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and 140 New York State Reporter as announced in the case of Perry v. Rogers, supra, which has not been overruled by the later case cited, for it is distinguishable in its special facts, the defendants' motions for the dismissal of the complaint, or for the direction of a verdict, should have been granted.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event. All concur.

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(Supreme Court, Special Term, New York County. May, 1907.) 1. CRIMINAL LAW-NEW TRIAL-NEWLY DISCOVERED EVIDENCE.

A motion for new trial under Code Cr. Proc. § 465 (7), will be denied, when attacked on the ground of newly discovered cumulative evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law,

88 2328-2330.] 2. SAME.

A motion for new trial for newly discovered evidence to establish an alibi, where defendant does not allege that the new witnesses were present when the crime was committed, and there was no effort to find them at the trial, and it does not appear that they would testify if a new trial was granted, will properly be denied.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law,

§ 2336.] 3. SAME-IMPEACHING TESTIMONY.

A new trial will not be granted in order to discredit a witness whose motives are unimpeached and whose credibility is attacked only by hearsay.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, 88 2331, 2332.] Louie Way was convicted of assault. On motion for new trial. Denied.

See 104 N. Y. Supp. 277.

William Travers Jerome, Dist. Atty. (James R. Ely, of counsel), for plaintiff.

Luman A. Spaulding, for defendant.

LEVENTRITT, J. The defendant had been convicted of assault in the first degree. On the trial of the action he attempted to prove two defenses: (1) Justification; and (2) an alibi. The alleged newlydiscovered evidence which he now presents as a basis for a new trial is in support of the latter defense. It is, however, of the same character as the evidence previously adduced, and is offered to establish the same fact. It is, therefore, merely cumulative, and, under subdivision 7 of section 465 of the Code of Criminal Procedure, is unavailing on an application for a new trial. Furthermore, if the witnesses now sought to be utilized were with the defendant under the circumstances detailed, his failure to produce them upon the trial has not been explained, and he has not shown the diligence which the law requires and which the exigency of his situation would have prompted. He does not even now allege their presence on the occasion of the assault, although he, of all others, should be cognizant of the fact. No effort to find them at the time of the trial is disclosed, and it does not appear that they would testify if a new trial were granted. The unusual circumstances under which two of the witnesses were discovered are almost conclusive of the improbability of their stories. These facts, viewed in the light of the positive identification of the defendant, not only by police officers, but by disinterested citizens, call for a denial of this application, and negative the probability that a different verdict would be returned, even if a new trial were to be granted.

The only remaining ground urged is in the nature of an attempt to discredit the testimony of a witness whose motives are unimpeached, and not even questioned, and whose credibility is attacked only through the medium of hearsay testimony. A new trial will not be granted upon the basis of such an attack. People v. Sullivan, 40 Misc. Rep. 308, 315, 81 N. Y. Supp. 989.

Motion denied.

(54 Misc. Rep. 468.)

GIFFORD V. GLEN TELEPHONE CO.

(Supreme Court, Trial Term, Fulton County. May, 1907.) TELEPHONES-FAILURE TO TRANSMIT MESSAGE-RECOVERY OF PENALTY.

Plaintiff sued to recover a penalty under Laws 1890, p. 1152, c. 566, § 103, providing that every telephone lipe shall receive dispatches from any individual on payment of the usual charges, and transmit the same impartially and in good faith, and, if it neglects to do so, shall be liable to a fine to the person sending or desiring to send such dispatch. The evidence showed that plaintiff called up from the pay station of defendant its central office, giving the name of the party with whom he desired to talk, and hung up the receiver and deposited the proper charge. The operator, not hearing the coin register, refused to connect plaintiff until he had paid the toll charge with the receiver off the hook, according to the established rule of the company, and the only way by which the operator could know that the toll had been paid. Held, that the company was not liable for the penalty imposed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, 88 79-81.]

Action by Lionel C. Gifford against the Glen Telephone Company to recover a penalty. Complaint dismissed.

Keck & Rogers, for plaintiff.
Fred Linus Carroll, for defendant.

MCLAUGHLIN, J. This action is brought to recover a penalty of $100 under section 103 of the Transportation Corporation Law, Laws 1890, p. 1152, c. 566, which provides, concerning telephone and telegraph companies, that:

"Every such corporation shall receive dispatches from and for other telegraph or telephone lines or corporations, from and for any individual, and on payment of the usual charges by individuals for transmitting dispatches as established by the rules and regulations of such corporation, transmit the same with impartiality and good faith and in the order in which they are received, and if it neglects or refuses to do so it shall pay one hundred dollars for every such refusal or neglect to the person or persons sending or desiring to send any such dispatch, and entitled to have the same so transmitted, but arrangements may be made with the proprietors or publishers

and 140 New York State Reporter of newspapers for the transmission for publication of intelligence of general and public interest out of its regular order."

There is little or no dispute as to what I consider the material facts involved. The plaintiff attempted to telephone over defendant's lines from a pay station where the charge or toll was to be deposited in a box beside the instrument. A person wishing to telephone called the central office, and gave the name of the party with whom he wished to communicate. When the desired party was obtained, the operator at the central office notified the person and directed him to deposit the proper charge in the box beside the instrument, and upon being apprised that this had been done by a system of bells denoting the various coins deposited, connected the wires. The plaintiff, at the time in question, for the purpose of talking with some one at Gloversville, went to the store of Orlando Gifford at Cranberry Creek, in the county of Fulton, where the defendant had installed one of its pay stations in connection with its telephone system. He took the receiver off the hook and called the defendant's central office, and communicated to the operator there in charge the name of the party with whom he desired to talk. He then hung up the receiver and deposited 15 cents -the proper charge—in the box intended for its reception, and the operator not being able to hear the coins register, refused to connect him with the party with whom he desired to speak until he had paid the charge with the receiver off the hook, which was the established rule and was the only way in which the operator could know that the charge had been paid. The plaintiff refused to make a further deposit, insisting that he had a right to talk-having once deposited his money in the box—and, the operator refusing to permit him to do so, he immediately brought this action to recover the penalty specified in the statute.

I am of the opinion that, if every fact as claimed by the plaintiff be found in his favor, nevertheless he would not be entitled to recover. The statute imposes the penalty not for an error of judgment of one of defendant's operators, a defective instrument, or a misunderstanding as to whether a required charge for a message has been paid, but solely for the refusal to transmit dispatches with impartiality, good faith, and in order of their reception, after payment of the usual charges as established by rules and regulations of such corporation. Under the defendant's system, if the charge or toll were paid while the receiver of the instrument was hung up, the operator would be totally ignorant as to whether the proper amount, or, indeed, any amount at all, had been paid; and the propriety and necessity for the rule that the charge must be paid with the receiver down are too apparent to need comment, and this rule was sufficiently established at the trial. The instruction upon the telephone instrument was sufficient to apprise the plaintiff, even though he had never used the instrument before, of what it was necessary to do. There is absolutely no evidence to indicate that the refusal to permit the plaintiff to talk was by reason of any of the acts for which the statute imposes a penalty; on the contrary, the fact is uncontradicted that the operator offered to allow the plaintiff to talk provided he would deposit the 15 cents in the box while the receiver was off the hook; and, if he had previously deposited that amount,

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

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