and 145 New York State Reporter Appeal from Special Term. Action by Herbert Miles against Frank E. Samuels and others. From an order restraining defendants Samuels and Goldenberg from interfering with plaintiff's possession of premises pending the trial, they appeal. Order reversed. Árgued before INGRAHAM, MCLAUGHLIN, LAUGHLIN, HOUGHTON, and SCOTT, JJ. Charles Maitland Beattie, for appellants. PER CURIAM. In view of the express declaration of the landlord that under no circumstances will she execute or consent to the assignment of a lease to the plaintiff, it is useless to continue this temporary injunction, and the plaintiff should be left to his remedy at law. The order continuing the injunction is reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. ARISTON REALTY CO. v. BERNSTEIN. 1. USURY-PLEADING. In pleading the defense of usury, the defendant must set out the usurious contract and specify its terms and the particular facts relied upon to bring the contract within the prohibition of the statute. [Ed. Note. For cases in point, see Cent. Dig. vol. 47, Usury, §§ 279, 280.] 2. SAME-ISSUES, PROOF, AND VARIANCE. . The allegations of an answer as to the terms of a contract alleged to be usurious and as to the particular facts relied on to bring the contract within the prohibition of the statute against usury must be proved substantially as alleged. [Ed. Note. For cases in point, see Cent. Dig. vol. 47, Usury, § 295.] 3. PAYMENT-PLEADING. The defense of payment is an affirmative one, and cannot be proved under a general denial. [Ed. Note. For cases in point, see Cent. Dig. vol. 39, Payment, § 158.] Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by the Ariston Realty Company against Harry Bernstein. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered. Argued before GILDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ. Jacob M. Schoenfeld, for appellant. MacLEAN, J. In this action to foreclose its lien under section. 141 of the Municipal Court act (Laws 1902, p. 1533, c. 580), the plaintiffe was met by this defense in the answer of the defendant: "That heretofore, and on or about October 1, 1905, the defendant [presumably the plaintiff] loaned the plaintiff [presumably the defendant] the sum of $50 under and in pursuance of a usurious agreement whereby the plaintiff exacted of the defendant and the defendant agreed to pay to plaintiff interest in excess of 6 per cent. per annum, and that for the loan of $50 given to the defend ant the note and chattel mortgage mentioned in the complaint [presumably, "were executed," for with the word "complaint" the sentence ends abruptly]. "To sustain his defense the defendant was bound to set up in the auswer the usurious contract, specifying its terms and particular facts relied upon to bring it within the prohibition of the statute, and to prove them substantially as alleged." Moore v. Leonard, 52 Super. Ct. N. Y. S, 13. Proving a loan of $80, $90, or $127.50, uncertain which, the defendant may hardly be said to have proved his allegation as to the contract, and that he paid his indebtedness in full was improper, as was the charge to the jury as to payment, for they may have found that fact, because the defense of payment is an affirmative defense, and one not to be interposed under a general denial. Baker v. Loring, 92 Hun, 61, 36 N. Y. Supp. 644. The judgment should be reversed, and the cause remanded for a new trial. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur. ROSENBERG v. WILKENS. (Supreme Court, Appellate Division, Second Department. June 29, 1908.) APPEAL AND ERROR-SUFFICIENCY OF EVIDENCE-HEARSAY AND CONCLUSIONS. In determining the sufficiency of the evidence to support a finding, hearsay and conclusions in the testimony must be disregarded. Hooker, J., dissenting. Appeal from Municipal Court of New York. Action by Henry E. Rosenberg against William Wilkens. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted. Argued before WOODWARD, JENKS, HOOKER, RICH, and GAYNOR, JJ. Leonard J. Reynolds, for appellant. GAYNOR, J. The plaintiff testifies that the defendant employed him to sell his carriage, agreeing to pay him for his services all that the carriage should be sold for above $450. The recovery is for $50 on the theory that the carriage was sold for $500, but there is no proof of the price it was sold for. The testimony for the plaintiff is filled with hearsay and conclusions, but they have to be disregarded. Only probative evidence counts. Again, it is doubtful if there is any proof that the carriage sold was that of the defendant. It apparently was not at the place where it is proved that the defendant's was. The judgment should be reversed. Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur, except HOOKER, J., who dissents. and 145 New York State Reporter STAUCH V. FIRE ASS'N OF PHILADELPHIA. (Supreme Court, Appellate Division, Second Department. June 29, 1908.) 1. EVIDENCE-OPINION EVIDENCE-EXPERT TESTIMONY-NECESSITY. An insurance policy stated that the premises were occupied as a dancehall, hotel, and other purposes not more hazardous, and provided that the policy should be void if the hazard was increased by any means within insured's control, and the premises were sometimes occupied by moving picture shows operated by throwing pictures on a screen by lights, etc. In an action on the policy defendants called an expert witness, who was asked whether the production of such pictures was not an increased hazard. Held, that the question was not a proper subject for expert testimony, and defendant should have proved the facts by showing how such pictures were produced, etc., and left it to the jury to decide whether they constituted an increased hazard, and hence the question was properly excluded. [Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 2334.] 2. SAME. Experts should not be permitted to dogmatically decide questions which depend on facts from which ordinary men are competent to draw conclusions; such questions being for the jury. [Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 23082310.] Appeal from Municipal Court of New York. Action by Louis Stauch against the Fire Association of Philadelphia, Pa. From a judgment for plaintiff, defendant appeals. Affirmed. Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ. S. J. Rosenblum (Frank Walling, on the brief), for appellant. It GAYNOR, J. The action was to recover a loss on a policy of fire insurance. The policy states that the insured premises were occupied as "a dance-hall, hotel and other purposes not more hazardous.' contained the clause common to all of our policies in this state that it should be void if the hazard were increased "by any means within the control of the insured." There was evidence that the insured sometimes allowed moving pictures to be shown in the place, i. e., pictures thrown on a screen by lights, etc. The defendant called a witness as an expert to answer the bald question whether the production of such pictures was not an increased hazard. The sustaining of the objection thereto was not error. It was not a case permitting of such evidence. It was for the defendant to prove the facts, i. e., how such pictures were produced, what lights were used, and how, and so on; and from such evidence it was for the jury to decide whether there was any increased hazard. A dance-hall has many lights. Experts cannot be permitted to dogmatically decide things which depend on facts from which ordinary men are competent to draw conclusions. The judgment should be affirmed. Judgment of the Municipal Court affirmed, with costs. All concur. VILLAGE OF WAVERLY v. WAVERLY WATER CO. et al. (Supreme Court, Appellate Division, Third Department. June 18, 1908.) 1. EMINENT DOMAIN-PROCEEDINGS TO TAKE PROPERTY-INABILITY TO AGREE WITH OWNER-PETITION-SUFFICIENCY. Village Law, Laws 1897, pp. 390, 434, c. 414, §§ 88, 222, require the board of trustees of a village to exercise the functions of a board of water commissioners, and authorize the board of water commissioners to purchase a system of waterworks, and, if it cannot agree with the owner thereof, it may acquire the same by condemnation. Code Civ. Proc. § 3360, provides that the petition for condemnation shall show that plaintiff has been unable to agree with the owner of the property for its purchase, and the reason of such inability. The board of trustees of a village adopted and submitted to a water company a resolution for the purchase of the water plant of the company for a specified sum. No answer was made by the company. The village subsequently requested the company to make an offer, which it neglected to do, and it refused to enter into negotia tions with the village. Held to show inability of the village to agree with the company on a price, authorizing the institution of condemnation proceedings. 2. MUNCIPAL CORPORATIONS-FUNDED DEBTS-CREATION. General Municipal Law, Laws 1892, p. 1734, c. 685, § 5, providing that an ordinance of a municipal corporation creating a funded debt shall provide for the raising annually by tax a sum sufficient to pay the interest and principal, is not applicable to a resolution adopted by the taxpayers of a village for the purchase of a water works system, for a provision for a tax can only be made for a debt certain and definite. Sewell, J., dissenting. Appeal from Special Term, Tioga County. Proceedings by the village of Waverly to condemn the property of the Waverly Water Company. From an order overruling objections to the amended petition of plaintiff, the Waverly Water Company and another, as trustee for the mortgage bondholders of the company and another, appeal. Affirmed. See 101 N. Y. Supp. 1070. Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ. Frederick E. Hawkes, for appellant Waverly Water Co. Reynolds, Stanchfield & Collin (Fred'k A. Collin, of counsel), for appellant Fred A. Sawyer as trustee for the mortgage bondholders of Waverly Water Co. J. B. Floyd, for appellant George H. Goff. Frank A. Bell and Myron N. Tompkins (Randolph Horton, of counsel), for respondent. SMITH, P. J. The purpose of this proceeding is to condemn the property of the Waverly Water Company. Under section 221 of the village law (chapter 414, p. 433, Laws 1897), the board of trustees of the village submitted to the taxpayers thereof the following question: "Shall the village of Waverly, by and through its board of trustees, acquire the existing private system of waterworks of Waverly Water Company of said village of Waverly, including its mains, lands, easements, rights, and property, at a price not to exceed the sum of one hundred and twenty-five thousand dollars ($125,000), and issue therefor the bonds of the said village of Waverly, as provided in section 128 and 129 of the village law." and 145 New York State Reporter This proposition received the affirmative vote of the taxpayers of said village. Thereafter the board of trustees passed the following resolution, which was submitted to the Waverly Water Company: "Resolved that the president and clerk of the board of trustees of the village of Waverly, N. Y., be and they hereby are authorized and directed to make an offer in writing to purchase for and on behalf of the village of Waverly, N. Y., all the plant, franchises, water rights, lands, dams, easements, pipes, mains, reservoirs, hydrants and other property essential and appurtenant to a water supply which belongs to the Waverly Water Company at and for the sum of $105,000, the same to be free and clear from any and all liens and incumbrances thereon, and that said offer be served on said company, and a duplicate thereof filed in the office of the clerk of the county of Tioga." The petition of the village further alleges that the village of Waverly has been unable to agree with the owners of the property for its purchase; that plaintiff has attempted to acquire the property affected from its owners; that upon at least two occasions it has requested the defendant the Waverly Water Company to furnish a price for which the said company would sell the said property, and the company neglected and refused to give or state a price or sum at which it would sell the same; that the plaintiff has employed competent and skillful engineers to examine the plant and property and estimate its value, and such engineers have estimated such value at the sum of $86,353; that the plaintiff has asked the defendant the Waverly Water Company for the privilege of examining its books relative to the sizes and time of laying its mains, the amount of its gross income, the expenses and other information concerning the value of such property, and such examination has been refused; that plaintiff has offered the defendant the Waverly Water Company the sum of $105,000 for such property, which offer has been ignored, and said defendant has refused and neglected to enter into negotiations with the plaintiff for the purchase of said property. Upon such allegations the defendant relies upon this appeal mainly upon two preliminary objections: First. That there is no sufficient allegation of inability upon the part of the board of trustees of the village of Waverly to agree upon a price. Secondly. That the resolution adopted by the taxpayers of the village was insufficient to authorize the condemnation of this property, inasmuch as it failed to provide for raising annually by tax a sum sufficient to pay the interest and principal of the bonds as the same should become due. As to the first objection, it is provided in section 3360 of the Code of Civil Procedure that the petition in a condemnation proceeding shall show that the plaintiff has been unable to agree with the owner of the property for its purchase, and the reason of such inability. By section 222 of the village law it is provided: "If a proposition be adopted for the acquisition of an existing system of waterworks, the board of water commissioners may purchase the same at a price not exceeding the sums specified therein. If the board cannot agree with the owners of the system for its purchase, proceedings may be taken to acquire the same by condemnation. |