(98 Misc. Rep. 46)

EASLING et al. v. INDEPENDENT BREWING CO.

(Supreme Court, Special Term, Monroe County. December 29, 1916.)

(Syllabus by the Court.)

JUDGMENT 361-MODIFICATION-POWER OF COUrt.

A decision and judgment of the court may be vacated, set aside, and corrected, under sections 723 and 724 of the Code of Civil Procedure, where the relief granted by the decision and judgment exceeds the issue which was tried by the court.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 700; Dec. Dig. 361.]

Action by Andrew W. Easling and another against the Independent Brewing Company. On motion to vacate and set aside a judgment (160 N. Y. Supp. 529). Motion granted, and judgment vacated and set aside.

Warren, Shuster & Case, of Rochester (Earl F. Case and Frank J. Hone, both of Rochester, of counsel), for the motion. Hugh J. O'Brien, of Rochester, opposed.

RODENBECK, J. There is no question of the power of the court to correct its decision and judgment on this motion. The authority of the court is regulated by provisions of the Code of Civil Procedure, but it possesses inherent power, aside from these provisions, to correct matters relating to its judgments which do not affect substantial rights and are not properly cognizable on appeal. Heath v. N. Y. Bldg. Loan & Banking Co., 146 N. Y. 260, 40 N. E. 770; Chester v. Buffalo Car Mfg. Co., 183 N. Y. 425, 76 N. E. 480; C. E. Bank v. Blye, 119 N. Y. 414, 23 N. E. 805. Both where a default has occurred and where there has been no default this power exists. Code, §§ 723, 724. Relief may be afforded where the name of a party is erroneously inserted (Weston v. Citizens' National Bank, 88 App. Div. 330, 84 N. Y. Supp. 743); where greater relief has been granted than is warranted by the decision (Fischer v. Blank, 138 N. Y. 244, 33 N. E. 1040; Id., 138 N. Y. 669, 34 N. E. 397); where the words "on the merits" have been erroneously inserted in the judgment (Clark v. Scovill, 198 N. Y. 279, 91 N. E. 800); for an error in fact, as, for instance, where the defendant was at the time of the entry of the judgment an infant (Peck v. Coler, 20 Hun, 434); for fraud (Hurlbut v. Coman, 43 Hun, 586); for want of jurisdiction, where a party has not been served (White v. Coulter, 59 N. Y. 629); and, generally, "for sufficient reason, in the furtherance of justice" (Ladd v. Stevenson, 112 N. Y. 325, 19 N. E. 842, 8 Am. St. Rep. 748; Vanderbilt v. Schreyer, 81 N. Y. 646; Wood v. Wesley, 75 Misc. Rep. 521, 135 N. Y. Supp. 876).

The irregularity or mistake claimed to exist in this case is clearly one against which the court may relieve the defendant. The action was brought to establish a trust and for an accounting. On the trial the parties were limited to the issue of the trust relation, but For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

the decision and the judgment contain matters properly determinable on the accounting, and which were not litigated on the trial. In this respect the decision and judgment exceed the issue that was tried, and the defendant on this motion is entitled to have them corrected, so as to conform to the issue which was tried. The judgment and findings, therefore, should be vacated and set aside. New requests should be filed, and new findings should be prepared and settled, if not agreed to, upon motion by the court. Requests and findings should be confined to the issue of the trust relationship, to the exclusion of all matters and issues properly cognizable on an accounting.

The motion by the plaintiff for judgment should be denied, and a stay of all proceedings should be granted until the entry of the judgment hereunder and service of notice thereof.

So ordered.

KATZ et al. v. GELFAN.

(Supreme Court, Appellate Term, First Department. December 29, 1916.) USE AND OCCUPATION 1-EVIDENCE.

Under 4 Rev. St. (8th Ed.) pt. 2, c. 1, tit. 4, § 26, and Real Property Law (Consol. Laws, c. 50) § 220, providing that any landlord may recover in an action on the case a reasonable satisfaction for the use and occupation of any lands or tenements by any person under an agreement not made by deed, the owner could not recover for three months' use and occupation of a cellar underneath premises leased to defendants; it appearing that during at least one of the three months there was a "To Let" on the basement, containing directions to inquire of defendant, which was put up either by plaintiff or his son, and that during these three months defendant paid the rent of the leased premises monthly by $77 check (the store rent being $55) and plaintiffs each month returned the balance of $22 to defendant.

[Ed. Note. For other cases, see Use and Occupation, Cent. Dig. §§ 1-11; Dec. Dig. 1.]

Whitaker, J., dissenting..

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

Action by Bernard Katz and another against Karl Gelfan. From a judgment of the Municipal Court for plaintiffs, after trial before the court without a jury, defendant appeals. Reversed, and new trial ordered.

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

Frank & Wolfson, of New York City (Nathan Frank and Leo Wolfson, both of New York City, of counsel), for appellant. Isadore Apfel, of New York City, for respondents.

FINCH, J. The action is for three months' rent for use and occupation of a cellar in East Houston street. The defendant was the tenant of the store above the cellar under a written lease, and

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there was a different tenant in the cellar. Upon the latter's removal, the defendant put a different lock upon the cellar, and kept one key to this lock, and gave another key to another man, who stored some potatoes in the cellar. Defendant also put his ice box in the cellar. According to the plaintiffs' testimony, they being the owners of the house, the defendant refused to surrender the keys to the plaintiffs, telling them that they would have to dispossess him. The testimony of one of the plaintiffs is that he demanded the rent, but did not sue for same, because he was advised to wait until more than one month's rent was due.

It is undisputed that during at least one month of the three months there was a "To Let" sign on the basement, which sign contained directions to inquire of the defendant, and which was put up either by the plaintiff or his son; that during these three months the defendant paid the rent of the store monthly by a $77 check (the store rent being $55), and plaintiffs each month returned the balance of $22 to the defendant. If plaintiffs' story is true, no recovery for use and occupation will lie. "At common law an action of assumpsit would not lie for rent, except on an express promise made at the time of the demise, and hence the necessity for the statutory enactment.” For this reason it was enacted that:

"Any landlord may recover, in an action on the case, a reasonable satisfaction for the use and occupation of any lands or tenements, by any person under any agreement not made by deed." 4 R. S. (8th Ed.) p. 2459, § 26; present Real Property Law, § 220; Preston v. Hawley, 139 N. Y. 296, 34 N. E. 906.

The evidence in this case upon which the plaintiffs rely negatives the existence of any relation of landlord and tenant, in so far as the cellar is concerned, and hence there can be no recovery. Benedict v. Jennings, 47 Misc. Rep. 134, 93 N. Y. Supp. 464; Ernst v. Zeltner Brewing Co. (Sup.) 117 N. Y. Supp. 922.

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

LEHMAN, J., concurs. WHITAKER, J., dissents.

BOXER V. BROUS.

(Supreme Court, Appellate Term, First Department.

MASTER AND SERVANT 80(9)—ACTION FOR WAGES.

December 29, 1916.)

In action for wages by garment makers employed as strike breakers, evidence of hiring and work performed held to support recovery.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 118; Dec. Dig. 80(9).]

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

Actions by Harry Boxer, by Samuel Kaufman, by David Fingerhut, and by Abraham Levine, respectively, against Harry Brous. From

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 162 N.Y.S.-23

judgments for plaintiffs in the Municipal Court of the City of New York, after trial before the court without a jury, defendant appeals. Judgment for Abraham Levine reversed, and new trial ordered; and judgments for Harry Boxer, Samuel Kaufman, and David Fingerhut affirmed.

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

Myers & Goldsmith, of New York City (Josiah Canter, of New York City, of counsel), for appellant.

Samuel Dickstein, of New York City, for respondents.

FINCH, J. The actions are all brought to recover for wages claimed to be due. The main questions presented are questions of fact.

The plaintiffs are garment makers, who were employed about two weeks during the summer of 1916 as strike breakers in a factory in Saugerties, N. Y., which factory was run under the name "Crown Coat Co." Only three of the plaintiffs testified, and they said that they had been employed by one Dubowitz to go to Saugerties on a salary of $35 a week each. Dubowitz testified that this defendant authorized him to engage the operatives at that salary. Furthermore, two of the plaintiffs testified that in conversation with defendant he confirmed the contract, and the third plaintiff testified that his contract was confirmed by the manager of the factory. Each of the three plaintiffs testified as to how long they worked, including overtime (the amount in each case being about two weeks), and the amount that he had been paid.

Defendant denied that he ever spoke to plaintiffs about employment, and that he was in any way interested in the factory at Saugerties. He was corroborated by two witnesses, one of whom claimed to be the owner, and the other the manager. They testified that they had previously been employed by the defendant. The witness Danton testified that in May, before the strike, he had gone to Saugerties to open the factory; but the filed certificate, showing that he did business in Saugerties under the name of Crown Coat Company, is dated the 10th day of July, 1916. Both the defendant's witnesses testified that they did other work in this factory besides the work of the defendant. They also testified that the plaintiffs (with the exception of Boxer) were employed on piece work, and not salary; that Boxer was employed at $25 a week; and that all of them were paid in full. These witnesses produced four receipts, purporting to be for payment in full up to the date of the receipts, which are at variance with the testimony of the plaintiffs; but the latter testified that they could not read English and did not know what they were signing. Defendant also produced tickets ordinarily used on piece work; but the plaintiffs explain these as being used to check up the efficiency of the men at their work, and to discharge any who did not work efficiently, and that the tickets were not used to fix compensation.

The questions of fact were largely questions of veracity, and there would seem no reason to disturb the findings of the trial court, except in the following particular: The plaintiff Levine was not present and

did not testify, and there is no evidence to support the judgment rendered in his behalf. The appellant in his brief states that there is no proof by Kaufman as to overtime. This is a misstatement of the fact. On page 20 of the record, on the direct examination of Kaufman, the following appears: "Q. Did you work any overtime? A. Yes; 16 hours."

The judgment in favor of Levine is reversed, and a new trial ordered, with $10 costs to appellant to abide the event. The judgments in favor of Boxer, Kaufman, and Fingerhut are affirmed, with $10 costs to respondents in each case.

WHITAKER, J., concurs. LEHMAN, J., concurs in result.

In re ITHACA TRUST CO.

(Supreme Court, Appellate Division, Third Department. December 28, 1916.) WILLS 616(5)—LIFE ESTATE WITH POWER OF DISPOSITION.

A will giving to the testator's widow and mother each one-half of the residue, with codicil stating that the mother's half "should be hers absolutely, to use up, spend, or give away, in any way she sees fit," but, if any such property remained undisposed of at her death, it should belong to the wife, if then living, the codicil confirming the will as thus modified, gave the mother power of disposition by will of her half, the wife to take only in case the mother disposed of her half by neither will nor gift.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 1422; Dec. Dig. 616(5).]

Appeal from Surrogate's Court, Tompkins County.

In the matter of the accounting of the Ithaca Trust Company, as executor. From part of a decree of the Surrogate's Court, judicially settling the account of said executor and construing the will of George F. Simpson, deceased, Mary A. Simpson-Mix appeals. Affirmed.

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

Wm. Nelson Noble, of Ithaca, for appellant.

David M. Dean, of Ithaca (Sherman Peer, of Ithaca, of counsel), for respondent.

COCHRANE, J. George F. Simpson had no children. Harriet Simpson was his mother, and Mary A. Simpson-Mix was his wife, remarried since his death. Mr. Simpson executed his will July 5, 1900, and thereby gave his residuary estate to his wife and to his mother absolutely, to be equally divided between them share and share alike, the provision for the wife to be in lieu of dower and as payment of all claims which she might have against him. In 1905 Mr. Simpson made a codicil to his will, as follows:

"I hereby will and direct that the one-half of my estate which in said will I gave to my mother, Harriet Simpson, shall be hers absolutely, to use up, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes