Misc.]

Supreme Court, Appellate Term, July, 1900.

tion, but did not keep faith with the defendant, because, after the boat had been towed to Seventy-ninth street, without the know!edge of the defendant, he took, not the 100 or 150 tons agreed upon, but the whole cargo. He did, however, accept the defendant's suggestion as to the method of ascertaining the amount of coal he received, for, as he testifies, he weighed some of it, and averaged the rest up, kept one return of weights, and sent the other to the defendant. On this state of facts the judgment imposing a penalty on defendant cannot be sustained. Passing by the question whether the defendant can be said to have "delivered" the whole cargo, when Fuller took it in opposition to the defendant's injunction that he should not take more than 100 or 150 tons, we come to an examination of what the statute requires. It provides that an original bill of lading shall accompany "every such delivery of an entire cargo of coal." What is meant by every "such delivery" is clearly shown by the preceding sentence. It meant the delivery of an entire cargo, from the vessel containing the same, to one destination and "accepted by the purchaser on the original bill of lading as proof of weight." That is to say, if a purchaser buys a cargo of coal in the belief that it contains a certain number of tons or pounds and relies on the bill of lading as proof of the weight, then he is entitled to receive the bill of lading, it being the evidence of weight on which he has relied, and upon the basis of which the bargain was made. The purchaser in the present case did not accept the cargo on the original bill of lading as proof of weight, but weighed the coal as he received it. To such a transaction neither the letter nor the spirit of the statute applies. The plaintiff wholly failed to make out a case justifying the imposition of a penalty upon this defendant and the judgment must be reversed, with costs.

Present: TRUAX, P. J., SCOTT and DUGRO, JJ.
Judgment reversed, with costs.

Supreme Court, Appellate Term, July, 1900.

[Vol. 32.

CELINA DODIN, Landlord-Appellant, v. ALPHONSE J. DODIN, Tenant

Where an occupant of premises has remained in undisturbed possession of them for nearly eight years after having been given notice, by the alleged owner of them, to vacate, and has since paid no rent and has not in any manner recognized the alleged owner's title, the court cannot assume that the parties presently occupy the conventional relation of landlord and tenant, and therefore the alleged owner cannot maintain dispossession proceedings against the occupant.

APPEAL from a final order of the Municipal Court of the city of New York, second district, borough of The Bronx.

M. J. Earley, for appellant.

M. P. Doyle, for respondent.

Final order affirmed with costs upon the opinion of the justice below.

Present: TRUAX, P. J., SCOTT and DUGRO, JJ.

The following is the opinion of the justice of the Municipal Court of the city of New York.

TIERNEY, J. This is a summary proceeding for the removal of the occupant of a stable on the east side of Union avenue, about 190 feet north of One Hundred and Sixty-first street, New York city.

The landlord alleges that the occupant is a tenant at will of said premises under an agreement to be such, which the bill of particulars states was made verbally in November, 1892. It is conceded that the required statutory notice for the termination of a tenancy at will has been given to the occupant. This and the occupation are admitted and all other allegations of the petition are denied.

Misc.]

Supreme Court, Appellate Term, July, 1900.

The landlord is the stepmother of the occupant. Her husband, who was his father, died about fifteen years ago. The house, which forms part of the same premises with the stable, was the home of the deceased, and the landlord and the children of her deceased husband continued to live there after his death. Her husband left a will devising his homestead to his widow for life, and it appears that the stable is part of the property that was cwned by the deceased, while he lived, although the proof of such ownership is rather inferential than direct. The occupant appears to have been using the stable for a number of years and now has a veterinary hospital located there. The mere fact of his occupation, without proof of his recognition of the landlord's title or of admission, by word or act, of his holding possession as her tenant, does not establish that conventional relation of landlord and tenant which the landlord must show to exist as a basis for this proceeding. The only proof presented for this purpose is the landlord's statement that, in November, 1892, she told the occupant that he must vacate the stable, and that he cried and said he would kill his horse if he had to go, and left her presence. She states positively that no further reference was ever made between them to the stable. do not think that this is sufficient to show that the occupant thereby became the tenant of the landlord or agreed to recognize her as such. Certainly no such express agreement can be spelled out of what was said between them at that time. The fact, that the occupant retained his uninterrupted possession from that time, tends rather to show a refusal on his part to recognize the landlord's right and title to terminate his holding, at will, than to establish an acquiescence in or recognition of that relationship. The landlord assuming the right to dispose of the occupant's holding, gave him notice to remove, and that notice was never withdrawn, and yet, in spite thereof, the occupant has continued to use the premises for all these years without seeking any withdrawal of that notice or making any agreement for continuing his possession.

I

Upon such a state of proof, I do not feel justified in holding that the landlord has made out a case establishing possession by the occupant as her tenant, and the motion to dismiss the proceeding must be granted.

Order affirmed, with costs.

Supreme Court, July, 1900.

[Vol. 32.

Matter of the Petition of HENRY H. LYMAN, State Commissioner of Excise, for an Order Revoking and Cancelling Liquor Tax Certificates Nos. 10,551, 10,552, 10,553, 10,554, and 10,375, Series of 1899, issued to WILLIAM TEXTER.

(Supreme Court, Kings Special Term, July, 1900.)

1. Liquor Tax Law A violation thereof forfeits all the certificates which the offender holds.

The Liquor Tax Law permits one person to hold certificates for any number of places where the liquor traffic is carried on, but, if he violates any provision of the said law, he forfeits all his certificates and the right to traffic in liquor anywhere.

offender.

Application for revocation may include all the places of the

A petitioner for revocation may join several places in one application where one person holds the certificates for all the places.

APPLICATION for an order revoking and cancelling liquor tax certificates.

P. W. Cullinan, for petitioner.

Hirsh & Rasquin, for respondent.

DICKEY, J. The Liquor Tax Law is concerned with individuals holding liquor tax certificates as well as the particular place where business is carried on.

While the law permits one person to hold certificates for different places without number, as I interpret the law, the violation by that individual of any of the provisions of the law will forfeit all tax certificates held by him wherever the premises are situate. It is meant to be drastic in its operations against violators of its provisions so that any offender loses all his rights to traffic in liquors anywhere.

I do not think it objectionable in one proceeding to join several places where certificates are held by the same person. There is no provision in the law forbidding it and the law fairly contemplates it. By section 42 it provides that two or more penalties may be sued for and recovered in the same action.

Ordered accordingly.

Misc.]

Supreme Court, July, 1900.

JOHN W. JONES et al., Plaintiffs, v. THE CITY OF NEW YORK and THE BOARD OF EDUCATION, Defendants.

1. Contract

(Supreme Court, New York Trial Term, July, 1900.)

Under a contract for a building, to be completed in a specified time, providing that work shall commence on a day to be designated by the superintendent of schools, his letter to the contractors, stating that the city comptroller has approved the contract and that there need be no delay in the progress of the work, is sufficient to warn them against the consequences of delay, although the letter contains no specific notification to them to commence the work.

Where a contract makes a city superintendent of schools the final arbiter between a school board and contractors with it, his decision is conclusive if he has not been guilty of fraud or misconduct.

Where under such a contract the school board, upon due notice to the contractors, on account of their non-performance, takes possession of the work and enters into a new contract which exceeds the contract price with the contractors, the board is entitled to recover from the contractors, by way of damage for such non-performance, the excess above the first contract price.

ACTION to recover damages for alleged breach of contract.

John Mulholland, for plaintiffs.

John Whalen, Corporation Counsel, Chas. Blandy, and E. J. Freedman, for defendants.

MCADAM, J. The plaintiffs entered into a contract with the board of education December 28, 1898, by which they agreed to build a schoolhouse at the southeast corner of Hubert and Collister streets for $193,931. The work was to be commenced on a day to be designated by the superintendent of school buildings, and completed within 300 days thereafter. Sundays or holidays were excluded from the time allowed for completion. On January 26,