junction will be continued, to prevent any interferences with the plaintiffs' wall as it now stands, except as hereinafter stated.

It is claimed on the part of the defendants that there is an encroachment of the plaintiffs' wall, caused by its bulging or overhanging at various points about the foundation, over the land of the defendants, and that such bulging prevents the erection of a wall on their land, which shall be perpendicular from the foundation to the top of the building. This condition of the wall seems to be established. The plaintiffs have no right by prescription or otherwise to maintain the overhanging wall, so as to prevent the defendants erecting their building with a true perpendicular side wall, or to compel a change in their plans to accord with the defect in the plaintiffs' wall. To whatever cause this encroachment may be attributable, its existence cannot interfere with the defendants' rights, and there is no sound reason suggested why they should be obstructed in the occupation of space for their building which justly belongs to them. If, by cutting in the wall as the defendants propose to do, the plaintiffs' building may be rendered insecure, it is for them to see that it is made safe; and the answering affidavits show that the defendants have not only expressed a willingness, but that they are ready, to co-operate with the plaintiffs in any reasonable method of rendering the plaintiffs' building safe, and for that purpose the plaintiffs would be permitted to enter upon the defendants' land. It is somewhat indefinite from the papers at what part of the wall and to what extent this overhanging exists,-a matter which should be determined by an accurate survey of the wall, so that a proper provision may be made as to the parts of the wall in respect to which the injunction is not to apply. It would seem appropriate that such a survey should be procured from an officer of the department of buildings of the city of New York.

The injunction will be modified in the manner suggested, and the order may be settled on two days' notice.

JJ.

Argued before VAN BRUNT, P. J., and O'BRIEN and FOLLETT,

J. Kling, for appellants.

A. B. Thacher, for respondents.

PER CURIAM. Order affirmed, with $10 costs and disbursements, on opinion of special term.

(11 Misc. Rep. 633.)

ABRAM FRANCH CO. v. SHAPIRO.

(City Court of New York, General Term. March 19, 1895.)

SUPPLEMENTAL ANSWER-LACHES.

An application for leave to file a supplemental answer alleging that plaintiff, being a foreign corporation, had failed to file the certificate required by law, will be denied on the ground of laches, where it was not made until 13 months after issue was joined, and the complaint alleged that plaintiff was a foreign corporation.

Appeal from special term.

Action by Abram Franch Company against Harris Shapiro. From an order granting leave to defendant to file a supplemental answer, plaintiff appeals. Reversed.

Argued before EHRLICH, C. J., and VAN WYCK and NEWBURGER, JJ.

Hayes & Greenbaum, for appellant.
Albert L. Phillips, for respondent.

NEWBURGER, J. This is an appeal from an order granting leave to the defendant to serve a supplemental answer to the complaint. The action was commenced in November, 1893, and issue was joined on or about the 18th day of December, 1893. The case was duly noticed for trial, and appeared on the day calendar a number of times. On the 18th day of January, 1895,-13 months after issue was joined,--the defendant moved for leave to serve a supplemental answer to the complaint; setting up as an additional defense that the plaintiff, being a foreign corporation, has failed to file a certificate authorizing it to do business in this state. The defendant's moving papers showed that the certificate was filed after the action was commenced. The motion was, however, granted, and from the order entered thereon this appeal is taken.

The defendant was guilty of laches. It is claimed, however, by the defendant, in his affidavit, that at the time of joining issue he did not know that plaintiff had failed to file a certificate as required by chapter 687 of the Laws of 1892. The complaint alleges that the plaintiff was, and still is, a foreign corporation organized under the laws of the state of Massachusetts; and, if the defendant desired to take advantage of a failure on the part of the plaintiff to comply with any law of this state, it was his duty to inquire. He knew that the plaintiff was a foreign corporation, and he could have discovered in November, 1893, what he ascertained in January, 1895, by communicating with the secretary of state. is claimed, however, by the learned counsel for the defendant, that he was misled by reason of several opinions found by him upon questions similar to the one at bar An examination of the authorities cited (Contracting Co. v. Del Genovese [Super. Ct. N. Y.] infra; Abram French Co. v. Marx [Com. Pl. N. Y.] 31 N. Y. Supp. 122) fails to convince us of any change in the law in reference to the filing of certificates; and the two opinions cited are not opposed to each other, one simply holding that the failure on the part of a foreign corporation to file a certificate was good ground for a demurrer, and the other holding it could be raised by answer where it did not appear in the complaint. The defendant's laches have not been properly explained. For these reasons the order appealed from must be reversed, with costs. All concur.

BOUKER CONTRACTING CO. v. DEL GENOVESE.

(Superior Court of New York City, Special Term. June 10, 1893.)

At chambers. Defendant demurs to the complaint. Sustained.

SEDGWICK, C. J. The complaint does not allege in what state the contract in action was made. Chapter 687, Laws 1892, refers only to actions on contracts or business done or made in this state. As no attention was given to this on the argument, none will be given here. If the procuring under the act the certificate provided for is an essential part of the right of a foreign corporation to sue, it is presumed that the certificate has not been obtained, if that fact be not pleaded. It is not here pleaded. The fifteenth section exacts that no foreign stock corporation doing business in this state

without such certificate shall maintain any action in this state until it shall have procured such certificate. Under this, the present action cannot be maintained validly. The plaintiff claims that another part of the section authorizes the bringing of the action. It is: "No such corporation, now doing business in this state, shall do business herein after December 31st. 1892, without having procured such certificate from the secretary of state, but any lawful contract previously made by the corporation may be performed and enforced within this state subsequent to such date." The last clause, "but any lawful contract," refers to the first part of the section, and does not introduce any independent, substantial provision. It means that, if the corporation that has obtained authority to do business has made a contract before the authority has been obtained, that contract may be performed and enforced. The word "the" is significant, as indicating a corporation that has obtained authority. I am of opinion that the obtaining of the certificate of authority to do business should have been pleaded. Judgment for defendant on the demurrer, with leave to plaintiff to amend on payment of the costs of the demurrer.

(12 Misc. Rep. 149.)

WYCKOFF et al. v. FROMMER.

(Common Pleas of New York City and County, General Term. April 1, 1895.) 1. APPEAL-REVIEW-OBJECTIONS NOT RAISED BELOW.

Where defendant, in a summary proceeding to recover possession of real estate, consents to the trial, and litigates the issues, he thereby waives the objection that the petition on which the precept was issued was not sufficiently definite in respect to the time of letting.

2. LANDLORD AND TENANT-EVICTION OF TENANT.

There can be no eviction of a tenant without an abandonment of possession by him.

Appeal from Tenth district court.

Summary proceeding by Cora D. Wyckoff and others against Robert Frommer to recover possession of land.

From a final order

in favor of plaintiffs, defendant appeals. Affirmed.
Argued before BISCHOFF and GIEGERICH, JJ.
Joseph Martin, for appellant.
E. G. Duvall, for respondents.

BISCHOFF, J. This was a summary proceeding to recover the possession of demised premises for non-payment of rent. The precept was issued out of and made returnable to the Seventh district court, within whose jurisdiction the premises were situated, and the proceeding was, upon the service and return of the precept, with the written consent of the parties, transferred from said court to the Tenth district court for trial. Thereupon the trial was had in the Tenth district court, and the proceeding was determined by a final order, made by the justice thereof, and sitting in the lastmentioned court, awarding possession of the premises to the landlords. From the final order the tenant has appealed, and the return upon this appeal is from the Tenth district court.

The order appealed from is not void for want of jurisdiction of the justice who made it. Observing that there is no provision for retransfer of the proceeding to the court out of which the precept was issued, it is beyond dispute that it is not only the province, but the duty, of the justice sitting in the court to which the proceeding

has been transferred for trial, to make the final order, if the facts determined by the justice entitle the person seeking possession to such an order, and of the last-mentioned court to enforce it. Section 1357 of the consolidation act (chapter 410, Laws 1882; see Code Civ. Proc. § 2234) provides that summary proceedings to recover the possession of land must be had in the district court of the district within which the premises, or a portion thereof, are situated; section 1358 (Code Civ. Proc. § 2239), that all subsequent proceedings must be had in the court out of which the precept was issued, and to which it must be returnable, except as provided in section 1360; and section 1360 (Code Civ. Proc. § 2246), that the clerk of, or the justice sitting in, the court to which the precept was returnable, may, upon the consent of the parties, transfer the cause for trial to a district court of an adjoining district, which last-mentioned court shall possess the same jurisdiction and power, at its own courthouse, as if the premises were situated within its district. Having consented to trial in the court below, and litigated the issues, the appellant must be deemed to have waived the objection that the petition upon which the precept was issued was not sufficiently definite in respect to the time of the letting. Sims v. Humphrey, 4 Denio, 185; Nemetty v. Naylor, 100 N. Y. 562, 3 N. E. 497. The letting to the appellant appeared from the uncontradicted testimony of Duvall, a witness for the landlords. Duvall testified that in a proceeding by the same landlords to recover possession for the alleged expiration of the term, instituted in the Seventh district court, and in which the landlords were defeated, the appellant denied that the premises were demised to him for one month only, and testified that the letting was for a longer period at the monthly rental of $125, payable in advance. The appellant's testimony in the former proceeding was admissible upon the trial of this as admissions against interest, and so not objectionable as hearsay. It was competent also to prove the admissions by the testimony of one who was present and heard them made. The defense of eviction was not sustained. There can be no eviction without an abandonment Boreel v. Lawton, 90 N. Y. 293. It was contended on the appellant's behalf that because of the execution and delivery of a lease by the landlords or their agent to the appellant's undertenant, during the existence of the lease to the appellant, the latter was evicted, the later lease being inconsistent with the continuance of the first. Upon the landlords' defeat, however, in the former proceeding to recover possession, the lease to the appellant's undertenant was at once canceled, and from the unchallenged evidence upon the trial of this proceeding it appeared that the appellant continued in the uninterrupted possession of the demised premises, and of the rents and profits thereof, and that he was in such possession at the time of the trial. The landlords being tenants in common, and colessors of the appellant, either or both were entitled to possession and the payment of the rent. Hence proof of the agent's authority from one of the landlords and lessors to demand payment of the rent, and to institute this proceeding for nonpay. ment, was sufficient. The order should be affirmed, with costs.

of possession.

(12 Misc. Rep. 152.)

FROMMER v. ROESSLER.

(Common Pleas of New York City and County, General Term. April 1, 1895.) LANDLORD AND TENANT-ACTION FOR RENT-EVICTION.

The eviction of defendant from premises as under-tenant of plaintiff, who had been dispossessed, is a good defense to an action for rent accruing after eviction.

Appeal from Seventh district court.

Action by Robert Frommer against Franz Roessler for rent. From a judgment in favor of defendant, rendered by the justice without a jury, plaintiff appeals. Affirmed.

Argued before BISCHOFF and GIEGERICH, JJ.

Joseph Martin, for appellant.
E. G. Duvall, for respondent.

PER CURIAM. The defendant's eviction from the premises as undertenant of the plaintiff, the dispossessed tenant, was an availing defense to the latter's action for rent accruing after the date of the eviction. Ash v. Purnell (Com. Pl. N. Y.) 11 N. Y. Supp. 54. That the ground stated for the objection to the admission in evidence of the record in the dispossess proceeding of Wyckoff v. Frommer was not well founded appears from the opinion handed down herewith in affirmance of the final order therein (33 N. Y. Supp. 11), but, apart from this, the record, even if apparently irregular, was admissible to prove the fact of the eviction; and so also of the warrant for dispossession. The evidence of defendant's witness Duval as to the testimony given by plaintiff upon a former trial that the latter's agreement with the landlords of the premises called for the payment of rent for a stated term at the rate of $125 a month was properly received as proof of admissions against interest (see Wyckoff v. Frommer), and had direct relevancy to the issues raised by defendant's counterclaim upon the landlords' demand for this rent theretofore assigned to the defendant. The judgment is found to be in accord with the justice of the case, and, as above shown, the points raised by the appellant present no ground for its reversal. Judgment affirmed, with costs.

(11 Misc. Rep. 245.)

DOVALE v. ACKERMAN.

(Common Pleas of New York City and County, Trial Term. February, 1895.) COMPROMISE-INVALID CLAIM.

A promise made in consideration of the release by the promisee of a claim against the promisor is valid, though the claim released was not enforceable, as forbearing to prosecute the claim is sufficient to support the promise.

A ver

Action by Clarita Dovale against Bernard L. Ackerman. dict was rendered in favor of defendant, and plaintiff moves for a new trial on the minutes. Granted.