Not only, therefore, was there no dissent to the claim, but the defendants expressly waived any variance in the shipping instructions as to the point of delivery. Such waiver is pleaded in the complaint. We are thus brought to an interpretation of the contract itself. The objection made by the defendants was that the instructions were not given until the 26th of January, and that 10 days from that time would be beyond the 31st of January, after which time they were not bound to deliver under the contract. But the contract nowhere required do livery to be made in January, but simply that the goods were "to be ready for delivery" in that month, not before the 20th. The vendor would have satisfied the requirement of the contract if the goods were ready for delivery on the 31st day of January. Professor Williston, in his book on Sales, in paragraph 457, at page 783, says: "Conversely, if the buyer is to take goods when the seller has manufactured them or made them ready for delivery, the buyer's obligation to take the goods is qualified by the condition that notice of the completion of the goods be given." Not only was there no notice ever given that the goods were ready for delivery, but about the 20th of January and the day following, and several times thereafter, the defendants refused to tell the plaintiff when the goods were to be ready for delivery. These contracts are to be construed reasonably. The goods were to be exported. The steamer must be selected and space must be obtained in that steamer. By fair import that space could not be selected until the buyer knew that the goods were ready for delivery, and if under the contract, as seems clear, the goods need not be ready for delivery until the 31st day of January, the buyer had at least until that time to secure space upon a boat and give the instructions, after which the seller had the 10 days to make the delivery. The buyer within the rules of law was required to give that notice within a reasonable time after the goods were ready for delivery, and was not bound to give the instructions until the goods were ready for delivery. The interpretation of the contract claimed that, notwithstanding the seller had until the 31st of January to have the goods ready for delivery, nevertheless the buyer must give shipping instructions on the 20th or 21st of January, so that 10 days would expire before the 31st of January is an interpretation so far against reason that it appears to me not to be open to argument. This buyer has done more than he was required to do by law by giving shipping instructions before he had notice that the goods were ready for delivery, and especially in view of the seller's refusal to tell him when the goods were to be ready for delivery. As that variation was impliedly waived by not making the specific objection, and was expressly waived by Mr. Paine as representing the defendants, the plaintiff has to my mind proven a clear cause of action for an unjustifiable breach of contract, and the dismissal of his complaint was error. The case of Bencoe v. Christianson, 191 App. Div. 99, 180 N. Y. Supp. 789, is no authority for any other rule. In that case the contract was construed as not to contain any agreement on the part of the buyer (202 N.Y.S.) to pay the drawback, if the goods should be lost by a fire in the warehouse or otherwise. In the case at bar such an agreement is expressly included in the contract. Judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. GRUBIAK v. JOHN HANCOCK MUT. LIFE INS. CO. (Supreme Court, Appellate Division, Second Department. December 27, 1923.) 1. Insurance 265-False statement in application held not warranty, in absence of fraud. A false statement in an application attached to a policy of insurance held not a warranty, under Insurance Law, § 58, in the absence of proof that it was fraudulently and willfully made. 2. Insurance 668 (6)-Whether false statements fraudulently made held for jury. Under Insurance Law, § 58, where there is conflicting evidence whether a false statement was fraudulently and willfully made, the issue is for the jury. Action by Andrew Grubiak against the John Hancock Mutual Life Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed, and a new trial ordered. PER CURIAM. [1, 2] Judgment and order of the City Court of Yonkers reversed upon the law, and new trial ordered, with costs to • abide the event. It was error for the court below to direct a verdict for the defendant, as a matter of law. A false statement in an application attached to a policy of insurance, under the facts shown in this case, is not in and of itself a warranty, without proof that such false statement was fraudulently and willfully made, which is for the jury to determine where there is conflicting evidence. Section 58, Insurance Law; Charlton v. Metropolitan Life Ins. Co., 202 App. Div. 814, 195 N. Y. Supp. 64, affirmed without opinion 234 N. Y. 639, 138 N. E. 479. No case of rescission was pleaded or made out by the defendant, in the absence of a tender or offer to restore the premium collected. McClelland v. Mutual Life Ins. Co., 151 App. Div. 264, 271, 135 N. Y. Supp. 735. KELLY, P. J., and JAYCOX, MANNING, YOUNG, and KAPPER, JJ., concur. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (Supreme Court, Special Term, Westchester County. January 2, 1924.) 1. Husband and wife 279(2)—Under separation agreement, justice has no power to increase support on child reaching majority. Under separation agreement, fixing the amount of the monthly support, and providing that, in case either or both children died on reaching majority, any question as to the amount of the support not amicably agreed on was to be referred to a justice of the Supreme Court in Westchester county, on one of the children reaching majority, held, that such a justice has no power to increase the amount of support. 2. Husband and wife 279(2)-Support under separation agreement not reduced on child reaching majority. Under a separation agreement executed in 1915, fixing the amount of the monthly support for a wife and two children at $250, and providing that, in case either or both children died or reached majority, any question as to the amount of the support not amicably agreed on should be referred to a justice of the Supreme Court in Westchester county, on one of the children reaching majority, held, that there should be no reduction, in view of the increased cost of living. Action by Anna F. Mead against Lawrence J. Mead. On defendant's motion for a reduction of an allowance for support, and on plaintiff's motion for an increase in the amount of support. Both motions denied. Strang & Taylor, of White Plains, for plaintiff. TOMPKINS, J. [1, 2] While this action was on trial in 1915, and before the conclusion of the trial, the parties entered into a written separation agreement, and the pending trial then ended, and no judgment was made. The agreement fixed the amount to be paid by the defendant to the plaintiff for the support of herself and two children, who were then minors, at the sum of $250 per month. The separation agreement contained the following clause: "It is further understood and agreed that, in case of the death of either or both of the said children, or upon their severally arriving at the age of twenty-one years, that any question or change in the amount to be paid hereunder, if it cannot be amicably agreed upon, shall be referred to a justice of the Supreme Court of the state of New York sitting in the county of Westchester, whom it is hereby agreed shall have jurisdiction for such purpose, and whose determination shall be final, binding, and conclusive upon both parties, unless reviewed, as though said amount was named in this agreement, and his order is to be taken and considered therefor as a part of this agreement." Frances L. Mead, one of the two children, became 21 years of age on October 16, 1923. Thereafter the defendant made a motion, under the eighth paragraph of the separation agreement above quoted, for a reduction of the allowance for the support of the plaintiff, and the said children and the plaintiff made an application for an increase of the amount fixed by the said separation agreement. These two motions were argued together and are herewith decided. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (202 N.Y.S.) It must be conceded that the court, or a justice of this court, cannot vary or modify the separation agreement, except as power to do so was given by the agreement of the parties, and the first question is whether, under the eighth paragraph of said agreement, the justice to whom the matter is submitted has power to increase the amount fixed by the agreement for the support of the plaintiff and the children. I think that I have no such power. The intent of the parties, as evidenced by the agreement, was that, upon the death or the maturity of either of the children, the justice to whom application might be made should have power, in his discretion, to reduce the amount, because the plaintiff would thereby be relieved of the obligation to support such child. One of the two children having arrived at the age of 21 years, the plaintiff is no longer under legal obligation to give her support, and it seems to me that a reasonable construction of the separation agreement requires the conclusion that the plaintiff is not thereby entitled, under any circumstances, to an increase in the amount fixed by the agreement, and that the only question is whether the defendant is entitled to a reduction of the amount. Because of the well-known increase in the cost of living since the agreement was made, and the circumstances and the present conditions as shown by the papers on this motion, I think there should be no reduction. Both motions denied. No costs. Ordered accordingly. Mortgages EHRICH v. EHRICH et al. (Supreme Court, Kings County. December 26, 1923.) 521-Purchaser compelled to accept title subject to mortgage given priority by agreement. Where, after a judgment in a foreclosure action, plaintiff assigned his interest in the mortgage and judgment, and assignee made an agreement under which the mortgage was subordinated to a mortgage executed subsequent to the judgment, and later the premises were sold, subject to the subsequent mortgage, to satisfy the judgment and prior mortgage, held, that purchaser secured what he bought and will be compelled to accept title; the rule that the terms of sale must comply with the judgment not applying. Foreclosure action by Nellie Ehrich against Maria Gertrude Ehrich and others. On motion to compel purchaser to accept title. Motion granted, and referee's report confirmed. In or about the year 1918-19 a mortgage, which had been successively assigned came into the hands of plaintiff in this action on the property which by conveyances had come into the hands of the defendant. A foreclosure action was thereupon started and carried through to judgment, all in the year 1918-19. The plaintiff thereafter assigned her interest in the mortgage and judgment to the Westchester Mortgage Company. The defendant negotiated a mortgage on the property described in the complaint and judgment to H. J. Pierce. Westchester Mortgage Company and H. J. Pierce entered into a subordination agreement, whereby the mortgage of H. J. Fierce was given precedence as a lien over that of Westchester Mortgage Company, which had been reduced to judgment by the foreclosure action. Four years later, in 1923, it became necessary for the plaintiff's assignee to have For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the premises sold to satisfy its mortgage. The terms of sale contained a clause stating that the premises were being sold subject to the H. J. Pierce mortgage. After the sale, the purchaser, Philip Kanter, rejected the title on the grounds that there was no right in the defendant to make such a mortgage, and that the referee had no right to sell the premises, except in accordance with the judgment, and that the variation, "The premises will be sold subject to a $1,300 mortgage," included in the terms of sale made the title unmarketable. Jonathan Holden, of Pleasantville (Alfonse V. Brisson, of Pleasantville, of counsel), for plaintiff's assignee. Lloyd B. Kanter, of Brooklyn, for purchaser. CALLAGHAN, J. When the mortgage, which was the subject of the foreclosure action, was subrogated to the mortgage described in the terms of sale, the latter became the first mortgage and the former the second mortgage on the premises which was foreclosed. Had this situation existed at the time the action was begun, there would have been no necessity for making the holder of the first mortgage a party to the foreclosure action, and the judgment of foreclosure and sale could very properly ignore any reference to the first mortgage. The purchaser at the sale would have taken any interest which the owner of the equity had subject to the first mortgage. The same result was reached by the acts of the parties. The purchaser knew from the terms of sale that he was purchasing the premises subject to the mortgage. The title to the premises was in no way affected by the fact that the judgment did not recite or refer to the first mortgage. The purchaser can get what he bought. The general rule that the terms of sale must conform to the judgment does not obtain in this situation. Motion to compel purchaser to take title is granted, and the referee's report is confirmed. (207 App. Div. 494) KELMENSON et al. v. MANN, Tenement House Com'r, et al. (Supreme Court, Appellate Division, Second Department. December 21, 1923.) 1. Mandamus 87-When court should not interfere by mandamus with plans approved by tenement house commissioner. Where a proposed building was in two zoning districts, and plans approved by tenement house commissioner fixed the dimensions of courtyards in each zone according to the length of the building therein, held, that the court should not interfere with the commissioner's decision by mandamus. 2. Mandamus 87-Clear case necessary to warrant interference with judgment of tenement house commissioner. Matters necessarily involving expert knowledge of building conditions are left to the judgment of the tenement house commissioner, and it must be a very clear case which will justify interference by mandamus. Appeal from Special Term, Kings County. In the matter of the application of Nathan Kelmenson and another for a peremptory mandamus order against Frank E. Mann, as Tenement House Commissioner, and Frances Cairone. From an order For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |