all law or precedent. It is conceded that defendants, after the alleged breach, did not go into the open market at once to procure the goods in question, but delayed in that action until as late as January 17th, following, and then commenced to purchase goods from time to time until the 28th of April next. It was the duty of defendants, if they intended to hold plaintiffs for damages, to have immediately made purchase of the goods in question, instead of delaying as they did; the market rising during all of the time. The law required them to minimize their damages as much as possible, which in this event they failed to do. I conclude, therefore, that defendants had no valid counterclaim against plaintiffs in the respect named, and that the counterclaim should have been dismissed.

As a new trial would not afford opportunity to change any of the facts as now presented, the judgment must be reversed, the counterclaim dismissed, and an affirmative judgment granted for the plaintiff for the sum of $74.80 upon its conceded claim, with $30 costs in this court and costs in the court below. All concur.

HUDSON NAV. CO. v. UNION TRUST CO. OF ALBANY et al.

(Supreme Court, Special Term, Albany County. April 30, 1917.)

1. COSTS 85 PERSONS ENTITLED.

Under Code Civ. Proc. § 3253, authorizing certain allowances to parties in mortgage foreclosure actions, etc., an allowance may be made a defendant, who did not file an answer, but aided the court in the trial of the case.

[Ed. Note. For other cases, see Costs, Cent. Dig. §§ 346, 347.]

2. COSTS 199-TIME FOR APPLICATION.

An application for an extra allowance, which the court may make to any party in mortgage foreclosure cases, etc., under Code Civ. Proc. § 3253, cannot be entertained after costs have been adjusted and judgment entered, since rule 45 requires such applications to be made before final costs are adjusted.

[Ed. Note. For other cases, see Costs, Cent. Dig. § 762.]

Action by the Hudson Navigation Company against the Union Trust Company of Albany, N. Y., and others. On application of defendant Englis for an extra allowance. Motion denied.

See, also, 163 N. Y. Supp. 473.

Barber, Watson & Gibboney, of New York City, for plaintiff.

Arthur L. Andrews, of Albany, for defendant Union Trust Co., of Albany, N. Y.

Thomas S. Fagan, of Troy, for defendants McCarthy.

Merrill, Rogers & Terry, of New York City, for defendant Englis.

RUDD, J. The defendant Englis makes application for an extra allowance under section 3253 of the Code of Civil Procedure. The trial of the issues herein was had before the justice holding this term. [1] The court believes the case comes within the provisions of the

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

section of the Code. The defendant now moving the court did not file an answer, but through his attorneys was helpful to the court upon the trial and submission of the case.

[2] The difficulty with the situation now is that costs have been adjusted, including extra allowances for which applications were formally made by two of the defendants. Judgment having been entered, this application cannot be entertained under rule 45.

The motion is denied.

CEE BEE CEE WAIST & COSTUME CO., Inc., v. BORENSTEIN.

(Supreme Court, Appellate Term, First Department. May 1, 1917.) 1. SALES 481-CONDITIONAL SALE-RETAKING GOODS-JUSTIFICATION OF FAILURE TO RESELL.

Where chattels conditionally sold were retaken from the buyer for nonpayment, and were not sold at public auction within 60 days thereafter, as provided by Personal Property Law (Consol. Laws, c. 41) § 65, in an action by the buyer to recover part of the purchase price paid, it was necessary for the seller to justify his failure to sell the goods in accordance with the statute.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1449-1455.]

2. SALES DEE.

464-CONDITIONAL SALE-WAIVER OF STATUTE PROTECTING VEN

There can be no waiver of Personal Property Law, § 65, protecting conditional vendees by requiring a conditional vendor, who has retaken the goods, to sell at public auction, either by a waiver included in the conditional sale agreement, or by a waiver at the time or after default in any payment by the conditional vendee.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1352.]

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

Action by the Cee Bee Cee Waist & Costume Company, Incorporated, against Joseph Borenstein. From a judgment for plaintiff, defendant appeals. Judgment reversed, and new trial ordered, unless plaintiff stipulates to reduce the judgment, in which event the judgment, as modified, is affirmed.

Argued April term, 1917, before GUY, COHALAN, and DELEHANTY, JJ.

Cohen, Wallerstein & Weissman, of New York City (Reuben M Cohen, of New York City, of counsel), for appellant.

Lester M. Friedman, of New York City, for respondent.

COHALAN, J. Plaintiff sued to recover the sum of $125, claimed to have been paid to the defendant as part of the purchase price under a contract for the conditional sale of certain machines. After a default in the payments had occurred under the agreement, the defendant repossessed himself of the machines, and under the statute he failed to sell the articles at public auction. On the trial the defendant asserted: (1) That the goods were retaken under the conditional

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

sale agreement, by the terms of which the plaintiff waived all its rights under any laws requiring the sale at public auction in the event of the repossession of the same, and permitting the defendant to retain the rent paid; (2) that at the time of the retaking the plaintiff waived all claims to redemption, or the right to sell at public auction provided for by law.

[1] The testimony is clear, both by the admissions of the defendant's attorney and by the evidence at the trial, that the chattels were retaken from the plaintiff on or before February 25, 1916, and were not sold at public auction within 60 days thereafter, as provided for by section 65 of the Personal Property Law. It was necessary, therefore, for the defendant to justify the failure to sell the machines in accordance with the statute. He endeavored to do so by claiming a waiver at the time that the machines were retaken.

[2] It has been recently held in the case of Adler v. Weis & Fisher Co., 218 N. Y. 295, 112 N. E. 1049, that there can be no waiver of the provisions of law protecting conditional vendees, either by a waiver included in the conditional sale agreement, or by a waiver at the time or after default in any payment by the conditional vendee. The court in this respect said:

"In the case under consideration the pleading, when liberally construed, may fairly be regarded as alleging a waiver on the part of the vendee, and the exclusion of the evidence of waiver, which the defendant sought to introduce, presents the question whether such a waiver, if in fact made, is sufficient to take the case out of the operation of the statute. In our opinion it is not. The same considerations of public policy, which required us to hold that an express waiver in the contract was invalid, impel us to the conclusion that a mere waiver made after default is equally offensive to the public policy manifested in the statute, and therefore not effective to take such a case out of the operation of the statute."

On the trial the plaintiff's only witness testified that at the time of the making of the agreement there was paid to the defendant the sum of $50, and in addition the latter received a motor in exchange, which the witness valued at $75. The total claim, therefore, of the plaintiff was the sum of $125. There was no competent proof submitted by the plaintiff with regard to the value of the motor given by it in exchange. The only clear proof offered on that point was that of the defendant's two expert witnesses, who fixed its value at $50. The probative evidence showing that the plaintiff had paid $50 on account, and had given a motor worth only $50, the utmost that the plaintiff could claim was $100.

Judgment reversed, and a new trial ordered, with $30 costs to appellant to abide the event, unless the plaintiff, within 10 days after service of a copy of the order hereon and notice of entry thereof in the court below, stipulates to reduce the judgment to the sum of $100, with appropriate costs in the court below, in which event the judgment, as so modified, is affirmed, without costs of appeal to either party.

DELEHANTY, J., concurs. GUY, J., concurs in the result.

CASOLARO v. FISH.

(Supreme Court, Appellate Term, First Department. May 1, 1917.) 1. FRAUDS, STATUTE OF 33(1)—PROMISE TO PAY DEBT OF ANOTHER.

Where defendant, about to take a mortgage on property upon which plaintiff held a mechanic's lien, in consideration of plaintiff's satisfying the lien and completing the work, paid two-thirds of the amount due, and agreed to pay balance on completion of work, the contract was not within the statute of frauds, as being a contract to answer for the debt of another.

[Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. § 50.] 2. CONTRACTS 28(3)-ACTION ON ORAL CONTRACT-SUFFICIENCY OF EVI

DENCE.

Evidence held insufficient to support findings for plaintiff in suit upon alleged oral contract by defendant to pay balance due on plaintiff's mechanic's lien, covering property owned by others to whom defendant had loaned money and had taken participation in mortgage covering the property.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 133-140, 1820, 1821.]

Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by Salvatore Casolaro against Hyman Fish. Judgment of the Municipal Court for plaintiff, and defendant appeals. Reversed, and complaint dismissed.

Argued April term, 1917, before GUY, COHALAN, and DELEHANTY, JJ.

Krakower & Peters, of New York City (Charles C. Peters, of New York City, of counsel), for appellant.

Henry M. Flateau, of New York City, for respondent.

GUY, J. Plaintiff had a contract with the Wick Realty Company for the painting of a building owned by that corporation. The company having defaulted in making payments required by the contract, plaintiff abandoned the work and filed a notice of lien for moneys due and to grow due him, and the theory upon which he recovered below was that defendant promised that, if he would satisfy the lien and complete the work, defendant would pay him the full amount of his

claim.

[1] Defendant denied the making of such agreement, and further pleaded the statute of frauds. As far as the latter defense is concerned, however, if the plaintiff's testimony be true, the undertaking of the defendant was not to answer for the debt or default of another within the meaning of the statute, for the defendant was about to take a mortgage on the property, and plaintiff testified that, in consideration of the satisfaction of the lien and the completion of the work, defendant paid two-thirds of the amount due on the contract and agreed also to pay the balance on completion. A. Schwoerer & Sons, Inc., v. Stone, 130 App. Div. 796, 115 N. Y. Supp. 440, affirmed 200 N. Y. 560, 93 N. E. 1116, 34 L. R. A. (N. S.) 159, 140 Am. St.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 164 N.Y.S.-45

Rep. 640; Voska, Foelsch & Sidlo, Inc., v. Ruland, 172 App. Div. 616, 158 N. Y. Supp. 780.

[2] But the finding in favor of plaintiff on the facts is clearly against the weight of evidence. Plaintiff testified that after he stopped work on the contract and filed the notice of lien he met the defendant at the office of Ittman & Wolff, the former being secretary and treasurer of Wick Realty Company, and both copartners owning the stock of the corporation; that defendant then and there promised to make immediate payment in cash of two-thirds of the amount due plaintiff, telling the plaintiff, however, not to mention defendant's promise to any one; and that plaintiff should see Ittman & Wolff and tell them he would take off the lien upon their personal guaranty to pay him. Defendant denied that he made any such arrangement with the plaintiff, or that he ever had any conversation with him, and the record shows that on or about February 10, 1916, when the two-thirds payment was made to plaintiff, the defendant took a participation to the extent of $2,500 in a $6,000 second mortgage on the lot and building of the Wick Realty Company; that at the time of the closing of this $2,500 loan Ittman had drawn up an affidavit showing the incumbrances on the property, such affidavit including the claim of the plaintiff; that defendant's loan of $2,500 was split up among the lienors and others specified in the affidavit, including the plaintiff; that before the closing of the loan, and after making the alleged agreement testified to by plaintiff, he consulted his attorney, and with his attorney attended at the office of Ittman & Wolff with a satisfaction of the lien; that his attorney then demanded a written guaranty from Ittman & Wolff for the payment of all moneys due and to grow due under the contract, it being necessary to send the paper to one of the district courts so as to procure Wolff's signature; that plaintiff insisted that defendant's check be certified, but was induced by his attorney to accept it uncertified, the latter stating that he knew of the defendant's responsibility, and that it would be sufficient to deliver the satisfaction and have the check certified afterwards.

If defendant had promised to pay the plaintiff's claim, it is highly improbable that plaintiff would not have informed his attorney of that fact, and it is reasonable to assume that the attorney would have put the understanding between the parties in writing, and that he would not have been so particular, knowing defendant's financial responsibility, in getting the written guaranty of Ittman & Wolff as a condition. of the satisfaction of the lien. The payment of two-thirds of the amount due plaintiff in cash is in accordance with the plaintiff's contract, which provides that all payments are "subject to 33% per cent. notes." The conceded facts and circumstances are totally at variance with the existence of the claim upon which a recovery was had.

Judgment reversed, with $30 costs, and complaint dismissed, with appropriate costs in the court below. All concur.