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tion that she furnish a surety for the rent. At the close of plaintiff's case the court granted a motion to dismiss the complaint, and appeal comes to this court from the judgment, and from an order denying a motion for a new trial.

It seems clear that the plaintiff never became a tenant; that she was not holding over, as the premises were rented originally to her husband, and he had formally given notice that he did not desire the same after the expiration of his term. The plaintiff was wrongfully in possession of the premises. The evidence does not disclose the use of any violence in her removal. She appears to have left the premises upon her own motion after her goods had been removed by the defendant, acting the while upon the advice of counsel, and it is difficult to conceive of a cause of action as against these defendants under the circumstances. She had no more right in the premises than she would have had if the possession had been physically surrendered on the 1st day of May, 1905, and she had moved into the same on the 2d day of the month, without permission on the part of the defendant Safford. Under such circumstances, the defendant would certainly have had the right to remove her goods and to permit her to walk out of the premises with her children, and the case is not different simply because she wrongfully remained in the premises after her husband, who was providing for her, had surrendered the same.

The judgment and order appealed from should be affirmed, with costs. All concur.

(121 App. Div. 494.)

WILLIAM P. RAE CO. V. KANE et al. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. BROKERS-COMPENSATION-PERFORMANCE OF CONTRACT.

Where plaintiff, who, together with other brokers, had the defendants' farm listed for sale, showed it to a committee of the board of education of New York City, and unsuccessfully attempted to sell it to the city as a site for a truant school, and later defendants gave another broker the right to sell it on commission, and through him made an agreement with the comptroller of New York City to sell the land to the city, not knowing that the plaintiff had made any attempt to do so, the plaintiff is not entitled to the commission.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Brokers, $ 47.] 2. APPEAL-DISPOSITION OF CAUSE-REVERSAL-NECESSITY FOR NEW TRIAL.

Although the court, on appeal from the denial of a motion to direct a verdict, determines that the motion should have been granted, it cannot then grant the motion and end the case, but can only reverse the judg

ment and order a new trial. Appeal from Trial Term, Kings County.

Action by the William P. Rae Company against Peter F. Kane and others to recover a broker's commission for the sale of a farm. From a judgment for plaintiff and an order denying a motion for new trial, defendants appeal. Reversed, and new trial granted.

Argued before HIRSCHBERG, P. J., and WOODWARD, HOOKER, RICH, and GAYNOR, JJ.

Richard M. Martin, for appellants.
Frank Paine Reilly (Robert H. Elder, on the brief), for respondent.

and 140 New York State Reporter GAYNOR, J. The controlling facts in the case are that the defendants put their farm of about 103 acres in the hands of a large number of brokers for sale, including the plaintiff; that the plaintiff's representative saw them; that they authorized the plaintiff to sell the farm at $650 an acre; that the plaintiff went with a committee of the board of education of the city of New York on April 25, 1904, and showed them several farms in the same vicinity, including the defendants' farm; that on one of these farms the plaintiff had a purchase option; that the said committee selected that farm for purchase and for a truant school; that the board of education resolved to purchase it; that the board of estimate and apportionment refused to do so on June 22, 1904, passing a resolution that no money would be spent for a school for truants until all willing pupils were first provided for; that on July 23 another broker called on the defendants and informed them he might sell their land to the board of education, and got an agreenient from them that if he did so they would pay him a commission; that up to this time the plaintiff had never informed the defendants and they did not know that the board of education or the city was a proposed purchaser, or that any effort had been made to sell the defendants' farm to it; that on July 25, 1904, the defendants, through the said second broker, made an agreement with the comptroller of New York to sell the land to the city for $700 an acre; that on September 16, 1904, the board of estimate and apportionment approved such proposed purchase; that on September 21, 1904, the board of education approved of it; and the purchase was made.

The motion to direct a verdict for the defendants should have been granted. The plaintiff was entitled to a commission only on finding and producing a purchaser. They did not produce the purchaser or even notify the defendants that they were negotiating with the purchaser. The defendants made the sale through another broker, agreeing to pay him a commission, without knowing that the plaintiff had ever done anything to sell the land to the board of education.

Although the defendants were entitled to have the motion to direct a verdict in their favor granted, our practice is in such a condition that it appears that we cannot now grant the motion and end the case, but only reverse the judgment and order a new trial. This practice in many cases leads to much perjury on the new. trial.

The judgment and order should be reversed and a new trial granted. Judgment and order reversed, and new trial granted, costs to abide the event. RICH, J., concurs. HIRSCHBERG, P. J., and WOODWARD and HOOKER, JJ., concur in result.

(121 App. Div. 469.)

HUNTER V. BLODGET. (Supreme Court, Appellate Division, Second Department. Oct. 4, 1907.) CoxTRACTS-ACTIONS-EVIDENCE-ADMISSIBILITY.

In an action for a commission under an oral agreement, where plaintiff, an architect, testifies that defendant was to pay him 10 per cent. of the gross amount of a contract as a consideration for refraining froin

figuring on it, and that defendant stated he was to receive 20 per cent. of the gross amount, but defendant testifies that he had promised to pay 10 per cent. of the net profits on the contract, and that he informed plaintiff that his own commission was 20 per cent. of the net profits, evidence that in fact defendant was to receive 20 per cent. of the net profits is admis sible. Appeal from Trial Term, Westchester County.

Action by Frederick Leo Hunter against H. Townsend Blodget. From a judgment for plaintiff, and an order denying motion for new trial, defendant appeals. Reversed, and new trial granted.

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

Dwight McDonald (William N. Cohen, on the brief), for appellant. Joseph Fitch, for respondent.

MILLER, J. The plaintiff and defendant were architects. Both were engaged in figuring upon and obtaining work for a firm of interior decorators. Plaintiff claims that the defendant agreed to give him 10 per cent. of the gross amount of a certain contract then under consideration, if he, the plaintiff, would not figure on it, and he asserts that the defendant said that he, the defendant, received as a commission 20 per cent. of the gross amount of the contract, which he would divide with the plaintiff. The gross amount of the contract in question was $15,135. Had the plaintiff obtained the work, he would have received 5 per cent. of that amount, or $756.75, but he claims that, in consideration of his doing nothing at all, the defendant agreed to give him twice that amount, or $1,513.50, and the judgment appealed from awards him the latter sum. The defendant's version of the transaction was that he was to give the plaintiff 10 per cent. of the net profit made by the firm taking the contract, and the defendant says that he informed the plaintiff that his, the defendant's commission was 20 per cent. of such net profit. The court excluded evidence offered by the defendant to show the terms of the defendant's employment by the firm of contractors, and the exception to said ruling requires a reversal of the judgment. It does not seem necessary to discuss the proposition that such evidence bore directly upon the issue to be decided by the jury. It is not likely that the defendant agreed to give more than he was to receive. The issue between the parties was whether the agreement was to pay 10 per cent. of the gross amount of the contract or 10 per cent. of the net profits, and any circumstances bearing upon the probability or improbability of either version of the transaction was relevant. Ostrander v. Snyder, 73 Hun, 378, and cases cited on page 382, 26 N. Y. Supp. 263, affirmed 148 N. Y. 757, 43 N. E. 988.

The judgment and order must be reversed. Judgment and order reversed, and new trial granted, costs to abide the event. All concur.

106 N.Y.S.-4

and 140 New York State Reporter (121 App. Div. 404.)

KING V. FORD et al. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. MASTER AND SERVANT-NEGLIGENCE-INJURIES TO SERVANT-SUFFICIENCY OF

EVIDENCE.

In an action against a master for wrongful death of a servant killed by the falling of a rock in an excavation wherein deceased was working, evidence examined, and held insufficient to show negligence on defendant's part.

(Ed. Note.--For cases in point, see Cent. Dig. vol. 34, Master and Sery

ant, 98 954-977.) 2. SAME-ASSUMPTION OF RISK.

A servant working in an excavation made by fellow servants assumes the risk of being injured by the falling of a rock resulting from the neg. ligence of bis fellow servants in failing to properly clear away the loose rocks on the side of the excavation.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, 88 567-573.] Appeal from Trial Term, Westchester County.

Action by Annie E. King, as administratrix, etc., against Porter D. Ford and another. From a judgment for plaintiff and from an order refusing a new trial, defendants appeal. Reversed.

Argued before HIRSCHBERG, P. J., and WOODWARD, HOOKER, and RICH, JJ.

Frederick E. Fishel, for appellants.
M. B. Patterson, for respondent.

WOODWARD, J. The defendants were engaged as contractors in excavating earth and rock and constructing certain cement walls at Ossining for the New York Central & Hudson River Railroad Company on and prior to the 2d day of March, 1906. Plaintiff's intestate was an employé of the defendants, and constituted one of the members of the gang engaged in constructing the cement wall. Some days prior to the 2d day of March, on which date the plaintiff's intestate was killed through the falling of a rock upon him, a second gang, employed by the defendants, had exploded a large blast of giant powder or other high explosive in the work of preparing the way for the construction of the cement wall. This left the excavation walls in a rough and uneven condition, the testimony showing that the blasted rock was cracked in many directions, some portions of it projecting beyond the general lines of the wall, and the alleged negligence on the part of the defendants consisted in a failure on their part, as it is claimed, to afford the plaintiff's intestate a reasonably safe place in which to perform his work of constructing the cement wall. The particular neglect was an alleged failure on the part of the defendants to properly clear away the loose rock and débris after the explosion; it being conceded that plaintiff's intestate was killed by the falling of a rock which had been left projecting 12 to 18 inches after the blast. Motions to dismiss the complaint and for the direction of a verdict were made and denied, and these exceptions present the principal questions raised upon this appeal from the judgment in favor of the plaintiff.

Unless the case of Perry v. Rogers, 157 N. Y. 251, 51 N. E. 1021, is overruled by that of Simone v. Kirk, 173 N. Y. 7, 65 N. E. 739, we are unable to understand how the plaintiff can recover in this action. Plaintiff's intestate was employed in a common work of ex« cavating for and constructing a cement wall; the work was being carried on in a limited section of about 50 feet, and there is nothing in the evidence to show that he was not fully familiar with all of the facts connected with the work. There is no suggestion that the place originally furnished for him to work in was not as safe as the circumstances and the nature of the work permitted, and the mere fact that the place became unsafe through the negligence of fellow servants in failing to properly perform a detail of the work which might be intrusted to reasonably skillful employés does not impose a liability upon these defendants. Plaintiff's intestate knew the nature of the work. He knew that a blast had been fired, that the rock had been thrown out in large quantities, and the fact of the projecting rock was as obvious to him as it could have been to the defendants if they had been personally present. There was undisputed evidence in the case of the custom of cleaning down these walls after an explosion, and of the fact that men had actually passed over this particular part of the wall, and had, by the use of sledges and other tools, cut away the projecting end of the rock only the day before the accident. There is some evidence that there was a rainstorm the day before the accident, and this may have loosened the earth around the rock in such a manner as to make it unsafe after the time that it was inspected and cut away, but, if this was the case, there was no possible evidence of any lack of care on the part of the defendants, for they had no reason to anticipate that a rock which it had been found necessary to cut away on Tuesday—if it was Tuesday—would fall of its own weight on Wednesday. Plaintiff's intestate was not brought from a remote point and put to work in a dark place, with no warning as to the dangers, as in the Simone Case, supra. He was at work right in the immediate presence of the blasting gang. He knew the situation as well as any other man there could know it, and the defendants having furnished proper appliances and reasonably competent fellow servants, and these having performed the duty assigned to them of cleaning down the walls after the firing of a blast, how can the defendants be said to have neglected any duty which they owed to the plaintiff's intestate? Certain the defendants were not called upon to personally inspect the place at every moment of the time during all of the changes incident to the performance of the work. The place was originally as safe as it could well be, considering the undertaking, and the defendants had a right to intrust the details to the men whom it had employed, and who must be presumed to have had reasonable skill. No one in authority is alleged to have done anything negligent, or to have failed to perform any duty, other than the supposed duty of preventing this rock from falling, or of keeping the plaintiff's intestate away from the place, and we fail to see in the case anything on which negligence on the part of the defendants may be predicated. Plaintiff's intestate must be held to have assumed the risks incident to the negligence of fellow servants, and under the law

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