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and 121 New York State Reporter

KLINKER et al. v. GUGGENHEIMER.

(Supreme Court, Appellate Term. March 24, 1904.) 1. LANDLORD AND TENANT-LIABILITY FOR RENT-DEFENSES- EVICTION.

Eviction, to constitute a valid defense to a landlord's claim for rent, must take place before the rent falls due.

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

Action by William H. Klinker and Louis Stahl against Adelaide E. Guggenheimer. From a judgment for defendant, plaintiffs appeal. Reversed.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Frank Herwig, for appellants.
Charles E. Le Barbier, for respondent.

BLANCHARD, J. The plaintiffs and defendant entered into a written agreement, whereby the plaintiffs rented to the defendant certain premises owned by the plaintiffs in the city of New York. The term of the lease was 11 months from the 15th day of November, 1903, at a monthly rental of $45, payable in advance. The defendant took possession of the premises pursuant to the lease, and left them on the morning of the 16th of January, 1904, after having paid two months' rent, claiming an eviction on account of cold and annoyance. She did not return the keys until several days thereafter.

This action was brought to recover the monthly rent of $45, which became due under the lease on January 15, 1904. The defendant alleged an eviction, and offered proof in support of her contention, and the court below gave judgment in her favor, from which judgment plaintiffs appealed.

It is not disputed that the rent sued for became due on the 15th day of January, 1904; that on that day the defendant was in possession of the premises; that she did not move out of them until the 16th day of January, 1904, and kept the keys of the premises several days thereafter. It thus appears beyond question that the rent for which the action was brought became due before the defendant was evicted. It is the well-settled law of this state that, in order to make eviction a valid defense against a landlord's claim for rent, it must take place before the rent falls due. In the case of Giles v. Comstock, 4 N. Y. 270-275, 53 Am. Dec. 374, the court says: “The doctrine everywhere running through the books is that, to render eviction from the premises a valid defense, it must have taken place before the rent became due.” In the case of Gugel v. Isaacs, 21 App. Div. 503, 48 N. Y. Supp. 594, Mr. Justice Van Brunt writing (after citing Giles v. Comstock, supra), says: “The rule is distinctly laid down that, to bar an action for rent, the eviction must take place before the rent becomes due. * * *” The question is as stated in that case, “When did the rent become due and the right of action

11. See Landlord and Tenant, vol. 32, Cent. Dig. $ 767.

arise?" This case does not come within the rule laid down in the case of O'Gorman v. Harby, 18 Misc. Rep. 228, 41 N. Y. Supp. 521, cited by the defendant, as no counterclaim for the value of the premises after removal was pleaded, nor was there any proof offered in support of such counterclaim.

Judgment must be reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.

JENNINGS v. CARLUCCI et al.

(Supreme Court, Appellate Term. March 24, 1904.) 1. NEGOTIABLE INSTRUMENTS-STATUTE-BONA FIDE HOLDER AFTER MATURITY

-DEFENSES.

The Negotiable Instruments Law, § 97 (Laws 1897, p. 732, c. 612), provides that in the hands of any holder other than a holder in due course a negotiable instrument is subject to the same defenses as if it were nonnegotiable, but that the holder who derives his title from a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to the latter. Held, that where a note was indorsed by the payee to another and by three successive holders before it was acquired by plaintiff, and the indorser to plaintiff was a bona fide holder of the note, and transferred it for value, after maturity, to the plaintiff, defenses available as between the original parties were not available against plaintiff.

Appeal from City Court of New York, Trial Term.

Action by Clarkson Jennings against Frederick Carlucci and another. From a judgment for plaintiff and an order denying a motion for new trial, defendants appeal. Affirmed.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Menken Bros., for appellants.
Otto Droege, for respondent.

BLANCHARD, J. This action was brought to recover the amount due on a promissory note made by the defendant Gaggiano to one Bell, and indorsed by the defendant Carlucci and as so indorsed delivered to said Bell. The note was thereafter indorsed by Bell, without recourse, to A. Lambertti, who indorsed it to P. J. Lambertti, who indorsed it to Di Lorenzo. The evidence established the facts that Di Lorenzo was a bona fide holder of the said note; that he acquired it in due course, and for value, before maturity; that he transferred it for value, after maturity, to the plaintiff. The defendants, by their answers, interposed certain defenses which might have been available as between the original parties to the note. But Di Lorenzo, being a bona fide holder of the said note in due course, and for value, took the note without any infirmity attaching thereto, and his title to it appears to have been perfect. The same title passed to the plaintiff upon the transfer of the note to him by Di Lorenzo for value. Neg. Inst.

11. See Bills and Notes, vol. 7, Cent. Dig. & 939.

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and 121 New York State Reporter Law, $ 97 (Laws 1897, p. 732, c. 612); Weems v. Shaughnessy, 70 Hun, 175, 24 N. Y. Supp. 271. The exceptions of the defendants are without merit.

The judgment and order appealed from should be affirmed, with costs. All concur.

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LACHENBRUCH v. CUSHMAN et al. .

(Supreme Court, Appellate Term. March 24, 1904.) 1. NEGLIGENCE OF SERVANT-INJURIES TO THIRD PERSONS-PLEADING-BILL OF PARTICULARS.

In an action for injuries to a person by being struck by a wagon driven by one of defendants' servants, defendants were entitled to a bill of particulars showing which of their wagons and drivers were concerned in the accident, a description of the wagon and the horse or horses as near as

possible, together with the injuries which plaintiff claims to be permanent 2. SAME-MOTION TO MAKE MORE DEFINITE AND CERTAIN.

Where the injuries sued for were indefinitely stated, defendants' remedy was by motion to make the complaint more definite and certain, or by application for a physical examination, and not by motion for a bill of par

ticulars.
3. SAME-RATE OF SPEED.

In an action for injuries to plaintiff by being struck by a wagon driven by defendants servant, the rate of speed of the wagon is a matter of evi

dence, and need not be pleaded.
Appeal from City Court of New York, Special Term.

Action by Hugo Lachenbruch against Lewis Cushman and another. From an order of the City Court granting a motion for a bill of particulars, defendants appeal. Modified.

Argued before FREEDMAN, P. J., and SCOTT and BLANCH-
ARD, JJ.

Clarence D. W. Rogers, for appellants.
Abraham Oberstein, for respondent.

SCOTT, J. The defendants are entitled to fuller particulars than the order appealed from gives them, but are by no means entitled to all they ask. They should have such information as will enable them to ascertain which of their wagons and drivers were concerned in the accident, and otherwise to be protected against surprises at the trial. To this end they should be apprised of the exact time and place at which the accident is alleged to have occurred, and should be given, so nearly as the plaintiff can give it, a description of the wagon and horse or horses. If the plaintiff is unable for any reason to give a full description, he should give as complete a description as possible, and explain by affidavit why he cannot be more precise. If the accident really occurred as alleged, the plaintiff should have no difficulty in giving these particulars. The plaintiff should also state what injuries are claimed to be permanent. The plaintiff should not be required to enumerate his other injuries, although the statement respecting them in the complaint is exceedingly broad and indefinite. The defendants' remedy is a motion to make the complaint more definite and certain, or an application for a physical examination. English v. Westchester EI. R. Co., 69 App. Div. 576, 75 N. Y. Supp. 45. The allegations of the complaint concerning the acts charged as constituting negligence are quite specific, and no further particulars should be ordered in respect thereto. The rate of speed at which the wagon was traveling is a matter of evidence. In the regards mentioned the order appealed from should be modified, and, as modified, affirmed, without costs.

Order modified, as indicated, and, as modified, affirmed without costs. All concur.

FIDELITY & CASUALTY CO. OF NEW YORK v. WENDELL & EVANS CO.

(Supreme Court, Appellate Term. March 24, 1904.) 1. INDEMNITY INSURANCE – PREMIUMS - INSPECTION OF BOOKS — EXTENT OF

RIGHT.

Where defendant affirmed the truthfulness of the statement furnished to plaintiff on which the premiums for indemnity policies should be calculated, and offered plaintiff's accountant full opportunity to inspect its timebooks constituting the original entry showing the wages paid to its employés in detail, and its bookkeeper positively testified that the other books which plaintiff sought to examine did not contain detailed entries of the amounts paid employés, and plaintiff did not show the information it had received which had caused it to doubt the accuracy of defendant's statement, nor aver any fact tending to show that any information could be obtained from the other books which would not appear from the timebooks, plaintiff was not entitled to an order for the inspection of the other books, though entitled to an inspection to determine the wages

actually paid by defendant. Appeal from City Court of New York, Special Term.

Action by the Fidelity & Casualty Company of New York against the Wendell & Evans Company. From an order granting insufficient relief, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Nadal & Carrere (Charles C. Nadal and William D. Stiger, of counsel), for appellant.

Parker & Aaron (Loren D. Wood, of counsel), for respondent.

SCOTT, J. The case of the Fidelity & Casualty Company v. Seagrist, 79 App. Div. 614, 80 N. Y. Supp. 277, is authority for the proposition that under certain circumstances an order such as the plaintiff asked for in this action should be granted. But it is also authority for the further proposition that such an order should only be made to apply to an inspection of the books necessary to determine the wages actually paid, and that the books of original entry in which are entered the payments made to employés were the only books which the plaintiff is entitled to inspect. In that case the defendant did not deny that the statements made by it as to wages paid were untrue, and refused to permit any examination whatever of any of its books. In the present case the defendant distinctly affirms the truthfulness of the statements furnished to plaintiff upon which the premiums were calculated. It has offered to plaintiff's accountant full opportunity to inspect the defendant's timebooks, which are said to be the books of original entry and 121 New York State Reporter showing the wages paid to its employés in detail. The defendant's bookkeeper swears positively that the other books which the plaintiff seeks to examine will not give the information desired, and do not contain detailed entries of the amounts paid employés. The plaintiff does not show what information it has received which has caused it to doubt the accuracy of defendant's statements, and does not state any fact showing or tending to show that any information can be obtained from the other books of defendant which will not appear from an inspection of the timebooks.

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The order was right, and should be affirmed, with $10 costs and disbursements. All concur.

HOLZMAN V. KATZMAN et al.
(Supreme Court, Appellate Term. March 24, 1904.)

1. BUILDINGS-CONSTRUCTION-STATUTORY REGULATIONS.

Laws 1897, c. 415, $ 20, as amended by Laws 1899, p. 351, C. 192, provides that all contractors and owners, when constructing buildings in cities, the plans and specifications for which require the floors to be arched between the beams thereof, or where the floors, or filling in be tween the floors, are of fireproof material or brickwork, shall complete the flooring or filling in as the building progresses, to not less than within three tiers of beams below that on which the ironwork is being erected, and, if the plans and specifications do not require the filling to be of fireproof material, all contractors for carpenter work shall lay the underflooring of each story as the building progresses to not less than two stories below the one to which the building has been erected. Held. that the division of buildings as to which the act was applicable depended not on whether the beams were iron or wooden, but whether the filling

between the beams' was to be of fireproof material. 2. SAME-INJURIES-STATUTES-FAILURE TO COMPLY-NEGLIGENCE.

Where plaintiff's injury was the proximate result of defendant's failure to comply with Laws 1897, c. 415, 8 20, as amended by Laws 1899, p. 351, c. 192, requiring building contractors to complete the flooring or filling as the building progresses within three tiers of beams below that on which the ironwork is being erected, when the filling between the floors is to be of fireproof material, defendant was liable for such injury.

Appeal from City Court of New York, Trial Term.

Action by Samuel Holzman against John Katzman, impleaded with others. From a judgment in favor of plaintiff against all defendants, and from an order denying defendant Katzman's motion for a new trial, he appeals. Affirmed.

See 84 N. Y. Supp. 250.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Nadal, Smyth & Carrere (Edward P. Mowton, of counsel), for appellant.

Morris Cukor, for respondent.

12. See Master and Servant, vol. 34, Cent. Dig. & 177.

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