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Misc.] Surrogate's Court, New York County, November, 1921.

to each infant and alleges that the mother is "wholly without experience in business affairs or in the management or investment of property and is therefore not a proper and suitable person to be appointed guardian of the property of said infant." On the other hand the fact that the father is the custodian of property belonging to the infants, which consists of securities which came to the infants as birthday and Christmas gifts from their father and both grandfathers, renders it advisable, because of the possible adversity of interest, that some one other than the father be appointed general guardian of the infants' estate, as occasion may arise which may render it necessary that inquiry into the investment of such property should be made on behalf of the infants.

As the mother of the infants is alleged to be inexperienced in business matters I think the best interests. of the infants will be served by joining some other person with her in the guardianship of the property. I therefore will appoint Anne U. Stillman as guardian of the property and will join with her as coguardian of the infants' property John F. Brennan, Esq., an attorney of broad experience and well fitted to assist and advise the mother in administering the property of the infants.

Ordered accordingly.

Appellate Term, First Department, November, 1921. [Vol. 117.

MARY FELLOWs, Appellant, v. INTERBOROUGH RAPID TRANSIT COMPANY, Respondent.

JOSEPH FELLOWS, Appellant, v. INTERBOROUGH RAPID TRANSIT COMPANY, Respondent.

(Supreme Court, Appellate Term, First Department, October Term -Filed November, 1921.)

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Evidence — negligence — testimony that train started with "terrible jerk" admissible.

In an action to recover for personal injuries the plaintiff should not be prevented from testifying in her own language as to how the accident happened, and in any terms which appropriate questions of her counsel may call for.

On the trial of a wife's action to recover for personal injuries, and in her husband's action for loss of her services by reason of the injuries to her, she testified that after boarding a train operated by the defendant company it started with a "terrible jerk" which caused her to fall. At the instance of defendant's counsel and over the objection of plaintiffs' the phrase "terrible jerk" was stricken out. Later she described it as "a terrible and terrific jerk," which was stricken out. Her counsel then asked her: "Was it the usual jerk? A. No." This was similarly stricken out as a conclusion. Finally, her counsel said: "Q. You will have to describe, leaving out the words 'terrible' and 'terrific,' in what manner that jerk of the starting of the train differed from the starting of other trains that you had been riding in." An objection to this question was similarly sustained as calling for a conclusion. The husband testified that the chain connecting the cars "gave a terrible snatch." This testimony was also stricken out and in dismissing the complaint for failure on the part of plaintiffs to prove negligence, the trial judge said: There is no evidence here which will show that this jerk was any more than the usual jerk which the plaintiff admits cars start with," and added: "I have stricken out the characterization of the jerk because the decisions compel me to do so." Held, that the phrases stricken out should have been allowed to stand, and the wife should have been permitted to

Misc.] Appellate Term, First Department, November, 1921.

answer how the jerk which threw her differed from the ordinary starting jerk of a train, if it did, and the judgments entered upon the dismissal of the complaints at the close of the plaintiffs' cases will be reversed and new trials granted.

APPEAL by plaintiffs from judgments of the City Court of the city of New York dismissing their complaint at the close of plaintiffs' cases.

Abraham M. Fisch, for appellants.

James L. Quackenbush (William J. Shiels, of counsel), for respondent.

BIJUR, J. These are appeals in two cases, one by the wife for injuries suffered, the other by the husband for loss of her services.

The wife testified that after boarding a train operated by the defendant company it started with a "terrible jerk " which caused her to fall. At the instance of defendant's counsel and over the objection of plaintiffs' the phrase "terrible jerk" was stricken out. Later she described it as " a terrible and terrific jerk," which was stricken out. Her counsel then asked her: "Was it the usual jerk? A. No." This was similarly stricken out as a conclusion. Finally, her counsel said: "Q. You will have to describe, leaving out the words 'terrible' and terrific,' in what manner that jerk of the starting of the train differed from the starting of other trains that you had been riding in."

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The objection to this question was similarly sustained as calling for a conclusion. The husband testified that the chain (connecting the cars)" gave a terrible snatch," which was stricken out. In dismissing

Appellate Term, First Department, November, 1921. [Vol. 117.

the complaint for failure on the part of plaintiffs to prove negligence, the learned court said: "There is no evidence here which will show that this jerk was any more than the usual jerk which the plaintiff admits cars start with," and added: "I have stricken out the characterization of the jerk because the decisions compel me to do so."

Respondent's brief undertakes to sustain these rulings and this view by citing a number of cases in which complaints were dismissed where the plaintiff used similar phraseology, as "sudden stop," "violent jerk," "sudden jerk," etc. It may well be that the mere use of such a phrase is not conclusive upon defendant to establish negligence. The words "terrific jerk," however, have a very clear meaning to most minds, and there is no reason why plaintiff should be prevented from describing in ordinary human phraseology what she actually observed and to expatiate upon and explain it as she saw and felt it so that the jury may determine whether it was the result of negligence on the part of defendant or not. Similarly, of course, defendant is entitled to cross-examine the witnesses to ascertain the exact fact testified to. There is no fetish in the word " jerk " pro or con.

In the instant case plaintiff was prevented from testifying to the actual happening, first, in her own language, and next, in any terms which the appropriate question of her counsel might call for. In my opinion the phrases stricken out should have been allowed to stand and plaintiff should have been allowed to answer how the jerk which threw her differed from the ordinary starting jerk of a train, if it did. Hassen v. Nassau Elec. R. Co., 34 App. Div. 71; Brainard v. Nassau Elec. R. Co., 44 id. 613; Sheeron v. Coney Island, 78 id. 476; Futoransky v. Nassau Elec. R. Co., 169 id. 719;

Misc.] Appellate Term, First Department, November, 1921.

Starkman v. Interborough R. T. Co., 83 Misc. Rep. 62; Tompkins v. Interborough R. T. Co., 88 id. 20.

Judgments reversed and new trial granted, with costs to appellants to abide the event.

GUY and WAGNER, JJ., concur.
Judgments reversed.

RHINELANDER REAL ESTATE COMPANY, Respondent, v. MATTIE CAMMEYER, Individually and as Executrix of the Estate of ALFRED J. CAMMEYER, Deceased, and "CAMMEYER," Appellants.

(Supreme Court, Appellate Term, First Department, October Term - Filed November, 1921.)

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Landlord and tenant- constructive eviction - sub-tenant · render covenant to supply steam relates to premises and is impersonal when waiver of right to abandon premises will be submitted to a jury.

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A covenant in a lease to furnish live steam for the necessary use of the tenant in the conduct of its business. relates directly and exclusively to the premises demised and is altogether impersonal.

Defendants, the lessees of plaintiff's building for a term ending February 1, 1919, sublet one of the floors for a term ending simultaneously with the main lease and covenanted to supply their sub-tenant with steam in a certain amount and at a certain pressure. The main lease was cancelled by mutual consent and an agreement entered into by which defendants, in addition to the payment to plaintiff of certain sums at fixed intervals, guaranteed that the rentals of certain named tenants, including said sub-tenant, would be paid to plaintiff until the expiration of the lease. Beginning early in January, 1919, the complaint of the sub-tenant concerning a deficiency in the supply of live steam continued from time to time and was followed by plaintiff's promises of improvement. On August 26, 1918, the sub-tenant by letter formally notified plaintiff that

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