DUCLOS v. KELLEY. (Supreme Court, Appellate Division, Third Department. November 13, 1907.) JUSTICES OF THE PEACE-APPEAL-DISMISSAL. On an appeal from a Justice's Court to the County Court the return was lost; but appellant moved for leave to file copies of the pleadings, and the court ordered that they be filed and stand in place of the original pleadings, etc., and that the appeal proceed, etc. Thereafter the appeal was dismissed, without notice of settlement, on the ground that no return had been filed. The order did not recite the restoration order, or the fact that the pleadings had been restored, and a motion to resettle the order so as to specify the restoration order, and the papers used and read on the application therefor, was denied. The order of restoration and the papers on which it was granted were referred to in the arguments on the motion to dismiss, and the court expressed a doubt as to its power in granting the restoration order. Held, that the restoration order and exhibits filed as and for the return were before the court and used on the motion to dismiss the appeal, and, under rule 3 of the general rules of practice, should have been recited in the order of dismissal. Appeal from Essex County Court. Action by Francis Duclos against Solomon Kelley. From an order of the County Court, refusing to resettle an order dismissing an appeal from Justice's Court, defendant appeals. Reversed. The plaintiff recovered a judgment in Justice Court for $200 damages and $4.55 costs, and the defendant appealed for a new trial in the County Court. When the case was moved for trial at a term commencing December 18, 1905. it was discovered that the return had been lost, and the plaintiff moved to dismiss the appeal, upon the ground that there was no return, as required by section 3053 of the Code of Civil Procedure. The motion was denied, with leave to the defendant and appellant to take such steps as he might think advisable for the discovery or restoration of the record. The defendant availed himself of this privilege, and made a motion for leave to file copies of the pleadings in the place and stead of the lost originals. The motion was argued, and an order was made on the 17th day of March, 1906, which ordered and directed that the copy of the complaint and answer, attached to the petition of the defendant and appellant, and the copy of the amended complaint, attached to the affidavit of the plaintiff and respondent, "be filed in Essex county clerk's office as and for, and in the stead and place of, the original summons, complaint, and answer in the above-entitled action, forming part of the justice's return therein, and stand and be used and treated on the appeal to this court as the original pleadings in said action, in the place and stead of the lost pleading therein, and be treated as though filed in said county clerk's office as the return made in said action by the justice of the peace before whom the original trial was had"; and it was further ordered "that the proceedings on appeal in the above-entitled action shall proceed in all respects upon such substituted and restored record as though the original return of the justice of the peace had not been lost, but had been filed in the county clerk's office of Essex county by said justice before whom the original trial was had, as required by law." The case being upon the calendar for the term of the County Court commencing June 25, 1906, a motion was made on behalf of the respondent to dismiss the appeal on the ground that no return had been filed as required by section 3053 of the code. The motion was granted, and an order was entered dismissing the appeal without notice of settlement. This order did not recite or refer to the order of March 17th, or to the fact that the pleadings had been restored and the record of the appeal supplied as required by said order. The defendant appealed to this court, and thereafter made an application to the County Court to resettle the order appealed from, so as to include or specify the order of the 17th of March and the papers used or read on the application for that order. The application for resettlement was denied, and it is from the order denying such resettlement that this appeal is taken. and 140 New York State Reporter Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ. C. J. Vert, for appellant. A. W. Boynton, for respondent. SEWELL, J. It is undisputed that the order of the 17th of March and the papers upon which it was granted, including the exhibits filed as therein directed, were referred to upon the argument and presented to the court by the defendant's counsel in opposition to the motion, and it appears by the affidavit of the plaintiff's counsel, used and filed in the motion for resettlement, that upon the argument the county judge suggested to defendant's counsel that he doubted his power to grant the order of March 17th. This serves to show that the order of the 17th of March and the exhibits filed as and for the returns were before the court, and were considered and used on the motion to dismiss the appeal. This being so, the appellant was entitled, under rule 3 of the general rules of practice, to have them recited in that order. It follows that the order should be reversed, with $10 costs and disbursements. All concur. In re CASE. (Supreme Court, Appellate Division, Third Department. November 13, 1907.) GOOD WILL-NATURE OF PROPERTY. Good will is an advantage or benefit that has been acquired by, and belongs to, the proprietors of an existing business. It is intangible, and must always attach to and rest upon some principal and tangible thing; and where one had owned an insurance business, but the insurance companies which he formerly represented had all withdrawn their business from him, and he had no lease of the building or office which had been his former place of business, he had no insurance business to which a good will could attach. [Ed. Note. For cases in point, see Cent. Dig. vol. 24, Good Will, § 1. For other definitions, see Words and Phrases, vol. 4, pp. 3128-3130; vol. 8, p. 7673.] Appeal from Surrogate's Court, Fulton County. Proceedings by Margaret M. Case for the settlement of her account as administratrix of the estate of Joseph W. Case. From a decree surcharging her account, the administratrix appeals. Modified and affirmed. This proceeding was commenced by the administratrix for the judicial settlement of her account. Several creditors filed objections to the account, and the issue was referred to a referee appointed by the surrogate to examine the account and to hear and determine the questions arising upon the settlement thereof. The referee made a report, which was confirmed by the surrogate, and a decree was entered in accordance therewith. It appeared upon the trial and the surrogate found, "that Joseph W. Case, in his lifetime, and in about the year 1898, went into business with Purdy F. Case in the city of Johnstown, N. Y., as insurance agents under the firm name of Case & Co., and continued in business with Purdy F. Case until about 1901, and Joseph W. Case, the decedent, continued in business under the name of Case & Co. down to the time of his death, December 13. 1902; that on the 1st day of December, 1902, all insurance companies which decedent had represented, except one, had withdrawn their business from him; that at the time of decedent's death all the companies which he ever represented had withdrawn their business from him; that his office was in the Collins & Hanson Building in the city of Johnstown, N. Y., and that he had no lease of the building or office; that the name of Case & Co. constituted good will of decedent's business, and was an asset which passed to said administratrix upon her appointment as such." He also found that the administratrix had neglected to sell and dispose of the insurance business, or the renewal or expiration book, and had failed to account for the same; that the fair market value of the insurance business at the time of the death of decedent was the sum of $800, and the administratrix was chargeable with that sum. Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ. Clarence W. Smith, for appellant. SEWELL, J. The claim of the respondent is that, notwithstanding every contract by which the decedent was employed as an agent by the insurance companies to solicit insurance and collect premiums had terminated some time before his death, and he could therefore claim no benefit or advantage from the business done or the way in which it had been conducted, the deceased left the good will of an insurance business, which was subject to sale and purchase in the same way and with like effect as other assets which it was the duty of the administratrix to sell. It is my opinion that this claim is unfounded. The good will of a business, as property, is intangible, and must always attach to and rest upon some principal and tangible thing, such as an established business. 20 Cyc. 1276. It is an advantage or benefit that has been acquired by and belongs to the proprietors of an existing business. Boon v. Moss, 70 N. Y. 465. It is unnecessary to inquire whether an agent, acting under a contract for personal services which provides that he shall be paid a commission upon the amount of premiums received on the policies procured by him, can acquire a good will of the business. The proper conclusion in this case must be derived from the fact found in the decision of this case, as to which there is no dispute or controversy, that the deceased had no insurance business or other enterprise, at the time of his death, to which a good will could attach as an incident. From this fact it necessarily follows that whatever benefit or advantage the deceased acquired in the business in which he was employed by the insurance companies did not survive the termination of his contract with them. The decree should therefore be modified, by striking therefrom the item of $800 charged against the administratrix as the value of the insurance business, also the provision requiring her to pay $100, referee fees, $70, the allowance to the stenographer, and the allowance to the contesting creditors, amounting in the aggregate to the sum of $450, and, so modified, affirmed, with cost of this appeal to the appellant. All concur. and 140 New York State Reporter ROBINSON v. CONSOLIDATED GAS CO. (Supreme Court, Trial Term, New York County. December 2, 1907.) MASTER AND SERVANT-INJURIES TO SERVANT-RES IPSA LOQUITUR. The doctrine of res ipsa loquitur applies, where the relation of master and servant exists, if it appears from the facts and surrounding circumstances that the accident would not have happened, had reasonable care been exercised. [Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 877, 881.] Action by Anne Robinson against the Consolidated Gas Company. Motion to set aside a verdict for plaintiff. Motion denied. Edward F. Brown, for plaintiff. E. S. Berry, for defendant. DAYTON, J. The contention of defendant's counsel that the doctrine of res ipsa loquitur does not apply in negligence cases, where the relation of master and servant exists, is refuted by one of the authorities cited to sustain that proposition, to wit, Fouquet v. N. Y., C. & H. R. R., 53 Misc. Rep. 121, 103 N. Y. Supp. 1105, where the rule is stated as follows: "The master has performed his duty to the servant; but if from the surrounding circumstances established, or from such as may be fairly inferred from the facts proved, it appears that the injury would not have happened with the exercise of reasonable care, then the doctrine that 'things speak for themselves' applies, and the burden shifts to the master to explain the cause and to show his freedom from negligence"-citing Griffen v. Manice, 166 N. Y. 188, 59 N. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630, and other cases. In my opinion, upon all the evidence in this case, this accident would not have happened if reasonable care had been exercised in the inspection of this scaffold, and the doctrine of res ipsa loquitur was properly charged. Griffen v. Manice, supra. As to the other questions raised by the defendant's brief, they all arise upon the facts submitted to the jury in a charge which left to them the decision of all these questions. By their verdict they must be held to have found in favor of the plaintiff and against the defendant upon each and all of these questions of fact. I have read the record and briefs carefully, and conclude that I would not be justified. in setting aside the verdict. Motion denied. SIMON-LICHTENSTEIN-PACHNER CO. v. STARRELLS. (Supreme Court, Appellate Term. November 29, 1907.) APPEAL-REVERSAL-NECESSITY OF NEW TRIAL. Where the trial justice rendered judgment for plaintiff, though it prov ed no cause of action, and dismissed the counterclaim, which was clearly established, judgment must be reversed for a new trial. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, S$ 4604, 4609.] Appeal from Municipal Court, Borough of Manhattan, First District. Action by the Simon-Lichtenstein-Pachner Company against Morris Starrells. From a judgment for plaintiff, and dismissing defendant's counterclaim, defendant appeals. Reversed, and a new trial ordered. Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLANGER, JJ. Jackson, Hollender & Frank, for appellant. Myers & Goldsmith (Edward W. Drucker, of counsel), for respondent. PER CURIAM. The trial justice rendered judgment in favor of plaintiff, though it proved no cause of action, and dismissed the counterclaim, which was clearly established. There must be a new trial. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. GLABMAN v. UNION RY. CO. OF NEW YORK CITY. (Supreme Court, Appellate Term. November 29, 1907.) APPEAL-DISMISSAL OF COMPLAINT REVIEW. Where a complaint is dismissed on plaintiff's proof alone, he is entitled upon appeal to the benefit of all favorable inferences deducible therefrom, and it is to be taken as true. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error § 4024.] Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Morris Glabman against the Union Railway Company of New York City. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered. Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLANGER, JJ. Gainsburg & Solomon, for appellant. PER CURIAM. The plaintiff brought this action to recover damages for personal injuries. It was tried before a jury, and at the close of the plaintiff's case the court, upon motion of defendant's counsel, dismissed the complaint upon the ground that the plaintiff failed to show himself free from contributory negligence. Where the plaintiff's complaint is dismissed upon his proof alone, he is entitled upon appeal to the benefit of all favorable inferences that can be drawn therefrom, and it is also to be taken as true. Applying that rule, the evidence of the plaintiff was such as to require its submission to the jury upon the question of the negligence of the defendant and the contributory negligence of the plaintiff. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. 106 N.Y.S.-69 |