(202 N.Y.S.)

"We ask the court to charge that the defendant is not liable for the act of Pelotte in leaving this elevator unlocked and unfastened, unless the jury find that said elevator remained in that condition for such a period of time that the defendant in the exercise of reasonable care should have discovered its condition,"

The trial justice declined so to charge. It was the law of the case, therefore, and the only law of which the jury could take cognizance, that the defendant had failed in his duty of providing a safe place to work, if the elevator platform, although originally safe in design and construction, in the course of its use temporarily became unsafe, whether through the act of Pelotte, a stranger to the defendant, in failing to bolt it, or otherwise, and that the defendant was in that event liable. We do not consider that a correct exposition of the law was made to the jury. Perry v. Rogers, 157 N. Y. 251, 51 N. E. 1021; Bateman v. N. Y. Cent. & H. R. R. Co., 178 N. Y. 84, 70 N. E. 109; La Marca v. Atlantic Stevedoring Co., 164 App. Div. 490, 150 N. Y. Supp. 279; Maguire v. Barrett, 168 App. Div. 836, 154 N. Y. Supp. 468. It may be that the defendant, knowing that Boyce and Pelotte were operating the elevator, should have been apprehensive that they would leave it unbolted, and should have taken steps to make it secure, or warned the plaintiff not to walk upon it. These questions, however, were not given to the jury to determine. On the contrary, they were instructed that the defendant was absolutely liable if at any moment of time the platform became unsafe to walk upon.

In the face of these instructions the verdict of the jury was manifestly erroneous. It cannot be supported upon the theory that, if the questions suggested had been submitted, a determination in favor of the defendant would have been warranted, for the reason that the jury could not and did not determine questions not submitted. The order should be affirmed.

Order affirmed, with costs.

VAN KIRK, HASBROUCK, and McCANN, JJ., concur.

HINMAN, J., dissents, and votes for reversal, on the grounds (1) that the failure of the court to instruct the jury in a manner properly protecting the defendant's rights under the law was prejudicial only to the defendant; (2) that the trial court has set aside the verdict upon an erroneous theory of law; and (3) that the plaintiff acquiesced in the submission of the case to the jury upon a theory which was much more favorable to the plaintiff than he was entitled to, and in spite of that fact the jury rendered a verdict for the defendant.

ELLIOTT ELECTRICAL SUPPLY CO., Inc., v. GILMARTIN. (Supreme Court, Appellate Term, First Department. December 18, 1923.) Dismissal and nonsuit 6-Plaintiff's right to discontinue on payment of costs held absolute.

In an action for the price of goods, in the absence of any evidence that defendant's interest would be prejudiced thereby, plaintiff's right to discontinue before the case is submitted for decision, on payment of costs, is absolute, though defendant's witnesses have testified.

Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by the Elliott Electrical Supply Company, Inc., against Thomas J. Gilmartin. From a judgment for defendant, after trial by a judge without a jury, plaintiff appeals. Reversed, and order of disconunuance granted, on payment of costs.

Argued November term, 1923, before GUY, BIJUR, and DELEHANTY, JJ.

Sigmund Horkimer, of New York City, for appellant.

P. J. O'Beirne, of New York City, for respondent.

PER CURIAM. In an action for the agreed price of goods, and after defendant's witnesses had testified in support of a defense of breach of warranty, but before the case was submitted to the judge for decision, plaintiff asked leave to discontinue on payment of costs. Leave was refused, and judgment rendered on the merits for the defendant.

The decision was plainly erroneous, the plaintiff's right to discontinue being absolute (Matter of Butler, 101 N. Y. 307, 4 N. E. 518), in the absence of any evidence (and there is none) that defendant or his interests would be prejudiced thereby.

Judgment reversed, with $30 costs, and order of discontinuance granted, upon payment by plaintiff of the costs of the action--the respective costs to be offset.

BERNSTEIN et al. v. GINSBURG.

(Supreme Court, Appellate Term, First Department. December 12, 1923.) 1. Landlord and tenant 226-Municipal Court not authorized to require defendant to pay rent prior to final determination.

In an action for rent, the Municipal Court has no power to require lessee to pay rent pending a final determination, or to strike out lessee's answer unless he pays all the rent due before a stated date.

2. Appeal and error 712-Facts determined only from record.

The Appellate Term can only determine the facts from the record. Appeal from Municipal Court, Borough of Bronx, First District. Action by Mayer Bernstein and another, landlords, against Lion Ginsburg, tenant. From an order striking out tenant's answer, unless he pays all the rent due landlords before a certain date, tenant appeals. Reversed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(202 N.Y.S.)

Argued November term, 1923, before GUY, BIJUR, and DELEHANTY, JJ.

Oppenheim & Helfant, of New York City (Rudolph Helfant, of New York City, of counsel), for appellant.

Donnelly & Flynn, of New York City (James F. Donnelly, of New York City, of counsel), for respondents.

PER CURIAM. This action was brought to recover for rent of an apartment for some seven months, aggregating $416. The tenant appeared and filed an answer, and interposed a counterclaim for $990, the merits of which need not be discussed.

[1] The order appealed from is the result of a previous order directing the tenant to pay the rent pending a final determination of the action. The statutory defense was not pleaded. There was, of course, no power in the court to make such an order, and the order appealed from is therefore equally unauthorized. Respondents undertake to justify the action of the court below by saying in their brief that the original order was made "as a condition for the adjournment of the trial from June until September upon the tenant's application," and adds:

"While this does not appear very clearly from the motion papers it was the fact."

[2] As this court can only determine the facts from the record, and as that fact certainly does not appear in the record, the order appealed from must be reversed, with $10 costs.

MEDLIN v. MASSACHUSETTS BONDING & INS. CO.

(Supreme Court, Appellate Term, First Department. December 12, 1923.) 1. Insurance 286-Breach of warranty that insured had sustained no prior loss by burglary avoided policy.

Where insured warranted that he had sustained no loss by burglary on the premises covered by the policy within five years, the fact that he had sustained such a loss within eight months prior to the issue of a burglary policy avoided the policy.

2. Insurance 665 (8)—Evidence held not to show waiver of warranty that no prior burglary had occurred.

Parol evidence that insured gave insurer's unnamed and unidentified investigator information concerning a prior burglary held insufficient to establish a waiver of a warranty that no burglary had occurred on the premises within five years.

Appeal from Municipal Court, Borough of Manhattan, First Dis

trict.

Action by Simon Medlin against the Massachusetts Bonding & Insurance Company. Judgment for plaintiff for $957.74, and defendant appeals. Reversed, and complaint dismissed on the merits.

Argued November term, 1923, before GUY, BIJUR, and DELEHANTY, JJ.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Frederic H. Cowden, of New York City (Marshall S. Marden, of New York City, of counsel), for appellant.

Goldstein & Goldstein, of New York City (David Goldstein, of New York City, of counsel), for respondent.

GUY, J. Action on a policy of burglary insurance on plaintiff's dwelling house, No. 1868 Eighty-First street, Brooklyn, issued December 22, 1921. The burglary occurred August 16, 1922. Defense, breach of warranty, in that assured misrepresented that no prior burglary had been committed within last five years, although a prior burglary had occurred within eight months of the issue of the policy. [1] The insured in his application warranted the following answer to the eighth question:

"(8) The assured has not sustained any loss or damage nor received indemnity for any loss or damage by burglary, theft or robbery, at the premises covered hereby, or elsewhere, within the last five years, except as herein stated: No."

The proof of loss declared:

"I hereby declare that I have never before suffered loss or damage by burglary, theft, or larceny, nor received indemnity therefor except as follows: No exceptions."

The insurance broker who placed the policy for the insured was told nothing of any prior burglary. Plaintiff testified, over objection. and exception, that two days after he applied for the policy he told some unnamed investigator or representative of defendant of the prior burglary in the same house; that this was before he received the policy. Plaintiff disclosed the prior robbery to defendant, when asked about it after the filing of proofs of loss of the second robbery.

The breach of warranty that insured had never before suffered loss by burglary avoided the policy. Feinstein v. Massachusetts Bonding & Insurance Co., 184 App. Div. 233, 235, 236, 171 N. Y. Supp. 589, affirmed 230 N. Y. 621, 622, 130 N. E. 918; Bacouby v. U. S. Fidelity & Guaranty Co., 61 Misc. Rep. 75, 76, 113 N. Y. Supp. 20.

[2] The parol evidence offered by plaintiff as to the information he says he gave the defendant's unnamed and unidentified investigator was insufficient to establish any waiver of the warranty that no undisclosed burglary had occurred within five years. Massachusetts Bonding Co. v. Thomson, 181 App. Div. 425, 428, 168 N. Y. Supp. 973.

Plaintiff took out his policy through an experienced insurance broker, and there was no claim that any one connected with defendant had anything to do with writing down his incorrect answer to the eighth warranty.

Judgment reversed, with $30 costs, and complaint dismissed on the merits, with costs. All concur.

(206 App. Div. 565)

(202 N.Y.S.)

DIXON v. WALKER.

(Supreme Court, Appellate Division, Third Department. November 15, 1923.) 1. Contracts 79-Defendant's promise to seller to pay for lightning rods, to which defendant or another already had title, held without consideration,

Where purchaser of defendant's farm bought lightning rods from plaintiff under an absolute sale, and had them installed and then released his interest in the land to defendant, there was no consideration for defendant's promise to plaintiff to pay for the rods; for, if they were fixtures, defendant already had title, and, if they were not fixtures, the purchaser of the farm had title.

2. Witnesses

390-Evidence held not admissible to discredit witness, as it did

not contradict him.

Where a witness testified that he had told plaintiff that defendant had not agreed to pay for certain lightning rods, held, that another's testimony that the first witness stated, on being asked how plaintiff was going to get his pay for the lightning rods, that he had made arrangements with defendant, was not admissible to discredit the witness, as it did not contradict him.

3. Witnesses 388 (2)—To discredit witness, he must be questioned concerning contradictory statements.

To lay a basis to discredit a witness, the witness must be first asked whether he made the alleged contradictory statement.

4. Witnesses 397—Impeaching statements by witness not evidence of fact in issue.

Testimony of statements by witness inconsistent with his testimony is admissible to impeach his credibility, but not as evidence of any fact in issue.

Appeal from St. Lawrence County Court.

Action by Andrew W. Dixon against Anna L. Walker. From a judgment for plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Judgment and order reversed on the law, and complaint dismissed.

Argued before COCHRANE, P. J., and HENRY T. KELLOGG, VAN KIRK, HASBROUCK, and MCCANN, JJ.

D. R. P. Parker, of Hermon, and James J. McNeil, of Ogdensburg, for appellant.

Roscoe C. Sanford, of Ogdensburg, for respondent.

HENRY T. KELLOGG, J. The plaintiff and one Willard S. Ormsby entered into a written contract on May 19, 1921. The plaintiff agreed to equip with lightning rods a house and barn which the contract described as belonging to Ormsby. Willard Ormsby promised to pay therefor the sum of $125 in three equal installments, payable January 1, 1922, June 1, 1922, and September 1, 1922. The lightning rods were installed forthwith, without a cash payment being made therefor. The house and barn did not in fact belong to Willard Ormsby. They were situate upon a farm which was then in the possession and occupation of. Willard Ormsby, Ella Ormsby, Seth Ormsby, and Mildred Ormsby, under a written contract whereby the defendant, Anna Walker, the owner thereof, had agreed to sell the same to the persons

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