and 138 New York State Reporter joinder" of issue. The justice has exercised his judicial judgment in construing the Municipal Court act as conferring power upon him to order the transfer of the action to the proper district, even after issue joined, and I am inclined to concur in his view. If it be assumed, however, that the justice had no power to transfer the action, then it would follow that the justice in the district to which it was transferred would have no power, under plaintiff's objection to entertain jurisdiction, and plaintiff's rights would be safeguarded upon appeal from the final judgment. Plaintiff would thus have an adequate remedy by appeal, and in such case a mandamus would be inappropriate. Motion denied. SCHOLLARS v. COGHLAN. (Supreme Court, Appellate Term. June 6, 1907.) COURTS-MUNICIPAL COURTS-JURISDICTION. A defense that a transfer of goods evidenced by a bill of sale is fraudulent as against the creditors of the transferror is, when no affirmative relief is asked, available in the Municipal Court, exercising only commonlaw powers. Appeal from Municipal Court, Borough of Manhattan, Eighth District. Action by Mary Schollars against William F. Coghlan. From a judgment of the Municipal Court in favor of plaintiff, defendant appeals. Reversed, and new trial ordered. Argued before GILDERSLEEVE, P. J., and FITZGERALD and GOFF, JJ. James I. Moore, for appellant. GILDERSLEEVE, P. J. The trial justice gave judgment in favor of the plaintiff, without weighing the defendant's testimony, and upon the theory that the defendant could not avail himself of a defense in the Municipal Court that a transfer of goods, evidenced by a bill of sale, from the husband of the plaintiff to her, was made without consideration and in fraud of the husband's creditors. In his opinion he states that: "While the circumstances of such transfer are by no means free from suspicion, if I were to render a verdict for the defendant, the defendant's principals would accomplish as much as, and more than, they could gain in a judgment creditor's action, and thus a court of inferior common-law jurisdiction would be exercising a power which courts of equity of unlimited jurisdiction should only assume." In this position the learned trial justice was in error. So long as the defendant asked for no affirmative relief, no equitable powers of the court were invoked. As a defense, it has frequently been held that a court of common-law powers may try the question of fraud. when the title to personal property is attacked upon that ground, and that a district court has jurisdiction in such a case. Malkemesius v. Pauly, 17 Misc. Rep. 371-373, 39 N. Y. Supp. 1095; Pelgram v. Ehrenzeweig, 51 Misc. Rep. 32, 99 N. Y. Supp. 913. This was so held by this court in a case substantially similar to the case at bar. Milella v. Simpson, 94 N. Y. Supp. 464. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur. HORWITZ v. FRANKEL et al. (Supreme Court, Appellate Term. June 6, 1907.) 1. VENDOR AND PURCHASERr-Contract of SALE-RECOVERY OF PURCHASE PRICE. The right of one receiving a check, in part payment of real estate to be conveyed at a specified future time, to recover thereon, depends on his readiness and ability to perform by making the conveyance; and where, before the time of performance, he has placed it out of his power to perform by a previous conveyance, he cannot recover, though the purchaser failed to appear at the time and place named for the purpose of expressing his willingness and ability to perform his part of the contract. [Ed. Note. For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, 88 877-899.] 2. SAME. Where a vendor in a contract for the sale of real estate has repudiated his contract, and has notified the purchaser that he will not comply therewith, the purchaser need not appear on the day set for the making of the conveyance and offer to perform his part of the contract, to be relieved from the obligations thereof. [Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, 88 877-899.] Appeal from City Court of New York, Special Term. Action by Hyman Horwitz against Frank Frankel and another, doing business under the name and style of Frankel Brothers. From a judgment for plaintiff by direction of the court, defendants appeal. Reversed, and new trial ordered. Argued before GILDERSLEEVE, P. J., and FITZGERALD and GOFF, JJ. Maurice J. Katz (Alex B. Greenberg, of counsel), for appellants. Charles H. Friedrich, for respondent. FITZGERALD, J. On the 17th day of September, 1906, the plaintiff and one of the defendants entered into a written contract for the exchange of a piece of real estate owned by the plaintiff for a piece owned by said defendant. The agreed difference in value was $5,000, which was to be paid by said defendant. At the time the contract was made the defendants gave the plaintiff their check for $1,000, part payment of said $5,000, and the exchange of title was to take place on October 15, 1906. The day after the check was given. the defendants were on their way to the bank to deposit the amount of the check when they met the plaintiff, who then told them in substance that the defendants had misrepresented the condition of their property, that it was a "negro block," and that he should refuse to exchange with the defendants, and would not convey to them the and 138 New York State Reporter property owned by him, and that he would not pass the title thereto on October 15, 1906. The defendants, therefore, made no deposit, and did not appear at the time and place fixed in the contract for the exchange of property, and as to whether or not the plaintiff was there, ready to perform on his part, the record is silent. On October 5, 1906, this action was brought by the plaintiff to recover on the check, and the defendants set up as one of their defenses want of consideration. The facts as above detailed were not disputed, although the plaintiff was called as a witness by the defendants. During the examination of the plaintiff he testified that he had parted with the title of the property described in the contract, and the subject of the proposed exchange between himself and the defendant Frankel, and was asked, "When did you sell it?" An objection made by plaintiff's counsel was sustained, and the defendants excepted to the ruling. No testimony was given upon the part of the plaintiff, except as to the making and indorsement of the check, and its presentation for payment, and refusal by the bank upon which it was drawn to honor it; and the court below directed a verdict for the plaintiff, to which direction the defendants excepted. The exclusion of the testimony sought to be adduced by the question above quoted is alone sufficient to require a reversal of the judgment. The right of the plaintiff to recover the amount of the check depended upon his readiness, willingness, and ability to perform his part of the contract of exchange; and clearly, if between the date of the contract and the time the exchange was to be consummated, he had placed it out of his power to perform on his part by a previous sale and conveyance of the property to which he was to give the defendants title, he could not retain or recover a part of the consideration paid therefor; nor, under such circumstances, would it be necessary for the defendant to appear at the time and place named for the purpose of expressing his willingness and ability to convey title on his part. The $1,000 sought to be recovered by the plaintiff was a part of the consideration for the conveyance of the plaintiff's property to the defendant, and if he was unable to convey the property at the time fixed he had no claim to any portion of such consideration. Moreover, the plaintiff having repudiated the contract and notified the defendants that he would not comply with its terms, the defendants were under no obligation to appear upon the day set for passing the titles and offer to perform on their part. Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285; Freer v. Denton, 61 N. Y. 492. Judgment reversed, and lants to abide the event. new trial ordered, with costs to appelAll concur. DAMAGES-INJURIES TO WIFE-ACTION BY HUSBAND-EVIDENCE. Where, in an action by a husband for expenses for medical attendance for his wife and for loss of services in consequence of a personal injury sustained by the wife, there was no evidence of the value of the loss of services, and the testimony showed the value of medical attendance at a specified sum, the verdict should be limited to the specified sum. [Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, §§ 503509.] Appeals from Municipal Court, Borough of Manhattan, Fifth District. Actions by Jennie Friedman and by Jacob Friedman against Max Horn. From judgments in favor of plaintiffs, defendant in each action appeals. Affirmed in action by Jennie Friedman, and modified and affirmed in action by Jacob Friedman. Argued before GILDERSLEEVE, P. J., and FITZGERALD and GOFF, JJ. Samuel D. Lasky, for appellant. Morris Cukor, for respondents. Part GOFF, J. The building No. 25 Willett street was used for workshops and synagogues. About 3,000 people each day passed up and down the stairways. The treads of these stairways were not covered, and consisted of ordinary yellow pine boards. For two or three months preceding the accident the top step of the first flight of stairs was in a hollowed, slippery condition from use and wear. of the edge of the step was worn off from the same causes. About 7 o'clock in the evening plaintiff Jennie Friedman, a workhand on one of the floors, was descending the stairs. There was no light, and she slipped on this worn step, and fell down the flight, and sustained certain injuries. All the questions arising on the evidence. were of fact. They were submitted to the justice, and he found for the plaintiff, assessing her damages at $250. It appears from the record that the justice wisely and justly exercised discretion, and the judgment should be affirmed. Jacob Friedman, the husband, sued by separate action for loss of services and expenses incurred because of his wife's injuries. Both actions were tried together. The justice found for plaintiff in the sum of $150. The only two items given were medical attendance and housework during the wife's incapacity. The doctor swore his services were worth $50. The testimony regarding the housework was exceedingly vague and indefinite, and not of such probative force or accuracy as to warrant the adoption of any measure of compensation. Besides, it appeared that the wife "went out" working as a "finisher." While she was working, the husband, a tailor, remained at home, and when he "went out" working the wife remained at home. Before the accident she had employed a woman to do housework for her. There is not a word of positive testimony that the husband paid or and 138 New York State Reporter incurred $1 for this housework. The only sum definitely named is for the doctor's services. The judgment in favor of Jacob Friedman should be modified, by reducing the same to $50, and, as so modified, affirmed, without costs. The judgment in favor of Jennie Friedman is affirmed, with costs. All concur. CHADWICK v. WALDORF STEAM LAUNDRY CO. (Supreme Court, Appellate Term. June 6, 1907.) CORPORATIONS-PLEADINGS-VERIFICATION. Under Municipal Court Act, Laws 1902, p. 1541, c. 580, § 164, the answer of a domestic corporation in an action against it need not be verified by one of its officers. [Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 2048, 2049.] Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by Frances Chadwick against the Waldorf Steam Laundry Company. Judgment for plaintiff, and defendant appeals. Reversed. Argued before GILDERSLEEVE, P. J., and FITZGERALD and GOFF, JJ. Bernard H. Sandler, for appellant. Alexander Lamont, for respondent. PER CURIAM. The answer of defendant, a domestic corporation, was verified by the attorney; and the court below struck it out, and gave judgment for plaintiff upon the complaint, on the ground that section 164 of the Municipal Court act (Laws 1902, p. 1541, c. 580) required such verification of pleadings to be made by an officer of the corporation. Climax Specialty Co. v. Smith & Sons, 31 Misc. Rep. 275, 64 N. Y. Supp. 42, a decision of this court, is a direct authority to the contrary. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. BERNARD v. LEMBECK & BETZ EAGLE BREWING CO. et al. (Supreme Court, Appellate Term. June 6, 1907.) COURTS-JURISDICTION OF PERSON-LACK OF SERVICE. Where a defendant is not served, the court is without jurisdiction as to that defendant. [Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, § 32.] Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by William Bernard against the Lembeck & Betz Eagle Brewing Company and another. From a judgment for plaintiff, the brewing company appeals. Reversed. |