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trust in the particular fund, is hardly worthy of serious discussion. The equitable jurisdiction rests upon the defendant's abuse of a confidential or fiduciary relation, and no action of the defendant can destroy the right of the plaintiff to follow the fund or to require such relief as the circumstances permit.

The judgment should be affirmed, with costs. All concur.

SCHWARTZ v. STATE BANK.

(Supreme Court, Appellate Term. May 7, 1909.) BANKS AND BANKING ($ 121*)—DEPOSITS—MISTAKE IN CBEDITING-LIABILITY

OF BANK.

Where a deposit slip containing a memorandum of checks constituting a deposit was made out erroneously in the name of a person other than the depositor, but the bank's receiving teller credited the deposit in the bank book, the bank was liable to the depositor in an action on a contract evidenced by the depositor's bank book, though by reason of the mistake in the name on the deposit slip the bank had credited the deposit in its books to the person whose name appeared on such deposit slip.

(Ed. Note.-For other cases, see Banks and Banking, Dec. Dig. $ 121.*] Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Benjamin Schwartz, doing business under the name of Kramer & Co. against the State Bank. From a judgment for defendant, plaintiff appeals. Reversed, and judgment ordered for plaintiff.

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

Jacob S. Strahl, for appellant.

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

PER CURIAM. The plaintiff sued to recover the amount of a deposit of $221.30. The bank admitted that the deposit was made and credited in the plaintiff's bank book. It seems that the deposit slip, however, containing a memorandum of the eight checks which constituted the deposit, was made out erroneously in the name of one Hamerman, and that for that reason Hamerman received credit on the books of the bank for that amount. The receiving teller testified that he looked neither at the checks presented nor their indorsements, but simply added up the amounts of the checks on the deposit slip and credited the same on a bank book which was handed to him at the same time, without looking at the name on the bank book. If this is true, it was certainly careless and irresponsible banking. The deposit slip is made out for the convenience of the bank, and not the depositor.

Admitting that the depositor made a mistake on the slip, which the record does not explain, it is not the less true that the bank gave him credit on his passbook for the amount of the deposit slip. Unques•For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

tionably the greater error and the worse mistake was with the bank. If a depositor can come in with a deposit slip inadvertently made out, and this one was on a printed form which had the name of the alleged depositor printed on it, and give to the bank eight checks made out to his order and indorsed to the bank, and then the receiving teller can simply add up the totals of the checks to see if they conform with the totals of the deposit slip, and enter the same on any bank book which is pushed through the window at the same time, without looking to see who owns the bank book, and hold that forever afterward the deposit slip is the only record to bind the bank, the quicker such a system is ended the better. The receiving teller was undoubtedly extremely careless, and his mistake was greater than the inadvertence of the use of a deposit slip, which was not correct. It may be said that the plaintiff must have recourse to a court of equity. The answer is that he is suing on the contract evidenced by the receipt of his deposit in his bank book. It is the bank that is asserting an equitable defense, based as much upon its own mistake as upon the plaintiff's.

The judgment must be reversed, and judgment ordered for plaintiff, with costs of this appeal.

DI DIO V. ROBINO et al.

(Supreme Court, Appellate Term. May 7, 1909.) BAILMENT ($ 12*)–GRATUITOUS BAILEE-LIABILITY.

A gratuitous bailee is not liable for loss of the property, unless grossly negligent.

[Ed. Note.-For other cases, see Bailment, Cent. Dig. 88 37-41; Dec. Dig. $ 12.*] Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Action by Michele Di Dio against Giuseppe Robino and another. From a judgment in favor of plaintiff, defendants appeal. Reversed, and new trial ordered.

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

Brande & Weber, for appellants.
John Santora, for respondent.

PER CURIAM. Plaintiff intrusted small sums to defendants to keep for him as gratuitous bailees. Plaintiff testified that he asked for sums once or twice, but that defendants dissuaded him from taking the money. He could neither read nor write, and, although he testified that he had given defendants $200 in all, for which he sued, yet he had kept no accounts, and only knew that he had been accustomed to give defendants some $10 every two weeks for eight or nine months. In effect that was substantially the plaintiff's whole testimony. Defendants testified that they had often offered to return the money, but plaintiff did not wish the responsibility of caring for it; that on De

cember 26, 1907, the house was entered by burglars, and the money was stolen from the trunk where, together with some of defendants' own money, it was kept. The testimony of the robbery was strongly corroborated by neighbors in the building who testified for defendants.

The trial justice charged the jury that, to recover, the plaintiff must prove that the loss had been occasioned by the gross negligence of defendants, as they were but gratuitous bailees, and therefore owed but a slight degree of care. No evidence of such gross negligence appears in the whole case, and in rendering their verdict for plaintiff, the jury showed a complete disregard of the evidence and charge of the trial justice. This conclusion is but strengthened by the fact that the foreman of the jury was unable to tell what was the verdict they had found, and upon direction by the court: “Some other juror may state the verdict. The foreman does not seem to understand"-a juror replied: "We agreed on a compromise verdict.”

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

GOODFIELD REALTY CO. v. BODEN.

(Supreme Court, Appellate Term. May 7, 1909.) 1. LANDLORD AND TENANT (8 88*)—LEASE-REQUISITES OF CONTRACT-OFFER

AND ACCEPTANCE.

In response to a letter from an agent inquiring of a tenant whether he intended to renew his lease in accordance with its terms, and informing him that the landlord was prepared to make any necessary repairs immediately, the tenant replied that the terms were satisfactory and that the only repairs necessary would be the putting in of a refrigerator, wbich he would prefer not to have done until after a certain date. Held to constitute a valid contract for the leasing of the preimses for another year.

(Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $

279; Dec. Dig. $ 88.*] 2. LANDLORD AND TENANT ($ 230*)-AMENDMENT OF COMPLAINT.

In an action on a lease contract, plaintiff should be allowed to amend his complaint as to the amount agreed to be paid as rental, where the amendment was reasonable and did not affect the issue.

[Ed. Note.-For other cases, see Landlord and Tenant, Dec. Dig. $ 230.*] Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by the Goodfield Realty Company against James S. Boden on a lease contract. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

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

Ernst, Lowenstein & Cane (M. H. Cane and Henry Siegrist, Jr., of counsel), for appellant.

Wallace N. Vreeland, for respondent.

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

GOFF, J. The following letters passed between plaintiff and defendant:

“June 10, 1908 "Mr. Boden: The rental for your apartment for the coming year has been fixed at $780 by the owner. If it is your intention to renew on those terms, kindly advise us at your earliest convenience, and any repairs that may be necessary we are prepared to do immediately."

“June 16, 1908. “Messrs. .:I have yours of 10th inst. relative to the rental of the sixth apartment north, No. 2465 Broadway. Your terms as specified in that communication are perfectly satisfactory, taking effect October 1, 1908. The only repairs necessary will be to put in a new ice box or refrigerator. I would prefer not to have this done until after the 1st of September as I am going out of town to remain until that time.”

At the time of writing, the relation of landlord and tenant existed; defendant occupying the apartment under a lease in writing which specified the rent at $720, payable monthly in advance, and contained this clause:

"The party of the first part hereby gives the party of the second part the privilege to renew this lease for one year more at $65 a month."

When this lease was put in evidence there appears to have been some uncertainty as to whether it was admitted for a limited purpose, but iater in the trial the justice said:

"There is no question at all but that this lease contains a renewal clause."

Later he qualified that by stating that it was merely an option extended to the tenant. Whatever it may be, the clause was properly considered in evidence. It is unnecessary to consider the somewhat lengthy correspondence which ensued between the parties, for the question to be determined is: Did the letters quoted constitute a contract for the leasing of the apartment for one year?

The learned trial justice ruled that it did not, and at the close of the plaintiff's case dismissed the complaint and directed a verdict for the defendant. In this we are of opinion he erred. It must be borne in mind that the defendant was a tenant, with a privilege of renewal at a specified rent. He might have written to plaintiff that he exercised his privilege of renewal, and whether plaintiff acquiesced or not would make no difference, for he had by the existing lease given to defendant this privilege, and its exercise evolved a right. Plaintiff had a right to ascertain, if he could, whether defendant intended to renew, and for this purpose he inquired:

“If it is your intention to renew on those terms, kindly advise us."

The terms were those specified in the renewal clause, and the defendant replied: “Your terms as specified

are perfectly satisfactory, taking effect October 1, 1908.”

That there was a complete accord on the renting of that apartment for another year is manifested by the language of the parties. Suppose defendant had written, “The terms specified in renewal clause are per

clear expression of his intention to renew? And this language, if not verbally, is substantially, the same as what was used. Added significance attaches to the fact that he wrote in answer to a question, “If it is your intention to renew, etc., advise us;" and he did advise by saying, “Your terms

are perfectly satisfactory,” etc. If he had written the simple word "Yes," it would have conveyed the same meaning, and carried with it the same binding force, as the words "perfectly satisfactory," and vice versa. There is no equivocation. Nothing is left to be done in the future. No condition is attached. No terms remain unsettled. It was simply the case of a landlord asking his tenant if he would hire the apartment for another year at an increased rental and the tenant saying that he would.

The defendant lays stress upon the contention that the plaintiff agreed to do certain repairs, and that because of his failure defendant refused to continue his occupancy. But the making of these repairs was not conditional. It is true that plaintiff wrote he would immediately make any repairs thať might be necessary, and the defendant wrote that the only repair necessary was to put in an ice box, but requesting that this be not done until after the 1st of September. Had the defendant written, in substance, that he would renew on those terms, provided certain repairs were made by a specified time, a different question would have arisen; but in its present form no other answer can in reason or law be made than that the two letters, read together and considered in connection with the existing lease, constitute a valid contract for the leasing and hiring of the apartment for one year.

The amendment of the complaint to read $65, instead of $60, a month, was reasonable, and should have been granted, as it did not change or affect the issue. The case of Sherry v. Proal, 125 App. Div. 508, 109 N. Y. Supp. 1008, is not applicable. There the question turned on the weight of oral evidence as to whether there was a hiring. Here there is no dispute on the written evidence. The cases cited on respondent's brief have been examined, and none of them are square on the facts or apply in principle.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

(62 Misc. Rep. 396.!;

COLBY V. BINGHAM, Police Com'r, et al. (Supreme Court, Special Term, New York County. February, 1909.)

1. MUNICIPAL CORPORATIONS ($ 189*)-POLICE-LIABILITIES,

The right which a police officer has to prevent violations of all laws, arrest offenders, and carefully inspect houses of ill fame, and to repress all unlawful and disorderly conduct therein, does not clothe him with authority to violate rights of property and liberty, and where he does so he is a common trespasser.

(Ed. Note.---For other cases, see Municipal Corporations, Cent. Dig. 8

523; Dec. Dig. $ 189.*] •For other cases see same topic & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

116 N.Y.S.-45

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