"The executors further allege that their residence at Rutherford, New Jersey, is not intended to be permanent; that they are now living there temporarily on account of the health of certain members of the family."

It must be conceded that these averments in the answer certainly do amount to an admission of temporary nonresidence on the part of the executors, so that the case directly calls for a determination as to whether a residence of this character in another state constitutes a removal from New York state, within the meaning of the Code, so as to require the surrogate to revoke the letters testamentary. Not without considerable hesitation, I have reached the conclusion that it does not. It seems quite clear that a temporary absence from the state on account of ill health, or on account of business, or for purposes of travel or pleasure, would not necessarily establish the fact that an executor "has removed" from the state, within the intent of the statute. The learned surrogate was evidently satisfied that the sojourn of these executors in New Jersey was nothing more than a departure from the state for the benefit of relatives, not designed to constitute a permanent change of abode, and contemplating a return to New York as soon as the purpose of their absence should be accomplished. In this view, I am inclined to think that he was right in refusing to hold that he was constrained to revoke the letters by the provisions of the Code to which I have referred. I therefore advise an affirmance of the order.

Order of surrogate's court of Westchester county affirmed, with $10 costs and disbursements. All concur.

LIFSHITZ v. McCONNELL et al.

(Supreme Court, Appellate Division, Second Department. February 11, 1903.) 1. SALES-WARRANTY-BREACH-ACCEPTANCE OF GOODS-WAIVER.

Defendant agreed to purchase from plaintiff a certain number of sweaters each week for a year, to be all wool, and of a certain weight, and from size No. 24 up to size No. 34, inclusive. In an action for the balance of the price defendant alleged that the goods were not in all respects. equal to the samples, but were poorly made, of bad sizes and color, not assorted according to orders, and were unmerchantable. Defendants had accepted the goods, and retained them, without examination or objection, until after the beginning of the suit. Held that, as the claim of breach of warranty did not relate to any express warranty contained in the written agreement, or to any implied warranty which would survive the acceptance, the counterclaim based thereon was improperly allowed.

2. SAME-EXPENSE OF EXAMINATION-PROPRIETY OF ALLOWANCE.

A buyer who counterclaims for breach of warranty when sued for the price of goods is not entitled to recover the expenses of making an examination of the articles bought.

3. JUDGMENT AMOUNT OF RECOVERY-CONFORMITY TO PLEADING.

It is error to render judgment for a party for more than he claims in his pleading.

13. See Judgment, vol. 30, Cent. Dig. §§ 443, 444.

and 114 New York State Reporter

Appeal from municipal court of New York.

Action by Alexander Lifshitz against Lewis E. McConnell and another. From a judgment for defendants on their counterclaim, plaintiff appeals. Reversed.

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

Florence A. Scheftel, for appellant.

Ira Bliss Stewart, for respondents.

HIRSCHBERG, J. The appellant contends that the judgment is void for want of jurisdiction. The suit is brought to recover an alleged balance of $216.73 for goods sold and delivered, and the answer, in addition to a general denial, sets up a breach of warranty, and damages resulting therefrom. The court allowed the plaintiff's claim in full, and also allowed the defendants the sum of $657.58 damages for the alleged breach of warranty, judgment being rendered in the latter's favor for the difference, viz., $440.85, with costs. The chief contention on the appellant's part is that, as the amount of the defendant's counterclaim is in excess of the jurisdiction of the municipal court, the claim could not be adjudicated in that court. In the view taken, it is unnecessary to decide the question, as there must be a new trial in any event, and the question may not, and probably will not, be a practical one upon such new trial. It is, moreover, exceedingly doubtful whether this question of jurisdiction, not having been raised in any manner upon the trial, can be successfully urged for the first time upon appeal. See Huber v. Ehlers, 76 App. Div. 602, 604, 79 N. Y. Supp. 150. The claim of neither party to the suit. was established by competent evidence, and the record furnishes no legitimate support for the judgment. The controversy arises from transactions under a written agreement executed by the parties on the 13th of August, 1901. By the terms of this agreement the defendants agreed to purchase of the plaintiff 50 dozen sweaters of his manufacture each week of the year commencing September 1, 1901, and to pay for them in cash at the price of $6 per dozen, with a discount of 7 per cent. for samples No. 100 and 150, and of 6 per cent. for sample No. 175. The agreement further provides that the samples referred to "are to be all wool, and put up in 2/12 boxes, and weigh six pounds in average from size 24 up to the size No. 34, inclusive." The sum which the plaintiff seeks to recover is for sales made under the agreement from February 14 to April 2, 1902, together with an alleged balance, according to the plaintiff's bil of particulars, of $38.32, arising from sales made prior to February 14, 1902. The counterclaim set up in the answer consists of two items, viz., the sum of $468.62, being the alleged difference in value of the sweaters because of the breach of warranty, and the sum of $154.90 for expenses alleged to have been incurred by the defendants in examining the merchandise in question. The total of the two items is $623.52, but the answer asks judgment for $627.02, and, as I have said, the court has allowed the defendants $657.58, being more than $30 in excess of their claim, and nearly $35 in excess of the sum of the items constituting such claim.

The plaintiff's bill of particulars is made up of the $38.32 balance referred to arising from sales made between September 1, 1901, and February 14, 1902, and of sales to the amount of $1,669.03, made between February 14th and April 2d; in all, the sum of $1,707.35, upon which sum credits for payment are allowed in the sum of $1,491.02, leaving $216.33 as the plaintiff's unpaid claim,-an amount 40 cents less than that allowed by the court. But no proof was made upon the trial of the $38.32 balance arising from the first sales under the agreement, nor was any proof made of the following three items of the alleged subsequent sales, viz., of February 26th, $133.92, of March 5th, $6.85, and of March 12th, $5.58. The plaintiff's claim as allowed was, therefore, almost wholly without proper support.

The allowance of the defendants' counterclaim was equally without any legal basis. It is undisputed that whatever sweaters were delivered to the defendants under the agreement were received and retained without examination long after opportunity for examination had been afforded, and no valid reason is assigned for the defendants' failure to make such examination. The defects complained of were such as were readily discernible upon examination, the allegations of the answer being that the goods were "not in all respects equal to the said samples, but were imperfect, of inferior quality, poorly made, of bad sizes and color, not assorted according to orders, and were badly damaged and unmerchantable." If the facts justified the claim, they certainly do not relate to any express warranty contained in the written agreement, or to any implied warranty which would survive acceptance. As a matter of fact, the defendants made no examination until after this action was brought for the purpose of recovering the purchase money, a circumstance which tends to throw some discredit upon the alleged results of the examination, especially in view of the fact that no serious fault appears to have been found with the plaintiff's previous delivery of goods under the agreement. The court allowed the defendants the sum of $150 for their expenses in making the examination. There was no proof showing how these expenses were incurred. Two or three persons were employed by the defendants to make the examination, and they testified upon the trial as to the results. But none of them has been paid for his services, and no proof was given as to the value of the services. The expense thus incurred in making the examination was not a proper subject of offset or counterciaim, and should not be allowed under the circumstances, even if established by competent evidence. The law imposes upon the purchaser the duty of examining his purchases upon delivery, and I know of no law which permits him to charge to the vendor the time, trouble, and expense involved in the discharge of that duty. That the defendants could not be properly allowed damages in excess of the amount claimed in the answer is too plain a proposition to require discussion. The judgment should be reversed.

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

and 114 New York State Reporter

BENJAMIN et al. v. PALATINE INS. CO., LIMITED, OF LONDON,

ENGLAND, et al.

(Supreme Court, Appellate Division, Second Department. February 11, 1903.) 1. FIRE POLICY-BREACH OF CONDITIONS-ESTOPPEL TO ASSERT.

A fire policy provided that it should be void "if, with the knowledge of the insured, foreclosure proceedings be commenced," etc. Foreclosure proceedings had been commenced more than a year before the policy was issued, which the agent from whom the policy was obtained knew. Held, that the company was estopped to assert that the policy was avoided.

Appeal from trial term, Suffolk county.

Action by Hannah F. Benjamin and Hannah Amelia Terry against the Palatine Insurance Company, Limited, of London, England, and John M. Diven. From a judgment in favor of plaintiffs and of defendant Diven, entered on a verdict directed by the court, the insurance company appeals. Affirmed.

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

John Notman (Michael H. Cardozo, on the brief), for appellant. William B. Ellison (Arnold L. Davis, on the brief), for respondent plaintiffs.

John M. Diven, pro se.

WILLARD BARTLETT, J. This is an action to recover the amount due on a policy of fire insurance covering property in Florida, and belonging to the plaintiffs. The policy contained a provision declaring that, unless it was otherwise provided by agreement indorsed thereon or added thereto, it should be void "if, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed." It appeared that proceedings to foreclose a mortgage upon the property had been begun on April 20, 1900, more than a year before the issue of the policy, which was on April 27, 1901. There was clear and undisputed proof in the case to the effect that the agent from whom the policy was obtained had knowledge of the pending foreclosure proceedings at the time when he issued the policy. The respondents insist that the language of the provision which we have quoted from the policy refers only to foreclosure proceedings commenced after the issue of the policy, and not to proceedings instituted prior to the time when the policy was issued; and in support of this proposition they cite Chamberlain v. Insurance. Company, 51 Hun, 636, 3 N. Y. Supp. 701. Whether they are correct in this proposition or not, we think that, under the New York authorities, the knowledge of the agent who issued the policy that the foreclosure proceedings were actually pending at the time estops the insurer from setting up the pendency of such proceedings as a bar to the maintenance of this action. Wood v. American Fire Ins. Co., 149 N. Y. 382, 44 N. E. 80, 52 Am. St. Rep. 733; Robbins v. Springfield Fire Ins. Co., 149 N. Y. 477, 44 N. E. 159. It is true that the supreme

¶ 1. See Insurance, vol. 28, Cent. Dig. §§ 977, 989.

court of the United States, by a majority vote (the Chief Justice, Mr. Justice Harlan, and Mr. Justice Peckham dissenting), has disapproved of the conclusion reached by our court of appeals in the cases cited. Assurance Co. v. Building Association, 183 U. S. 308, 327, 22 Sup. Ct. 133, 46 L. Ed. 313. Nevertheless, that conclusion is binding upon us here, and it follows that this judgment must be affirmed. Judgment affirmed, with costs. All concur.

WYNN v. CITY OF YONKERS et al.

(Supreme Court, Appellate Division, Second Department. February 11, 1903.) 1. CITIES-OBSTRUCTION IN STREET-PERMANENCY-INSTRUCTION.

In an action against a city for injuries sustained by reason of an obstruction in the street, consisting of a beam lowered from a runway, there was evidence that the beam had for years been lowered for hours at a time, while the runway was in operation. The court instructed that the city was not liable unless the structure was a "permanent and habitual" obstruction of the street. Held, that an instruction was properly refused to the effect that the lowering of the beam which caused the accident was a temporary use, for which the city would not be liable unless it had notice that this temporary use had been so continued at any one time as to constitute a permanent obstruction.

2. SAME

PERMANENT INJURY-EVIDENCE-HARMLESS ERROR.

In an action against a city for personal injuries, testimony of a physician was admitted as to a permanent ailment of plaintiff, which was not definitely shown to have been the result of the injury. Defendant was granted leave to renew its motion to strike if the testimony was not subsequently connected. The motion was never renewed, but the court instructed that there was no evidence as to the permanency of pain. Held, that the admission of the testimony could not have in

jured defendant.

Appeal from trial term, Westchester county.

Action by Thomas Wynn against the city of Yonkers and others. From a judgment in favor of plaintiff, and an order denying their motion for a new trial, defendants appeal. Affirmed.

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

Francis A. Winslow (Alfred Opdyke, on brief), for appellants.
John F. Brennan, for respondent.

WILLARD BARTLETT, J. On April 29, 1901, the plaintiff, while driving upon a load of hay on a public street in the city of Yonkers, was injured by colliding with a structure denominated a "runway," which had been maintained for many years across the street by the defendants Nelson Morris & Co. for the purpose of conveying meat from railroad cars on the other side of the street to their storehouse opposite. Ordinarily the beam which constituted the principal portion of this runway was maintained at such an elevation above the roadway as not materially to interfere with the passage of vehicles; but on the occasion of the accident in question it had been lowered for use, and was being employed for the purpose of conveying meat

80 N.Y.S.-17