March 23d, or four days later than its shipment, during all of which time it was in defendant's custody. This evidence might tend to establish that the address on box and that recited in the receipt were different at the time of shipment, but it was far from conclusive upon that point.

In Magnin v. Dinsmore, 51 N. Y. 168, the learned court says:

"It is no longer open to question in this state that, in the absence of fraud or imposition, the rights of carrier and shipper are controlled by a contract in writing delivered to the shipper by the carrier at the time of the receipt of the property for transportation."

It was error to permit proof against objection of defendant's custom. Custom or usage, general or local, may in some instances be material, but evidence of the custom or usage of a party to an action is certainly incompetent to contradict the express or implied terms of a contract. Hopper v. Sage, 112 N. Y. 530, 20 N. E. 350, 8 Am. St. Rep. 771. No proper foundation for the admission of the "Cabinet Card" testified to by defendant's "On Hand Clerk" was laid, and the exception taken to the overruling of plaintiff's objection thereto of itself establishes reversible error. Linden v. Thieriot, 96 App. Div. 256, 89 N. Y. Supp. 273.

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

RICE v. HOGAN.

(Supreme Court, Appellate Term. November 10, 1904.)

1. OPENING STREETS-WATER SUPPLY-INTERFERENCE-TRESPASS.

Where defendant, a plumber, opened the street in front of a dwelling house to repair Croton water pipes under a permit from the municipal authorities, and he confined his excavation to the part of the street specified in the permit, the fact that by negligence the water supply to the premises of plaintiff, an adjoining owner, was cut off, did not authorize a recovery of damages in an action of trespass, since whatever act was done by defendant was with reference to the property of the city. 2. SAME MUNICIPAL COURT-Costs.

Where, in a suit in the Municipal Court, defendant did not file a written notice of appearance by counsel, nor any verified pleading, which, by Municipal Court Act, § 332 (Laws 1902, p. 1585, c. 580), is made an absolute condition to defendant's right to costs, it was error for the court to award costs to defendant on judgment being entered in his favor.

Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by Rosa Rice against James F. Hogan. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Modified. Argued before FREEDMAN, P. J., and BISCHOFF and FITZGERALD, JJ.

J. Wilson Bryant, for appellant.

Frederick H. Denman, for respondent.

BISCHOFF, J. As appears from the return the action was brought for "damages and conversion," and it developed upon the trial that the

and 124 New York State Reporter

claim was substantially for the defendant's negligence in cutting off the water supply from the premises owned by the plaintiff, No. 717 East 163d street, when engaged as a plumber in seeking to repair a defect in the tap connecting the premises No. 725 East 163d street with the Croton water main in the street. When opening the street the defendant confined himself to the terms of the permit issued by the municipal authorities, whereby he was authorized to make an excavation opposite No. 725 East 163d street, and the action therefore depends upon whether or not he was negligent when lawfully performing certain work in and about the public street. This was not a case of trespass, at least as against the defendant. Whatever was done by the defendant had to do with the city's property in the public street, and the interference with the water supply affected the corporate enterprise of the city in maintaining its water system. The Croton water mains cannot be likened to a natural water course, to the undisturbed use of which the plaintiff had a natural right, and at best her claim against the defendant was because of his failure to use reasonable care that she should not be injured by his operations in connection with the city's property. So far as appears, the damages which the plaintiff sustained were measured by an expense voluntarily assumed by her for her own more immediate convenience to meet a condition caused by the defendant's failure of duty toward the city; and while at the trial the cause of action was characterized as one for a trespass, the most favorable view of the case for the plaintiff would be that the liability arose through the defendant's breach of duty to use ordinary care for her protection, since trespass could not lie. Upon the question of the exercise of care the evidence authorized the conclusion of the justice that the defendant exercised all the prudence which a reasonably prudent person would have employed under the circumstances of the case, in view of the fact that the water tap leading to the plaintiff's premises was placed opposite the premises No. 725 by reason of certain changes in the grading of the street as to which the defendant had no reasonable means of knowledge. Assuming, therefore, that the plaintiff could charge him with the expense which she defrayed, if the immediate necessity for the expense was caused by the defendant's negligence in such a situation, it was competent to the justice to decide that fact that the defendant omitted no duty of reasonable care to her, and the resulting judgment should not be disturbed.

The plaintiff assails the award of costs to the defendant upon the ground that there was no filing of a written notice of appearance by counsel on behalf of the defendant, as required by section 332 of the Municipal Court Act (Laws 1902, p. 1585, c. 580). In our opinion, this contention is sound. There was no verified pleading on behalf of the defendant, and the appearance by attorney is evidenced only by the indorsement made by the justice upon the summons. The filing of a verified pleading or of a written notice of appearance by an attorney at law in behalf of the successful party is made an absolute condition to his right to costs in the Municipal Court (Municipal Court Act, § 332, Laws 1902, p. 1585, c. 580); and, since the statute requires that the return should contain all the proceedings in the cause (Id. § 317, Laws 1902, p. 1580, c. 580), we must assume, from the absence of a written

notice of appearance in the return, that none was filed. Hence the award of costs to the defendant was unauthorized, and the judgment must be modified accordingly.

Judgment modified by striking out the provision for costs to the defendant, and, as modified, affirmed, without costs to either party. All

concur.

HALTERMAN v. LEINING.

(Supreme Court, Appellate Term. November 10, 1904.)

1. BROKERS-COMMISSIONS-EFFECTIVENESS OF BROKER'S EFFORTS.

Where a real estate broker was not acquainted with the purchaser, and did not introduce him to the seller, the effectiveness of the broker's instrumentality in bringing about the sale must be affirmatively proved to entitle the broker to commissions.

2. SAME.

In an action for broker's commissions, evidence reviewed, and held insufficient to establish that the sale was accomplished through plaintiff's efforts.

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

Action for broker's services by J. Fred Halterman against Lewis Leining. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and FITZGERALD, JJ.

Davis & Williams, for appellant.

George M. S. Schulz, for respondent.

BISCHOFF, J. The plaintiff's employment as a broker to effect a sale of the defendant's property was conceded, and the question which this appeal presents is whether the finding of the justice. that the sale resulted from the plaintiff's efforts as the procuring cause has sufficient support in the evidence. In our opinion, the cause of action was not proven by the weight of the evidence, and a new trial should be had in furtherance of substantial justice. It appears that after the plaintiff was employed to sell the defendant's house he caused certain advertisements to be inserted in the newspapers, and wrote some letters to Mr. Diederich, the party who subsequently entered into a contract to purchase the premises; plaintiff's attention having been attracted by this person's advertisement of himself as an intending purchaser of property of this character. The plaintiff never saw Mr. Diederich, and received no replies to his letters, nor is there proof that he in any way apprised the defendant of the fact that Mr. Diederich was a person deemed to be introduced to the latter through his (plaintiff's) efforts. It is true that the plaintiff wrote a letter to the defendant, in which, according to his testimony, he named Mr. Diederich as one of the possible purchasers whom he was endeavoring to secure; but this letter the plaintiff admits having opened himself at the defendant's house in the latter's absence, but in the presence of his

and 124 New York State Reporter

wife, whose authority to consent to such a course was in no way made to appear. What became of the letter thereafter is something as to which the record is not clear, but the defendant denies having received it, and there is no presumption that he did, in view of the plaintiff's interference with its transmission in the ordinary course. The plaintiff's case depends upon the strength of an inference sought to be drawn that Mr. Diederich, the purchaser, was led by the plaintiff's letter to come into communication with the defendant, and that the resulting contract of sale was due to the plaintiff's efforts. This inference, however, is wholly opposed to' credible and uncontradicted testimony, Mr. Diederich having testified that he did not recall ever receiving any letters from the plaintiff regarding the property, and that he first became advised of the fact that it was for sale through information given him by the janitor. The fact that this purchaser was an interested witness by reason of his engagement with the seller to pay any broker commissions, if due, certainly cannot be taken as ground for wholly discrediting him, where his testimony is not opposed to any other proof or the probabilities of the case; and yet the resulting judgment for the plaintiff must have proceeded upon the arbitrary rejection of his testimony and the acceptance of an inference that, because the plaintiff wrote to the purchaser, notwithstanding that no correspondence followed, the act of writing and sending the letter caused the buyer and seller to come together. Where, as in this case, the broker is not acquainted with the purchaser, and did not introduce the latter to the seller, the effectiveness of the broker's instrumentality in bringing about the sale must affirmatively appear if commissions are to be recovered (Sussdorff v. Schmidt, 55 N. Y. 319, 322); and in our view the facts of this case in no way meet this test.

The judgment is therefore reversed, and a new trial ordered. with costs to the appellant to abide the event. All concur.

DOS PASSOS et al. v. CITY OF NEW YORK.

(Supreme Court, Appellate Term.

November 10, 1904.)

1. GREATER NEW YORK-SHERIFFS-POUNDAGE FEES-ENFORCEMENT-EXPENSES -RECOVERY.

Where the sheriff of New York county expended money in an attempt to recover poundage fees, a recovery thereof could be enforced by the sheriff or his assignees only against the city of New York, whether the liability to the sheriff was that of the county or city.

2. SAME.

Laws 1890, p. 936, c. 523, Laws 1891, p. 645, c. 315, Laws 1892, p. SGS, c. 418, and Laws 1894, p. 959, c. 477, provide that all the fees collected by the sheriff of New York county, and specified in Acts 1890, p. 940, c. 523. § 17, and Code Civ. Proc. § 3307, including poundage fees for the levy of an attachment against property, shall be paid by him monthly into the city treasury, at which time he is also required to transmit to the city comptroller a sworn statement of his account of the fees collected, and upon approval of the account by the comptroller the latter is

required to pay the sheriff one-half of such fees in part payment of his services. Held that, since it was the duty of the sheriff to collect poundage fees payable to him, the city was liable for repayment of money necessarily expended by the sheriff in an attempt to collect such fees by legal process.

Appeal from Municipal Court, Borough of Manhattan, Tenth

District.

Action by John R. Dos Passos and another, assignees of the sheriff of the city and county of New York, to recover the reasonable costs and disbursements incurred by him on appeal in an unsuccessful effort on his part to collect poundage fees alleged to have accrued upon the levy of an attachment against property for payment into the treasury of the city of New York as directed by law. Judgment dismissing complaint. Plaintiffs appeal. Re

versed.

Argued before FREEDMAN, P. J., and BISCHOFF and FITZGERALD, JJ.

Edward C. Moen, for appellants.

Theodore Connolly and Thomas F. Noonan, for respondent.

BISCHOFF, J. It is to be noted that the claim in suit does not involve any demand for services alleged to have been performed by the plaintiffs' assignor, but is strictly for reimbursement of his reasonable expenses alleged to have been incurred in his efforts to collect certain fees of his office as sheriff of the county of New York, under an imposed statutory duty to collect the same, and to pay such fees into the city treasury. The trial proceeded upon an agreed state of facts, which are as follows: In November, 1902, there was delivered to the plaintiffs' assignor, William J. O'Brien, then sheriff of the city and county of New York, a warrant of attachment against the property of the International Power Company and Joseph H. Hoadley, which was issued in a pending action in the Supreme Court, wherein they were defendants and John F. Plummer was plaintiff. Under this warrant of attachment the sheriff levied upon property valued at $122,492.06. Later the plaintiff in that action consented to the release of the property levied upon, and an order to that effect was made by the court and entered without notice to the sheriff. Thereafter the sheriff applied to the court for a taxation of his poundage fees, and an order was entered taxing the fees at $1,224.92, and directing payment thereof by the plaintiff. From the last-mentioned order the plaintiff appealed, and in December, 1903, it was reversed by the Appellate Division, with $89.07 costs and disbursements against the sheriff. 88 App. Div. 452, 85 N. Y. Supp. 107. Having first duly requested the comptroller of the city to pay the costs and disbursements, and such payment having been refused, the sheriff assigned whatever claim for reimbursement he had, in his official capacity and otherwise, to the plaintiffs, who again presented the claim to the comptroller, in writing, for payment, which was again refused. It was further agreed that there remained a balance of the appropriation. duly made for the year ending December 31, 1903, for incidental