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and 120 New York State Reporter cases in this district. So, in Matter of Lengert Wagon Co., 6 Am. Bankr. Rep. 535, 110 Fed. 927, where a sheriff had levied upon property on execution issued by the state court, Judge Adams, in directing that application be first made to the state court to transfer property to the receiver in bankruptcy, said, “When the property is delivered to the receiver of this court, the sheriff may apply here for the allowance of his reasonable disbursements." In Matter of Lesser Bros., 3 Am. Bankr. Rep. 815, 100 Fed. 433, application was made by a trustee in bankruptcy to stay proceedings in the Supreme Court of this state begun by certain creditors who were seeking to apply to the satisfaction of a judgment in their favor assets of the bankrupts that had been fraudulently conveyed to receivers of this court in an action to dissolve the bankrupts' partnership. Judge Brown held that the trustee in bankruptcy “should apply to the state court to make the proper order for the paynient of the assets by its receiver to the trustee in whom they are vested by the bankrupt act. The obligations of the bankrupt act are as binding upon that court as upon this, and it is not to be doubted that on proper application the state court will give appropriate directions”; and it was further held that, under the circumstances of that case, the bankruptcy court might make a reasonable allowance out of the estate as indemnity for the costs and expenses incurred by the creditors in preserving the estate. This case was affirmed by the United States Circuit Court (5 Am. Bankr. Rep. 320), with an additional direction expressly authorizing the creditors named to appear in the state court, and there make application for allowance for their casts and expenses. The United States court thereby recognized its paramount control by giving an otherwise unnecessary authorization, and delegated its power to adjust the compensation to the state court. The bankruptcy court has, in the case at bar, permitted the receiver in bankruptcy to first apply to this court for an order directing the funds to be paid over, and has made no further direction. This is therefore the only order which this court is authorized to make. The receiver appointed by this court cites in support of his contention a dictum by Chief Justice Fuller in Matter of Watts & Sachs, 190 U. S. I. 23 Sup. Ct. 718, 47 L. Ed. 933. It was held in that case that attorneys who erroneously, but in good faith, advised the state court to seize property which had been voluntarily surrendered to a receiver in bankruptcy were not guilty of contempt of the United States court. In delivering the opinion, Chief Justice Fuller said:

"It has already been assumed that the bankruptcy proceedings operated to suspend the further administration of the insolvent's estate in the state court, but it remained for the state court to transfer the assets, settle the accounts of its receiver, and close its connection with the matter."

In view of the main purpose of the bankruptcy law, and the decisions rendered, I am of the opinion that the settlement of the accounts mentioned does not mean the disbursement by the state court of assets unadministered at the tiine the proceedings in bankruptcy have been brought, a receiver thereunder appointed, and demand for the property made. This court may, upon motion duly made, settle the accounts of its receiver, recognizing such payments as were already properly made before the petition in bankruptcy was filed (Louisville Trust Co.

v. Comingor, 184 U. S. 18, 22 Sup. Ct. 293, 46 L. Ed. 413), and upon transfer of all assets in possession to the bankruptcy court close his account, cancel his bond, and discharge him and his sureties from liability. The motion of the receiver in bankruptcy that the receiver in this suit pay over the $10,000 in question to the receiver in bankruptcy is granted, but without costs. Settle order on notice. Upon such payment the receiver in this suit may apply to this court for a settlement of his accounts and for his discharge.

Ordered accordingly.


(Supreme Court, Appellate Division, Fourth Department. March 8, 1904.) 1. ACTION ON CONTRACT-BR H-EVIDENCE.

In an action for the contract price, under a contract by which plaintiffs were to advertise by cuts defendant's hardware and bicycle business, defendant after a few months, up to which time only one of the cuts sent bad represented the bicycle business, having given notice that he would not receive any more cuts, because they did not conform to the agreement, in that they only advertised the hardware business, defendant, to show that the failure to supply the cuts of his bicycle business was a material breach of the agreement, may prove that his bicycle business was larger than his


The County Court may not on appeal reverse the judgment of a justice's court on the ground that questions to witnesses were objectionable, they

not having been open to the objections made to them before the justice. 3. SAME.

Objection that the evidence as to breach of the contract sued on was not admissible under the answer, not having been made at the trial, may not be made on appeal.

Appeal from Wayne County Court.

Action by Paul Hellinger and another against Albert E. Marshall. From a judgment reversing a judgment of a justice's court, defendant appeals. Reversed.


C. W. Knapp, for appellant.
C. P. Williams, for respondents.

SPRING, J. I think the judgment of the County Court should be reversed, and that of the justice affirmed.

The parties entered into a written agreement by which the plaintiffs were to advertise by cuts the hardware and bicycle business of the defendant. Four cuts were furnished gratuitously by the agent of the plaintiffs as samples. The hardware and bicycle business of the defendant were entirely distinct. Two of the cuts furnished represented the hardware business, and two the bicycle business. The plaintiffs, in pursuance of the contract, commenced to send the cuts, and continued to do so. Of these sent, by the stipulation of the parties it is conceded that only one represented the bicycle business of the defendant. After and 120 New York State Reporter a few months the defendant notified the plaintiffs that he would not : receive any more of the cuts, because they did not conform to the

agreement, in that they only advertised the hardware business. The plaintiffs sued to recover the contract price, and it was a question of fact for the jury to determine whether or not they were entitled to recover.

The defendant was claiming that there was a breach of contract, in that the cuts did not represent his bicycle business. The defendant was asked this question on the trial: “What was the largest share of your business in the village of Cazenovia ?" This was objected to, and the witness was permitted to answer, and stated that it was the bicycle business. For this alleged error the county court has reversed the judgment of the justice's court in favor of the defendant. We think the evidence was competent. The defendant was seeking to show that the failure to supply cuts of his bicycle business was a material breach of the agreement, and, for the purpose of establishing that fact, it was competent to prove that his bicycle trade was an important feature of his business.

It is contended that there are other errors which justify the reversal, although not alluded to by the county judge. Upon the trial the defendant was asked, in substance, if he had paid the plaintiffs for the cuts received by him under the written contract. This was objected to upon the ground that it was incompetent, immaterial, and irrelevant. It was competent, material, and relevant to show payment. There was no objection that the question called for a conc,usion, or that it was leading, and, of course, the present respondents are limited to the grounds which they interposed as objections to the question. Again, the defendant was asked if he had notified these plaintiffs that they had broken their contract. The same objections were interposed to this question. It was not objected that the notification was in writing, or that it was a conclusion.

Considerable space is taken up in the respondents' brief to show that the evidence relating to the breach of the contract was not admissible within the answer. This ground was not included among the objections upon the trial. So far as we are able to discover, the case involved a fair question of fact before the jury in the justice's court, and their conclusion ought not to be disturbed.

The judgment of the County Court is reversed, and that of the justice's court affirmed, with costs of this appeal and in the County Court to the appellant. All concur.


(Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. WITNESSES-CONTRADICTION OF PARTY'S OWN WITNESS-COLLATERAL MAT


Plaintiff was injured in attempting to board a street car. On the trial, in rebuttal, she called a witness who had testified for the company, and interrogated him as to a conversation between him and her husband in the waiting room, where she had been taken after the accident, in which

the witness said that he was sorry that the accident had happened to one of his neighbors, and admitted that he knew the conductor, who had said nothing to him about the accident. The witness denied this conversation, and plaintiff then called her husband, who verified it, including his own declaration to the witness that his wife was thrown off the car. Held, that the conversation was collateral to the main issues, so that permitting the contradiction of the witness whom plaintiff had made her own was


The husband having been permitted to testify to his own declaration to the witness that his wife was thrown off the car, the error in the admission

of his evidence was prejudicial. 3. SAME-ADMISSION OF AGENT-SCOPE OF AGENCY.

Though the witness was an employé of the company, yet, as he was not engaged in the company's business at the time of the alleged conversation the admission of the evidence thereof was error.

Appeal from Trial Term, New York County.

Action by Mary Wimmer against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from the denial of a new trial, defendant appeals. Reversed.


Charles F. Brown, for appellant.
Lemuel Skidmore, for respondent.

HATCH, J. By this action damages are sought to be recovered for injuries alleged to have been sustained by the plaintiff through the negligent acts of the defendant. Upon the trial evidence was given by the plaintiff tending to show that she was a married woman about 48 years of age at the time of the reception of the injuries; that on the 30th day of September, 1899, the plaintiff, in company with her husband and daughter, attempted to board a street car on Fourth avenue at the entrance to the tunnel of the railroad just below Thirty-Fourth street. The plaintiff's husband signaled for a car to stop, and in response thereto the car came to a stop close to where plaintiff was standing. The car was somewhat crowded, and the conductor said to them: “Step in, ladies. There is plenty of room inside.” Two women got on the car before plaintiff made an attempt to go aboard. As she placed one foot upon the step, she grasped hold of the rail on the rear dashboard with her left hand, and held up her skirts with her right hand, and while she was in the act of raising her other foot from the ground the car started with a violent jerk, which caused her to partially lose her balance, and while trying to recover herself the car gave another jerk, which precipitated her to the pavement, and she received injuries of quite a serious character. Upon the part of the defendant evidence was given' tending to establish that the plaintiff boarded the car at the place stated; that after she was aboard the car was started; that the plaintiff then discovered that her husband and daughter had not succeeded in getting on the car, whereupon she deliberately walked off after it had proceeded some little distance, and was thrown to the pavement and injured. These two theories were supported by the testimony upon either side of a number of witnesses, and the case upon the testiand 120 New York State Reporter mony presented a question of fact which required the court to submit the same to the jury.

Several errors are urged upon our attention, one of which we regard as fatal to the judgment which has been obtained. During the course of the trial Eugene Worden, a witness for the defendant, and employed by it as a car starter at about the place where the car stopped, was called as a witness, and testified, in substance, to the version of the transaction as claimed by the defendant. It appeared that after the accident Worden assisted the plaintiff's husband in removing the plaintiff to the waiting room near by, where she remained until she was removed to her home. After the defendant had offered all of its proof, the plaintiff recalled Worden to the stand, and interrogated him respecting a conversation he had with the plaintiff's husband in the waiting room. In answer thereto Worden testified that he had no conversation with the plaintiff at the scene of the accident; that plaintiff's husband did not tell him in the waiting room that his wife was thrown off the car, and that he did not ask him what was the matter; that he did not remember stating to him “that he was sorry that such an accident should happen to one of my neighbors, as I lived in the same vicinity"; that he did not tell him that he had not the number of the car, but that he had the number of the following car. “I did not then say to Mr. Wimmer: 'I know the fellow. He never said a word to me about the accident,' or words to that effect. Speaking of the conductor of the car, I am sure I didn't.” And he further stated: “No conversation except in relation to his name and address. I am not positive in reference to whether I told him that I was sorry it happened to a neighbor. I didn't say: 'I know the fellow. He never said anything to me about the accident.' I know I didn't say such a thing as that. I am positive of that." Subsequently the husband of the plaintiff was called as a witness, and interrogated with respect to what transpired in the waiting room. This was objected to by the defendant as incompetent, improper, irrelevant, and immaterial, as it was not proof in rebuttal. The objection was overruled, and the witness testified with respect to where he saw Worden, and stated that he had a conversation with him at the waiting room. He was then asked: “What was that conversation ?" to which the defendant objected upon the same grounds as before, and upon the further ground that it was offered for the purpose of contradicting the witness on the matter brought out by the plaintiff; that such matter was purely collateral; that the plaintiff was bound by it, and should not be permitted to contradict what he said or denied. This objection was overruled, exception was taken, and the witness was permitted to testify: “When the starter came up to me, he asked me what was the matter. So I told him my wife was thrown off the car.

So he asked me: What is your address? What is your name? Where do you live?' I stated to him the name and address. So, after that he said that 'I am very sorry that that must happen to one of my neighbors. Further on I told him that the number of the car I took was the following car after the car the accident happened on, and the time when it happened. So he looked at me, and says: 'Well, I know the fellow. He never said a word to me.' Then my wife she fainted away, and he rung up for an ambulance." This evidence was

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