and 118 New York State Reporter the bonds for an adjudication that they actually belong to and are the property of the railroad company. The receipts of the road have largely increased since his appointment as receiver; no accidents have occurred; the road has apparently been properly operated, and its affairs properly administered. He is familiar with the affairs of the road, and I believe him to be honest and competent. The people along the route, whose patronage supports the road, share that confidence. In addition, the significant fact that no person financially interested in the road objects to his appointment, except the holder of bonds whose title is challenged by a suit already brought by him, leads me to the conclusion that it would be proper to continue him in office so long as he does no unwise or improper act as such receiver. An order may be entered confirming the order of July 4th, and continuing him as receiver. Ordered accordingly. (87 App. Div. 97.) CASTLE BROS. v. GRAHAM. (Supreme Court, Appellate Division, Second Department. 1. BUSINESS NAMES-FILING CERTIFICATES. October 22, 1903.) Carrying on business under the name of "Castle Brothers," a correct designation of the members of the firm, is not within Pen. Code, § 363b, providing that no person or persons shall carry on business under an assumed name, or under any designation other than the real names of the individuals, unless they file a certificate setting forth the name under which the business is to be conducted and the true names of the persons conducting it. Appeal from Trial Term, Kings County. Action by Castle Bros., a corporation, against James Graham. From a judgment for plaintiff, defendant appeals. Affirmed. Argued before GOODRICH, P. J., and JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ. Richard Krause, for appellant. Charles H. Machin, for respondent. GOODRICH, P. J. This action was brought to recover the unpaid balance of the price of certain work done for the defendant by the firm of "Castle Brothers," which assigned its claim to the plaintiff, a domestic corporation. The firm was composed of two brothers, Thomas W. A. Castle and Walter L. Castle, who performed the work mentioned without having filed any certificate in accordance with section 363b of the Penal Code, which provides: "(1) No person or persons shall hereafter carry on or conduct or transact business in this state under any assumed name or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business, unless such person or persons shall file in the office of the clerk of the county or counties in which such person or persons conduct, or transact, or intend to conduct or transact such business, a certificate setting forth the name under which such business is, or is to be, conducted or transacted, and the true or real full name or names of the person or persons conducting or transacting the same, with the post-office address or addresses of said person or persons. Said certificate shall be executed and duly acknowledged by the person or persons so conducting, or intending to conduct said business." "(5) Any person or persons carrying on, conducting or transacting business as aforesaid, who shall fail to comply with the provisions of this act, shall be guilty of a misdemeanor." This section, like section 363, is a penal statute, and is to be strictly construed. The use of such a partnership name as that under consideration is of frequent occurrence. The maintenance of the defendant's contention would be to stamp what has always been an innocent practice as a misdemeanor. No such intention can be spelled out of section 363b. It relates to assumed names, and not to real names of the persons composing a partnership. Can it be said that "Castle. Bros." is an assumed name, when in fact it is a correct designation of the members of the firm, although not so definite a designation as if it included the baptismal names of the individuals? If so, we must condemn the use of a firm name like "John Smith & Son," or "John Smith & Bro.," or "J. Smith & Son." We think the statement of the logical effect of such a holding is reductio ad absurdum. The case of Gay v. Seibold, 97 N. Y. 472, 49 Am. Rep. 533, related to chapter 281, p. 404, Laws 1833, which provides that, where the designation "and Company" or "& Co." is used in the transaction of business, it should represent an actual partner or partners, and the court said that "the purpose of the statute was obviously to protect persons giving credit to the fictitious firm on the faith of the fictitious designation. It could have no other purpose. It was not needed to protect those who obtained credit from such a firm." See, also, to the same effect, Kennedy v. Budd, 5 App. Div. 140, 39 N. Y. Supp. 81, and Taylor v. Bell & Bogart Soap Co., 18 App. Div. 175, 45 N. Y. Supp. 939. The same rule is applicable to this action, which arises under section 363b. The judgment was correct, and should be affirmed. Judgment affirmed, with costs. All concur. KING V HAMMOND. (Supreme Court, Appellate Term. June 22, 1903.) 1. BROKERS-VARIANCE-ACTION ON CONTRACT-PROOF OF CUSTOMS. Plaintiff in an action on an express contract to pay a certain commission for procuring a certain sale may not recover, failing to prove the contract, on proof of a custom to pay such a commission to persons procuring such a sale. Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by Robert S. King against James Hammond. From a judgment for plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. Steuer, Hoffman & Wahle, for appellant. and 118 New York State Reporter PER CURIAM. The judgment in this action in favor of the plaintiff should be reversed. It is against the weight of evidence. The plaintiff sued upon an express contract alleged to have been made between himself and the defendant, whereby the defendant agreed to pay plaintiff a commission of 10 per cent. as a broker in procuring the sale of five carriages by defendant to one Wechster. The plaintiff not only failed to prove any express contract as alleged, but was permitted, over objection and exception by defendant, to show a custom existing among carriage dealers of paying a commission. of 10 per cent. to persons making sales for and on their behalf. Inasmuch as there must be a new trial, it may as well be said also that the plaintiff failed to show that he was employed by the defendant to make any sale, or was the procuring cause of the sale that was made. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. AMPEL v. SEIFERT et al. (Supreme Court, Appellate Term. June 22, 1903.) 1. SALES-SUIT FOR PURCHASE PRICE--NATURE OF TRANSACTION-SUFFICIENCY OF EVIDENCE. Evidence held insufficient to show that a consignment of furs by a Jewish teacher traveling in Europe to fur merchants in New York was an absolute sale, rather than made under an option in the merchants to elect what furs they would keep, and dispose of the others on commission, holding any remainder to the teacher's account. 2. SAME-BURDEN OF PROOF The burden is on a seller suing for the price of goods, under what he claims was an absolute sale, to substantiate his version of the character of the transaction. 8. SAME AMOUNT OF VERDICT Evidence in a seller's suit for the purchase price of goods held insufficient to sustain a finding as to market value. Appeal from City Court of New York, Special Term. Action for the price of goods by Efriam Ampel against Wolf Seifert and another. From an order denying a motion for a new trial on a verdict rendered against defendants, and from an order restraining the proceedings of plaintiff and the sheriff under an execution upon certain conditions named therein, defendants appeal. Reversed in part, and affirmed in part. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. Kenneson, Crain, Emley & Rubino, for appellants. FREEDMAN, P. J. The order, as resettled, restraining the plaintiff and the sheriff from proceeding under any and all executions on the judgment, upon certain conditions therein named, should be affirmed, with costs. The appeal of the defendants from the order denying their motion, which was made under section 999 of the Code, to set aside the verdict and for a new trial, presents a more serious question. The issue litigated and submitted to the jury was whether certain skins and furs shipped by the plaintiff from Europe to the defendants' firm were unqualifiedly sold to them, to be paid for at the market price in New York, or consigned to them upon the agreement that the defendants should pay him the market price in New York of such of the goods as they might elect to keep; that the remainder should, if possible, be sold by them for plaintiff's account upon a commission of 10 per cent.; and that such of the goods as they did not elect to keep for themselves, and were unable to dispose of to others, should be held for his account. The only evidence to establish plaintiff's claim of an unqualified sale of all the goods was that which came from his own lips. He was flatly contradicted by the defendants, and their version, viz., that only a consignment was agreed upon, was partially, but materially, corroborated by a disinterested witness. Upon the question of market price, the plaintiff's testimony was also somewhat weakened by his own sworn statements in making oath to the consular invoices. Moreover, upon the whole case, the plaintiff's version appears to be inherently improbable, and that of the defendants highly probable. The defendants were fur merchants in New York. The plaintiff was a Jewish teacher of languages-a man who had never been in the fur business, and who did not have, even on the day of the trial, knowledge as to the market value of furs. He wanted the court and jury to believe that the defendants bound themselves absolutely to buy at the market price in New York all furs and skins which during his European trip he might ship to them, regardless of the fact that he was no judge of the quality of furs or skins, regardless of dates of shipment and the seasonableness of the goods in the New York market, and regardless of the length of time during which he might make purchases, and all this without limit as to the quantities which he might elect to purchase. Such an agreement would lack every element of ordinary business prudence on the part of the defendants. The burden of proof was upon the plaintiff, but the preponderance of evidence was so much in favor of the defendants that their motion to set aside the verdict and for a new trial should have been granted. I am also of opinion that the evidence as to market value in New York is insufficient to sustain the verdict as rendered. The plaintiff himself had no knowledge whatever upon the subject. The only witness he produced had never seen the goods, and such witness, although perhaps otherwise qualified, frankly admitted that the value depended upon what kind of goods they were. It was not shown to him whether the goods in question were good or bad, of superior or inferior quality or fineness, large or small, dressed or undressed, or whether they were German or Austrian furs, and the witness carefully refrained from testifying as to the value of the particular goods in dispute. The order denying defendants' motion to set aside the verdict and for a new trial should be reversed, and a new trial ordered, with costs to appellants to abide the event. All concur. and 118 New York State Reporter HORWITZ v. REINERT. (Supreme Court, Appellate Term. June 22, 1903.) 1. APPEAL-AFFIRMANCE. Where the judgment for plaintiff must be affirmed, and in fact has been satisfied, an order vacating the order approving the undertaking on ap peal, whether proper or not, will be left undisturbed on appeal therefrom, without costs. Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Isaac Horwitz against Ferdinand Reinert. From an order setting aside a stay of execution and an order denying defendant's motion to resettle the same in favor of plaintiff, defendant appeals. Affirmed. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. James E. Smith, for appellant. Nathaniel Levy, for respondent. PER CURIAM. On February 25th notice of appeal in an action entitled above, and copy of an undertaking dated February 21, 1903, were served. On March 2d notice of exceptions to the form and sufficiency was served. On March 6th notice of justification, first for March 11th and then for March 9th, and in each case returned as not within the time provided by the statute. On March 9th the undertaking was approved, but subsequently it was vacated by the same justice on an order to show cause. This was seemingly proper, under section 315 of the municipal court act (Laws 1902, p. 1580, c. 580). Whether so or not, however, as the judgment itself must be affirmed, and has in fact been satisfied, as stated in his brief by counsel for plaintiff, the orders above mentioned may be left undisturbed, without costs to either party. Orders affirmed, without costs to either party. MONNESS et al. v. LIVINGSTON. (Supreme Court, Appellate Term. June 22, 1903.) 1. REPLEVIN-DESCRIPTION OF ARTICLES IN JUDGMENT. In replevin for "220 boys' coats" it appeared on the trial that the articles were pieces of cloth cut in the shape of coats, but not yet made up. Held, that the judgment for possession of "the property mentioned in the affidavit and complaint" was so substantially correct as to require the marshal to take the cut goods tendered to him. Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Hyman Monness and another against Johnstone Livingston. From an order amending the judgment for plaintiffs, they appeal. Reversed. |