mon knowledge to every one who employs labor.' The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risks of such associations and conditions were risks of the employment."

I dissent, and favor affirmance.

FAMOUS CLOTHING CO., Inc., v. WODINSKY et al.

(Supreme Court, Appellate Term, First Department. March 13, 1923.) 1. Bills and notes 497 (1)-Holder of note presumed holder in due course. One who has title to and is the holder of a note is presumptively a holder for value in due course.

2. Bilis and notes 491-Plaintiff, though not holder for value, entitled to judg. ment in absence of defense.

Plaintiff, though not the holder of a note for value, is entitled to judg ment, unless defendant maker proves a defense as between himself and payee.

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

Action by the Famous Clothing Company, Inc., against Oscar Wodinsky and another, individually and as copartners. From a judgment dismissing the complaint, and a judgment entered against plaintiff for $60 costs, after a trial before the court without a jury, plaintiff appeals. Reversed, and new trial ordered.

Argued February term, 1923, before LEHMAN, LYDON, and BURR, JJ.

Zvirin & Zvirin, of New York City (Frederick E. Zvirin, of New York City, of counsel), for appellant.

Max H. Newman, of Brooklyn (Wm. Herrmann, of New York City, of counsel), for respondents.

LEHMAN, J. The plaintiff brought an action upon a note, alleging that it is a holder for value. The answer denies this allegation, and sets forth as a separate defense a special agreement made with the maker of the note, and a second separate defense that the plaintiff holds the note only for collection. The defendant made no attempt to prove the alleged special agreement, but contended that the plaintiff is not a holder for value, and apparently upon that ground judgment was given in favor of the defendant.

[1, 2] The plaintiff is unquestionably the holder of the note and has good title thereto. Presumptively it is a holder for value in due course, and there is no evidence to meet this presumption. The plaintiff, moreover, affirmatively proved that it paid value for the note, and there was no evidence produced by the defendant in contradiction; but, even if the plaintiff was not a holder for value, since the defendant failed to prove any special agreement with the maker, or other defense, the plaintiff is entitled to judgment.

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

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(198 N.Y.S.)

BRONNER v. VAN CORTLANDT VEHICLE CORPORATION. (Supreme Court, Appellate Term, First Department. March 8, 1923.) Sales 201 (2)-Contract held to pass title to automobile.

Where plaintiff delivered a defective automobile to defendant dealer, pursuant to an agreement to accept a stated credit on the price of a new automobile or the proceeds of defendant's sale of the defective automobile, less the repair bill and a stated commission, and defendant made such a sale, held that, under Personal Property Law, § 82, title passed to dealer. Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Albert H. Bronner against the Van Cortlandt Vehicle Corporation. Judgment for plaintiff for $900, and defendant appeals. Reversed, and new trial ordered.

Argued February term, 1923, before LEHMAN, LYDON, and BURR, JJ.

George F. Orr, of New York City, for appellant.

Adolph Bangser, of New York City, for respondent.

BURR, J. Plaintiff, being the owner of a Peerless motor car, delivered the car to defendant and requested an estimate of what it would cost to overhaul it. On April 2, 1921, a detailed estimate of the repairs needed to be done and price to be charged therefor, approximating a total of $620.40, was given in writing by defendant to the plaintiff. After receipt of this estimate, plaintiff, not desiring to have the work done on the car as estimated, entered into negotiations with the defendant for the purchase of a new Peerless motor car, and on the 21st day of April, 1921, made an agreement in writing with the defendant for the purchase of a new car, under the terms whereof plaintiff agreed to and did turn over to defendant his old Peerless car, being allowed therefor $1,100 as part of the purchase price of the new It was specifically provided in said written agreement that, if Bronner, the plaintiff, should not desire to take the new car at the time designated for delivery, then and in that event—

"the amount of money received from the sale of the old car after the overhauling and sales expenses have been deducted will be returned to Mr. Bronner, less 15 per cent. for selling commission."

The defendant thereafter, and pursuant to the terms of the contract, took possession of the old Peerless car. It proceeded to overhaul and rebuild it, and, having done so, placed the car in its salesroom, and offered it for sale to the general public, and finally sold. it in December, 1921, for $1,000. Thereafter, and on or about the 14th day of February, 1922, plaintiff notified defendant that he did not wish to take delivery of the new car, and requested an accounting for the money received in the sale of the old car under the contract of April 21, 1921. The defendant under date of March 1, 1922, rendered a statement of the account of the transaction, showing a loss on the repairs and sale of the old car, and thereupon plaintiff brought this action against the defendant.

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The pleadings are oral. The complaint indorsed upon the summons is:

"Conversion of Peerless automobile delivered to defendant by plaintiff on or about March 31, 1921."

The answer is a general denial. The making and execution of the written contract of April 21, 1921, is undisputed. Under this contract the title to the old car passed to the defendant. Plaintiff also parted with the right to possession. The execution of this contract created a legal and binding contract for the sale of goods. Personal Property Law, § 82, as added by Laws 1911, c. 571. If there was any breach of this contract the law provides a remedy in damages. It is apparent defendant came lawfully into possession of the car. Plaintiff never asked for the return of the car; he asked for an accounting.

There is no evidence to sustain an action in conversion. At the end of the plaintiff's case, and again at the end of the whole case, the defendant moved to dismiss the complaint, on the ground that the plaintiff failed to sustain his cause of action in conversion, that he failed to show an unlawful taking, unlawful ownership, unlawful user or misuser of the car, and an unlawful detention, and on the further ground that the action is shown to be an action involving an entirely different state of facts from conversion. The motion was denied, and exception was duly taken.

As there was no proof of conversion, in the absence of any motion or request on the part of plaintiff to amend his pleadings, the court should have granted the motion to dismiss the complaint, and its failure so to do was reversible error.

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

(204 App. Div. 528)

LYMAN v. VILLAGE OF POTSDAM.

(Supreme Court, Appellate Division, Fourth Department. March 7, 1923.) Appeal and error 1006(4)-Successive verdicts should be given great weight in reviewing sufficiency of evidence.

That an action for personal injuries was tried three times, and each time the jury gave verdict for the plaintiff, is entitled to great weight on a third appeal, in determining whether there is sufficient evidence to sustain the verdict..

Appeal from Supreme Court, Lawrence County.

Action by Elsie E. Lyman against Village of Potsdam. From a judgment for plaintiff for $4,076.06, damages, and an order denying a motion to set aside verdict and for a new trial, defendant appeals. Affirmed.

Argued before HUBBS, P. J., and CLARK, DAVIS, SEARS, and CROUCH, JJ.

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

(198 N.Y.S.)

Frank L. Cubley, of Potsdam (Henry Purcell, of Watertown, of counsel), for appellant.

George J. Moore, of Malone, for respondent.

CLARK, J. This action is brought to recover damages for personal injuries. The facts are briefly that plaintiff, while riding with her husband in a carriage on one of the residence streets of the village of Potsdam, was thrown out and injured, shortly before 6 o'clock on the afternoon of May 14, 1914: A pile of refuse and rubbish, consisting of some barrels and boxes, loose cans, an old white porcelain bowl, and a dead Christmas tree, had been piled at the side of the street by a citizen, and as plaintiff and her husband were driving along the street the horse became frightened at this pile of refuse, ran away, and plaintiff was thrown out and sustained the injuries complained of. This pile of rubbish had been placed in the street in pursuance of the invitation of the village authorities for citizens to do that in observing what was called "clean-up day"; these piles of rubbish to be later removed by the village authorities.

The jury could find from the evidence that this pile of refuse had been placed by the side of the street between 7 and 8 o'clock in the morning, May 14, 1914, and that just before 6 o'clock that same day the accident occurred; that the principal portion of this pile was on the grass plot between the gutter and the sidewalk, that plot being 13 feet wide; but there was evidence from which the jury could find that portions of the refuse were over 2 or 3 feet in the beaten portion of the street. In addition to the fact that this pile had been in this location from between 7 and 8 o'clock in the morning until nearly 6 o'clock in the evening when the accident occurred, the jury could find that the president of the defendant village actually saw it shortly after 4 o'clock that afternoon, and that nothing was done toward its removal prior to the accident, although teams in the employ of defendant were on the streets at that time, cleaning up rubbish that had been placed in front of the houses in observing of this clean-up day, and were available to remove this pile, and that it had been negligently permitted to remain where it was placed that morning by authority of the village a longer time than was reasonably necessary.

This case has been tried three times, and the facts were substantially the same at each trial, and plaintiff has always been successful. That fact is entitled to great weight in determining whether or not there is evidence to sustain plaintiff's contentions. McMahon v. Jacob, 76 App. Div. 346, 78 N. Y. Supp. 432; Gutman v. Weisbarth, 194 App. Div. 351, 185 N. Y. Supp. 261.

After the first trial, the presiding justice set aside the verdict and dismissed the complaint. On appeal to the Appellate Division, Third Department, the judgment dismissing the complaint was reversed, and the case was sent back for a new trial. Lvman v. Village of Potsdam, 173 App. Div. 390, 159 N. Y. Supp. 71. On the second trial the case was submitted to the jury on the theory of nuisance, and the plaintiff again recovered, and the judgment was affirmed in the Appellate Division, but by a divided court. Lyman v. Village of Potsdam, 183

App. Div. 910, 169 N. Y. Supp. 1103. Defendant appealed to the Court of Appeals, and the judgment was reversed (Lyman v. Village of Potsdam, 228 N. Y. 398, 127 N. E. 312); the court holding that the pile of rubbish in question was not an unlawful obstruction per se, and not a nuisance. A new trial was granted, the Court of Appeals holding that plaintiff could not recover without evidence:

"First, that the rubbish pile was so likely to frighten horses of ordinary gentleness that any one of ordinary prudence and sagacity would have apprehended such result; second. that the board of trustees had neglected to abate or remove the defect within a reasonable time after having information or knowledge of its existence; and, third, that plaintiff was free from negligence which contributed to the accident and her injury."

These questions were clearly questions of fact for the jury.

On the third trial the case was submitted to the jury on the theory of negligence, and plaintiff again recovered, and from the judgment entered on this last verdict defendant appeals.

Three juries having passed on the facts in this case, and plaintiff having been successful at each trial, and the Appellate Division, Third Department, having passed on the questions involved twice, and finally, after the Court of Appeals granted a new trial, setting aside the verdict obtained on the second trial, and pointing out the propositions plaintiff would need to establish in order to succeed, and on the third trial plaintiff having been again successful on the same facts, and there being no errors in rulings or in the instructions to the jury which call for a reversal, it is our opinion that the judgment appealed from should stand.

The judgment and order should therefore be affirmed, with costs. All concur.

BENDER et al. v. WASSER et al.

(Supreme Court, Appellate Term, First Department. March 8, 1923.) I. Appeal and error 1011(1)—Trial judge's decision settles all disputed facts. Trial judge's decision for plaintiff settles all disputed questions of fact in plaintiff's favor.

2. Brokers 52-Not entitled to commission until minds of parties agree on sale.

Garage owners told brokers that they would sell their business for $15,000, and brokers secured a proposed purchaser, who said he would pay $13,500 for the business. Owners agreed to accept that amount, but proposed purchaser refused to execute the papers unless and until he had secured the consent of one to whom he had sold a similar business. Such consent was secured about 10 days later, but owners then refused to sell at the agreed price. Held that brokers were not entitled to a commission, as the minds of the parties had not met.

3. Brokers 54-Not entitled to commission until purchaser ready, able, and willing to buy on owners' terms procured.

Brokers are not entitled to any commission until they procure a purchaser ready, able, and willing to buy the business on terms acceptable to

Owners.

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