App. Div.]

First Department, June, 1909.

perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes as we could do if personally present at the doing thereof, with full power of substitution and revocation; hereby ratifying and confirming all that shall lawfully be done by virtue hereof."

Legally as between the importers and the partnership these papers were powers of attorney revocable at will. But we are not concerned with their interpretation as between the importers and the partnership. Inter sese they were in my opinion the "contracts" alluded to in the 3d clause of the agreement. The paper states that the collector has exacted and will continue to exact duties on a specified line of goods, that such assessment is without warrant of law, and the partnership is made the true and lawful attorney and agent of the importer to recover the amount of duties so exacted contrary to law, and for its information and services it shall receive a fee of fifty per cent of all amounts recovered. The partnership agreement provides that "all contracts made with merchants or importers or any other persons in the name of Frederick W. Brooks belong to said copartnership, and that said parties of the first part have an undivided one-half interest in said [contracts] as soon as the same are respectively executed." These are the papers made with merchants or importers in the name of Frederick W. Brooks, and they have been executed. They are the only papers which could by any stretch of construction come within the description, and are the only papers executed by such merchants and importers.

As goods covered by these papers came in, the partnership received the protest slips set forth in the opinion of Mr. Justice SCOTT containing the information necessary to enable the partnership to make out the proper protests to be filed. These slips were in two forms one was 66 In pursuance of contract with you, please file protest against the action of the Collector of the Port on the following importation," giving details. The other: "In pursuance of contract with you, please take the necessary proceedings for the recovery of duties exacted in excess on merchandise hereinafter described."

In pursuance of what contract? Obviously the power of attor ney containing the agreement for compensation. The majority of the court think that these protest slips were the contracts that is,

First Department, June, 1909. [Vol. 132, App. Div.]

an individual contract was made each time such slip was sent to the partnership. But not being signed they cannot be said to have been "executed" as the partnership agreement provides. If contracts what are the terms? When payable, how much? I see no escape from the conclusion that these parties who knew all about their own business when they prepared their agreement, their powers of attorney and their protest slips thoroughly understood that the "contracts" were these papers containing a power of attorney and an agreement for compensation. If I am right it follows that these papers, the "contracts" covered by the agreement, continued until revoked, and any protests filed for the importers who executed said papers upon the goods therein referred to came within the purview of the partnership agreement. The defendant could not, without notice, go on doing business under said "contracts," an undivided one-half interest in which as soon as executed vested in the plaintiffs, without being accountable for such business to the plaintiffs. He, therefore, should be charged with one-half the net amounts received by him upon protests filed after the dissolution of the partnership for importers with whom said "contracts" had been made and still continued unrevoked and to whom notice of dissolution of the firm had not been given. Having been made with the partnership they continued to belong to it.

In other respects I concur in the opinion of Mr. Justice SCOTT.

Judgment modified as directed in opinion, and as modified affirmed, with costs and disbursements to defendant, to be paid out of the partnership funds in his hands and deducted in equal proportions from the shares of the plaintiffs and defendant. Settle order on notice.

AND

DECISIONS HANDED DOWN WITHOUT

OPINION.

SECOND DEPARTMENT, APRIL, 1909.

SALVATORE CASALE and NICOLA CARRENO, Appellants, v. HARRY GUION and Another, Respondents.

Bills and notes · title — principal and agent — termination of relation.

Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, rendered on the 4th day of February, 1909, dismissing the complaint.

PER CURIAM: When the plaintiffs undertook to show title in the promissory note they were confronted by the fact that they relied upon a naked delivery of the note to them by the cashier of private bankers after those bankers had failed. We think that the cashier's general authority to transact business for his principals had ceased. (Bolles on Banking, 807.) The court was right in dismissing the complaint. If the plaintiffs sue again there may be a further question of attempted preference which is not presented by the record before us sufficiently for any present discussion. The judgment of the Municipal Court is affirmed, with costs. Woodward, Jenks, Gaynor, Burr and Rich, JJ., concurred. Judgment of the Municipal Court affirmed, with costs.

WILLIAM J. FRAHM, Appellant, v. NEW YORK AND QUEENS COUNTY RAILROAD COMPANY, Respondent.

Practice-motion for new trial-failure to request dismissal of complaint. Appeal by the plaintiff, William J. Frahm, from a judgment of the Municipal Court of the city of New York, borough of Queens, rendered on the 6th day of June, 1908, dismissing the plaintiff's complaint upon the merits.

WOODWARD, J.: The plaintiff had a verdict for $438.25 damages sustained by his horses, wagon and harnesses in an accident upon the defendant's surface railroad on Jackson avenue, Long Island City, and there does not appear to be any doubt that the case presented evidence which required its submission to the jury, the learned trial court denying motions to dismiss both at the close of plaintiff's evidence and upon the defendant resting. Upon the coming in of the verdict, counsel for defendant moved to set it aside and for a new trial, but did not include in the motion any request to dismiss the complaint. The learned court reserved decision upon this motion, but subsequently granted the same, including in the order a dismissal of the complaint. Upon this appeal counsel for the defendant admits that this part of the order is not justified, and consents

Second Department, April, 1909.

[Vol. 132. to the modification of the order of dismissal so as to direct that a new trial be had, with costs to abide the event, under the authority of Smith v. Stork (126 App. Div. 355) and Powers v. Miller (123 id. 396). The plaintiff urges, however, that he is entitled to a complete reversal of the judgment and a reinstatement of the verdict. An examination of the case convinces us that there were grounds which justified the learned court in granting the motion to set aside the verdict and to grant a new trial, the charge of the court in reference to the damages, the evidence being somewhat uncertain, being open to objections, and as the respondent concedes that the order should be modified, we are of the opinion that we ought not to assume to dispose of the controversy, but should send it back for a new trial. Jenks, Gaynor, Burr and Rich, JJ., concurred. Order of the Municipal Court dismissing the complaint and judgment entered thereon, should be modified so as to direct a new trial in the district where the action was brought, and as so modified affirmed, without costs.

IRWIN S. LOEWENTHAL, Appellant, v. GLOBE AND RUTGERS INSURANCE COMPANY, Respondent.

Pleading-bill of particulars.

Appeal by the plaintiff from an order of the Supreme Court, made at the Kings County Special Term and entered in the clerk's office of Nassau county on January 12, 1909, requiring him to furnish the defendant with an additional and further bill of particulars.

RICH, J.: This court held in Spencer v. Fort Orange Paper Co. (74 App. Div. 74) that "the granting or withholding of a bill of particulars is within the disf cretion of the court, and where there has been no abuse of this discretion the appellate courts will not, as a rule, interfere." This principle has been universally adopted by the appellate courts of this State. The record in the case at bar presents no abuse of discretion, and the order must be affirmed, with ten dollars costs and disbursements. Woodward, Jenks, Gaynor and Burr, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.

LEONARD SINGER, as Administrator, etc., of EDITH L. SINGER, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

Railroad - negligence — collision at grade crossing — evidence. Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the clerk's office of Rockland county on September 16, 1908, and also from an order entered in the same office on September 28, 1908, denying the defendant's motion for a new trial.

Judgment modified by striking out the provision for extra allowance, and the judgment as thus modified and order denying motion for a new trial affirmed, without costs. No opinion. Hirschberg, P. J., Woodward and Miller, JJ., concurred; Jenks, J., read for reversal, with whom Rich, J., concurred.

JENKS, J. (dissenting): I dissent. I think that a new trial should be granted because the verdict is against the evidence (McDonald v. Met, St. R. Co., 167

App. Div.]

Second Department, April, 1909.

N. Y. 70.) The action is for negligence. Plaintiff's intestate, a young woman nineteen years old, with a number of young men and women, went to the village of Nyack to attend a festivity. To return home she and some of her companions left that village shortly after twelve o'clock, midnight. The night was one of clear starlight. They were driven in a wagonette, arranged with a seat in front for the driver and two other persons, and with two seats inside running lengthwise to hold three persons on each side. The vehicle was curtained on the sides. The front seat was occupied by the driver and two of the party, including plaintiff's intestate, and the inside seats were filed with her companions. The wagonette, drawn by a team of horses, was driven along the Nyack turnpike, which crosses defendant's rails at grade and at right angles. It was struck and shattered by the defendant's express train at this crossing, which was some hours iate. The horses escaped unscathed. The plaintiff's intestate and seven other people in the vehicle were killed. This crossing was guarded by gates on each side of it, known as the east and west gates. The main issue litigated was whether these gates at the time were up as an invitation, or were down as a barrier. The gates were alike. They were hinged on gate posts and were both controlled by one lever swiftly worked by one man. A gate wher lowered extended a single wooden arm across the highway about three and one-half feet above it. There was a lantern on each gate which hung over the highway when it was lowered. There is evidence that if the tip of either gate was broken, the counterbalancing weights would automatically throw up the gates. After the collision both gates were found in almost vertical position. The tip of the east gate was broken off beginning at a point nine feet from the end. The tip of the west gate was broken off and one of the planks of the arm was shattered at its end and broken loose. The east gate was the first gate in the line of approach. The evidence of the plaintiff to establish that the gates were raised so as to permit access is as follows: Palmer, one of the passengers and the sole survivor of the party, with the exception of the young woman, Bird, was the last one on the rear seat in the back and Miss Bird sat opposite to him. The side curtains of the vehicle were closed when they left Nyack. There was a curtain by the driver's seat which was rolled up. The horses were driven out from Nyack over-the crossing on a jog-trot. He saw the driver just before the horses approached the crossing bend forward and look, turning his head both ways. His words are: As the horses and wagon came to the crossing they didn't come in contact with anything. I knew that there were gates at that crossing. As the wagon approached the crossing I raised up in my seat and looked for the gate. I didn't see the gates or either of them. I raised up and looked. I saw the lights in the hotel across the track, on the other side of the track, and I saw the roadbed of the track and rails." He testifies that up to the time that the wagon passed over one of the rails it had not come in contact with anything; the horses had not come in contact with any thing. "I looked out through the front of the wagon. I saw between the driver and Miss Singer. * * I mean between their heads." They were then about 100 feet from the track. "I looked to see if the gates were down. I looked to see if the gates were down because they ought to have been down if a

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