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2 SALES ($ 178*)-DELIVERY-ACCEPTANCE.

Delivery of mortar sold was not equivalent to an acceptance thereof, so as to show no consideration for a warranty thereafter made.

[Ed. Note.--For other cases, see Sales, Cent. Dig. $ 451; Dec. Dig. $ 178*] Appeal from Trial Term, Kings County.

Action by Gus Luckes against Archibald K. Meserole. Judgment for defendant, and plaintiff appeals. Reversed, and new trial granted.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and
RICH, JJ.

William L. Stone, for appellant.
J. Power Donellan, for respondent.

RICH, J. The plaintiff is a contractor, and, while engaged in the erection of some buildings, purchased of one William H. Meserole, for whom the defendant was acting as sales agent, a quantity of patent mortar for use upon such buildings. He testified that, in answer to the inquiry of the defendant as to what kind he wanted, he answered, “Any kind, as long as it is good.” Defendant then informed him that he could furnish two kinds, rock wall or Rockland Rockport Lime Company, but later told him he could not furnish the rock wall, but could furnish the other, which was just as good, 25 cents cheaper, to which plaintiff responded, "All right, as long as it is good stuff, and you will guarantee the stuff, I will take it,” to which respondent replied, “Sure, everything I give you is good.” Upon inspecting the mortar upon delivery, its color led the plaintiff to think that there was something wrong about it, and that it might be of an unfit quality for his purpose, and so informed defendant, to which he replied: "Never mind; that stuff is good. It comes from a very good firm. That stuff was guaranteed to us, and we guarantee it to you.” Plaintiff's foreman, testifying to this conversation, says the defendant said: "You go ahead and use it. The firm is responsible for this stuff, and we are responsible to you.” Relying upon this warranty, the plaintiff accepted and used the mortar, which proved to be worthless, and had to be removed from the walls and replaced with other mortar, and the plaintiff seeks to recover the moneys expended in making the change in this action.

Plaintiff first asserted his claim against William H. Meserole, who repudiated the act of the defendant in making the warranty, and the complaint was dismissed upon the ground of a failure to establish express authority in the sales agent to make such a warranty, or that such warranty was customary in the trade. He then brought this action against the agent, alleging, first, the warranty, and that it was made by defendant in his individual capacity, and that the defendant had no authority to make the warranty in behalf of his principal. The learned trial justice dismissed the complaint upon the ground that the plaintiff was dealing with the agent of a disclosed principal, that the repudiation by the principal of the unauthorized warranty of his agent was immaterial, and that the plaintiff's cause of action was based upon 'For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

a warranty made after the sale and delivery of the mortar, for which no consideration was proven, and hence there was no binding warranty as against the defendant. In these conclusions I think he was in error. Taylor v. Nostrand, 134 N. Y. 108, 31 N. E. 216, is a direct authority sustaining the plaintiff's contention of his right to maintain this action. Delivery of the mortar was not the equivalent of acceptance, and the evidence establishes that there was no acceptance until after the guaranty sued upon. In James v. Libby, McNeil & Libby, 103 App. Div. 256, 92 N. Y. Supp. 1047, a case very similar to the one at bar, in which the objection was made that there was no consideration for the agreement, which was made after the goods purchased had arrived at the dock in New York, it was held that the later agreement rested upon a sufficient consideration and was enforceable.

The judgment must be reversed, and a new trial granted; costs to abide the event. All concur.

STRAHL v. FINK. (Supreme Court, Appellate Division, Second Department. April 23, 1909.) MONEY RECEIVED ($ 2*)- LIABILITY OF DEFENDANT.

A worthless check, given defendant by his predecessor as treasurer of an unincorporated association and reported by defendant as cash on hand, did not, because of his negligence, make defendant liable to the association for money had and received.

[Ed. Note.-For other cases, see Money Received, Cent. Dig. $8 2–5; Dec. Dig. $ 2.*] Appeal from Municipal Court, Borough of Brooklyn, Third District.

Action by Robert Strahl, president of the Brooklyn Hebrew Dispensary Society, against Jacob Fink. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

Morris Walzer (Edward E. Rosenblume, on the brief), for appellant. Bernhard Bloch, for respondent.

RICH, J. This action is brought by an unincorporated association against its treasurer for money had and received, and the plaintiff has recovered. It is conceded that the money sued for was never in the possession of the defendant, but is represented by a worthless check given to him by his predecessor in office, and which he reported to the association as cash on hand. This check did not discharge the liability of the former treasurer to the association for the money in his hands. It was never paid over by him. Proof that the plaintiff has sustained loss or damage through the negligent acts of the defendant is not sufficient to maintain an action for money had and received. National Trust Co. v. Gleason, 77 N. Y. 400, 33 Am. Rep. 632.

The judgment must be reversed, and a new trial ordered; costs to abide the event. All concur.

In re CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department. April 16, 1909.) 1. THEATERS AND SHOWS ($ 3*)-REVOCATION OF LICENSE-NATURE OF PRO

CEEDING.

Laws 1901, p. 657, c. 466, amending the Greater New York charter (Laws 1897, p. 519, c. 378), did not reincorporate sections 1472–1487 re lating to "amusements, public exhibitions to be licensed,” one of which (section 1476) provided for revocation of a license for a violation of law by a summary proceeding, and another (section 1481) probibited certain Sunday exhibitions, but section 1620, subd. 3 (Laws 1901, p. 657, C. 466), provided that such sections should remain in force until changed by ordinances regulating matters therein provided for, when they should be considered repealed. Afterwards an ordinance was passed regulating the matters provided for in section 1481, continuing the prohibition of certain exhibitions on Sunday, and providing that any person violating the same should be subject to a specified penalty, which the corporation attorney was authorized to sue for, and on a recovery of judgment for such penalty the license previously obtained for the exhibition should be deemed annulled. Held that, as section 1481, relating to Sunday exhibitions, was repealed by the passage of the ordinance, section 1476, relating to a summary proceeding for revocation of a license, does not apply to & violation of the ordinance relating to Sunday exhibitions; hence, the only way in which a license can be revoked for a violation of the ordinance is on obtaining a judginent for the penalty prescribed.

(Ed. Note.-For other cases, see Theaters and Shows, Cent. Dig. $ 3;

Dec. Dig. $ 3.*] 2. APPEAL AND ERROR (8 91*)-APPEALABLE ORDERS-NATURE OF PROCEEDING.

Code Civ. Proc. $ 1356, provides that an appeal may be taken from an order affecting a substantial right made in a special proceeding. Section 1361 provides that “this title does not confer the right to appeal froin an order in a case where it is specially prescribed by law that the order cannot be reviewed." Greater New York Charter (Laws 1897, p. 520, C. 378) 8 1476, provides a summary proceeding for the revocation of theatrical or show licenses for a violation of law, “and no appeal shall be taken" in such proceeding. Held, that where the court, in summary proceedings under section 1476 to revoke a theatrical license, appointed a referee, which was not authorized in such proceeding, an appeal may be taken under section 1356.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $ 619; Dec. Dig. § 91.*] Appeal from Special Term, New York County.

Summary proceedings by the City of New York against William Morris, Incorporated, to revoke a theatrical license. From an order overruling preliminary objections to jurisdiction, denying a motion to dismiss, and appointing a referee, defendant appeals. Reversed, and proceeding dismissed.

Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.

George M. Leventritt, for appellant.

Francis K. Pendleton, Corp. Counsel (Theodore Connoly, of counsel, and Terence Farley, on the brief), for respondent.

CLARKE, J. This is an appeal from an order of the Special Term upon an application by the city to revoke a license issued to William •For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexos

116 N.Y.S.-23

Morris, Incorporated, for the American Theater, upon the ground of the violation of an ordinance passed December 17, 1907, by the giving of Sunday performances alleged to be prohibited by said ordinance. The order appealed from overruled certain preliminary objections made to the jurisdiction of the court, denied the motion to dismiss the proceedings, allowed the respondent time in which to serve an answer to the petition, and appointed a referee to take proofs and report his opinion. The preliminary objection, in brief, is that there is no existing law providing for a summary proceeding to obtain a revocation of a theatrical license for a violation of the ordinances in respect to Sunday performances, but that it is now provided that such revocation shall follow and depend upon a judgment for the recovery of a penalty of $500, which the corporation counsel is authorized to prosecute for and recover.

The Greater New York Charter (chapter 378, p. 519, of the Laws of 1897), in chapter 22, tit. 2, under the head "Amusements, Public Exhibitions to be Licensed," provided in brief as follows:

Section 1472 declared that it should not be lawful to publicly exhibit any interlude, tragedy, comedy, etc., until a license for the place of such exhibition should be first had and obtained. By section 1473 the police department was authorized to grant such license for the sum of $500; but any one who should neglect to take out such license and give such an exhibition was subjected to a penalty of $100 for every such exhibition, to be prosecuted and sued for and recovered in the name of the city. Section 1476 reads:

“Revocation of License. Any license provided for by the preceding sections may be revoked and anulled by any judge or justice of any court of record in said city, upon proof of a violation of any of the provisions of this title; such proof shall be taken before such judge or justice, upon notice of not less than two days to show cause why such license should not be revoked. Said judge or justice shall hear the proofs and allegations in the case and determine the same summarily; and no appeal shall be taken from such determination; and any person whose license shall have been revoked or annulled shall not thereafter be entitled to a license under the provisions of said sections; on any examination before an officer. pursuant to a notice to show cause, as aforesaid, the accused party may be a witness in his own behalf."

Section 1477 provided that any person violating sections 1472 and 1473 should be deemed guilty of a misdemeanor, and upon conviction should be punished by imprisonment in the penitentiary for a term not less than three months nor more than one year, or by a fine of not less than $100 nor more than $500, or both such fine and imprisonment. By section 1478 it was made the duty of the police to arrest any person violating the provisions of sections 1472 and 1473. By section 1479 the corporation counsel was authorized to apply to the Supreme Court for an injunction against any person who should open or advertise to open any place in violation of section 1472 without having obtained the license provided for in section 1473. Section 1480 contained certain exemptions as to amatuers and exhibitions for charitable and religious purposes, etc. Section 1481 prohibited certain specified performances on Sunday, and provided that any per

"shall be guilty of a misdemeanor, and in addition to punishment therefor provided by law shall be subject to a penalty of five hundred dollars, which penalty the corporation counsel of said city is hereby authorized in the name of the city of New York to prosecute, sue for and recover; in addition to which every such exhibition or performance shall of itself forfeit, vacate and annul and render void and of no effect any license which shall have been previously obtained by any manager, proprietor, owner or lessee consenting to, causing, or allowing or letting any part of a building for the purpose of any such exhibition or performance."

By section 1482 minors under 14 years were not to be admitted to any theatrical exhibition held in the evening, unless accompanied by an adult person. A violation of its provisions was made a misdemeanor. Section 1483 prohibited the selling of beer, wine, or strong or spirituous liquors in any such place of exhibition, or the employment of females to wait on or attend in any manner or to furnish refreshments for the audience at any such exhibition. Section 1484 provided that no license for any exhibition given in violation of the preceding section should be granted, and any and every exhibition or performance at which any of the provisions of said section shall be violated shall of itself vacate and annul any license previously obtained. Section 1485 provided that any person violating any of the provisions of the two preceding sections shall be deemed guilty of a misdemeanor and punishable as prescribed. Section 1486 gave the right for the police to enter and arrest; and section 1487 provided for a diagram on the play bill and the marking of the doors and exits, and a noncompliance subjected the offender to a penalty in the sum of $50, to be sued for and recovered in the same manner as violations of the building laws should be sued for and recovered.

When the charter was revised, by chapter 466, p. 651, of the Laws of 1901, it did not reincorporate in terms title 2 of chapter 22 of the charter of 1897—“Amusements, public exhibitions to be licensed.” But by section 3 of section 1620 it provided as follows:

“The several sections of the said chapter 378 of the Laws of 1897, the numbers and titles of which are set forth in the second schedule annexed to this act entitled 'Second Schedule, Sections to Remain in Force until! Changed by the Board of Aldermen,' are and each of them is hereby, continued in full force and effect until the board of aldermen as constituted by the foregoing provisions of this act shall pass ordinances regulating the matters provided for in the said several sections mentioned in the second schedule, all of which ordinances the said board of aldermen is hereby expressly empowered to pass. Upon the passing of any such ordinances regulating the matters provided for in any one of the said sections respectively, such section shall cease to have any force or effect, and the san.e is and shall be repealed.”

The second schedule, so referred to as sections to remain in force until changed by the board of aldermen, included all of the sections under title 2 of chapter 22 of the charter of 1897, being sections 1472 to 1487, inclusive. On the 17th of December, 1907, the board of aldermen adopted, and on December 19, 1907, the mayor approved, the following ordinance, entitled:

“An ordinance regulating the matters provided for in section 1481 of the Laws of 1897, as amended by chapter 466 of the Laws of 1901, knowu as the 'Greater New York Charter'; section 1481 being one of the sections

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