Second Department, April, 1909. [Vol. 132. Meier Steinbrink, for the appellant. Ed. J. Fandrey, for the respondent. GAYNOR, J.: The claim of the plaintiff was that the person who threw the board from the roof of the defendant's tenement house to the yard below and injured the plaintiff's wife, who was a tenant of the adjoining house, was the janitor of the said tenement house. It may be assumed that it was proved by the defendant that she was not his janitor, but that she was employed by the janitor to do his work without the knowledge or consent of the defendant; nevertheless the defendant would be liable for her negligent acts in such work. The familiar case of the servant set to work to shovel snow and ice from the roof permitting a volunteer to help him, who cast ice on the head of one below, is applicable (Althorf v. Wolfe, 22 N. Y. 355; Wellman v. Miner, 19 Misc. Rep. 644). No one would be likely to believe the unlikely testimony of the defendant and his janitor that by the terms of the employment the janitor had nothing to do with seeing to the roof or the outside of the house; if, indeed, it would make a difference if that were true. The judgment should be affirmed. WOODWARD, JENKS and MILLER, JJ., concurred; RICH, J., dissented. Judgment of the Municipal Court affirmed, with costs. THOMAS G. CARLIN, Respondent, v. THE CITY OF NEW YORK, Appellant. Second Department, April 23, 1909. Contract-facts not justifying rescission of building contract — measure of damages. Action by a municipal contractor to recover for work, labor and services under a contract, the completion of which was prevented by the municipal authorities. On all the evidence, held, to warrant a finding that the plaintiff had duly per. formed, and that the interference with the completion of the contract by the defendant was unjustified. App. Div.] Second Department, April, 1909. Where the completion of a building contract is unlawfully prevented, the contractor may recover the reasonable value of the materials furnished and work actually performed, together with such reasonable profit as he might have earned had he been permitted to complete the contract. APPEAL by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of December, 1907, upon the report of a referee. P. E. Callahan [James D. Bell and Francis K. Pendleton with him on the brief], for the appellant. Ernest P. Seelman, for the respondent. BURR, J.: On the 29th of July, 1904, plaintiff and defendant entered into a contract by which the plaintiff was to furnish all labor and materials and, in a good workmanlike manner, build, erect, construct and complete a new station house, prison and stable for the Seventysecond precinct, on the ground and premises on the south side of Lawrence avenue, 300 feet easterly of Third street in the borough of Brooklyn, for which he was to be paid the sum of $84,000. Plaintiff entered upon the performance of his contract, and work thereon was continued until the 31st day of March, 1905, when the defendant interfered and prevented the plaintiff from performing any further work or furnishing any further materials in connection therewith. The sole question in this case is as to the substantial performance of such contract by the plaintiff up to that date, and whether the defendant was justified in interfering therewith. Upon conflicting testimony the referee has found performance on the part of the plaintiff, and that the interference of the defendant was unauthorized and unjustified. The defendant, therefore, is in the position of one who has unreasonably broken his contract, and the plaintiff is entitled to recover the reasonable value of the materials furnished and work performed by him (Garvin Machine Co. v. Hutchinson, 1 App. Div. 380), together with such reasonable profit as he might have earned had he been permitted to complete the performance thereof. (Jones v. City of New York, 47 App. Div. 39; Witherbee v. Meyer, 155 N. Y. 446.) The record in this case Second Department, April, 1909. [Vol. 132. is voluminous, but a careful examination of the evidence shows that the findings of the referee as to such performance were fully sustained by a fair preponderance of such evidence. The principal controversy arose with regard to the character of the brick work and the quality of the material furnished. The testimony of the witnesses called for the plaintiff fully established that the brick used came up to the terms of the specifications, and that the work was done in a good and workmanlike manner. Some of the testimony offered on behalf of the defendant would have justified such a finding for the criticism of at least one of the experts called by the said defendant was directed chiefly to the character of the workmanship. This he criticised because it was to him unusual to lay brick in four courses to twelve inches, necessitating a joint five-eighths of an inch thick. It was conceded, however, that before plaintiff entered upon the performance of the work the specifications were modified so as not only to permit but to require the brick to be laid in that manner. There was some evidence that one of the walls was slightly out of plumb. The testimony of the witnesses called for the plaintiff was to the contrary, and the force and effect of much of the testimony offered on the part of the defendant was weakened by the fact that the examination of the work made by such witnesses was made several months after the plaintiff had been forbidden to proceed with the work, and while the wall remained incomplete and exposed to the action of the elements. No exceptions to the rulings of the referee upon questions of evidence were presented to this court, or argued, either orally or upon the brief of the learned corporation counsel. Some criticism was made as to the accuracy of his calculations, but, assuming the testimony of the plaintiff and his witnesses to be true, the findings of the referee were justified respecting the same. The learned referee, with the parties before him, was fully justified in accepting the testimony of the plaintiff as being correct and accurate as to the amount of work done and the quantity of materials furnished. The amount of the judgment is large, but it seems to us to be fully justified, and the judgment appealed from should be affirmed, with costs. WOODWARD, JENKS, GAYNOR and RICH, JJ., concurred. Judgment affirmed, with costs. App. Div.] Second Department, April, 1909. BANK OF LONG ISLAND, Respondent, v. GEORGE W. GREGORY and MAE T. GREGORY, Appellants. Process Second Department, April 23, 1909. substituted service in Municipal Court — appeal. No separate appeal lies from an order of the Municipal Court of the city of New York authorizing a substituted service of summons. But an appeal from the judgment brings up for review the validity of such order. The jurisdictional facts necessary to the granting of an order for substituted service of summons are the residence of the defendant in the city, the issuing of an alias summons and proper and diligent effort to serve the same on the defendant, which effort must have been unsuccessful because his place of sojourn cannot be found. These facts must be established by the affidavit of a person not a party to the action and by the return of a city marshal. The determination of the judge that the evidence contained in such affidavit and return is sufficient to warrant an order for substituted service is controlling upon appeal. So, too, a determination that further evidence is unnecessary is not subject to review. APPEAL by the defendants, George W. Gregory and another, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, rendered on the 6th day of January, 1909, and also from an order bearing date the 30th day of December, 1908, directing substituted service of summons. Samuel Schlesinger, for the appellants. C. II. Street [Leander B. Faber with him on the brief], for the respondent. BURR, J.: This action was brought in the Municipal Court to recover the sum of $275 upon a promissory note made by the defendant Mae T. Gregory to the order of her codefendant George W. Gregory, which was indorsed by him and transferred to the plaintiff for value and before maturity. Upon presentation and default in payment the note was duly protested. The summons was issued on the 17th day of December, 1908, returnable on the 28th day of the same month. Plaintiff was unable to procure service to be made on the defendants, and on the 26th day of December, 1908, an alias Second Department, April, 1909. [Vol. 132. summons was issued returnable on the 6th day of January, 1909. On the 30th day of December, 1908, an order was obtained for substituted service, and on the same day said summons was served in accordance with the terms of such order. On the return day of the summons the defendants did not appear, and judgment was entered by default. On the 9th day of January, 1909, the defendants appealed from the said judgment, and also from the order directing substituted service of such summons. A separate appeal from such an order is not authorized by any provision of the Municipal Court Act. (Laws of 1902, chap. 580, §§ 257, 310;* Great Northern Moulding Co. v. Bonewur, No. 1, 128 App. Div. 101; Nolte v. Seymour, 127 id. 178; Beebe v. Nassau Show Case Co., 41 id. 456; Friedberger v. Stulpnagel, 59 Misc. Rep. 498; 112 N. Y. Supp. 89.) An appeal from the judgment, however, is sufficient to present for review the validity of such order. (Friedberger v. Stulpnagel, supra.) The Municipal Court Act contains the following provisions: "An order for the service of a summons upon a defendant residing within the city may be made by the court in the district in which an action is brought after an alias summons has been duly issued, upon satisfactory proof by the affidavit of a person not a party to the action, and the return of a marshal, that proper and diligent effort has been made to serve the summons upon the defendant, and that the place of his sojourn cannot be found, or if he is within the city that he avoids service so that personal service could not be made." (Laws of 1902, chap. 580, § 32.) The jurisdictional facts necessary to warrant the granting of such an order are residence of the defendant in the city, the issuing of an alias summons and proper and diligent effort to serve such summons upon the defendant, which efforts have been unsuccessful because his place of sojourn cannot be found. The latter facts must be established by the affidavit of a person not a party to the action and the return of a city marshal. If such affidavits and return are presented upon an application for such an order which shows some effort to ascertain the place of sojourn of the defendant and that it cannot be found, the determination by the judge to whom the application is made that such evidence is satisfactory is controlling. This has always been the rule with regard to an order * See Laws of 1907, chap. 664, amdg. § 310.- [REP. |