Sam Littman on this cause of action. Smith v. Weston, 159 N. Y. 195, 198, 54 N. E. 38. [2] As to the second cause of action, plaintiff admitted that there was no written assignment of the lease, which still had about a year and a half to run, but sought to charge the partnership on some theory of an implied assignment. I know of no authority for holding that, where the sole fact that appears is that during the term of a lessee some one else is also in possession of the premises, an assignment from the lessee to the other party will be implied. The rule is the contrary. Dey v. Greenbaum, 82 Hun, 533, 31 N. Y. Supp. 610, affirmed 152 N. Y. 641, 46 N. E. 1146; and this apart from any question as to the need of a written assignment under the statute of frauds for a lease having more than one year to run. There should, therefore, have been a similar direction of a verdict in favor of the defendants other than Sam Littman as to the second cause of action. There are a number of other errors in the matter of exclusion and admission of evidence and in the charge, over defendants' objection and exception, which would also require reversal. Judgment reversed, and new trial granted, with costs to appellants to abide the event. LEHMAN, J., concurs. GUY, J., concurs in the result. LEWIS v. EINHORN. (Supreme Court, Appellate Term. May 9, 1912.) LANDLORD AND TENANT (8 233*)—DIRECTION OF VERDICT. Where, in an action for rent, the evidence was conflicting as to the amount due, it was improper to direct a verdict for the plaintiff for the larger amount. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 940-944; Dec. Dig. § 233.*] Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Louis Lewis against Moses Einhorn. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Argued April term, 1912, before SEABURY, GUY, and GERARD, JJ. Myron S. Yochelson, of New York City, for appellant. GUY, J. The defendant, by an instrument in writing, assigned to the plaintiff the rents of a certain building in this city, owned by the defendant, as security for the sum of $450, claiming that there had been paid but $275 to apply upon this sum. The plaintiff sued for the balance, and, upon the trial, the justice in the court below directed a verdict in favor of the plaintiff for the sum of $175. A relative of the plaintiff, who had had charge of the plaintiff's matters in connection For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes with the assignment, testified in general terms, but without objection, that there had only been paid by the defendant the sum of $275, leaving a balance due the plaintiff of $175. Upon cross-examination, he was unable to state definitely the several payments made by the defendant. On the other hand, the defendant testified, also without objection, that he had paid "altogether the sum of $375, leaving a balance of but $75 due the plaintiff." He was equally as indefinite in his testimony as was the plaintiff, and was unable to state the several items constituting such payments, or the times they were made. There was, therefore, a question of fact presented for the consideration of the jury, and the direction of a verdict was improper. The judgment is therefore reversed, and a new trial ordered, with costs to appellant to abide the event. All concur. BRONX BOROUGH BANK v. GARMAN et al. (Supreme Court, Appellate Term. May 9, 1912.) BILLS AND NOTES (§ 238*)-DEFENSES-ACCOMMODATION NOTE. That a note was given for the accommodation of the plaintiff, and that the proceeds were used by the defendants at the plaintiff's request to pay for improvements upon premises belonging to the plaintiff, though held by it in the name of an agent, were good defenses to an action upon the note. [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 565, 566; Dec. Dig. § 238.*] Appeal from City Court of New York, Trial Term. Action by the Bronx Borough Bank against David Garman and another, impleaded with John Rendall. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered. Argued April Term, 1912, before SEABURY, GUY, and GERARD, JJ. Abraham Greenberg, of New York City (Henry W. Unger, of New York City, of counsel), for appellants. John H. Rogan, of New York City, for respondent. PER CURIAM. This action is brought upon a note made by defendant Rendall and indorsed by the appellants. The answer admits the indorsing of the note by the appellants, but denies that the maker of the note delivered it for value to these appellants, and denies the allegation of the complaint that these appellants, after indorsing the note, "for value received from this plaintiff, duly delivered said promissory note so indorsed to this plaintiff, who then became and ever since continued to be and is now the lawful owner and holder thereof." As further separate defenses, the answer alleges: "1. That the note itself and the indorsement by these appellants was for the accommodation of the plaintiff, and that no value or consideration therefor passed to these appellants. "2. That the plaintiff and its president were interested in certain real estate in the Bronx, upon which premises were then in the course of construcFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes tion by the maker of the note, Rendall, who was the agent and dummy of the plaintiff, and in whose name the title stood; that sums were due and owing to persons other than these appellants for work, labor, and material upon such premises; and that at the request of the plaintiff, and to enable the payment of the said moneys, and for the accommodation of the plaintiff and its said president, the note was made by Rendall and indorsed by these defendants, who, at the request of the plaintiff, did then and there apply the entire amount of said note and the proceeds thereof and said credit to the payment of the aforesaid sums so as aforesaid due, owing, and unpaid for work, labor, and materials furnished to and upon the said premises." These defenses, if established by competent proof, would have made out a good defense to the action. While it is possible that, on the trial, the proof offered by the appellants might fall short of establishing the facts set forth in these separate defenses, they must, for the purposes of this appeal, be deemed to have been proved, and, though the court below might properly have refused to entertain an offer of proof, the offer having been entertained, the ruling thereon, which in effect excluded all evidence as to the matters set forth in the two separate defenses, was erroneous, and makes the reversal of the judgment nec essary. The judgment is therefore reversed, and a new trial ordered, with costs to appellants to abide the event. MARSHALL v. GOODMAN. (Supreme Court, Appellate Term. May 9, 1912.) BROKERS (54*)-FAILURE TO COMPLETE TRANSACTION-REFUSAL OF PRINCIPAL-ABILITY OF OTHER PARTY. Where a broker has been employed to sell on terms fixed by the seller, he cannot recover commissions on a mere refusal of the seller to go on with negotiations, without showing that the buyer produced by him was ready, able, and willing to purchase on those terms. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. § 54.*] Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by Morgan Marshall against Raymond Goodman. From a judgment entered in favor of the plaintiff in the Municipal Court of the City of New York after a trial before the court without a jury, defendant appeals. Reversed, and new trial ordered. Argued April term, 1912, before SEABURY, GUY and GERARD, JJ. Isidor Cohn, of New York City, for appellant. Milton J. Gordon, of New York City, for respondent. GERARD, J. This action was brought by plaintiff, a real estate broker, to recover his commissions for procuring a purchaser for the defendant's liquor store and business. The plaintiff claimed employment to sell for $5,600, and that he produced a purchaser, one Ploghaft, able, ready, and willing to purchase. On the day when it is al *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes leged that Ploghaft was in plaintiff's office ready to close, the defendant came in and said that he had reconsidered and would not sell. A broker cannot recover commissions on the mere refusal of the owner to go on with negotiations. It is a necessary element of the broker's affirmative case for him to prove that the purchaser produced by him is ready, able, and willing to purchase on the terms given to the broker by his principal. Schnitzer v. Price, 122 App. Div. 409, 106 N. Y. Supp. 767; Alt v. Doscher, 102 App. Div. 344, 92 N. Y. Supp. 439; Inge v. McCreery, 60 App. Div. 557, 69 N. Y. Supp. 1052. The evidence here shows that Ploghaft, or his wife, did not have the purchase price. They had $2,100 in cash, and expected to raise the balance by a mortgage; but there was no proof whatever that they could do so. When no enforceable contract has been made between the seller and the buyer, but the seller who has employed the broker refuses to sell on the terms named by him, the broker must show as a prerequisite to recovery that the purchaser proposed by him is not only willing, but able, to purchase on the terms proposed. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur. TRAITEL MARBLE CO. v. BROWN BROS., Inc. (Supreme Court, Appellate Term. May 9, 1912.) CONTRACTS ( 284*)-MODIFICATION-BUILDING CONTRACT. Under a building contract, providing that no alterations should be made in the work, except on the written order of the architect, an alteration made on the architect's verbal order was unauthorized. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1292-1302, 1308-1317, 1326-1338, 1340-1346, 1350, 1351; Dec. Dig. § 284.*] Appeal from City Court of New York, Trial Term. Action by the Traitel Marble Company against Brown Bros., Incorporated. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Argued April term, 1912, before SEABURY, GUY, and GERARD, JJ. Gannon, Seibert & Riggs, of New York City (Royal E. T. Riggs, of New York City, of counsel), for appellant. Norbert Heinsheimer, of New York City, for respondent. SEABURY, J. This action was brought to recover a balance of $1,022.34 alleged to be due from the defendant for materials furnished and labor performed under a written contract between the plaintiff corporation and defendant corporation. Under the contract the plaintiff agreed to "provide all the materials and perform all the work for the necessary completion of all tiling in apartment houses to be erected at northeast corner of 158th street and Riverside Drive, in accordance with the acceptance attached, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes and as shown on the drawings and described in the specifications prepared by Floyd de L. Brown, architect," etc. The contract further provides that: "No alterations shall be made in the work, except upon the written order of the architect." Attached to the contract is a letter of acceptance forming part thereof, which provides that the plaintiff was to furnish for the public halls and one roof landing hydraulic tile. The plaintiff laid tile known as "quarry" tile, instead of the "hydraulic" tile called for in the contract. The evidence shows, and the jury have found, that the architect consented to the substitution of the "quarry" tile for the "hydraulic" tile. It is clear, however, from the evidence, that no written order of the architect was made sanctioning the alteration, and that the defendant never ratified or confirmed the action of the architect. The authority of the architect was expressly limited by the contract to such orders as he should give in writing, and as agent he could not enlarge his own powers by increasing the limitation which the written contract had placed upon them. Langley v. Rouss, 185 N. Y. 201, 77 N. E. 1168, 7 Ann. Cas. 210. The plaintiff sues upon the written contract, and, as the proof shows that the work was not done in accordance with the contract, it follows that the plaintiff can not recover. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur. BADT v. MILLER et al. (Supreme Court, Appellate Division, First Department. May 3, 1912.) BILLS AND NOTES (§ 469*)-ACTIONS-PLEADING-SUFFICIENCY. A complaint in an action on a note against an indorser, which alleges due notice of dishonor to the indorser, is sufficient, without an allegation that notice of presentment, dishonor, and protest was given to the maker. [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 14941502; Dec. Dig. § 469.*] Appeal from Special Term, New York County. Action by Edward Badt against Thompson W. Miller and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed, and judgment for plaintiff on the pleadings granted. Argued before INGRAHAM, P. J., and LAUGHLIN, SCOTT, MILLER, and DOWLING, JJ. William Badt, of New York City, for appellant. MILLER, J. The complaint alleges the making of a promissory note by the defendant Daniel J. Meyer to the order of, and its delivery for value to, the defendant John J. Carroll; the indorsement thereof by the defendants Marguerita T. Meyer and Fred C. Meyer before *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |