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was not in itself an act of negligence, nor might the fact that water came into the car constitute negligence on the part of the defendant. But it seems quite plain that the cause of the trapdoor springing up so violently was the great force with which the car was brought in contact with the body of water then flooding the spot in question. If the motorman was bound to anticipate the presence of water on the street at that place, as it usually happened after a heavy rainstorm, then it is a question whether it was the exercise of due care for him to drive his car into that body of water under such circumstances as to bring about a violent contact with it.

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

(76 Misc. Rep. 438.)

SEVENTY-EIGHTH STREET & BROADWAY CO. v. ARCHES et al. (Supreme Court, Appellate Term. May 9, 1912.)

JUDGMENT ( 725*)-RES JUDICATA-QUESTIONS CONCLUDED.

A final order in summary proceedings to dispossess the tenant is res judicata on the issues whether the tenant continued in possession and whether he defaulted in the payment of the rent reserved, and the tenant may not in a subsequent action for the rent set up the defense of partial eviction.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1255–1257; Dec. Dig. $ 725.*]

Appeal from Municipal Court, Borough of Manhattan, Fifth Dis

trict.

Action by the Seventy-Eighth Street & Broadway Company against Mary Arches and another. From a judgment for defendants on their counterclaim, entered on the verdict of a jury in the Municipal Court of the City of New York, plaintiff appeals. Reversed, and new trial ordered.

Argued April term, 1912, before SEABURY, GUY, and GERARD, JJ.

Maurice Nagler, of New York City, for appellant.
Bernard Gordon, of New York City, for respondents.

SEABURY, J. This is an action for rent. The defendants pleaded a counterclaim for damages for an alleged partial eviction. Against the defendants' counterclaim, the plaintiff relied upon a final order heretofore made in favor of the plaintiff and against these defendants in summary proceedings. This final order was res adjudicata upon the issue as to whether the defendants, as tenants, continued in possession of the premises, and as to whether the defendants defaulted in the payment of the rent reserved. Reich v. Cochran, 151 N. Y. 122, 45 N. E. 367, 37 L. R. A. 805, 56 Am. St. Rep. 607; Meyerhoffer v. Baker, 121 App. Div. 797, 106 N. Y. Supp. 718. If the defendants had been evicted, it is clear that they could not have continued in possession, and that rent was not due. To allow the defendants now to set up the defense of eviction is to permit them to conFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

trovert facts essential to the plaintiff's right to the final order. The direct converse of what these defendants have been permitted to prove was conclusively established by the final order.

It follows that the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

(76 Misc. Rep. 446.)

MILLS et al. v. KNICKERBOCKER HAT CO.

(Supreme Court, Appellate Term. May 9, 1912.)

SALES (153*)—Tender-Waiver.

Actual tender of goods sold is waived by the buyer writing the seller that those already shipped are too narrow, and directing cancellation of the balance of the order, and thereafter inspecting, at the seller's place of business, the goods constituting such balance, and rejecting them as too narrow.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 358-366; Dec. Dig. § 153.*]

Appeal from City Court of New York, Trial Term.

Action by L. Heyworth Mills and others, copartners trading as Mills & Duflot, against the Knickerbocker Hat Company. From a judgment for defendant, plaintiffs appeal. Reversed, and new trial ordered.

Argued April term, 1912, before SEABURY, GUY, and GERARD, JJ.

Everett, Clark, Benedict & Ward of New York City (A. Leo Everett, of New York City, of counsel), for appellants. Jacob Gordon, of New York City, for respondent.

GUY, J. Plaintiffs appeal from a judgment dismissing the complaint in an action brought for the purchase price of a quantity of black poiluchon, which, by a written contract, defendant agreed to purchase from plaintiffs' assignors; the deliveries to be made in certain quantities and upon certain dates specified in the contract. Several installments of the goods were delivered between April 25, 1910, and June 20, 1910, and, though some disputes arose in connection with said deliveries, matters were finally adjusted between the parties and the goods retained by the defendant. This controversy arose over the installment which, under the contract, was to have been delivered on July 15, 1910. As to this lot of goods, the answer alleges that they were not of the width agreed upon, that due tender was not made, and that the contract was canceled on July 15, 1910.

No sufficient proof was introduced by defendant of the cancellation of the contract. Plaintiffs failed to prove an actual tender of the goods. There was evidence introduced, however, to the effect that, subsequent to July 15th, the president of the defendant company examined the goods in question at plaintiffs' place of business, claimed that they were of insufficient width, and rejected them on that ground. There was

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

also introduced in evidence a letter from defendant to plaintiffs, dated July 14, 1910, which read, in part, as follows:

"The lot of goods received to-day runs narrow, the same as the last shipment, about which we notified you on June 30th, and which we are unable to use. Kindly cancel the balance of this order."

To which plaintiffs replied, by letter of July 15th, as follows:

*

*

*

"Replying to your favor of the 14th inst., we are greatly surprised at the bad faith you put in the matter. Furthermore, we serve notice upon you that we hold subject to your instructions the rest of your order, as per your signed copy to us."

Notwithstanding this evidence, the learned trial judge, at the close of the case, dismissed the case, on the ground that there was not sufficient proof of tender, and that, in the absence of proof of actual physical tender of the goods at defendant's place of business, the plaintiffs were not entitled to recover. The dismissal of the complaint on this ground was error. The letter of July 14th, and the subsequent rejection of the goods, after inspection, on the specific ground that they were not of sufficient width, constituted a waiver of tender. Littlejohn v. Shaw, 159 N. Y. 188, 53 N. E. 810.

"When the refusal to accept purchased goods is based upon particular objections, formulated and deliberately stated, all other objections are deemed to be waived, and the vendor, to recover the price, need only prove compliance with the contract of sale in the particulars covered by the stated objections." Hess v. Kaufherr, 128 App. Div. 526, 112 N. Y. Supp. 832; Shaw v. Republic Life Ins. Co., 69 N. Y. 286: Windmuller v. Pope, 107 N. Y. 674, 14 N. E. 436. "Whether the repudiation gives rise to a cause of action or not, it unquestionably excuses the injured party from further performance." Williston on Sales, § 586.

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

RETAILERS' REPORTING SERVICE v. TANZER-MONJO CO.
(Supreme Court, Appellate Term. May 9, 1912.)

CONTRACTS (§ 346*)—ACTION FOR BREACH-PROOF AS TO WAIVER.

In an action on a written contract, where defendant contends that a certain provision was not carried out by plaintiff, the latter cannot prove a waiver of performance unless it pleads such waiver.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1718-1753; Dec. Dig. § 346.*]

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by the Retailers' Reporting Service against the TanzerMonjo Company. From a judgment of the Municipal Court of the City of New York in favor of the plaintiff, 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.

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date. & Rep'r Indexes

Raphael Link, of New York City, for appellant.

Louis Alexander, of New York City, for respondent.

GERARD, J. The plaintiff seeks to recover on a written contract as follows:

Retailers' Reporting Service, Masonic Bldg., New York City, 24th St. & 6th Ave. Tel. 4774 Gramercy.

Aug. 19, 1911. Gentlemen: Make up with your service one report for us once a month regularly, for (2) consecutive months, beginning September, for which we agree to pay you $30. immediately after publication of each report. We have the privilege of furnishing new copy for each report if we so desire. Otherwise you are not to change copy for subsequent reports. All drawings and electrotypes to be made at the expense of Retailers' Reporting Service. It is agreed that you are not responsible for any statements or conditions not expressed in this order.

We accept the above offer.

Retailers' Reporting Service,

E 2/ J. Moss, Agent.

Tanzer-Monjo Co., by Albert Tanzer, Pres.

It is agreed that the Retailers' Reporting Service will furnish a card of introduction to their merchandise manager, Mr. Frederick Atkins, 31 Union Square. Retailers' Reporting Service have the privilege of canceling this contract if the merchandise is not passed by Mr. Frederick Atkins, as being good value. 9 W. 20th.

Plaintiff alleged that it has complied with all the terms and conditions of the above contract. At the trial the defendant proved that the plaintiff did not furnish to defendant a card of introduction to Mr. Frederick Atkins (a resident buyer), as provided in the contract. Plaintiff gave evidence tending to show that, after the contract was entered into, the defendant learned that Atkins was not plaintiff's merchandise manager, and, nevertheless, advised the plaintiff, through defendant's duly authorized agent, to go ahead with the contract. It is claimed by plaintiff that this was a waiver of the provision of the contract that the defendant was to receive a card of introduction to Mr. Frederick Atkins. But, if this was a waiver, it was not pleaded. A waiver of performance must be pleaded. Williams v. Fire Association, 119 App. Div. 573, 104 N. Y. Supp. 100; also see La Chicotte v. Richmond Company, 15 App. Div. 380, 44 N. Y. Supp. 45; Schnaier v. Nathan, 31 App. Div. 225, 52 N. Y. Supp. 812. While great liberality is allowed in the Municipal Court in matters of pleading, the defendant here was called to meet a different issue than that presented by the pleadings.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

LANDAUER v. LITTMAN et al.

(Supreme Court, Appellate Term. May 3, 1912.)

1. PARTNERSHIP (§ 146*)—REPRESENTATION BY PARTNER-NEGOTIABLE INSTRU

MENT.

Where a note, signed in a partnership name, was given in part renewal of an individual note of one of the partners, given several months prior to the formation of the partnership, and was not shown to be for its benefit, no recovery thereon against the members of the partnership, other than the signer, was warranted.

[Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 242-255; Dec. Dig. § 146.*]

2. LANDLORD and Tenant (§ 801⁄2*)—ASSIGNMENT OF LEASE-IMPLIED ASSIGN

MENT.

An assignment of a lease, which has more than 1%1⁄2 years to run, will not be implied from the fact that during the term of the lessee another is also in possession of the premises.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. § 231; Dec. Dig. § 802.*]

Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Action by Mamie Landauer against Sam Littman and others. From a judgment for plaintiff, defendants appeal. Reversed, and new trial granted.

Argued March term, 1912, before GUY, LEHMAN, and BIJUR, JJ.

Bernard Gordon, of New York City, for appellants.

James, Schell & Elkus, of New York City (Joseph M. Proskauer and William B. Devoe, both of New York City, of counsel), for respondent.

BIJUR, J. Plaintiff sues on two causes of action: (1) A note for $237.50, dated July 6, 1911, due one month after date, and signed "S. Littman & Co." (2) Rent, $162.52, due August 1st, for the month of August, 1911, of a loft in plaintiff's building, alleged to have been occupied by defendants.

[1] It appeared without contradiction that the note in suit was given in part renewal of a previous note to plaintiff, dated March 2, 1911, for $487.50, due four months after date, and signed by S. Littman individually, and that this note was for rent of the same loft for the months of April, May, and June, and that it was given at least several months prior to the formation of any partnership with the other defendants. Under these circumstances, the burden fell upon plaintiff to show that the firm note sued upon, and which was admittedly signed and given by defendant, Sam Littman, was for the benefit of the partnership, a fact which, it may as well be pointed out, seems to be practically impossible of proof on the record. As the testimony stood at the close of plaintiff's case, there should have been a direction of a verdict in favor of the two defendants other than •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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