afterwards, over the letting of a contract for curbing and paving, there was an apparent change in the view of the court regarding the character of the act of letting a contract, and it held:

"We are, however, of the opinion that the proceedings sought to be reviewed are neither judicial nor quasi judicial, and therefore, under the well-settled rules are not subject to review by certiorari.” People ex rel. North v. Featherstonhaugh, 172 N. Y. 128, 64 N. E. 802, 806 (60 L. R. A. 768).

The Featherstonhaugh Case has been quoted with approval in Matter of Standard Bitulithic Co., where the act sought to be reviewed was the cancellation of a contract. 212 N. Y. 182, 105 N. E. 967. It is not apparent that there is much difference between the qualities of the acts of making and unmaking a contract. See, too, People ex rel. Hayes v. Waldo, 212 N. Y. 171, 105 N. E. 961. It may be said besides that the exercise of the function of letting the state printing contract is not accompanied by any of the forms of judicial action. In this fact we may find the reason for the apparent divergence of views between the earlier judges and those constituting the court at present. Judge Collin, writing for the Court of Appeals, said of the action of the state canal board in attempting to revoke a resolution approving of work done under a contract:

"An adjudication involves the exercise of judicial power through a hearing upon an issue, the receiving and weighing of evidence, and the act of rendering a judgment. The assent to the change was an administrative, not a judicial, act." People ex rel. Graves v. Sohmer, 207 N. Y. 455, 101 N. E. 164.

In the Bitulithic Case the court along the same line says: "There is nothing in the Highway Law directing the commissioner of highways in a proceeding such as the one herein considered to take testimony or give the parties interested an opportunity to be heard. A trial in any judicial sense is not contemplated. The sole question requiring consideration on this appeal is whether the act of the defendant in canceling the contract was a judicial act in nature or character. We think it was not."

[1, 2] The acts of investigating the bids and tabulating them, of investigating the financial responsibility of the bidder and his ability to perform the contract and of determining the letting are some of them certainly matters involving the exercise of judgment and discretion. Yet in the case at bar there has been no hearing, no trial, no production of evidence, and no determination after a hearing. The act of an administrative or ministerial officer does not become judicial simply because it is necessary to use discretion and judgment in its performance. It becomes judicial only when there is opportunity to be heard, evidence presented and a weighing of the evidence and a decision thereon. If this view be correct, then the award of the state printing contract to the J. B. Lyon Company was not a judicial act, and certiorari is not the proper remedy. Because of the uncertainty in which apparently conflicting decisions have left the relator, no costs are allowed. Ordered accordingly.

O'SULLIVAN v. FRANCE.

(Supreme Court, Appellate Term, First Department. January 2, 1918.) 1. PRINCIPAL AND AGENT 155(4)-PROMISES PREDICATED ON FALSE STATEMENTS-RECOVERY.

Where one purchases a rooming house from an agent, who promises to induce the owner to make repairs, the agent's liability for repairs necessarily made by the buyer is questionable; but, when linked with a false statement that he was the agent of the owner of the house, it becomes the subject of a claim.

2. PRINCIPAL AND AGENT

190(2)—FRAUD-ISSUES-DAMAGES

EVIDENCE. In an action for fraud of an agent, selling to plaintiff a rooming house, in saying that he was the agent of the owner of the building, and would have certain repairs made and the rent lowered, evidence as to the value of the furniture is inadmissible, because the false representations were not as to the value of the furniture; the elements of damage being excess rent paid and cost of necessary repairs.

Appeal from Municipal Court, Borough of Manhattan, Fourth Dis

trict.

Action by Hannah O'Sullivan against Charles E. France. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

Argued December term, 1917, before GUY, BIJUR, and PHILBIN, JJ.

William A. Cunningham, of Brooklyn (Walter E. McDonnell, of New York City, of counsel), for appellant.

McKeown & Flynn, of New York City (Edward J. Flynn, of New York City, of counsel), for respondent.

PHILBIN, J. The plaintiff sues to recover damages from the defendant for alleged fraud and deceit upon a sale to plaintiff of a socalled rooming house business, in which defendant acted as agent for the vendor. The answer is a general denial. The court, without a jury, awarded the plaintiff $200, an amount equal to the full consideration paid on the purchase of the business.

The bill of particulars furnished by the plaintiff sets forth the alleged fraudulent representations as follows: That the defendant was the agent for the owner of the house in which the business was conducted, and was authorized to collect the rents thereof, and that the rent had been paid to December 1, 1916; that defendant would induce the owner to make various repairs, and would see to it that plaintiff would secure a lease from the owners at a reduced rental. The plaintiff claims that she relied upon such statements and was induced to make the purchase thereby. The bill of sale does not bear date, but the affidavit subjoined thereto was verified on November 18, 1916. It was made by one Mary Butcher, the vendor, who transfers "the good will and interest of the furnished room business" then carried on by her at the premises in question, together with all the household effects. The plaintiff entered into possession on November 20, 1916, and was still in possession at the time of the trial.

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[1] Beyond showing that the rent was not paid to December 1, 1916, and that she had to pay $21.67 on account of the rent for the month of November, and had necessarily expended $15 for painting, the plaintiff put in no adequate proof of damage. While the allowance of the painting item may be regarded as questionable, because defendant's misrepresentation as to repairs was merely in the nature of a promise, yet, where a promise is inseparably linked with a misrepresentation of an existing fact, the breach may be the subject of a claim. The defendant's promise was predicated upon the willfully false statement that he was agent of the owner. There is no adequate proof showing that plaintiff was unable to obtain a lease at a reduced rental.

[2] There was testimony given that the furniture in the house was not worth more than $30, apparently upon the erroneous theory that, if the representations of the defendant had been true, the furniture would have been worth more. The testimony was clearly irrelevant. The judgment should be reduced to the sum of $36.67 and appropriate costs in the court below, and, as so modified, affirmed, with $15 costs to the appellant. All concur.

GRAMONT HOLDING CO., Inc., v. LELLMANN.

(Supreme Court, Appellate Term, First Department. January 2, 1918.) LANDLORD AND TENANT 223(5)—ACTION FOR RENT-COUNTERCLAIM FOR EVICTION-PROOF OF LOSS OF BUSINESS.

In an action for rent of an apartment against a physician, who counterclaimed for plaintiff's acts resulting in his abandonment of the premises, where the evidence as to the effect of plaintiff's having undertaken to reconstruct the building presented a case where, short of deliberate personal violence offered to the tenant, the proof of trespass on the demised premises was overwhelming, the physician was entitled to prove at least the loss of business which he suffered by reason of such interference.

Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by the Gramont Holding Company, Incorporated, against Wilfred O. L. Lellmann. From a judgment for plaintiff, defendant appeals. Judgment reversed, and new trial granted.

Argued December term, 1917, before GUY, BIJUR, and PHILBIN, JJ.

Robbins S. Rutherford, of New York City (Thomas F. Kane, of New York City, of counsel), for appellant.

Henry S. Mansfield, of New York City, for respondent.

BIJUR, J. This action was brought to recover for rent of an apartment in a house owned by plaintiff. The only matter litigated was the counterclaim of defendant tenant, based upon acts of plaintiff during the defendant's occupancy, which resulted in the tenant's abandonment of the premises. It appears that plaintiff undertook to

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reconstruct its building; that in the course of that work it disconnected the telephone service, stopped the operation of the elevator, and attempted to run pipes through defendant's apartment; and that as a result of the work in the building water and large quantities of dust and plaster entered the apartment occupied by defendant. There were also continuous loud noises and shocks generally accompanying the performance of the work which shook the premises. Defendant, who was a practicing physician, claimed damages by reason, among other things, of interference with his business, and expense entailed in moving.

Plaintiff-respondent has urged, both in his brief and on the argument of this appeal, that damages for an eviction are limited either to a nominal figure or at the most to the difference between the rental value of the premises as they were and the rent reserved in the lease. His counsel conceded on the argument that, in case the interference with the demised premises amounted substantially to a trespass, another and more liberal measure of damages would be applicable, on the authority, among other cases, of Snow v. Pulitzer, 142 N. Y. 263, 36 N. E. 1059.

The evidence here presented a case where, short of deliberate personal violence offered to defendant, the proof of trespass upon the demised premises was overwhelming. By the very rule conceded by respondent, therefore, defendant was entitled to prove at least the loss of business which he suffered by reason of such interference. It is unnecessary to pass upon all the items of damage which defendant claimed and undertook to prove, as all the evidence was excluded by the trial court. Indeed, defendant's position does not rest solely on an eviction, but might perhaps with equal force be sustained on the theory of trespass alone.

Judgment reversed, and a new trial granted, with $30 costs to the appellant to abide the event. All concur.

ONGLEY v. MARCIN et al.

(Supreme Court, Appellate Division, First Department. December 21, 1917.) 1. JOINT ADVENTURES 4(1)-RIGHT TO ACCOUNT-JOINT ADVENTURER IN WRITING A PLAY.

Where a dramatist contracted with a theatrical producer to write a play, and later divided the down payment with another writer, who engaged to co-operate with him for a share of the profits, and, after the former's death, the latter, in violation of his duty to deceased's administratrix, appropriated the play, claiming sole authorship and ownership, thereby receiving a large amount of money from its production, the administratrix was entitled to an accounting of the profits of the joint adventure, though by the agreement their interests in the royalties were several.

2. CONTRACTS 305(1)—TIME FOR PERFORMANCE-WAIVER.

Where a theatrical producer accepted a play conceived by one dramatist and completed after his death by a second dramatist, who had engaged with the first in writing it, if the play was taken under the first dramaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

tist's contract with the producer, the time specified for delivery was waived.

3. EXECUTORS AND ADMINISTRATORS 156-RIGHTS IN HUSBAND'S PERSONALTY.

A widow, as her husband's administratrix or personal representative, stands in his position with respect to royalties owed him as a dramatic writer by a theatrical producer.

4. JOINT ADVENTURES 7-LIABILITY TO ACCOUNT-THEATRICAL ROYALTIES. Where a theatrical producer had notice of the express terms of the contract between two dramatists to engage together in writing a play originated by one, to which the producer consented, that the helping dramatist should not, without the consent of the originator, license the production of the play, if the producer, after the originating dramatist's death, produced it under some new arrangement with the helping dramatist, and paid over to him all royalties, etc., the producer, as well as the helping dramatist, was liable to account to the representative of deceased.

5. JOINT ADVENTURES 7-RIGHT TO HAVE NAME ADVERTISED AS COAUTHOR OF PLAY-INJUNCTION.

Where a dramatist engaged to write a play originated by him for a theatrical producer, and later took in another dramatist to assist, after which he died, the assistant completing the play and the producer producing it, the representative of deceased was entitled to have deceased's name advertised as coauthor, and to have the further production of the play enjoined if that were not done; the right not being a mere naked one.

Appeal from Trial Term, New York County.

Suit by Amy Ongley, administratrix of George Booth Ongley, deceased, against Max Marcin and Al. H. Woods. From a judgment dismissing the complaint, on the complaint and opening of counsel for plaintiff, plaintiff appeals. Reversed, and new trial granted.

Argued before CLARKE, P. J., and LAUGHLIN, SCOTT, DOWLING, and SHEARN, JJ.

Martin W. Littleton, of New York City, for appellant.

Max D. Steuer, of New York City (Sidney J. Loeb, of New York City, on the brief), for respondent Marcin.

Nathan Burkan, of New York City, for respondent Woods.

LAUGHLIN, J. This is a suit in equity by the administratrix of George Booth Ongley, to have it adjudged that she is the owner of a certain play entitled "Cheating Cheaters," and of all the rights, benefits, advantages, and royalties to which she may be entitled by virtue of certain contracts annexed to and made a part of the complaint, and by the other facts alleged; that her deceased husband was the author of the play; that the defendants should account for the profits realized by them on the production and presentation of the play, and be enjoined from producing the play, and from claiming authorship or ownership thereof, and that defendant Woods be enjoined from paying any of the proceeds of such production to defendant Marcin; and that plaintiff is entitled to recover general damages in the sum of $50,000, alleged to have been sustained by her from the wrongful acts of the defendants in the premises.

It is alleged, or was stated in the opening and might have been prov

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