, and, as so modified, it is affirmed. Dunn v. Field (Sup.) 113 N. Y. Supp. 485.

Judgment modified, by directing that it contain a provision that, in case the amount awarded to the defendant cannot be collected, then the property replevied shall be delivered to the possession of the defendant until the sum so awarded be collected or paid, and, as modified, affirmed, with costs.

DE NOYELLES V. JOLINE et al.

(Supreme Court, Appellate Term. May 7, 1909.) DAMAGES (8 185*)—PERSONAL INJURIES– EVIDENCE-AWARD.

In an action by a street car passenger for personal injuries, evidence held insufficient to justify an award of $250 damages.

[Ed. Note.—For other cases, see Damages, Cent. Dig. 88 502–514; Dec. Dig. § 185.*] Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Anna De Noyelles against Adrian H. Joline and another, as receivers of the New York City Railway Company. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered, unless plaintiff stipulates to reduce the recovery.

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

Anthony J. Ernest, for appellants.
Foley & Powell, for respondent.

PER CURIAM. Plaintiff, while upon one of defendant's cars, claims she was struck upon the head by an iron bar attached to the fare register apparatus, which fell while the conductor was ringing up fares. She proceeded on her journey to a recreation pier, but, feeling pain from the blow, returned home with her child. She says she suffered, called in a doctor, by whom she was treated, and remained home three days. She is a cleaner in the Evening Post Building, and says that for quite a period she was so incapacitated that she had to have assistance. What her wages were, or what she paid others, does not appear. No claim is made for doctor's services. Her son, a young boy, corroborated her being struck by this bar, which was of a size to cause injury. Defendant's conductor testified that the bar fell, but did not strike plaintiff, and that plaintiff did not complain of being struck. The court, without a jury, gave judgment for $250. evidence justifies some recovery, but we are of opinion that the amount awarded was excessive on the proofs.

The judgment is reversed, and a new trial ordered, with costs to

appellant to abide the event, unless the plaintiff stipulates within five days to reduce the recovery by deducting the sum of $125 from the same, leaving her recovery $125 and costs in the court below, but without costs in this court, in which event the judgment, as modified, is affirmed.

HINDS, NOBLE & ELDREDGE V. BONNER et al.

(Supreme Court, Appellate Term. May 7, 1909.) 1. PLEADING ($ 121*)—ANSWER-DENIAL OF KNOWLEDGE OR INFORMATION.

An answer denying that defendants have any knowledge or information sufficient to form a belief as to the allegations of the complaint is equivalent to a denial of knowledge or information sufficient to form a belief as to "each" material allegation, within the requirements of Code Civ. Proc. $ 500, and is sufficient.

(Ed. Note.-For other cases, see Pleading, Cent. Dig. 88 245–248; Dec.

Dig. $ 121.*] 2. PLEADING (8 367*)-MOTIONS.

The remedy for an indefinite denial is by motion to make it more definite and certain.

(Ed. Note.-For other cases, see Pleading, Cent. Dig. $ 1183; Dec. Dig. 8 367.*] Appeal from City Court of New York, Special Term.

Action by Hinds, Noble & Eldredge against Robert E. Bonner and others. From an order granting plaintiffs judgment on the pleadings, defendants appeal. Reversed.

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

Underwood, Van Vorst & Hoyt (Ralph G. Miller, of counsel), for appellants.

Frank C. Mebane (Isaac N. Miller, of counsel), for respondents.

PER CURIAM. The complaint sets forth a cause of action for certain plates. The answer is as follows: "The defendants, through their attorney,

answering the complaint herein, allege: They deny that they have any knowledge or information sufficient to form a belief as to the allegations contained in the complaint. Wherefore defendants ask that the said complaint be dismissed, with costs."

When the case came on for trial the plaintiffs moved for judgment on the pleadings, on the ground that the answer was insufficient and raised no issue, which motion was granted, and an order granting judgment upon the pleadings for the relief demanded in the complaint, with costs, was entered, from which order defendants appeal.

Section 500 of the Code of Civil Procedure provides that: "The answer of the defendant must contain a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief."

It is a well-known rule that pleadings must be liberally construed ; but plaintiff claims that the form of the answer here does not come For other cases see same topie & NUMBER 10 Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

within the essential requirements of the Code, for the reason that it does not deny any knowledge or information sufficient to form a belief as to each material allegation of the complaint. It seems to us that this is a narrow and technical view, for the reasonable inference to be drawn from the wording of the answer is that there is a denial of any knowledge or information sufficient to form a belief as to all the allegations of the complaint, which necessarily includes each material allegation.

If the answer was too indefinite, plaintiff had a remedy by motion to make it more definite and certain; but we think it was error to hold it to be frivolous and give judgment upon the pleadings.

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs.

O'LEARY V. TOOKER.

(Supreme Court, Appellate Term. May 7, 1909.) PLEADING 106*)-PENDENCY OF OTHER ACTION.

A defense to a counterclaim in excess of the demand sued on, which alleges the pendency of another action in another court between defendant and plaintiff's assignor for the cause of action set forth in the counterclaim, is insufficient on demurrer, for failing to aver that the other action was pending at the commencement of the action on the demand sued on.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. 88 221-22346 ; Dec. Dig. § 106.*] Appeal from City Court of New York, Special Term.

Action by Joseph F. O'Leary against George E. Tooker. From an interlocutory judgment overruling a demurrer to the reply to the counterclaim, defendant appeals. Reversed, and demurrer sustained.

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

Gustav Lange, Jr. (Ralph Barnett, of counsel), for appellant.
Malcolm W. Clephane, for respondent.

PER CURIAM. Defendant did not deny plaintiff's claim, but counterclaimed a sum largely in excess thereof, and demanded judgment only for a dismissal of the complaint. Plaintiff replied, alleging that there is another action pending in the Supreme Court between defendant and plaintiff's assignor for the same cause set forth in the counterclaim. To the reply defendant demurred, as insufficient in law upon its face. This demurrer was overruled, and defendant appeals.

Porter v. Fuld & Harch Knitting Co., 114 App. Div. 292, 99 N. Y. Supp. 815 was an action in replevin. Plaintiff demurred to the answer, which alleged as follows:

"That there is another action pending between the same parties to this action for the same cause of action set forth in the complaint herein."

The court, sustaining the demurrer, said:

"It is clear that the matter alleged in this so-called separate defense cannot be sustained as a defense that another action is pending between the same

parties, because it is not alleged that such other action was pending at the time of the commencement of this action.”

Upon this authority this judgment must be reversed.

Interlocutory judgment reversed, and demurrer sustained, with costs to appellant to abide the event.

.

WEIL V. CORN EXCHANGE BANK.

(Supreme Court, Appellate Term. May 6, 1909.) BILLS AND NOTES (8 422*)-CHECKS-NOTICE OF DISHONOR—WAIVER.

Where the indorser of a check for deposit in defendant bank, after dishonor, gave his own check to the bank and received the dishonored check in return, with full knowledge that the bank's delay in giving him notice of the dishonor of the check had relieved him from liability as indorser, he thereby waived the bank's default, under Negotiable Instruments Law (Laws 1897, p. 742, c. 612) $ 180, providing that notice of dishonor may be waived, either expressly or by implication, before the time for giving notice has arrived, or after an omission to give due notice.

(Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. 88 11961208; Dec. Dig. § 422.*]

Lehman, J., dissenting. Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Max Weil against the Corn Exchange Bank. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.

Bowers & Sands (David G. George, of counsel), for appellant.
Moses R. Ryttenberg (I. Balch Louis, of counsel), for respondent.

SEABURY, J. This action is brought to recover damages alleged to have been caused by the defendant's failure to give due notice of dishonor of a check deposited by the plaintiff with the defendant. The facts are undisputed. On August 10, 1908, the plaintiff deposited with the defendant a check drawn by the firm of Stoffer & Pisnoff to the order of one Rosenberg. Rosenberg indorsed and delivered the check to the plaintiff for value, who indorsed it and deposited it with the defendant. The check was duly presented by the defendant, but was returned, marked "Account closed.” Notice of dishonor was not given to the plaintiff until August 24th. Upon receiving notice of dishonor, the plaintiff gave his check to the defendant and received in return the dishonored check. When the plaintiff gave his check to the defendant and received in return therefor the dishonored check, he had full knowledge of all of the facts stated above. He therefore waived notice of dishonor. Negotiable Instruments Law (Laws 1897, p. 742, c. 612) $ 180.

The plaintiff, with full knowledge of the facts which relieved him from liability as indorser, and which charged the bank with negligence •For other cases see same topic & & NUMBER IN Dec. & Am. Digs. 1907 to date, & Rep'r Inderes

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