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and 140 New York State Reporter formance of the duties assigned them, whether diligently or carelessly perforined, are the acts of the municipality and cannot be repudiated. This is of necessity, for the municipality can only act by its duly constituted authorities. People v. Stephens, 71 N. Y. 527.

The subsequent acts of the plaintiff preclude recovery in this case. If any fraud had been committed by the defendant, it was the duty of the city to rescind the contract. While it is impossible in this class of cases to restore the property to the third party, the city cannot accept the benefits arising from construction of this character. The act of the city, after full knowledge, in assessing the cost of this walk with 10 per cent. added upon the property owner, prohibits recovery in this case.

Its common council, by a resolution, has certified that the abutting property was benefited in an amount in excess of the amount paid by the city, and has directed that this amount be a lien upon the property abutting. By this act the city has adjudged that it has suffered no damage by reason of the material used by the defendant and has accepted the work of the defendant. This action cannot be maintained. People ex rel. Treat v. Coler, 56 App. Div. 460, 68 N. Y. Supp. 767; People ex rel. Grannis v. Roberts, 45 App. Div. 145, 61 N. Y. Supp. 148; People v. Stephens, 71 N. Y. 527.

The judgment rendered herein is reversed, with costs to appellant. Judgment reversed, with costs to appellant.

(55 Misc. Rep. 618.)

In re DEU EL.


A liquor tax certificate, issued on an application consented to by the owners of only 7 dwellings, where there were 12 dwellings within the prescribed distance, 9 consents being necessary in such case, will be cancel

ed as unlawfully issued. 2. SAME--JUDICIAL PROCEEDINGS-EVIDENCE.

In au application for a liquor license, applicant failed to answer the question, “Since what date have said premises been continuously occupied for such traffic in liquors?Held, that he could not, in proceedings to

revoke his license, show the date from which they were so occupied. Application by James Alfred Deuel for an order canceling the liquor license of Jeal F. Smith. Application granted.

Slade & Harrington, for petitioner.
James A. Leary, for Jeal F. Smith.

ROCKWOOD, J. James Alfred Deuel brings this proceeding under section 28, subd. 2, of the liquor tax law (Laws 1896, p. 69, c. 112, as amended by Laws 1897, p. 229, c. 312), praying for an order revoking and canceling the liquor tax certificate No. 20,602 issued to one Jeal F. Smith. The principal ground of the application is that the license should not have been issued to Smith, because a material statement in the application therefor was false and untrue, in that the consents required by section 17 of the liquor tax law had not been properly filed, as required by the section. An order was issued re

quiring Smith to show cause why said certificate should not be canceled and revoked, and upon the return day of the proceeding an answer was filed in substance denying the allegations of the petition. Upon the issues thus joined testimony has been taken, and the question of fact is presented for a determination.

At the outset it is to be noted that, in the original application as finally amended, it was stated that there were 12 buildings occupied exclusively as dwellings, "the nearest entrance to which is within 200 feet, measured in a straight line, of the nearest entrance to the premises where the traffic in liquors is intended to be carried on." This would require the consent of 9 owners of such buildings to authorize the issuance of the certificate, excluding the consent of the owner of the premises; and there were only y consents attached to the certificate. Upon the face of the certificate, therefore, it was defective; 'and the certificate could not have been lawfully issued. The owner of the certificate endeavors to explain this by proof to the effect that several of the houses stated to be dwellings were in fact boarding houses, and therefore, not required to be counted. Upon a consideration of the testimony in this respect, the court is not satisfied that the buildings were boarding houses. The only proof upon that subject was the testimony of Michael E. McTygue and Jeal F. Smith. Mr. McTygue stated, in answer to a question by the court, that he did not in fact know that the buildings were boarding houses and that he had no personal knowledge upon the subject. The testimony of Mr. Smith is at variance with the answers to the question in his application, which latter are by the court deemed controlling. Were these dwellings in fact boarding houses, it would be very easy to prove it by producing in court as witnesses the owners of the premises or the parties conducting the boarding houses. There was no such testimony, and, the burden of proof being upon the owner of the certificate to substantiate his contention, the court feels, from the testimony, that it must find that there is no sufficient evidence upon which it could be found as a fact that the dwellings in question were boarding houses at the time when the certificate was issued. It stands then that the application was defective upon its face.

The owner of the certificate contends that notwithstanding this defect in the application, his license should not be canceled because traffic in liquors was actually carried on in the premises in question on March 23, 1896, and that there has been no abandonment of such traffic. The answer to this contention is, in part, contained in the application itself, in that question No. 11, reading, “Since what date have said premises been continuously occupied for such traffic in liquors?" was wholly unanswered. There was, therefore, nothing before the county treasurer to show that there had been no abandonment of the traffic, as claimed, nor was the certificate issued upon that theory. It clearly appears, both from the application itself and the statement of the county treasurer, made by consent of parties in open court during this proceeding, that the certificate was issued erroneously. The cases submitted by counsel for the owner have been duly considered, and are not deemed to be applicable to the case at bar.

An order may be entered revoking and canceling liquor tax cer

and 140 New York State Reporter tificate No. 20,602 granted to Jeal F. Smith; and said order shall also provide that the holder of said liquor tax certificate, or any other person having said certificate in his possession or under his control, shall forthwith surrender said certificate to the county treasurer of the county of Saratoga, N. Y., or to his successor in office. The question of costs is reserved for determination after counsel for respective parties have been heard upon the subject.

JOHN SIMMONS CO. v. SHATTUCK. (City Court of New York, Special Term. September, 1907.) TRIALSPECIAL CALENDAR—IMPROPER NOTICE.

Since Code Civ. Proc. $ 324, authorizes the justices of the New York City Court to appoint the time of holding Trial Terms, and rule 1 of that court provides that no Trial Term shall be held during September, with a certain exception, a case not within the exception is improperly noticed for trial in September under rule 2, providing that a cause may be placed on the special calendar where a note of issue has been filed and the cause noticed for trial. Action by the John Simmons Company against Edward L. Shattuck, Plaintiff moves to place the cause on special calendar under rule 2 of the City Court of New York. Motion denied, with leave to renew.

Henry W. Sykes, for plaintiff.
Thos. c. Patterson, for defendant.

WADHAMS, J. An action may be placed on the special calendar, under rule 2 of the rules of the City Court of the city of New York, where a note of issue has been filed and the cause noticed for trial. The defendant contends that the cause has not been properly noticed for trial, and that therefore the motion is premature. A paper purporting to be a notice of trial was served, which gives notice that the issue of fact will be brought to trial and an inquest taken at a Trial Term appointed to be held “on the 16th day of September, 1907, at 10 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard.” Section 324 of the Code of Civil Procedure provides :

“The justices of the court, or a majority of them, from time to time must appoint and may alter the time of holding Special and Trial Terms of the court."

Pursuant to the statute the court have appointed the Trial Terms by the adoption of the rules of the City Court. Rule 1 is entitled “Trial Terms,” and, after providing that each Trial Term shall begin on the first Monday of the month, continues: "No Trial Term shall be held during the months of July, August and September," except as hereinafter prescribed. The exception refers to “marine cases and certain cases where a speedy trial is required in furtherance of justice.' There is no contention that this case is within their exception. It is therefore clear that no Trial Term was appointed for September, and that this action was therefore improperly noticed for trial.

Motion denied, with leave to renew upon service of proper notice of trial. No costs.




In an action for damages an amendment of the complaint by increasing the amount of damages claimed was granted at the close of the case after all the evidence was before the court. The argument was made in the absence of the jury, and in accordance with his instructions no mention was made of the granting of the motion by counsel in summing up to the Jury. The amendment in no way changed the nature of the complaint. Held, that the discretion of the court was properly exercised.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, $ 601.] Action by Ignatz Sohman against the Metropolitan Street Railway Company. Verdict for plaintiff, and defendant moves to set the same aside. Motion denied.

Leopold Freiman-Counsie and Moses Feltenstein, for plaintiff.
J. J. Welsh (Henry A. Robinson, of counsel), for defendant.

WADHAMS, J. The amendment of the complaint by increasing the amount of damages claimed was granted at the close of the case after all the evidence was before the court. The argument was made in the absence of the jury, which had left the courtroom by direction of the presiding justice, and in accordance with his instructions no mention was made of the granting of such motion by counsel in summing up to the jury. Counsel for defendant pleaded surprise, and requested that a juror be withdrawn, and urged that the motion should be made at Special Term.

There could not be and there was no surprise on the part of the defendant under such circumstances, and it would only have delayed the trial unnecessarily to have withdrawn a juror and sent the parties to Special Term upon such application. All the cases cited by the defendant are clearly distinguishable. In these cases it was held that, where the defendant claimed surprise and asked for a postponement of the trial, it was error to permit an amendment setting up special damages, as in Edge v. Third Ave. R. R., 57 App. Div. 29, 67 N. Y. Supp. 1002, and Freeland v. Brooklyn Heights R. R., 54 App. Div. 90, 66 N. Y. Supp. 321, or by changing the character of the negligence charged, as in McDonald'v. Holbrook, Cabot & Daly Co., 105 App. Div. 90, 93 N. Y. Supp. 920, and Oats v. N. Y. Dock Co., 99 App. Div. 487, 90 N. Y. Supp. 878, or by changing the allegation of performance of a contract to an excuse for nonperformance, as in La Chicotte v. Richmond R. & El. Co., 15 App. Div. 380, 44 N. Y. Supp. 875, and Poerschke v. Horowitz, 84 App. Div. 443, 82 N. Y. Supp. 742. In short, upon such objection the plaintiff was not permitted to amend to enable him to present other proof than that which the complaint had forewarned the defendant he would be called upon to meet. The amendment here permitted was after all the proof was already in, and in no way changed the nature of the complaint. Although there is a dictum in Rhodes v. Lewin, 33 App. Div. 369, 54 N. Y. Supp. 106, that a motion to amend by increasing

and 140 New York State Reporter the amount of the sum demanded for damages should not be granted at Trial Term, it has not been followed in the later cases. On the other hand, it has been repeatedly recognized by the court as the established rule that the trial court is authorized to direct an amendment of the complaint by increasing the amount for which judgment is demanded, and whether such amendment should or should not be allowed is a matter in the discretion of the trial judge. Knapp v. Roche, 62 N. Y. 614; Clark v. Brooklyn Heights R. Ř., 78 App. Div. 478, 480, 78 N. Y. Supp. 811; Zimmer v. Third Ave. R. R., 36 App. Div. 265, 272, 55 N. Y. Supp. 308; Dakin v, Liverpool, L. & G. Ins. Co., 13 Hun, 122, affirmed 77 N. Y. 600; Dunham v. Hastings Paving Co., 95 App. Div. 360, 88 N. Y. Supp. 835, 837; Frankfurter v. Home Ins. Co., 10 Misc. Rep. 157, 31 N. Y. Supp. 3; Baylies' Code Pl. 625. These cases have not followed the obitur dictum in Rhodes v. Lewin, 33 App. Div. 369, 54 N. Y. Supp. 106, which must be considered overruled. It appearing in this case that the defendant could not have been prejudiced or surprised, the amendment having been allowed after the case had been tried upon the pleadings as they stood, and it further appearing from the evidence before the court that the amount of the demand should be increased to permit an adequate recovery should the jury resolve the facts in favor of the plaintiff, the discretion of the court in permitting the amendment is properly exercised. No cause was shown which would justify the delay of the trial necessarily incident to a formal motion at Special Term for that relief.

The defendant also moves to set aside the verdict on the ground that it is excessive. In my opinion the amount recovered is not so unreasonable or excessive as to indicate passion, prejudice, partiality, or corruption of the jury, or, as stated in Egan v. Dry Dock, etc., R. R., 12 App. Div. 556, 42 N. Y. Supp. 188, “it is not so plainly exorbitant that it should be set aside.” There is evidence that the plaintiff suffered from an abrasion of the hand and from concussion of the brain, producing constant vomiting for three or four weeks, meningitis, temporary loss of eyesight of the left eye and impairment of the vision of both eyes, and that this impairment has lasted for over six years; that the plaintiff has suffered loss of weight, and, whereas he was a strong man before the accident, he has since been unable to work. The plaintiff was himself upon the stand, and the jury were enabled to judge for themselves by observation of him as to the extent of the injuries to his eyes. It also appears that some $300 were expended for medical attendance. No bill of particulars was demanded in this case, and I am of the opinion that the allegations of the complaint were sufficiently broad to entitle the plaintiff to prove the damages sustained.

Motion to set aside verdict denied.

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