to do. It should have prevented the elevated railroad from placing its pillars in a place where they would injure persons riding on defendant's cars who prudently and carefully did so, or else should have removed its rails further away from such pillars, or so constructed the platforms on its cars as to permit its passengers to use them without harm from such dangerous things. This duty defendant owed its passengers. A failure to do so I think constituted negligence on defendant's part, because of the length of time that said pillars and defendant's road occupied their present positions. Concerning the alleged contributory negligence of plaintiff, the plaintiff had a right to a seat in defendant's car; in fact it was his duty to take one as soon as possible. When he boarded it all the seats were occupied. He was compelled to stand on the rear platform. At the moment when a passenger having a seat left the car, plaintiff exercised his right to have a seat by proceeding along the cnly passageway from the place where he stood to the vacated seat. Whether or not he did so in a careful or careless manner, particularly in view of the facts above recited, and, in addition, that it was nighttime, and he was not familiar with that part of the defendant's road, and that he had a right to assume that it was free and clear from all danger, was a question of fact for the jury to determine, and not a question of law for the court to decide. For these reasons I think that the judgment should be reversed, and a new trial ordered, with costs to appellant to abide event. (7 Misc. Rep. 237.) HIRT et al. v. VINCENT et al. (City Court of New York, General Term. February 8, 1894.) NEGOTIABLE INSTRUMENTS-BONA FIDE PURCHASERS. One who discharges a lien on land in consideration of a note is a bona fide holder. Appeal from trial term. Action by August T. Hirt and others against Passie M. Vincent, impleaded, etc. From a judgment entered on a verdict in favor of plaintiffs, defendant Vincent appeals. Affirmed. Argued before EHRLICH, C. J., and VAN WYCK and FITZSIMONS, JJ. Johnston & Johnston, for appellant. J. P. Campbell, for respondents. EHRLICH, C. J. The plaintiff discharged a lien which he had on certain real estate, in consideration of the note in suit, and thereby became a bona fide holder of said note, and there was no defense to the same in his hands. The proofs as to the diligence in serving the notice of protest went to the jury, who found for the plaintiff on evidence satisfactorily sustaining the conclusion reached. There is no merit in the appeal, and the judgment must be affirmed, with costs. All concur. (7 Misc. Rep. 254.) CURTIS v. RITZMAN. (City Court of New York, General Term. February 8, 1894.) 1. DAMAGES-BREACH OF CONTRACT. Defendant leased a store room to plaintiff, and agreed that the adjoining store room "should not be rented or used for the sale of the same kind of goods." Afterwards, defendant rented the adjoining room without restricting the lessee as to the use. Held that, unless special damages were alleged, plaintiff could only recover nominal damages for the breach of the contract. 2. SAME-PRACTICE. Where a complaint states merely a technical cause of action, in which only nominal damages could be recovered, it is error to overrule a demurrer, with leave to answer on payment of costs. 8. APPEAL-POWER OF GENERAL TERM. The general term of a court may, on appeal, make such order as the court below should have made. Appeal from special term. Action by Louis Curtis against Charles L. Ritzman for breach of contract. From an interlocutory judgment entered on an order overruling a demurrer to the complaint, defendant appeals. Re versed. Argued before EHRLICH, C. J., and FITZSIMONS, J. J. George Flammer, for appellant. E. F. Bullard, for respondent. EHRLICH, C. J. The gravamen of the complaint is that the defendant let the west side of a store to the plaintiff for sale of furniture, carpets, etc., and agreed that the store on the east side "should not be rented or used for the sale of the same kind of goods." As a breach, the complaint alleges that the defendant subsequently rented the east store to one Harrington, "without restricting" him as agreed, and that Harrington used the store to sell goods of the same character as sold by the plaintiff, whereby "the plaintiff was unable to sell his goods as he had theretofore done," to his damage $2,000. There is no pretence that the defendant used the place for the rival business, or knowingly let it therefor, but merely that he failed to "restrict" Harrington, who injured him, etc. The damages recoverable for such a breach would be nominal, merely, in the absence of a claim for special damages, and there is no such claim. Sedg. Dam. (6th Ed.) p. 731, note; Parsons v. Sutton, 66 N. Y. 92. If the plaintiff has any action, it is a technical one, merely; and if the court below had sustained the demurrer a reversal would not have been granted, in such a case, to enable the plaintiff to recover nominal damages only. Patton v. Hamilton, 12 Ind. 256; Hudspeth v. Allen. 26 Ind. 165. The general term of the same court may on appeal make the order which ought to have been made below. The court at special term overruled the demurrer, and permitted the defendant to answer over on payment of $15 costs. But why prolong a litigation, and compel the defendant to pay $15 costs in a 6-cent case, where that is the limit of the recovery? We think the interlocutory judgment and order ought to be reversed, without costs, (except as hereinafter mentioned,) and the demurrer sustained, with liberty to the plaintiff to amend his complaint by pleading special damages, or any other material allegation, on paying the disbursements incurred on this appeal. (7 Misc. Rep. 237.) HOFFMANN v. KANZE. (City Court of New York, General Term. February 8, 1894.) EXECUTORS AND ADMINISTRATORS-FUNERAL EXPENSES-LIABILITY OF WIDOW. Where a widow orders the funeral of her husband before taking out letters of administration, she is individually liable, unless it was specially agreed to the contrary. Appeal from trial term. Action by Joseph A. Hoffmann against Clara Kanze. From a judgment entered on a verdict in favor of defendant, plaintiff appeals. Reversed. Argued before EHRLICH, C. J., and VAN WYCK and FITZSIMONS, JJ. George A. Baker, for appellant. Langbein Bros. & Langbein, for respondent. EHRLICH, C. J. The rule is settled that funeral expenses for the burial of the husband are collectible from the widow if the funeral was given on her credit. Lucas v. Hessen, 17 Abb. N. C. 271. The funeral was ordered January 7, 1893, and the defendant did not administer until the 9th of November following; so that, in the nature of things, the defendant individually was the person to whom the credit was given, for the estate of the deceased at that time had no legal representative. The charge of the trial judge was to the effect that if, at the time of ordering the goods, there was no contract as to who should pay for them, the plaintiff had a right to claim payment out of the estate, and could not claim it as against the defendant. This was clear error. He should have charged the jury that the defendant, who gave the order for the goods, was personally liable therefor, unless there was a special understanding by the plaintiff not to look to her individually, but to look to the estate of the husband after she had been appointed to represent it. For these reasons the judgment appealed from must be reversed, with costs to the appellant to abide the event, and a new trial ordered. All concur. (City Court of New York, General Term. February 8, 1894.) PLEADING-STRIKING OUT ANSWER AS SHAM. An answer which denies an allegation of the complaint that the note sued on was indorsed and delivered by the payee denies a material fact, and will not be stricken out as sham. Appeal from special term. Action by William H. Martens against the Burton Company. From an order striking out the answer as sham, defendant appeals. Reversed. Argued before EHRLICH, C. J., and VAN WYCK and FITZSIMONS, JJ. R. MCC. Robinson, for appellant. C. F. Holm, for respondent. VAN WYCK, J. The complaint alleges the making and delivery by defendant of its promissory note to the order of J. J. Robinson & Co., its indorsement by said Robinson & Co. and by one Kane, and its delivery thereafter to plaintiff. The answer, among other denials, denies its indorsement and delivery by J. J. Robinson & Co., the payees. This is a denial of a material allegation of the complaint, and would force proof by plaintiff that the payees had indorsed the note. Assuming, but not conceding, that upon proof by affidavit that the note was duly indorsed by the payees the answer could be stricken out as sham, yet, as the record does not show that any such proof was made on this motion, the order striking out this answer as sham must be reversed, with $10 costs. All concur. (7 Misc. Rep. 227.) BAINBRIDGE v. FRIEDLANDER et al. (City Court of New York, General Term. February 8, 1894.) PLEADING-BILL OF PARTICULARS-NONPERFORMANCE OF CONTRACT. Where plaintiff alleges that he performed all the terms and conditions of the contract sued on, and defendants "deny that the plaintiff duly performed all the terms and conditions of said agreement upon his part to be done and performed, but, on the contrary, allege that plaintiff did not perform all the terms and conditions of said agreement, and neglected, failed, and refused to discharge his duties" under the contract, such answer is only a specific denial of plaintiff's allegation of performance, and a bill of particulars of nonperformance will not be required. Appeal from special term. Action by Thomas S. Bainbridge against Albert Friedlander and others to recover for services alleged to have been rendered under a special agreement. From an order requiring defendants to furnish a bill of particulars of nonperformance by plaintiff of contract sued cn, defendants appeal. Reversed. Argued before VAN WYCK and FITZSIMONS, JJ. Spiegelberg & Wise, for appellants. F. A. Burnham, for respondent. VAN WYCK, J. The plaintiff's alleged cause is for services rendered by him under a special agreement as salesman for defendants, and his complaint alleges "that plaintiff has duly performed all the terms and conditions of said agreement upon his part to be done and performed," while the defendants, by answer, plead: "The defendants deny that the plaintiff duly performed all the terms and conditions of said agreement upon his part to be done and performed, but, on the contrary, allege that plaintiff did not perform all the terms and conditions of said agreement, and neglected, failed, and refused to discharge his duties as traveling salesman for these defendants." This plea of defendants is nothing more than a specific denial of plaintiff's allegation of performance by him, and, if so much of defendants' plea as follows the word "performed" was stricken out, still plaintiff would be forced to make proof of his allegation of performance. Considering defendants' plea, therefore, with reference to its legal effect, which is simply that of a denial, it cannot be properly regarded as setting up any such claim as to render it proper to require a bill of particulars. See Goddard v. Medicine Co., 52 Hun, 85, 5 N. Y. Supp. 119, which was followed and fully approved by this court in Strebell v. J. H. Furber Co., (City Ct. N. Y.) 21 N. Y. Supp. 1032. And the case of Rafalsky v. Boehm, (City Ct. N. Y.) 20 N. Y. Supp. 374, does not in any way conflict with either of these decisions, for in the Rafalsky Case the answer did not, by general or specific denial, put at issue plaintiff's alleged performance, and in the opinion in that case it is suggested that defendants' plea was insufficient and frivolous, but, as it was not so assailed, and plaintiff had only sought and secured at special term a bill of particulars of an affirmative plea in the answer, it would not be disturbed at general term. But, as seen, the answer here specifically denies plaintiff's alleged performance; hence defendants should not have been required to furnish a bill of particulars of the times and manner of plaintiff's nonperformance, and the order requiring him to do so should be reversed, with $10 costs. (7 Misc. Rep. 242.) SCHWANN et al. v. CLARK. (City Court of New York, General Term. February 8, 1894.) 1. STATUTE OF FRAUDS-PLEADINGS. Statute of frauds, to be available as a defense, must be pleaded. 2. CONTRACTS-PERFORMANCE. Where a contract of sale requires the goods to be shipped promptly by steamer in October, and the goods were, on October 29th, placed on board of a vessel, which sailed on November 1st, it is a question for the jury whether the shipment was made within the time contemplated by the contract. Appeal from trial term. Action by John F. Schwann and another against George W. Clark. From a judgment in favor of plaintiffs, defendant appeals. Affirmed. Argued before EHRLICH, C. J., and VAN WYCK and FITZSIMONS, JJ. Parsons, Shepard & Ogden, for appellant. FITZSIMONS, J. The answer does not specifically set up as a defense the statute of frauds; therefore the benefits of that statute |