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App. Div.]

Second Department, November, 1907.

so loud as to be heard in the next house, were they not heard in his own household?

Of these four witnesses, three are of the household of Mrs. Bauer, and they all admit, as does also the other, the old vegetable vender, that they went to Mrs. Bauer's and there met the plaintiff before this action was begun. Though they told no one else, they seem to have told everything to Mrs. Bauer, and she prepared the case for the plaintiff. Her meddlesomeness is revealed. She and the witnesses actually breathed together, and she could not refrain from being a witness herself, although her testimony is not of particular account. Moreover, this servant remained in the house until after October 19th, 1905, when the defendant left his house on account of disagreements with the plaintiff, i. e., for more than a year after the first alleged adultery, without the plaintiff or any of the household seeing or hearing any impropriety between her and the defendant, much less knowing that he was a visitor or a lodger in the servant's bedroom, and participated in loud altercations there.

If there be a suspicion that the defendant and the servant were too intimate, that does not suffice.

The judgment should be reversed on the law and the facts.

WOODWARD, RICH and MILLER, JJ., concurred; HIRSCHBERG, P. J., not voting.

Judgment reversed on the law and the facts and new trial granted, costs to abide the final award of costs.

FLORENCE E. MAYER, Respondent, v. MARIAN DAVIS and Others, Respondents, Impleaded with CHARLES R. DAVIS, Appellant. Second Department, November 22, 1907.

Evidence-bastardy - burden of proof.

The burden is upon one seeking to establish illegitimacy of another to show beyond denial, dispute or controversy that the mother's husband did not have

access.

Evidence examined and held to be insufficient to establish lack of access.

REARGUMENT of an appeal by the defendant, Charles R. Davis, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the

Second Department, November, 1907.

[Vol. 122. 25th day of May, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, adjudging that the said defendant is not an heir at law of William II. Davis, deceased. The opinion written upon the first appeal is reported in 119 Appellate Division, 96.

Harry E. Lewis, for the appellant.

I. R. Oeland, for the respondent. GAYNOR, J.:

When this case was first disposed of by us I wrote: "If 280 days be taken as the period of gestation, there were within it 39 days of possible sexual access of the appellant's parents before his father went to the hospital, and if 300 days be taken as the period allowed from the latest opportunity of access to delivery, there were 59". In this I made the large error of 47 days. I should have written "before his father died", instead of "before his father went to the hospital"; and he was in the hospital 47 days. The result is that there was no time of possible access if the period of 280 days be taken (for there was no access during the 47 days the deceased was in the hospital), and only 12 days if the period of 300 days be taken. During these 12 days the deceased was living in the household of the mother of the two tenants in common other than the appellant, as pointed out in my former opinion. The purport of her testimony was that the wife of the deceased never visited him there. But she says that she was not always at home, and could not tell how often she went out. Moreover she was testifying for her children, and to be classed as a biased witness. The burden was on the respondents to show incontrovertibly "irrefragable proof", Caujolle v. Ferrié, 23 N. Y. p. 108), i. e., so clearly and certainly as not to admit of denial, dispute or controversy (see "Irrefragable", Century Dictionary) that such access did not take place, and this they did not do. It would be hazardous to say there was no access.

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(by

The judgment should be reversed both on the law and the facts. HIRSCHBERG, P. J., HOOKER, RICH and MILLER, JJ., concurred. Judgment reversed on the law and the facts on reargument, and new trial granted, costs to abide the final award of costs.

App. Div.]

Second Department, November, 1907.

JOHN J. PARDEE, Respondent, v. II. HOWARD DOUGLAS and Others, Doing Business under the Name of DOUGLAS, LACEY & Co., Appellants.

Second Department, November 22, 1907.

Damages agreement to make advances

measure of damage.

On the failure of the defendant to advance moneys to pay one drilling an oil well for the plaintiff's assignor pursuant to an agreement whereby the defendant was to receive in return for the advances certain stock deposited by the plaintiff's assignor, the measure of damages, when the oil well is abandoned half completed, is not the cost of the work done, but the excess of that cost over the value of the stock deposited; and when the value of the stock was not proved at trial, the plaintiff is entitled to nominal damages only.

Although the shares of stock were actually deposited in a bank to be delivered to the defendant in proportion to advances made, the title did not vest in the defendant who failed to make the advances, and the damages should not be based upon the theory, that the contract was executed by the plaintiff's assignor.

APPEAL by the defendants, II. Howard Douglas and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 31st day of December, 1906, upon the report of a referee.

The action is for damages for breach of contract, and the plaintiff is the assignee of the claim, the assignor being the Syndicate Petroleum Company.

C. A. Mountjoy [John J. Vause with him on the brief], for the appellants.

Henry H. Abbott, for the respondent.

GAYNOR, J.:

The controlling facts come down to just this: The Syndicate Petroleum Company had a contract with Spellacy & McCay, by which the latter undertook to bore an oil well for it 1,000 feet deep, unless oil in paying quantities should be obtained at a lesser depth. To get the funds to pay for the work as it progressed the said company entered into a contract with the defendants whereby the latter agreed to furnish the money and pay it to the said Spellacy & McCay as their payments came due for the work, and the former

Second Department, November, 1907.

[Vol. 122. agreed to deposit certificates for 100,000 shares of its stock with a specified bank to be transferred from time to time by said bank to the defendants at the rate of five cents a share in payment of the money they should pay to Spellacy & McCay on vouchers approved by the said Syndicate Petroleum Company. The stock was deposited with the bank, but the defendants broke the contract and never paid any money under it. The said company then proceeded to bore a well but it collapsed and became worthless after being sunk about 500 feet. The cost was $3,222.06.

What is the said company's measure of damage for the defendants' breach? The referee allowed the said $3,222.06. This was error. The measure was the excess of the cost of boring the well agreed upon over the value of the 100,000 shares of stock (Laraway v. Perkins, 10 N. Y. 371). Under the judgment in this case the company has the stock and is also given the amount of the expense of boring the well that failed. As there was no evidence of the value of the stock only nominal damages could have been given.

The judgment is based on the theory that the contract sued upon was an executed contract, i. e., wholly performed by the said company, in that the shares of stock were actually delivered to the defendants by being deposited with the bank, and are theirs, which is not so.

The judgment should be reversed.

WOODWARD, RICH and MILLER, JJ., concurred; HIRSCHBERG, P. J., not voting.

Judgment reversed and new trial granted, costs to abide the

event.

JOHN WOODENBURY, Respondent, v. SIEGMUND SPIER, Appellant Second Department, November 22, 1907.

Real property - vendor and purchaser - violation of Tenement House Act — when title not defective — when lis pendens no incumbrance.

One who has entered into a contract to purchase a tenement house cannot refuse' to take title on the ground that the water closets were in the yard instead of in the house as required by the Tenement House Act.

App. Div.]

Second Department, November, 1907.

A lis pendens filed in an action brought against the vendor's predecessor in title at a time when he had already conveyed the property, in which action the complaint was not filed as required by section 1670 of the Code of Civil Procedure is no incumbrance, both because of the failure to file the complaint and because the defendant in that action had parted with title.

A vendee who without cause has refused to take title and has neglected to sue for specific performance or the recovery of the earnest money for a year and a half, during which time the defendant has made substantial improvements, is entitled to no relief.

APPEAL by the defendant, Siegmund Spier, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of March, 1907, upon the decision of the court rendered after a trial at the Kings County Special Terin.

The complaint was for specific performance of a contract of sale of a tenement house in the city of New York; or if the defendant could not convey a good title, that the plaintiff have judgment for $500 which he had paid on the contract, and for the expense of searching the title. The trial court held the title defective, and gave plaintiff judgment for the said amounts.

The written contract was made on December 14th, 1904, and the contract day was February 17th following. The plaintiff refused to take title on the ground of alleged defects, and did not bring this action until July 31st, 1906. Meanwhile the defendant spent $1,000 in the improvement of the house.

The other facts are stated in the opinion.

Herman S. Bachrach, for the appellant.

William S. Haskell, for the respondent. GAYNOR, J.:

On the contract day the plaintiff refused to take title on the grounds (1) that there was an existing violation of the tenement house act in respect of the property, which was a tenement house, viz., in that the water closets were in the yard instead of in the house, as required by the said act, and (2) that in an action entitled the Tenement House Department of the City of New York against Harris Horowitz and Samuel Nelson a lis pendens had been filed against the property on June 4th, 1904. No complaint in such

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