failing to overtake the defendant, he kept them overnight and returned them to defendant the next day.

[1, 2] Inasmuch as the trial justice believed the plaintiff's story, we should for the purpose of this appeal consider that these facts have been established. Inasmuch as the defendant refused to furnish the notes in accordance with the contract and the giving of the notes was a condition of the granting of credit, the plaintiff's assignor had a right to consider this refusal as tantamount to a repudiation of this part of the contract and to bring suit immediately for the entire unpaid balance of the contract of sale. Nichols v. Scranton Steel Co., 137 N. Y. 471, 33 N. E. 561. The plaintiff or her assignor could bring this suit, however, only if the seller elected to consider the credit at an end, and could not at the same time take advantage of part of the tender of the defendant and repudiate the remainder. It appears undisputed that, when the defendant offered the notes, he delivered at the same time a chattel mortgage which, though somewhat incorrectly drawn, was by its express terms intended to secure payment of the unpaid balance of the purchase price. The seller had no right to this chattel mortgage except to secure this unpaid balance, and it was delivered only for this purpose. The defendant had a right to refuse the entire offer of the buyer to secure the unpaid balance by the notes tendered and by the chattel mortgage, but he could not accept it in part and refuse it in part. It is undisputed that the plaintiff's assignor did accept this chattel mortgage, filed it thereafter, and then assigned it with this claim to the plaintiff, who brought this action before the expiration of even one month from the date of the sale. It follows, I think, that the plaintiff's assignor by accepting and filing this chattel mortgage has debarred himself from claiming that the terms of credit granted to the defendant are at an end.

In stating that it was undisputed that the defendant delivered, and the plaintiff's assignor accepted, the chattel mortgage on March 25th, when the notes were tendered, I have not overlooked some testimony of the plaintiff's assignor which, standing alone, would tend to show that the mortgage was delivered on March 22d when the cash was paid. A careful reading of his whole testimony, however, shows that he apparently misunderstood this question, and the witness' subsequent testimony shows that he agrees with the defendant's testimony that it was delivered and accepted on March 25th; moreover, the plaintiff's bill of particulars sets the date as March 25th.

Judgment should therefore be reversed, with $30 costs, and complaint dismissed, with costs.

FINCH, J., concurs. WHITAKER, J., dissenting.

FLIASHNICK v. BURKE, Clerk of Municipal Court, et al. (Supreme Court, Appellate Division, First Department. January 19, 1917.) 1. ATTORNEY AND CLIENT 182(2)-LIEN-COSTS.

Irrespective of statute, an attorney for defendant, against whom a complaint was dismissed, with costs, who had not been paid for his services, had a lien upon such costs, which had been deposited with the clerk of the court, and, as against any third party, the clear right to such costs. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. § 401; Dec. Dig. 182(2).]

2. ATTORNEY AND CLIENT

190(4)-LIEN-COSTS-EVIDENCE.

In such case the attorney was not bound to prove that he could not otherwise collect his charges.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 416, 417; Dec. Dig. 190(4).]

Appeal from Trial Term, New York County.

Action by Bernard Fliashnick against Martin J. Burke, Clerk of the Municipal Court, Second District, Borough of the Bronx, the New York Edison Company, and the Novelty Stamp Company. From a judgment dismissing the complaint, entered in New York county after a trial by the court without a jury, plaintiff appeals. Judgment reversed, and judgment directed for plaintiff.

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

Leonard F. Fish, of New York City (Emanuel Sustick, of New York City, on the brief), for appellant.

Thomas H. Beardsley, of New York City, for respondents.

SMITH, J. In an action in the Municipal Court, Second District, Borough of the Bronx, in which Catherine Hagmayer was plaintiff and the Novelty Stamp Company was defendant, the complaint was dismissed, with costs. These costs, amounting to $68.75, were deposited with the clerk of the said Municipal Court, Second District. This plaintiff was the attorney for the defendant in that action, and seeks in this action to have those costs applied to the satisfaction of his lien thereupon. The defendant the New York Edison Company defends the action upon the ground that it has a superior lien by virtue of an execution levied thereupon in an action in which said company was plaintiff and the said Novelty Stamp Company was defendant. The trial court has found that the plaintiff has not been paid for his services in the Hagmayer action, but has dismissed the complaint upon the ground that the plaintiff has failed to prove that the Novelty Stamp Company is either irresponsible or that it has refused to compensate the plaintiff for the services rendered to it, and further upon the ground that there was no agreement between the plaintiff herein and the Novelty Stamp Company whereby the plaintiff was to receive the avails of any judgment rendered in favor of that company in the Hagmayer action.

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[1, 2] That this plaintiff has a lien upon those costs irrespective of statute has been determined in this Department in the case of Agricultural Insurance Co. v. Smith, 112 App. Div. 840, 98 N. Y. Supp. 347. As against any third party, therefore, the plaintiff has the clear right to these costs to satisfy his lien for his compensation in that action, which charges have not been paid. Nor is the plaintiff bound to prove that he could not otherwise collect his charges. The case of Webb v. Parker, in 130 App. Div. 92, 101, 114 N. Y. Supp. 489, presents a situation entirely different from that here found. In that case it was held that parties to arbitrations may agree that judgments shall not be entered upon the awards, but that one award shall be offset against another, and judgment entered for the difference only. It was held, however, that the attorney has a lien upon an award superior to this right of set-off; but before the right of set-off under that agreement can be defeated the attorney must show that he is unable to collect for his services from his client-in other words, that the right of set-off between the parties to the action can only be defeated by an attorney's lien when the attorney is unable to collect his compensation from his client. It has nowhere been held that, as against a third party seeking to seize the costs in an action by an execution, the attorney is required. to make efforts to collect his compensation from his client personally before applying said costs to the payment of that compensation. It would seem as though such costs constituted the primary fund from which such compensation should be paid.

The determination of the trial court should therefore be reversed, with costs, and judgment directed for the plaintiff, with costs. Settle order on notice. All concur.

RUSS v. WEST END BREWING CO.

(Supreme Court, Appellate Division, Fourth Department. January 3, 1917.) INDEMNITY 16-DEPOSIT-RECOVERY-PREMATURE ACTION.

Where plaintiff, engaged in the liquor traffic, under a liquor tax certificate, secured bondsmen through defendant brewing company by pay ing to it $600 to indemnify the bondsmen who were liable to costs in any proceeding begun under the Liquor Tax Law (Consol. Laws, c. 34), and thereafter breached the conditions of his bond and was indicted, though no action was ever brought on the bond, and where a pending proceeding to cancel the certificate based upon his misconduct was pending in which the bondsmen would be liable for all costs allowed to the state commissioner, his action to recover the amount paid was premature, and a nonsuit should have been granted.

[Ed. Note. For other cases, see Indemnity, Cent. Dig. § 48; Dec. Dig. 16.]

Appeal from Trial Term, Oneida County.

Action by Jules Russ against the West End Brewing Company. From a judgment of the County Court entered in the Clerk's office of the County of Oneida on June 10, 1916, in favor of the plaintiff for $678.15, damages and costs, and from an order denying defendant's

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motion for new trial entered in such office June 12, 1916, defendant appeals. Judgment and order reversed, and complaint dismissed.

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

Timothy Curtin, of Utica, for appellant.

J. W. Watts, of Utica, for respondent.

KRUSE, P. J. The plaintiff trafficked in liquors in the city of Utica, under a liquor tax certificate issued to him in October, 1912. He had difficulty in obtaining bondsmen, but finally seems to have secured the same through the brewing company, the defendant, paying to it $600. This controversy arises over the $600. The plaintiff contends that it was paid to the brewing company to indemnify the bondsmen, while the defendant contends that it was given as general security for any costs or expense which might be incurred in defending the plaintiff, his sureties, or any proceeding arising out of the traffic. The question in dispute was submitted to the jury, which found in favor of the plaintiff upon that question.

There was no dispute but that the plaintiff breached the conditions of his bond, since he admitted that on the 13th of June, 1913, he pleaded guilty to an indictment charging him with the crime of maintaining a disorderly house on the premises covered by the certificate. But no action has ever been brought upon the bond, and it is contended by plaintiff's counsel that, nine months having elapsed since the offense was committed and since he was convicted, no action can now be maintained thereon, and therefore no liability can arise against the sureties, referring to section 16 of the Liquor Tax Law, which provides: "The state commissioner of excise may

maintain an action

for the recovery of the penalty for the breach of any condition of any bond or for any penalty or penalties incurred or imposed for a violation of this chapter, provided, however, that such action must be commenced within nine months after the cause of action has accrued." Laws of 1909, c. 39, § 16; Consolidated Laws, c. 34, as amended by Laws of 1910, c. 484; Laws of 1911, c. 223.

That may be so, if this is the only breach, although the defendant contends that section 401 of the Code of Civil Procedure applies, and that because of plaintiff's absence from the state the cause of action is not barred. But, even if it is not barred as against the plaintiff, it may be as against the sureties, and in that event no enforceable liability exists against them upon the bond, unless there are other breaches than the one to which I have referred.

I think the plaintiff has failed to establish that this may be the only breach. It appears that, just before the plaintiff was indicted, he became aware that there was an investigation relating to his traffic and he was liable to be indicted, and so informed the defendant brewing company. Thereupon it was arranged that the certificate should be transferred to one Wurz, which was done a day or two before the indictment was presented and the plaintiff arraigned thereon. Thereafter and three days before the certificate expired, the proceeding was brought to cancel the certificate, based upon the plaintiff's misconduct

in keeping a disorderly house, and which is still pending. In re Farley, 164 App. Div. 967, 149 N. Y. Supp. 1080, reversed Farley v. Wurz, 217 N. Y. 105, 111 N. E. 479. Among other conditions contained in the bond is the following:

"That all fines and penalties which shall accrue during the time the certificate applied for is held, and any judgment or judgments recovered therefor, will be paid, together with all costs taxed or allowed in any action or proceeding brought or instituted under the provisions of the said Liquor Tax Law."

Under the above provision of the bond, the sureties will be liable for all costs which are allowed to the state commissioner in the cancellation proceeding. This action is therefore prematurely brought, even though the plaintiff's contention respecting the conditions upon which the money was paid to the brewing company is correct.

I think the motion for a nonsuit should have been granted, and under the circumstances of this case that should be done now. The judgment and order should be reversed, and the motion for a nonsuit granted, and the complaint dismissed, with costs to the appellant in this court and at the Trial Term. All concur.

LARKIN CO. v. NEW YORK, C. & ST. L. R. CO.

(Supreme Court, Special Term, Erie County. January 17, 1917.) CARRIERS 135-CARRIAGE OF GOODS-UNIFORM BILL OF LADING "INVOICE PRICE."

Where the catalogue of a mail order company, giving premium merchandise as a bonus with purchases, disclosed that such premium merchandise had a fixed cash price, and that customers understood and paid it, such premium merchandise had an invoice price within the uniform bill of lading adopted by agreement of the Interstate Commerce Commission with the various railroads of the country, which provides that the amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to consignee, including the freight charges, if prepaid); "invoice price" being the amount at which goods are invoiced to the purchaser, the cost or value of the property at the shipping point.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 557-559, 599-602, 6031⁄2-6042; Dec. Dig. 135.

For other definitions, see Words and Phrases, Invoice Price.]

Appeal from City Court of Buffalo.

Action by the Larkin Company against the New York, Chicago & St. Louis Railroad Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

Thomas D. Powell, of Buffalo, for appellant.

John Lord O'Brian, of Buffalo, for respondent.

BISSELL, J. This action, which is in the nature of a test case to determine a large number of unpaid claims of a similar character, was brought to recover damages for the loss of premium merchandise shipped by the plaintiff over defendant's line of railroad. There is no dispute as to the shipment or the loss of the merchandise.

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