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order of the special term and affirmed the judgment, and from the last order the defendant appeals to this court.

The claim made by the appellant herein is that, having served an answer setting up a counterclaim, he was entitled to have that counterclaim adjudicated, notwithstanding the offer of judgment was made and accepted within the 10 days provided by the Code. "An offer of judgment, made in an action by the defendant under section 738 of the Code of Civil Procedure, cannot be retracted upon the same day, as the statute gives the plaintiff 10 days in which to consider the offer, which during that time is irrevocable." Hackett v. Edwards, 22 Misc. Rep. 659, 49 N. Y. Supp. 609; McVicar v. Keating, 19 App. Div. 581, 46 N. Y. Supp. 298. And it has been held that "the effect of an offer of judgment must be determined by the state of the pleadings when it is served." Tompkins v. Ives, 3 Abb. Prac. (N. S.) 267. While, therefore, the offer does not necessarily extinguish a counterclaim set up in an answer interposed during the 10 days in which the plaintiff has to accept such offer, it does not follow that if the plaintiff duly accepts such offer the counterclaim must nevertheless be tried in the same action.

Section 974 of the Code of Civil Procedure, upon which the appellant relies to sustain his position, provides that:

"Where the defendant interposes a counterclaim and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact arising thereupon, is the same as if it arose in an action brought by the defendant against the plaintiff for the cause of action stated in the counterclaim, and demanding the same judgment."

This section seems to have reference only to the mode of trial in those cases where a counterclaim has been interposed, and an issue of fact "arising thereupon," and not to a case like the one at bar, where an offer of judgment has been accepted within the time allowed by law, during which time the defendant cannot withdraw the offer, nor do anything whereby the right of the plaintiff to accept the same can be abridged or modified, or the status of the case in any way altered.

In Tompkins v. Ives, 36 N. Y. 76, it was said:

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"The import and effect of the offer must be determined by the condition of the pleadings at the time it was made. * The intermediate pleading was, in its nature, provisional."

And in Stilwell v. Stilwell, 81 Hun, 394, 30 N. Y. Supp. 962, it was held that:

"The offer and acceptance constituted a contract which the court could not set aside on motion. It was equally powerless to order or frame an amendment that would operate to change the contract without the consent of both parties."

In the case at bar, the answer containing the counterclaim having been served after the offer of judgment, and within the 10 days allowed the plaintiff in which to accept the same, and he having accepted it within that time, and entered judgment thereon, while the counterclaim might not have been extinguished thereby, neither was there an issue of fact arising thereon requiring an adjudication in that action, and the action was terminated by the entry of the judgment upon the offer made; and the defendant must

and 95 New York State Reporter.

resort to a separate action to enforce his claim against the plaintiff, if it should be determined that for any reason he is not precluded thereby. The order of the general term of the city court must be affirmed.

Order of the general term of the city court affirmed, with costs to respondent. All concur.

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Where a landlord accepted part cash and a nonnegotiable note in payment of rent due and to become due after the note's maturity, giving a receipt for such rent under an agreement to accept such payment if he could get the note cashed, but it did not appear whether he could get it cashed. or whether he made any effort to do so, he was not entitled, on tendering a return of the note, to maintain a summary proceeding to dispossess the tenant for nonpayment of rent before the note's maturity.


In a summary proceeding to dispossess a tenant for nonpayment of rent. a judgment cannot be rendered against him for the recovery of rent due. MacLean, J., dissenting.

Appeal from municipal court, borough of Manhattan, Fourth district.

Summary proceeding by Jacob Spiro against Samuel Barkin and another for the nonpayment of rent. From a judgment of the mu nicipal court, borough of Manhattan, Fourth district, in favor of plaintiff, defendants appeal. Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

J. A. Seidman, for appellants.
Ralph Nathan, for respondent.

FREEDMAN, P. J. The petition in this proceeding stated, in substance, that the landlord herein was the lessee of the premises described therein, that by an agreement made between himself and the tenants he let a portion of the premises to them at a monthly rental of $100, payable in advance upon the 1st day of each month, and that the rent for the month of August, 1899, was due and unpaid. The answer of the tenants contained a general denial of the complaint, and also set up the affirmative defense that by an agreement made and entered into between one Pauline Glassman, the owner, and Spiro, the petitioner herein, as lessee, the tenants had rented a portion of the premises for the term of four months from July 1, 1899, to November 1, 1899, at an agreed rental price of $350, payable $100 in cash and the balance by a note of $250, due October 1, 1899, payable to the petitioner. The testimony of the landlord, Spiro, who was the only witness sworn in his behalf, was to the effect that, the tenants having paid to him the rent for the month of June, he called upon them about August 1, 1899, aud,

being pressed for money, offered to take $100 in cash and a note for $250 for the rent for the months of July, August, September, and October, if they (the tenants) would give him a note which he "could get cashed"; that they thereupon gave him a check for $100, and a note for $250, payable October 1, 1899, and he gave them a receipt for four months' rent from July 1 to November 1, 1899, which receipt was signed by the owner, Glassman, and himself, the lessee. This note was dated July 1, 1899, and was payable to Jacob Spiro, at the Germania Bank. It was not a negotiable note, but whether Spiro could get it cashed or not, or whether he made any efforts in that direction, does not appear. Within a short time after the receipt of the note by Spiro, however, he offered to return the note to the tenants, and demanded the payment of the August rent, and upon their refusal either to accept the return of the note or to pay the rent instituted these proceedings, and not only obtained the final order usual in such cases, but the trial judge rendered a judgment against the tenants for the sum of $100 rent and costs. The testimony on the part of the tenants was undisputed, and showed that foreclosure proceedings were pending against the leased premises at the time of the agreement between the parties relative to the giving of the note; that the landlord was endeavoring to save the rental price of the premises from any action that could be taken by a receiver who might be appointed in the foreclosure proceedings; that he offered to accept the sum of $100 in cash and a note for $250 for the four-months rent referred to; that by the advice of the attorney for the tenants the note was made nonnegotiable, which fact was fully explained to the landlord at the time the note was given him, and which note was accepted by him after such explanation so made, and a receipt for four months' rent given, the receipt being antedated to July 1, 1899, at his request. The receipt was introduced in evidence, and substantiated the testimony given in relation thereto. It was not shown or claimed by the landlord that any misrepresentations or false statements were made by the tenants to induce him to accept the note in question, and he testified that he can read and write the English language, and that he read the note, and accepted it in payment for the rent, and gave the receipt therefor. These proceedings were instituted in August, 1899, and, the note not being due until October 1, 1899, it follows that the tenants interposed and proved a perfect defense to the allegations of the petitioner. Moreover, the trial judge had no authority to render a judgment against the tenants in a proceeding of this kind for the recovery of rent. Jarvis v. Driggs, 69 N. Y. 147. Judgment and final order reversed, with costs.

LEVENTRITT, J., concurs.

MacLEAN, J. (dissenting). In this proceeding, to dispossess for nonpayment of rent, there was involved merely a question of fact, which the justice determined in favor of the landlord, and under the common practice of this court such determination is not to be disturbed save under conditions which are not present herein. The

and 95 New York State Reporter.

propriety or impropriety of a judgment for rent is not before this court, because it is no part of the final order from which, and from which alone, the appeal herein is taken. The order should therefore be affirmed.


(Supreme Court, Appellate Term. December 28, 1899.)


Where the record does not show that defendant resides within the jurisdiction of the trial court, a judgment against him must be reversed.

Appeal from municipal court, borough of Manhattan, Second district.

Action by George R. Bristor against William H. Flaherty, impleaded with James C. Metcalfe. From a judgment for plaintiff, defendant Flaherty appeals. Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

Maxwell C. Katz, for appellants.
George R. Bristor, for respondent.

MacLEAN, J. The defendant now objects, among other things, that the record is silent as to his residence within the jurisdiction of the trial court, and this is true. For this reason the judgment must be reversed. Frees v. Ford, 6 N. Y. 176; Gilbert v. York, 111

N. Y. 544, 19 N. E. 268.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.


(Supreme Court, Appellate Term. December 28, 1899.)


An agreement for a lease, which the landlord subsequently refused to enter into, of property thereafter conveyed to a third party, to whom the tenant with whom such agreement was made paid the rent claimed to be due, does not sufficiently show the relation of landlord and tenant upon which to base a summary proceeding by such landlord for possession for nonpayment of rent.

Appeal from municipal court, borough of Manhattan, Seventh district.

Summary proceeding by Thomas J. McLoughlin against Catharine A. Steurwald. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

Max Stennert, for appellant.
Jacob Levy, for respondent.


FREEDMAN, P. J. This is a summary proceeding, taken to recover possession of premises in the city of New York, based upon a petition alleging nonpayment of rent for the months of May and June, 1899, and claimed by the petitioner therein to have been leased to the tenant herein. There was sufficient testimony in the case, given on behalf of the tenant, to show that the relation of landlord and tenant never existed between the parties, and that, although at one time there existed an oral agreement for a lease, the landlord subsequently refused to enter into a lease, and thereafter conveyed the premises to a third party, to whom the tenant paid the amount of rent claimed by the landlord in these proceedings, and for the months of May and June, 1899. The court below took that view of the evidence, and gave a judgment in favor of the tenant, and there appears no good reason for a reversal. Order and judgment affirmed, with costs. All concur.

FALCONE v. SOCIETA SARTI ITALIANI DI MUTUO SOCCORSO. (Supreme Court, Appellate Term. December 28, 1899.)


A by-law of a mutual benefit association requiring a member entitled to a per diem sick benefit to notify the secretary within 24 hours after his illness began, whereupon the latter would then send the association physician to visit him, and certify as to his illness, and further providing that the doctor's certificate should alone be proof thereof, is not unreasonable, and a member who fails to comply therewith cannot recover a benefit. 2. SAME-NONCOMPLIANCE OF MEMBER-EXCUSE.

Failure of a member of a benefit association to comply with its by-laws, requiring him to notify the secretary of his illness, is not excused by showing that he was incapacitated from so doing by a sudden illness, where, long before he recovered from the illness for which he seeks to recover a per diem benefit, he was able to, but did not, notify the secretary. 8. SAME-MEMBER-ESTOPPEL.

One who, as a charter member of an association, either participated in the adoption of a by-law or assented to it when he joined the society, and who thereafter recognized it by acting thereon, is estopped to question its reasonableness.

Appeal from municipal court, borough of Manhattan, Sixth district.

Action by Pasquale Falcone against Societa Sarti Italiani di Mutuo Soccorso to recover sick benefits. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

John Palmieri, for appellant.

Achille J. Oishei, for respondent.

MacLEAN, J. Of what sort was the defendant association nowhere clearly appears. The plaintiff says that he was a member of it from its foundation, and that under the by-laws he was to get a "sick benefit" of a dollar a day while sick, and that he was sick

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