and 146 New York State Reporter

amination in the Jones supplementary proceedings. From the fact that a copy of the affidavit and order in these proceedings was served on the defendant prior to these payments, it may be that, as to the claim on the Jones judgment, defendant had notice thereof, and that these payments may not be considered as made in good faith and without notice so far as the rights of the owners of that claim are concerned. But they were all made before any proceedings supplementary to execution were begun on any of the other judgment claims against Todd and Brown. We fail to find in the record any evidence that defendant knew of these other claims, except possibly the Buckley judgment, and no evidence whatever that the payments by defendant on the account of Todd and Brown were not made in good faith, and without notice as to these claims. The mere fact that a debtor is aware that his creditor is indebted, even largely, or that judgments have been obtained against him, should not affect the good faith of payments on his own indebtedness made by him either directly to his creditor, or upon his creditor's order; unless, at least, it was shown that such payments were made for the purpose of defeating some right of the debtor's creditors to this particular claim, which the latter had acquired and of which the debtor had notice.

Under section 2469 the receiver's title to the judgment debtor's property extends by relation back to the date of service of the order for the latter's examination not for the benefit of all creditors who may subsequently have such receivership extended for their benefit, but, as the section expressly provides, it is for the benefit of the judgment creditor in whose behalf the special proceeding was instituted.

We conclude, therefore, that the receiver in this action was at most entitled to recover judgment against defendant only to the extent of the claim upon which the proceedings were instituted in which he was first appointed, together with the proper costs and allowances therein. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

WYCKOFF, CHURCH & PARTRIDGE v. LANDSDEN CO.

(Supreme Court, Appellate Term. November 24, 1908.)

WAREHOUSEMEN (§ 34*)-STORAGE OF AUTOMOBILE-INJURY TO MACHINE-NEGLIGENCE EVIDENCE.

In an action for the storage of an automobile, evidence held not to support a counterclaim based on the charge that plaintiff had negligently damaged the machine by filling the cells of the battery with sulphuric acid, instead of distilled water.

[Ed. Note. For other cases, see Warehousemen, Dec. Dig. § 34.*]

Appeal from City Court of New York, Trial Term.

Action by Wyckoff, Church & Partridge against the Landsden Company. From a judgment of the City Court of the city of New York, rendered in favor of defendant, plaintiff appeals. Reversed, and new trial ordered.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Argued before GILDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ.

Fletcher, McCutcheon & Brown, for appellant.

James Cowden Meyers, for respondent.

MacLEAN, J. Having and taking the affirmative on its counterclaim for damages for having filled the cells of a storage battery of an automobile with sulphuric acid, instead of distilled water, the defendant's vice president testified that the company kept its automobile in the garage of the plaintiff, which brought this action for storage; that, having used the car all day, he brought it to the plaintiff's garage about July 8, 1907; that on the day following the machine would not move, and he, on inspection, discovered the battery was hot and the surface of the battery filled with gases; that after giving it a very long charge he took the car to Newark, just got to Newark with it, and thereupon the battery was taken from the machine and sent to the Edison Storage Battery Works, whence it was returned in a few days; that it did not run as it used to before July 8th, and that after using it two or three times a week, sometimes from New York to Newark, in the latter part or towards the middle of September, it was sent back to the Edison Works. A witness in charge of the testing department of the latter company testified to receiving the battery early in July and to replacing 23 of the 60 or so cells because they did not come up to capacity; that the battery came back on the 15th of September when the whole battery was tested, and the cells cut open and tested by the chemist, who, testifying, said that he found sulphuric acid in combination with potash in every one of the cells.

Assuming all of this testimony to be of facts, it left unaccounted for so many opportunities for interference by others both previously to and during a long drive of 36 miles before coming into the garage on July 8th, on the trip to Newark, and on the sundry trips for the weeks following, that the issue of which the defendant had the affirmative was too scantily sustained by the evidence. The cogency whereof, moreover, was weakened by the persistent course of its attorney in asking not for facts but for conclusions of the witnesses, to which questions objections were duly made and exceptions taken. On the other hand, the evidence for the plaintiff was positive. The person in charge of the electrical department of the plaintiff testified that he recalled the incident because it was on Sunday, which was the 7th; that the car came in about 8 o'clock; that he himself filled the battery, noticed the battery was very hot; that he never saw an Edison battery hot before; that he filled this battery with distilled water, describing the process of taking the water from a carboy with a pipe from which he sucked the air until a quantity of the liquid came into his mouth; and that immediately after filling the Landsden machine he filled another from the same carboy, siphoning it the same way for the Lewando Company (dyers and cleaners), whose chaffeur, appearing as a witness, testified that he drove his car all through the month of July and up to the 1st of October. This positive evidence so far outweighs the loopholed testimony for the defendant in support of the counterclaim that

and 146 New York State Reporter

the judgment for $206.50 resting upon a verdict for the difference between the plaintiff's claim for storage, admittedly correct, and $500 cost for replacing the batteries, must be reversed, even apart from some errors in the admission of evidence and an inconsiderate expression in the charge of the learned trial justice.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

GILDERSLEEVE, P. J., concurs.

SEABURY, J. (concurring). This action was brought to recover $293.50 for storage of the defendant's automobile. The defendant admitted the plaintiff's cause of action, and pleaded a counterclaim for $500. The counterclaim was based upon the charge that the plaintiff had through negligence damaged the defendant's automobile by filling the cells of the battery with sulphuric acid, instead of distilled water. The jury returned a verdict for the defendant for $206.50. The defendant proved that on the 8th or 9th day of July he brought the car to the plaintiff's garage to be charged, and that on the following day he found that the machine would not move, and that the battery was hot and filled with gases. The battery was then sent to the Edison Storage Battery Works on July 10th. In August a chemist in the employ of the Edison Company subjected it to a test, and found that sulphuric acid had been inserted in the cells. Some of the cells in the battery were found to be defective when it was examined on July 15th. The evidence was not sufficiently definite to justify the conclusion that the plaintiff's employé had put sulphuric acid in the cells. To justify this inference, it was necessary for the defendant to prove that no one else had put sulphuric acid in the cells between the time when the battery was taken from the plaintiff's garage and the time when the chemist made the test to which he testified. In the absence of satisfactory evidence upon this point, the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

The judgment is reversed, and a new trial ordered, with costs to appellant to abide the event.

SCHULZ et al. v. GRIFFITH.

(Supreme Court, Appellate Term. November 24, 1908.)

DISMISSAL AND NONSUIT (§ 60*)-PROSECUTION.

Where issue was joined on March 10th, and defendant's attorney requested plaintiff's attorney not to prosecute the action as defendant had just lost her husband and was in straitened circumstances, and on be ing informed on July 16th, by defendant's attorney, that defendant could not pay anything, plaintiff's attorney stated that he would not prosecute the action "inasmuch as a judgment would be of no value," a motion to dismiss for unreasonable neglect made two weeks thereafter was properly denied.

[Ed. Note. For other cases, see Dismissal and Nonsuit, Cent. Dig. 147; Dec. Dig. § 60.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from City Court of New York, Trial Term.

Action by Charles Schulz and another against Mary Griffith. From an order denying a motion to dismiss the complaint, defendant appeals. Affirmed.

Argued before GILDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ.

Ernst, Lowenstein & Cane (Bernard M. L. Ernst, of counsel), for appellant.

Frank Thorn (Philip Cohen, of counsel), for respondents.

MacLEAN, J. The defendant appeals from an order dated June 29, 1906, denying her motion to dismiss the complaint herein for failure to prosecute. It appears that issue was joined on March 10, 1906, and that defendant's attorney requested the attorney for the plaintiffs "not to prosecute the action against the defendant, as she was a woman who had just lost her husband, and that she had been left in straitened circumstances." Then the attorney for the plaintiffs proposed to discontinue if the defendant would pay the rent for one month, the action 'being one to recover for rent, but was informed on July 16, 1906, by the attorney for the defendant that the defendant was not in a position to pay anything. Thereupon he stated that he would not prosecute the case "inasmuch as a judgment would be of no value." In view of the request not to prosecute made by the attorney for the defendant, she may not now well claim unreasonable neglect on the part of the plaintiffs to proceed with the action, and the discretionary order of the court below should remain undisturbed.

Order affirmed, with $10 costs and disbursements. All concur.

COLLINS et al. v. STAR CO.

(Supreme Court, Appellate Term.

November 24, 1908.)

BAILMENT (§ 31*)-ACTIONS EVIDENCE.

Evidence held sufficient to overcome the presumption of liability of the bailee of a horse arising from its failure to return the horse to the bailor. [Ed. Note. For other cases, see Bailment, Dec. Dig. § 31.*]

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Phillip Collins and another against the Star Company. Judgment for plaintiffs, and defendant appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ.

Clarence J. Shearn, for appellant.

J. Campbell Thompson, for respondents.

PER CURIAM. The plaintiffs brought this action to recover the value of a horse hired by them to the defendant, which was not return*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

and 146 New York State Reporter

ed to the plaintiffs. The defense was that the horse had been killed by a third party through no negligence on the part of the defendant. The pleadings were oral. Upon the trial the hiring failure to return and value of the horse were not contested. The plaintiffs proved a prima facie case. The defendant to overcome the presumption of liability arising from its failure to return the horse introduced the testimony of two witnesses who were drivers on the wagon to which the horse was attached. Both of these witnesses testified that on the day of the accident, while driving north on the east car track on East Broadway, as they approached Rutgers street, they saw a horse and wagon owned by one Larkins coming south on the west car track on East Broadway; that, when five feet past Rutgers street at the intersection of East Broadway, Larkins' horse and wagon turned suddenly east into Rutgers street, and the pole of the wagon struck the horse attached to the defendant's wagon, causing fatal injuries; that the defendant's wagon was moving slowly, and, in an effort to avoid the accident, the defendant's driver swung the horse to the right but could not avoid the collision; that the defendant's driver ran after and caught Larkins' driver, who seemed intoxicated. The horse died at the place of the accident. This evidence was sufficient to overcome the presumption of liability raised by defendant's failure to return the horse, and, in the absence of any proof tending to show that the accident was due to negligence or lack or ordinary care and prudence on the part of the defendant, the complaint should have been dismissed.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

LIPFERT v. MALLER.

(Supreme Court, Appellate Term. November 24, 1908.)

COURTS (§ 189*)-MUNICIPAL COURTS-PROCESS-JURISDICTION OF THE PERSON. The fact that an alias summons is issued from a district of a municipal court which is not the district from which the original summons and other aliases were issued does not affect the jurisdiction of the original district of the person of the defendant, where there is no proof that the last alias summons was the one served on defendant.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 189.*]

Appeal from Municipal Court, Borough of Manhattan, First District.

Action between William Lipfert and Osias Maller. From the judg ment rendered, defendant appeals. Affirmed.

Argued before GILDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ.

Max Brown, for appellant.

Putney, Twombly & Putney, for respondent.

GILDERSLEEVE, P. J. The defendant appeals from a judgment entered against him in favor of the plaintiff upon the ground that the court below obtained no jurisdiction over his person. The lack of

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes