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Under that indenture the defendant was obligated to pay as rental 7 per cent on the par value of the stock to the stockholders or the same amount to the lessor corporation, and the plaintiff admits that the defendant did not intend to assume any liability for failure of the Manhattan Railway Company to pay over to its stockholders any sums which the defendant might pay to the Manhattan Railway Company for the purpose of dividends, and consequently, if the defendant paid the amount of the rental to the lessor corporation, it would be relieved of liability under the guaranty. Moreover, it appears from the pleadings that the lessor had an option to cancel the lease for any default or defaults on the part of the defendant, though the clause of the lease which gave rise to such option is not pleaded. Unless this clause contained a provision that the obligation to pay rental should continue after the lease was terminated, it would seem that the defendant was not obligated to pay any rent after such cancellation. If the defendant after such cancellation was not obligated to pay further rent under the lease, then in my opinion the defendant would also not be obligated under its guaranty to pay dividends to the lessor's stockholders, for by the terms of that guaranty the defendant's promise to pay was only “in accordance with the terms and provisions” of the lease, and when the obligation to pay ceased under the terms and provisions of the lease it also ceased under the terms of the guaranty.

While I recognize that in the case before me the defendant's obligation to pay rent under the lease was not terminated in accordance with the terms and conditions of the lease, but by agreement of the parties, and that when the lease and the guaranty were made the parties did not contemplate that such obligation could be terminated or modified, except by unanimous consent of the parties, yet in view of the facts that the defendant's promise to the stockholders was not wider than its promise to the lessor, but was merely an agreement with them individually that it would pay in accordance with the lease, that this payment was to be for rent, and that the obligation to pay rent could even under the lease be terminated by the action of the lessor in taking back the leased property upon default by the lessee, I feel constrained to hold that the guaranty of payment of 7 per cent. dividend "in accordance with the terms and conditions of the lease" could not survive a valid revocation or modification of the lease by the parties to the lease. The present case aptly illustrates the difficulty which arises in construing an agreement, when contingencies have arisen which affect the agreement, but which were not contemplated by the parties when the agreement was made; but since the guaranty was given as part of the consideration for the lease, since the obligation of the guaranty was met whenever the defendant paid the stipulated rent under the lease over to the lessor corporation, and since I believe that the lessor corporation could not by contract agree not to abrogate or modify the obligation of the lessee to pay rent, I feel constrained to hold that the true construction of the guaranty must be that the defendant's obligation to the stockholders thereunder cannot be greater than its obligation to pay rent. Whatever doubt I may still have on the subject should be resolved in favor of the defendant, for under the allegations of the an(202 N.Y.S.) swer public policy, and even the interest of the lessor's stockholders, required the modification of the lease, and under the circumstances, without far greater certainty than I feel, Special Term should not even temporarily create a condition which is destructive of public interests.

Motion for judgment on the pleadings is therefore denied, with $10 costs. Ordered accordingly.

BENDELARI v. B. S. MOSS THEATRICAL ENTERPRISES, Inc. (Supreme Court, Appellate Term, First Department. December 12, 1923.) 1. Courts 190(4)-Municipal Court not authorized to adjudicate waiver of right to settle case.

The Municipal Court has no power to make an order declaring that

plaintiff has waived his right to have a case on appeal settled. 2. Courts 190(2)-Municipal Court's order declaring waiver of right to have

case settled appealable.

An order of the Municipal Court, declaring that plaintiff has waived his right to have his case on appeal settled, is appealable under Municipal Court Code, 8 154, subd. 8. Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Francis Bendelari against the B. S. Moss Theatrical Enterprises, Inc. From an order declaring plaintiff to have waived his right to have his case on appeal settled, plaintiff appeals. Order reversed, and motion denied.

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

Wilberforce Sully, Jr., of New York City, for appellant.

Maurice Goodman, of New York City (W. W. Opperman, of Poughkeepsie, of counsel), for respondent.

PER CURIAM. [1,2] This court has decided that the Municipal Court has no power to make an order declaring that plaintiff has waived his right to have a case on appeal settled. See Julius Blum & Co. v. Amiron Supply Co., 103 Misc. Rep. 508, 170 N. Y. Supp. 375. Order is appealable under Municipal Court Code (Laws 1915, c. 279) § 154, subd. 8.

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

MILLER V, INSURANCE CO. OF NORTH AMERICA, (Supreme Court, Appellate Term, First Department. December 12, 1923.) 1. Insurance C 665(4)— Insured must prove definitely amount of loss.

Insured must prove definitely the amount of his loss, to recover on a

theft policy. 2. Insurance Ow665(4)–Evidence held not to establish contents of stolen cases,

In an action against insurer for loss of goods by theft, evidence held not to establish the contents of cases alleged to have been stolen. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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3. Evidence 181-Photostatic copies held not admissible for want of prelimi.

nary proof.

Where there was no evidence that the originals could not be produced, or that photostatic copies of a sales order and packing list of goods

stolen were exact copies, they were not competent evidence. 4. Evidence 320_Testimony as to contents of cases based on tags thereon

held hearsay.

Testimony as to the number of yards in certain cases of goods, based on an examination of the tags on the cases, and not on an actual measure ment, held incompetent, being hearsay. Appeal from City Court of New York.

Action by Harry Miller against the Insurance Company of North America. From a judgment for plaintiff, entered on the verdict of a jury, and from an order denying a motion to set the verdict aside, and for a new trial, defendant appeals. Judgment and order reversed, and new trial ordered.

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

Levy & Becker, of New York City (Joseph Levy, of New York City, of counsel), for appellant.

Robert L. Turk, of New York City, for respondent.

PER CURIAM. We conclude that the judgment and order appealed from should be reversed, and will briefly state our reasons therefor. The policy in suit covered loss by theft; therefore the primary question for determination was whether the goods alleged to have been stolen were ever in possession of plaintiff. This was a point that was sharply litigated, and depended for solution on whether the goods had been delivered to plaintiff. It was purely a question of fact for the jury to pass upon, and should not have been disposed of adversely to defendant as a question of law.

[1, 2] On the question of damages the learned trial court correctly held that plaintiff must prove definitely the amount of his loss in order to recover, yet the proof submitted and received in connection therewith, subject to defendant's objection and exception, was far away from establishing by competent evidence the contents of the cases alleged to have been stolen. The sole proof on this point was contained in the deposition of one Stehmeyer, the general foreman of the shipping department of the company from whom plaintiff had purchased the goods in question. He deposed that he neither packed nor checked the goods, but that the records of the shipper showed the yardage thereof, the amount of which he specified. He further deposed that his knowledge of the contents of the case of goods in question was also obtained from the employees of the shipper, whose present whereabouts is to him unknown.

[3] Recognizing the insufficiency of this evidence, counsel for plaintiff then introduced in evidence, subject to defendant's objection and exception, a photostatic copy of the sales order and packing list covering the goods in question. These papers show that there were seven cases shipped plaintiff, containing a total of 14,606 yards, while in the instant case plaintiff is claiming a loss only on two cases.

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

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(202 N.Y.S.) [4] Recognizing further the weakness of this testimony, plaintiff then took the stand and testified that he received five of the seven cases, that he personally assisted in measuring and checking up the goods, and that he figured out the difference between the number of yards shipped and the number of yards he received to be 4,63614 yards. He admitted, however, that he did not actually measure the goods; that he only checked it, which consisted of looking at the tags on the goods and taking the markings thereon, and thus he based his information that the five cases contained 9,91214 yards. It is quite apparent that this testimony was incompetent as hearsay evidence. Ia 17 Cyc. it is stated that a photostatic copy of a document is admissible only where the original cannot be produced, or has become illegible, on proof, that it is an exact copy of the original. See cases there cited. No proof was offered making these documents competent evidence.

We conclude, therefore, that plaintiff failed to bear the burden of proving the damages claimed to have been suffered by him under the policy in question, and for the errors committed during the course of the trial, in admitting incompetent evidence, that the judgment and order must be reversed, and a new trial ordered, with costs to appellant to abide the event.

(122 Misc. Rep. 119)

NEW YORK CENT. R. CO. V. SATULOFF et al.

(Supreme Court, Special Term, Erie County. December, 1923.) Carriers en 194—Failure to collect freight from party to whom goods were re.

shipped does not relieve original consignee.

Where a carload of cucumbers were consigned to defendants in Buffalo, and they unloaded part of them and reshipped the car containing. the balance to Rochester, with directions to deliver to a named firin on payment of freight, and this firm started unloading the car without having paid the freight charges, but on being interfered with by defendant's agent refused to accept the cucumbers, held, that defendants were liable for the freight. Appeal from City Court of Buffalo,

Action by the New York Central Railroad Company against Berneth Satuloff and another. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and judgment awarded plaintiff for the amount demanded.

Locke, Babcock, Spratt & Hollister, of Buffalo, for appellant.
Falk, Phillips & Schlenker, of Buffalo, for respondents.

BROWN, J. In June, 1916, the defendants, as consignees, received from plaintiff at Buffalo a carload of cucumbers that had been transported by plaintiff and its connecting carriers from Alabama. The defendants unloaded from the car about half of the merchandise and reshipped such car containing the balance of the shipment, on June 28, 1916, to one Punia, at Rochester. Punia refused to accept such car at Rochester, whereupon the defendants ordered plaintiff to deliver the merchandise to Cohen & Blum, upon payment of freight charges.

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

At that time the lawful freight charges for transportation of such car from Alabama to Buffalo, and from Buffalo to Rochester, were $124.36. Cohen & Blum began the unloading of the car about 8 a. m. on Saturday, July 31, 1916, when plaintiff's representative at the freight yard, not knowing of defendants' order to deliver to Cohen & Blum, the freight charges not having been paid, stopped further delivery to Cohen & Blum. About 11 a. m. of that day, such representative being apprised of defendants' order to deliver to Cohen & Blum, tendered them delivery. They refused to accept. The freight charges not having been paid, the cucumbers being perishable, the plaintiff sold the same on Monday, August 1, 1916, at auction by a broker to Cohen & Blum for $9.50, applied the proceeds of such sale upon the freight charges, leaving $114.86 unpaid thereon. March 10, 1921, this action was commenced to recover such balance. The only defense claimed upon the trial was that delivery of the shipment by the plaintiff to Cohen & Blum without first securing the freight charges relieved the defendants from all liability therefor. Such claim prevailed as a defense in the City Court, resulting in a dismissal of plaintiff's complaint.

The defendants were consignees of the nerchandise upon its receipt at Buffalo; they were consignors when they shipped it from Buffalo to Rochester; they took possession as owners at Buffalo and Rochester. They were, as owners, consignees, and consignors, liable to the plaintiff for the freight charges. Their direction to the plaintiff to collect the freight charges from Cohen & Blum did not relieve the defendants from their liability to pay such charges. Such direction was extending to the plaintiff the privilege of collecting from Cohen & Blum. The failure of the plaintiff to make such collection did not relieve defendants from their liability. New York Cent. R. Co. v. Warren Ross Lumber Co., 234 N. Y. 261, 137 N. E. 324, 24 A. L. R. 1160. The plaintiff, upon the proofs, 'was entitled to a judgment for $114.86, and interest from July 15, 1916.

There being no defense set forth in the defendants' answer, the judgment appealed from is reversed, with costs, and judginent awarded the plaintiff for the relief demanded in the complaint.

Judgment accordingly.

BL00M et al. v. HERSHOWITZ.

(Supreme Court, Appellate Term, First Department. December 12, 1923.) Judgment am 185–On motion for summary judgment, defendant's affidavit held to

raise issues requiring trial.

In an action for breach of defendant's agreement to pay one-third of the cost of maintaining a burglar alarm system, on plaintiff's motion for a summary judgment, defendant's affidavit held to raise issues whether the amount demanded is one-third of the reasonable maintenance charge, and whether that charge was waived in consideration of defendant's execution of the new agreement, and to entitle defendant to a trial of those issues. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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