City Court of New York, February, 1896. [Vol. 15. the damage done by the overflowing appear by the evidence to be so closely connected with each other that the jury had a right to infer that the damage was caused by these newly dug ditches. Upon the facts as found by the jury the case comes clearly within the law holding the proprietor liable for the damage caused by the increased flow of the water. Noonan v. City of Albany, 79 N. Y. 470. The verdict should be sustained and the judgment is affirmed, with costs. VAN WYCK, Ch. J., and MCCARTHY, J., concur. EDWARD WESTON, Respondent, v. RUPERT A. RYLEY, (City Court of New York-General Term, February, 1896.) 1. LANDLORD AND TENANT-RENT. In an action upon an express covenant to pay rent the plaintiff need not allege or prove that defendant occupied or enjoyed the premises. A surrender during the course of a month is no defense to an action for rent of such month, where the rent is payable in advance. 3. APPEAL-QUESTION NOT RAISED BELOW. An objection which might have been obviated if properly taken cannot be raised for the first time on appeal. APPEAL from judgment in favor of the plaintiff directed by the court upon the pleadings. John J. Adams, for appellant. Wm. H. Sweny, for respondent. SCHUCHMAN, J. This is an appeal from a judgment directed upon the pleadings in favor of the plaintiff and against the defendant. Misc.] City Court of New York, February, 1896. The action is brought by the plaintiff to recover from the defendant rent of a flat in the premises known as No. 23 West Twentieth street in the city of New York, for the months of August and September, 1895, covenanted to be paid by defendant in a written lease for the term of two years from November 1, 1894. The action is brought on an express covenant to pay rent. In such an action plaintiff in his complaint need not allege nor prove that the defendant occupied or enjoyed the premises. Gilhooley v. Washington, 4 N. Y. 217. For that reason the denial in the first paragraph of defendant's answer does not avail him. It appears, therefore, that the plaintiff's cause of action, as set up in his complaint, is fully admitted by the answer. Defendant must, therefore, rely upon the affirmative defense set up in the third paragraph of his answer, to wit, surrender and acceptance. This defense as pleaded did not arise until August 12, 1895, while the rent for the month of August was payable on August first, in advance, so that plaintiff was clearly entitled to a direction for one month's rent. To the motion for judgment on the answer, which was granted, defendant took a general exception, thereby disputing that plaintiff was entitled to any judgment at all, when he was clearly entitled to judgment for one month's rent, and wholly failed to raise the specific question of defense to the rent for the month of September. Defendant omitting to call the attention of the court to the question of the liability for the rent for the month of September upon the trial, it is too late to raise it on appeal. Tuers v. Tuers, 100 N. Y. 196. Judgment is, therefore, affirmed, with costs. VAN WYCK, Ch. J., and McCARTHY, J., concur. City Court of New York, February, 1896. [Vol. 15. THE NATIONAL WALL PAPER Co., Appellant, v. CHARLES A. GERLACH, Respondent. (City Court of New York - General Term, February, 1896.) CONTEMPT SUPPLEMENTARY PROCEEDINGS. A payment of moneys or the execution and delivery of a general assignment by the judgment debtor after the service of the injunction order upon him is a contempt of court, although a receiver of his property had been appointed in prior proceedings. APPEAL from order denying motion to punish the defendant for contempt. Gayley, Baucus & Fleming, for appellant. George W. Carr, for respondent. MCCARTHY, J. An examination of the testimony taken in these supplementary proceedings bears but one construction and leads but to one conclusion, that in transferring and paying out the moneys testified to and in executing and delivering the general assignment of his property by the defendant, after the service of an order in supplementary proceedings containing an injunction forbidding him from transferring or otherwise disposing of his property, he was and is guilty of contempt of court. It was his voluntary act, and the plaintiff was injured by the same, since it had taken steps by which it would have procured a lien on the estate, real and personal, of the judgment debtor. It matters not how slight that lien might have been; the judgment debtor could not assume the power to judge and determine the issue and thus violate a positive order of the court because, in his judgment, there was not enough to meet the creditor's claim. He could not be the judge of this, but must leave it to be determined by the regular and orderly proceedings. The case of Canda v. Gollner, 73 Hun, 494, we think, is directly in point. See 117 N. Y. 297; 130 id. 185, 186. Misc.] City Court of New York, February, 1896. It is claimed, however, that there was no contempt, because in a similar proceeding on March 29, 1894, in which Ellen M. B. Connolly was plaintiff, and this defendant was the defendant, a receiver was appointed, but it is declared and not contradicted that no bond had been filed in the office of the clerk of the city and county of New York as required by statute, and which requires that before he, the receiver, enters upon the execution of the trust "he shall execute to the People of the State of New York a bond with sufficient sureties, to be approved by a justice of this court and file said bond with the clerk of the city and county of New York, and that such receiver, upon filing such bond, be invested with all the rights and powers as receiver, according to law, and the receiver's appointment is not, therefore, complete until his bond is filed." * * * The receiver's title to real estate is at most a qualified title in the nature of a security for the plaintiff in the judgment and did not exhaust the title of the judgment debtor. Subject to the rights of the receiver to resort to the land to pay the judgment, the title remains in the judgment debtor. Moore v. Duffy, 74 Hun, 78, 80. The defendant was, therefore, guilty of contempt, and the order appealed from is reversed, with costs, and the proceeding remitted to the Special Term to fix the amount of a fine sufficient to indemnify the plaintiff for its loss and damage. The Special Term justice may allow as an item of expense a reasonable fee to the plaintiff's attorney in these proceedings. People ex rel. Garbutt v. Rochester State Line R. R. Co., 76 N. Y. 204, 301. VAN WYCK, Ch. J., and SCHUCHMAN, J., concur. Order reversed, with costs, and proceeding remitted to Special Term to fix amount of fine. 81 City Court of New York, February, 1896. [Vol. 15. MARY A. STAPLETON et al., Respondents, v. THE GREENWICH INSURANCE Co. of the City of New York, Appellant. (City Court of New York - General Term, February, 1896.) FIRE INSURANCE - UNOCCUPIED PREMISES. A removal of tenants from a building, leaving nothing therein except a blanket, renders the premises both unoccupied and vacant within the meaning of the clause in a policy of insurance making it void in such an event. APPEAL from judgment in favor of the plaintiffs. Butler, Stillman & Hubbard, for appellant. Niles & Johnson, for respondent. MCCARTHY, J. This is an action upon a fire policy and the defense is a breach of certain warranties contained in the same. The insurance was upon a dwelling, and the fire which caused the loss took place about three months after the last tenant permanently moved out. It is conceded there was no furniture or other material except a blanket in the premises insured during all that time. Among the provisions contained in the policy was this one: "That if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unocpied and so remain for ten days the policy shall be void unless provided otherwise by agreement indorsed hereon or added hereto." We think the trial justice should have dismissed the complaint at the close of plaintiff's case and also at the close of the entire case. The testimony of Mary A. Stapleton and James D. Du Bois was insufficient and did not relieve the plaintiffs from the effect of the condition of the policy of insurance. EARL, J. in Herrman v. Merchants' Ins. Co., 81 N. Y. 184, at page 188, says: "A dwelling house is unoccupied |