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(97 Misc. Rep. 704)

KIRSCHNER v. MILLARD.

(Supreme Court, Appellate Term, Second Department. December Term, 1916.) COURTS 189(7)-PLEADING IN MUNICIPAL COURT-SIGNATURE TO CHECK

DENIAL.

Under Municipal Court Code (Laws 1915, c. 279) § 92, providing that the signature to a written instrument shall be taken as admitted unless the party sought to be charged thereby files a specific denial of its genuineness and a demand that it be proved, which denial and demand may be included in the answer, an answer denying the allegation of a paragraph of the complaint which alleged that defendant drew and delivered the check sued on does not require plaintiff to prove the signature, since, even if it is sufficient as denial of the genuineness of the signature, it contains no demand that it be proved.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 409, 413, 429, 458; Dec. Dig. 189(7).]

Appeal from Municipal Court, Borough of Brooklyn, Second District.

Action by Joseph Kirschner against Edward M. Millard. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued December term, 1916, before CLARK, JAYCOX, and BENEDICT, JJ.

Arnon L. Squiers, of New York City, for appellant.

CLARK, J. The action is based upon a bank check, in the usual form, signed "Edward M. Millard." The complaint alleges that the defendant for a valuable consideration drew and delivered a check to the plaintiff. The answer "denies the allegations contained in paragraph I of the complaint," which sets up the drawing of the check and the check itself.

Section 92 of the Municipal Court Code reads:

"A signature to a written instrument which is pleaded shall be taken as admitted unless the party sought to be charged thereby files with the clerk, within eight days after joinder of issue, a specific denial of the genuineness of the signature and a demand that it be proved. Such denial and demand by a defendant may be included in his answer."

This provision is new, and is substantially identical with a similar provision in the Revised Laws of Massachusetts. In Spooner v. Gilmore, 136 Mass. 248, it was held that there must be both the proper denial and the demand, and that the denial without the demand is not sufficient.

At the trial the check was admitted in evidence, without proof that the signature was the signature of the defendant; the court holding that section 92, above quoted, was not complied with by the defendant. The defendant introduced no testimony, and the plaintiff had judgment.

Counsel for the appellant claims that the plaintiff complied with the statute. He insists that his answer contains a specific denial of the genuineness of the signature. Although this claim is not strictly accurate, inasmuch as a sufficient denial would naturally follow the lan

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guage of the statute, yet, even if the denial be deemed sufficient, there is entire absence of any demand that the signature be proved. Such demand might have been made by a separate instrument, filed with the clerk, as required by section 92, or, as permitted by that section, could have been included in the answer. Nevertheless, nowhere in the record does it appear that any demand was made.

The section in question seems to be salutary and desirable. Where a signature is to be attacked, it is not unreasonable to require the announcement of that purpose in advance, in order that the party who sets up the written instrument may come prepared to prove its genuineness. The defendant herein omitted to present the issue in the manner required by the Municipal Court Code. The check, having been admitted in evidence, raises the presumption that it was issued. for value; and, this presumption not having been rebutted, the plaintiff made out his case.

Judgment affirmed, with $25 costs.

JAYCOX and BENEDICT, JJ., concur.

WERNER et al. v. BOOCHEVER.

(Supreme Court, Appellate Term, First Department. December 29, 1916.) GUARANTY 78(1, 2)—DEFENSES.

Where one guaranteed the balance of the contract price if the remainder of goods on an order were delivered, and the goods were delivered and accepted by the guaranteed party, the guarantor could not avail himself of defects in the goods as a defense or offset, when sued on the guaranty. [Ed. Note. For other cases, see Guaranty, Cent. Dig. §§ 91, 92; Dec. Dig. 78(1, 2).]

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

Action by Gustav Werner and Julius Person against George Boochever. From a judgment for defendant, after trial before the court without a jury, plaintiffs appeal. Reversed, and new trial ordered. Action upon a written guaranty.

Argued November term, 1916, before LEHMAN, WHITAKER, and FINCH, JJ.

Axel Josephsson, of New York City, for appellants.
Alexander A. Mayper, of New York City, for respondent.

FINCH, J. Plaintiffs made a contract with one Kaufman (a relative of this defendant) to bind 3,000 copies of a book, and on July 16, 1915, there remained 250 copies to be delivered by plaintiffs to Kaufman, who owed plaintiffs a portion of the contract price. Defendant, in order to induce plaintiffs to deliver the remaining 250 copies, made the agreement in suit, namely, to pay $85.55 on account of the contract price provided the plaintiffs delivered the remaining books. The books were thereupon delivered, and Kaufman has paid

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$20 on account of the amount unpaid. This action is for the balance (improperly brought for $71.30, instead of $65.55).

Defendant sets up that the books were not in proper condition, and testifies that there was not a compliance with the condition of the guaranty. There is considerable testimony that among the 3,000 books there were many that were defective (300 to 500); but it does not appear how many, if any, of these books were from the last 250 for which defendant's guaranty was given. In no event could defects in the books already delivered be a noncompliance with the condition. of the guaranty. Even if it appears that the last shipment was defective, that would be no defense, because the books were accepted by Kaufman. The latter may have a cause of action on account of the defects; but his guarantor cannot avail himself of it as a defense or offset in this action. See Gillespie v. Torrance, 25 N. Y. 306, 82 Am. Dec. 355. Kaufman's acceptance prevents any defect in the books from being availed of as a breach of the condition of the guaranty.

It follows that the judgment should be reversed, and a new trial ordered, with $30 to appellant to abide the event. All concur.

FLEMING et al. v. ROBERT GAIR CO.

In re TRAVELERS' INS. CO.

(Supreme Court, Appellate Division, Third Department. December 28, 1916.) 1. MASTER AND SERVANT 417(7)-WORKMEN'S COMPENSATION ACT-FINDING OF COMMISSION-CONCLUSIVENESS.

The finding of the State Industrial Commission is binding upon the Appellate Division, if there is any evidence to sustain it.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 417(7).]

2. MASTER AND SERVANT 417(7)—WORKMEN'S COMPENSATION LAW-CLAIM FOR INJURY-PRESUMPTION.

Under Workmen's Compensation Law (Consol. Laws, c. 67; Laws 1914, c. 41) § 21, requiring the Appellate Division to presume that the claim comes within the provisions of that law, in the absence of substantial evidence to the contrary, an award will be affirmed, where there was no evidence to the contrary, and where the State Industrial Commission was justified in finding that death resulted from an accidental injury.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 417(7).]

Appeal from State Industrial Commission.

In the matter of the claim of Mary F. Fleming and Katherine Fleming for compensation, under the Workmen's Compensation Law, for the death of James Fleming, against the Robert Gair Company, employer, and the Travelers' Insurance Company, insurance carrier. From an award made by the State Industrial Commission, the employer and the insurance carrier appeal. Award affirmed.

Argued before KELLOGG, P. J., and LYON, HOWARD, WOODWARD, COCHRANE, JJ.

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The Attorney General and Robert W. Bonynge, of New York City (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission.

Amos H. Stephens, of New York City (E. Clyde Sherwood, of New York City, of counsel, and William D. Davis, of New York City, on the brief), for appellants.

JOHN M. KELLOGG, P. J. Fleming, the deceased employé, was at work in the plant of the employer, who was a manufacturer of corrugated paper goods and boxes. At times he wheeled, or assisted in wheeling, heavy trucks. Usually one or two men assisted him in the work. At times the pulling or pushing of the truck required an extraordinary exertion, and apparently might cause a severe strain. On March 14th he left his work and went to the company's doctor for examination, with the result that the doctor found an indigent inguinal hernia, which could have been caused by an accident sustained during the course of his employment. He told the doctor that "he had received it at work." The doctor advised an immediate operation. Dr. Neary certifies that the history of the hernia shows that it "was an accident caused by his work." Fleming was operated upon March 22d and died March 25th. Dr. Neary also certifies that four days previous to March 14th, the date of the alleged accident, he examined Fleming particularly with reference to hernia and found none, and that the ether which was administered at the time of the operation caused pneumonia, which, with the shock of the operation, caused his death. The cause of the previous examination was a treatment for indigestion. A day or two before Fleming went to the hospital, and after St. Patrick's Day, he informed the foreman that he was going to the hospital-that the company's doctor advised an op- . eration. The foreman asked him what was the cause, and he told him that a few days ago he was hurt pulling a loaded truck around. The foreman asked why he had not spoken to him about it at the time, and he said that he had gone down to see the company's doctor, and that he knew all about it.

[1] The finding of the Commission is binding upon us if there is any evidence to sustain it. An accident seems to be the only suggestion which tends to account for the hernia. The death of the injured employé makes it impossible to know the exact time, place, and particulars of the injury.

[2] Section 21 of the Workmen's Compensation Law requires us to presume that the claim comes within the provisions of that law, in the absence of substantial evidence to the contrary. There is no evidence to the contrary; the evidence all favors the presumption.

Carroll v. Knickerbocker Ice Co., 218 N. Y. 435, 113 N. E. 507, is not a determination to the contrary. It was there held, by a divided court, that all the facts shown were to the contrary of the presumption, and that mere hearsay evidence was not sufficient to sustain an award, when the known facts established that an accident had not taken place. Here, as we have seen, all the facts are consistent

with the presumption. The Commission was justified in finding that death resulted from an accidental injury.

The award should be affirmed. All concur.

RAPP v. CITY OF NEW YORK.

(Supreme Court, Appellate Division, Second Department. December 15, 1916.)

1. MUNICIPAL

CORPORATIONS

STIPULATION.

1025-ACTIONS-LIMITATIONS-EFFECT

OF

Where plaintiff presented a claim against the city and was notified to appear for examination, but procured an adjournment on stipulation that it was without prejudice to the comptroller's right to settle the claim within the same period after the examination should be held as the comptroller had at the date originally fixed for the examination, the time allowed the comptroller for settlement did not begin to run on default of the claimant to appear at the postponed date for examination, but only from actual examination of claimant, and suit before the expiration of the stipulated period after the actual examination was premature.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 2196; Dec. Dig. 1025.]

2. MUNICIPAL CORPORATIONS 1012-ACTIONS-LIMITATIONS-"SUCH EXAMINATION."

In a stipulation for postponement of the time for examination of the claimant against a city that it is without prejudice to the comptroller's right to adjust the claim within the same period after such examination is held as the comptroller had at the date fixed originally for the examination, "such examination" means that which the statute gives, not one that must be held on the postponed date, if the claimant by default should make that date unavailing.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 2184; Dec. Dig. 1012.]

Appeal from Trial Term, Queens County.

Action by Catherine Rapp against the City of New York. From a judgment dismissing the complaint, plaintiff appeals. Affirmed. Argued before JENKS, P. J., and THOMAS, CARR, STAPLETON, and PUTNAM, JJ.

Ralph G. Barclay, of Brooklyn, for appellant.

William E. C. Mayer, of New York City (Lamar Hardy, Corp. Counsel, Terence Farley, and Edward S. Malone, all of New York City, on the brief), for respondent.

THOMAS, J. [1] The question is whether the action, begun on June 4th, should have awaited June 5th to give the comptroller 23 days wherein to adjust the claim. The notice of claim was presented on March 5, 1915, and the claimant was notified to appear for examination on March 12th. The claimant did not appear at that date, because of an adjournment to April 28th, procured by a stipulation that it "is without prejudice to the comptroller's right to settle or adjust the claim within the same period of time after such examination is held as the comptroller had at the date fixed originally for

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