him it would be all right, and then completed the arrangement directly with plaintiff. Held, that this did not confer authority on the salesman to bind defendant on a written contract with plaintiff.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 283.]

Patterson, P. J., dissenting.

Appeal from Trial Term.

Action by John J. Falihee against the John Simmons Company. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Reversed, and new trial granted.

Argued before PATTERSON, P. J., and INGRAHAM, HOUGHTON, MCLAUGHLIN, and SCOTT, JJ.

J. Culbert Palmer, for appellant.
Claude V. Pallister, for respondent.

SCOTT, J. The defendant appeals from a judgment entered on a verdict. The action is for damages for defendant's refusal to fulfill a contract for the sale and delivery of merchandise. The defense is that no valid contract was entered into, because the alleged contract was for the sale of goods for the price of more than $50, and no note or memorandum thereof was ever, as it is said, made in writing and subscribed by the said defendant or his lawful agent.

The plaintiff contemplated bidding on a contract to do the plumbing work on certain houses in the course of construction, and sent out letters to a number of firms dealing in plumbers' supplies, asking for estimates. The defendant submitted an estimate, giving a detailed list of the materials to be supplied and fixing the price at $7,736. This estimate was not signed. After receiving this estimate, plaintiff sent for one Surre, a salesman in defendant's employ, and stated that he would accept the proposal if the estimated price could be reduced to $7,500. Surre replied that he had no authority to make or change prices, as was the fact; but he called up on the telephone one Walton, the defendant's manager, who, as is conceded, had authority to bind defendant. Surre informed Walton that plaintiff wished the price reduced to $7,500, to which Walton replied, "All right." Plaintiff and Walton then had a conversation over the telephone, and Walton said:

"We will accept your contract for $7,500. How soon will they have to be delivered?"

Thereupon Surre, at plaintiff's request, struck out of the proposal the original price of $7,736, and wrote in place thereof the words and figures, $7,500, and wrote at the bottom of the estimate the words:

"The amount agreed $7,500 by H. W. Walton. Delivery to be made June 15, 1905."

It is upon this act of Surre's that the claim is made that a note or memorandum of the contract was made in writing and signed by defendant's agent. It is conceded, as it must be, that until Surre wrote the above words at the foot of the estimate the paper was merely a tentative proposal, not binding upon defendants. It is also clear, and is not disputed, that Surre had no general authority to make a contract in behalf of defendants, although Walton had. The question,

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therefore, is whether or not Surre undertook to make a binding contract, and, if so, whether he was specially authorized by Walton to do so.

We consider that as a matter of law the question should have been answered in defendant's favor. All that Walton did was to consent to a change in the price stated in the estimate. Nothing was said over the telephone respecting the signing of the estimate, or respecting anything else, except changing the proposed price. The agreement by Walton to accept a contract at $7,500 was made in a conversation with plaintiff, and not with Surre, and therefore cannot be construed as conferring any authority on Surre. Furthermore the memorandum made by Surre does not purport to be an execution of the contract or the signing of a proposal therefor on behalf of defendant. It appears on its face to be merely a memorandum that Walton had agreed to a reduction of the price to $7,500. Since there was no other basis than this for plaintiff's claim that a valid contract had been made, the complaint should have been dismissed.

The judgment and order must be reversed, and a new trial granted, with costs to appellant to abide the event. All concur, except PATTERSON, P. J., who dissents.

BOLAND et al. v. SOKOLSKI.

(Supreme Court, Special Term, New York County. November 26, 1907.)

1. NOTICE-SERVICE-SUFFICIENCY.

The Legislature may prescribe that notice required as a condition precedent to the doing of an act may be given by publication, or by leaving it at the place of business or dwelling house of the one to be notified; but, in the absence of such provision, the notice must be personal.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Notice, § 23.] 2. MECHANICS' LIENS-UNDERTAKING TO DISCHARGE-JUSTIFICATION OF SURETIES-NOTICE-SUFFICIENCY OF SERVICE.

Since Mechanic's Lien Law, Laws 1897, p. 523, c. 418, § 18, requiring service of notice of the justification of sureties on an undertaking to discharge a mechanic's lien, does not provide any substitute for personal service, the service must be personal; Code Civ. Proc. §§ 796, 797, authoriz ing other service of papers in actions being inapplicable. Mechanic's Lien Law, Laws 1897, p. 519, c. 418, § 11, providing that service of notice of lien may be made by leaving a copy at the owner's last known place of resi dence, indicates the omission of a similar provision in section 18 was intentional.

In the matter of a mechanic's lien of Charles H. Boland and another, assigned to Frederick Saland, against Albert Sokolski. Motion by the assignee to disallow the justification of sureties on an undertaking to discharge the lien. Granted.

Feltenstein & Rosenstein (Abraham Rosenstein, of counsel), for the motion.

Johnson & Johnson (Lewis Johnson, of counsel), opposed.

GIEGERICH, J. The question is whether notice of justification of sureties upon an undertaking given to discharge a mechanic's lien

must be personal, or whether it is sufficient to leave such notice at the place of residence of the lienor with a person of suitable age and to mail copies thereof to the lienor. The Legislature has power to say that the notice required as a condition precedent to the doing of an act may be given by publication or by leaving it at the place of business or dwelling house of the party to be notified; but, in the absence of such legislative provision, such notice must be personal (Rathbun v. Acker, 18 Barb. 393; McDermott v. Board of Police, 25 Barb. 635; People ex rel. Niagara Bridge & Canandaigua R. Co. v. Lockport & B. R. Co., 13 Hun, 211; Mitchell v. Clary, 20 Misc. Rep. 595, 46 N. Y. Supp. 446. Section 18 of the mechanic's lien law (chapter 418, p. 523, Laws of 1897), which requires the service of notice in such a case as this, makes no provision for any substitute for personal service. Sections 796 and 797 of the Code of Civil Procedure have no application, because the notice in question is not a paper in an action. Kerr v. McGuire, 28 N. Y. 446, 453. The fact that the Legislature in section 11 of the act provides that service of a copy of the notice of lien may be made by leaving it at the last known place of residence of the owner indicates that the omission of such a provision in section 18 with respect to a notice of the kind in question was intentional.

Motion granted, with $10 costs.

SCHNITZER v. PRICE.

(Supreme Court. Appellate Division, Second Department. November 22, 1907.) BROKERS-ACTIONS FOR COMPENSATION-SUFFICIENCY OF EVIDENCE.

Where a broker sues for commissions for producing a purchaser able to purchase on defendant's terms, one of which was a cash payment of $25,000, evidence that the purchaser's assets consist of a stock of groceries, the value of which is not shown, and a cause of action against third parties for $10.000 or $12,000 for money loaned, and that he has no funds in his possession, held insufficient to show the purchaser's ability to pay $25,000 cash.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 65, Brokers, §§ 116120.]

Appeal from Trial Term, Kings County.

Action by Barnett Schnitzer against Joseph Price. From a judginent for plaintiff, and an order denying a new trial, defendant appeals. Reversed.

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

Clarence L. Barber, for appellant.
Jacob Gordon, for respondent.

MILLER, J. This is an action for broker's commissions. No contract was entered into by the principals, and the only question involved is whether the plaintiff showed that he produced a purchaser able to purchase on the defendant's terms. One of the terms was a cash payment of $25,000. The proposed purchaser testified that he had in his possession funds sufficient to carry out the contract, but his cross-ex

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amination showed that his assets consisted of a stock of groceries, the value of which was not shown, and a cause of action for $10,000 or $12,000 against third parties for money loaned, and that he had no funds in his possession.

I think this fell short of proving his ability to pay $25,000 cash, and advise that the judgment and order be reversed. All concur.

CARBONATING APPARATUS CO. v. GEARY.

(Supreme Court, Appellate Division, Second Department. November 22, 1907.) 1. SALES-ACTIONS FOR PRICE-DEFENSES-FRaud.

Where, in an action on notes given for a soda fountain, it appears that the purchaser not only used the fountain for more than a year, but that he also paid notes on the same, there is a failure to sustain the defense that the notes were obtained by false representations.

2. SAME-FAILURE OF CONSIDERATION.

Where, in an action on notes given for a soda fountain, it appears that a deduction was made to cover some alleged defects, and that defendant continued to use the fountain and accepted the deduction as an adjustment, there is a failure to sustain the defense of failure of consideration. Appeal from Municipal Court, Borough of Brooklyn, First District. Action by the Carbonating Apparatus Company against Myron F. Geary. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, GAYNOR, and MILLER, JJ.

John C. Judge, for appellant.

Sutherland R. Haxtun, for respondent.

WOODWARD, J. This action was brought to recover the sum of $72, with interest, upon four promissory notes given by the defendant to the plaintiff. Upon the trial the plaintiff produced the notes and certificate of protest, and proved that there was due upon them, with interest and protest fees, the sum of $85.33. This amount was not controverted by the defendant, and stands admitted. The further proof showed that the plaintiff had delivered to the defendant a soda fountain, to be paid for by installments, for which the notes in suit, among others, had been given, and that at the time of the trial the soda fountain was still in possession of the defendant.

The defendant, while admitting the making of the notes, alleged in his answer that the notes had been obtained by false and fraudulent representation. This, however, he fails to prove, for it is shown by the evidence that he not only used the fountain for more than one year after obtaining it, but that he also had successively paid various notes on the same. Nor is the alleged failure of consideration proved. A deduction of $20 was made to the defendant to cover some alleged defects; and as the defendant admits that he continued to use the fountain, and that he received and accepted the deduction as an adjustment, it is evident that he assumed, by the making of the notes, the obligation which devolves upon a maker of negotiable instruments.

The dismissal of the complaint was error, and the judgment of the Municipal Court should be reversed, and a new trial ordered.

Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur.

LEYDEN V. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. November 22, 1907.) 1. COURTS-MUNICIPAL COURTS-JURISDICTION.

An action to recover damages for loss of plaintiff's wife's services because of personal injury she received through defendant's negligence is within the jurisdiction of the Municipal Court.

2. COSTS-TAXATION-APPEAL TO COURT FROM DECISION OF TAXING OFFICER. Generally, a motion for retaxation of costs is in the nature of an appeal from the action of the clerk, and the court, upon a motion for retaxation, will not consider any items save those to which objection was made before the clerk.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Costs, § 823.] 3. SAME-RETAXATION BY COURT ON MOTION.

Code Civ. Proc. § 3228, subd. 5, provides that in all actions in the County Court of Kings county, which, but for the amount claimed, could have been brought in the Municipal Court of New York City, where defendant was personally served in New York City, plaintiff shall recover no costs, unless he shall recover $250 or more. Plaintiff, in a case within the statute, recovered but $50, and judgment was entered against defendant for $50 and costs. On taxation of costs defendant objected to some items, but not to the costs generally. Held, that the clerk had no right to tax such costs, and hence defendant was not concluded by his failure to object generally, and the merits of plaintiff's right to costs should have been determined on motion for retaxation.

Appeal from Kings County Court.

Action by William C. Leyden against the Brooklyn Heights Railroad Company. From an order denying a motion to retax costs, defendant appeals. Reversed, and motion granted.

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

D. A. Marsh, for appellant.
Frank Herwig, for respondent.

HOOKER, J. This action was commenced on March 11, 1905, in the Kings County Court, subsequent to the enactment of subdivision 5 of section 3228 of the Code of Civil Procedure. The trial resulted in a verdict of $50 for the plaintiff, and judgment was entered by the plaintiff in his favor and against the defendant for $50, the amount of the verdict, together with $128.58 costs. On October 13, 1907, the costs were taxed, and upon that taxation the defendant appeared, and, although objecting to one or two insignificant items of disbursements, which were finally disallowed by the clerk, did not object to the taxation of costs generally. A motion was thereafter made in the County Court for an order that the taxation of costs be vacated and that the 106 N.Y.S.-49