a deed pursuant to said contract, which the latter refused to make, but offered to deliver a deed upon the payment of said sum of $7,500. The plaintiff then brought an action in the Supreme Court against said Graff to compel specific performance of the contract made with the defendant. She was defeated in that action, and a judgment for $250 costs was rendered against her. She then brought this action to recover damages on the defendant's warranty of authority as agent, and has obtained a judgment for the $200 paid the defendant and for the $250 costs awarded against her in the action in the Supreme Court.

The appellant claims that the court erred in excluding the letters written by said Richard R. La Bau to him which he claims would have proven his authority to sell the property. The letters are not in the record, but counsel in offering them distinctly stated that they were offered simply to show the employment of the defendant as a broker to sell. Undoubtedly a broker may be given authority to contract, but the mere employment of a broker as such only authorizes him to act as an intermediary to bring the parties together. It was conceded that the defendant was employed as a broker, and, as counsel stated that the letters were offered simply to show that fact, it was not error to exclude them. Moreover, the contract made by the defendant did. not bind the owners of the property. It was made in the name of an executor who had no existence. It is elementary that an agent who assumes to contract for a principal must make a contract binding upon some principal, or else he himself is bound.

Upon the evidence, the plaintiff was entitled to recover, but she was not entitled to recover the costs incurred in the Supreme Court action. She knew when that action was brought who owned the property at the time the defendant undertook to contract for its conveyance, because her complaint alleged who the owners were. She knew that the contract made by the defendant was worthless and she could not prosecute a hopeless action, and thereby increase her damages. Moreover, she could have obtained a deed by paying the full amount of the purchase price, thereby limiting her damages to the sum of $200. The judgment should be reversed, unless the plaintiff stipulate to modify it accordingly.

Judgment of the Municipal Court reversed, and new trial ordered, costs to abide the event, unless within 20 days plaintiff stipulate to reduce the recovery to the sum of $200, in which event the judgment as reduced is affirmed, without costs of this appeal. All concur.

(120 App. Div. 388.)

PEOPLE v. BURNHAM.

(Supreme Court, Appellate Division, First Department. June, 1907.) LARCENY-EVIDENCE-ADMISSIBILITY.

Proof that defendant was an officer of a corporation does not justify admitting all the books of the corporation as evidence against him, on a trial for larceny of its funds, without proof of further connection of defendant with the books or entries.

The conviction of George Burnham, Jr., of larceny of the funds of a corporation, having been reversed, and a new trial ordered (104 N.

and 140 New York State Reporter

Y. Supp. 725), the state moves for reargument, and for resettlement of order. Motion denied.

Argued before MCLAUGHLIN, INGRAHAM, CLARKE, HOUGHTON, and LAMBERT, JJ.

W. T. Jerome, for the motion.

S. T. Tyng, opposed.

PER CURIAM. A reconsideration of the questions involved on this appeal, in the light of the criticism of the opinion by the learned district attorney, fails to disclose that the court overlooked any material facts or any controlling authority, or that any grounds exist which would justify the court in ordering a reargument. The reference in the opinion to the admission of the entries in the books of the corporation related solely to such entries against the defendant, who is not shown to have had anything to do with the books, or any knowledge of their contents, or any connection with the entries; and the statement that the books of a corporation are not evidence against an officer of a corporation in a criminal proceeding against him, of course, refers only to books or entries where it was not shown that the person against whom the entries were offered had any knowledge of the entries or any connection with the books. What we decided was that mere proof that defendant was an officer of the corporation did not justify the court in admitting all the books of the corporation as evidence against him in a criminal proceeding, without proof of further connection of the defendant with the books or entries. The motion for reargument is therefore denied.

The reversal was distinctly upon the ground that upon the facts proved the judgment of conviction could not be sustained. The application for a resettlement of the order is therefore denied.

(121 App. Div. 466.)

CLONIN et al. v. LIPPE et al.

(Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. MECHANICS' LIENS-ENFORCEMENT-LIMITATIONS.

Lien Law, Laws 1897, p. 524, c. 418, § 20, subdiv. 4, provides that a lien on the construction of a public improvement may be discharged by the contractor depositing such a sum as is directed by a justice of the Supreme Court to be held until the lien is discharged as prescribed by subdivisions 1, 2, or 3 of that section. Subdivision 2 provides that the lien shall be discharged when three months have elapsed since filing the notice of lien, and no action has been commenced. Subdivision 5, Laws 1898, p. 318, c. 169, provides that the lien may be discharged by the contractor executing an undertaking for the payment of any judgment recovered in an action to enforce the lien. Section 17, p. 522, provides that such a lien shall not continue for more than three months, from the time of filing the notice thereof, unless an action is commenced to foreclose the same within that time. Held, that the limitation of section 17 applied not only to the lien on the property, but also to an undertaking given pursuant to section 20, subdiv. 5, and hence an action in either case after three months from the filing of the notice of lien was barred.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, §§ 456-468.]

2. SALES-ACTIONS-ISSUES-PROOF-VARIANCE.

Under a complaint to recover the contract price of brick sold and delivered, an additional sum cannot be recovered, in that there was an extra cost to vendors because vendees so obstructed the place of delivery that vendors were unable to deliver in large lots.

Appeal from Special Term, Queens County.

Action to foreclose a mechanic's lien by James E. Clonin and John Messenger, composing the firm of Clonin & Messenger, against Herman F. Lippe and Henry J. Lippe, Jr., composing the firm of Henry F. Lippe & Bro., and others. Judgment for plaintiffs, and defendants appeal. Judgment against Herman F. Lippe and Henry J. Lippe, Jr., reversed and new trial ordered, unless plaintiffs stipulate to reduce recovery to $112.50, in which event judgment to be affirmed. Judgment against the other defendants reversed, and complainant dismissed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

Otto H. Drooge, for appellants.

John J. Townsend, for respondents.

MILLER, J. The first question involved in this case relates to the validity of the lien, notice of which was filed in New York county on the 20th and 23d days of November, 1903. An order of the County Court of Queens county extending the lien for a period of six months was granted February 16, 1904, pursuant to section 17 of the lien law (chapter 418, p. 522, Laws 1897). It is conceded that the County Court of Queens county had no jurisdiction to make the order. The lien, therefore, expired by virtue of the provisions of said section 17, but the respondent contends that, as the undertaking provided by subdivision 5 of section 20 of the lien law was given on the 10th day of December, 1903, the action may be maintained against the contractor and his sureties without regard to the three-month limitation. specified in said section 17. This contention is based on Hafker v. Henry, 5 App. Div. 258, 39 N. Y. Supp. 134, and Durham v. Durham, 99 App. Div. 450, 91 N. Y. Supp. 295. It is unnecessary to discuss those authorities, because the present lien law is essentially different from the statute which was considered in those cases. Section 20 of the lien law provides how the lien may be discharged; the last sentence of subdivision 4 thereof providing for discharge by deposit of a sum of money is as follows, viz.:

"The amount so deposited shall remain with such financial officer or other officer or person until the lien is discharged as prescribed in subdivisions one, two or three of this section."

Subdivision 2 relates to discharge by lapse of time-i. e., the threemonth period specified in section 17-and subdivision 5 prescribes that the undertaking therein provided for shall be "conditioned for the payment of any judgment which may be recovered in an action to enforce the lien." Laws 1898, p. 318, c. 169. In the case of Durham v. Durham, supra, relied upon by the respondents, the short statute of limitations was held inapplicable to an action on the undertaking because of the analogy between the undertaking to discharge the lien

and 140 New York State Reporter

and the deposit of money to discharge the lien. By the same reasoning the short statute now applies to an action on the undertaking because of the express provision quoted supra respecting the discharge of the lien by deposit. Moreover, as the undertaking is conditioned for the payment of any judgment which may be recovered in an action to enforce the lien, it is difficult to see how an action can be maintained on it after the lien has expired. While the lien upon the property is discharged by the deposit of money or the giving of an undertaking, it is plain that said deposit or undertaking is but a substitute for the property, and the language of section 17 is that the lien "shall not continue for a longer period than three months unless," etc.

The only question remaining to be determined is whether the plaintiffs were entitled to judgment against the defendants Herman F. Lippe and Henry J. Lippe, Jr., the contractors, pursuant to section. 3412 of the Code of Civil Procedure. The complaint is upon a written contract set forth in hæc verba, and, so far as material here, it was an agreement on the part of the plaintiffs to deliver to the defendants 342,000 hard brick at $5.90 per 1,000. The brick was not all delivered, but the balance due on the amount delivered according to the contract price was $112.50. The plaintiffs, however, sought to recover the sum of $127.58 for delivering 150,000 bricks by truck load, instead of by barge; it being claimed that there was an extra cost of 85 cents per 1,000 occasioned by the fact that the defendants obstructed the place where the bricks were to be piled so that the plaintiffs were unable to deliver in large lots. The testimony as to this extra cost was objected to as not within the issues. No attempt was made to amend the pleadings. It needs no discussion to show that under a complaint to recover a contract price stated the plaintiffs could not recover an additional sum on a supplemental contract not pleaded, or by way of damages for breach of contract. The testimony respecting the obstruction of the place where the bricks were to be piled may have excused further performance on the plaintiffs' part. It may furnish a complete answer to the counterclaim set up by the defendants for breach of contract; but it furnished no basis for an award of damages on a complaint seeking solely to recover a stated contract price. The pleadings and findings are sufficient to support a judgment against the defendants Herman F. Lippe and Henry J. Lippe, Jr., for the sum of $112.50.

The judgment as to them should be reversed, unless the plaintiff stipulate to reduce it to the sum of $112.50. As to the other defendants, the judgment should be reversed and the complaint dismissed.

Judgment against the defendants Herman F. Lippe and Henry J. Lippe, Jr., reversed, and new trial ordered, costs to abide the event, unless within 20 days plaintiffs stipulate to reduce the recovery to the sum of $112.50, in which event the judgment as reduced is affirmed, without costs of this appeal. Judgment against the defendants Henry J. Lippe and Joseph F. Lippe reversed, with costs, and complaint dismissed, with costs. All concur.

(121 App. Div. 407.)

PEOPLE v. STURGIS.

(Supreme Court, Appellate Division, Second Department. Oct. 4, 1907.) 1. STATUTES-PENAL STATUTES-CONSTRUCTION.

A penal statute must be strictly construed, and a provision not within its intent will be disregarded.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 322, 323.]

2. MUNICIPAL CORPORATIONS-SMOKE ORDINANCE-VIOLATIONS-PERSONS LIABLE.

Sanitary Code, § 96, known as the "Smoke Ordinance," which requires every furnace used in working engines within a building to be equipped with smoke consumers, does not render an employé liable for the penalty imposed for a failure to provide the furnace with smoke consumers; that being the duty of the employer.

3. SAME-NATURE OF OFFENSE.

Sanitary Code, § 96, known as the "Smoke Ordinance," prohibiting one from allowing smoke to escape from any building, to the annoyance of any person not being therein engaged, is not violated where the smoke escaping from a building does not annoy the people living in the vicinity thereof, and where the smoke is such that its effect on air and property is imperceptible.

Appeal from Court of Special Sessions of City of New York. William B. Sturgis was convicted of a violation of Sanitary Code, § 96, commonly known as the "Smoke Ordinance," and he appeals. Reversed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

Edward L. Blackman, for appellant.

James D. Bell (David Joyce, on the brief), for the People.

WOODWARD, J. Section 96 of the Sanitary Code, under which the defendant, as superintendent of the factory of the William E. Uptegrove & Bro. Company, has been convicted and fined $100, reads as follows:

"The owners, lessees, tenants, occupants and managers of every building, vessel or place in or upon which a locomotive or stationary engine, furnace or boilers are used, shall cause all ashes, cinders, rubbish, dirt and refuse to be removed to some proper place, so that the same shall not accumulate; nor shall any person cause, suffer or allow smoke, cinders, dust, gas, steam or offensive or noisome odors to escape or be discharged from any such building, vessel or place to the detriment or annoyance of any person or persons not being therein or thereupon engaged. Every furnace employed in the working of engines by steam in any building shall be constructed so as to consume the smoke arising therein or therefrom."

This is a penal statute, and is, under well-established rules, to be strictly construed. It is obvious that no mere employé is charged with the duty of constructing and maintaining the furnaces used in a manufacturing plant. Such employé is not therefore within the spirit. of the enactment, and it cannot be presumed that the legislative intent was to reach the defendant in this case, who was the superintendent of the factory, because the owners may have failed to have their furnaces equipped with smoke consumers, however liable he