attorney was attempting to show his connection with a club mentioned, where some of the transactions were alleged to have taken place. When Weiss denied his connection with the club, plaintiff's attorney was permitted to bring out, over objection and exception, that Weiss had been "indicted" in connection with the affairs of the club. This was clearly error. Van Bokkelen v. Berdell, 130 N.

Y. 141, at page 145, 29 N. E. 254.

Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event. All concur.

Where notes given for the payment of rent under a contract in the form of a lease, which provided that on payment of all the rental notes the lessee should become the owner of the machine, were made payable at the lessor's office, no demand on them is necessary before suit.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 9961021; Dec. Dig. 395.]

2. TRIAL 69 REOPENING CASE-PROOF OF DEMAND.

A request by defendant to reopen case, so as to ask one question regarding demand, should be permitted, where demand is a prerequisite to recovery.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 164, 165; Dec. Dig. 69.]

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

Action by the Champion Shoe Machinery Company against Alexander Landman. Judgment dismissing the complaint, but not on the merits, and plaintiff appeals. Reversed, and new trial ordered.

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

Blau, Zalkin & Cohen, of New York City (Maurice Brandt, of New York City, of counsel), for appellant.

Meyer Greenberg, of New York City, for respondent.

FINCH, J. There is no formal complaint. The action is one to foreclose a lien on a shoe-stitching machine.

[1] The defendant, in July, 1915, made a contract with the plaintiff, which is in form a lease of the machine, providing that certain. specified rent be paid by the defendant, with a provision that, when there has been paid $525 rent, the defendant might elect to become the owner of the machine and upon giving notice to the plaintiff the machine would become the property of the defendant. Notes were executed for 29 monthly payments of rent, and it was provided that upon default the whole amount provided for in the notes was to become due, and the plaintiff might retake possession of the machine.

For other cases see samę topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

There was a default in the payment of the notes, and at the trial there was a balance due of $300. The only evidence given was the direct examination of the defendant, called as a witness by the plaintiff. Plaintiff failed to put in any evidence of a demand for payment, and the court dismissed the complaint on that ground, holding that a demand was necessary. A demand was not necessary, because the notes were made payable at plaintiff's office.

[2] But, even if a demand was necessary, defendant's request to reopen the case, so as to ask the defendant the one question in regard to a demand, should have been allowed, since no rights of the defendant were shown to be prejudiced. Klein v. Sarnoff, 83 Misc. Rep. 447, 145 N. Y. Supp. 88.

For the foregoing reasons, the judgment is reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All con

cur.

(97 Misc. Rep. 666)

BAWO & POTTER, Limited, v. ROTHMAN.

(Supreme Court, Appellate Term, First Department. December 29, 1916.) 1. PLEADING 259-AMENDMENT-PROCEEDINGS TO DISPOSSESS TENANT.

Where, in an action to dispossess a tenant, the petition alleged that the premises were hired for one month, and the answer admitted this allegation, and then alleged that defendant occupied the premises as a yearly tenant, it was error to first deny defendant's motion for permission to amend his answer to deny the allegation that he leased the premises for a month, and then allow him to prove his affirmative defense. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 783-792; Dec. Dig.259.]

2. LANDLORD AND TENANT 308(2)—PROCEEDINGS TO DISPOSSESS EVIDENCE. Where letters from the landlord to the tenant, introduced in proceedings to dispossess the tenant, stated that the landlord "would be most happy to have you continue to use at the old rental of $30 per month" the part of the premises in controversy, and it appeared that the tenant had accepted this proposal, evidence of the arrangements under which the tenant originally went into possession should have been admitted.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 1315; Dec. Dig. 308(2).]

3. LANDLORD AND TENANT 297(2)—NOTICE TO VACATE-CONSTRUCTION.

Where a tenant was occupying a store and basement, and also certain hallway space, a notice to vacate the premises which he was occupying, but stating that, in consideration of his vacating the store space at once, he would be allowed "to occupy the hallway space for the month of May rent free," was not a notice to vacate the hallway space.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 1284, 1286, 1287; Dec. Dig. 297(2).]

Appeal from Municipal Court, Borough of Manhattan, First Dis

trict.

Action by Bawo & Potter, Limited, against Josef Rothman. From judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

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

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Joseph N. Schultz, of New York City, for appellant.

John Hovorka, of New York City (Walter L. Bunnell, of New York City, of counsel), for respondent.

LEHMAN, J. [1] The tenant appeals from a final order dispossessing him from premises occupied by him. The petition alleges that the parties entered into an agreement on the 21st day of April, 1916, whereby the tenant hired the premises

"for the term of one month, commencing on the 1st day of May, 1916, and ending on the 31st day of May, 1916."

The answer admits this allegation, and denies only the legal conclusion that the tenant's term has expired, and that he holds over and continues in possession of said premises without the permission of said landlord. It also contains an affirmative defense, in which the tenant alleges that he has occupied the premises since the 1st day of May, 1914, as—

"a yearly tenant from year to year, and that on or about the 19th day of April, 1916, the landlord and tenant herein entered into an agreement wherein and whereby the said tenancy was to continue for a period of one year from the 1st of May, 1916, and to terminate the 30th day of April, 1917."

Obviously, if the tenant admits that, on or about the 21st day of April, he leased the premises for one month, his so-called affirmative defense that on the 18th day of April he leased the premises for the term of one year is invalid. The tenant realized this fact, and at the opening moved to be allowed to amend his answer, to deny the allegation that he had leased the premises for one month, in order to permit the real facts to be shown. The learned trial justice denied this motion, but stated that he would allow the tenant to prove his affirmative defense. This ruling was, I think, clearly erroneous. It was the duty of the trial justice to allow an amendment in furtherance of justice; but, if he denied the amendment, he was bound to direct a verdict for the landlord. Certainly it is anomalous to give the tenant the affirmative right and burden of proving a defense which is inconsistent with an admission of the allegations of the landlord's petition.

[2] The trial proceeded, however, in this anomalous manner, and the tenant showed that prior to April 18, 1916, he occupied a store, basement, and elevator space in the landlord's building. On April 18th the landlord wrote to the tenant, stating that he would require possession of the store and basement. The letter adds:

"This would still leave you with the elevator space as before left to you at $30 per month, which we would be most happy to have you continue to use at the old rental of $30 per month, and to compensate you for the charges necessary we would be willing to give you free rental for the month of May."

By letter of April 21st the tenant accepted this proposed arrangement. These letters certainly constitute no leasing for the month of May. They may constitute a leasing from month to month, but certainly, in view of the fact that the tenant was told that he could continue to occupy the premises at $30 a month, with rent free for May, the parties never contemplated that the term would expire without further notice on May 31st. Also, since the tenant was to con

tinue to occupy the premises, it is impossible for the court to determine the terms upon which the tenant was to remain in possession, without proof of the arrangements under which the tenant went into possession.

[3] Nevertheless the trial justice ruled as a matter of law that the tenant was a monthly tenant, holding from month to month, and refused to admit any evidence as to the original arrangement. He also held that as a matter of law the landlord had given the tenant due notice to vacate. This notice was dated April 26th and reads as follows:

"Dear Sir: Please take notice that we are obliged to ask you to vacate the premises you are occupying, as we have leased same for a term of years. In consideration of your vacating the main store space at once, we will allow you to occupy the hallway space for the month of May, or for such part of that month as you may wish, rent free."

The tenant claims that this notice is technically defective. For the purpose of this appeal we do not need to consider these alleged technical defects, for it is not and does not purport to be a notice. to vacate the premises in question. It is a notice to vacate the premises then occupied by the tenant, viz., the store and basement; but it is in effect a permission to occupy the "hallway space" for the month of May rent free, and the landlord is now trying to oust the tenant from this space.

For these reasons, the final order should be reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All con

cur.

FIRST BANK OF NOTASULGA v. CASUALTY CO. OF AMERICA. (Supreme Court, Appellate Division, First Department. December 29, 1916.) 1. APPEAL AND ERROR 1243-APPEAL BOND-ACTIONS-CONDITION PRECEDENT.

The lapse of ten days after the service of a notice of the entry of the affirmance of the judgment or order appealed from, in compliance with Code Civ. Proc. § 1309, is a condition precedent to an action on the appeal bond, and a complaint not alleging it fails to state a cause of action.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4796; Dec. Dig. 1243.]

2. APPEAL AND ERROR

"DULY."

1245-APPEAL

BOND ACTIONS-COMPLAINT—

An allegation that notice of entry of the order on appeal was "duly" served on the principal and surety on the appeal bond is not sufficient to show that it was served 10 days or more before the action on the bond was commenced, since the word "duly," while meaning that the service was correct, both in form and substance, and within the proper time after the judgment, does not cover the lapse of the required time after the service.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 47984806; Dec. Dig. 1245.

For other definitions, see Words and Phrases, First and Second Series, Duly.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Inde.

3. PLEADING 350(3)—MOTION FOR JUDGMENT-SUFFICIENCY OF COMPLAINT. A motion by plaintiff for judgment on the pleadings submits the sufficiency of the complaint to the extent that, if it fails to state sufficient facts, a judgment cannot be based thereon.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1075, 1077; Dec. Dig.

350(3).]

Appeal from Trial Term, New York County.

Action by First Bank of Notasulga against Casualty Company of America. Judgment for plaintiff on the pleadings, and defendant appeals. Reversed.

Argued before CLARKE, P. J., and SCOTT, DOWLING, SMITH, and PAGE, JJ.

Charles A. Winter, of New York City, for appellant.

Henry A. Brann, Jr., of New York City, for respondent.

PAGE, J. The action was brought upon an undertaking given upon an appeal to the Appellate Division from a judgment of the Supreme Court. The motion was made by the plaintiff for judgment on the pleadings, consisting of a complaint and answer. The answer was held to be frivolous, and the motion granted.

[1] On this appeal the defendant maintains that the complaint is insufficient, in that it fails to state generally or specifically that “10 days have expired since the service, upon the attorney for the appellant and upon the sureties on such undertaking of a written notice. of the entry of a judgment or order affirming the judgment or order appealed from," in compliance with section 1309, Code Civ. Proc. The lapse of 10 days from the service of such a notice is a condition precedent to the maintaining of the action, and in the absence of the allegation the complaint does not state a cause of action. Porter v. Kingsbury, 71 N. Y. 588.

[2] The allegation in the complaint that copies of the judgment (order), "with notice of entry, were duly served on said defendants through their respective attorneys in said action, and on the Casualty Company of America, defendant herein," is not sufficient. “Duly,' in legal parlance, means 'according to law'; it does not refer to form merely, but includes both form and substance." Levy v. Cohen, 103 App. Div. 195, 198, 92 N. Y. Supp. 1074, 1075. Therefore, as here used, it means that the notice was correct in substance and form, and served within the time requisite to constitute a valid and legal notice of the entry of judgment. It cannot be extended to cover a lapse of time after such service before a right of action based thereon accrued, but is limited to a statement that all the necessary formalities were complied with to set the time running.

[3] When the plaintiff made a motion for judgment on the pleadings, it submitted the sufficiency of the complaint to this extent: That, if the complaint did not state facts sufficient to constitute a cause of action, a judgment could not be based thereon.

The judgment and order will therefore have to be reversed, and the motion denied, but under the circumstances without costs. Order filed. All concur.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes