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came from a leak in the plumbing which, so far as appears, may have occurred long after the alleged representations by plaintiff as to the sanitary conditions of the premises, and which smells certainly do not appear to have become observable until eight months after the occupancy by defendant began.

Judgment affirmed, with costs.

MCNIECE et al. v. SAPAN.

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

COURTS (§ 190*)-MUNICIPAL COURTS-DECISIONS REVIEWABLE-JUDGMENT BY DEFAULT.

A defendant who declines to interpose a defense in the Municipal Court after an outburst from the bench indicating judicial indignation caused by an allegation in the answer cannot appeal from a default judgment subsequently rendered against him after trial in the regular manner. [Ed. Note. For other cases, see Courts, Dec. Dig. § 190.*]

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

Action by Joseph M. McNiece and another against Jacob Sapan. From a judgment for plaintiffs, defendant appeals. Affirmed.

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

Horace London, for appellant.

H. & J. J. Lesser, for respondents.

MacLEAN, J. From the judgment in this action for goods sold and delivered amounting to $366.36, whereof the defendant in his answer admitted to be due $104.69 of which he alleged tender and bringing into court, this appeal professedly comes because the court refused to permit the defendant to interpose his defense. This is not borne out by the record,,which, immediately after noting the appearances, recites:

"Defendant's Counsel: I will ask that the record be kept straight, so that it will appear that the court refused to permit me to go on with my defense."

Thereupon follows a spirited allocution from the bench indicating judicial indignation that the answer, signed by the attorney and verified by the defendant, declares that the sum admittedly due has been tendered and is brought into court, though the fact is not so, as the attorney knows. It may be truly that, however commendable in a person of exalted sentiment its rising, righteous indignation is a personal emotion, not to be gratified coincidently with the administration of the law and forensic practice. Seemingly here its outburst worked no harm. After it had evanesced, the trial proceeded in fashion ordinary enough. One of the plaintiffs was called as a witness, and testified to facts sustaining the complaint. The defendant's lawyer did not cross-examine the witness, nor did he offer anything nor any one to contradict his evidence, although he again expressed anxiety that the record show that

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

and 146 New York State Reporter

he was precluded from putting in his defense. Of course, judgment was rendered for the plaintiffs, and from that judgment on default lies no appeal.

Judgment affirmed, with costs.

GILDERSLEEVE, P. J., concurs. SEABURY, J., concurs in re

sult.

ORLANDO v. PALLADINO.

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

COURTS ( 190*)—CITY COURTS-FRIVOLOUS APPEAL-DISMISSAL.

Since a justice of the City Court has power to revise or recall his de cision, an appeal from an order imposing costs on the ground that the memorandum announcing a justice's decision did not mention costs was frivolous.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 190.*]

Appeal from City Court of New York, Special Term.

Action by Antonio Orlando against Angelo Palladino. From an order of the New York City Court, plaintiff appeals. Dismissed. Argued before GILDERSLEEVĖ, P. J., and MacLEAN and SEABURY, JJ.

Pace & Stimpson, for appellant.

Andrew S. Fraser, for respondent.

MacLEAN, J. The learned justice in the City Court filed a memorandum announcing his decision of a motion without mentioning costs, but in the order he signed and which was entered thereon he imposed costs. From that comes this appeal, which is frivolous, as the justice had power to revise or recall his decision. Post v. Cobb, 13 N. Y. St. Rep. 555. In the case (Siegrist v. Holloway, 7 Civ. Proc. R. [N. Y.] 58) cited by the appellant, cited now and again on such motions, and even in a respectable handbook on practice, as authority otherwise, the order was seemingly entered by the clerk who, of course, had no power to enlarge the decision of the county judge.

Appeal dismissed, with $10 costs to the respondent. All concur.

FLURSCHEIM et al. v. ROSENTHAL.

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

HUSBAND AND WIFE (§ 83*)-NECESSARIES-WIFE'S LIABILITY.

While a husband's common-law duty to support his wife has not been changed by statute, and he is presumptively and primarily liable for nee essaries furnished, she is nevertheless authorized by the domestic relations law (Laws 1896, p. 215, c. 272) to bind herself therefor by express contract.

[Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 325; Dec. Dig. § 83.*]

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

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

Action by Herman A. Flurscheim and another against Sadie Rosenthal. Judgment for plaintiffs, and defendant appeals. Affirmed. Argued before GILDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ.

Engel Bros., for appellant.

Edgar N. Dollin, for respondents.

MacLEAN, J. In this action to recover for goods sold and delivered, the defendant conceding the amount claimed and delivery of the goods at the residence of the defendant and the defendant's husband upon her order, judgment was rendered in favor of the plaintiffs. The defendant claimed that the goods were necessaries for which she as wife, living with her husband, was not liable. While the common-law duty of a husband to support has not been changed by statute and his is presumptively and primarily the liability for necessaries furnished, unless the wife expressly contracts therefor, her ability to contract has been enlarged. Domestic Relations Law (chapter 272, p. 215, Laws 1896). Whether the defendant herein expressly contracted for the goods in question was a fact to be determined, and determined as it has been upon evidence tending to prove that she did so contract, which this court will not be warranted in disturbing, this judgment must be affirmed.

Judgment affirmed, with costs to the respondent. All concur.

GOERLITZ et al. v. SCHWARTZ et al.

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

1. LANDLORD And Tenant (§ 149*)-PREMISES-WATER RENTS.

The extent of a lessee's liability on a covenant to pay his pro rata share of water rents assessed on the premises during the term must be computed by the means at hand, unless he puts in a meter.

[Ed. Note. For other cases, see Landlord and Tenant, Dec. Dig. § 149.*]

2. EVIDENCE (§ 441*)-PAROL EVIDENCE AFFECTING WRITINGS.

Evidence of a parol agreement, contemporaneous with a written lease, that the lessor would not enforce a covenant as to water rents assessed upon the premises, if the lessee signed the lease and paid the rent, is inadmissible.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2037; Dec. Dig. § 441.*]

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

Action by Philip Goerlitz and another against Nathan T. Schwartz and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

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

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

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PER CURIAM. Two causes of action are pleaded: (1) That under a lease to them in 1904 of the ninth loft of 10 Waverly Place, the defendants stipulated to pay on the 1st day of August, 1904, the regular water tax amounting to $10, and made a like stipulation in a renewal of the lease, together amounting to $20; (2) that under a lease and a renewal thereof for the same premises for the years from February 1, 1906, to February 1, 1908, the defendants stipulated promptly to pay a pro rata share of all Croton water rent which might be assessed during the said term upon the building.

There was little opposition to the prima facie proof of the first cause of action. As to the second, the defendants objected to the manner of computing their proportionate share, contending they were liable only for the water actually used by them, and that thereof there was no proof. But the language of the covenant indicates that the share of their loft was to be proportionate to those of all the lofts. They undertook their share, and it needs be computed by the means at hand, unless they put in, as they might under the regulations of the water department, a meter for themselves and procured a change of the lease. They knew the only means of arriving at their indebtedness, and accepted it.

Another and almost novel defense, and whereof the learned trial justice excluded all evidence, was an alleged contemporaneous oral agreement nullifying in part the written lease, and whereby, according to the defendants, the plaintiffs agreed not to enforce the covenants as to water rents if the defendants signed the lease and paid the rent. Of these alleged agreements the learned trial justice rightly excluded all testimony, because not within the rule that parol evidence is admissible to show a written paper, in form a complete contract, is not to become binding until the performance of some condition precedent resting in parol. Reynolds v. Robinson, 110 N. Y. 654, 18 N. E. 127.

Judgment affirmed, with costs.

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1121

MEMORANDUM DECISIONS.

ADAMS et al., Respondents, v. BRISTOL, | properly received in evidence. WILLIAMS, J., Appellant, et al. (Supreme Court, Appellate votes for reversal on the ground that the verdict Division, First Department. October 16, 1908.) as to the questions of negligence is contrary to Action by William C. Adams and another the evidence. against Elias L. M. Bristol, impleaded with others. B. L. Rich, for appellant. P. Merrill, for respondents. No opinion. with $10 costs and disbursements. Order affirmed, See, also, 126 App. Div. 660, 111 N. Y. Supp. Order filed. 231.

AICHMANN v. PEOPLE'S TRUST CO. et al. (Supreme Court, Appellate Division, Second Department. October 9, 1908.) Appeal from Special Term, Kings County. Action by Charles Aichmaun against the People's Trust Company and another. From an adverse judgment, defendant Eugene B. Howell, receiver of the Long Island Real Estate Exchange & Investment Company, appeals. Affirmed. Robert H. Wilson, for appellant. Nathan Ballin, for respondent Aichmann. T. Ellett Hodgskin, for respondent People's Trust Co.

WOODWARD, J. The facts in this case, as found by the court, supported by the evidence, bare, in substance, the same as those involved in the case of Barnes v. Long Island Real Estate Co., 88 App. Div. 83, 84 N. Y. Supp. 951, and, the decision of the court below being in conformity with that case, we discover no reason for a reversal of the judgment. The judgment appealed from should be affirmed.

All concur.

ALLEN et al., Respondents, v. BANTEL_et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. October 17, 1908.) Action by Marion L. Allen and another against George R. Bantel and another. Judgment and order affirmed, with costs. No opinion.

WOODBURY et al., Appellants.
ANDREW JERGENS CO., Respondent, v.
November 6, 1908.) Action by the Andrew Jer-
Court, Appellate Division, First Department.
(Supreme
gens Company against John H. Woodbury and
Nicholls, for respondent. No opinion. Judgment
another. R. Patterson, for appellants. R. S.
affirmed, with costs. Order filed.

ARNOLD, Appellant, v. ARNOLD, Respond-
ent. (Supreme Court, Appellate Division, Fourth
Department.
Benjamin Arnold against Etta M. Arnold.
November 11, 1908.) Action by
costs.
PER CURIAM. Judgment affirmed, with
WILLIAMS, J., dissents.

ED RENDERING CO., Appellant. (Supreme
ATKINSON, Respondent, v. CONSOLIDAT-
Court, Appellate Division, Fourth Department.
July 24, 1908.) Action by Elmer E. Atkinson
against the Consolidated Rendering Company.
No opinion.
with $10 costs.
Motion for reargument denied,
Motion for leave to appeal to
Court of Appeals denied.

AVERY, Appellant, v. BROOKLYN Court, Appellate Division, Second Department. HEIGHTS R. CO., Respondent. October 22, 1908.) (Supreme against the Brooklyn Heights Railroad ComAction by Robert Avery pany. No opinion. Motion granted.

ALLEN KINGSTON CAR CO., Respondent, V. CONSOLIDATED NAT. BANK et al., Ap-ent. (Supreme Court, Appellate Division, Fourth BAKER, Appellant, v. HARVITH, Respondpellants. (Supreme Court, Appellate Division, Department. October 7, 1908.) Action by OrFirst Department. October 16, 1908.) Action by the Allen Kingston Car Company against son E. Baker against Jacob B. Harvith. the Consolidated National Bank and others. PER CURIAM. Judgment of nonsuit reversR. Victor, for appellants. W. F. Goldbeck, fored, with costs, and judgment ordered for the respondent. No opinion. Order affirmed, with plaintiff upon the verdict, with costs. $10 costs and disbursements. Order filed. that the evidence sustains the finding of the jury Held, that the plaintiff entered into a contract to sell question, and that the defendant received and and the defendant to buy the stock of goods in accepted the said goods.

AMOS, Respondent, v. INTERNATIONAL RY. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 7, 1908.) Action by George N. Amos against the International Railway Company.

PER CURIAM. Judgment and order affirmed, with costs.

MCLENNAN, P. J., votes for reversal on the ground that the rules of the defendant were im112 N.Y.S.-71

BARBER v. FLINT et al. (Supreme Court, 16, 1908.) Appellate Division, First Department. October Action by Ohio C. Barber against tion denied, on terms stated in order. Charles R. Flint and others. No opinion. Mofiled. Order

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