Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Eulah McManus against Arthur J. McManus. From a Municipal Court order overruling a demurrer to the complaint, defendant appeals. Dismissed. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Peck, Schmidt & Burns, of New York City (Jerome A. Peck, of Port Chester, of counsel), for appellant. Kindleberger & Robinson, of New York City (Charles P. Robinson, of New York City, of counsel), for respondent. PER CURIAM. The defendant appeals from an order overruling a demurrer to the complaint. An appeal will not lie from an order overruling or sustaining a demurrer. Muttart v. Muttart, 93 N. Y. Supp. 468; Binder v. Robinson, 59 Misc. Rep. 155, 110 N. Y. Supp. 229. Although the notice of appeal has the words "and judgment" interlined therein after the word "order," no interlocutory or final judgment appears in the record, and evidently none has been entered, as the certificate of the clerk makes no reference thereto. The appeal must therefore be dismissed. Appeal dismissed, with $10 costs. All concur. COHEN V. GANZ. (Supreme Court, Appellate Term, First Department. December 4, 1914.) JUDGMENT (§ 167*)-DEFAULT-VACATION-COST-CARELESSNESS OF ATTORNEY'S CLERK-CONDITIONS. Where a default judgment was rendered against defendant because of the carelessness of a clerk in the office of defendant's attorney, the default would be set aside on condition that defendant pay $10 costs and file an undertaking to secure the amount of the judgment rendered. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 326, 330, 333, 334; Dec. Dig. § 167.*] Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Jacob Cohen, an infant, by David Cohen, his guardian ad litem, against Meyer Ganz. From a Municipal Court order denying defendant's motion to open his default, he appeals. Reversed on condition. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Lyman A. Spalding, of New York City (Thomas J. Skelly, of New York City, of counsel), for appellant. Goldstein & Goldstein, of New York City (Abraham Cupton, of counsel), for respondent. PER CURIAM. The default seems to have been the result of the carelessness of a clerk in the office of defendant's attorney. The ap *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes plication to open the default should, we think, have been granted upon terms. Order affirmed, with costs, unless the defendant within five days. will pay $10 costs and furnish an undertaking to secure the amount of the judgment rendered, in which event the order is reversed, default opened, judgment vacated, and a new trial ordered, with costs to the appellant to abide the event. DONALD S. S. CO., Inc., v. LEWIS. (Supreme Court, Appellate Term, First Department. December 4, 1914.) COURTS (§§ 188, 189*)-MUNICIPAL COURT-JURISDICTION. An accounting between partners is not within the jurisdiction of the City Court, and a complaint therefor should be dismissed without prejudice to the right to sue in a court of competent jurisdiction; and hence a directed verdict for defendant was error. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429. 439, 440, 442, 447, 448, 451, 452, 454, 458, 464, 465, 467, 468; Dec. Dig. §§ 188, 189.*1 Appeal from City Court of New York, Trial Term. Action by the Donald Steamship Company against Thomas J. Lewis. From a judgment dismissing its first cause of action, and from a judgment upon a directed verdict for defendant, plaintiff appeals. Modified and affirmed. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Ralph James M. Bullowa, of New York City (Emilie M. Bullowa, and Ralph James M. Bullowa, both of New York City, of counsel), for appellant. Henry Woog, of New York City, for respondent. PER CURIAM. In our view of this case, both causes of action alleged in the complaint involve an accounting between copartners. The causes of action were not, therefore, within the jurisdiction of the City Court, and the complaint as to each cause of action should have been dismissed without prejudice to the rights of the plaintiff to bring a new action in a court of competent jurisdiction. The learned court below properly dismissed the first cause of action, but erroneously directed judgment for the defendant upon the second cause of action. The judgment is modified, by providing that the complaint be dismissed as to the first and second cause of action, and, as thus modified, affirmed, without costs of the appeal to either party. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes (88 Misc. Rep. 26) STEINHARDT BROS. & CO. v. MARX. (Supreme Court, Appellate Term, First Department. December 4, 1914.) GUARANTY (§ 40*)-CONTRACT-LIMITATION OF AMOUNT-CONSTRUCTION. Where defendant contracted as a primary obligation to pay for merchandise to be delivered by plaintiff to D. to an amount not exceeding in the aggregate $500, such limitation was intended to relate to the amount of defendant's liability to pay, and did not restrict the amount of merchandise that plaintiff might deliver to D., so that defendant's liability to the extent of $500 continued until notice of withdrawal, regardless of the fact that more than $500 worth of goods had been delivered to D. and paid for. [Ed. Note. For other cases, see Guaranty, Cent. Dig. § 49; Dec. Dig. § 40.*] Appeal from Municipal Court, Borough of Manhattan, First Dis trict. Action by Steinhardt Bros. & Co., a corporation, against Joel E. Marx. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Reversed and remanded. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Kremer & Strasser, of New York City, for appellant. SEABURY, J. On the 12th day of May, 1910, the defendant executed and delivered to the plaintiff an instrument under seal in the following language: "For and in consideration of the sum of one ($1.00) dollar, and other good and valuable consideration, receipt whereof is hereby acknowledged, to me in hand paid by Steinhardt Bros. & Co., a domestic corporation, and in the further consideration of said Steinhardt Bros. & Co. delivering merchandise to P. J. Doran, of No. 2022 Lexington avenue, borough of Manhattan, city of New York, I hereby covenant and agree to pay for all merchandise delivered to said P. J. Doran by said Steinhardt Bros. & Co., to an amount not exceeding in the aggregate five hundred ($500) dollars. I further certify and agree that my obligation to pay for said merchandise is a primary obligation; that it is the intent hereof that said Steinhardt Bros. & Co. shall not be compelled to take any action whatever against said P. J. Doran for the payment of merchandise delivered hereunder in order to establish their right to compel payment from me. I hereby authorize and instruct said Steinhardt Bros. & Co. to deliver the merchandise sold hereunder to said P. J. Doran, at No. 2022 Lexington avenue, borough of Manhattan, city of New York." It is stipulated as a fact that thereafter the plaintiff sold and delivered to Patrick J. Doran merchandise at the agreed price of $930.18, all of which has been paid for by Patrick J. Doran, except $167.01, with interest thereon from the 9th day of February, 1911. The action is brought to recover the balance unpaid as aforesaid. In the court below the parties both considered the instrument in suit as a "guaranty," although upon its face it was clearly an original and primary undertaking upon the part of the defendant, in consideration of the sale and delivery of merchandise by the plaintiff to one P. J. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Doran, to pay for the merchandise delivered to an amount not exceeding in the aggregate $500. The defense interposed was that the plaintiff delivered merchandise to Doran in excess of $500, and has been paid up to and exceeding the aggregate amount of $500 by Doran himself. The learned trial justice granted judgment for the defendant. I am of the opinon that this was error. The words "to an amount not exceeding in the aggregate five hundred dollars" were clearly intended to relate to the amount of the defendant's liability to pay, and did not restrict the amount of merchandise which the plaintiff might deliver to Doran. There was nothing in the wording of the contract to restrict it as to time or to limit it to a single transaction. It would therefore continue until notice of its withdrawal. Gates v. McKee, 13 N. Y. 232, 64 Am. Dec. 545; Rindge v. Judson, 24 N. Y. 64; Schinasi v. Lane, 118 App. Div. 76, 103 N. Y. Supp. 127, affirmed without opinion 191 N. Y. 545, 85 N. E. 1116; White's Bank v. Myles, 73 N. Y. 335, 29 Am. Rep. 157. The judgment appealed from should be reversed, and judgment directed for the plaintiff for $167.01, with interest from the 9th day of February, 1911, and appropriate costs in the court below, in accordance with the facts stipulated, with costs in this court to the appellant. All concur. (SS Misc. Rep. 21) SCHOENFELD v. NEW YORK RYS. CO. (Supreme Court, Appellate Term, First Department. December 4, 1914.) STREET RAILROADS (§ 117*)-COLLISIONS-CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY. The court cannot say as a matter of law that a pedestrian may not assume that the motorman of a car over a block away will not have his car under control when approaching a crossing, so that whether the pedestrian, attempting to cross the track, was guilty of contributory negligence, precluding a recovery for injuries in a collision with the car, was for the jury. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*] Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Abraham Schoenfeld, by Lazarus Schoenfeld, his guardian ad litem, against the New York Railways Company. From a judgment of dismissal at the close of plaintiff's case, plaintiff appeals. Reversed, and new trial ordered. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Samuel Schleimer, of New York City (Meyer D. Siegel, of New York City, of counsel), for appellant. James L. Quackenbush, of New York City (William J. Sheils, of New York City, of counsel), for respondent. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes SEABURY, J. The accident happened at a street crossing, at which place the rights of the plaintiff and the defendant were equal. We cannot say, as a matter of law, that the plaintiff was not justified in assuming that the motorman would have his car under control when he approached this place. The car was over a block away when the plaintiff attempted to cross the track, and whether his act in attempting to cross the track constituted contributory negligence should have been submitted to the jury. Upon the facts, this case does not resemble those cases where the driver of a wagon turns his horse and wagon in front of a car a few feet away. The question in dispute was essentially one of fact, which should have been submitted to the jury, who could have determined it after taking into account the situation of the parties and the rate of speed at which the car was traveling. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur. ELIAS v. COLEMAN & KRAUSE, Inc. (Supreme Court, Appellate Term, First Department. December 4, 1914.) EVIDENCE (8 246*)-ADMISSIONS-MANNER OF MAKING. Extracts from the minutes of a previous trial between the parties, showing admissions by defendant's counsel unqualified on their face, are admissible to bind defendant on a subsequent trial. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 945-949; Dec. Dig. § 246.*] Appeal from City Court of New York, Trial Term. Action by Joseph Elias against Coleman & Krause, Incorporated. From a judgment dismissing the complaint at the close of plaintiff's case, plaintiff appeals. Reversed, and new trial granted. See, also, 137 N. Y. Supp. 883. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Lawrence H. Sanders, of New York City (Arthur B. Hyman, of New York City, of counsel), for appellant. Warren McConihe, of New York City, for respondent. BIJUR, J. The only question presented by this appeal is whether the learned judge below erroneously excluded certain proof offered by the plaintiff. The latter, in order to prove substantial performance of an agreement to deliver to defendant, under the terms of a contract, certain glass (called "lights") which were placed in sash, offered three receipts calling, respectively, for certain quantities of lights. These receipts are marked, in the present trial, Plaintiff's Exhibits C, F, and N, respectively. Plaintiff then offered in evidence extracts from the minutes of the previous trial, which defendant's counsel conceded to be correct, marked Plaintiff's Exhibits B and E for iden *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |