and 132 New York State Reporter SCOTT, P. J. The plaintiff sues upon a certified check. In February, 1903, there existed a firm known as Hayman & Co., the members of which were Julius Hayman and Frederick Heyman. On February 9, 1903, Frederick Heyman applied to one Charles Rosenberg for an advance of money, asking for it in the name of Hayman & Co. Certain contracts were entered into between Rosenberg and Hayman, acting for and in the name of Hayman & Co., which resulted in the assignment to Rosenberg of certain outstanding accounts due to Hayman & Co., and the delivery by Rosenberg to Hayman of a check on defendant for $875 to the order of Hayman & Co. Hayman had the check certified by defendant, and then passed it to one Gernsheimer, who paid the amount in cash. Gernsheimer deposited the check in the Mechanics' & Traders' Bank, receiving credit for it upon his account. It passed through the clearing house and came back to defendant, and was stamped with two stars; the mark commonly used by defendant to indicate that a check had been paid. At some time (the record does not clearly show when), upon a statement by Julius Hayman that Frederick Heyman was not a member of the firm, and that his indorsement of the firm's name upon the check was a forgery, the defendant bank recredited Rosenberg, the drawer, with the amount of the check, and made demand upon the Mechanics' and Traders' Bank for a refund. The latter bank did refund the money, and received back the check. In turn Gernsheimer reimbursed his bank, and received back the check, and later Frederick Heyman repaid Gernsheimer, and became repossessed of the check. After holding it about 14 months, Frederick Heyman transferred the check to the plaintiff for value. Without going into all the particulars, we may say that, under the circumstances attending the transfer of the check to plaintiff, we think that he was put on his notice that there might be defenses, and that his position is no stronger than would be that of Frederick Heyman. Cowing v. Altman, 71 N. Y. 440, 27 Am. Rep. 70. Although Julius Hayman claimed that Frederick Heyman was not a member of the firm of Hayman & Co. at the time the check was given, it has since been conclusively established by a judgment of the Supreme Court that Frederick Heyman was in fact at that time a member of the firm. As between the firm and third parties, therefore, he had authority to transfer firm assets, to receive payment therefor, and to indorse the check drawn to the order of the firm. If, therefore, Rosenberg and the defendant bank had elected to stand and rely upon his assignment of the accounts and his indorsement of the check, their position would have been impregnable, as the event turned out; but in all that Heyman did in the matter he acted, not as an individual, but as a member of, and in the name and behalf of, the firm. Hayman, also, was a member of the firm, had at least the same right to act for it and represent it that Heyman had, and had precisely the same right to rescind contracts made by the firm that Heyman had to make them. He elected to rescind them. While no formal rescission of the assignment of the accounts to Rosenberg was shown, there was ample evidence of a practical rescission, under which Heyman collected the accounts. The certification of the check, after the Mechanics' & Traders' Bank and Gernsheimer had been eliminated by repayment, constituted, if it remained effective at all, an obligation on the part of the bank to Hayman & Co., and not to Frederick Heyman individually. Julius Hayman had been the effective cause of the return of the check by the defendant bank, and its recrediting the account of Rosenberg with the amount. This certainly estopped him and the firm of Hayman & Co., in whose behalf he acted, from asserting any claim against the bank upon its certification. Further than this, the check, and whatever right against the bank which it represented when it came back into Frederick Heyman's hands, remained, as it had been when he received it, the property of the firm of Hayman & Co. On February 19, 1904, Julius Hayman was appointed receiver pendente lite of the copartnership, and on April 4th the firm was judicially dissolved, and Julius Hayman appointed receiver of its assets. Both of these events long antedated the transfer of the check to the plaintiff, and after the dissolution Frederick Heyman had no right to deal with the-firm assets, except to turn them over to the receiver, and had no authority to assert any claim based upon the check or the certification, or to invest any one else with such a claim. Since the circumstances surrounding the transaction were sufficient to put plaintiff on his inquiry, he can no more succeed than could Frederick Heyman. Judgment affirmed, with costs. All concur. MOLLOY v. NEW YORK CITY RY. CO. (Supreme Court, Appellate Term. March 26, 1906.) CARRIERS-INJURY TO PASSENGER-NEGLIGENCE EVIDENCE. Proof that a passenger on a street car, who had stepped onto the running board after the car had been signaled to stop at a crossing to permit him to alight, was thrown off in consequence of the car giving a jerk while it continued its course after passing the crossing without stopping, did not prove actionable negligence on the part of the company. [Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1205, 1286.] Appeal from Municipal Court, Borough of Manhattan, Sixth District. Action by Patrick Molloy against the New York City Railway Company. From a judgment for plaintiff, defendant appeals. Reversed. Argued before SCOTT, P. J., and O'GORMAN and NEWBURGER, JJ. William E. Weaver, for appellant. SCOTT, P. J.. The plaintiff's testimony, upon which the recovery herein is based, is to the effect that, while a south-bound car upon which he was riding was crossing Twenty-Eighth street, he signaled the conductor, who rang the bell to stop the car. The plaintiff stepped upon the running board of the car, supposing that it would stop at the south side of Twenty-Eighth street. It continued on its course, however, at the usual rate of speed until about 100 feet from TwentySeventh street, where, as the plaintiff testifies, "the car gave a jerk, and I was pitched off." This is not sufficient proof of negligence on and 132 New York State Reporter the part of the company to authorize a judgment in favor of the plaintiff. Black v. Third Ave. R. R. Co., 2 App. Div. 387, 37 N. Y. Supp. 830. Judgment reversed, and new trial ordered, with costs to appellant to abide the event All concur. (50 Misc. Rep. 620) LESSER v. KAHN. (Supreme Court, Appellate Term. March 26, 1906.) APPEAL JUDGMENTS APPealable-DEFAULT JUDGMENT. Except where no service of summons is made, an appeal does not lie from a default judgment; but, if a motion to open the default is denied, an appeal will lie from the denial. [Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 766, 885-888.] Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by Fred Lesser against Isaac Kahn. From a judgment in favor of defendant, plaintiff appeals. Dismissed. Argued before SCOTT, P. J., and O'GORMAN and NEWBURGER, JJ. Nathaniel Levy, for appellant. Sulzberger & Kringel, for respondent. PER CURIAM Except in cases where no service of the summons is made, an appeal does not lie from a judgment entered on default. The proper practice is to move to open the default. Brown v. Bouse, 43 Misc. Rep. 72, 86 N. Y. Supp. 240. If the motion be denied, an appeal will lie. Schrenkeinsin v. Kroll (Sup.) 85 N. Y. Supp. 1072. The affidavit presented to the justice as a ground for the adjournment of the trial was wholly insufficient. The affidavit on the motion to open the default did, however, present some excuse for the defendant's failure to appear. We incline to the view that the defendant should be allowed to present his defense, if he has one, although, as his answer stands at present, we cannot see that it raises any issue of fact. It certainly does not allege payment, which we infer from the affidavit is the defense intended to be relied upon. The appeal from the judgment will be dismissed, with $10 costs. The order denying the motion to open the default will be reversed, and the cause directed to be tried, upon the payment by defendant to plaintiff's attorney within five days of the costs included in the judgment. No costs to either party upon appeal from the order, and the judgment already entered is to stand as security. (50 Misc. Rep. 164) GETZELSOHN v. DONNELLY. (Supreme Court, Appellate Term. March 26, 1906.) 1. BROKERS-COMPENSATION-EMPLOYMENT-STATUTORY AUTHORIZATION. PROVISIONS-WRITTEN In an action by a broker to recover commissions for finding of a purchaser for defendant's real estate, a letter from defendant to plaintiff, stating that in reference to a conversation with plaintiff in regard to the purchase of the property in question defendant desired to have plaintiff call and discuss the matter, was a sufficient written authority to offer the property for sale, in connection with evidence that plaintiff had already undertaken to find a purchaser, since the statute requiring a broker to show a written authorization does not require that the authority be in any specified form. [Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Brokers, § 44.] 2. SAME-EVIDENCE-SUFFICIENCY. Where the owner of property positively refused to make a sale on any terms, it was unnecessary for his broker, who, under contract with the owner, had found a purchaser on the owner's terms, to actually bring the purchaser into the owner's presence in order to entitle him to recover his commissions. [Ed. Note. For cases in point, see vol. 8, Cent. Dig. Brokers, §§ 81, 94.] O'Gorman, J., dissenting. Appeal from City Court of New York, Trial Term. Action by Abraham Getzelsohn against Michael J. Donnelly. From a judgment in favor of defendant, plaintiff appeals. Reversed. Argued before SCOTT, P. J., and O'GORMAN and NEWBURGER, JJ. Louis A. Jaffer (Bernard Edelhertz, of counsel), for appellant. Carl Schurz Petrasch (Henry S. Mansfield, of counsel), for respondent. SCOTT, P. J. In this action to recover a broker's commission upon the sale of real estate, the complaint was dismissed upon two grounds, viz., that the plaintiff had failed to show written authority to offer the property for sale, and that he had not produced a purchaser ready, willing, and able to comply with the terms demanded by defendant. It appears that plaintiff had approached defendant, saying that he had a possible purchaser, and asking the terms on which the property would be sold. He was given a price, and set about seeking a purchaser. He went back and forth between the parties, and the defendant finally gave as the lowest acceptable price the sum of $55,500. Up to this time no writing had passed between the parties, but on July 27, 1904, defendant wrote to plaintiff as follows: "In reference to conversation had with you in regard to the purchase of the property 50 and 52 East 131st St., if you concede a few points which we did not then allude to, there may be a chance to close the deal; so, if you will call at my place between 6 and 7 o'clock tomorrow evening, will be pleased to hear of your best terms." The plaintiff did call, and a conversation ensued, in which defendant said that he would not sell for less than $55,500 net, and that if he could get that price he would sell the houses. Plaintiff agreed to see what he could do, and then asked about his commission. Defendant and 132 New York State Reporter then told plaintiff to "try to see your party," and that, if he could get 1 per cent. above the $55,500, he (the defendant) would pay the commission. The defendant then, at plaintiff's request, wrote down on a piece of paper the terms of the sale so far as concerns the manner in which payments were to be made. The statute relied upon as a defense to plaintiff's claim does not require that authority to sell should be in any specified form. All that is necessary is that it should in some way clearly recognize the authority of the broker to offer the property for sale. It is true that the letter above quoted does not in terms describe plaintiff as a broker, but, on the contrary, seems rather to address him as a possible purchaser. It does, however, clearly show that the defendant knew that plaintiff was interesting himself in some capacity in bringing about a sale of the houses, and distinctly invites him to call and discuss terms. The letter certainly must be accepted as an authorization to plaintiff to continue to act with reference to the property with a view to a sale of it. That the defendant knew that plaintiff was acting as a broker, and not as a prospective purchaser, is made entirely clear by the conversation testified to by plaintiff, and which on the present record stands uncontradicted. Assuming, as we must do on this appeal, that the plaintiff's testimony is true, we cannot say that the letter of July 27th was not a written authorization to plaintiff to continue the negotiations for a sale which he had with defendant's knowledge already undertaken. The positive evidence was that plaintiff did procure a purchaser ready, willing, and able to purchase the houses on defendant's terms. and that he communicated that fact, with the name of the proposed purchaser, to defendant. That he did not actually bring the purchaser into the physical presence of the defendant is unimportant; for the defendant's positive and unequivocal refusal to go on with the sale at any terms rendered it unnecessary to go through the idle ceremony of actually bringing the purchaser in person to defendant, even if, under any circumstances, that would be necessary. Upon a nonsuit the plain-. tiff is entitled to the benefit of the most favorable view of the testimony, and, giving him that, we are constrained to reverse the judgment and order a new trial, with costs to the appellant to abide the event. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. NEWBURGER, J., concurs. O'GORMAN, J., dissents. 1. GUARANTY-CONDITIONAL PROMISE-LIABILITY OF GUARANTOR. Where defendant guarantied an indebtedness of a firm to plaintiff, provided defendant received a chattel mortgage on the debtors' fixtures, and no valid chattel mortgage was ever executed or delivered, but the debtors were discharged of their indebtedness by proceedings in bankruptcy, defendant was not liable on the guaranty. |