App. Div.] First Department, February, 1921. The case of Amory v. Washington Steamboat Co., Ltd. (120 App. Div. 818), upon which the court relied at Special Term, is distinguishable from the case under consideration. In the Amory case the agreement, as appears from the letters of the parties, was that if the plaintiff was successful in closing a sale of the Washington Steamboat Company's ships and if the company did not close with such purchaser except through the plaintiff, then the plaintiff was to look to the purchaser and not to the company for his commission. The implied agreement would follow that if the company did close with such purchaser directly or through another agent, then the plaintiff should look to the company for his commission. The defendant closed with plaintiff's customer through another agent at the same price, but on terms more advantageous than those embodied in plaintiff's proposition. The effect of this was that the defendant was liable to pay to the plaintiff, not an agreed amount, for no amount had been agreed upon between them, but a fair and reasonable commission. The court said: "Assuming that this was a failure to comply with the conditions under which the plaintiff agreed to look to the purchasers for his commission, the result of such a violation of the conditions that would follow would be that the plaintiff would be entitled to recover his commission from the defendant, based upon a quantum meruit." (p. 821.) The foundation upon which rules for the measure of damages in actions for breach of contract are based is indemnity to the injured party. "The damages for which a party may recover for a breach of contract are such as ordinarily and naturally flow from the non-performance. They must be proximate and certain, or capable of certain ascertainment, and not remote, speculative or contingent. It is presumed that the parties contemplate the usual and natural conse quences of a breach when the contract is made; and if the contract is made with reference to special circumstances, fixing or affecting the amount of damages, such special circumstances are regarded within the contemplation of the parties, and damages may be assessed accordingly." (Booth v. Spuyien Duyvil Rolling Mill Co., 60 N. Y. 487, 492; Delafield v. Armsby Co., 131 App. Div. 572; affd., 199 N. Y. 518.) In the present case the defendant knew that the damage First Department, February, 1921. (Vol. 195. that would be sustained by the plaintiff, if the defendant refused to purchase the coal, would be the commission that the seller had agreed to pay plaintiff on the sale. The amount of the commission was not specified, but that which the seller agreed to pay is presumed to have been reasonable. If the commission which the seller agreed to pay was unreasonable or extravagant, the defendant may set up that defense by answer. (Booth v. Spuyten Duyvil Rolling Mill Co., supra, 495.) In my opinion the complaint sufficiently states a cause of action. The order should be reversed, with ten dollars costs and disbursements, and plaintiff's motion granted, with ten dollars costs, with leave to defendant to withdraw the demurrer and serve an answer within twenty days after service of a copy of the order to be entered hereon with notice of entry, and upon payment of the said costs. CLARKE, P. J., DOWLING and SMITH, JJ., concur; GREENBAUM, J., concurs in result. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to defendant to withdraw demurrer and to answer on payment of said costs. HUYLER'S, Appellant, v. BROADWAY-JOHN STREET CORPORA TION, Respondent. First Department, February 4, 1921. Summary proceedings - prosecution not enjoined where grounds forming basis for injunction are matters of defense Municipal Court of New York city has jurisdiction though petitioner alleges present ownership merely independent action not maintainable for discovery. A suit for an injunction to restrain the prosecution of summary proceedings in the Municipal Court of the City of New York, on the ground that the notice terminating the lease was ineffectual and that the landlord waived the notice by accepting rent after the expiration of the notice of termina tion, is not maintainable, since such matters constitute defenses to the proceedings which may be set forth in the answer thereto. App. Div.] First Department, February, 1921. The fact that the petitioner in the summary proceedings alleged in its petition that "the petitioner is the owner" instead of alleging that "it is and was at all times mentioned herein the owner," did not deprive the court of jurisdiction. This action will not be permitted in order to obtain discovery on the ground that the petitioner in the summary proceedings could not be examined before trial, since section 1914 of the Code of Civil Procedure prohibits an action for discovery in aid of the prosecution or defense of another action. APPEAL by the plaintiff, Huyler's, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1920, denying plaintiff's motion for an injunction pendente lite and vacating a restraining order previously granted. Roger Hinds, for the appellant. Charles Goldzier of counsel [Alfred J. Wolff, attorney], for the respondent. PAGE, J.: The action is for an injunction restraining the defendant from prosecuting a summary proceeding in the Municipal Court to recover possession of the premises known as No. 133 West Forty-second street, upon which is a five-story building which plaintiff as tenant holds under a twenty-one-year lease expiring May 1, 1927. The lease contained the following cancellation clause in so far as applicable: "Fourth. The party of the second part [lessee] is hereby given leave, within five years from the first day of May, 1906, to tear down the building now on said premises and erect on said premises a new building, subject to the approval by the party of the first part [lessor] in writing, of the plans and specifications therefor; and it is further agreed, that in the event that the party of the second part shall not so erect such new structure within said five years from the first day of May, 1906, then, in that event, the party of the first part shall have the right, after the expiration of said five years, upon giving six months' notice, in writing, and upon payment of the sum of Ten Thousand Dollars ($10,000), lawful money First Department, February, 1921. [Vol. 195. of the United States, to the cancellation of this lease, for the purpose of erecting a new building on said premises.' The defendant on October 29, 1919, served upon the plaintiff a notice that it elected to terminate the lease on May 1, 1920, and further stated therein: "We will pay to you the sum of $10,000 upon your vacation of the premises; or if you prefer, we will let you have the $10,000 now and have you enter into an agreement cancelling the present lease and terminating your tenancy, on or before May 1st, 1920. If you wish to vacate earlier we will be glad to enter into such an agreement with you, as we intend rebuilding the premises as soon as possession may be had." The summary proceeding was instituted on November 10, 1920, and the landlord has accepted plaintiff's rent each month since May 1, 1920. When the notice was given the landlord was not the owner of the premises. It had signed a contract to purchase the property and did not take title until December 16, 1919. The plaintiff objects to the defendant being allowed to continue the proceeding in the Municipal Court upon the following grounds: 1. The notice was ineffective to terminate the lease for the reason that the corporation giving the same was not at the time owner of the premises. (Reeder v. Sayre, 70 N. Y. 180, 187; Scheele v. Waldman, 136 App. Div. 679, 682.) 2. The notice was not effective because the $10,000 was not paid or tendered at the time of the giving of the notice or prior to the date of its expiration. (Douglaston Realty Co. v. Hess, 124 App. Div. 508, 509.) 3. The acceptance of the rent after the expiration of the notice of cancellation was a waiver of the notice, and the tenant, having attorned to the landlord, ceased to be a holdover tenant, and there must be a new notice to terminate the lease. (Smith v. Littlefield, 51 N. Y. 539, 543; Ashton Holding Co., Inc., v. Levitt, 191 App. Div. 91, 94.) The facts above set forth may be alleged as defenses to the summary proceeding in the Municipal Court. The New York City Municipal Court Code (Laws of 1915, chap. 279, 6, subd. 2) provides that the Municipal Court shall have jurisdiction of a summary proceeding authorized by the Code of Civil Procedure to recover the possession of real estate situated wholly or partly within the district. Section App. Div.] First Department, February, 1921. 2244 of the Code of Civil Procedure provides that the answer in such proceeding may set forth a statement of any new matter constituting a legal or equitable defense. The grounds do not establish a right to injunctive relief. There is nothing in the plaintiff's claim that the Municipal Court does not have jurisdiction, because the petition states that "the petitioner is the owner," instead of alleging that "it is and was at all times mentioned herein the owner." This point was expressly passed upon in Kaminsky v. Klasko Finance Corporation (191 App. Div. 412, 415). Finally, the plaintiff alleges that it is entitled to discovery, and, therefore, the court should permit this action, as the petitioner could not be examined before trial in the summary proceeding. But "an action cannot be maintained, to obtain a discovery under oath, in aid of the prosecution or defence of another action." (Code Civ. Proc. § 1914.) The motion for an injunction was properly denied, and the order should be affirmed, with ten dollars costs and disbursements. CLARKE, P. J., DOWLING, SMITH and GREENBAUM, JJ., concur. Order affirmed, with ten dollars costs and disbursements. GEORGE ROYLE and Others, Respondents, v. GEORGE H. MCLAUGHLIN, Appellant. - First Department, February 4, 1921. Pleadings when allegations of complaint indefinite and uncertain action for price of goods sold failure to allege date of sale as making complaint indefinite and uncertain — relief by bill of particulars not equivalent to order to make definite and certain purpose of bill of particulars. On a motion to make a complaint more definite and certain the question is whether one or more of the allegations are so indefinite or uncertain that the precise meaning or application thereof is not apparent. In an action for the price of goods sold, the failure to allege the date or dates on which the goods were sold makes the allegation indefinite and |