and 106 New York State Reporter Charles F. Brown (Henry A. Robinson, on the brief), for appellant. Alfred C. Cowan (W. C. Beecher, on the brief), for respondent. WOODWARD, J. This action was brought to recover damages for a personal injury sustained by the plaintiff in an accident while a passenger in one of the cars of the defendant, the details of which are not material here, as no question is raised as to the negligence of the defendant, or the absence of contributory negligence on the part of the plaintiff. The points argued by counsel relate wholly to the damages, which were assessed by the jury at $1,900, upon which a judgment for $2,149.59 has been entered. One Dr. Smith was called as an expert witness in behalf of the plaintiff, and, after testifying to the facts in reference to an examination of the plaintiff which he had made for the purpose of testifying. he was asked the following hypothetical question: "Assuming the case of a woman who was well and strong prior to January 11, 1900, and upon that day receives a blow upon the shoulder, side, and under the shoulder blade, by a shaft being driven through the panel of the back of the car where she was sitting, and striking her; and assuming that in April, May, and June there was a swelling developed upon the shoulder, and subsequently, in July, two lymphomas were found, one upon the apex of the shoulder, and the other under the shoulder blade, could you state with reasonable certainty, upon the facts as I have assumed them, whether these two lymphomas were caused by the injury that I have referred to as the exciting cause? The first question is, can you state with reasonable certainty? That calls for an answer 'Yes' or 'No.'" The witness attempted to make an explanatory answer, and the court directed him to answer the question "Yes" or "No." Counsel then restated the question: "Assuming there has been no other injury, and assuming the facts as I have stated them, can you say with reasonable certainty as to whether the injury could be the exciting cause? That calls for an answer 'Yes' or 'No,' whether you can say so. It does not call for the full answer yet." Answer: "Yes, I could." Counsel then asked: “Upon the facts,-upon such an assumed state of facts as I have given in my question, will you state whether or not such an injury was the exciting cause of these lymphomas?" Answer: "I would, assuming that this patient had had no other lymphomas, I would say 'Yes,'-no other developed anywheres, no other lymphomas or fatty tumors developed anywheres, I would say 'Yes.'" Counsel for defendant, without stating any reason, moved to strike out the answer, and the court responded: "I will permit it to remain, upon the assumption that plaintiff's counsel will show she had none." Defendant's counsel took an exception, and subsequently the plaintiff was recalled, and testified that she had never had any of these fatty tumors prior to the accident, or prior to the two which were removed in July, 1900. No further motion was made to strike out the testimony of Dr. Smith after the recall of the plaintiff, though, upon the cross-examination of the witness, defendant's counsel made a motion to "strike out the answer as to the reasonable certainty of the cause," which motion was denied, and an exception was taken by the defendant. It is now urged that it was error to permit this testimony of Dr. Smith to stand, on the ground that it was speculative and remote. Whatever we might have thought of the objection, in the absence of testimony. showing that the plaintiff had had no other fatty tumors, we are of opinion that the testimony was competent, under the question as it was put, after the defect had been supplied. And, even if it were not, the defendant, by apparently acquiescing in the ruling of the court by not renewing the motion after the question had been perfected by supplying the proof, must be deemed to have waived the point. The case of Laidlaw v. Sage, 158 N. Y. 73, 52 N. E. 679, 44 L. R. A. 216, does not conflict with this view. Dr. Smith, as an expert, might properly answer a hypothetical question based upon the evidence, and it was within the discretion of the court to permit a defect in evidence to be supplied in order to perfect the question and to support the answer. See In re Lasak's Will, 131 N. Y. 624, 628, 30 N. E. 112. If we are right upon this point, it follows that the second suggestion of defendant, that the court erred in declining to charge the jury that there is no permanency of injury proved in this case, is not well founded. There was some evidence that the lymphomas were caused, or at least developed, by the accident, so that it was necessary to permit a surgical operation; and Dr. Wight testified that there was a defective condition of the shoulder at the point where the incision was made for the removal of the fatty tumors, and that he could say with reasonable certainty that "the condition I have described as to the shoulder will be permanent." Whether the evidence produced upon this point was sufficient to constitute proof of the permanency of the injuries was for the jury to determine, and the court properly refused to charge as requested. Under the oft-reiterated rule recognized in this court that a verdict of a jury will not be disturbed merely because we might differ as to the amount if we were acting in the capacity of jurors, we are of opinion that the verdict for $1,900 was not so far excessive as to warrant the conclusion that it was the result of mistake, prejudice, passion, or any improper motives on the part of the jury, and the judgment should stand. The judgment and order appealed from should be affirmed, with costs. All concur. BROCK v. SURPLESS et al. (Supreme Court, Appellate Division, Second Department. November 15, 1901.) DISCOVERY-ACCOUNT BOOKS NOT IN POSSESSION OF PARTY. Under Code Civ. Proc. § 803, authorizing a court of record to compel a party to an action pending therein to produce and discover books, documents, or other papers in his possession or under his control, relating to the merits of the action or defense therein, an order requiring the plaintiff to produce the account books of a foreign corporation, not a party to the suit, and which were not in plaintiff's possession or under his control, was erroneous. and 106 New York State Reporter Appeal from special term, Kings county. Action by William H. Brock against James Surpless and others. From an order directing plaintiff to disclose account books belonging to a foreign corporation not a party to the action, the plaintiff appeals. Reversed. Argued before GOODRICH, P. J., and BARTLETT, JENKS, HIRSCHBERG, and SEWELL, JJ. Randolph Parmly (Frederick E. Kessinger, on the brief), for appellant. Ellis L. Aldrich, for respondents. PER CURIAM. The defendants have procured an order compelling the plaintiff to produce for the defendants' inspection the account books of a foreign corporation not a party to the action. The plaintiff, under oath, denies custody, possession, control, power, authority, or right to the books, and avers that they are in the possession, custody, and control of the secretary of the company, whom he names, pursuant to resolution of the board of directors. These allegations are unrefuted. The defendants' counsel admits in his brief that "after an exhaustive research" he can find no authority in point. The case of Martine v. Albro, 26 Hun, 559, related to books which were in the defendants' undisputed possession, and which they had already produced for inspection, pursuant to a prior order. As the order appealed from herein relates to books not within the terms of section 803 of the Code of Civil Procedure, as to possession or control, either literally or constructively, it must be reversed, and the motion denied. Order reversed, with $10 costs and disbursements. MOLT v. BAUMANN. (Supreme Court, Appellate Division, Second Department. November 15, 1901.) 1. AGENCY-HUSBAND AND WIFE-EVIDENCE-FORMER TRANSACTIONS. In an action for damages on a contract for the sale of real estate. executed by a husband in his own name, and alleged to have been exe cuted by him as agent for his wife, it was error to allow evidence that on previous occasions, in contracts for the sale of real estate, the husband had acted as his wife's agent. 2. VENDOR AND VENDEE-EXECUTORY CONtract-Tender of Deed. In an action for damages on a contract for the sale of real estate, in which the plaintiff had agreed to convey a clear title, he was not entitled to recover on evidence that at the time of the tender of the deed there were unpaid assessments on the property. Appeal from municipal court, borough of Brooklyn, First district. Action by Marie Molt against Kate Baumann. From a judgment in plaintiff's favor, defendant appeals. Reversed. Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and SEWELL, JJ. George E. Miner, for appellant. GOODRICH, P. J. This action is for $200, stipulated damages in the penalty clause of a contract for the sale of real estate. The contract was signed by the husband of the defendant in his own name, but the plaintiff alleges that the contract was the contract of the defendant, executed by the husband as her agent. I do not deem it essential to analyze the evidence upon the contention of the appellant that the judgment is against the weight of evidence, as substantial errors in the ruling of the court appear upon the record. The plaintiff offered evidence that upon previous occasions in contracts for the sale of real estate the husband had acted as agent for the wife. Schumaker, the broker, testified to several other contracts, one of them with Berg. On a subsequent motion to strike out the evidence, the court ruled out all the testimony of the plaintiff except the statement that the defendant's husband signed the first contract in the Berg matter. This ruling left before the court the testimony that Schumaker, the broker, negotiated the Berg sale of property for the defendant and her husband, and that the defendant's husband signed the contract therefor. This, as before stated, remained in evidence, and was offered for the purpose of showing that in a transaction similar to the one before the court the husband had acted as agent of the wife, in order that the court might draw the inference that what was done on that occasion was done in the case at bar. But, even if the court excluded the entire testimony by Schumaker as to the subject, similar error appears in the plaintiff's cross-examination of the defendant's husband. This testimony was admitted over the objection of the defendant that it was incompetent, irrelevant, and immaterial. The testimony was remote and speculative, and it is not legal proof of the agency of the husband for the wife in this particular contract. The opinion in Duryea v. Vosburgh, 121 N. Y. 57, 24 N. E. 308, and the reasoning in Green v. Disbrow, 56 N. Y. 334, and McLoghlin v. Bank, 139 N. Y. 514, 523, 524, 34 N. E. 1095, seem to be conclusive on the point. It cannot be said that this evidence did not influence the decision of the justice. Again, the evidence of tender of a deed by the plaintiff to the defendant was insufficient. The plaintiff was to convey a clear title. The plaintiff admitted that at the time of the tender of the deed there were unpaid assessments upon the property, so that it was not free and clear of incumbrances at that time. For these errors the judgment should be reversed. Judgment of the municipal court reversed, and new trial ordered, costs to abide the event. All concur. 72 N.Y.S.-53 and 106 New York State Reporter REILLY v. CONNORS. (Supreme Court, Appellate Division, Second Department. November 15, 1901.) CONTRACTS-DELAY IN PERFORMANCE-REMOTE DAMAGES. A house owner employed a contractor to put a heating apparatus into the house, and rented another house, which he was occupying, to third parties, intending to move when the heating plant was installed. By reason of the contractor's delay, he was unable to deliver possession to his tenant at the time set, and lost certain rent. Held that, in the absence of special notice to the contractor of the agreement to rent, the owner could not recover the amount of such lost rent as damages for his delay, the damage being too remote. Appeal from municipal court, borough of Queens, Second district. Action by Elmore T. Reilly against William Connors. From a judgment for plaintiff in the municipal court, defendant appeals. Affirmed. Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ. John J. Trapp, for appellant. WILLARD BARTLETT, J. In this action the plaintiff has recovered the sum of $124 as a balance due for work done and materials furnished in the performance of an oral contract for installing a heating apparatus upon the premises of the defendant. There was a sharp conflict of evidence as to the terms of the contract, the plaintiff contending that the defendant agreed to pay $550 for the work, and the defendant asserting that the total amount to be charged was only $500. The defendant also interposed a twofold counterclaim, (1) alleging that he had been compelled to lay out $53.50 in order to finish a portion of the contract work which the plaintiff left uncompleted, and (2) alleging that he had suffered damage in an additional sum of $50. The first item of the counterclaim was litigated, and upon that issue the jury must have found against the defendant. As to the second item, the defendant sought to prove that he had intended to move out of the house which he occupied into the premises where the heating apparatus was to be installed; that he had rented that house to a third party; that he was prevented from moving out and giving possession to that third party by reason of the plaintiff's delay in completing the installation; and that in consequence of this delay he had lost $50 rent, which he would otherwise have received from the person to whom he had let the house which he occupied. It appeared, however, that no notice of this agreement to rent had ever been given to the plaintiff, and the judge who presided at the trial therefore excluded all further evidence tending to establish this part of the counterclaim. It is manifest that this ruling was correct. The alleged damages were too remote to charge the plaintiff unless he had special notice of the circumstances concerning the agreement to rent the defendant's house, so that the contract could be held to have been made in contemplation of those circumstances. "The damages for which a |