at that place, save the testimony of one of the defendant's witnesses that he himself once tripped over that place. Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ. Royal E. T. Riggs and Theodore Connoly, for appellant. HOOKER, J. We are inclined to hold as matter of law that danger was not reasonably to be anticipated from the presence of the hole in which the plaintiff was injured, and hence the defendant is not liable. In Butler v. Village of Oxford, 186 N. Y. 444, 79 N. E. 712, the leading cases in this state dealing with irregularities in sidewalks of substantially the size of the one which caused the plaintiff's injury were carefully reviewed. It seems generally (1) that an irregularity of this size, which is in the form of a depression, is such as not reasonably to suggest danger; but, (2) on the other hand, where the depression is of this or greater depth, and the hole is so small or of such a character that a pedestrian's foot is liable to become fastened in the hole or caught under its edge, or where the irregularity is an abrupt upward obstruction above the general level of an even sidewalk, whose presence would not in the ordinary use of the street be anticipated, a question of fact is presented as to the defendant's negligence (see cases cited in the Butler Case). In our opinion, the hole which caused the plaintiff's injury falls in the first classification. The judgment should be reversed. Judgment and order reversed and new trial granted; costs to abide the event. All concur. (121 App. Div. 110.) QUIGLEY V. MONSEES et al. (Supreme Court, Special Term, Kings County. October 10, 1907.) 1. HUSBAND And Wife-OwnERSHIP OF PROPERTY BY ENTIRETY. A husband and wife, owning realty as tenants by the entirety, hold, until the death of either, as tenants in common. 2. INTOXICATING LIQUORS-LICENSES-CONSENTS OF PROPERTY OWNERS-STAT UTES. Where a husband and wife own realty as tenants by the entirety, the husband is not the agent of the wife, by virtue of the marital relation, and cannot without her authority give the consent required of owners by Liquor Tax Law, Laws 1896, p. 60, c. 112, § 17, subd. 8, as amended by Laws 1897, p. 220, c. 312, before the issuance of a liquor license. 3. SAME. A license was originally obtained for April only. No license was procured for May or June, and no liquor was sold on the premises in process of construction until after July 19th. Held, that there was no continuous occupation of the premises for the liquor traffic, so as to do away with property consents for a license issued July 19th. In the matter of the application of James Quigley, a taxpayer, against George Monsees and others, to revoke a liquor tax certificate. License revoked. and 140 New York State Reporter Andrew F. Van Thun, for petitioner. CRANE, J. The application to revoke and cancel the liquor tax certificate No. 10,310, issued to and held by George Monsees and John Leide for 5924 Fifth avenue, is granted. The statute requires (subdivision 8, § 17, Liquor Tax Law; Laws 1896, p. 60, c. 112, as amended by Laws 1897, p. 220, c. 312) that before a license to sell liquor shall be issued there must be obtained and filed consents in writing that such traffic in liquor be so carried on in the place intended, executed by the owner or owners, or by a duly authorized agent of such owners, of at least two-thirds of the total number of dwellings within 200 feet of that place. The application for this license stated that there were 12 such dwellings within 200 feet of the premises for which the license was asked, and that the owners of all had consented as required. Such is not the fact. Seven of these dwellings were owned by David Meyer and Blanche M. Meyer, his wife, as tenants by the entirety; that is, until the death of either, they held the property as tenants in common. Hiles v. Fisher, 144 N. Y. 306, 39 Ñ. È. 337, 30 L. R. A. 305, 43 Am. St. Rep. 762; Grosser v. City of Rochester, 148 N. Y. 235, 42 N. E. 672. The husband could not convey away or injure the wife's one-half undivided interest without her consent; neither could he give the consent required of dwelling owners by the liquor law tax, so as to bind her. David Meyer gave his consent for the seven dwellings owned by him and his wife; but the wife refused to consent, and testifies that she never authorized him to act for her. Mr. Meyer does not claim that he signed for anybody but himself, and the marital relation constitutes no agency in this case. It therefore follows that the owners of 7 of the 12 dwellings within 200 feet of 5924 Fifth avenue never consented to the traffic in liquor at that place. Furthermore, the license for this place was originally obtained for April only. No license was procured for May or June, and in fact no liquor was sold, nor business of any kind carried on, in the premises, unfinished and in process of construction, until after July 19, 1907. This condition did not constitute a continuous occupation for the liquor traffic, so as to do away with property consents for the license issued July 19, 1907, and the statements of continuous occupation in the application were materially false. As above stated, the license is revoked and canceled. (121 App. Div. 504.) SCHAAF v. DENNISTON et al. (Supreme Court, Appellate Division, Second Department. October 11, 1907.) VENUE-CHANGE OF PLACE OF TRIAL-WAIVER OF RIGHT TO CHANGE. Parties, by noticing a case for trial in a certain county, procuring adjournments, stipulating that the case should be placed on the calendar in that county for trial at future dates, accepting the favor of the opening of defaults on condition that the case should be placed on the calendar of the same county for trial at early dates, appearing in court apparently ready to try the case when reached, and applying for a postponement be cause of the absence of a witness, without suggesting that the place was inconvenient for attendance, waived their right to move for a change of venue on the ground that the convenience of witnesses would be promoted, and it was an abuse of discretion to grant the change as a favor. Appeal from Special Term, Kings County. Action by Charles Schaaf against Edward H. Denniston and another. From an order granting defendant's motion to change the place of trial, plaintiff appeals. Reversed. Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, HOOKER, and MILLER, JJ. Henry Hoelljes, for appellant. Clarence P. Moser, for respondents. HIRSCHBERG, P. J. The order appealed from, granting the defendants' motion to change the place of trial of the action from the county of Kings to the county of Monroe, appears to have been granted on the ground that the convenience of witnesses will be promoted by the change. Without detailing the circumstances attending the making of the contract sued upon, the bringing of the action, and the number and the residence of the witnesses, it may be conceded that the defendants would be entitled to a change of the place of trial, had their application therefor been made in good faith and timely; but the undisputed facts disclosed by the record are such as, in my opinion, to deprive the defendants of the right as a right to have the trial in the county of Monroe. The plaintiff resides in the county of Kings, and brings the action as the assignor of a claim for goods sold and delivered to the defendants, who are residents of the city of Rochester. The action was brought on August 23, 1906. The defendants defaulted in pleading, but at the request of their attorney the default was opened by the plaintiff, without payment of costs, and an answer was accepted upon the consent and stipulation of the defendant's attorney that he would not oppose a motion to place the action on the preferred calendar of the court for the trial of short causes in the county of Kings. In September, 1906, the defendants served an amended answer to the complaint. In October both parties served a notice of trial for the November term in the county of Kings, and the case was duly placed on the calendar for that term. Thereafter a notice of advancement of the trial was served on the defendants' attorney on November 10th, asking to have the trial advanced and set down for the 17th day of December. On December 17th the case appeared on the day calendar, the defendants again made default, and the case was marked for an inquest. At the request of the defendants' attorney, the plaintiff's attorney again opened the default, without terms of any kind, except the condition, then agreed to by defendants' attorney, that the case should be restored to the day calendar and set down for trial in Kings county at an early date; and pursuant thereto the case was restored to the day calendar on December 19th, and on that day, on the application of the defendants' attorney, the action was again adjourned to January 7, 1907. and 140 New York State Reporter It further appears without dispute that on January 7th the defendants made a motion to have the cause stricken from the day calendar on the ground that plaintiff's assignors were not residents of Kings county, which motion was denied by the trial justice, and the case marked "ready." On the next day the trial of the case was adjourned to February 11th, on the application of the defendants' attorney, because of the absence of a material witness. On that day the plaintiff was ready with all his witnesses in court to try the action. On January 29th a written stipulation was signed by both the attorneys for the plaintiff and for the defendants, adjourning the trial of the action until the first Monday of April, 1907. The stipulation is entitled in Kings county, and clearly contemplated a trial there at the April term. The proceedings for the change of the place of trial were instituted by the procurement of an order to show cause, made January 30th, on affidavits verified, respectively, on January 29th and 30th. By noticing the case for trial in Kings county; by procuring the adjournments; by stipulation that the case should be placed on the calendar in that county for trial at future dates; by accepting the favor of the opening of defaults, coupled in each instance with a condition that the case should be placed on the calendar of Kings county for trial at early dates; by appearing in court apparently ready to try the case when reached; by applying for a postponement because of the absence of a witness, without a suggestion that the place was inconvenient for attendance; and by the general laches indicated in the brief statement I have given of the history of the case-the defendants clearly lost all right to insist upon a change of venue. They waived the right as a right, and it was not the exercise of a wise discretion to give them the change as a favor. In Tubbs v. Embree, 89 Hun, 475, 35 N. Y. Supp. 320, it was held that the service of a notice for trial at a circuit court by the defendant was a waiver of the right to thereafter move to strike the cause from the circuit calendar and to place it upon the special term calendar. In Coleman v. Hayes, 92 App. Div. 575, 87 N. Y. Supp. 12, it was held that where both the parties to an action notice it for trial at a term of the court to be held in the county in which the action is brought, and the defendant appears at such term. of court, and applies for and obtains, on the ground of the illness of a material witness, an adjournment of the trial until the next term of court, he thereby waives his right to move to have the venue changed to another county in order to promote the convenience of witnesses. I think the course of the defendants in this case amounted to an agreement on their part to try the case in Kings county. No other object than such a trial can be assumed as the purpose of the successive notices and stipulations. The acceptance of the favor in opening the defaults, coupled with the condition that the cause should be placed on the Kings county calendar for trial at an early date, was in effect an agreement to try the case in that county, and is a waiver of any right as such to compel the change of trial. The order should be reversed, with $10 costs and disbursements, and the motion denied, with costs. All concur. (121 App. Div. 424.) ANDERSON v. ROSENBERG. (Supreme Court, Appellate Division, Second Department. October 11, 1907.) NONSUIT-GROUNDS-PREMATURE ACTION. Where a complaint alleged a promise to pay plaintiff an amount to be paid by a trust company for assessments as soon as payment was made by the company, and action was brought December 4th, whereas payment was not made by the company until December 23d following, the action was prematurely brought, and a nonsuit was properly granted. [Ed. Note. For cases in point, see Cent. Dig. vol. 17, Dismissal and Nonsuit, § 108.] Appeal from Special Term, Kings County. Action by Rachel Anderson against Charles Rosenberg. From a judgment for defendant, plaintiff appeals. Modified and affirmed. Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ. Stanislaus N. Tuckman, for appellant. HOOKER, J. The complaint alleged a promise of the defendant to pay to the plaintiff $1,000, or so much thereof as the trust company paid for assessments, as soon as the trust company made the payment. The action was commenced on the 4th day of December, 1905, by the service of the summons on the defendant. The payment by the trust company of the assessments was not made until the 23d day of December, 1905. The nonsuit was, therefore, properly granted, for the reason that the action was prematurely brought. The judgment, however, provides that the complaint should be dismissed "upon the merits." Because of this error, the judgment must be modified by striking out the words "upon the merits," and, as thus modified, affirmed, without costs. All concur. (55 Misc. Rep. 32.) GILROY V. INTERBOROUGH-METROPOLITAN CO. et al. (Supreme Court, Special Term, New York County. June, 1907.) 1. DISCOVERY-UNDER STATUTORY PROVISIONS--ORDER-VACATING. An order for the examination of plaintiff, and an order, on a showing that plaintiff was without the state, directing that the service of the order for examination be made by service of a copy thereof without the state, will be set aside where it appears that plaintiff is a resident of Scotland, and is not, at the time, within this country. [Ed. Note. For cases in point, see Cent. Dig. vol. 16, Discovery, § 75.] 2. DEPOSITIONS-PERSONS WHOSE DEPOSITIONS MAY BE TAKEN-PARTIES. Under the express provisions of Code Civ. Proc. § 887, the examination of any party to an action may be had by commission. [Ed. Note. For cases in point, see Cent. Dig. vol. 16, Depositions, § 12.] Action by Alexander Bruce Gilroy against the Interborough-Metropolitan Company and others. Motion to set aside an order for the examination of plaintiff and an order directing that the service of such |