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34 Sup. Ct. 433, 58 L. Ed. 612. Defendant, therefore, should not now invoke the act of 1905 to relieve it from its obligations under the contracts in suit.

I advise that the order sustaining plaintiff's demurrer should be affirmed, with $10 costs and disbursements.

THOMAS, CARR, and STAPLETON, JJ., concur. JENKS, P. J., not voting.

ZBIESKI V. GINSBURG et al.

(Supreme Court, Appellate Division, Fourth Department. December 6, 1916.) 1. NEW TRIAL 164-DISMISSAL-GROUNDS.

When the jury, in answer to the only question submitted in an action for damages for personal injuries, found that plaintiff had not released defendant from liability, the effect of plaintiff's failure to restore $130, which he had received upon an alleged prior settlement, was not before the court, and it was error for him to set aside the verdict and dismiss the complaint, upon the ground that, as a matter of law, such failure to restore barred recovery.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. $ 333; Dec. Dig.

Om 164.] 2. TRIAL 3-ORDER OF TRIAL OF SEPARATE ISSUES.

Where plaintiff, an able-bodied man, sued to recover damages for a slight injury resulting in loss of part of his thumb, without restoring $130 he had ceived by way of settlement, and at the trial no circumstances were presented likely to unduly arouse the jury's passions or prejudice, or deny defendant a fair trial of the question of the release, along with the main issue, it was error in the court to order a severance of such issues.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 6, 7; Dec. Dig. ww3.]

Appeal from Trial Term, Erie County.

Action by Martin Zbieski against Solomon Ginsburg and George Bingham, individually and as receivers of Louis Sukernek, bankrupt. From a judgment setting aside verdict and dismissing the complaint, plaintiff appeals. Reversed, and remitted for new trial upon all the issues.

Argued before KRUSE, P. J., and FOOTE, LAMBERT, MERRELL, and DE ANGELIS, JJ.

William J. Flynn, of Buffalo, for appellant.
Ralph S. Kent, of Buffalo, for respondent.

MERRELL, J. [1] We are of the opinion that the trial court erred in dismissing plaintiff's complaint, upon setting aside the verdict of the jury to the effect that the plaintiff had not released defendant from liability prior to the commencement of the action. The question as to whether plaintiff could maintain an action for damages without first having restored what he had already, as he claims, misconceivedly received by way of settlement, was of no concern in the determination of the question submitted to the jury. The effect of plain

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

tiff's failure to restore was a matter to be determined upon the trial of the action upon the merits, and under certain conditions might bar a recovery. But we do not think that question was properly before the court when the complaint was dismissed; nor could it properly then be held, as matter of law, that such failure to restore barred a recovery.

The question as to whether a fraud was perpetrated upon plaintiff, when he was paid the $130 and signed the release, thereby relieving him from paying or tendering back the moneys paid him, was never passed upon by the jury.

[2] We do not think that the circumstances of this case were such as to justify a severance of the issues by the learned trial court, and a trial of the issue as to the validity of the release prior to that of the main issue. In McGurty v. D., L. & W. R. R. Co., 172 App. Div. 46, 157 N. Y. Supp. 285, we held that, to justify such severance and trial, it should appear that the injuries suffered were such as would be likely to arouse undue sympathy and passion in the minds of the jury, and to a degree that would be likely to cause them to overlook the question as to whether the damages had been released. The facts in this case do not bring it within the rule there laid down. Here the plaintiff, a strong, able-bodied man, suffered only a slight injury, resulting in the ultimate loss of a part of his thumb. At the time of the trial there were apparently no circumstances that would be likely to unduly arouse the passion or prejudice of the jury, or that would deny defendant a fair trial of the question of the release, along with the main issue. We are of the opinion, therefore, that the order severing the issues should be set aside, and that the issues should be tried together.

As to the dismissal of the plaintiff's complaint, the order appealed from should be reversed, and the case remitted to the Trial Term for a new trial upon all the issues, without costs of this appeal to either party. All concur.

EASTMAN V. BRITTON et ux. (Supreme Court, Appellate Division, Fourth Department. December 6, 1916.) EVIDENCE ww441(8) Parol EVIDENCE-VARYING WRITTEN CONTRACT.

Where the contract for the sale of a house being built appeared on its face to be a complete contract, covering all the terms of sale and all that the seller was to do in finishing the house, etc., the purchaser could not give testimony of conversations, prior to and at the time of signing the contract, to the effect that defendant guaranteed the foundation wall to be sufficient, since this would vary the terms of the written contract.

[Ed. Note.--For other cases, see Evidence, Cent. Dig. 88 1719, 1723–1728, 2032–2034; Dec. Dig. Om441(8); Contracts, Cent. Dig. $ 1616.] Appeal from Trial Term, Monroe County.

Action by Mary Pryor Eastman against Willis N. Britton and wife. From a judgment for plaintiff upon the verdict, and from order denying new trial, the named defendant appeals. Reversed, and new trial ordered.

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

Argued before KRUSE, P. J., and FOOTE, LAMBERT, MERRELL, and DE ANGELIS, JJ.

Charles B. Bechtold and McInerney & Bechtold, all of Rochester, for appellant.

John H. Hopkins, of Rochester, for respondent.

PER CURIAM. Plaintiff has recovered a verdict for breach of an alleged parol warranty of the foundation wall of a dwelling house. The dwelling was in process of construction by defendant at the time plaintiff began negotiations with defendant for its purchase. The roof was on and it was ready for the plastering. On January 11, 1911, the parties entered into a written contract for sale of the property by defendant to plaintiff. It appears on its face to be a complete contract, covering all the terms of sale and all defendant was to do, to finish the house and to grade the lot, put in sewer and sidewalks, and set out trees.

Plaintiff was allowed to give testimony of conversations, prior to and at the time of signing this contract, to the effect that defendant guaranteed the foundation wall to be a good and sufficient wall. We are of opinion that this testimony tended to vary the terms of the written contract, and that defendant's objection to its admission on that ground should have been sustained. We refer to the following authorities in support of this conclusion: Eighmie v. Taylor, 98 N. Y. 288; Thomas v. Scutt, 127 N. Y. 133, 27 N. E. 961; Mead v. Dunlevie, 174 N. Y. 108, 66 N. E. 658; Lese v. Lamprecht, 196 N. Y. 32, 89 N. E. 365; Studwell v. Bush Co., 206 N. Y. 416, 100 N. E. 129; Seitz v. Brewers' Refrigerating Mach. Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837; Colt v. Demarest & Co., 159 App. Div. 394, 144 N. Y. Supp. 557. We are also of opinion that there was no implied warranty as to the sufficiency of this wall.

The judgment and order should therefore be reversed, and a new trial ordered, with costs to the defendant to abide the event. Reversal is upon questions of law only. We do not pass upon the weight of the evidence.

FOXALL V. SEARCH et al. (Supreme Court, Special Term, Monroe County. January 10, 1917.) 1. ACTION C50(1)-JOINDER OF CAUSES.

A complaint which joined separate causes of action against two corporations, although the relief sought against each was incidental to that sought against two defendants, who were agents of both corporations, was in contravention of Code Civ. Proc. $ 484, providing that all causes of action united must affect all parties to the action.

(Ed. Note.-For other cases, see Action, Cent. Dig. $ 511; Dec. Dig

m50(1).] 2. ABATEMENT AND REVIVAL COMPLAINT-DEMURRER—GROUNDS.

Under Code Civ. Proc. $ 488, subd. 4, providing that a defendant may

demur to the complaint where there is another action pending between Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

the same parties for the same cause, a demurrer to the complaint on the ground of a previous action pending, which appears to be only between some of the same parties, will be overruled.

[Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. 88 73–85; Dec. Dig. 9.] Action by William H. Foxall against Bertram L. Search and others. Demurrer to the complaint sustained, with leave to amend.

Francis S: Macomber, of Rochester (John Desmond, of Rochester, of counsel), for plaintiff.

James M. E. O'Grady, of Rochester, for defendant Search.

SAWYER, J. The amended complaint sets out as its first cause of action that the defendant Keyes is the president and principal stockholder of the defendant Duncan Electric & Ice Company, and that the defendant Search is the representative of that company in the city of Rochester, N. Y.; that in the month of August, 1910, this plaintiff and one Willard J. Smith were employed by the defendants Keyes and Search to sell the bonds of said Duncan Electric & Ice Company upon commission. It then alleges performance upon the part of Foxall and Smith, nonpayment by the defendants Keyes and Search of the commissions earned, and an assignment of Smith's interest in the claim to plaintiff. The prayer for relief is general to both causes, but where applicable to the first demands judgment of recovery appropriate to the cause of action against the defendants Keyes and Search, and that plaintiff be given a lien upon the stock of defendant Duncan Electric & Ice Company still in its possession, due to or to be issued to the defendants Keyes and Search, and for an injunction restraining it from issuing or transferring any of its capital stock, due to or owing those defendants, or either of them.

For a second cause of action the amended complaint alleges that defendant Keyes was the president and controlling stockholder of the defendant Mangum Electric Company, and that defendant Search was the local representative of such company in the city of Rochester, N. Y.; that on or about April 1, 1911, this plaintiff and one Willard J. Smith were employed by the defendants Keyes and Search to sell the bonds of said Mangum Electric Company upon commission. It then sets forth performance upon the part of Foxall and Smith, and nonpayment by the defendants Keyes and Search of the commissions earned, and an assignment of Smith's interest in the claim to plaintiff. The prayer for relief, so far as it relates to this cause of action, demands' appropriate judgment of recovery against the defendants Keyes and Search, and that plaintiff be given a lien upon the stock of defendant Mangum Electric Company still in the possession of said company, due to or to be issued to the defendants Reyes and Search, and for an injunction restraining that defendant from issuing or transferring any of its capital stock, due to or owing them, or either of them.

We are not here confronted with a single cause of action, in which all the defendants are interested, though the interests are varying. Such complaints are, of course, held to be good. International Paper

Co. v. Hudson River Co., 92 App. Div. 56, 86 N. Y. S. 736; Burns v. N. L. & 0. Power Co., 145 App. Div. 280, 130 N. Y. S. 54; Fidelity Trust Co. v. Smith, 163 App. Div. 932, 147 N. Y. S. 1111. Vide opinion of Mr. Justice Benton in record. Two separate and independent causes of action are pleaded, in the first of which the Mangum Electric Company is in no way interested, while the Duncan Electric & Ice Company is equally unconcerned in the transactions relied upon in the second. The facts as to each cause are definitely stated, and the general demand for recovery against all defendants cannot serve to create a liability against either, other than such facts, if true, would warrant.

[1] Doubtless the relief sought against these two defendants is incidental only to that claimed against Keyes and Search, but the nature or extent of the relief is not the standard by which a pleading is to be measured. The question is: Can a defendant be in any event or to any extent held liable? If the pleading in question is correctly interpreted by the foregoing remarks, it follows that it is in contravention of the provisions of section 484 of the Code of Civil Procedure and that the demurrer must be sustained. People v. Equitable, 124 App. Div. 714, 109 N. Y. S. 453; O'Connor v. V. P. & P. Co., 184 N. Y. 46, 76 N. E. 1082.

[2] The previous action pending does not appear to be between the same parties, but only between some of the same parties, and the demurrer interposed upon the ground mentioned in subdivision 4 of section 488 of the Code is therefore overruled.

Demurrer sustained, with costs, and leave to plaintiff to amend, if he be so advised, within 20 days.

HEUMAN v. M. H. POWERS CO.

(Supreme Court, Appellate Division, First Department. December 29, 1916.) 1. CARRIERS Om4_CARRIAGE OF Goods—GENERAL TRUCKMAN—"COMMON CAB

RIER.”

A general truckman, transporting goods for hire under special contract, is a “common carrier."

[Ed. Note.—For other cases, see Carriers, Cent. Dig. $S 1, 462-478; Dec. Dig. 4.

For other definitions, see Words and Phrases, First and Second Serles,

Common Carrier.] 2. CARRIERS C147, 151–CARRIAGE OF Goods-LIMITATION OF LIABILITY.

A common carrier may limit his liability by agreeing with the shipper upon a maximum valuation of the articles carried, and a clause in a contract of carriage expressly limiting the liability of a carrier to a given sum is equivalent to a valuation of the goods.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 637, 74; Dec.

Dig. Om 147, 151.] 3. CARRIERS 156(2)—CARRIAGE OF Goods—LIMITATION OF LIABILITY

THEFT OF Goods.

Where a contract with a general truckman as a carrier to remore household effects limited the responsibility of the truckman to $50 for Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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