The court below held that the $83.33 referred to in this clause constituted liquidated damages, and that this amount was the full measure of the landlord's damages, regardless of the number of months' rent remaining unpaid. Such a construction seems to us unreasonable, and in fact works a forfeiture of the landlord's rights under the lease. We think that the sum deposited by the lessee was intended as security, and that at the expiration of the lease the sum deposited was to be paid to the lessor on account of one month's rent. To hold that this sum should constitute liquidated damages for any breach of the covenant to pay rent on the part of the lessees, even if the lessees were to fail to pay the rent during the whole term of the lease, is to arbitrarily fix a given sum as damages which is entirely out of proportion to the amount of damage sustained.

The damages which the landlord sustained were easily ascertainable, and were obviously the amount of the rent reserved for each month for which the tenant failed to pay rent. Where the lease requires the payment of a given sum by the tenant, and provides that in the event of the breach of any of the covenants of the lease by the tenant the amount so deposited shall belong to the landlord, and the damages suffered by the landlord are easily ascertainable, and the amount of the loss is out of all proportion to the amount of deposit, the courts have held that such sum will be regarded as security only and not as liquidated damages. Caesar v. Rubinson, 174 N. Y. 492, 67 N. E. 58.

We think that the same principle should be applied to the facts in this case. Here the amount of the sum deposited is out of all proportion to the actual loss suffered by the landlord, which loss is easily ascertainable, and the sum deposited should be treated as security only and not as liquidated damages. As in the case of a lease which in terms provides that the landlord shall keep the amount of the tenant's deposit, which amount is out of proportion to the damages sustained by the landlord, which are easily ascertainable, the courts refuse to enforce a penalty; so in the case of a lease which in terms provides that the tenant shall treat the sum deposited, which is equal to one month's rent, as liquidated damages regardless of the number of months' rent unpaid by the tenant, the courts will refuse to construe such provision so as to work a forfeiture of the landlord's rights under the lease.

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

STRAUCH CO. v. LANDEKER.

(Supreme Court, Appellate Term, First Department. December 30, 1913.) PRINCIPAL AND AGENT (§ 146*)-AGENT ACTING AS PRINCIPAL-LIABILITY.

One concealing the fact that he is agent and pretending to be principal cannot, after incurring liability, as principal, discharge himself therefrom by giving notice that he is only an agent.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §8 521-527; Dec. Dig. § 146.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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

Action by the Strauch Company against Adolph H. Landeker. From a judgment dismissing the complaint, after a trial without a jury, plaintiff appeals. Reversed, and new trial ordered.

Argued December term, 1913, before SEABURY, GUY, and BIJUR, JJ.

Nathan Bardach, of New York City, for appellant.

Taylor & Fatt, of New York City (Isidore Fatt, of New York City, of counsel), for respondent.

BIJUR, J. Plaintiff had paid the monthly rent of his apartment regularly to defendant as his landlord. During the winter of 1912 he became aware that foreclosure proceedings were pending, and he had been warned not to continue such payments. He thereafter exacted from defendant a promise, which is not denied, to return to him any rent for which any other party might have a lawful claim. On February 1, 1913, he paid defendant his rent as usual, and on February 7th was compelled to pay the pro rata of the February rent to the purchaser under foreclosure. The justice of the claim he makes is not contested. Defendant urges only that it must be enforced against one Martin, who, defendant alleges, was the owner of the premises prior to the foreclosure. So far as plaintiff is concerned, the only notice which defendant claims that plaintiff had concerning Martin's ownership rather than defendant's is the signature on the receipt for the rent of February 1, 1913, which is in the name of defendant, "agent for James E. T. Martin." Apart from the serious doubt whether the signature in that form is effective to discharge defendant from any liability, express or implied, in the premises, there is not the slightest proof that plaintiff knew of this claim of agency before he paid the rent, and there is affirmative proof that defendant always claimed to be the landlord. It requires no citation of authorities to sustain the liability of an agent who conceals the fact that he is an agent and pretends to be the principal. He certainly cannot discharge himself, after incurring liability as principal, by giving notice that he is in reality only an agent.

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

GUY, J., concurs. SEABURY, J., concurs in result.

SAMUELS v. TWIN STATE REALTY CO.

(Supreme Court, Appellate Term, First Department. December 30, 1913.) SET-OFF AND COUNTERCLAIM (§ 49*)-SUBJECT-MATTER OF COUNTERCLAIM.

Where a member of a partnership assigned to plaintiff a claim due him as an individual, defendant could not counterclaim for advances made to the firm, of which plaintiff's assignor was a partner.

[Ed. Note. For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 107-112, 114-117; Dec. Dig. § 49.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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

Action by Louis B. Samuels against the Twin State Realty Company, in which defendant counterclaimed. From a judgment for defendant on its counterclaim, plaintiff appeals. Reversed and remanded. Argued December term, 1913, before SEABURY, GUY, and BIJUR, JJ.

Nathan S. Jerome, of New York City, for appellant.

Bennett E. Siegelstein, of New York City, for respondent.

PER CURIAM. Plaintiff sues as the assignee of one Garfunkel to recover commissions alleged to have been earned in making sales of real property owned or controlled by the defendant. The answer pleads a counterclaim for money advanced to the plaintiff's assignor. As nearly as we can determine from the record, which is in a confused state, the court below allowed the plaintiff the amount claimed, and allowed the defendant's counterclaim to the amount of the plaintiff's claim, and awarded judgment in favor of the defendant. That this was the manner in which the conclusion announced was reached is to be inferred from the testimony which the court received as to the defendant's counterclaim, although there is nothing in the return which indicates that the counterclaim was passed upon, except that the return makes reference to the answer which sets up the counterclaim. Upon what theory the court below allowed a counterclaim against plaintiff's assignor against the plaintiff does not appear. It does appear, however, that the plaintiff's assignor and one Goldberg were partners, and the advances which the defendant claims to have made to the plaintiff's assignor were made to the partnership. The defendant could not recover upon a counterclaim against the plaintiff upon a debt due it from a partnership of which the plaintiff's assignor was a member. Thomas v. Noonan, 133 App. Div. 459, 118 N. Y. Supp. 25.

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

($3 Misc. Rep. 430)

December 30, 1913.)

GILLICK V. DELAWARE, L. & W. R. CO. (two cases). (Supreme Court, Appellate Term, First Department. CARRIERS (§ 316*)—INJURY TO PASSENGER-APPLICATION OF DOCTRINE OF RES IPSA LOQUITUR.

The doctrine of res ipsa loquitur has no application to an accident wherein a passenger is injured from the sudden breaking, from an unknown cause, of the glass of the window of the car in which she is riding.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1261, 1262, 1283, 1285-1294; Dec. Dig. § 316.*]

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

Two actions, one by Margaret Gillick, the other by Michael Gillick, both against the Delaware, Lackawanna & Western Railroad Company.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

From judgments for plaintiffs, defendant appeals. Reversed and dismissed.

Argued December term, 1913, before SEABURY, GUY, and BIJUR, JJ.

Douglas Swift, of New York City, for appellant.

Frank X. Sullivan, of New York City (Daniel F. Dunn, of New York City, of counsel), for respondents.

SEABURY, J. By stipulation two actions were tried together. The plaintiff in the first action sues to recover damages for personal injuries sustained while she was a passenger on one of the defendant's trains. The plaintiff in the second action is the husband of the plaintiff in the first action, and sues to recover damages for the loss of his wife's services resulting from the same accident. Both plaintiffs recovered judgments, and the sums awarded to the plaintiffs are conceded to be reasonable if the defendant is liable. The plaintiff in the first action, while a passenger on one of the defendant's trains, was sitting in a seat in the second or third car and looking out of the window. Suddenly there was a crash of glass, and the window through which the plaintiff was looking broke, and pieces of the glass struck the face and eyes of the plaintiff. The evidence fails to suggest the cause of the accident. The plaintiffs have recovered upon the theory that the doctrine of res ipsa loquitur is applicable to the facts of this case,

I think the learned court below erred in applying this doctrine. The doctrine is applicable only when the inference of negligence is required by the nature of the occurrence. It has no application when the res could have happened without negligence. Where some other cause than the negligence of the defendant could have caused the occurrence, there is no reason to infer that the occurrence was due to the negligence of the defendant. If the accident itself indicated that the accident was the result of the defendant's negligence, a different situation would be presented. The fact that the accident was of an unusual character does not of itself justify the application of the maxim res ipsa loquitur. See Robinson v. Consolidated Gas Co., 194 N. Y. 37, 86 N. E. 805, 28 L. R. A. (N. S.) 586.

Judgments reversed, with costs, and complaints dismissed, with costs. All concur.

TREMAINE v. JOLINE et al.

(Supreme Court, Appellate Term, First Department. December 30, 1913.) STREET RAILROADS (§ 99*)-INJURIES TO PERSONS ON TRACKS-CONTRIBUTORY NEGLIGENCE.

Where the driver of an automobile turned on the street car track and continued toward a rapidly approaching car, turning off when the car was close to him, he was guilty of negligence; and the owner cannot recover for injuries to the automobile, because of collision with the car, which struck the automobile when it crossed a few feet in front of it. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 209-216; Dec. Dig. § 99.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from City Court of New York, Trial Term.

Action by Harry B. Tremaine against Adrian H. Joline and another, as receivers of the Metropolitan Street Railway Company. From a judgment upon a directed verdict for plaintiff, defendants appeal. Reversed, and complaint dismissed.

Argued December term, 1913, before SEABURY, GUY, and BIJUR, JJ.

Masten & Nichols, of New York City (A. H. Cole, of New York City, of counsel), for appellants.

Bertrand L. Pettigrew, of New York City (Walter L. Glenney, of New York City, of counsel), for respondent.

SEABURY, J. This is an action to recover damages to an automobile, alleged to have been caused through the negligence of the servants of the defendants. Plaintiff's chauffeur, while operating a large automobile on Madison avenue, turned on the south-bound track and continued toward a rapidly approaching south-bound car. When the car and the automobile were close together, the chauffeur turned onto the north-bound track and was struck by the north-bound car. When the automobile was turned onto the north-bound track, the north-bound car was within a few feet of the automobile. The accident was obviously the result of the negligence of the plaintiff's chauffeur. The carelessness and recklessness of the chauffeur is apparent from his own testimony, as well as from the testimony of several other witnesses in the case.

Judgment is reversed, with costs, and complaint dismissed, with costs. All concur.

VICTER v. FAGIN.

(Supreme Court, Appellate Term, First Department. December 30, 1913.) MONEY RECEIVED (§ 9*)-Partnership-DISSOLUTION.

Where plaintiff and defendant, who had been copartners, dissolved the firm, defendant transferring to plaintiff a number of outstanding accounts with a warranty that no part of their face value had been collected, defendant is liable to plaintiff for money received by him on one of the accounts, a credit for which did not appear on its face, this being true regardless whether the receipt was after the dissolution and transfer or whether a postdated check was received before the agreement.

[Ed. Note. For other cases, see Money Received, Cent. Dig. § 31; Dec Dig. § 9.*]

Appeal from Municipal Court, Borough of Manhattan, First District. Action by Jacob Victer against Sam Fagin. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Argued December term, 1913, before SEABURY, GUY, and BIJUR, JJ.

Henry Greenberg, of New York City, for appellant.

Nathan Tolk, of New York City, for respondent.

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes