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and 120 New York State Reporter moved 15 or 20 feet after striking plaintiff, and that he heard no gong. But this, in and of itself, does not establish negligence. It is to be borne in mind that Forty-First street does not cross Sixth avenue, and, while people are accustomed to cross along the northerly and southerly sidewalk lines of Forty-First street, and vehicles there pass from the avenue into Forty-First street, and vice versa, yet the same conditions do not exist as at a street crossing where there is through cross-traffic. See Hewlett v. Brooklyn Heights R. Co., 63 App. Div. 423, 71 N. Y. Supp. 531; Towner v. Brooklyn Heights R. Co., 44 App. Div. 628,60 N. Y. Supp. 289. The motorman could see any pedestrians or vehicles in Sixth avenue; none could come from the east; and he was therefore merely obliged to operate his car with that care and caution that would enable him to prevent injury to those who were in the exercise of care in the avenue, or those coming from Forty-First street. At the time in question it does not appear that there was any one in the vicinity of the track, opposite Forty-First street, except the plaintiff. If he looked when within one or two feet of the track, as he testifies, the car had then undoubtedly passed over the northerly line of FortyFirst street, and must have reached the middle of the crossing, or further south; and the motorman would have a right to assume that the plaintiff, in thus looking toward the car, would see it, and would not step in front of it. In no rational view of the plaintiff's testimony is negligence on the part of the defendant shown.

At the close of the plaintiff's case, counsel for defendant moved for a nonsuit on the ground that plaintiff had not shown freedom from contributory negligence, and had not shown negligence on the part of the defendant; and to the denial of the motion an exception was taken. We are of opinion that the motion should have been granted. No evidence on the part of the defendant, fairly considered, tends to sustain the plaintiff's claim sufficiently to support the verdict. The defendant renewed its motion for a dismissal at the close of the evidence, and we think the denial thereof was also error, and its exception thereto was well taken.

It follows, therefore, that the judgment and order should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

RIEHL V. LEVY.

(Supreme Court, Appellate Term. February 4, 1904.)

1. APPEAL FROM MUNICIPAL COURT-REVIEW.

On an appeal by defendant from a judgment in a municipal court its validity will be determined according to the facts, though defendant made

no motion to dismiss the complaint. 2. ATTORNEY AND CLIENT-PREPAYMENT FOR SERVICES-ABANDONMENT OF SUIT

-RIGHT TO RECOVER FEES.

A client who employed an attorney to prosecute an action and paid him in advance for his services cannot recover the money so paid on electing to abandon the action, the attorney being ready and willing to carry on the case, though the abandonment was induced by his admitting that he did not know whether the suit would be successful or not.

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

Action by Maggie Riehl against Leon Levy. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and GREENBAUM, JJ.

Leon Levy, in pro. per.

Rosalie Loew Whitney (Sidney L. Josephthal, of counsel), for respondent.

GILDERSLEEVE, J. The pleadings are oral. The complaint is "wrongful detention, money had and received." The answer is a "general denial.” The facts appear to be substantially as follows: The plaintiff desired to bring an action for slander against one Ernest Smith. The defendant is a lawyer, and plaintiff called at his office, and gave him, as defendant swears, the following written retainer, viz.: “I hereby retain Leon Levy to begin proceedings for malicious slander against Ernest Smith. (Sd.) Mrs. Maggie Riehl." It is true she swears that she never signed this retainer, but she admits that she did retain defendant to bring the action against Smith. Upon the same day she paid defendant $10, and received the following receipt : "Re

“ ceived from Mrs. Maggie Riehl the sum of ten dollars, on account of agreed counsel fee. Balance $90. Leon Levy.” Defendant swears and plaintiff admits that he told her the case would be a difficult one, and that he would charge her $100. Later, but on the same day, she bro!ighi him$90, and he gave her a further receipt as follows: “Received pöynient in full for services. Leon Levy.” It is therefore established that the $100 were paid, in advance, for services to be rendered in the action against Ernest Smith. The plaintiff desired to have said Smith arrested, and defendant prepared the papers to obtain an order of arrest, and told plaintiff to bring two sureties to go on the undertaking on arrest. The plaintiff thereupon changed her mind, and decided to abandon the case. She claims that she paid the $100 because defendant said "it was a sure thing”-i. e., that she would succeed, and that he would “bring Smith to his knees”—but that afterwards, getting the $100, defendant admitted he did not know whether she would be successful or not. The defendant denies that he made any such promises; but, even if he did, a claim of false pretenses can hardly be based thereon, as the alleged words were evidently a mere expression of opinion on the part of defendant, which might or might not prove correct. Upon deciding to abandon the case, the plaintiff told defendant she would allow him $10 for his services already performed, and demanded back the remaining $90. The defendant refused to pay her back a cent, and declared that he was ready and willing to go on with the action against Smith if the plaintiff would allow him to do so. The summons in said action does not appear to have been served on Smith, but it is conceded that defendant had already performed some services in preparing the papers for the proposed order of arrest, as aforesaid, and in consulting with plaintiff, as we have already stated. The plaintiff brought this action to recover the said sum of $100 so paid to the defendant. At the end of the trial the justice said to deand 120 New York State Reporter fendant, “Suppose you give her back ninety dollars?" The defendant replied, “I would not give her a cent back.” Thereupon the justice gave judgment for the plaintiff in the sum of $100. Defendant appeals.

86 N.Y.S.-30

The defendant made no motion to dismiss the complaint, but, as this appeal is from a judgment of the Municipal Court, we will determine the validity of the judgment according to the facts, without regard to such omission on the part of the defendant. We think the judgment was erroneous. The plaintiff's contract with defendant was that the former was to pay the latter $100, in return for which the latter was to prosecute the action against Smith. The plaintiff has paid the $100, and the defendant has already rendered all the services he could in said action, and stood ready and willing to carry out his part of the agreement to the end; but the plaintiff would not let him do so. The plaintiff should not be allowed to profit by such action on her part to the detriment of the defendant, especially as no sufficient reason for her abandonment of the Smith case appears to have been given.

The judgment is reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

UNION PAC. TEA CO. v. UNION SURETY & GUARANTY CO.

(Supreme Court, Appellate Term. February 4, 1904.) GUARANTY BOND-LIABILITY OF GUARANTOR-PROSECUTION OF DEFAULTER.

Where a bond guarantying an einployer against defalcation of its employés provides that the employer shall use all diligence in prosecuting any employé to conviction for any fraud or dishonesty, and “such action" shall be a condition precedent to recovery under the bond, the employer is entitled to recover for the defalcation of an employé whom it prosecuted

with diligence, though no conviction was secured. 2. SAME-EVIDENCE OF DEFAULT.

Evidence held to justify a finding that an employé had defaulted in the sum of $322.18 by failure to account for goods of that value delivered to

him, so that the employer's guarantor against such default is liable. 3. SAME.

Evidence held to show that an employé defaulted only in the sum of $13.51, instead of $39.99, the sum found by the jury in an action by the employer on a guaranty bond. Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by the Union Pacific Tea Company against the Union Surety & Guaranty Company. From a judgment in favor of the plaintiff, defendant appeals. Affirmed on condition that the plaintiff consent to a modification.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and GREENBAUM, JJ.

Van Schaick & Norton (Wilson B. Brice, of counsel), for appellant. Benner & Willcox, for respondent.

GILDERSLEEVE, J. This action was brought upon a general guaranty bond given by the defendant to the plaintiff, guarantying plaintiff against loss sustained by reason of the fraud or dishonesty of any of its employés. The plaintiff claimed for the alleged defalcation of four of its employés, but upon the trial reduced its claim to the alleged defalcation of but two, viz., W. T. French, amounting to the sum of $322.19, and F. M. Taylor, amounting to $39.99; and there is also a claim made by the plaintiff for the sum of $17.86 for expenses in a criminal proceeding against French. The jury found for plaintiff, and judgment was entered for $380.03 damages and $35.38 costs. Four points are urged by the appellant as grounds for reversal. First. That plaintiff failed to use due diligence in prosecuting Taylor "to conviction." Second. There is no proof of delivery of goods to Taylor, or their value. Third. There is no proof of delivery of goods to French, or their value. Fourth. Plaintiff failed to use due diligence in prosecuting French "to conviction.”

The bond sued on contained the provision that: “The employer shall if, and when, requested by the company, at the expense of the company, use all diligence in prosecuting any employee to conviction for any fraud or dishonesty, as aforesaid which he shall have committed, and in consequence of which a claim shall have been made under the bond, and such action, when requested, by the employer shall be a condition precedent to recovery under this bond."

The defendant claims that the foregoing provision requires the plaintiff to show that both its employés were prosecuted to conviction. As to the employé Taylor, it was sufficiently made to appear that the defendant made no request for his prosecution by the plaintiff. As to the employé French, it appears that upon the request of the defendant the plaintiff made a complaint against French. He was arrested, and held for appearance before the grand jury. Plaintiff's agent thereafter went before the grand jury, and presented proof of the fraud, and the grand jury, for some unknown reason, failed to find an indictment against French, and he was discharged. The court below held that all that was required of the plaintiff, when requested to prosecute the employé charged with fraud, was "to use" all diligence in endeavoring to secure a conviction. With this we agree. The language of the bond is that “such action” by the employer, not "such conviction,” shall be a condition precedent to a recovery; that is, that the employer shall use all due diligence in prosecuting the dishonest employé. The plaintiff could not control the criminal prosecution, but could only aid the district attorney to its utmost capacity in procuring a conviction. This seems to be the view originally adopted by the defendant itself of the contract, if we may judge by the language of its letter to the plaintiff, admitted in evidence, in which it asks the plaintiff to have French arrested and brought to trial, but says nothing to indicate that plaintiff must procure a conviction. Plaintiff was without power to bring French to trial, but could only lay its proofs before the grand jury, which plaintiff's agent swears was done. As the contract was drawn by the attorney or agent of the defendant, it must be interpreted as to doubtful provisions in favor of the plaintiff.

The bond provides for reimbursement to the plaintiff for such pecuniary loss as he may sustain by reason of "fraud or dishonesty” on the part of an employé. An employé might be guilty of a fraud and 120 New York State Reporter in connection with his employment resulting in loss to his employer, but which would not constitute a crime for which he could be indicted or convicted; and it cannot be said that, before the defendant is liable, there must be a conviction. There was sufficient testimony from which the jury were justified in finding that French had defaulted in the sum of $322.18. It was shown by the manager of plaintiff's store at Hornersville, Pa., that between January II and May 9, 1902, a period covered by defendant's bond, goods had been delivered to French under a written contract (in evidence) by the terms of which French was to return the goods or the money for them within a certain time named therein, and that he failed to account for such goods to the amount and value of $322.18. When plaintiff notified the defendant of the shortage of French, it also sent a statement, admitted in evidence, of the items of goods sold French, and their value; and no attempt was made by defendant to impeach the correctness of this statement, nor was the testimony of plaintiff's manager disputed. Defendant made no motion for the dismissal of the complaint as to French upon the ground that plaintiff had failed to prove the value of the goods sold him, nor did he request the judge to charge the jury that no proof of the value of such goods had been given.

As to the shortage of the employé Taylor, no competent evidence was given, except his admission, contained in a letter from him to plaintiff, admitted in evidence, in which he acknowledged an indebtedness of $13.51, and which sum defendant admits Taylor converted. As the jury allowed the full amount of $39.99, claimed by plaintiff, the judgment should be reduced by the sum of $26.48.

Judgment is reversed, and a new trial granted, with costs to appellant to abide the event, unless respondent consents to deduct the sum of $26.48 from the amount of the judgment, in which case the judgment is modified by reducing the amount thereof to $388.93, and, as so modified, is affirmed, without costs of appeal to either party. All concur.

STENDAL V. ACKERMAN.

(Supreme Court, Appellate Term. February 4, 1904.) 1. ACTION AGAINST SURETY-DISCHARGE–BURDEN OF PROOF.

The burden is on a plaintiff suing a surety to show that she herselt has not been guilty of anything altering the surety's position taken when

he gave the undertaking. 2. BOND FOR ALIMONY-WIFE'S CONDUCT-RECONCILIATION-DISCHARGE OF

SURETY.

Plaintiff obtained a judgment for separation and secured an order for alimony. On being arrested for failure to pay, the husband gave bond, with defendant as surety, conditioned that he would obey any order or judgment. After trial, but before entry of judgment, plaintiff had become reconciled to her husband, resumed marital relations, and consented to have the bond vacated. This was not done, however, and the husband again abandoned plaintiff, who began proceedings to compel support, resulting in the husband's giving another bond, covering a year, during which he made payments to plaintiff. Subsequently to these proceedings plaintiff began another action for separation, which the court held not

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