28, 1916, taking all his furniture and effects, and leaving the apartment vacant. At a time thereafter, not precisely fixed, he gave the superintendent of the building, at the latter's request, the right to enter the apartment for the purpose of redecorating. From the 15th of September the apartment was occupied by a new tenant, to whom the landlord leased it, and the defendant claims that this alleged trespass created by the landlord's act in giving possession to the new tenant relieved him from liability for any part of the September rent, for which the plaintiff sues in his first cause of action.

The plaintiff contends that a provision of the lease enabled him to re-enter upon the vacation by the defendant. The learned trial court gave judgment for the defendant. As the rent was payable in advance on the 1st day of each month, the September rent became due and payable prior to the occupancy by the new tenant, and the plaintiff should have had judgment for that sum. We are not called upon to determine either the nature or the extent of such claim as the defendant may have against the plaintiff for his unlawful entry, if it were such, as there was no counterclaim. Why the plaintiff was not allowed to recover for the telephone charges sued for in his second cause of action does not appear.

Judgment reversed, with $30 costs, and judgment directed for plaintiff for the sum of $100.60, with interest from September 1, 1916, and with appropriate costs in the court below. All concur.

SHAPIRO et al. v. MOLLAT.

(Supreme Court, Appellate Term, First Department. March 8, 1917.) APPEAL AND ERROR 1171(1)—JUDGMENT-REVERSAL.

Where defendant's breach of contract and liability was clearly established, a judgment for a clearly inadequate amount will be reversed on plaintiff's appeal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4546, 4552, 4554.]

Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by Morris Shapiro and others against Henry Mollat. From the judgment, plaintiffs appeal. Reversed, and new trial ordered. Argued February term, 1917, before GUY, PHILBIN, and MULLAN, JJ.

Max Sheinart, of New York City, for appellants.

George L. Donnellan, of New York City, for respondent.

GUY, J. Plaintiffs made a contract with the defendant for the performance of certain work and furnishing material for the alteration. of premises occupied by defendant for the sum of $575, and it is undisputed that after performance the work was stopped by the defendant because he was about to be dispossessed from the premises.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

The nature and substance of the cause of action, as stated at the foot of the summons, is work, labor, and services, materials furnished, and breach of contract. The plaintiffs proved the rendition of work, labor, and services, and the furnishing of materials. As before stated, the defendant's breach was undisputed, and one of the plaintiffs testified to facts which entitled them to recover substantial damages. The trial justice found in favor of plaintiffs for the sum of $80, evidently basing his finding mainly on the testimony of one Riger, an employé of defendant.

Although plaintiffs' proof fell short in some respects of authorizing the recovery which was claimed, the award of $80 made by the trial justice is so inadequate that the judgment must be reversed, and a new trial ordered, with $30 costs to the plaintiffs to abide the event. All concur.

(177 App. Div. 390)

EQUITABLE TRUST CO. OF NEW YORK v. HAMILTON, County Treasurer. (Supreme Court, Appellate Division, Second Department. March 30, 1917.) 1. COUNTIES 206(2)-CLAIM AGAINST AUDIT-RECONSIDERATION.

A county board of supervisors, after considering and auditing a claim, and allowing it, may before it is paid reconsider its action, and reaudit the claim.

[Ed. Note. For other cases, see Counties, Cent. Dig. §§ 322, 323, 325.] 2. COUNTIES 206(2)—CLAIM AGAINST AUDIT AND REAUDIT-CERTIFICATE OF CLERK.

The mere giving to a claimant against a county by a clerk of the board of supervisors of a certificate that the claim has been audited at a certain amount does not prevent the board reconsidering its action, and reauditing the claim.

[Ed. Note. For other cases, see Counties, Cent. Dig. §§ 322, 323, 325.] 3. COUNTIES 206(2)—CLAIM AGAINST ASSIGNMENT AFTER AUDIT-REAUDIT. That a claim against a county, as audited, is assigned before its reconsideration by the board, does not prevent its thereafter reconsidering and reauditing it; the assignee acquiring no greater right therein than the assignor had, and being chargeable with notice of the board's power to reconsider and reaudit.

[Ed. Note. For other cases, see Counties, Cent. Dig. §§ 322, 323, 325.]

Appeal from Special Term, Rockland County.

Mandamus, on relation of the Equitable Trust Company of New York, against Walter G. Hamilton, County Treasurer of Rockland County. Peremptory writ denied, and relator appeals. Affirmed.

The opinion of Mr. Justice Tompkins in the court below is as follows:

[1] The decision of the Court of Appeals in the case of People ex rel. Hotchkiss v. Supervisors of Broome County, 65 N. Y. 222, which was approved and followed in several later cases (Adams v. Town of Wheatfield, 46 App. Div. 469, 61 N. Y. Supp. 738; People ex rel. Chase v. Wemple, 144 N. Y. 482, 39 N. E. 397; Osterhoudt v. Rigney, 98 N. Y. 233), squarely holds that a board of supervisors may, after having audited and allowed a claim, reconsider its action, and reaudit or disallow the same and is controlling on this motion, so far as that question is concerned.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

The cases cited by relator's counsel go no further than to hold that an audit of a claim or account duly made by a board of supervisors cannot be attacked collaterally. Where a claim has been considered and audited, and allowed, but not actually paid, the same board which made the audit may reconsider its action, and reaudit the account. That was what was done in this case.

[2] While it is true that the clerk of the board of supervisors had given the claimant, Stryker, a certificate showing that the claim had been audited at the sum of $3,000, nevertheless it had not been paid by the county treasurer prior to the reconsideration of the claim by the board of supervisors.

[3] The fact that the claim as audited was assigned to the relator prior to the reconsideration thereof by the board of supervisors does not change the situation. The assignee acquired no greater right in the claim or against the county by virtue of the assignment than the assignor, Mr. Stryker, himself had, before the assignment was made. The assignee must be presumed to have known that the board of supervisors had power to reconsider its action and reaudit the claim.

The relator's motion for a peremptory writ of mandamus against the county treasurer must therefore be denied, with $25 costs. The claim will now be before the board of supervisors, as though it had never been acted upon, and if the board refuses to act upon it, or allow or disallow it, the claimant will have a remedy by writ of mandamus, and if the claim is a proper claim against the county, and is not allowed at a proper amount, then the claimant's remedy will be by a writ of certiorari, to review the audit.

Argued before JENKS, P. J., and THOMAS, STAPLETON, RICH, and BLACKMAR, JJ.

Mortimer B. Patterson, of Nyack, for appellant.

Ernest W. Hofstatter, of Nyack, for respondent.

PER CURIAM. Order affirmed, on the opinion of Mr. Justice Tompkins, with $10 costs and disbursements.

GORBMAN v. CITY OF NEW YORK.

(Supreme Court, Appellate Term, First Department. March 12, 1917.) 1. MUNICIPAL CORPORATIONS 857-INJURIES ON PLAYGROUND-SUFFICIENCY OF EVIDENCE.

Evidence held insufficient to establish a city's negligence in temporarily placing a basket ball structure in one corner of a public playground, where it fell upon infant plaintiff.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1812.]

2. MUNICIPAL CORPORATIONS 857-INJURIES ON PLAYGROUND-SUFFICIENCY OF EVIDENCE.

Evidence held insufficient to establish a city's negligence in placing a basket ball structure on slightly sloping ground in a public playground, where it had no reason to anticipate its falling upon infant plaintiff, and testimony indicated a stranger tipped it onto him.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1812.]

Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Abraham Gorbman, by Louis Gorbman, his guardian ad

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

litem, against the City of New York. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed.

Argued February term, 1917, before GUY, PHILBIN, and MULLAN, JJ.

Lamar Hardy, Corp. Counsel, of New York City (Terence Farley and E. Crosby Kindleberger, both of New York City, of counsel), for appellant.

Harry Stackell, of New York City, for respondent.

PHILBIN, J. The action is brought to recover damages for personal injuries alleged to have been sustained by plaintiff, an infant 11 years old, through the negligence of the defendant. The indorsement on the summons stated that the negligence consisted in permitting a certain basket ball structure in Tomplins Square playground to become loose, causing it to fall and strike plaintiff without any fault on his part. The answer was a general denial. The court, sitting without a jury, awarded the plaintiff $500.

While the plaintiff and other boys were playing in the park, plaintiff stooped down to tie his shoe near the structure, and while in that position the latter fell and injured him. The structure consisted of a timber about 7 feet long placed in a perpendicular position and supported by three uprights, which extended from the floor of the triangular wooden platform and rested against the post about 4 feet from the ground. At the top of the pole or post was the basket fastened to a wire netting nearly square. At the time of the accident, the structure had been placed one side and was standing in a corner formed by a one-story building and an iron fence, and was not in the open part of the playground. The plaintiff testified that it was on a hill, and it fell. "There was a house there; so they put the post near the house; so it was near a shanty; so they shake it, and it fall; it fell on my right shoulder." Later, when asked if he did not say they did something, he answered, "No, it was shaking." He further said he saw the post shake when the boys would play "tag" around it, and that it would not shake if nobody pushed it; also that the hill was a little slanting. A photograph of the post, as it stood at the time of the accident, was received in evidence. The plaintiff and his companions were playing tag in the vicinity of the house and post. A companion of the plaintiff testified that the ground, where the post was, was a little uneven. Another boy testified for the plaintiff that the post was standing on a slope, and that, a big boy pushing it over, it fell on plaintiff's shoulder.

The caretaker of the playground, called by the plaintiff, testified that the said basket ball goal had been in the place where it fell for about 2 weeks, and that he had notified the city bureau of recreation. to take it away. The witness later testified for the defendant, and said that the goal had been removed from the center of the park to allow the boys to play baseball, and had been put in the place in question, and along the side of the house, for the purpose of safety, or out of the way, and that the difference in grade was not more than 2 or 3 inches in an area of 12 feet. He said the structure weighed

about 250 pounds, that it required all his strength to push it, and that the post was not shaky, but was very solid. The play instructor employed by the defendant testified that the ground around the structure sloped about 2 or 3 inches. In his opinion the latter was stable. A laborer of the defendant testified that the structure was in a good, safe position when he put it in the place from which it fell, and that the ground was level, except for a slight slope that would hardly be noticed. Another witness, a boy about plaintiff's age, said he saw a boy push it over.

As appears from the foregoing review of the evidence, there is no claim made that the fall of the basket ball structure was due to any defect in it. The charge of negligence, briefly stated, rests upon two grounds: First, that the structure was not properly in the place where it fell; and, secondly, that it was so carelessly placed upon a hill or sloping ground as to make it fall if a boy, in playing, put his hand upon it.

[1] There appears to be no foundation for the first point. The structure was part of the equipment of the playground and was properly in the latter. Owing to the need for baseball of the space it originally occupied, it was placed temporarily one side, and the location selected appeared to be sufficiently secluded from the general playground to make it suitable for the purpose. It was put in such a position that it could not be used for basket ball. The city recreation bureau was fully justified in allowing the structure to remain in anticipation of a renewal of its use in the park. Therefore, if the finding of the trial court as to the negligence of the defendant is sustained, it must be on the second ground, that the structure was so negligently placed on uneven ground as to call upon any ordinarily prudent person to expect it to fall on slight disturbance.

[2] The evidence in support of such a theory is unsatisfactory. It does not show that the appliance was unbalanced by its position, so as to tip for any slight cause. The most that was said was that it was "shaky" when the boys played around it, but it would not shake. when nobody touched it. The mere fact that it would shake under such circumstances would not be an indication of unstability, particularly when it is remembered the structure weighed about 250 pounds. The testimony as to the grade was unnecessarily vague. If the appliance was in such a plainly precarious and unstable position as to charge the defendant with notice, it should not have been difficult for the plaintiff to have submitted adequate proof thereof. The only thing approaching definite information as to the grade was the testimony of defendant's witness that there was a difference of about 2 or 3 inches in an area of about 12 feet. The cause of the fall appeared on plaintiff's case, when one of his witnesses testified that a big boy pushed the post over. He was corroborated by a witness called by the defendant. The defendant omitted no duty owing under the circumstances. It placed a part of the equipment of the playground temporarily out of the way, so that the space it had occupied could be used for other purposes for the time being. The appliance belonged in the playground, and that was the proper location in which to keep