does not make her a resident of that county, within the meaning of section 984 of the Code. The motion is granted, with $10 costs. Motion granted. NADLER et al. v. A. EPSTEIN NOVELTY CO. et al. (Supreme Court, Appellate Term, First Department. November 19, 1914.) GUARANTY (§ 30*)—EXECUTION-PERSONAL LIABILITY. Where a written guaranty, providing that E. Novelty Co. guaranteed payment of bills for merchandise delivered to T., was signed "A. Epstein," the signer was liable individually on the guaranty, though the company was not. [Ed. Note. For other cases, see Guaranty, Cent. Dig. §§ 30-32; Dec. Dig. § 30.*] Appeal from Municipal Court, Borough of Manhattan, Sixth District. Action by Max Nadler and another, doing business as Nadler & Rebhun, against the A. Epstein Novelty Company and Albert Epstein. From a Municipal Court order in favor of defendants, plaintiffs appeal. Reversed as to Albert Epstein individually, and judgment rendered against him. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Edward P. Sobel, of New York City, for appellants. SEABURY, J. The plaintiffs appeal from so much of the judgment entered below as awards judgment in favor of the defendant Albert Epstein. The action is upon a written agreement of guarantee. The agreement provides that "the Epstein Novelty Company guarantees the payment of bills for merchandise delivered to Max Teller," and is signed, "A. Epstein." It was proved upon the trial that upon the strength of defendant's signature to the guaranty the plaintiffs sold goods to Teller of the reasonable value of $43.18. Nowithstanding that the agreement reads, "The A. Epstein Novelty Company guarantees," etc., the fact that the defendant signed the agreement individually renders him liable for the obligation incurred under the agreement. Electric Carriage Co. v. Herman, 67 Misc. Rep. 394, 123 N. Y. Supp. 231. The court below properly dismissed the complaint as to the A. Epstein Novelty Company, because that company never signed the agreement of guaranty. The court erred, however, in dismissing the complaint against A. Epstein individually. The defendant Epstein not having proved any defense to the claim upon which he is sued, the judgment is reversed, with costs, and judgment is awarded for the plaintiffs for $43.18, with interest from December 19, 1913, together with the appropriate costs in the court below. All concur. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes (87 Misc. Rep. 333) · ALDEN S. SWAN & CO. v. MCNAUGHTON. (Supreme Court, Appellate Term, First Department. November 19, 1914.) 1. PLEADING (§ 121*)-DENIALS-DENIAL ON INFORMATION AND BELIEF. A denial on information and belief that goods were sold by plaintiff to defendant was not frivolous, as goods might have been sold and delivered to persons duly authorized to purchase them without defendant having any knowledge thereof; and hence the facts were not such as were presumptively within defendant's knowledge. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 245-248; Dec. Dig. § 121.*] 2. PLEADING (§ 121*)-DENIALS-DENIAL ON INFORMATION AND BELIEF. A denial on information and belief that goods alleged to have been sold by plaintiff to defendant were of the reasonable value alleged by plaintiff was not frivolous, on the ground that the facts were presumptively within defendant's knowledge. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 245-248; Dec. Dig. § 121.*] Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Alden S. Swan & Co. against William D. McNaughton. From a judgment in favor of plaintiffs, defendant appeals. Reversed, and new trial ordered. . Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Henry Seiden, of Brooklyn, for appellant. Russel W. Leary, of New York City (William A. Reynolds, of New York City, of counsel), for respondent. COHALAN, J. [1, 2] Upon the return day of the summons in this action judgment was rendered in favor of the plaintiff, upon the ground that the answer was frivolous. The second, third, and fourth paragraphs of the complaint set up allegations of a sale of goods, wares, and merchandise to the defendant between the 6th day of January and the 24th day of July, 1913, at "the agreed price and reasonable value" of $331.29, and, except the sum of $150, that no part of the same had been paid. The answer is a denial of this allegation “upon information and belief." This answer was held to be bad by the court below, because it was claimed the facts set forth in the complaint are presumptively within the knowledge of the defendant. No such presumption can properly be said to exist. Goods may have been sold and delivered to persons duly authorized to purchase the same by the defendant, of which he may not have had the slightest knowledge or information; hence the defendant's denial of the purchase upon information and belief was perfectly legal. The same may also be said as to the allegation of the "reasonable" value of the goods. The complaint was drawn so that the plaintiff could give proof of the reasonable value of the goods, and the defendant might truthfully deny upon information and belief that the amount charged in the complaint was the reasonable value thereof. The answer was good, and the judgment must be reversed. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur. FEDERAL SIGN SYSTEM v. BERGER. (Supreme Court, Appellate Term, First Department. November 19, 1914.) 1. EVIDENCE (§ 404*)-PAROL EVIDENCE-WRITTEN CONTRACT-CAPACITY OF PARTY-GUARANTY. Plaintiff sued defendant as guarantor on a written lease made by G. with plaintiff for the use of an electric sign. The agreement recited that it was made between plaintiff and G., and was signed L. H. G., "Lessee, Sole Owner." Between the words "G." and "Sole Owner" appeared defendant's signature, and on the side of the agreement was a notation by the salesman, "Will guarantee credit." Held, that such notation was no part of the contract, and that parol evidence to explain the capacity in which defendant signed, and that at the time of the signature defendant said that he would guarantee the contract, was not objectionable, as varying the terms of the agreement. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1813-1817; Dec. Dig. § 404.*] 2. GUARANTY (§ 53*)-ASSIGNMENT OF CONTRACT-RELEASE OF Guarantor. Where defendant guaranteed G.'s performance of a sign lease, providing for payment of weekly rentals, the fact that G. sold his business to a third person, and thereafter plaintiff billed the weekly sign rentals to the assignee did not release defendant from the guaranty, especially as plaintiff had recovered a judgment for rentals during several weeks, when G.'s assignee failed to pay. [Ed. Note. For other cases, see Guaranty, Cent. Dig. §§ 64, 66; Dec. Dig. § 53.*] Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by the Federal Sign System against Joseph Berger. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Paine & Harrison, of New York City (David Paine, of New York City, of counsel), for appellant. Warshow & Berger, for respondent. BIJUR, J. [1] Plaintiff sued defendant as guarantor on a written "lease" made by one Goldberg with the plaintiff for the use of an electric sign. The agreement recites that it is made between plaintiff and said Goldberg, and it is signed, "L. H. Goldberg, Lessee, Sole Owner." Between the words "Goldberg" and "Sole Owner" appears defendant's signature. If the agreement in that form is not to be construed, on its face, as meaning that defendant is either a party or a guarantor, then his signature creates an ambiguity, and parol testi *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes mony was properly admitted to explain the capacity in which defendant signed. Esselstyn v. McDonald, 98 App. Div. 197, 90 N. Y. Supp. 518. Such evidence was given by plaintiff's salesman, who testified that at the time of the signature, Berger said that he would guarantee the contract, and the salesman thereupon made a notation on the side. of the agreement: "Will guarantee credit." This notation was not part of the contract. The parol testimony, therefore, did not, as defendant claims, vary the terms of the agreement. [2] The defendant also urges that, because it was shown that Goldberg had sold his business to a third party and plaintiff had billed the weekly rental of the sign to such third party, there had been such a change in the principal contract as released defendant, even if he were to be held otherwise as guarantor. The facts recited do not, however, indicate any change in the contractual relations of plaintiff and Goldberg. Moreover, any doubt on that point is dispelled by proof, admitted without objection, that plaintiff recovered against Goldberg a judgment for rental during the several weeks when Goldberg's assignee failed to pay. Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur. MARKOWITZ v. EMPIRE CITY IRON WORKS. (Supreme Court, Appellate Term, First Department. November 19, 1914.) MASTER AND SERVANT (§ 276*)-ACTION FOR INJURIES EVIDENCE. In an action under the Employers' Liability Act (Consol. Laws, c. 31, §§ 200-204) for personal injuries while at work in defendant's plant, where it was impossible to understand from the record how plaintiff claimed that the accident occurred, a judgment in his favor will be reversed. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 950952, 954, 959, 970, 976; Dec. Dig. § 276.*] Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Max Markowitz against the Empire City Iron Works. From a judgment in favor of plaintiff, after a trial before a judge without a jury, defendant appeals. Reversed, and new trial granted. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Walter G. Evans, of New York City (O. M. Quackenbush, of counsel), for appellant. Schwartz & Taubenfeld, of New York City (Abraham M. Schwartz, of New York City, of counsel), for respondent. BIJUR, J. Plaintiff sued under the Employers' Liability Act for personal injuries received while at work in defendant's plant sawing a large angle iron. Neither from the record nor from the brief of respondent's counsel am I able to ascertain what respondent's theory is as to the negligence alleged. The notices served under the act are too vague to be taken into serious consideration; but that seems to be of little importance, since apparently respondent contends that the employer failed to furnish plaintiff with a reasonably safe place in which to work, safe appliances, and sufficient help, all of which might apparently, under the circumstances of this case, warrant a recovery at common law. The judgment must, however, be reversed, because from the record it is not possible to understand how plaintiff claims that the accident occurred. At one point he says that "they put me on the two horses." At another point he says he was standing on the floor. Later he says, "I was going along, and that horse was shaking on one side," and that he was being helped by two men; but again he says that previous to the accident he was being helped by only one man. Further on he testified that the angle iron which he was sawing was resting on two horses, and "I was bending down on one side, and the horses was broke at that time, and I was knocked down at the angle iron." Asked by the court which horse broke, he answered, "Not broke, your honor; just shaking on the side." He also speaks of the saw he was holding as having broken. It is not possible to determine from the record whether one of the horses broke, or merely fell down, or only bent down, and whether this occurrence was due to any defect in the horses, or the manner in which the plaintiff worked or was required to work or the absence of help, or whether the plaintiff was injured by striking the angle iron, or being hurt by his saw, or merely by a fall, and, if the latter, what it was that caused him to fall. No liability chargeable to the defendant can be predicated upon such a record, and, whatever sympathy may be felt for the plaintiff by reason of the slight injury which he suffered, no basis for any obligation on the part of the defendant to compensate him therefor has been laid by the evidence. Kenney v. Ocean S. S. Co., 58 Hun, 603, 1 N. Y. Supp. 412. Judgment reversed, and a new trial granted, with costs to appellant to abide the event. All concur. (87 Misc. Rep. 330) HAUSS v. SAVARESE. (Supreme Court, Appellate Term, First Department. November 19, 1914.) 1. COURTS (§ 188*)-MUNICIPAL COURT-JURISDICTION-SUIT TO FORECLOSE "LIEN UPON A CHATTEL." Under Municipal Court Act (Laws 1902, c. 580) § 139, providing that no action shall be maintained in the Municipal Court of the city of New York which arises on a contract of conditional sale of personal property or a chattel mortgage made to secure the purchase price of chattels, except an action to foreclose the lien, and that for the purpose of that section an instrument in writing as above stated shall be deemed a lien upon a chattel, a written conditional sale agreement for the sale of personal property is deemed a "lien upon a chattel," and an action to foreclose such lien is within the jurisdiction of the Municipal Court. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 412, 439, 440, 442, 447, 448, 451, 452, 454, 458, 464, 465, 467, 468; Dec. Dig. § 188.*] For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |