PER CURIAM. Plaintiff claimed that defendant held over after an expired term. The undisputed fact is that defendant did remain and pay one month's rent. He then without notice removed. The landlord in those circumstances properly took possession and relet. This action is to recover two months' rent and to establish a lien on furniture as provided in the lease for the unexpired term. The complaint was dismissed at the close of plaintiff's case, and a motion for a new trial denied. This was error. Plaintiffs established a prima facie case. Judgment reversed, and new trial ordered, with costs to appellants to abide the event. JACOBS v. COHEN. (Supreme Court, Appellate Term. May 7, 1909.) 1. TRIAL (§ 387*)-TRIAL BY COURT-COMPROMISE Judgment. A judgment simply "for defendant," finding no amount due either party, in an action in which there is a counterclaim consisting of several items, none of which could be set off without leaving some money due one party or the other, is a compromise judgment, which cannot stand. [Ed. Note. For other cases, see Trial, Dec. Dig. § 387.*] 2. COURTS (§ 190*)-MUNICIPAL COURTS-RIGHT OF APPEAL-FAILURE TO MOVE TO MODIFY JUDGMENT. Failure to move for modification of judgment, as allowed by Municipal Court Act (Laws 1902, p. 1563, c. 580) § 254, does not deprive a party of right to appeal from a compromise judgment. [Ed. Note. For other cases, see Courts, Dec. Dig. § 190.*] Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Arthur D. Jacobs against Julius M. Cohen. From a judgment by default, defendant appeals. Reversed, and new trial ordered. Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ. Arthur L. Davis, for appellant. PER CURIAM. Plaintiff sued to recover a balance due him from defendant for wages and merchandise. Defendant set up a counterclaim, which, after amending his bill of particulars, consisted of four items. Two of these items, conceded on the trial to amount to $19.45, plaintiff admits were owed by him to defendant, having set them out in plaintiff's own bill of particulars. The trial justice rendered a judgment "for the defendant," finding no amounts due to either party. Under any possible construction of the judgment, it can only be regarded as a compromise; for, remembering that the plaintiff admits an indebtedness of $19.45, there is no arrangement by which any of the items can be offset that would not show some money due to one party or the other. Although defendant might have moved the trial court under section. 254 of the Municipal Court act (Laws 1902, p. 1563, c. 580), his failure to do so does not preclude his right to this appeal. Under the well-recognized rule that a compromise judgment cannot stand, it is obligatory upon this court to reverse the judgment, and order a new trial, but without costs. Judgment reversed, and new trial ordered, without costs of this appeal to either party. LERNER v. COHEN. (City Court of New York, Trial Term. January, 1909.) ASSAULT AND Battery (§ 40*)—DAMAGES. Where defendant, without provocation, assaulted plaintiff, knocking out one tooth and loosening another, and causing plaintiff's face and lips to swell and bleed, plaintiff was entitled to substantial damages, and a verdict for six cents was insufficient. [Ed. Note. For other cases, see Assault and Battery, Cent. Dig. § 55; Dec. Dig. § 40.*] Action by Wolf Lerner against Leo Cohen. Verdict for plaintiff, and he moves for new trial. Motion granted. Goetz & Goetz, for plaintiff. FINELITE, J. This is an action to recover damages for an assault committed upon plaintiff by defendant, the result of which assault was the loss of a front tooth and other injuries inflicted upon plaintiff by defendant. The plaintiff testified to having been struck a violent blow in the mouth, which blow caused a front tooth to be knocked out and another loosened, and which also caused his face and lips to swell and bleed, thereby suffering pain from said assault inflicted by defendant, without cause or provocation therefor. The plaintiff was corroborated by a witness as to the said assault. The defendant denies the assault, and in that particular is corroborated by witnesses. The question having been submitted to the jury, after deliberation they brought in a verdict in favor of plaintiff assessing his damages at 6 cents. The plaintiff's attorney makes a motion to set aside this verdict on account of the insufficiency of the damages awarded. The motion must be granted. The jury, having found in plaintiff's favor upon all the proof, must allow plaintiff substantial damages and not nominal damages of 6 cents. The damages awarded in this case were altogether insufficient. If the plaintiff's story is true, he was grossly assaulted, for which he is entitled to recover substantial damages for the injuries inflicted upon him and for the indignities suffered. See Samuels v. N. Y. City Ry., 52 Misc. Rep. 137, 101 N. Y. Supp. 534; Hamilton v. Third Ave. R. R., 53 N. Y. 25; Gillespie v. Brooklyn. Heights R. R., 178 N. Y. 347, 70 N. E. 857, 66 L. R. A. 618, 102 *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Am. St. Rep. 503. Justice requires that this motion be granted without imposing costs. Motion for a new trial is therefore granted, and this case set down for a retrial for the first Monday of March, 1909. Settle order on notice. (63 Misc. Rep. 46.) SPRUHAN v. BROWN. (City Court of New York, Special Term. March, 1909.) PROCESS (§ 36*)—AMENDMENT OF SUMMONS. A summons made returnable by mistake in two days, instead of six days, as it should have been, considering the part of the city in which defendant resided, will, as authorized by Code Civ. Proc. § 723, where it is in furtherance of justice, be amended; the summons having been served on the last day for commencing the action. [Ed. Note. For other cases, see Process, Dec. Dig. § 36.*] Action by Henry J. Spruhan against Fred Brown. Both parties make motions. Defendant's motion denied. Plaintiff's motion granted. Alfred E. Ommen, for plaintiff. Marks & Marks, for defendant. FINELITE, J. These are cross-motions. The defendant moves to vacate and set aside the summons issued herein, upon the ground that the same was made returnable within two days instead of six days, and the plaintiff moves to amend the summons extending defendant's time to appear herein to six days. Plaintiff and defendant are residents of the borough of Manhattan, city of New York, and the attorney for the plaintiff states that it was a mistake or oversight upon his part that, when said summons was given for service, the wrong summons was served; the time therein being printed that the defendant was summoned to appear in this action within two days after the service of the same, instead of six days. The plaintiff was not entitled to a short summons, for the reason that the defendant was a resident of the borough of Manhattan, city of New York, as aforesaid, and in serving the same a mistake was made in not issuing a summons for the defendant to appear within six days after service thereof. In Gribbon v. Freel, 93 N. Y. 93, a summons issued out of the Marine Court of the City of New York stated that the time in which the defendant was required to answer was six days, instead of ten, as provided in section 3165 of the Code of Civil Procedure. The court (Earl, J., writing the opinion) held that the summons was not an absolute nullity. The insertion of six days, instead of ten, was an irregularity merely. The defect could have been waived by the general appearance of the defendants, or consent, express or implied. A judgment entered by default after the service of such a summons would not have been absolutely void, but simply irregular or erroneous, to be corrected by motion or by appeal. The obvious aim of the Code provision permitting amendments "in furtherance of justice" (section 723, Code Civ. Proc.) is to relegate the authority to the courts as to every process or pleading. Section 721 of the Code of Civil Procedure enumerates a great variety of defects covering nearly every conceivable case, which are cured by a pleading or decision. The trend of authorities, aside from the case cited, is to give full scope to these sections and to treat every defect in the summons or pleading as an irregularity, and hence subject to control and correction by the courts. Clapp v. Groves, 26 N. Y. 418; Sears v. Sears, 9 Civ. Proc. R. 432; McCoun v. N. Y. C. & H. R. R., 50 N. Y. 176. This action is brought on a promissory note, the day on which the summons was served was the last day in which the action could be brought to avoid the statute of limitations, and if the court would set aside the summons the plaintiff would be barred from recovering in this action. As it was only an irregularity, the court could allow an amendment extending the time within which the defendant was to appear herein. The motion to set aside the summons is denied, and the plaintiff's motion for defendant's time within which to appear is extended six days from the service of the order to be entered hereon, with notice of entry thereon served on defendant's attorney. Settle order on one day's notice. LYON v. FRIEDLANDER. (City Court of New York, Special Term. March, 1909.) PLEADING (§ 52*)-JOINING TWO CAUSES AS ONE. Under Code Civ. Proc. § 483, providing that, where the complaint sets forth two or more causes of action, the statement of the facts constituting each' cause must be separate and numbered, where a cause of action for balance due for work, labor, and services was joined with an action for wrongful discharge, upon motion plaintiff will be required to state separately, and number, as to the first cause of action the facts as to the amount due him at the time he left defendant's employ, and as to the second the facts which caused the alleged wrongful discharge. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 113; Dec. Dig. § 52.*] Action by Gerald Lyon against Albert Friedlander. Motion to require plaintiff to separately state two causes of action, united as one cause in the complaint, etc. Motion granted. Hastings & Gleason, for plaintiff. Frederick W. Sperling, for defendant. FINELITE, J. The plaintiff has united two causes of action as one cause of action in his complaint-the first for a balance due for work, labor, and services; second, for a wrongful discharge. A motion is now made why the plaintiff should not be directed to separately state and number as to the facts constituting each cause of action. As a first cause of action he should state the facts as to the amount due him at the time he left the defendant's employ; in the second cause of action, the facts which caused the alleged wrongful discharge. See Perry v. Dickerson, 85 N. Y. 345, 39 Am. Rep. 663; section 483, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Code Civ. Proc.; Christopher & Tenth St. R. R. v. Twenty-Third St. Ry., 78 Hun, 462, 29 N. Y. Supp. 233; Richards v. Kingsley, 14 N. Y. St. Rep. 701. As this is the proper practice by motion to move that the complaint should be separately stated and numbered as to the causes of action (Schroeder v. Young, 49 App. Div. 640, 63 N. Y. Supp. 110; Com. Bank v. Pfeiffer, 108 N. Y. 242-246, 15 N. E. 311), motion will therefore be granted. Settle order on one day's notice. (63 Misc. Rep. 54.) STRODL v. FARISH-STAFFORD CO. (City Court of New York, Special Term. March, 1909.) 1. DISCOVERY (§ 41*)-EXAMINATION OF PARTY BEFORE TRIAL. Under Code Civ. Proc. § 870, providing that the deposition of a party to an action pending in a court of record, with certain exceptions, may be taken at the instance of an adverse party at any time before trial, a general examination of defendant by plaintiff may be had at any time before trial, and need not be limited to an affirmative cause of action set up by plaintiff. [Ed. Note. For other cases, see Discovery, Dec. Dig. § 41.*] 2. DISCOVERY (§ 38*)-EXAMINATION OF PArty Before TRIAL. In an action for breach of a contract of defendant company's alleged predecessor to purchase plaintiff's stock in the company at par, defendant denying the contract and purchase, where plaintiff had complied with Code Civ. Proc. §§ 872, 873, prescribing procedure for obtaining an examination of a party before trial, he was entitled to examine defendant's president and secretary, and to have the company's books and papers produced, which would show the transfer to defendant of the alleged predecessor's stock, assets, and liabilities; the evidence being necessary in proving plaintiff's cause of action. [Ed. Note. For other cases, see Discovery, Cent. Dig. § 51; Dec. Dig. § 38.*] Action by Edward V. Strodl against the Farish-Stafford Company. On motion to vacate an order for examination of defendants. Motion denied. Edward Kellogg Baird, for plaintiff. FINELITE, J. This is a motion why an order heretofore granted for an examination of the defendants should not be vacated and set aside. The order was to the effect that the defendant's company should submit to an examination and its deposition taken, pursuant to sections 871, 872, and 873 of the Code of Civil Procedure, and that William W. Farish, its president, and William R. Wright, its treasurer and secretary, should appear and submit to an examination concerning facts of certain entries made in the books of the defendant. The plaintiff has instituted an action against the defendant to recover damages for the breach of a written contract, dated January 10, 1903, wherein the defendant company agreed to purchase from the plaintiff, at its par value, all the stock that the plaintiff held in defend |