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his interests; setting forth fraud on the part of the plaintiff Nevins in inducing petitioner's purchase of the premises mentioned in the complaint; alleging that he is named in the bond as principal, and has a good defense to it, which will be lost to him unless he is made party to the action, as the surety company cannot and will not avail themselves of the defense. The answer of the company in the action pleads defect of parties, averring the bond to be the joint obligation of the company and Mason. This application is made under the Code, providing that, "where a person not a party to the action has an interest in the subject thereof and makes application to the court to be made a party it must direct him to be brought in by the proper amendment." Section 452. The plaintiff opposes the application on the ground that the peti tioner has no interest in the subject of the action, because he is not entitled to receive any part of the amount in controversy, to wit, the rents collected by him. If judgment goes against the surety, the petitioner, as principal, will be liable over to the latter; but he can relieve himself from such liability if permitted to defend the action and establish his defense therein. He has, therefore, a direct interest in the subject of the action, viz. the enforcement of the bond. The surety company cannot set up as a defense the fraud which the petitioner charges. As the latter has not rescinded the contract of sale of the premises, he has only a claim for damages, which is not available as a defense to the surety (Gillespie v. Torrance, 25 N. Y. 306); but, if the principal and surety are sued together, a successful recoupment by the former will inure to the benefit of the latter, although the surety could not, if sued alone, avail himself of the defense (Springer v. Dwyer, 50 N. Y. 19). Great liberality is always shown in admitting parties who may be injuriously affected by the action and judgment. Thus, where an action was brought upon a contract for services, to restrain the employe from entering into the service of another, the latter was admitted to defend, as having a direct interest in the event of the action. Lithographing Co. v. Crane (Sup.) 12 N. Y. Supp. 834. The court held that the defendant's contract with the applicant was directly involved. In this case the obligation of the petitioner to indemnify his surety for the exact amount recoverable in this action is substantially involved in this litigation. The application is also opposed on the ground that it should be by motion in the action, and not by petition. In Haas v. Craighead, 19 Hun, 396, the application appears to have been by petition, although made in the action. There is no adjudication that an ap plication by petition specially entitled should be denied for that reason. No substantial right is affected by the practice here pursued. Order appealed from affirmed, with costs and disbursements. All concur.

(12 Misc. Rep. 124.

LANSBURGH v. WALSH et al.

(Common Pleas of New York City and County, General Term.

ASSUMPSIT-PLEADING AND PROOF.

April 1, 1895.)

In an action to recover the value of timber alleged to have been sold and delivered by plaintiff to defendant, it appeared that defendant purchased the timber through a broker, supposing he was buying from one W., and that, as soon as he discovered that he was buying from plaintiff, he repudiated the transaction. Held, that an allegation in the complaint that defendant agreed to pay the fair and reasonable value of the timber did not necessarily render the action one on an express contract of sale, and therefore plaintiff was entitled to recover on a quantum meruit for the timber received by defendant.

Appeal from city court, general term.

Action by Max Lansburgh against Thomas Walsh and others to recover on a quantum meruit for the sale and delivery of timber. From a judgment of the city court (28 N. Y. Supp. 1149) affirming a judgment entered on a verdict in favor of plaintiff, defendants appeal. Affirmed.

Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ. Michael J. Scanlan, for appellants.

Leo G. Rosenblatt, for respondent.

BISCHOFF, J. An agreement for one to pay another, who does not in any sense incur liability for losses, a share of the profits, by way of compensation for the latter's services, does not create a partnership. Printing-Ink Co. v. Bowker (Com. Pl. N. Y.) 16 N. Y. Supp. 523; Hayward v. Barron (Com. Pl. N. Y.) 19 N. Y. Supp.383. It is unchallenged, therefore, that J. C. Thompson was only the plaintiff's employé, and not party to any contract of sale between the plaintiff and the defendants. The facts which appeared from sufficient evidence upon the trial, and with regard to which the judgment of affirmance of the court below is conclusive upon us (Gundlin v. Packet Co., 8 Misc. Rep. 291, 28 N. Y. Supp. 572), are that the defendants, through one Benton, a broker, agreed to purchase of Walton Thompson, the son of J. C. Thompson, 210 piles or pieces of timber of certain sizes and at specified prices, which latter were to be subject to deductions for freight charges to be paid by the defendants; that Walton Thompson was acting in the transaction for his father, who was employed by the plaintiff, the owner, in the sale of timber, upon a share of the profits to be derived from sales made by such employé; that, after the plaintiff's shipment and the delivery to the defendants of a part of the timber, the latter repudiated the contract, upon the ground that, when it was made, they were unaware that the plaintiff was the principal, and from the representations of Benton supposed Walton Thompson to be such; and that, at the time of the repudiation, the plaintiff had shipped 125 piles, of which 99 had been concededly received and retained by the defendants, and for which payment had not been made to any one. Upon this state of the facts, the liability of the defendants for the fair and reasonable value of the piles retained, deducting therefrom the freight charges paid, is

irrefragable. The trial court ruled consistently with that view, and restricted the plaintiff's recovery to such an amount. Neither do the defendants dispute their ultimate liability as above stated, but they contend that the liability was not enforceable in this action. The contention last above alluded to, however, arises wholly from a misconception of the cause of action alleged. The complaint did not seek to enforce payment of an agreed price, but was for recovery upon a quantum meruit for 125 piles alleged to have been sold and delivered to the defendants, less the freight charges paid by the latter. The allegation that the defendants agreed to pay the fair and reasonable value of the timber was, under the circumstances, but the statement of a conclusion of law, and did not necessarily render the action one upon an express contract of sale. Sussdorf v. Schmidt, 55 N. Y. 319. Hence the court properly admitted proof of value, and the defendants' motion for dismissal of the complaint and requests to charge the jury, in so far as such motion and requests were based upon an alleged variance in or failure of the proof, were properly denied.

It would be useless waste of time and labor to consider specifically each of the numerous exceptions which appear in the record. Not one of them presents error which was prejudicial to the defendants, some having been taken to rulings which were based upon concessions on the part of the plaintiff, in the defendants' favor. The recovery below was strictly in accord with the justice of the facts, and we are therefore content to affirm the judgment appealed from. Judgment affirmed, with costs.

DALY, C. J. (concurring). The exception to the ruling of the trial judge that the answer does not contain a counterclaim presents no error, in view of the fact that it was based upon defendants' apparent claim of an effect upon the issues for want of a reply. The ruling was substantially that the counterclaim was not admitted for failure of plaintiff to reply, and that decision was correct. The counterclaim in question is found so designated in the concluding lines of a long and elaborate statement, commencing, "(4) For a further and separate defense to this action," and containing the particulars of the contract as claimed by defendants. The Code requires a counterclaim to be separately stated, which was not done; and, where it is described as a defense, the pleader is bound by his choice, and cannot claim any benefit from the want of a reply. Acer v. Hotchkiss, 97 N. Y. 408, 409. Defendants were not precluded from proof under it. This vigorous litigation over the plaintiff's claim to recover for the value of the 99 logs actually delivered by him, and used by defendants, is probably explained by what seems to have been a hasty letter written by him in reply to their disclaimer of a contract with him. A little timely inquiry would have shown that they were justified in hesitating at that time to recognize the claim of one who was an apparent stranger to their dealings with Benton, and the whole dispute could probably have been adjusted without litigation.

PRYOR, J., concurs.

CHURCH et al. v. HAEGER.

(Common Pleas of New York City and County, Special Term. March 25,

1895.)

1. INJUNCTION-RECITAL OF GROUNDS.

The omission in an injunction order to recite the grounds, as required by Code Civ. Proc. § 610, is a mere irregularity, and will be disregarded where the order states that it was made on a verified complaint and affidavit, copies of which, containing the grounds, were served on defendant with and referred to in the order.

2. SAME AGAINST SALE OF CHATTELS OF PECULIAR VALUE.

The sale of chattels will be enjoined where it appears that they were wedding presents, possessing a peculiar and special value aside from their regular market value, and that the sale would result in irreparable loss.

Action by George M. Church and another against Annie C. Haeger. A temporary injunction was granted, and plaintiffs now move to continue the same, while defendant makes a cross motion to vacate it. Injunction continued on condition.

Bernard J. Douras, for plaintiffs.

Jacob Fromme, for defendant.

GIEGERICH, J. The omission in the injunction order to recite the grounds for the injunction, as required by section 610 of the Code, is a mere irregularity, and should be disregarded, as the order states that it was made on the verified complaint and the affidavit of William H. Howell, copies of which, containing the grounds on which the order was granted, were served with it on the defendant, and refers the defendant to them as therein stated. Atlantic & P. Tel. Co. v. Baltimore & O. R. Co., 46 N. Y. Super. Ct. 377, 409, 410. See Daly v. Amberg (Sup.) 13 N. Y. Supp. 379, 380. The motion to vacate the order by reason of such omission is therefore denied.

It satisfactorily appearing from the papers submitted that many of the articles of personal property referred to in the complaint were wedding presents, possessing a peculiar and special value to the plaintiffs, aside from their general market value, and which could not be ascertained by any recognized standard, and that the sale of the same would result in irreparable loss, the motion to continue the injunction should be granted (Spel. Extr. Rel. p. 437, § 536), with $10 costs to abide the event.

The security given by the plaintiffs, however, is wholly insufficient, and they should, within five days after the entry of the order, give an undertaking in the sum of $3,000 that the plaintiffs will pay to the defendant such damages, not exceeding said sum, as she may sustain by reason of the injunction, if the court finally decides that the plaintiffs were not entitled thereto. On giving such undertaking, the injunction is continued. If the foregoing terms are not complied with, the motion to continue the injunction is denied, with $10 costs. Order to be settled upon one day's notice.

(12 Misc. Rep. 58.)

HERTZ V. MINZESHEIMER.

(Common Pleas of New York City and County, General Term. April 1, 1895.) WITNESS-IMPEACHMENT-FORM OF QUESTION.

A witness for plaintiff, on cross-examination, denied that she had made a certain statement to one S. contradictory to her testimony. Afterwards S. was called by defendant, and, after stating the time and place of a certain conversation between such witness and herself, plaintiff not being present, she was asked to state "what that conversation was." Held, that the testimony was properly excluded, in that it called for the whole conversation, and not merely for so much as was necessary to prove the contradictory statement.

Appeal from city court, general term.

Action by Moses Hertz against Clara Minzesheimer.

From a judgment of the city court (30 N. Y. Supp. 805) affirming a judg ment rendered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals. Affirmed.

JJ.

Argued before BOOKSTAVER, BISCHOFF, and GIEGERICH,

Joel M. Marx, for appellant.

J. C. Julius Langbein, for respondent.

BISCHOFF, J. This action was brought to recover an agreed compensation for services rendered by plaintiff, as broker, in the exchange of defendant's property. The sole issue presented by the evidence was whether the defendant had promised to pay plaintiff $500 should the property received in exchange be of the value of $30,000, which it concededly was, or whether one-half of 1 per cent. upon such value was the commission agreed upon, which amount had been actually paid. As a witness for the plaintiff, Minna Hertz, his wife, was called, and testified that the promise to pay $500 was made in her presence. Upon cross-examination she testified, in answer to defendant's counsel: "I did not see her [Mrs. Seligman] in Newark for over a year before this exchange took place. I did not tell Mrs. Seligman that my husband did not make much upon this exchange; that he was to get only one-half of one per cent. for it." Subsequently Mrs. Seligman was called for the defense, and, after stating the time and place of a certain conversation between Mrs. Hertz and herself, was asked to state what that conversation was. The testimony was objected to, as "incompetent, irrelevant, and immaterial, the plaintiff not having been present." Defendant's counsel stated that it was offered for the purpose of contradicting Mrs. Hertz, and for the purpose of impeaching her credibility. Plaintiff's counsel then expressly renewed his objection as above, and further objected "that the testimony of Mrs. Hertz on that point was brought out by the defendant on cross-examination." The objections were sustained, and exception was duly taken. Upon this exception alone the judg ment is assailed, there being nothing in the record which could present other points for this court to review. The evidence excluded was offered to impeach Mrs. Hertz's particular credit as a