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of New York, by water flowing from adjacent premises owned by defendant, upon which there was a building, also owned by him, and near plaintiff's dwelling house, alleged to have been caused "by reason of the carelessness and negligence of the defendant." Issue was joined by the defendant's answer. The case was placed upon the calendar and moved for trial. Counsel for defendant moved to dismiss the complaint at the opening of the trial on the ground that it did not state facts sufficient to constitute a cause of action, claiming that it was to be inferred from the complaint that the water which caused the damage was surface water, for which no liability existed, under the authority of Vanderwiele v. Taylor, 65 N. Y. 341, and Lynch v. The Mayor, 76 N. Y. 60, 32 Am. Rep. 271. The court evidently adopted that view, and, upon counsel for the plaintiff requesting leave to withdraw a juror and to be permitted to apply at Special Term to amend, the court granted the application, and ordered that the complaint be dismissed, unless the plaintiff within two weeks after the entry and service of the order paid the attorneys for defendant $30 as a trial fee, and moved at Special Term to amend the complaint. The terms of the order were complied with. The plaintiff annexed to her moving papers a proposed amended complaint alleging damages to her said premises by water percolating through the soil from. defendant's premises, caused by the negligence of the defendant in failing to keep a waste pipe attached to the water-closet in the rear of his adjacent premises in proper repair and to repair a break therein, and by failing to keep a wash basin in the rear of his premises in proper repair, and in negligently allowing a water pipe on his premises to freeze and burst. The complaint further alleges that the defendant during a period of four months failed and neglected to repair these defects and abate the nuisance maintained upon his said premises, although repeatedly requested so to do by the plaintiff," and that during this period water kept constantly flowing into plaintiff's cellar, weakening, decaying, and rotting the foundation walls of plaintiff's cellar, and depriving plaintiff's tenants of the use of the cellar, in consequence of which her tenants left, and plaintiff "suffered great loss of rents," and that plaintiff's damages altogether amount to $5,000. The plaintiff shows that the damages she sought to recover under the original complaint are the same as those claimed under the amended complaint, except as to the amount, and that when the action was brought to trial her attorney considered the complaint sufficient to authorize a recovery thereof. The defendant contends that the proposed amended complaint states an entirely new cause of action. We think not. She complains of the same damages to her property. It is clear that a recovery under the original complaint would have barred any further recovery under the proposed amended complaint, and this is one of the well-recognized tests for determining whether a new cause of action is stated. Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646, 17 N. E. 733, fully reported, 15 Civ. Pro. R. 62. The amendments merely amplify and perfect her pleading by setting forth more fully the grounds upon which the defendant is liable, and the items of damage. We think the amendment should have been granted in furtherance of justice. Rosenberg v. Third Ave. Ry. Co., 47

App. Div. 323, 61 N. Y. Supp. 1052, affirmed 168 N. Y. 681, 61 N. E. 1151; Ziegler v. Trenkman, 31 App. Div. 305, 52 N. Y. Supp. 613; Purdy v. The Manhattan Ry. Co. et al., 11 Misc. Rep. 394, 32 N. Y. Supp. 275. A sufficient cause for the delay in moving to amend as to the amount of damages is not shown to justify a delay of the trial by a formal motion at Special Term for that relief (Rhodes v. Lewin, 33 App. Div. 369, 54 N. Y. Supp. 106), but, since the plaintiff was obliged to amend in other respects to prevent the dismissal of her complaint, the amendment as to the amount of damages has not delayed the trial.

We are therefore of opinion that the order should be reversed, and motion granted, upon payment of $10 costs of the motion and all taxable costs of the action to date, except the trial fee, less $10 costs and disbursements of the appeal, which are awarded to plaintiff; the case to take its place upon the trial calendar according to the old date of issue. All concur.

STRAUS et al. v. AMERICAN PUB. ASS'N et al.

(Supreme Court, Appellate Division, First Department. March 11, 1904.)


Where it appeared that defendant publishing association had entered into a combination to prevent plaintiffs from purchasing books, except upon such terms as were imposed by defendant, and, to carry out this object, had established a system of espionage upon plaintiffs' business, causing plaintiffs' manager to be followed by detectives, and making publication that any book dealer selling books to plaintiffs would not be allowed to purchase books from any member of defendant publishing association, or from any dealer to whom it supplied books, defendant's combination having been previously held, on demurrer to a complaint filed by plaintiffs, in violation of law, and serious injury to plaintiffs being shown, a temporary injunction should be granted, before final judgment in the action, prohibiting defendant from carrying out the illegal combination.

Van Brunt, P. J., dissenting.

Appeal from Trial Term.

Action by Isidor Straus and others against the American Publishers' Association and others. From an order denying a motion for a temporary injunction, plaintiffs appeal. Reversed.

See 83 N. Y. Supp. 271.


John G. Carlisle and Edmond E Wise, for appellants.

Stephen H. Olin, for respondents American Publishers' Ass'n and others.

Thaddeus D. Kenneson, for respondents Walcot and others.

INGRAHAM, J. This appeal, which was submitted in the April term of 1903, was held pending the decision of the Court of Appeals on an appeal from a judgment of this court overruling a demurrer to the complaint. Upon that appeal the Court of Appeals has held that the complaint states iacts sufficient to constitute a cause of action, and

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the question whether, under the circumstances, there should be a temporary injunction before final judgment, is now presented. The opinion of the Court of Appeals, not yet officially reported, appears in 69 N. E. 1107, and the New York Law Journal of Friday, March 4, 1904. The demurrer was overruled upon the ground that the agreement under which the defendants are acting is a combination in violation of section I of chapter 690, p. 1514, Laws 1899.

In answer to an allegation in the affidavit upon which the motion is made that the American Publishers' Association, through its manager, established a system of espionage upon the manager of the book department of the plaintiffs' business, and caused her to be followed and shadowed by detectives, both at her home and at the plaintiffs' place of business, and that employés of the plaintiffs were bribed to give information concerning the sources of plaintiffs' supply, the president of the association stated, without denying this allegation, that:

"Any steps taken by the Publishers' Association to watch transactions in the plaintiffs' store have been wholly for the purpose of detecting these false and fraudulent purchases on behalf of the plaintiffs and their agents, and to enable the different members of the Publishers' Association to enforce the contract made by them with the purchasers of copyright books that such copyright books shall be sold to the public only at the net prices affixed to them."

And the manager of the Publishers' Association, while not denying this allegation of the manager of the plaintiffs' departments, states:

"As none of the members of the association sell their copyrighted books to the plaintiffs, it is certain, when the plaintiffs advertised such books for sale, that they have obtained them either by false representations, or by a breach of contract with some of the persons who have bought them from the publishers. In either case the publishers have the right to ascertain how the plaintiffs have obtained the books."

The defendant the American Publishers' Association is a corporation organized under the laws of this state. It has entered into a combination to prevent the plaintiffs from purchasing books with which they can carry on their business, except upon such terms as are imposed by the corporation. To carry out this object, it has established a system of espionage upon the plaintiffs' business, causing the plaintiffs' manager to be followed by detectives, and publishing to the world that any book dealer who sells any books to the plaintiffs will not be allowed to purchase any books from any member of the Publishers' Association, or from any dealer to whom the members of the Publishers' Association have supplied books; and the combination having been declared to be a violation of law, and it appearing that those acting in pursuance of this combination have caused serious injury to the plaintiffs, it would seem to follow that the defendants should be prohibited from carrying out the illegal combination. accept the statement of the defendants that they believed the combination which they adopted was legal and did not violate the statute, and that they acted under the advice of counsel and in entire good faith; but, the highest court of the state having declared the agreement to be an illegal combination, further proceeding under it should be restrained.

It follows that the order appealed from is reversed, with $10 costs and disbursements, and the temporary injunction granted.



(Supreme Court, Appellate Division, First Department. March 11, 1904.)


On an issue as to whether defendant, at the time that he called at a bank, revoked his guaranty of certain notes, testimony of defendant's attorney to the effect that on the day of the call he was consulted by defendant about the notes, and advised defendant to go to the bank personally, and revoke the guaranty, was incompetent.

Appeal from Trial Term, New York County.

Action by Carl Fischer-Hansen against the Lincoln National Bank. From a judgment in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Reversed.


David Gerber, for appellant.

John R. Dos Passos, for respondent.

LAUGHLIN, J. On the 2d day of October, 1901, the defendant signed and delivered to the plaintiff a guaranty in writing of the payment at maturity of any note or notes made by Paul Bertin and his wife, or either of them, to the extent of $5,000, and renewals thereof. On the 22d day of May thereafter Bertin and his wife made their promissory note, whereby they promised to pay, for value received, three months after date, to the order of themselves, $1,000, and before maturity for value, indorsed and transferred the same to the plaintiff. The plaintiff, in purchasing and discounting the note, relied upon the defendant's guaranty. This note was not paid at maturity, although payment was duly demanded, and the note was protested for nonpayment. The action is brought to recover of the guarantor the amount of the note, together with interest. The defense interposed was a revocation of the guaranty on the 5th day of May, 1902, or 17 days prior to the making of the note. The question of fact litigated upon the trial was whether or not the guaranty was revoked. There was a sharp conflict in the evidence. The court instructed the jury that, if the guaranty was revoked, the plaintiff could not recover, but that otherwise the defendant was liable. This note was given in renewal of a note upon which the defendant was clearly liable under his guaranty. Of course, if before the renewal the defendant revoked his guaranty, and notified the bank to insist on prompt payments of the outstanding notes at maturity, the renewal released the defendant, and the bank must have overlooked the revocation, or determined to extend the credit to the makers without other security. The defendant testified


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that on the 5th day of May, 1902, he called at the bank, and "asked t see somebody in authority"; that a gentleman whom he now recognis as Mr. Van Santford was called over, to whom the defendant intro duced himself, and said that he had come to revoke his guaranty of the payment of some notes for Mr. and Mrs. Bertin, and said to Mr. Va Santford that "henceforth I will not be responsible for any new notes. or renewals or extensions; you must keep him to his payments": that thereupon Van Santford excused himself for a moment, and went back to an adjoining room, and conferred with another gentleman. who was seated at a roll-top desk, and then returned, and said, “It will be all right, Mr. Fischer-Hansen," whereupon the defendant said "Is it necessary for me to write?" to which Mr. Van Santford replied. "No, not at all." The defendant was corroborated by the testimony of his rent collector and office boy, whom he asked to have accompany him to the bank. It appears that the defendant is an attorney. The plaintiff gave evidence tending to show that when Mr. Bertin first opened an account at the bank the defendant accompanied him, and at this time they both asked for a line of discount of $5,000; that the defendant shortly thereafter, and before executing the guaranty upor which this action is based, and before the discount was allowed, wrote the cashier of the bank, saying that he would be willing to act as surety for Bertin to the extent of $5,000, "the exact details of which he would leave to the bank to arrange.' sistant cashier, testified in behalf of the plaintiff. He conceded that Mr. Van Santford, who was the asearly in May the defendant called at the bank, and inquired of him when the next Bertin note would fall due, but he denied that anything was said concerning the revocation of the guaranty. Mr. Van Santford says that he referred the defendant to the discount clerk. Mr. Baird, the discount clerk, corroborated Van Santford in this regard. and says that the defendant inquired of him as to the maturity of the different Bertin notes, and "said that he did not care to have the bank renew them for any larger amount," and was assured that it would not. The defendant then called as a witness in his behalf Mr. Kalish, of the firm of Lindsay, Kremer, Kalish & Palmer, his attorney, who had been his counsel for some time. Kalish was permitted to testify, under the plaintiff's objection and exception that the evidence was incompetent, that the defendant consulted him with reference to this guaranty, saying that he had learned that Bertin was in failing circumstances, and that the witness advised the defendant to notify the bank at once to insist upon full payment of the note, and that he revoked the guaranty. The witness further testified that the defendant informed him that one of the notes was falling due on the day of the consultation, and for this reason he advised the defendant to go personally to the bank at once, instead of writing a letter. The defendant then testified that after this interview with his attorney he went to the bank, and gave notice of revocation of the guaranty, as already stated. This evidence was clearly incompetent. There is no rule of evidence that permits the testimony of a witness that he did a certain thing to be corroborated by the testimony of another to whom he previously declared his intention of doing it. The rule that, when the testimony of a witness is attacked or sought to be impeached upon the ground

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