PER CURIAM. Under section 1434 of the Civil Practice Act (as added by Laws 1921, c. 199), re-enacting Code Civ. Proc. § 2253, and the authorities establishing the well-settled rule, the defendant, as the lessee of the entire building of the plaintiffs, with no right to sublet any part of the premises, became liable to the plaintiffs for the rent of the entire building which was due at the time the precept in the summary proceedings to dispossess him was issued. He was also liable for the reasonable value of the use and occupation of the entire building from the time the precept was issued until he was dispossessed by the warrant. Reversible error, therefore, was committed by the trial court in dismissing the complaint upon the apparent ground that the defendant, as tenant, was liable only for the portion of the premises actually occupied by him as a holdover, and not for the portions thereof occupied by his subtenants, who also held over for a time. The facts are undisputed, and the reasonable value of the use and occupation of the entire building sued for in the second cause of action was shown to be the same as the rent reserved in the lease between the parties. Judgment reversed, with $30 costs, and judgment directed for plaintiffs as prayed for in the complaint. PESATY et al. v. JAMES A. HEARN & SON, Inc. (Supreme Court, Appellate Term, First Department. December 18, 1923) 1. Municipal corporations 705(1)-Driver leaving truck unattended, held to have used more than ordinary care. Evidence that defendant's employee, before leaving a motor truck unattended, shut off the power until the engine was dead, put on the brakes, turned the front wheels into the curb, and shut the gates of the truck, held to show that employee used more than ordinary care. 2. Municipal corporations 705(1)-Truck owner not liable for acts of trespassers, starting unattended truck. Where defendant's employee used more than ordinary care in leaving his truck unattended near a curb, defendant is not liable for the acts of two trespassers in starting the truck and causing it to run into and injure plaintiffs' property. Bijur, J., dissenting. Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Isidor Pesaty and another against James A. Hearn & Son, Inc. Judgment for plaintiffs, and defendant appeals. Reversed, and complaint dismissed on the merits. Argued November term, 1923, before GUY, BIJUR, and DELEHANTY, JJ. James B. Henney, of New York City, for appellant. Louis Rosenberg, of New York City (Hyman Grill, of New York City, of counsel), for respondents. GUY, J. Defendant was the owner of an automobile truck. Its employee, engaged in operating it, left it unattended while he was de For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexe (202 N.Y.S.) livering merchandise upstairs in a house in East Fifteenth street. He testified, and was corroborated by another witness, that before leaving the car he shut off the power till the engine was dead, put on the brakes, turned the front wheels into the curb, and shut the gates of the truck. In his absence, two boys got on the truck and started it moving. One of them, after the car got in motion, jumped off, and the other was helped off by a passer-by. The car continued running, and crashed into the area railing of plaintiffs' premises, thereby damaging plaintiffs' property, for which damage plaintiffs sue to recover compensation. [1, 2] It was testified that the brakes were found still set after the accident, while the car lay in the area. While it is difficult to understand how the car could have been started with the brakes set, or, on the other hand, if the brakes were released by one of the boys when they started the car, how they could have become again set after the boys jumped off, the case on review must be considered in the light of all the evidence adduced on the trial. The evidence shows that, before leaving his car unattended, defendant's employee used more than ordinary care, and he cannot be held liable for the acts of trespassers occurring thereafter. Maloney v. Kaplan, 233 N. Y. 426, 427, 428-431, 135 N. E. 838, 26 A. L. R. 909; Touris v. Brewster & Co., 235 N. Y. 226, 231, 232, 139 N. E. 249. The judgment must therefore be reversed, with $30 costs, and the complaint dismissed on the merits, with costs. DELEHANTY, J., concurs. ROSENSTREICH & BALLON, Inc., v. SCHER. (Supreme Court, Appellate Term, First Department. December 18, 1923.) Judgment 167-Default judgment vacated on condition that defendant give surety bond for payment of any judgment recovered. Where defendant had not acted in good faith with the court or counsel for plaintiff in obtaining adjournments, but his failure to appear on the day fixed for trial after an inquest had been vacated was due to illness, the default judgment will be vacated, but only on condition that defendant give a surety bond for payment of any judgment recovered. Appeal from Municipal Court, Borough of Manhattan, Eighth District. Action by Rosenstreich & Ballon, Inc., against Tobias Scher. From an order denying a motion to vacate and set aside a judgment entered by default, defendant appeals. On compliance with stated conditions, order reversed, default opened, judgment vacated, and case placed on general calendar; otherwise, order affirmed. Argued November term, 1923, before GUY, BIJUR, and DELEHANTY, JJ. Harold S. Budner, of New York City (Harry L. Gutter, of New York City, of counsel), for appellant. Benjamin B. Greller, of New York City, for respondent. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes. PER CURIAM. Two inquests have been taken herein through the default of either the defendant or his attorney in appearing. The first inquest was vacated by stipulation of counsel, on condition that defendant appear for trial on a date therein named; on such date defendant defaulted again, and an inquest was taken, and thereafter a motion was made to vacate the judgment entered thereon, which was denied. From the order entered thereon this appeal is taken. From the affidavits presented it is quite apparent that defendant has not acted herein in good faith with either the court or counsel for plaintiff. He has been accorded by both adjournments of trial on oral excuses, unsupported by affidavits thereof, all of which leads us to believe that a trial was the last thing desired by defendant. We conclude, however, that his failure to appear on the day when the second inquest was taken, due, as he claims, to personal illness, as certified by his attending physician, warranted on the part of the court an opening of the default, especially in view of the fact that no counter affidavits as to defendant's illness were presented on said motion. Order affirmed, unless defendant, within five days after service of a copy of the order entered hereon, pays $10 costs, and gives a surety company bond, conditioned for the payment of any judgment which the plaintiff may recover. Upon compliance with conditions, order is reversed, default opened, judgment vacated, and case placed on general calendar. KLAMPERT v. HIRSCH. (Supreme Court, Appellate Term, First Department. December 18, 1923.) Frauds, statute of 128-Indemnitor not liable, where assignment of lease to principal debtor was invalid. A contract by a lessee to assign a lease which has 41⁄2 years to run must be in writing, and where such a contract was not signed by lessee, an agreement by a third person with a guarantor of performance of the lease to indemnify the latter against liability for nonperformance by assignee is invalid. Appeal from Municipal Court, Borough of Manhattan, Sixth District. Action by Irving Klampert against Max Hirsch. From a judgment for plaintiff, after trial by the judge without a jury, defendant appeals. Reversed, and complaint dismissed on the merits. Argued November term, 1923, before GUY, BIJUR, and DELEHANTY, JJ. Benjamin Feldman, of New York City (Jacob B. Engel, of New York City, of counsel), for appellant. Zalkin & Cohen, of New York City (Emanuel Fichandler, of New York City, of counsel), for respondent. PER CURIAM. Only a question of law is involved in this appeal. One Cohen had leased premises for five years from a corporate land For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (202 N.Y.S.) lord, and plaintiff had guaranteed Cohen's performance of the lease, After a few months of the term had elapsed, it was proposed between plaintiff and defendant and a fourth party, the Forst & Forst Company, Inc., that Cohen should assign the balance of the term to Forst & Forst Company, Inc., plaintiff remaining liable on his guaranty, and defendant thereupon executed an agreement of indemnity to the plaintiff, holding plaintiff free and harmless from any loss or liability under the said lease by reason of any breach by Forst & Forst Company, Inc. Defendant's indemnity agreement recited that it was made to "induce the assignment of the lease between the Wilbeth Realty Company, lessor, and David Cohen, lessee, to Forst & Forst Company, Inc." It appears, however, that no such assignment was ever made; the instrument purporting to assign the lease from Cohen to Forst & Forst Company, Inc., not having been signed by Cohen at all. The assignment of a term which had still 421⁄2 years to run is required, in order to be valid, to be made in writing, and since it was not made in writing it is evident that no liability against defendant can be established. Judgment reversed, with $30 costs, and complaint dismissed on the merits, with costs. (121 Misc. Rep. 667) LI MANDRI v. G. WEISS & SONS, Inc. (Municipal Court of City of New York, Borough of Brooklyn, First District. October, 1923.) 1. Costs 48—On dismissal of complaint and counterclaim on merits, plaintiff held not entitled to costs. Under New York City Municipal Court Code, § 164, subds. 1, 2, relating to allowance of costs to plaintiff, where both the complaint and counterclaim were dismissed on the merits after trial, plaintiff was not entitled to costs. 2. Costs 48—On dismissal of complaint and counterclaim, defendant held entitled to costs. Where plaintiff's complaint and defendant's counterclaim were both dismissed on the merits after trial, defendant was the prevailing party and recovered judgment after trial, within New York City Municipal Court Code, § 164, subd. 7, and was therefore entitled to costs, based on plaintiff's demand in the summons. Action by Stephen Li Mandri against G. Weiss & Sons, Inc. On motion to review taxation of costs. Motion denied. Thomas O'Rourke Gallagher, of New York City, for plaintiff. LAW, J. [1] This is a motion to review the clerk's taxation of costs. The plaintiff sued for $1,000. The defendant counterclaimed for $526.72. Upon the trial it was stipulated that the plaintiff's damage was $335.75, and that the defendant's damage was $151.72. The decision of the court, after trial, was that the plaintiff was entitled to judgment dismissing the counterclaim on the merits, and the defend For other cases see same topic & KEY-NUMBER in all Key-Nuinbered Digests & Indexes ant was entitled to judgment dismissing the complaint on the merits. The clerk taxed costs against the plaintiff on the basis of the $1,000 demanded in the summons, and entered judgment in favor of defendant accordingly. The plaintiff did not recover judgment in any amount whatsoever. Consequently the plaintiff is not entitled to costs, even though the counterclaim was dismissed on the merits. See Municipal Court Code (Laws 1915, c. 279) § 164, subds. 1, 2. [2] Then the sole question remains whether the defendant is entitled to costs under the provisions of subdivision 7 of said section 164 of the Municipal Court Code. I think that within the meaning of said section the defendant "recovers judgment after trial." The plaintiff's claim was defeated, and the defendant, notwithstanding the counterclaim, was the prevailing party, and entitled to costs. Ballard Transfer & Storage Co. v. St. Paul City Railway Co., 129 Minn. 494, 152 N. W. 868; Gibbons v. Skinner, 150 App. Div. 706, 135 N. Y. Supp. 820. Clearly it was correct to base the award of costs on the plaintiff's demand in the summons. The motion must be denied. Ordered accordingly. (121 Misc. Rep. 665) In re COTHEAL'S ESTATE. (Surrogate's Court, New York County. November, 1923.) 1. Wills 498-Issue" refers to natural children, and not to adopted child or grandchildren. A will directed that on life beneficiary's death the principal of the trust fund should be equally divided among her "issue," the issue of any deceased child to take the share their parent would have taken if living. Life beneficiary adopted her granddaughter, and was survived by three daughters and two granddaughters, besides the one whom she had adopted. Held, that the word "issue" referred to life beneficiary's children, to the exclusion of their children, and did not embrace the adopted child. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Issue.] 2. Trusts 330-Counsel fees and expenses of accounting payable out of income. Counsel fees and other expenses of an intermediate accounting should be paid out of the income of a trust fund created by a will directing that on life beneficiary's death the principal be divided among her issue. In the matter of the estate of Ellen H. Cotheal, deceased. Proceeding by trustees to account and for construction of a will. Will construed. Joseph P. McDonough, of New York City, special guardian. Davies, Auerbach & Cornell, of New York City, for objectant. George F. Warren, Jr., of New York City, for accounting trustee. Thompson, Koss & Warren, of New York City, for petitioner. O'BRIEN, S. [1] In this trustee's accounting a question of the proper construction of the word "issue" as used in the gift of the remainder after the death of the life beneficiary is presented for decision. The will, so far as material to the determination of this question, creates a trust for the life of Ellen L. Nisbett. Upon her death it is directed that: |