8. SAME-OBJECTIONS TO ACCOUNT-WHERE MADE.

Objections to an account may be heard, opportunity being given to the opposite party to meet them, though not contained in the objections formally filed.

Appeal from judgment on report of referee.

Action for an accounting by Elizabeth A. L. Hyatt against Jacob Mark and others for royalties due plaintiff on the sale of illuminating work. Judgment for a portion of plaintiff's claim, and both plaintiff and defendants appeal. Argued before SEDGWICK, C. J., and O'GORMAN, J.

George W. Van Slyck, (B. B. McMasters, of counsel,) for plaintiff. Edward D. McCarthy, for defendants.

SEDGWICK, C. J. The obligation of the defendants to account to plaintiff under the contract between them, was held to exist in Hyatt v. Ingalls, 49 N. Y. Super. Ct. 375. It was further held that the court had jurisdiction of the action. Every question that related to the obligation to account was determined by the court on the appeal to the general term, and now only such exceptions as concern the accounting are to be considered. The contract bound the defendants to pay 30 cents per square foot "of illuminating work made and sent away by the defendants, to be used for the purpose of making illuminated basement and basement extensions. The defendants' counsel excepted to the referee's ruling that the defendants should be charged for "illuminating work" used for covering areas. The claim is that areas were not, within the intention of the parties, basement extensions. What was, according to the contract a basement extension, was a question of fact. It is true that an area per se is not part of a basement or of a basement extension, and there are considerations drawn from the patents in evidence that by themselves would lead to the conclusion that a basement extension, as used in the contract, meant something different from an area. Yet, taking all there is in the patents together, I think the referee was right in his conclusion that the contract meant, among other things, such a basement extension as would result from an area being covered by the "illuminating work." The referee's findings as to the defendants' liability for steps, risers, and platforms, forming wholly or partly “an illuminating roof" over areas, should be sustained. They were within the terms of the contract, if the phrase "basement extension" comprises areas. The exception to the finding was general. There is no suggestion that the finding alluded to contained a charge for "illuminating work" not used in connection with "illuminating covering" of

areas.

The learned counsel for defendants urges that the referee found for matters not contained in the first 115 objections made by plaintiff to the account filed by the defendants. Whatever may be the usual practice, the referee had the power to allow, in any form that did not work injustice to the defendants, an objection to the account presented by defendants, whether or not a statement of objections had been previously made. A formal filing of objections implies that the accounting party need not prepare to meet any other objection. But the court has power to allow other objections to be made, giving the accounting party opportunity to meet them. I am of opinion that on the defendants' appeal the judgment should be affirmed, with costs.

On the plaintiff's appeal, it is urged that the referee should have charged the defendants "for all tiles adapted for covering basement extensions, and manufactured and sold by them, or manufactured and used by them, which they have not shown were actually used for purposes other than basement extensions, or how such material was to be used." In other words, the plaintiff claims that the burden of proof was upon the defendants to show that the tiles that they sold and which might be used for "illuminating basements and basement extensions" were not thus used, and that, if this were not proved, the defendants were to be charged with the royalties according to the con

tract. The "illuminating work" in question was separate tiles, which were capable of various uses besides that of illuminating basement extensions. The tiles as made and sold by the defendants, did not indicate any special use to which they were to be given. Not only did the contract in action allow the defendants to make and sell such separate tiles without payment of royalties, if they were not "made and sent away by the defendants to be used for the purpose of making illuminated basements and basement extensions," but the patents themselves made no claim for the separate tiles apart from their combination for certain uses. This right of the defendants to make and sell was not incumbered by the contract in any of its provisions. It would be an unusual limitation of the right to sell, and of the benefit thereof, to require that the defendants should not only inquire of their customers as to the use to which the tiles were to be put, but should investigate the course which the tiles actually took after they were sold. The ruling of the referee in this respect was correct. I am of opinion that the referee was right in his action as to work done by defendants in glazing tile. Judgment affirmed as to each party, with costs.

O'GORMAN, J., concurs.

UHLER v. RYER.

(City Court of New York, General Term. October 26, 1888.) APPEAL APPEALABLE ORDERS-DECISION ON DEMURRER.

No appeal lies from an order entered on the trial of an issue of law raised by demurrer to a complaint giving the plaintiff leave to serve an amended complaint within a stated time, unless the decision is followed by a judgment either interlocutory or final, in accordance with Code Civil Proc. N. Y. § 1021, as amended in 1879, providing that, on hearing a demurrer, the court should give a decision in form that the demurrer is sustained or overruled, and that the successful party have judgment thereon.

Appeal from special term; SIMON M. EHRLICH, Judge.

Action by John C. Uhler against William W. Ryer. There was a demurrer to the complaint, upon which an order was made, allowing plaintiff six days to serve an amended complaint. No judgment either final or interlocutory was afterwards entered. Defendant appeals.

Argued before PITSHKE, NEHRBAS, and McGown, JJ.

H. M. Collyer, for appellant. J. Grant Mitchell, for respondent.

PITSHKE, J. The demurrer to the complaint was well founded. The complaint was clearly insufficient on its face, for failure to show "performance" of the contract set out by the plaintiff and sued on, which was, on plaintiff's part, to examine the books and accounts of the dissolved copartnership, and to report to this defendant the true showing of the partnership books, and the interests of the copartners. Brown v. Colie, 1 E. D. Smith, 265; Baker v. Higgins, 21 N. Y. 397; Tooker v. Arnoux, 76 N. Y. 398. The hearing on the demurrer was a trial, and a judgment should have been entered upon the decision contained or intended to be expressed in the order appealed from. This has not been done. But the award of costs is discretionary with the trial court on such a demurrer (Code Civil Proc. §§ 965, 3232) where an issue of fact remains undisposed of. Such interlocutory costs are collectible, if absolute, in the manner provided by section 779, like motion costs, (Adams v. Ward, 60 How. Pr. 288, and see Masters v. Barnard, 6 How. Pr. 113;) otherwise, they are to be treated as final costs, and to be collected as such, (Palmer v. Smedley, 13 Abb. Pr. 185, 186.) The theory, then, being that the successful party on the demurrer is entitled to a final judgment on one issue at least, and is, as to that, a prevailing party, and upon the ultimate judgment entitled to its entry, (thus far in his favor,) with

costs, as to the plea or pleading demurred to, where the costs are not collectible under section 3232. This would be clearly so, also, where the decision on the demurrer determines the action, without permission to continue it by way of amendment of the record. The decision upon a demurrer, when liberty to amend is not given, is final; and if such liberty be given, and it is not acted on within the prescribed time, the decision becomes absolute and final. It is then a final determination of the whole rights of the parties as regards the cause of action, averment, or defense covered by the demurrer. Mora v. Insurance Co., 13 Abb. Pr. 308. The costs upon a demurrer decided are not those of a motion, but of a "trial." Under section 1021, Code Civil Proc., (as amended in 1879, changing the rule laid down in Bank v. Lynch, 76 N. Y. 516,) the court, on hearing a demurrer, should give a decision in form, after describing the hearing, "that the demurrer is sustained or overruled, (as the case may be,) and that the successful party have judgment on the demurrer, with costs," or without costs, according to the trial justice's discretion with respect to costs, under section 3232, where an issue of fact remains undisposed of, and an "interlocutory judgment" must follow, and be filed in the clerk's office as a postea. Smith v. Rathbun, 88 N. Y. 665; Liegeois v. McCrackan, 22 Hun, 69, 71; Dick v. Livingston. 41 Han, 456. The appeal from the hearing must be from either the interlocutory or the final judgment entered pursuant to the order of the court deciding the issue of law heard on the demurrer. Sections 1021, 1222, 1230. An appeal from such an order to the general term would be improper, and unauthorized by said Code, and must hence be dismissed. Church v. Telegraph Co., 15 Jones & S. 562; Bank v. Lynch, supra. An appeal from a decision of a demurrer can now, since the said amendment of section 990 and section 1021, in 1879, be only taken either from the interlocutory judgment, pending the action entered as a final determination of the law issue tried, or from the final judgment rendered in the cause at its conclusion, either on the facts, or under section 1222; for then so much of the case or all of it is ended until reversed. The proper interlocutory or final judgment based on the decided issue of law will be entered by the clerk, as of course, in cases coming under sections 1212 and 1213, Code Civil Proc.; and, in other cases, on an application to the special term under section 1230, upon the law decision rendered, to grant and give such relief as the applicant is entitled to at that stage of the case, so far as not already specified or allowed in the decision as filed. Smith v. Rathbun, 88 N. Y. 665, 666. Either party, if dissatisfied with such judgment so obtained, has his remedy by appeal therefrom.

The order herein made represents the "decision" of the court on the demurrer. It may be amended or modified in the same court, either at the special or general term; but, on an order upon the hearing of a "demurrer," a judgment, interlocutory or final, must be entered, and an appeal can only lie from that. 15 Jones & S. 562; 76 N. Y. 515, 516. The appeal was premature and unauthorized. No appeal has been taken from any interlocutory judgment in the case, and there is nothing before us to act on, or enabling us now to award appropriate relief to the parties plaintiff and defendant. Further application on the order must be to the special term. The appeal must, therefore, be dismissed, with costs.

NEHRBAS and McGown, JJ., concur.

IVES v. JACOBS et al.

(City Court of New York, General Term. November 23, 1888.)

PRACTICE IN CIVIL CASES-DISMISSAL ON MOTION FOR NEW TRIAL.

On a motion for a new trial, after verdict for plaintiff, the trial court has no jurisdiction to dismiss the complaint.

Appeal from trial term; WILLIAM F. PITSIKE, Judge. Action by Howard Ives against Leopold Lindau and Michael Jacobs, on two promissory notes made by Lindau, and indorsed by Jacobs. After verdict for plaintiff, the defendant Jacobs having applied for a new trial on the minutes, the court of its own motion made an order setting aside the verdict and granting a new trial, provided that within 40 days the complaint be amended as to the defendant Jacobs, and, if not so amended, it be dismissed as to him. From this order the plaintiff gave notice of appeal, but afterwards withdrew appeal from that part of the order setting aside the verdict and granting a new trial.

Argued before BROWNE, EHRLICH, and McGown, JJ.

Louis J. Grant, for appellant. Jacobs Bros., for respondent.

EHRLICH, J. The method which appellant adopted to limit the scope of his appeal might be called in question, if objected to. The court will now, however, treat the contention as an appeal from that portion of the order which dismisses the complaint in its present form, of the court's own motion. We feel constrained to withhold our approval from the course of procedure adopted at the trial term. Upon the trial the court had power of its own motion to dismiss the complaint, or, if in doubt as to its sufficiency, and there were questions of law only involved, the court might have directed a verdict, subject to its opinion, and then, being satisfied that defendant ought to prevail, might order accordingly. Instead of doing this, the learned judge submitted the cause to the jury, thereby assuming, not only that the complaint stated a cause of action, but also that the evidence was such that the jury had become the judges of the facts, and defendant, moving for a new trial, thereby admits that such trial may properly be had upon the issues already framed. The court may not of its own motion dismiss a complaint, except at a stage in the progress of the cause when the sufficiency of the complaint might properly be questioned by the opposite party, and the plaintiff might regularly be heard in opposition. Upon a motion for a new trial on the minutes, the jurisdiction of the trial judge is limited to a review of the evidence and rulings at the trial. If a new trial is ordered, all question as to the pleadings is thereby remanded to the court presiding at such future trial. If a new trial is denied, judgment must be entered upon the verdict, and such judgment cannot be disturbed because of any alleged defect in the complaint, except on appeal. In support of the validity of the judgment it will be presumed that the evidence was sufficient to sustain it, and that any needed amendment of the complaint was had to make it conform to such evidence. In the present case, moreover, the complaint, as set forth in the appeal-book, states a perfect cause of action against the respondent, and no amendment could be rightfully ordered. The order, so far as appealed from, should be reversed, with $10 costs and disbursements.

BROWNE and McGown, JJ., concur.

TANNENBAUM et al. v. REICH.
FRANKEL V. SAME.

(City Court of New York, General Term. October 26, 1888.)

ARREST IN CIVIL CASES-FALSE REPRESENTATIONS OF SOLVENCY-EVIDENCE.

The falsity of defendant's representations of solvency, and his knowledge thereof, are sufficiently shown in support of an order of arrest by the entry of several judg ments against him within three months after such representations, aggregating $5,000, upon which only $103 are realized. PITSHKE, J., dissenting.

Appeal from special term.

Motions to vacate orders of arrest granted in the actions of Lippman Tannenbaum and others against Henry Reich, and Simon Frankel against the same defendant, founded on promissory notes. The motions were denied, and defendant appeals.

Argued before NEHRBAS, MCGOWN, and PITSHKE, JJ.

Horwitz & Hershfield, (Wales F. Severance, of counsel,) for appellant. Franklin Bien, for respondents.

The

On

NEHRBAS, J. The papers in the two cases are substantially the same. motions are made upon the plaintiffs' papers alone. The actions are founded on promissory notes dated on and after September 7, 1887. running from three to seven months after date. These were given for diamonds purchased of the plaintiffs through a broker named Honigman. The defendant represented to this broker that he was solvent and good, and able to pay all his debts in full. These statements were communicated to the plaintiffs in each action before the sale by them of the diamonds, and the fact of such communication made known to the defendant by Honigman. Upon the faith of these representations plaintiffs parted with their goods, and accepted the notes in suit. There can be no doubt of the fact that the representations were made to Honigman with a view to their being communicated to the plaintiffs. November 1, 1887, a judgment was entered in this court against the defendant for $1,674.07; on November 12th, another for $211.10; on the 17th, two others aggregating $555; and so on to the end of the month, when upwards of $5,000 appear entered against him. Suits are not ordinarily brought immediately after the incurrence of the liability. Debts aggregating $5,000 put in judgment within two or three months after a solemn declaration of solvency, to say the least, demand explanation. And when coupled with the fact that only $103 was realized out of the defendant's property wherewith to pay all these judgments, the conclusion is irresistible that the defendant was insolvent when he purchased the goods from plaintiffs, and had no intention to pay for them. But, says the defendant, it must be shown that he knew he was insolvent. True; but the law implies that he knows what he ought to know. That is to say, if he is in fact insolvent, he cannot close his eyes to that fact and disclaim knowledge thereof. The court is not bound to presume that any extraordinary event occurred whereby defendant's property disappeared. In the ordinary course of events, that property, including the diamonds purchased from plaintiffs, would not have been reduced practically to nothing in the space of two months. The falsity of the defendant's representations has, in my judgment, been sufficiently proven, and the orders appealed from must therefore be affirmed, with $10 costs, and disbursements in each case.

PITSHKE, J., (dissenting.) It seems to me that, by reason of the absence of the judgment rolls or their contents in the papers below, the amount or non-payment of the judgments mentioned was no evidence of insolvency at a prior date, over two months previous, inasmuch as it is not shown that the debts or damages whereon said several judgments are founded either existed or had (if existing) become due on the day when the alleged misstatement as to the defendant's solvency occurred. The arrest was for that. The said papers are therefore insufficient to sustain the arrests, and I therefore dissent from the conclusion reached by my associates. In my opinion, the orders appealed from should be reversed, with costs.

THORP v. PHILBIN.

(City Court of New York, General Term. November 23, 1888.)

1. LANDLORD AND TENANT-Holding Over-NOTICE OF INCREASED RENT OPTION OF LANDLORD.

Where the landlord, before the expiration of a lease for a year, notifies the tenant that the premises will be relet for not less than a year, and only for a specified in