[2] Apart from that fact, however, the judgment is in the sum of $250, with appropriate costs, and there is not a scintilla of evidence. in the record of the value of the chattel. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur. ENO v. GIDONEY. (Supreme Court, Appellate Term, First Department. June 28, 1915.) FRAUDS, STATUTE OF 33-PROMISE TO ANSWER FOR DEBT OF ANOTHER-ES SENTIALS. Where defendant orally promised to pay a sum due plaintiff from a third person for legal services, defendant stipulating that plaintiff should insist upon getting paid by the third person, but that plaintiff might look to defendant for payment, the promise was void under the statute of frauds; the original debt not being extinguished, and the promise not being founded on a new consideration moving to the promisor and beneficial to him. [Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. §§ 5053, 56; Dec. Dig. 33.] Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Charles Eno against David Gidoney. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Argued June term, 1915, before GUY, BIJUR, and PAGE, JJ. Morris Zwerling, of Brooklyn, for appellant. M. Harold Hochdorf, of New York City, for respondent. BIJUR, J. Plaintiff sued to recover from defendant the amount of indebtedness due plaintiff from a third person for legal services. Plaintiff testified in substance that defendant called upon him with this third person, and said: "Well, you know me. I don't want you to sue him. You can look to me for the payment. I will pay that sum of money; but that payment will be made in two payments, one in May and one in June.' I said to him: 'If you promise to pay me that, I will have no further business with Levine; it is agreeable to me. I am willing to give you the time to pay it, but you must pay me.' And I said: 'I won't sue Levine under those circumstances, but will look to you for payment.' And then he said to me, as Mr. Levine was going out, he said: 'I want you to insist upon getting paid by him, but you can look to me for the payment of that money.' And I said: 'All right.'" It seems to me to be perfectly evident that the promise of defendant, as thus testified to, was purely collateral, and not original, and therefore, in order to be enforceable, should, under the statute of frauds, have been in writing. The question is not whether there was a consideration for defendant's promise, because, concededly, plaintiff's agreement not to sue the third party would have constituted such consideration. The point is, first, that the original debt was not extinguished, because the third person still remains liable; and, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes second, that it is not shown that defendant's promise is "founded on a new consideration moving to the promisor, and beneficial to him." See White v. Rintoul, 108 N. Y. 222, at 227, 15 N. E. 318, reviewing Ackley v. Parmenter, 98 N. Y. 425, 50 Am. Rep. 693; also Raabe v. Squier, 148 N. Y. 87, 42, N. E. 516; Brumm v. Gilbert, 50 App. Div. 430, 64 N. Y. Supp. 144; also Mechanics' & Traders' Bank v. Stettheimer, 116 App. Div. 198, 101 N. Y. Supp. 513. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur. WINDER et al. v. POLLACK. (Supreme Court, Appellate Term, First Department. June 25, 1915.) TRIAL 317-MISCONDUCT OF JURORS-WAIVER OF ERRORS. Where defendant, with knowledge of the misconduct of a juror, permitted the case to be submitted without bringing the misconduct to the attention of the court, he waived all objections thereto, and cannot, after an adverse verdict, complain. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 751, 752; Dec. Dig. 317.] Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Joseph Winder and another against Julius Pollack. There was a judgment for plaintiffs, and defendant was granted a new trial on account of the misconduct of one of the jurors, from which order plaintiffs appeal. Order reversed, and judgment reinstated. See, also, 151 N. Y. Supp. 870. Argued June term, 1915, before GUY, BIJUR, and PAGE, JJ. John L. Bernstein, of New York City, for respondent. PER CURIAM. From the affidavits used on the motion for a new trial, and from the testimony given at the hearing, it appears that the judge below must have found that one of the jurors spoke to one of the plaintiffs on Friday at the close of court, and on the following Monday before court opened, and that on the latter occasion he spoke to the defendant also. His conversation with the defendant was an inquiry why the defendant did not settle the case. What his conversation with one of the plaintiffs was does not appear. Defendant informed his counsel of all these facts prior to the submission of the case to the jury on Monday, but counsel took no action thereon. making this motion only after a verdict had been rendered against him and judgment entered thereon. By permitting the case to be submitted to the jury without bringing the alleged misconduct of the juror to the attention of the court, defendant must be taken to have waived all objections thereto. Moore v. N. Y. Elevated R. R. Co., 24 Abb. N. C. 77, 8 N. Y. Supp. 329; For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Gale v. N. Y. C., etc., 13 Hun, 1; Bruswitz v. Netherlands, 64 Hun, 262, 19 N. Y. Supp. 75. The order must therefore be reversed, with costs, and the judgment reinstated. ROBINSON CLAY PRODUCT CO. OF NEW YORK v. JOHN H. THATCHER & SONS. (Supreme Court, Appellate Term, First Department. June 28, 1915.) APPEAL AND ERROR 1195-EFFECT OF DECISION ON RETRIAL-DIRECTION OF VERDICT. Where, on the facts, the appellate court found that plaintiff was entitled to recover, and the facts on a retrial were substantially the same, the trial court should have directed a verdict for plaintiff. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 46614665; Dec. Dig. 1195.] Appeal from Municipal Court, Borough of Manhattan, Ninth Dis trict. Action by the Robinson Clay Product Company of New York against John H. Thatcher & Sons. From a judgment for defendants, plaintiff appeals. Reversed, and judgment directed for plaintiff. See, also, 151 N. Y. Supp. 1142. Argued June term, 1915, before GUY, BIJUR, and PAGE, JJ. William Wallace Young, of New York City, for appellant. Hirsh & Newman, of Brooklyn (Benjamin Reass, Hugo Hirsh, and Emanuel Newman, all of Brooklyn, of counsel), for respondent. PAGE, J. This is the second appeal in this case. The facts are sufficiently stated in the former appeal. 150 N. Y. Supp. 658. We then held that the time for delivery was not of the essence of the contract as originally made, and had not subsequently been made of the essence of the contract by the defendant giving notice of its intention to cancel the order unless delivery was made on or before a fixed time. We further pointed out that if the time had been fixed in the original contract, as defendant contended, that the defendant had waived it "by an acceptance of a portion of the order after that [time] and requesting the plaintiff to thereafter deliver the tile, and, once waived, notice fixing a new time was necessary." The testimony on this trial was substantially the same as before, and the court below should have directed a verdict for the plaintiff. Judgment reversed, with costs to appellant, and judgment directed for the plaintiff for $233.58, with interest from June 20, 1913, with All concur. costs. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes LAU V. LAU. (Supreme Court, Special Term, Kings County. June 20, 1914.) In an action for separation, admissions by the plaintiff wife that before marriage to defendant she celebrated a ceremonial marriage with another man from whom she never obtained a divorce, although she did not live with him, is not, where she lived with defendant many years, sufficient to show the nullity of her marriage with defendant, and defeat an action for separation. [Ed. Note. Dig. 50.] For other cases, see Marriage, Cent. Dig. §§ 79-89; Dec. Action for separation by one Lau against one Lau. On motion to dismiss complaint. Motion denied. See, also, 156 App. Div. 912, 141 N. Y. Supp. 1128. Charles H. McCarty, of New York City, for plaintiff. BENEDICT, J. In this action for a separation plaintiff admits that prior to her marriage with the defendant she went through a marriage ceremony with another man, with whom, she testifies, she never lived, and from whom she has not obtained a divorce. Subsequently the defendant married her with full knowledge, as she testifies, of the circumstances above recited, and she thereafter lived with him for many years, and bore him four children, most of whom are of full age. The admissions of the defendant are not sufficient, in my opinion, that the prior marriage was valid, and it does not therefore constitute a bar to the maintenance of this action. Matter of Meehan, 150 App. Div. 681, 135 N. Y. Supp. 723; Matter of Grande, 80 Misc. Rep. 450, 141 N. Y. Supp. 535. The motion to dismiss the complaint is denied, and I will hear the defendant's evidence on Saturday, June 27, 1914, at 10 o'clock a. m. The defendant will, of course, be at liberty to introduce proof to show that at the time he married plaintiff she was the lawful wife of another. All that I now hold is that the evidence heretofore adduced is not sufficient for that purpose. (91 Misc. App. 116) LAZAROWICZ v. LAZAROWICZ. (Supreme Court, Special Term, Kings County. June 22, 1915.) 1. MARRIAGE 40-ANNULMENT OF-BURDEN OF Proof. In an action to annul a marriage on the ground that defendant wife had a former husband living, plaintiff has the burden of proving, not only a former ceremonial marriage, but that it was valid and subsisting at the time of the second marriage, which proof should be made by showing a compliance with the laws of the place of the marriage; this being particularly true where defendant testified plaintiff had induced her to get a rabbinical divorce, which she supposed was valid, and a judgment for plaintiff would show defendant guilty of bigamy. [Ed. Note.-For other cases, see Marriage, Cent. Dig. §§ 58-69, 79; Dec. Dig. 40.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes In an action to annul a marriage on the ground that the defendant wife had a husband living at the time of her marriage, evidence held insufficient to show the former marriage. [Ed. Note. For other cases, see Marriage, Cent. Dig. §§ 79-89; Dec. Dig. 50.] Action by Lewis Lazarowicz against Sarah Lazarowicz. On application for interlocutory judgment. Application denied. Alfred K. Schwabach, of New York City (A. Gross, of New York City, of counsel), for plaintiff. BENEDICT, J. Plaintiff seeks a judgment annulling his marriage with defendant on the ground that at the time of such marriage defendant had a former husband living. On the application for judgment by default a witness named Max Nadler, who stated that his name in Hungarian was Michael Nadler, testified that he had been married to the defendant in Hungary prior to her marriage to plaintiff, and that neither the witness nor the defendant had ever obtained a divorce. The defendant was also sworn and testified that she had been married to one Michele Nadler in Hungary. The two-defendant and the witness Nadler-were not in court at the same time, so that there was no personal identification of either by the other. An attempt was absurdly made to prove that the name "Max" is an English equivalent or translation of the Hungarian name "Michael." The two names have, obviously, no relation to each other. "Michael" is a Hebrew name, meaning "Who is like God?" and is found in slightly differing forms in most, if not all, modern European languages. The English form is "Michael," as is also the German form. "Michele" is the Italian form. "Max" is probably a contraction of Maximilian, or some name with a similar first syllable, ultimately derived. from the Latin word "maximus," meaning greatest. The witness may, on coming to this country, have assumed the name Max, but it is in no sense a translation of his former name. There is another more serious discrepancy, however, between the testimony of the witness Nadler and the defendant, namely, with respect to the time and circumstances of the alleged former marriage. Nadler places the time in 1908, and swears that plaintiff was present. The defendant places the time in 1904 or 1905, and denies that plaintiff was present. No other proof of the alleged former marriage was given than the statements of Nadler and the defendant. [1, 2] In a case of this kind the burden is on the plaintiff to prove, not only a former ceremonial marriage, but that such marriage was valid and still subsisting at the time of the second marriage. Johannessen v. Johannessen, 70 Misc. Rep. 361, 364, 128 N. Y. Supp. 892; Lau v. Lau (Sup.) 140 N. Y. Supp. 310, affirmed 156 App. Div. 912, 141 N. Y. Supp. 1128; Lau v. Lau, 154 N. Y. Supp. 107. While it is true that ordinarily the fact of, marriage, if uncontroverted, may be proved by the testimony of one of the parties thereto, in a case of this kind, where the effect of a judgment in plaintiff's favor will neces For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |