As required by the lease, the plaintiffs deposited with the defendant $591.46 as security for the performance by the plaintiffs of their covenants. Owing to a misunderstanding respecting the amount due on July 20, 1901, on account of an offset claimed by the plaintiffs, they gave the defendant a check for only $108.21 as full payment. This check the defendant retained until July 25th, when he returned it. During the following day the plaintiffs made several attempts to find the defendant at his office, for the purpose of paying the rent, but failed. On the next day, July 27th, the summary proceedings in question were begun, and on the 31st were brought on for hearing before the municipal court.

The plaintiffs herein, although having an answer prepared, consented in open court that judgment might be entered against them, upon the express condition that they should have one day thereafter in which to pay the full amount claimed by the defendant herein to be due, viz., $147.91 with costs, and that the issue of the warrant of dispossession should be stayed in the meantime. This was agreed upon, and judgment was accordingly entered, and the issuance of the warrant stayed. On the same day (July 31st), while the warrant was thus stayed by the agreement of the parties, the plaintiffs herein offered and tendered in cash the full amount of the rent due ($147.91), and the costs of the proceedings ($14.25), to the clerk of the municipal court, who declined to receive the money on the ground that he did not have the papers in the proceedings at hand, and did not know the correct amount of the rent. Thereupon, on the same day (July 31st), the plaintiff Mr. Asbyll offered and tendered to the defendant $162.16, in cash, for said rent and costs, that being the full amount due, and the defendant refused it, but referred Mr. Asbyll to his (the defendant's) attorney, Mr. Yuells. Thereupon Mr. Asbyll went to the office of Mr. Yuells, and offered to pay the rent and costs to him, but he refused it on the ground that Mr. Asbyll brought no written card from the landlord authorizing him to receive it. Thereupon Mr. Asbyll went back to the landlord's office, at about 3 o'clock p. m. of the same day, but found the office locked, and was unable to see him again that day. On the next morning, August 1st, before 10 o'clock, Mr. Asbyll again went to the said clerk's office, and offered in cash the amount of the rent and costs to the clerk, who refused it on the ground that he did not have the papers in the case, and had no right to take the money. Thereupon, on that day (August 1st), the warrant of dispossession was issued by being signed by the judge of said court and delivered to the clerk, to the end that it should be executed by the marshal. A temporary injunction was obtained restraining its execution, which was subsequently dissolved, and on September 2d the warrant was executed, and the plaintiffs dispossessed. The plaintiffs in due time, and in good faith, tendered to the defendant all that was due him, and the defendant in bad faith refused to receive it.

Under the circumstances, equity regards the tenancy in full force at the moment the tender was made and refused; for the entry of judgment, being accompanied by a stay of proceedings, did not terminate the lease while the judgment was unexecuted, and while the

78 N.Y.S.-5

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tenants remained in possession under the agreement by which the judgment was rendered. Powers v. Carpenter, 15 Wkly. Dig. 155; Newcombe v. Eagleton, 19 Misc. Rep. 603, 44 N. Y. Supp. 401. And during the time before the issuing of the warrant by the delivery thereof to the clerk with direction to enter it, and before the entry thereof pursuant to such direction, the plaintiffs had the right, under section 2254 of the Code of Civil Procedure, to pay the rent and costs; and their failure to do so was due to no fault of theirs, but wholly due to the bad faith of the defendant in refusing to receive it. If, under the circumstances of this case, the lease could be considered forfeited, equity would relieve the tenants upon terms, as their default would be considered as made through mistake and a misunderstanding of the parties. Giles v. Austin, 38 N. Y. Super. Ct. 215, affirmed 62 N. Y. 486. This is one of those cases which have been denominated as "extreme and clear," in which a court of equity will interpose, and restrain the execution of a warrant of dispossession. Campbell v. Babcock, 26 Abb. N. C. 35, 13 N. Y. Supp. 843. It is unnecessary in this case to determine whether or not the clerk of the municipal court had authority, under the statutes, to receive the rent and costs, since the tender was made in due time directly to the landlord. The several attempts to pay the rent to the clerk are considered only on the question of good faith. The defendant having refused to receive the rent, it was not necessary for the plaintiffs to continue to tender the rent which subsequently became due, since that course would have been fruitless, as shown by the defendant's attitude. A court of equity will adapt its relief to the circumstances existing at the date of the decree. Lyle v. Little, 28 App. Div. 181, 50 N. Y. Supp. 947; Baily v. Hornthal, 154 N. Y. 648, 49 N. E. 56, 61 Am. St. Rep. 645; Kilbourne v. Board, 137 N. Y. 178, 33 Ñ. E. 159. Relief will be administered as the nature of the case demands at the close of the litigation. Peck v. Goodberlett, 109 N. Y. 180, 16 N. E. 350; Pond v. Harwood, 139 N. Y. 120, 34 N. E. 768. And whenever a complete determination of the rights of the parties cannot be made without further proceedings in the case, equity will direct such proceedings to be taken. In speaking of this rule in Pond v. Harwood, 139 N. Y., on page 120, 34 N. E. 768, Judge Maynard says:

"If upon the trial it should appear that there were any equitable reasons why a set-off should be allowed of a debt acquired after the action was brought, it cannot be doubted that the court would have jurisdiction to direct it to be done."

In this case the plaintiffs are entitled to have the rental value of the premises received by the defendant offset against the amount due. from him for rent; and that adjustment necessitates a reference. The plaintiffs are, therefore, entitled to judgment vacating the judgment of the municipal court and the writ of dispossession, and awarding them the possession of the premises; and requiring the plaintiffs to account to the defendant for the amount of rent due at the time of the entry of judgment herein, together with the costs of the summary proceedings, and interest on the several sums from the time that they became due; and requiring the defendant to account to the plaintiffs for the rental value of the premises since the date of said dispos

session; and providing that a reference be had for the purpose of determining the amount due either party as a balance, on the principles above stated; and that, on the coming in of the referee's report, judgment thereon may be entered on the foot hereof. The costs and disbursements of this action, including the disbursements of said reference, with 5 per cent. additional allowance, may be taxed in favor of the plaintiffs when final judgment is entered on said report. Findings and judgment may be prepared accordingly.

Judgment accordingly.

(38 Misc. Rep. 603.)

ODELL et al. v. BRETNEY et al.

(Supreme Court, Special Term, New York County.

September, 1902.)

1. MUNICIPAL CORPORATIONS-PUBLIC HACK STANDS. Where a public hack stand had existed for some years in front of a hotel on a square in the city of New York, such city had no power, upon the consent of the hotel proprietors, to thereafter license three special hack stands along the curb in front of such hotel.

2. SAME-NUISANCE.

Where a public hack stand had existed for years in front of hotel, a subsequent license by the city of special hack stands at the same place Is an additional obstruction of the street, not justified by public convenience, and is a nuisance.

3. SAME RIGHTS OF ABUTTING OWNER.

The proprietor of a hotel has no more right to use the street fronting his house as a carriage stand for hire than a hack man.

Action by Stephen C. Odell and others against Harry Bretney and others. Judgment for defendants.

Avery, Schlesinger & Paul (Mark M. Schlesinger, of counsel), for plaintiffs.

Lyman A. Spalding, for defendants.

STECKLER, J. The plaintiff corporation, Rectors, the owner of hotel premises at Broadway and Forty-fourth street, in consideration of a certain sum of money, gave to the coplaintiffs Stephen C. Odell and Frank S. Odell, constituting the partnership of S. Ċ. Odell & Son, permission to have and maintain, ostensibly for the convenience of the guests of the hotel, special hack stands in front of the hotel premises, and the city of New York, in 1899, upon such permission being given, licensed the firm to maintain three special hack stands in front of the hotel on Broadway, and one special stand in front of the premises on Forty-fourth street for said purposes. The premises of the corporation abut upon that part of Broadway called "Long Acre Square," and, under the city ordinances (Rev. Ord. art. 7, § 451, stand No. 14), public hack coaches and cabs have for many years been, and now are, allowed to stand on said square immediately in front of said premises while waiting for fares.

The defendants, the Public Owners' & Hackdrivers' Association of the Greater New York, an unincorporated society, and particularly certain members thereof, claiming that Broadway, in front of the corporation's hotel,—that is, along the curb,-was a public hack stand,

and 112 New York State Reporter

interfered with the business carried on by the licensees; and the action is for an injunction restraining such interference by the defendants. Pending the suit a temporary injunction was granted, and, on appeal, the order was affirmed on the ground that the space occupied by the Odells on Broadway in front of the hotel was not a part of the public stand designated by the city ordinances. Odell v. Bretney, 62 App. Div. 595, 71 N. Y. Supp. 449.

If the question whether the space may be so occupied by the Odells for use in connection with their hack business was the only one in this case, the plaintiffs would be entitled to an injunction restraining interference by the defendants with their business. But, in the opinion of the appellate court, it is stated that there is another question involved, and that is whether the use of Broadway by the plaintiffs at the point in question is unlawful or beyond the power of the city authorities to grant, and the court said "that question should be left for the determination of the trial court." Odell v. Bretney, 62 App. Div., at page 598, 71 N. Y. Supp. 451.

In Callanan v. Gilman, 107 N. Y., at page 365, 14 N. E. 264, 1 Am. St. Rep. 831, the court said:

"The primary purpose of streets is use by the public for travel and transportation, and the general rule is that any obstruction of a street or encroachment thereon which interferes with such use is a public nuisance. But there are exceptions to the general rule born of necessity, and justified by public convenience. An abutting owner engaged in building may temporarily encroach upon the street by the deposit of building materials. A tradesman may convey goods in the street to or from his adjoining store. A coach or omnibus may stop in the street to take up or set down passengers, and the use of a street for public travel may be temporarily interfered with in a variety of other ways, without the creation of what in the law is deemed to be a 'nuisance.' But all such interruptions and obstructions of streets must be justified by necessity. It is not sufficient, however, that the obstructions are necessary with reference to the business of him who erects and maintains them. They must also be reasonable with reference to the rights of the public, who have interests in the streets which may not be sacrificed or disregarded."

The municipality cannot ordinarily, by a permit or license, authorize any other use of the streets than such as is required for street purposes. Cohen v. Mayor, etc., 113 N. Y. 532, 21 N. E. 700, 4 L. R. A. 406, 10 Am. St. Rep. 506.

Is the obstruction caused by the hacks and cabs of the Odells standing on Broadway in front of the corporation's hotel justified by necessity or public convenience? It may be that, in connection with a hotel in the immediate vicinity of which there is no public hack stand, an obstruction of the street by permission of the city and with the consent of the owner of the property is justified by necessity. See People v. Brookfield, 6 App. Div. 398, 39 N. Y. Supp. 673; City of New York v. Reesing, 38 Misc. Rep. 129, 77 N. Y. Supp. 82. But in this case, where, many years before the permit and license to the Odells, there had been, and now is, a public hack stand directly opposite and within easy call of the hotel in question, with hacks and cabs not materially different from those of the special hackmen, and which are used by the corporation in its business when private hacks cannot be had, Í fail to see any necessity or reason for the additional obstruction caused by

the special hacks, often two abreast and reaching to the easterly rail of the uptown car track, in front of this hotel. Such additional use is, in my opinion, neither "born of necessity" nor "justified by public convenience." It is, on the contrary, an unreasonable interference with the rights of the public in the general and beneficial use of the street, and constitutes a nuisance. See McCaffrey v. Smith, 41 Hun, 117; Masterson v. Short, 7 Rob. 241.

The plaintiff corporation is in no better position than the co-plaintiffs. As Judge Gildersleeve said in City of New York v. Reesing, 38 Misc. Rep., at page 134, 77 N. Y. Supp. 85:

"An important distinction between the case of a hotel proprietor maintaining a carriage stand before his house and that of a merchant must be observed; the former uses his vehicles for hire, whereas the latter uses his merely as aids to his business. So, also, the merchant, of necessity, uses many wagons and trucks in immediate connection with his business, while the hotel proprietor, though he may keep his own carriages, does not imperatively need them as a means of carrying on his business in a city like New York, where the furnishing of carriages of all sorts is a separate and distinct branch of business; and the proprietor of a hotel, therefore, has no more right to use the street fronting his house as a carriage stand for hire than a hackman."

The obstruction by the special hacks in this particular case being unlawful, the plaintiffs are not entitled to injunctive relief, and there must be judgment for defendants.

Judgment for defendants.

(75 App. Div. 267.)

ALLISON v. LONG CLOVE TRAP ROCK CO.

(Supreme Court, Appellate Division, Second Department. October 3, 1902.) 1. SERVANT-INJURY-DEFECTIVE APPLIANCE-QUESTION FOR JURY.

A quarry employé engaged in driving a carload of stone along the side of a mountain was required to unhitch his horses at the point where the down grade began, so that the car could descend by gravity, and was injured by the car running against him while so doing. The car was a new one, and had been furnished without brakes, and, while brakes were being made, defendant's foreman, without the direction of defendant's superintendent, made use of a rope fastened to the framework of the car, and wrapped around the rear axle, and designed to be held by the brakeman standing behind the car and pulling on it. There was no evidence of inspection between the time the rope was supplied and the time of the accident. Held, that the sufficiency of the appliance used for checking the car was for the jury.

2. SAME ASSUMPTION OF RISK.

The employé had only been placed at work on the car the day before the accident. Held, that he had not assumed the risk incident to the use of a temporary appliance as a matter of law.

3. SAME CONTRIBUTORY NEGLIGENCE.

Plaintiff testified that he dismounted from the car when it reached the descending grade, and was endeavoring to detach the horse when the car, which had nearly stopped, started ahead again by reason of the brakeman's inability to hold it back, struck him, and threw him down, so that in some way his leg got across the rail, and was crushed; that he was "standing alongside" the car at the time; that he "wasn't inside the rail," etc. Held not to show contributory negligence as a matter of law.