and 121 New York State Reporter SYMS v. AMERICAN AUTOMOBILE STORAGE CO. (Supreme Court, Appellate Term. March 24, 1904.) 1. MUNICIPAL COURTS-REMOVAL OF CAUSE-APPLICATION—TIME. Appeal from Municipal Court, Borough of Manhattan, Seventh Dis trict. Action by Parker Syms against American Automobile Storage Company. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Affirmed. Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ. C. Andrade, Jr., for appellant. Nicoll, Anable & Lindsay, for respondent. BLANCHARD, J. This action was brought to recover possession of an automobile, or its value, with damages for its detention. The appellant contends that the Municipal Court had no jurisdiction to try the action, because the amount of the damages claimed in the complaint is in excess of $500, although the value of the automobile is stated to be not more than $500. This objection was properly overruled in the Municipal Court, on the authority of Barnard v. Devine, 34 Misc. Rep. 182, 68 N. Y. Supp. 859. The appellant further contends that the order of the Municipal Court denying the defendant's motion for the removal of the action to the City Court was improper, and that such motion should have been granted, under section 3 of the Municipal Court Act (Laws 1902, p. 1490, c. 580), which reads as follows: * "Where the damages claimed or the value of the chattel claimed or all the chattels claimed, as stated in the complaint, exceeds two hundred and fifty dollars, the defendant may, after issue is joined and before an adjournment has been granted upon his application, apply for an order remov ing the action * * to the City Court of the city of New York." The facts in connection with this contention, as shown by the justice's return upon this appeal, are that on October 9, 1903-the return day mentioned in the summons-the parties appeared in court by their respective counsel; that a verified complaint was then and there filed; that then and there, upon joint consent of the counsel for the respective parties, the justice adjourned the cause until October 23, 1903; that issue was joined by the service upon plaintiff's attorneys of the verified answer on the 14th day of October, 1903; that on the adjourned day October 23, 1903-the defendant applied in open court for an order removing the action to the City Court of New York, and tendered. and filed a proper undertaking for that purpose; that the application was denied, and that the action was further adjourned from time to time until the 15th day of January, 1903, when the case was tried. From these facts it follows that, while the defendant's application was made after issue joined, it was not made before an adjournment had been granted upon his application, for the application was joined in and agreed to by both parties on October 9th, and was not an application of the defendant any more than it was that of the plaintiff. It was their joint application for an adjournment to a particular day, and for a particular purpose, namely, that the court should set the case down for trial on the particular day it had selected, namely, October 23d, and that the defendant should have leave to join issue in the meantime by filing his answer before the day set for trial. This adjournment by agreement to October 23d with leave to the defendant. to file his answer before that time was, in effect, the same as though the defendant had come into court on October 14th and then joined issue, and then joined with the plaintiff in an application to the justice for an adjournment to the 23d of October for trial. The defendant's action in respect to the adjournment to October 23d indicated his intention to submit to the jurisdiction of the Municipal Court for trial after he had joined issue and his desire to select that court as the proper forum for the trial of the action. The court had no power to grant the adjournment to October 23d, without the consent of the parties. The defendant's motion for removal of the action to the City Court was properly denied. Upon an examination of the testimony taken upon the trial the evidence fails to disclose any error calling for reversal. The disputed facts were properly submitted to the jury, and they appear to have arrived at a proper verdict. The judgment should be affirmed, with costs. All concur. DONALD et al. v. LAWSON. (Supreme Court, Appellate Term. March 24, 1904.) 1. AGENTS-REAL ESTATE BROKERS-COMPENSATION. Where an owner of real estate employed a firm of brokers to sell his property at auction, and the brokers advertised the property and did everything necessary to prepare for the sale, they were entitled to recover from the owner the reasonable value of their services, although they did not sell the property owing to its sale, the day before the auction, by the owner. Appeal from City Court of New York, Trial Term. Action by Robert W. Donald and others against Robert Lawson. From a judgment of the City Court for plaintiffs, defendant appeals. Affirmed. Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ. and 121 New York State Reporter Putney, Twombly & Putney, for appellant. BLANCHARD, J. This is an appeal by the defendant from a judgment of the City Court rendered in favor of the plaintiffs upon a verdict directed by the trial court. At the time this action arose, the plaintiffs' firm were real estate brokers, and maintained a real estate office. They were bonded and licensed auctioneers, and members of the real estate exchange. It is not disputed that the defendant employed the plaintiffs as such auctioneers to sell at public auction, on the floor of the exchange, a certain piece of real estate, agreeing to pay them for their services onequarter of 1 per cent. of what the property brought, and also their actual disbursements. The plaintiffs advertised the property for sale at auction, and appeared to have done all the work necessary and proper to prepare for the sale. On the day of the sale they were informed that the property in question had been sold the day before at private sale for thirty thousand three hundred dollars ($30,300). Thereafter they sent a bill to the defendant for their disbursements, and seventy-five dollars ($75), the reasonable value of the services they rendered. The defendant sent them a check covering the disbursements, but refused to pay for the services. The contention of the defendant is that, inasmuch as the property was not sold at auction, the plaintiffs did not perform the services they undertook to perform, and hence are not entitled to compensation. I am not aware that the law in respect to the services of auctioneers is different from that of other agents. In the absence of an express agreement as to compensation, they would seem to be entitled to recover the reasonable value of their services. In the case at bar the defendant availed himself of the use of the plaintiffs' establishment and professional functions, as well as their actual services in preparing for the sale and attending to the advertising, and the plaintiffs carved out their time and use of their privileges, as auctioneers in the exchange, an hour and day for the sale of the defendant's property, and I think they are entitled to a reasonable compensation therefor. The undisputed testimony is that the reasonable value of the services by the plaintiffs for defendant is seventy-five dollars ($75), and the court directed a verdict for that sum, with interest, amounting to $89. Upon the evidence, I think a direction for plaintiffs was proper. In the computation of the interest a mistake was made, and the judgment should be reduced in the sum of four dollars and fifty cents ($4.50), leaving the amount due at $84.50, and, as thus modified, affirmed, but without costs. All concur. LEVY V. FIDELITY & DEPOSIT CO. OF MARYLAND. (Supreme Court, Appellate Term. March 24, 1904.) 1. EVIDENCE-RECORDS OF COURT-IDENTIFICATION. It was error to receive in evidence, over objection, records of the court, with no other proof of identification than the word of counsel that they were the originals. 2. SAME-APPEAL-PRACTICE-ABANDONMENT OF APPEAL. Where an order extended the time for serving a case on appeal on certain conditions, the trial court had authority under the general rules of practice, on a showing that the condition had not been complied with, to make an order that the appeal be declared abandoned. 3. SAME DISMISSAL OF APPEAL. Where a motion to dismiss an appeal, on the ground that the terms imposed on the granting of an extension of time to serve the case on appeal had not been complied with, was denied on condition that appellant pay costs, etc., appellant having done so and had his case heard, his appeal from the order on the motion should be dismissed. Appeal from City Court of New York, Trial Term. Action by Morris Levy against the Fidelity & Deposit Company of Maryland. From a judgment for plaintiff, and from an order denying a motion to vacate a former order and to declare defendant's appeal abandoned. Reversed. Argued before FREEDMAN, P. J., and SCOTT and BLANCH- . ARD, JJ. Boardman, Platt & Soley (Louis H. Reynolds, of counsel), for appellant. Gustavus A. Rogers, for respondent. FREEDMAN, P. J. The plaintiff, as assignee of a judgment of the City Court in favor of one Marks Levy against George W. Klune, et al., brought this action upon an undertaking issued in that action by the Fidelity & Deposit Company of Maryland, conditioned for the payment of any judgment which the plaintiff in that action might obtain. The defendant's answer put the plaintiff upon strict proof of his case. The issues herein were tried by a justice of the City Court without a jury. The defendant offered no evidence, and the case was submitted to said justice for decision upon the proofs adduced by the plaintiff. Assuming that such proofs, if properly admitted sufficiently support the judgment rendered by said justice in favor of the plaintiff, the exceptions taken by the defendant to the admission of evidence, and to the findings of fact and conclusions of law of the justice, nevertheless raise the question whether a sufficient foundation was laid for the introduction of much of the documentary evidence submitted by the plaintiff. An order made by another justice awarding motion costs, an execution issued thereon, and the sheriff's return indorsed thereon, records of the Municipal Court, and the judgment of the City Court in Levy v. Klune, or, more correctly speaking, papers purporting to be such documents, were received in evidence against defend 11. See Evidence, vol. 20, Cent. Dig. § 15222. and 121 New York State Reporter ant's objection and exception, with no other proof of identification than the word of plaintiff's counsel that they were the originals. This was not sufficient. True, a court may always take cognizance of its own records, and such records, when properly identified or authenticated, are presumptive evidence of their contents. But there must be identification that they are original records, and that they were taken from the files of the court. In Chase's Edition of Stephen's Digest of the Law of Evidence (article 74) the rule is stated as follows: "The contents of any public document whatever may be proved by producing the document itself for inspection from proper custody, and identifying it as being what it professes to be." And in section 485 of Redfield's Edition of Greenleaf on Evidence it is said: "But they must be accompanied by proof that they come from the proper repository." Upon offering a public record in evidence, it is usual to place the clerk or officer having the custody thereof upon the stand to identify the record as the original thereof taken from the files of his office, and it is then, and only then, that the court can take cognizance of it, unless the preliminary proof was waived. In the case at bar there was no waiver, but an insistence upon strict proof, and, there being a defect of proof as pointed out, there must be a new trial. The point is available to the defendant upon the exception taken under the decisions of Halpin v. Phenix Ins. Co., 118 N. Y. 165, 23 N. E. 482, and Slattery v. Schwannecke, 118 N. Y. 543, 547, 23 N. .E. 922. The defendant also appealed from an order of the City Court dated January 15, 1904. The defendant having on November 30, 1903, obtained ex parte an order extending its time to serve a case on appeal from the judgment 20 days from December 5, 1903, although by order of the court it had previously had 30 days for that purpose, a motion was made by the plaintiff to vacate said order, on the ground that it had been procured in violation of rule 32 of the general rules of practice. On that motion an order was entered on December 15, 1903, denying the motion on conditions to be performed by the defendant. Upon affidavit claiming that such conditions had not been fully performed, the plaintiff then moved that the order of November 30th be vacated, and defendant's appeal from the judgment be declared abandoned and dismissed. Upon this motion the order appealed from was made. The said order denied plaintiff's motion on condition that $10 costs be paid to plaintiff's attorney and the appeal argued at the February term of this court, and then concluded, "and in default of the defendant to comply with each and both conditions aforesaid, then said motion be in all respects granted, with costs." The defendant paid the costs imposed, and now asks for a reversal of the order and restitution of the costs paid, on the sole ground that the order was made without jurisdiction, inasmuch as the motion to dismiss the appeal should have been made to the Appellate Term. This claim is untenable. True, a motion to dismiss an appeal must be made to the appellate tribunal. But the court of original jurisdiction has power. under the general rules of practice, to declare a case abandoned. This is an entirely distinct proceeding. So the court below clearly had the power to conditionally vacate, for cause shown, the order of No |