order was filed with a firm of commission merchants and manufacturers' agents in this city and transmitted by them to the plaintiff who was requested to acknowledge the receipt thereof to the defendant and to ship the goods to him by freight from its factory and place of business in Chicago, Ill. The defendant received the goods from the factory and communicated with the plaintiff by letter addressed to its factory aforesaid. This does not constitute "doing business" within this State. Vaughn Machine Co. v. Lighthouse, 64 App. Div. 138; Cummer Lumber Co. v. Associated Mfrs'. Ins. Co., 67 id. 151; Waller v. Rothfield, 36 Misc. Rep. 177. Judgment reversed and new trial ordered, with costs to the appellant to abide the event. TRUAX and GILDERSLEEVE, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event. MICHAEL BYRNE, Respondent, v. LEVI C. WEIR, as President, Etc., of the Adams Express Co., Appellant. APPEAL by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, tenth district, borough of Manhattan. Guthrie, Cravath & Henderson, for appellant. William J. Nicholson, for respondent. FREEDMAN, P. J. Plaintiff sets up as his cause of action herein, that he was employed by the defendant from October 1, 1901, at fifty dollars per month and was wrongfully discharged after the first five days in said month. In August, 1901, the plaintiff applied to the defendant for employment and was hired as an extra man and began work on August 26, 1901. On October fifth the plaintiff was discharged and eight dollars and six cents, the amount earned by him since the preceding pay day, was tendered him and refused. The claim of the plaintiff that he was employed by the defendant for a definite and certain time is not sustained by the testimony. The His tes plaintiff was the only witness sworn in his own behalf. timony is that when he first applied for employment, the agent of the defendant said to him: "If you want to come on here tomorrow and show what you can do as an extra man at the rate of $50 per month, all right, and if you are all right, I will put you on as a regular man at the rate of $50 per month." After the plaintiff had worked until sometime in September, 1901, the agent asked the plaintiff to execute a bond and said "he had to have those filed the next day because I was to go on as a regular man at $50 per month." Upon his cross-examination he was asked: "Q. When he said he would put you on as a regular man what length of time did he specify? A. No, he did not specify; I went on as a trial man to see if I was able to do the work. Q. At the time when he spoke of you as a regular man, you did not understand that you were to stay a year or three months or any given length of time? A. No; I understood I was to go on as a regular man for $50 a month." When payments for wages had been made to plaintiff on August thirty-first, September sixteenth, and September thirtieth he signed receipts therefor each of which had the following notice printed thereon in plain letters: "Employees of this company are hereby notified that they are not engaged for any particular length of time and the company reserves the right to itself to terminate the services of any employee at pleasure and the party executing this salary receipt does hereby acknowledge and agree to abide by such notice and conditions and accepts employment subject to being discharged at any time by the company or its agents." The evidence fails to show an employment for any specified time. It was a mere hiring at will and the plaintiff could be discharged at the option of the defendant at any time and the defendant would only be liable to the plaintiff for the time actually spent in its employment at the rate of wages at which he was engaged. Martin v. New York Life Ins. Co., 148 N. Y. 117–120. Judgment reversed and new trial ordered, with costs to the appellant to abide the event. TRUAX and GILDERSLEEVE, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event. THE NATIONAL CASH REGISTER Co., Respondent, v. JAMES P. GAUL, Appellant. APPEAL by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, sixth district, borough of Manhattan. D. E. Lynch, for appellant. Perkins & Butler, for respondent. GILDERSLEEVE, J. The facts are conceded. The action is in replevin to recover a certain cash register, or the value thereof, which is conceded to be $225. On November 1, 1900, plaintiff sold to one Barrett the said register under a conditional contract of sale, by which the title was to remain in plaintiff until said Barrett had fully paid for the said chattel. Barrett has never paid any portion of the contract price. On April 12, 1901, said Barrett was adjudged a bankrupt. On May 14, 1901, the conditional contract of sale was filed in the office of the register of this county. On May 24, 1901, the trustee in bankruptcy of said Barrett had an auction sale of the goods of said bankrupt, and the cash register was sold to defendant. Plaintiff duly demanded the return of said chattel, which was refused, and then brought this action. The Municipal Court justice gave judgment for the plaintiff. Defendant appeals. The plaintiff was not represented at the sale in question, nor had its officers or agents any knowledge of the same. It is clear from the terms of the conditional contract of sale of November 1, 1900, that no title vested in Barrett, by reason of his failure to pay any portion of the purchase price. The trustee of Barrett could take no better title than Barrett had himself. 49 N. Y. 602; 7 Am. Bank Rep. 270; 2 id. 809; 1 id. 292; 6 id. 615; Collyer Bank., 456, 462. It is evident, therefore, that the trustee had no title to convey to defendant. The conditional contract of sale had been, as we have seen, at least ten days on file in the register's office before the sale to defendant took place. It is true that a conditional vendor, entitled to take the property on breach of conditions, looses this right as against a third person acquiring possession from the vendee without notice of the con ditions, if he is guilty of laches in the assertion of his right (6 Am. & Eng. Ency. of Law [2d ed.] 484); but we do not think the laches shown in the case at bar are fatal to the judgment. The judgment should be affirmed, with costs. FREEDMAN, P. J., and TRUAX, J., concur. Judgment affirmed, with costs. MICHAEL ROSENBLOOM, Appellant, v. THE TRAVELERS INSURANCE Co., of Hartford, Conn., Respondent. APPEAL by the plaintiff from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, second district, borough of Manhattan. Meyer Greenberg, for appellant. F. V. Johnson, for respondent. * * * Per Curiam. The policy in question insured the plaintiff's assignor "against loss from common-law or statutory liability (being solely the contingent liability so imposed upon the assured as owner or general contractor) for damages on account of bodily injuries resulting from negligence of any contractor or subcontractor engaged in the construction" of the building mentioned in the application for said policy. The policy contains. the further provision to the effect that if the assured is the owner of the building mentioned in the application "it is agreed that all the work of constructing the same is to be done by contract at the risk of the contractor or contractors and that the assured has not and will not by contract or otherwise voluntarily assume any liability for loss on account of bodily injuries suffered by any person or persons by reason of the negligence of any contractor or subcontractor." It is difficult to determine what the policy By its terms the plaintiff's assignor was assured only against the contingent liability imposed by the common law or by statute upon the assured as owner of the premises described in the application on which the policy was granted and was not assured against his own negligence. In other words, he was not assured against the negligence of his contractor, nor was he assured against covers. his own negligence. The record shows that one Levy, the assured, was the owner of the buildings in East Broadway, which were constructed by separate contractors, and that one Cullberg, an employee of one of said contractors, was injured while on said premises and while the buildings above mentioned were in the course of construction; and that said Cullberg began an action against said Levy upon the ground that the accident to said Cullberg happened through the negligence of the said Levy. The record does not show that the plaintiff has brought himself within the provisions of the policy of insurance. If the accident happened through the negligence of the contractors the defendant would not be liable. If the accident happened through the negligence of said Levy, and we are bound by the record which shows that it did happen through his negligence, the defendant would not be liable. By the stipulation between the parties hereto it was stipulated that the trial justice, before whom the action of Cullberg against Levy was tried, decided in favor of said Cullberg because the accident happened to said Cullberg through the negligence of said Levy, and, therefore, the admission of the record which did not vary or change that stipulation was not error. The judgment must be affirmed, with costs. Present: FREEDMAN, P. J., TRUAX and GILDERSLEEVE, JJ. Judgment affirmed, with costs. KINSEY, RANIER & THOMPSON, Incorporated, Respondent, v. MATTHEW W. BERRIMAN et al., Appellants. APPEAL by the defendants from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, second district, borough of Manhattan. L. W. Harburger, for appellants. G. W. Simpson, for respondent. Execution Per Curiam. Plaintiff took judgment by default. Defendants made a motion to open default, which was denied. was issued and the amount was paid under protest by defendants. The latter appeal from the order denying the motion to open default. Such an order is not appealable. Jacobs v. Zeltzer, 9 Misc. Rep. 455. Defendants should have proceeded according |