Albert Wales, as cotrustee, appeals. Orders reversed, and motions denied. Argued before DOWLING, P. J., and FINCH, MCAVOY, MARTIN, and O'MALLEY, JJ. Greene & Hurd, of New York City (Daniel S. Murphy, of New York City, of counsel), for appellant. Remington & Meek, of New York City (Harold Remington, of New York City, of counsel), for plaintiff respondent. Colley W. Bell, of New York City, for defendant respondent. PER CURIAM. As we view the applications which resulted in the orders appealed from, they ask for substantially the same relief heretofore denied by another justice on a previous motion upon the ground that a granting of the motion for such temporary relief would involve a determination in advance of the issues in the action. The order on the previous motion was unanimously affirmed by this court. 217 App. Div. 735, 216 N. Y. S. 835. Except for lapse of time and additional indebtedness incurred as a result thereof, no change in circumstances is presented. In these circumstances the orders should not have been made. We can find no analogy in these applications to the practice pursuant to the provisions of section 266 of the Civil Practice Act. The right of the plaintiff and the cestui que trust to the relief sought is one of the issues to be determined on the trial, as those issues now stand. Moreover, these parties have not as yet shown a clear right to the ultimate relief sought in the action. There seems to be no reason why a speedy trial should not be had. The action was begun January 5, 1926, and no reason is disclosed why it has not been brought to trial. In fact, the record discloses that it was reached on the reserve calendar on October 26, 1926. Had it not been for these motions, and the request of the plaintiff's attorneys for an adjournment of the trial, the issues would now have been fully litigated. In these circumstances, the orders must be reversed, with $10 costs and disbursements, and the motions denied, with $10 costs. Orders filed. (219 App. Div. 326) (219 N.Y.S.) FRIEDMAN v. BLAUNER et al. (Supreme Court, Appellate Division, First Department. February 4, 1927.) 1. Pleading127(2) - Answer having admitted balance due in specified amount, defendants were bound, in absence of amendment. Where defendants' answer admitted balance due in specified amount for goods purchased, they were bound by such admission, and could not avoid effect thereof, especially in absence of amendment, notwithstanding no question was raised in respect thereto at trial and amount involved in admission may have been litigated. 2. Bailment 18(1)-Manufacturers of clothing which on being returned by fur trimmer, was charged back at full value, held entitled to agreed trade discount only on cash actually paid. Where defendant clothing manufacturers charged merchandise furnished to plaintiff to be trimmed with fur as if sold, and plaintiff thereafter returned completed merchandise at a charge which included original charge for merchandise plus an agreed amount for her services, held that defendants' trade discount should be limited to cash actually paid and not figured on whole amount of invoices. Appeal from Supreme Court, New York County. Action by Celia Friedman against Julius Blauner and another. From a judgment in her favor, entered on the report of a referee appointed on consent to hear and determine, plaintiff appeals. Judgment modified by increasing the amount thereof to the sum of $560.68, with interest thereon from October 25, 1915, and, as so modified, affirmed. Argued before DOWLING, P. J., and FINCH, MCAVOY, MARTIN, and O'MALLEY, JJ. J. Robert Rubin, of New York City (Andrew Bellanca, of New York City, on the brief), for appellant. I. Gainsburg, of New York City (Joseph Force Crater, of New York City, of counsel, and Joseph P. Segal, of New York City, on the brief), for respondents. JAMES O'MALLEY, J. The plaintiff appeals upon the ground of inadequacy of recovery. It is urged that the findings of the referee are contrary to the weight of the credible evidence in respect to specific matters. In addition, plaintiff claims that, upon admissions contained in the answer, she was entitled to an amount in excess of that allowed by the referee. The complaint is in form for goods sold and delivered. Plaintiff carried on a fur-trimming business. Defendants were manufacturers of cloaks and suits. By arrangement between the parties, the defend For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 219 N.Y.S.-46 ants furnished merchandise to the plaintiff upon which she was to do certain work. She was charged by the defendants for the merchandise furnished as if for a sale and not as a mere bailment. The plaintiff in turn charged certain prices alleged to have been agreed upon for the work performed by her upon the defendants' merchandise, and, when her work was completed, delivered back to the defendants the finished merchandise at a charge which included the cost of the goods as charged to her by the defendants and in addition the alleged agreed amount for her services. When delivering the finished merchandise, plaintiff also charged the goods to the defendants upon the theory of a sale. She sued for a balance due of $2,552.86, as modified by her bill of particulars. While the defendants' answer contained a general denial, their separate defense admitted an agreement between the parties substantially as claimed by the plaintiff. In addition, the answer admitted delivery by the plaintiff of manufactured goods of the agreed price and reasonable value of $16,019.98, and alleged that the defendants had sold and delivered the plaintiff merchandise of the value of $9,603.30, and advanced to her, on account of goods manufactured by her, the sum of $5,850, a total of $15,459.30. The answer then admitted a balance due plaintiff in the sum of $560.68, and alleged that the defendants have always been and still are ready and willing to pay said sum to the plaintiff, "and have offered so to do, and in which amount the defendants make offer of judgment." In their bill of particulars, the defendants sought to correct the amount admitted to be due by claiming a discount of 2 per cent. upon the total credits it claimed from plaintiff in the sum of $323.61. This discount was claimed, not only upon the amount of cash paid for services, but also on merchandise charged in the first instance. When the case proceeded to trial, therefore, concededly the defendants admitted owing to the plaintiff at least the sum of $397.75. The reference was indeed costly. The expenses aggregated the sum of $2,964.60, a figure considerably in excess of plaintiff's original claim. Plaintiff was awarded a judgment in the sum of $289.06. The expenses of the reference were paid by the defendants, and, upon the claim that a valid offer of judgment in a sum in excess of the amount recovered by the plaintiff had been made, the defendants succeeded in having the costs of the reference taxed against the plaintiff. This resulted in a judgment in favor of the defendants in the sum of $2,672.60 as costs. Plaintiff appealed from the order denying her motion to retax costs, and prosecuted it to the Court of Appeals. Friedman v. Blauner, 227 Ν. Υ. 327, 125 N. E. 443. It was there held that the offer of judgment was invalid as such, because of irregularity in its execution, and plaintiff's motion to retax costs was granted. This resulted in (219 N.Y.S.) an amendment of the original judgment nunc pro tunc so as finally to award plaintiff a judgment in her favor in the sum of $289.06, with interest of $59.14. The action was instituted December 8, 1915, and issue joined December 20th. The order of reference was made December 13, 1916. Proceedings before the referee continued from February, 1917, to December, 1917. His report was dated May 22, 1918. Plaintiff appealed from the original judgment on August 31, 1918, and such judgment was amended March 15, 1920. It has required plaintiff six years, therefore, to bring on this appeal, and no reason for this delay is offered by either party Appellant urges that the findings of the referee respecting certain items of the account between the parties are contrary to the evidence and that his decision with respect to some of the matters involved is not supported by the evidence. The numerous issues litigated were with respect to agreed prices, deliveries, shortages, overcharges, and returned merchandise. The record contains over 1,000 printed pages. The reference seems to have been unduly protracted. Appellant seeks to place responsibility for this upon the referee and the defendants' counsel. But sole responsibility cannot be so fixed. All parties seem to have been somewhat at fault. Both sides were extremely technical, and in some instances concessions which would have served to shorten the hearing were refused. Moreover, by an examination before trial, plaintiff it would seem, might have greatly simplified the issues. We have examined the record, and have reached the conclusion that the findings of the referee except as to matters hereinafter indicated, are fairly supported by the evidence. No reasonable grounds for believing that a result more favorable to plaintiff could be had on a new trial are presented. In this view of the case it would be most unwise to order another trial, and thus further burden the parties with additional labor and expense. The defendants have already been required to pay in costs and expenses of the reference alone more than the amount of the original claim of the plaintiff. In addition it must be assumed that they have incurred considerable expense by way of attorneys' fees. In these circumstances we deem it advisable for all parties that an end be put to this litigation if such disposition is possible without injustice. [1] We are of opinion, however, that there must be a modification. The defendants' answer having admitted a balance due in the sum of $560.68, they were bound by such admission and could not avoid the effect thereof, especially in the absence of an amendment. And this is so, notwithstanding that no question was raised in respect thereto at the trial and the amount involved in the admission may have been litigated. Paige v. Willet, 38 N. Y. 28; Demuth Glass Manufacturing Co. v. Early, 131 App. Div. 203, 115 N. Y. S. 672. [2] In addition, defendants were not entitled to a discount upon the whole amount of their invoices. They were entitled to such discount only for the cash actually paid. Upon this basis the amount of such discount was the sum of $117, rather than the sum of $323.61, the amount found by the referee. But the difference between these two items cannot be added to the amount admitted to be due in the answer. The defendants are bound only by the amount admittedly due. This being so, the referee was not upon the evidence before him obligated to allow a sum in excess of such admission. As already pointed out, the evidence, had it not been for the admission, was sufficient to justify the referee's finding that the sum due plaintiff was only $289.06. If the sum of $117 were added to this, it still would be less than the amount admitted to be due. None of the other matters urged upon us by the appellant require disturbing the judgment in any other respect. Judgment modified by increasing the amount thereof to the sum of $560.68, with interest thereon from the 25th day of October, 1915, and, as thus modified, affirmed, with costs of this appeal to the appellant. Settle order on notice. All concur. (219 App. Div. 291) SINGERMAN v. WILLIAM J. BURNS INTERNATIONAL DETECTIVE AGENCY, Inc. (Supreme Court, Appellate Division, First Department. February 4, 1927.) 1. Arrest 70-Statute requiring private person making arrest promptly to take prisoner before magistrate or peace officer is mandatory (Code Cr. Proc. § 185). Code Cr. Proc. § 185, providing that private person, who has arrested another for crime, must, without unnecessary delay, take him before magistrate or deliver him to peace officer, is mandatory. 2. False imprisonment 7(6)-One released from arrest because of his entreaties impliedly waives claim for wrongful detention (Code Cr. Proc. § 185). Where one arrested by private citizen for misdemeanor committed in latter's presence is set free because of his entreaties, inference is that he waives any claim he may have for alleged unlawful detention, and such For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |