VOGEL CABINET CO. v. PRESIDENT CONST. CO., Inc., et al. (Supreme Court, Appellate Term, First Department. April 9, 1918.) 1. JUDGMENT 143(15)-DEFAULT-OPENING. Where defendant's attorney of record was to be a material witness at the trial, and engaged another attorney to try the case, but the latter was unable, because of serious illness, to be in court when the case was called, and default was taken, the default should be opened. 2. JUDGMENT 138(1)-OPENING DEFAULT-INSOLVENCY. Insolvency of defendant is not ground for denying opening of default, where the motion is accompanied by an offer to give a surety bond to pay any judgment rendered after trial. Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by the Vogel Cabinet Company against the President Construction Company, Incorporated, and another. Judgment for plaintiff by default, and defendants appeal from the judgment, and from the order denying the motion for a new trial, and the order denying the motion to open the default. Reversed. Argued March term, 1918, before BIJUR, FINCH, and MULLAN, JJ. Alfred Frankenthaler, of New York City (I. Maurice Wormser, of New York City, of counsel), for appellants. Spitz & Bromberger, of New York City (Leopold Spitz, of New York City, of counsel), for respondent. BIJUR, J. As neither the judgment nor the order denying the motion for a reargument is appealable, the appeal, in so far as it is from those determinations, must be dismissed. [1] The affidavits submitted on the motion to open the default are so voluminous, and contain so much extraneous matter involving more or less personal controversies between the respective parties and attorneys that it is fairly difficult to separate the material from the immaterial averments. It appears, however, without contradiction, that the answer sets forth one or more meritorious defenses and counterclaims; that after a number of adjournments, the reasons for which are wholly immaterial, the case was set for trial for November 28, 1917; that at that time, apparently because of the congested state of the calendar, it was adjourned until December 12th. One Frankenthaler was the attorney of record for the defendants, but counsel engaged to try the case was one Eisler. On December 2d Eisler was taken severely ill, suffering, among other things, with a severe sore throat. On December 9th an operation was performed on his throat On the 10th and 11th plaintiff's counsel were notified of this illness and an adjournment requested, which was refused. Eisler was confined to his bed until December 13th. On December 12th, when the case was called on the calendar, these facts were presented to the court, but not with sufficient precision and clearness, in that there was neither an affidavit of Eisler's physician submitted, nor was the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes reason made clear to the court why Frankenthaler could not try the case. Accordingly a default was taken. It would seem, however, that upon a due presentation of these facts, supported by affidavits (though for some reason, which is not explained, a physician's certificate has not yet been submitted), the default should have been opened upon appropriate terms. [2] Plaintiff, upon this appeal, does not question the actual illness and consequent incapacity of Eisler, but urges in the main two considerations: First, that Frankenthaler, who was concededly familiar with the case, should have tried it; and, second, that the defendant is practically insolvent. The latter consideration may be disposed of by citing the offer in Eisler's affidavit to give a surety company bond to secure any recovery which plaintiff may have upon the trial. As to the possibility of the case being tried by Frankenthaler, it may be pointed out that defendant is entitled to have his case tried and presented to the court by the attorney of his selection, and not by one appointed by the opposite side; but it appears, further, without contradiction, that Frankenthaler will be a material witness for the defendants on the trial. Under such circumstances it is the privilege of the attorney of record, if not his duty, provided his clients can afford it, to engage counsel to try the cause, and surely such right cannot be denied him because of the illness of counsel and the necessity for a consequent short and unimportant adjournment. Under all the circumstances, therefore, the order appealed from must be reversed, and the judgment vacated, upon payment by the defendants, within five days from the notice of entry of the order to be entered hereon, of the taxable costs of the action to date, and upon giving a surety company bond in an amount sufficient to secure the plaintiff for any recovery that may be had in the action, whereupon the case shall be set down for trial five days after the defendants' compliance with these conditions. All concur. SAVINO v. LATTURULO. (Supreme Court, Appellate Term, First Department. April 9, 1918.) SALES 441(2)—WARRANTY-ACCEPTANCE EVIDENCE. In an action to recover the purchase price of olives, wherein the defense was interposed that the olives were unmerchantable, evidence held to show that the purchaser examined the olives before accepting them, so that there was no warranty of quality. Appeal from Municipal Court, Borough of Manhattan, Eighth District. Action by Francesco Savino against Donato Latturulo. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered. Argued March term, 1918, before BIJUR, FINCH, and MULLAN, JJ. Frederick W. Gahrmann, of New York City, for appellant. S. A. Hyman and A. N. Slomon, both of New York City (Arthur N. Slomon, of New York City, of counsel), for respondent. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes FINCH, J. This action was brought to recover a balance claimed by the plaintiff to be due on a sale and delivery of goods to the defendant. The answer was an oral one, and set up a general denial and breach of warranty. It was admitted that there was the sum of $78.86 balance due plaintiff upon the purchase price of the goods, and that the sale consisted of two transactions-one for goods sold and delivered on May 10, 1917, and one on May 17, 1917. The defendant's claim was that, out of 11 cases of olives constituting the sale and delivery of May 17, 1917, 6 of the cases contained olives that were moldy and unmerchantable. The defendant gave no evidence whatever as to any express warranty having been made by plaintiff, relying upon an implied warranty. Defendant's daughter, who seems to have been his bookkeeper, testified that the 11 cases were not opened until two or three days after delivery, and that she then found that there were 6 cases, including a case returned by a customer, that were rotten. She also said that within two or three days after this examination she saw the plaintiff and informed him of their condition, and he asked her to sell them for him, and that the defendant then said: "I will try my best, but in case I cannot do this you will have them back." Subsequently it is claimed another offer to return the 6 cases was made. This witness was permitted to state, without objection, that the value of the damaged goods was "80-84." On the other hand, the plaintiff testified, and in this he was corroborated by one of his employés, that the defendant came to his place of business and opened and examined every box of olives purchased by him, and that they were all found to be sound and in good condition, and were pronounced satisfactory by defendant, and delivery was made the next day. The defendant was not sworn, although it is stated he was present in court, and this testimony stands undisputed. The plaintiff also denied the statement of defendant's daughter as to having been told by her that 6 boxes were rotten, or that he asked defendant to sell them for him. He also testified that he knew nothing about defendant's claim until about one month after the olives were delivered, when defendant claimed 5 boxes were moldy and that he then told defendant he could not take them back, as he could not sell them, "as the time was rather long." The plaintiff also introduced in evidence a statement of account furnished him by the defendant on May 29th, some 12 days after the alleged defective olives were delivered, in which credit is given plaintiff for the full value of the goods at the agreed price and a charge made to plaintiff of a check paid that day of $100 on account, leaving a balance due plaintiff of $100.86, which amount was subsequently reduced by the return of one cask of wine, valued at $22, and further testified that no claim of damaged goods was made at that time. It stands undisputed that the purchaser had full opportunity to examine and inspect the goods before purchasing them, and that he did so. No warranty of any kind was shown, and the judgment in favor of the defendant must be reversed. Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event. All concur. HARRINGTON v. NEW YORK RYS. CO. et al. (Supreme Court, Appellate Term, First Department. April 9, 1918.) 1. MUNICIPAL CORPORATIONS 809(1)-INJURY FROM STREET OBSTRUCTIONJOINT ENTERPRISE. In an action for injuries to plaintiff, when she stumbled over a timber lying in the gutter of the street she was attempting to cross, at a point near where a railway company was fixing its tracks, due to the street's having been disturbed by a sewer tunnel's being built by a construction company, the court erred in rendering judgment against the railway company and the construction company, in the absence of any evidence that there was any joint enterprise, common use of material, or employment of the same men by both companies, or any concurring negli gence. 2. MUNICIPAL CORPORATIONS 809(1)-INJURY FROM STREET OBSTRUCTION—— PROOF. In an action for injuries to a pedestrian, who fell over a large timber in the gutter of the street she attempted to cross, judgment against the railway company repairing its tracks near the point was improper, in the absence of proof that the timber was in the ownership or control of the railway company. Appeal from Municipal Court, Borough of Manhattan, Third District. Action by Mae Harrington against the New York Railways Company, impleaded with the Holbrook, Cabot & Rollins Company and the Old Colony Construction Company. From a judgment for plaintiff against the New York Railways Company and the Old Colony Construction Company, the Railways Company appeals. Reversed, and new trial ordered. Argued March term, 1918, before BIJUR, FINCH, and MULLAN, JJ. James L. Quackenbush, of New York City (Edward D. Kelly, of Brooklyn, of counsel), for appellant. Silverman & Tolins, of New York City (Joseph P. Tolins, of New York City, of counsel), for respondent. FINCH, J. The plaintiff was walking west from Eighth avenue. along the south side of Forty-Sixth street, and at a point about 125 feet west of Eighth avenue she attempted to cross to the north side of the street, when she stumbled over a large timber that was lying in the gutter alongside of the curb and which extended above the sidewalk. The plaintiff fell and received the injuries for which the action. was brought. At Eighth avenue and Forty-Sixth street the defendant New York Railways Company was fixing its tracks, due to the street having been disturbed by reason of a sewer tunnel's being built in Forty-Sixth street and across Eighth avenue. This tunnel was being built by the Old Colony Construction Company. The plaintiff sued the New York Railways Company and the Old Colony Construction Company, and also Holbrook, Cabot & Rollins Company; the action having been discontinued as to the latter. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes [1] Both the New York Railways Company and the Old Colony Construction Company disclaimed ownership in or control over the said timber. A conflict of evidence was presented as to whether there was sufficient artificial light in the immediate vicinity of the timber, since the accident occurred after dark. Questions of fact were raised at the trial, but the error requiring a reversal lies in the fact that the trial court rendered judgment against the two defendants, when there is no evidence whatsoever that there was any joint enterprise, or any common use of material, or any employment of the same men by both companies, or any concurring negligence. It follows that the judgment against the appellant should be reversed, and a new trial ordered, with $30 costs to appellant to abide the event. BIJUR, J. [2] I concur on the further ground that there was no proof that the timber was in the ownership or control of appellant. See Francis v. Gaffey, 211 N. Y. 47, 105 N. E. 96. MULLAN, J., concurs, with BIJUR, J. REED WIRE SPECIALTIES CO. v. KRASILOVSKY. (Supreme Court, Appellate Term, First Department. April 9, 1918.) 1. DAMAGES 23-WITHIN CONTEMPLATION OF PARTIES. Where defendant agreed to move a machine, delivering it in the same condition as that in which it was received, and to be responsible for any damages occurring during the work, it was improper to allow as damages, when the machine was broken, plaintiff's loss of time owing to the accident, which was not within the contemplation of the parties. 2. COURTS 189(15)-MUNICIPAL COURT-FAILURE TO DISPOSE OF COUNTER CLAIM. Where defendant set up a counterclaim, failure to make any disposition thereof in the judgment in itself required reversal: Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by the Reed Wire Specialties Company against Samuel Krasilovsky. From a judgment for plaintiff, defendant appeals. Modified and affirmed. Argued March term, 1918, before BIJUR, FINCH, and MULLAN, JJ. Stanislaus N. Tuckman, of New York City, for appellant. Edward B. Levy, of New York City (Harrie C. Manheim, of New York City, of counsel), for respondent. FINCH, J. The defendant is a truckman and mover of machinery. He was employed by the plaintiff to deliver a machine at its factory, located on the fifth floor of a building. The machine was too large to enter by the window, and had to be taken apart and taken up in the elevator. While it was being removed from the elevator, it was found For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 170 N.Y.S.-3 |