he could take that matter up with the company at a subsequent time. In this connection it is worthy of note that a similar mistake had previously been made by him at the same station and the additional payment then made had been refunded by the telephone company.

The statute is a penal one, and is to be strictly construed. Thompson v. Western Union Telegraph Co., 40 Misc. Rep. 443, 82 N. Y. Supp. 675; Wichelman v. Western Union Telegraph Company, 30 Misc. Rep. 450, 62 N. Y. Supp. 491. Whatever may be the plaintiff's rights, he cannot recover under the statute in question, for his case does not come within its provisions. It is true the plaintiff testified that on a former occasion, when using the same instrument, he had been told to pay while the receiver was hung up, but his evidence is strongly controverted by defendant's witnesses. There is much conflicting evidence as to the instructions which plaintiff had formerly received, in view of which, under his own admission that he had used the same instrument on at least one former occasion without difficulty, I do not think I would be justified in finding that he did not know the proper way to use it. However, I do not deem it necessary to pass on that question; for, assuming that the plaintiff was ignorant of the method of payment required, or through the ignorance or negligence of some of defendant's servants had been misinformed on that subject, he might be entitled to maintain an action to recover the damages sustained, but not for the penalty imposed by the statute. The purpose of the statute is apparent. It is to secure impartial service to the public, without discrimination; and the penalty is only incurred by acts of partiality, bad faith, or discrimination. Wichelman v. Western Union Telegraph Co., supra. If this be the correct construction to be put upon the statute, then, if the plaintiff had deposited his money in the proper way, and the operator through some defect in the apparatus had failed to hear it when it dropped in the box and refused to allow him to talk, he could maintain an action to recover his damage, but not for the penalty, since, as we have already seen, the imposition of the penalty is limited to acts of partiality, bad faith, or a preference. The complaint, therefore, must be dismissed. Complaint dismissed.

(121 App. Div. 459)

ROWLAND v. HALL et al.

(Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. TRIAL-RECEPTION OF EVIDENCE-CONCEDED FACTS.

In an action to recover damages on defendant's warranty of authority to sell certain land where it was conceded that he was employed as a broker by one of the owners of the land, the court properly excluded letters to defendant from this owner offered simply to show that fact. [Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 89.]

2. BROKERS-EMPLOYMENT-AUTHORITY.

The mere employment of a broker as such only authorizes him to act as an intermediary to bring the parties together, and does not authorize him to make a contract of sale.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Brokers, § 13.]

and 140 New York State Reporter

3. PRINCIPAL AND AGENT-LIABILITIES AS TO THIRD PERSONS-LIABILITIES OF AGENT.

Where an agent employed to sell land contracted to sell it in the name of an executor who had no existence, the owners of the property were not bound, and hence the agent was himself bound.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 486.]

4. BROKERS-LIABILITIES TO THIRD PERSONS-SALES-WARRANTY OF AUTHOR

ITY.

Where a broker employed by the owners of land to effect a sale thereof, pretending to act for a principal, made a contract to sell the land to plaintiff's assignor, which was not binding on the owners, and plaintiff's assignor paid $200 on the contract, plaintiff can recover in an action for damages on the broker's warranty of authority as agent to sell.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Brokers, § 138.]

5. SAME-ACTIONS AGAINST BROKERS-DAMAGES.

Where plaintiff, when she sued to compel specific performance of a contract to convey land, made by defendant with her assignor, knew who owned the property at the time the defendant undertook to contract for its conveyance, and that the contract was worthless, she cannot recover the costs incurred in that action in an action on defendant's warranty of authority as agent to sell.

Appeal from Municipal Court, Borough of Brooklyn, Second District.

Action by Harriet M. Rowland against Jonathan Hall, impleaded with another, to recover damages on defendant's warranty of authority as agent to sell certain land. From a judgment for plaintiff, defendant Hall appeals. Reversed, unless the plaintiff stipulate to modify.

Argued before JENKS, HOOKER, RICH, MILLER, and GAYNOR, JJ.

C. D. Rust, for appellant.

Fred L. Gross, for respondent.

MILLER, J. The facts in this case are simple, although they appear to be involved because of the method of presentation. Richard R. La Bau, Frank Alvin La Bau, and Alice J. La Bau Barker were the owners of certain real property as tenants in common. Richard had a power of attorney from his co-tenants to sell the property. He employed the defendant as a broker. The latter made a contract with the plaintiff's assignor in the name of Richard R. La Bau, executor of the estate of J. H. and Mary La Bau, to sell the property for the sum of $7,500, and received a payment of $200. Said Richard was not the executor of said J. H. or Mary. Subsequently Richard, for himself individually and as attorney for his co-tenants, conveyed the property to one Graff. Thereafter the attorney for said Graff informed the defendant that he, the defendant, had no authority to make any such contract as he had made with the plaintiff's assignor, and, upon the request of the defendant, procured said Graff to sign in duplicate a contract to convey the property to the plaintiff's assignor for said sum of $7,500, and left the same with the defendant for him to have executed by the purchaser, which he neglected to have done. The plaintiff, as assignee of the contract made with the defendant, demanded of Graff

a deed pursuant to said contract, which the latter refused to make, but offered to deliver a deed upon the payment of said sum of $7,500. The plaintiff then brought an action in the Supreme Court against said Graff to compel specific performance of the contract made with the defendant. She was defeated in that action, and a judgment for $250 costs was rendered against her. She then brought this action to recover damages on the defendant's warranty of authority as agent, and has obtained a judgment for the $200 paid the defendant and for the $250 costs awarded against her in the action in the Supreme Court.

The appellant claims that the court erred in excluding the letters written by said Richard R. La Bau to him which he claims would have proven his authority to sell the property. The letters are not in the record, but counsel in offering them distinctly stated that they were offered simply to show the employment of the defendant as a broker to sell. Undoubtedly a broker may be given authority to contract, but the mere employment of a broker as such only authorizes him to act as an intermediary to bring the parties together. It was conceded that the defendant was employed as a broker, and, as counsel stated that the letters were offered simply to show that fact, it was not error to exclude them. Moreover, the contract made by the defendant did not bind the owners of the property. It was made in the name of an executor who had no existence. It is elementary that an agent who assumes to contract for a principal must make a contract binding upon some principal, or else he himself is bound.

Upon the evidence, the plaintiff was entitled to recover, but she was not entitled to recover the costs incurred in the Supreme Court action. She knew when that action was brought who owned the property at the time the defendant undertook to contract for its conveyance, because her complaint alleged who the owners were. She knew that the contract made by the defendant was worthless and she could not prosecute a hopeless action, and thereby increase her damages. Moreover, she could have obtained a deed by paying the full amount of the purchase price, thereby limiting her damages to the sum of $200. The judgment should be reversed, unless the plaintiff stipulate to modify it accordingly.

Judgment of the Municipal Court reversed, and new trial ordered, costs to abide the event, unless within 20 days plaintiff stipulate to reduce the recovery to the sum of $200, in which event the judgment as reduced is affirmed, without costs of this appeal. All concur.

(120 App. Div. 388)

PEOPLE v. BURNHAM.

(Supreme Court, Appellate Division, First Department. June, 1907.) LARCENY-EVIDENCE-ADMISSIBILITY.

Proof that defendant was an officer of a corporation does not justify admitting all the books of the corporation as evidence against him, on a trial for larceny of its funds, without proof of further connection of defendant with the books or entries.

The conviction of George Burnham, Jr., of larceny of the funds of a corporation, having been reversed, and a new trial ordered (104 N.

and 140 New York State Reporter

Y. Supp. 725), the state moves for reargument, and for resettlement of order. Motion denied.

Argued before MCLAUGHLIN, INGRAHAM, CLARKE, HOUGHTON, and LAMBERT, JJ.

W. T. Jerome, for the motion.

S. T. Tyng, opposed.

PER CURIAM. A reconsideration of the questions involved on this appeal, in the light of the criticism of the opinion by the learned district attorney, fails to disclose that the court overlooked any material facts or any controlling authority, or that any grounds exist which would justify the court in ordering a reargument. The reference in the opinion to the admission of the entries in the books of the corporation related solely to such entries against the defendant, who is not shown to have had anything to do with the books, or any knowledge of their contents, or any connection with the entries; and the statement that the books of a corporation are not evidence against an officer of a corporation in a criminal proceeding against him, of course, refers only to books or entries where it was not shown that the person against whom the entries were offered had any knowledge of the entries or any connection with the books. What we decided was that mere proof that defendant was an officer of the corporation did not justify the court in admitting all the books of the corporation as evidence against him in a criminal proceeding, without proof of further connection of the defendant with the books or entries. The motion for reargument is therefore denied.

The reversal was distinctly upon the ground that upon the facts proved the judgment of conviction could not be sustained. The application for a resettlement of the order is therefore denied.

(121 App. Div. 466)

CLONIN et al. v. LIPPE et al.

(Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. MECHANICS' LIENS-ENFORCEMENT-LIMITATIONS.

Lien Law, Laws 1897, p. 524, c. 418, § 20, subdiv. 4, provides that a lien on the construction of a public improvement may be discharged by the contractor depositing such a sum as is directed by a justice of the Supreme Court to be held until the lien is discharged as prescribed by subdivisions 1, 2, or 3 of that section. Subdivision 2 provides that the lien shall be discharged when three months have elapsed since filing the notice of lien, and no action has been commenced. Subdivision 5, Laws 1898, p. 318, c. 169, provides that the lien may be discharged by the contractor executing an undertaking for the payment of any judgment recovered in an action to enforce the lien. Section 17, p. 522, provides that such a lien shall not continue for more than three months, from the time of filing the notice thereof, unless an action is commenced to foreclose the same within that time. Held, that the limitation of section 17 applied not only to the lien on the property, but also to an undertaking given pursuant to section 20, subdiv. 5, and hence an action in either case after three months from the filing of the notice of lien was barred.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, §§ 456-468.]

2. SALES-ACTIONS-ISSUES-PROOF-VARIANCE.

Under a complaint to recover the contract price of brick sold and delivered, an additional sum cannot be recovered, in that there was an ex tra cost to vendors because vendees so obstructed the place of delivery that vendors were unable to deliver in large lots.

Appeal from Special Term, Queens County.

Action to foreclose a mechanic's lien by James E. Clonin and John Messenger, composing the firm of Clonin & Messenger, against Herman F. Lippe and Henry J. Lippe, Jr., composing the firm of Henry F. Lippe & Bro., and others. Judgment for plaintiffs, and defendants appeal. Judgment against Herman F. Lippe and Henry J. Lippe, Jr., reversed and new trial ordered, unless plaintiffs stipulate to reduce recovery to $112.50, in which event judgment to be affirmed. Judgment against the other defendants reversed, and complainant dismissed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

Otto H. Drooge, for appellants.

John J. Townsend, for respondents.

MILLER, J. The first question involved in this case relates to the validity of the lien, notice of which was filed in New York county on the 20th and 23d days of November, 1903. An order of the County Court of Queens county extending the lien for a period of six months was granted February 16, 1904, pursuant to section 17 of the lien law (chapter 418, p. 522, Laws 1897). It is conceded that the County Court of Queens county had no jurisdiction to make the order. The lien, therefore, expired by virtue of the provisions of said section 17, but the respondent contends that, as the undertaking provided by subdivision 5 of section 20 of the lien law was given on the 10th day of December, 1903, the action may be maintained against the contractor and his sureties without regard to the three-month limitation specified in said section 17. This contention is based on Hafker v. Henry, 5 App. Div. 258, 39 N. Y. Supp. 134, and Durham v. Durham, 99 App. Div. 450, 91 N. Y. Supp. 295. It is unnecessary to discuss those authorities, because the present lien law is essentially different from the statute which was considered in those cases. Section 20 of the lien law provides how the lien may be discharged; the last sentence of subdivision 4 thereof providing for discharge by deposit of a sum of money is as follows, viz.:

"The amount so deposited shall remain with such financial officer or other officer or person until the lien is discharged as prescribed in subdivisions one, two or three of this section."

Subdivision 2 relates to discharge by lapse of time-i. e., the threemonth period specified in section 17-and subdivision 5 prescribes that the undertaking therein provided for shall be "conditioned for the payment of any judgment which may be recovered in an action to enforce the lien.” Laws 1898, p. 318, c. 169. In the case of Durham v. Durham, supra, relied upon by the respondents, the short statute of limitations was held inapplicable to an action on the undertaking because of the analogy between the undertaking to discharge the lien