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Evidence in an action by a street car passenger injured in attempting to alight held too uncertain and contradictory to warrant submitting the issues of negligence and freedom from contributory negligence to the


On an appeal from the dismissal of a complaint at the end of plaintiff's case the Supreme Court is not limited to reviewing the ground assigned

by the trial court for its action, but must examine the entire record. Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by John H. Baker against the Interurban Street Railway Company. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.


Adolph Cohen (G. A. Moses, of counsel), for appellant.
H. A. Robinson (Wm. E. Weaver, of counsel), for respondent.

GILDERSLEEVE, J. The action is for negligence. The plaintiff was injured by being, as he alleges, thrown off the defendant's car. The court dismissed the complaint at the end of the plaintiff's .case. Plaintiff appeals.

Plaintiff was a passenger on defendant's open electric surface car. When the car came near 116th street he signaled to the conductor to stop, and arose to get off. The car came to a stop, and other passengers got off. Plaintiff placed his left hand on the back of the seat in front of him, and his right hand on the handle bar, and was about to lift his right foot on the platform or running board, when he was thrown off the car, as he claims, by the sudden starting of the same. He testified, in answer to the court, as follows:

"There was nobody in the seat but myself. Nobody was in the way of my getting out. There was no person between me and the rail and the foot board. Q. Some people got out of that car, and you did not get out. Why didn't you get out? A. I suppose I was a little tardy. I did not get my foot down upon the run board. Q. Was the car in motion when you got up and you put your hand on the front of the seat? A. Yes, sir. Q. So that it started after leaving those people out? A. Yes, sir. Q. And it was after the car was in motion that you attempted to get out of the car, is that right? A. I think it was."

Further on he testified, in reply to his own counsel: "Q. Did the car stop to let passengers off before you arose to get out? Did the car stop to let passengers off, and then did you rise to get out after the car had started? A. I rose to get out before the car stopped. Q. And then, before you got out, what happened? A. The sudden jerk of the car threw me off the car, and I fell in the street."

The plaintiff was the only witness as to the circumstances of the accident, and the foregoing is the substance of his testimony. It is and 120 New York State Reporter too contradictory and uncertain to warrant a jury in resolving the question of the defendant's negligence and the question of the plaintiff's freedom from contributory negligence in the plaintiff's favor. The proof is defective, and facts essential to the plaintiff's right to recover could only be reached by the jury by conjecture, surmise, or guess. The complaint was properly dismissed. Martin v. Third Ave. Ř. R. Co., 27 App. Div. 52, 50 N. Y. Supp. 284; Casper v. Dry Dock, etc., 56 App. Div. 372, 67 N. Y. Supp. 805. On this appeal we are not limited to a review solely of the ground assigned by the trial court for dismissing the complaint. We must examine the entire record.

Judgment is affirmed, with costs to the respondent. All concur.

MCCREA V. SCOFIELD. (Supreme Court, Appellate Term. January 7, 1904.) 1. ATTORNEY AND CLIENT-SERVICES-COMPENSATION.

An attorney's right of action for compensation does not accrue until

his relation as attorney in the suit has terminated. 2. SAME-STATUTE OF LIMITATIONS.

The statute of limitations does not begin to run agaivst an attorney's claim for compensation until the termination of his relation as attorney

in the suit. Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Action by William G. McCrea against Cyrus Scofield. Judgment for plaintiff, and defendant appeals. Reversed.


Appell & Taylor (Ernest Hall and George H. Taylor, Jr., of counsel), for appellant.

William G. McCrea, for respondent.

GREENBAUM, J. This action was for legal services. The re

. covery was limited to services rendered in the suits of Scofield against Kreiser and Scofield against Valentini, and it is conceded that both of these actions are still pending and undetermined, and that no service has been rendered in either of them for upwards of six years prior to the commencement of this action. The answer sets up the six-year statute of limitations. The refusal of the court to dismiss the complaint upon plaintiff's motion, at the conclusion of plaintiff's case, and at the close of the entire case, to which due exceptions were taken, brings up for review the right to any recovery.

The motion to dismiss was made upon the grounds that plaintiff had failed to establish a cause of acti and that any claim that he had was barred by the statute of limitations. The law governing the right of an attorney to compensation is stated in Bathgate v. Haskin, 59 N. Y. 535, as follows:

"The authority of an attorney who is employed to prosecute or defend a suit, in the absence of special circumstances, continues, by virtue of his original retainer, until it is finally determined. The contract of the attorney is entire, and the service he is to render is essentially single, although it may require distinct steps and proceedings on his part before the purpose of the employment is fully accomplished. No right of action accrues for each successive service in progress of the cause, and the statute does not begin to run against his claim for compensation until his relation as attorney in the suit has terminated."

See, also, Clarkson v. Young (City Ct. Brook.) 11 N. Y. Supp. 563.

From the foregoing citation it follows that from the facts here appearing the plaintiff had no right of action, because he admittedly had not yet terminated his relationship of attorney in the suits which he sought to recover compensation.

It is clear that, if by any possibility which has not been made apparent it could be claimed that plaintiff was entitled to recover for services rendered in the two suits, then the bar of the statute of limitations would defeat a recovery, for the reason that more than six years have elapsed since the rendition of any services in those suits. In either aspect of the matter it is plain that the motion to dismiss the complaint should have been granted.

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


(Supreme Court, Appellate Term. January 7, 1904.) 1. SALES-ACTION FOR PURCHASE PRICE.

Defendant, having rented a machine from plaintiff, delegated his brother to buy it. Plaintiff's machinist examined and repaired the machine. Defendant's brother tested it, and then gave the machinist a check for the price. Subsequently defendant, claiming the machine was defective and out of repair, stopped payment of the check, but did not tender a return of the machine. There was no evidence of warranty.

Held, that plaintiff was entitled to recover in an action on the check. Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.

Action by Harry Goldstein against Benjamin Hochberg on a check given for the purchase price of a machine sold to defendant. From a judgment for defendant, plaintiff appeals. Reversed.


M. Meyers, for appellant.
M. Helfand, for respondent.

FREEDMAN, P. J. The defendant rented a sewing machine from plaintiff's assignor, one Ukon. After having used and paid rental for the machine for some two months, the defendant delegated his brother to purchase it. An agreement was entered into whereby Ukon was to send his machinist to defendant's place of business to overhaul the machine. This was done, and, after the machine had been attended to, the brother of defendant tried it, and then gave the machinist a check for $18, the agreed price, payable to Ukon. Subsequently the and 120 New York State Reporter defendant claimed that the machine was imperfect, and out of repair, and stopped payment on the check. Ukon assigned his claim to the plaintiff, who brought this suit on the check.

The machinist testified that he left the machine in first-class condition, and that after the defendant's brother tried it he was given the check which had presumably been signed by the defendant. The defendant has continuously retained possession of the machine, and has never offered to return the same. The defendant testified that he had a machinist examine the machine after it had been fixed by the machinist sent by Ukon, but the result of such examination is not shown. The defendant admits that the machine did good work up to or near the time of the alleged purchase. There is no claim made by the defendant that plaintiff warranted the machine for any purpose. The testimony on the part of the plaintiff is undisputed, and defendant has failed to show any reason, either in law or ethics, for refusing to pay the purchase price for the property.

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

(90 App. Div. 103.)

FELIX v. DEVLIN et al. (Supreme Court, Appellate Division, First Department. January 15, 1904.) 1. JUDICIAL SALE SPECIFIC PERFORMANCE ABATEMENT FOR DEFECT OF TITLE.

A parcel of land was sold for $21,000 at public sale, the terms of which described the land by lot numbers, and distances, dimensions, and boundaries, as shown by a map according to which the property was sold, and, in addition, contained the statement, “be the said dimensions or distances more or less"; and in an action by the purchaser for specific performance, with an abatement for defect in title, it appeared that a small fragment, whose value was tixed at $1.000, had previously been conveyed. Held, that a judgment in favor of defendants, based on the ground that the words quoted qualified the description of the property as appearing on the map sufficiently to obviate the objection as to the fragment conveyed,

would not be interfered with on appeal. 2. SAME-ALLOWANCE OF INTEREST ON BID.

If plaintiff was compelled in such case to take the title as thus diminished in value, he should not be mulcted with interest on the purchase price from the date of the sale; the rents in the meantime baving



Loose and indefinite knowledge as to the title possessed by the agent of the purchaser at a judicial sale could not destroy the force and effect


Where a purchaser of land objects to the title, and the title, as shown by the evidence, is open to reasonable doubt, it is not a marketable title, and the court cannot make it one by passing on an objection depending on a disputed question of fact or a doubtful question of law, in the absence of the party in whom the outstanding right is vested; and hence, in an action for specific performance, with abatements for defects and deficiencies, it would be improper, in this condition of the title, to direct a conveyance, and impracticable to determine what allowance should be made for diminution in value resulting from the doubt, and the purchaser should be relieved from the purchase.

Van Brunt, P. J., dissenting.

Appeal from Special Term, New York County.

Action by Peter W. Felix against Daniel C. Devlin and others for specific performance of a contract of sale of real estate, with abatements for alleged defects and deficiencies. From a judgment in favor of defendants, plaintiff appeals. Modified and affirmed.


Louis 0. Van Doren, for appellant.
Merritt E. Haviland, for respondents.

O'BRIEN, J. The issue herein was defined by this court upon an appeal by this same plaintiff which presented another phase of the litigation which has grown up about the property involved, in the following language:

“The defendants in their answers admitted the making of the contract, and asked for a specific performance of it as it was made. So that the only question presented was whether the defendants were entitled to have the contract performed precisely as it was made, or whether Felix was entitled to the specific performance of the contract, with a diminution of the purchase price by way of compensation for certain defects in the title and a deficiency in the quantity of the land.” 50 App. Div. 332, 64 N. Y. Supp. 214.

The plaintiff, at public auction, purchased two distinct parcels of land under the waters of the North river for two different pricesthe larger parcel, lying wholly north of 137th street, for $21,000; and the smaller parcel, lying wholly south of 137th street, for $2,900. The plaintiff brought this action to obtain a specific performance of the contract of sale, but claimed that he was entitled to compensation for diminution in the value of the parcels due to two considerations, which may be briefly stated: First, that the vendor had no title to a fragment of the larger parcel, namely, a piece on the northwest corner of 137th street and 12th avenue, about 3 feet long on 12th avenue, and 6 inches on 137th street, which had been deeded to the Hudson River Railroad Company; and second, that a part of the smaller parcel was affected by a grant made by the city of New York, dated December 4, 1804, and recorded in the office of the comptroller, which projected into and occupied a part of the area of land conveyed under the terms of sale to the plaintiff.

In view of the protracted litigation which has ensued, and the voluminous record, consisting of the maps and expert testimony bearing upon the questions in dispute, it would exceed the limits of an opinion to give in detail the reasons for our conclusion, and it will be necessary only to briefly refer to them.

With respect to the larger parcel, which is affected by the grant to the railroad company, it is conceded that the vendor las no title to the small piece thereof on the northwest corner of 137th street which, as stated, is 3 feet in length on the avenue, and measures 6 inches on 137th street.

The only testimony as to the value of this small strip was that furnished by one of the plaintiff's experts, who fixed its value at $1,000. The terms of sale to the plaintiff described the land by lot numbers, and by distances, dimensions, and boundaries, as shown on a map according to which the property was sold, which terms contained

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