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and 114 New York State Reporter knew, was not occupied after such officers moved out. Held not to constitute a holding over by the city, so as to render it liable for rent be

yond the term of the lease. Appeal from municipal court, borough of the Bronx, First district.

Action by Michael Brennan against the city of New York. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

Samuel K. Probasco (James McKeen, on the brief), for appellant. John R. Halsey, for respondent.

WILLARD BARTLETT, J. In this action the plaintiff has recovered $120 as one-quarter's rent from the ist day of January, 1902, for a building in the borough of the Bronx. The city had occupied this building under a written lease from the plaintiff for a term of three years, beginning on January 1, 1899. The complaint alleged that after January 1, 1902, the city continued and remained in possession and occupation of the said premises, thereby electing to continue its tenancy for another year; and the principal question presented by this appeal is whether the action of the city, through its representatives, at the conclusion of the term under the written lease and thereafter, can be construed into a holding over which binds the city for another year's rent. The premises were occupied by the topographical bureau of the board of public improvements. The representatives of this bureau moved out some time in November, 1901. The fact of their removal was known to the plaintiff, who testified that he did not see anybody occupying the premises after that time. It appears that the agents of the bureau during the city's occupancy put a new Yale lock on the door, which was left fastened on the occasion of their departure. They also put in two stoves, which had become worthless, and were left because they were no longer serviceable to the city. It further appears that the two keys to the lock which has been mentioned were handed to a Mr. Reis, the chief engineer of the bureau of public improvements, at the time when the building was vacated, and were by him placed in his desk, where they were not discovered by the gentleman who succeeded him in office at the end of the year 1901 until about the middle of February, 1902, when they were tendered to the plaintiff, who declined to receive them.

The alleged liability of the city is based upon two facts: (1) The leaving of the useless stoves on the premises; and (2) the failure to turn over the keys to the landlord before or upon the expiration of the term under the written lease. In my opinion, under all the circumstances of the case, these facts do not justify the finding that there was such an occupation of the building by the city as to render it liable for further rent. In the case of Gibbons v. Dayton, 4 Hun, 451, a few valueless pieces of property were left in the rooms, and the court declared that: “Worthless fragments and articles, which tenants are often accustomed to leave behind them, have never been held to constitute a continuance of the tenancy. The landlord's remedy, if any, for such an injury, is quite different from treating the tenancy as renewed by the omission to carry everything away, whether valuable or

not.” As to the keys, the case is analogous to Gray v. Bompas, II C. B. (N. S.) 520, where the mere accidental detention of the key by the tenant for two days beyond the expiration of the term was held not to be any evidence of such use and occupation as to render the tenant liable for another quarter. Here, it is true, the detention of the keys was much longer than in the case cited; but it is to be noted that the lock had been placed upon the premises by the city with the assent of the landlord; that he had personal knowledge that the city had vacated the premises in November; and that the retention of the keys by the city was due solely to the lack of information on the part of a new officer, who, as the evidence indicates, would have delivered them to the landlord at once if he had known or been informed that they were in his custody. The detention of the keys was just as accidental as it was in Gray v. Bompas, supra, and the fact that it was longer in duration does not, under the proof in the present case, make it any more significant of an intention on the part of the landlord to continue the occupancy of the premises. I think the judgment should be reversed.

Judgment of the municipal court reversed, and new trial ordered; costs to abide the event. All concur.

FOLEY V. METROPOLITAN ST. RY. CO. (Supreme Court, Appellate Division, Second Department. February 11, 1903.) 1. IDENTITY OF Person-EVIDENCE-SUFFICIENCY AS AFFECTED BY OTHER

TESTIMOXY.

Testimony of plaintiff in an action for forcible ejection from a street car, given 12 months after the event, that he would not know the conductor, does not affect his positive testimony that the conductor to whom he gave his transfer at Thirty-Fourth street was the one who ejected him at Ninety-Fourth street, so as to allow the question to go to the jury, though the conductor who ejected him testified that he did not take

charge of the car till it reached Fiftieth street. 2. EJECTION OF PASSENGERS-DAMAGES.

A verdict of $1,500 for ejection of a passenger from a street car by the conductor, who insisted that he had not paid his fare, is not excessive, considering the element of humiliation; the conductor having repeatedly struck and kicked him, and endeavored to assault him with a piece of iron, which he was prevented by plaintiff's companion from doing, and it not appearing plaintiff's resistance was such as in any way to mitigate or palliate the unprovoked violence. Appeal from trial term, Kings county.

Action by Michael Foley against the Metropolitan Street Railway Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for new trial, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

Bayard H. Ames (Charles F. Brown, on the brief), for appellant. J. J. Karbry O'Kennedy, for respondent.

WILLARD BARTLETT, J. The plaintiff in this action has recovered a verdict of $1,500 damages on account of injuries inflicted and 114 New York State Reporter upon him by the conductor of one of defendant's cars, in which he was a passenger, on Columbus avenue, in the city of New York, on the evening of February 10, 1901. Although the plaintiff had paid his fare, and testified that he had already delivered to the conductor the transfer ticket which was the evidence of that fact, the conductor insisted upon further payment, and, in consequence of plaintiff's refusal to comply with his demand, committed a violent assault upon plaintiff's person, and put him off the car.

Only two points are argued in the brief for the appellant:

It is contended that the motions to dismiss the complaint at the close of the plaintiff's evidence and at the close of the case should have been granted, on account of the state of the proof in respect to the identity of the conductor. In the case of Townsend v. N. Y. Central & H. R. R. R. Co., 56 N. Y. 295, 15 Am. Rep. 419, the passenger, on his way from New York to Rhinebeck, had given up his ticket before reaching Poughkeepsie, at which station he changed into another train, going north. The conductor of the second train, who knew nothing in regard to plaintiff's payment of fare, except what plaintiff told him, ejected the passenger upon the passenger's refusal to pay him. It was held that the expulsion of the passenger by this conductor from the second train was lawful. The learned counsel for the appellant seeks to apply the doctrine of this decision to the case at bar, on the ground that the plaintiff was not sufficiently positive that the conductor by whom he was ejected from the defendant's car was the same conductor to whom he had given the transfer ticket. The record shows, however, that the plaintiff distinctly swore that he boarded the car from which he was eventually removed at ThirtyFourth street, that he gave up his transfer ticket at Thirty-Fourth street and Broadway, and that the conductor who assaulted him and finally put him off the car was the same conductor with whom he had ridden all the way from Thirty-Fourth street to Ninety-Fourth street. Upon cross-examination he admitted that he was not certain at the time of the trial, twelve months later, whether he would know the conductor or not, and finally said to the examining counsel, “I wouldn't know him, sir.” We are asked to give this concession the same effect as has sometimes been given in negligence cases to the testimony of persons who stated that they had not heard a bell ring or a whistle sounded, as against the positive testimony of others to the effect that the bell was rung or the whistle sounded, inasmuch as the conductor gave positive testimony to the effect that he did not take charge of the car until it reached Fiftieth street. On this branch of the case, reference is also made to Nolan v. Metropolitan Street Railway Company, 65 App. Div. 184, 72 N. Y. Supp. 501, where it was held by the majority of the court that testimony on behalf of the plaintiff to the effect that the witnesses did not hear the gong of the car sound as it approached the place of the accident was not sufficient to carry the case to the jury, as against the testimony of the railroad employés and the passenger that the gong was sounded at that time. Assuming that decision to be correct, the circumstances in this case are not analogous to those which were there presented. The concession by the plaintiff here that he would not now know the conductor is not inconsistent with the existence of the ability on his part to identify the conductor to whom he gave his ticket with the conductor who put him off the car. It might well be that he was perfectly positive as to the identity growing out of the fact that such identity was impressed upon him at the time of his expulsion, and yet be unable to recognize the conductor at the time of the trial. A clear issue as to this matter of identity was presented by the proof, and it seems to us that the plaintiff's testimony was fully sufficient to sustain the findings of the jury in this respect.

The second point of the appellant is that the damages were excessive, inasmuch as the evidence showed that the plaintiff, by his resistance to the attempt to eject him, unnecessarily contributed to his own injuries. No request for any instruction to the jury in respect to this matter of plaintiff's resistance appears to have been made by counsel for the appellant. As to the amount of the recovery, the learned trial judge charged as follows:

"If you find in favor of the plaintiff, you must give him such damages as will fairly, reasonably, compensate him for the pain and suffering that he has endured, and for the humiliation that he was subjected to by being forcibly ejected from the car."

This instruction properly excluded punitive damages from the consideration of the jury, and limited them in their award to compensation, pure and simple. If the proof on the part of the plaintiff was believed, it showed that the conductor had repeatedly struck and kicked the plaintiff, had endeavored to assault him with an iron bar, and was only restrained from so doing by the interference of a companion of the plaintiff. That the circumstances of the assault involved elements of humiliation was made manifest by the exclamations of other passengers in the car, who then and there stigmatized the conduct of the conductor as shameful. There is nothing to show that the plaintiff's resistance was such as in any way to mitigate or palliate the wholly unprovoked violence of the conductor, and, in view of all the facts, the amount of the verdict cannot be deemed immoderate. The judgment and order should be affirmed.

Judgment and order affirmed, with costs. All concur.

In re McKNIGHT'S WILL. (Supreme Court, Appellate Division, Second Department. February 11, 1903.) 1. EXECUTOR-REMOVAL-TEMPORARY RESIDENCE OUTSIDE STATE.

A temporary residence outside the state, maintained for the benefit of the health of the executor's family, is not such a removal from the state as to necessitate his removal as executor by the surrogate, under Code Civ. Proc. $ 2685, subd. 6, authorizing a creditor or person interested to institute proceedings for the revocation of letters testamentary in the case of an executor where he has removed from the state, etc. Appeal from order of surrogate, Westchester county.

Proceedings by Frank V. Millard, receiver in supplementary proceedings of legatees under the will of John J. McKnight, deceased, for the revocation of letters testamentary issued to the executors and and 114 New York State Reporter trustees under the will of the decedent. From an order denying his application, the applicant appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

Henry C. Griffin, for appellant.
William H. H. Ely, for respondents.

WILLARD BARTLETT, J. In this proceeding the appellant sought a revocation of the letters testamentary granted to the respondents as executors under the will of John J. McKnight, upon three grounds: (1) That said executors had wasted the personal estate (Code Civ. Proc. § 2685, subd. 2); (2) that three of the executors were insolvent, and hence that their circumstances did not afford adequate security to the creditors or persons interested for the due administration of the estate (Code Civ. Proc. § 2685, subd. 5); and (3) that the executors had removed from the state, and the case was not one where nonresident executors would be entitled to letters without giving a bond (Code Civ. Proc. § 2685, subd. 6). The surrogate denied the application, and the applicant, who is a receiver in supplementary proceedings of two legalees under the will, has appealed.

We find no difficulty in agreeing with the learned surrogate so far as he holds that the appellant failed to make out any case for revoking the letters so far as the management of the estate or the circumstances of the executors are concerned. Instead of showing a wasteful administration or improvidence, the proof abundantly established that one of the executors (the testator's widow) has expended for the benefit of the estate several thousand dollars of insurance money which did not belong to the testator, but was her own property. Instead of being criticised unfavorably for what she has done, she is really entitled to commendation on the part of the legatees under her husband's will.

A serious question, however, is presented by the alleged removal of the executors from the state. If that allegation is established to the surrogate's satisfaction, the Code makes it imperative upon him to revoke the letters. Code Civ. Proc. § 2687. In his opinion he says that the allegation that the executors are nonresidents is expressly denied, and adds, "It is claimed that their residence in New Jersey is only temporary, and on account of the ill health of a member of the family.” A reference to the answer which the executors interposed to the petition of the appellant shows that they admit, instead of denying, the allegation that they are nonresidents. In the fifth subdivision of the answer we find the declaration that "it is true that all the executors and trustees reside at Rutherford, in the state of New Jersey, but that they never have refused to place themselves within the jurisdiction of this court, and have always expressed a willingness and a desire, in order to avoid the expense of publication, to come to any place within the state of New York for service,” which fact is stated to have been well known to the attorney for the petitioner. I quote further from the answer on this subject :

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