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he made a demand upon the defendant for the value of the coupons. Whether or not such a demand was made is the only question of fact in the case, and that question has been decided in favor of the defendant upon conflicting testimony. It is perfectly clear that, under the facts and circumstances in this case, the plaintiff could not recover without a demand for a return of the property, and a refusal on the part of the defendant to comply therewith, as the defendant acquired lawful possession thereof, and without wrong on his part; and the judgment could well be affirmed for the reason that upon that question the court below found in favor of the defendant. Even if a proper demand is conceded, it is difficult to see upon what theory the plaintiff can recover of this defendant. The defendant was a duly appointed officer of the court. He rightfully, as such officer, took possession of the property in question. The plaintiff's attorney, in writing to the defendant, speaks of these coupons as having been "by mistake delivered to you as receiver.” He has accounted for the coupons, and delivered them to the referee, who had, by an order of this court, delivered them to the trustee, and they were at the time of the commencemnt of the action and at the time of the trial in possession of said trustee. The plaintiff should have applied to the court for relief from his mistake, or at least have obtained leave of the court to bring his action against the defendant as receiver. James v. James Cement Co., 8 N. Y. St. Rep. 490; Foster v. Townshend, 2 Abb. N. C. 29; Id., 68 N. Y. 203.

Judgment affirmed, with costs. All concur.


In an action on a contract for services which cannot be upheld because unconscionable, defendant may prove the value of services which plaintiff has shown were rendered under the contract.

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

Action by Robert H. Haskell against Mary L. Smith. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ.

Robert H. Woody, for appellant.

Day, Van Zandt, Walsh & Webb (Mr. Webb, of counsel), for respondent.

PER CURIAM. Upon a review of the evidence, we are of the opinion that the contract in suit is not fair and conscionable, and therefore cannot be upheld.

The court below permitted the plaintiff to show what services he rendered under the contract, but refused to allow the defendant to prove the value thereof. We think, under the circumstances, that this was error. Matter of Pieris, 82 App. Div. 466, 470, 81 N. Y. Supp. 927.

and 120 New York State Reporter We are also of the opinion that the court erred in refusing to permit the defendant to prove the practice and procedure in the Second Department relative to condemnation proceedings, since such testimony tended to show that the plaintiff had been guilty of neglect in the case. For these reasons the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

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




A provision in a lease that in case of a sale of the premises the landlord should give the tenant 60 days' notice in writing, and should return a de posit made to secure the rent, together with $500, to surrender the premises, was merely to compensate the tenant for a surrender of the premises if the landlord desired to sell the property free from tenancy, but was not a provision which the tenant could claim the benefit of in case of

a sale to a purchaser who was willing to continue the lease. 2. SAME-TERMINATION OF LEASE-NOTICE OF SALE.

The mere sale and conveyance of the demised premises by the lessor to a purchaser, and written notice thereof to the tenant, did not have the

effect of terminating the lease. Appeal from Municipal Court, Borough of Manhattan, Third District.

Summary proceedings to remove a tenant by Ann Foley against Alphonse Constantino, tenant. From a final order in favor of the landlord, the tenant appeals. Affirmed.

Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JT.

Jones Cochrane, for appellant.
W. K. Van Meter, for respondent.

GIEGERICH, J. These proceedings were instituted to remove the tenant from the premises known as No. 552 West Broadway, borough of Manhattan, New York City, after a default in the payment of rent for two months, viz., the months of May and June, 1903. The premises in suit were leased to the tenant by one Ann Quirk, then the owner in see, by a written lease dated the 29th day of July, 1901, for the term of five years from April 1, 1901, at the monthly rent of $265. The lease, among other things, contains two clauses-one for a deposit of $265 to secure the payment of rent and the performance of covenants, and the other provision “that, should the party of the first part sell the said premises, she shall give to the said party of the second part (tenant) sixty days' notice in writing, said sum of two hundred and sixty five dollars ($265.00) together with five hundred dollars ($500) to surrender said premises, and the said party of the second part on receiving said sixty (60) days' written notice, said sum of two hundred and sixty five dollars ($265.00) together with five hundred dollars ($500.00), will surrender said premises to the said party of the first part, and not otherwise." Subsequent to the execution of the lease, viz., on or about January 30, 1903, the lessor, Ann Quirk, conveyed the premises to the petitioner, of which conveyance the tenant had due notice. The tenant having failed to pay the rent for the months first above mentioned, these proceedings were instituted. The answer, after specifically denying each material allegation of the petition, sets up a counterclaim for $765, alleged to be due under the covenant above quoted; the tenant averring "that the said Ann Quirk did sell and convey said premises to Ann Foley on or about February 2, 1903, and that neither said Ann Quirk nor said Ann Foley, upon whom said agreement is also binding, have in any respect complied with the provisions of said agreement or covenant, in that they have not, nor either of them, given to said Constantino, tenant, the notice provided for as aforesaid, except that on March 9, 1903, they notified him of such conveyance, nor given or paid to him either of the sums so provided to be given or paid to him in the event of such sale." It is clear to us that the provision that the landlord, in the event of sale, “was to give sixty days' notice in writing, the said sum of $265, together with $500, to surrender said premises,” means literally what it says, namely, not that notice of sale was intended, but notice to surrender, and that $265 and $500 should also be given to the tenant to surrender; i. e., as compensation for the surrender and loss of the remainder of the term, if the landlord so desires to end the lease. It is not, therefore, a provision which the tenant could claim the benefit of in the event of a sale to a purchaser who should be willing to continue the lease, as the plaintiff apparently was. It was merely the customary precaution, taken by an owner wishing to sell, so that the property might be sold free of tenancies, if so desired. It was an option, not to the tenant, but to the landlord. The record is barren of any proof that the landlord exercised such option. The mere sale and conveyance of the property by the lessor to the petitioner, and notice thereof to the tenant, did not, as claimed by the latter, have the effect of terminating the lease; on the contrary, it continued unimpaired; and, since it is undisputed that the rent has not been paid for the period in suit, and there being no valid counterclaim or offset to the claim for such rent, the final order in favor of the petitioner was properly made. The final order should therefore be affirmed, with costs.

Final order affirmed, with costs. All concur.


(Supreme Court, Appellate Division, Third Department. March 2, 1904.) 1. SALES-WARRANTY-DEFECTIVE MACHINERY-INJURY TO OPERATOR-ACTION


A corn-husking machine was sold with warranty that it would do good work, and was well made, and of good material. While the purchaser was operating the machine, he threw off the gearing to clean the rollers, but they commenced to revolve, and injured him. A part of the gearing

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and 120 New York State Reporter had become broken. Held, that damages for the injury could not be recovered in an action on the warranty, as the injury was not within the

contemplation of the warranty. Appeal from Trial Term, Rensselaer County.

Action by Daniel Birdsinger against the McCormick Harvesting Machine Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

The defendant, in September, 1901, sold to the plaintiff and his brother a machine known as a "corn husker and shredder. In the use of this machine the plaintiff had his hand caught between two rollers, called the "snapping rollers,” the office of which was to take the corn from the stalks as the stalks passed through between the rollers. His hand was so mutilated that it was required to be amputated. The contract of sale of this machine contains the following provision: “It is distinetly understood that the above-mentioned machine is purchased subject to the following warranty, and no other:

McCormick Harvester Machine Company warrants this machine to do good work, to be well made, of good materials, and to be durable if used with proper care.” This action is brought upon this warranty, the plaintiff claiming to be entitled to recover for his injuries as consequential damages for a breach thereof. In operating the machine the plaintiff stood upon a platform directly in front of the machine about three feet back of these snapping rollers into which he pushed the corn stalks. These rollers at times became clogged, and in order to clean them it was necessary to stop the rollers. This was done by means of what is called in the book of instructions a "safety lever," the arm of which is placed directly in front of the man operating the machine, and underneath the board over which the corn stalks are pushed into the inachine. By pushing forward slightly with his body upon this lever the gearing to which these snapping rollers are attached is thrown off, so that they cease to revolve, and may be safely cleaned. Upon the day in question, the rollers having become clogged, the plaintiff pressed upon the lever, the gearing was thrown off, and the rollers ceased to revolve. He thereupon proceeded to clean out the rollers with his land. Suddenly, without warning, the rollers began to revolve, his hand was caught, and the injury occasioned. There is eridence that a part of this gearing by which the rollers were made to rerolre had become broken; that this caused a bolt to slip out of its place which there. upon became wedged in the gearing in such a way as to render ineffective this safety lever; that these rollers were thereby set in motion notwithstanding the proper use of the safety lever. The jury has found that the defendant violated its warranty in failing to provide a durable machine, well made, and of good materials, and that the plaintiff's injury was due to the failure of the defendant to provide a machine as warranted; and upon these findings, under the direction of the court, a verdict for substantial damages was rendered in behalf of the plaintiff. An appeal bas been taken from the judgment and from the order denying the motion for a new trial.

Dyer & Ten Eyck (E. Countryman, of counsel), for appellant. Charles I. Webster (William J. Roche, of counsel), for respondent.

SMITH, J. In Rich v. Smith, 34 Hun, 136, the plaintiff sued upon a breach of warranty of a mare. She was in fact vicious, and ran away, injuring the plaintiff, the mare, and the carriage. The trial court stated the measure of damage to be the difference between the value of the mare as she was and her value if she had been as warranted. Presiding Justice James C. Smith, in writing for affirmance of the judgment appealed from, in part says:

"The rule laid down by the judge is that which applies in the case of a general warranty of personal property sold. Where, however, the warranty is special, having reference to a particular purpose for which the property is to be used out of the ordinary course, a different rule applies. In the latter class of cases the vendee is entitled to recover in case of a breach of the special warranty such damages as either arise naturally-that is, in the usual course of things--from the breach itself, or such as may reasonably be supposed to have been contemplated by the parties, when making the contract, as the probable result of the breach. Passinger v. Thorburn, 34 N. Y. 63A, 90 Am. Dec. 753, and cases cited there by Davies, C. J. But where the warranty is general, an accidental damage, even in the vendee's own affairs, is not regarded. As was said by Cowen, J., in Hargous v. Ablon, 3 Hill, 472, "The search is for immediate and necessary consequences.'”

In Passinger v. Thorburn, 34 N. Y. 634, 90 Am. Dec. 753, the rule is stated in the head note:

"Where there is a special warranty and a breach, the plaintiff is entitled to such damages as were the natural and necessary consequence of the breach."

In White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13, it was held that upon the sale of Bristol cabbage seed there was an implied warranty that the seed was Bristol cabbage seed, and also that such seed was free from any latent defect arising from the mode of cultivation. In that case the measure of damage adopted was the difference in value between the crop raised from the defective seed and a crop of Bristol cabbage such as ordinarily would have been produced that year. In Hoe v. Sanborn, 36 N. Y. 98, where a saw was sold with warranty, the court held the measure of damage to be the difference in the value of the saw as delivered and a saw of the quality as warranted. Parker, J., in writing for the court, said:

"There being no warranty that the saw was fit for any special use, there is no opportunity for the application of the rule that the vendee is entitled to such damages, beyond those contemplated by the rule above stated, as were the natural and necessary consequences of the breach, which has been applied to cases where the warranty has been so specific. Passenger v. Thorburn, 35 Barb. 17; Id., 34 N. Y. 634, 90 Am. Dec. 753. It is only to such cases that this rule has been applied. It was said in Hargous v. Ablon, 5 Hill, 473: 'A warranty or promise concerning a thing being generalthat is to say, not having reference to any purpose for which it is to be used out of the ordinary course—the law does not go beyond the general market in search of indemnity against its breach.' See, also, Milburn v. Belloni, 34 Barb. 607. The offer to show the damages which the defendant had sustained consequent upon the failure of the saw to operate was therefore properly overruled."

It may be difficult to sustain the rule that only in case of special warranty can consequential damages be recovered. It has been held that, if a gun or a boiler explodes, a vendee may recover consequential damages for a breach of the warranty that it was well made and sound. Primarily, the contract of warranty is simply a contract to make good to the vendee the value of the article sold. In no case have further and consequential damages been allowed, unless there is indicated an intention to contract as against such further damage. While generally that intention is indicated by a special warranty, it may be, as in the warranty of a gun or a boiler as sound and well made, that the warrantor is presumed to have contemplated as damages personal injuries as being the natural and probable result of a breach of the warranty. In the case at bar we find no special war

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