Misc.] Supreme Court, March, 1896. knocked over by a cart which backed against it, was again set up without being fastened, and the following day was blown over by the wind upon the plaintiff. Held, that the city was not liable for such show case as a nuisance of its creation; that the time which elapsed from its collision with the cart was insufficient to impute notice of its dangerous condition to the municipal authorities, and that the city was not liable. MOTION to set aside verdict for the plaintiff and for a new trial. A. H. Dailey, for plaintiff. W. G. Cooke, for defendant. GAYNOR, J. I think it better that the verdict stand, and be reviewed by the Appellate Division. It was the duty of the city to keep the streets clear of encroachments and incumbrances (Brooklyn charter, title 15), and this action is maintainable only for a breach of such duty. It follows that the defendant may not be held liable unless such breach of duty caused the injury to the plaintiff. Did it? The show case was standing upon the sidewalk close to the curb, securely fastened to a post so that it could not fall over. It was not at all dangerous as it was. But a cartman, delivering goods next door, backed up against it in the evening, and knocked it over, breaking it from its fastenings. It was set up again by him or its owner without being fastened, and the next day the wind blew it over upon the plaintiff. The time which had elapsed was insufficient to impute notice of its dangerous condition to the city. Can the accident be said to have been caused by the neglect of the city, when it could not have happened excepting for the show case having been broken down by the cart? It seems to me not, unless the existence of the show case, securely fastened as it was, would, in the exercise of reasonable attention and prudence by the city's officials, have been considered dangerous, in that such a mishap as befell it with the cart was to be anticipated. If that was the case, then the neglect of the city was the cause of the accident; otherwise not. The proposition involves a question of fact, which was submitted to the jury. The city did not give a permit to the owner to place or maintain the show case, and is therefore not liable for it as a nuisance of its creation (as in the Cohen case, 113 N. Y. 532), any more than it would be for any obstruction placed or kept in the Supreme Court. March, 1896. [Vol. 16. street without its participation. Its liability is for breach of its duty to remove an obstruction, and it may not be held liable unless such breach of duty caused the injury. "The basis of the claim which the injured individual has against a city for damages, which were occasioned by a defect or obstruction in a public street, is in every instance the negligence of the corporation, acting through its officers." Tiedman Mun. Corp., § 350. The learned author uses this language in marking the distinction between the liabili ties of a city for neglect of duty in respect of the streets and for a nuisance created or maintained therein by it, or under a permit or license from it. Negligence in failing to remove an encroachment upon a street may only be predicated upon an encroachment essentially dangerous, or likely to become dangerous. Hume v. Mayor, 74 N. Y. 264; Rehberg v. Mayor, 91 id. 137. In other words, the duty is to use reasonable diligence to keep the streets safe for travel, and if that diligence be exercised there can be no liability. The question of fact in the present case was whether, in the use of reasonable official care and foresight, this show case would have been seen to be dangerous, in that it was likely to be knocked from its fastening, as it was; and this the jury answered in the negative. The motion for a new trial is denied. Motion denied MARGARET DOLON, as Executrix, Plaintiff, v. JOHN DAVIDSON, Defendant. (Supreme Court, Chautauqua Special Term, March, 1896.) The payee of a check held the same for fourteen years before presenting it at the bank upon which it was drawn, when payment was refused on the ground that the drawer had no funds on deposit. Held, that such presentment was not made within a reasonable time, and that the right of action against the drawer of the check was barred by the statute. MOTION for new trial on minutes. W. L. Sessions, for plaintiff. James I. Fowler, for defendant. Misc.] Supreme Court, March, 1896. LAUGHLIN, J. This is an action by the payee against the drawer of a check which reads as follows: "Jamestown, N. Y., December 12, 1880 "Chautauqua County National Bank. "Pay to the order of Mrs. Fox, or bearer, fifty dollars, on interest at six per cent. dollars; for value received. "$50. John Davidson." The check was not presented to the bank for payment until the month of January, 1895, upwards of fourteen years after its delivery to the plaintiff's intestate. Payment was then refused on the ground that the defendant had no funds in the bank. The plaintiff then notified the defendant that the check had been presented and payment refused. The bank upon which the check was drawn is solvent. The answer pleads payment and the statute of limitations of six years. Upon proving these facts the plaintiff was nonsuited upon the trial, and now moves for a new trial upon the minutes. Section 382 of the Code of Civil Procedure provides that an action upon a contract, except a judgment or sealed instrument, must be commenced within six years. Section 410 provides that where a right exists, but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete, with certain exceptions not applicable to this case. Prior to the enactment of section 410 of the Code, the General Term of this department, in the case of Brush v. Barrett, 16 Hun, 409, an action by the payee against the drawer of a check, had held that the statute of limitations had run against a check which was not presented for payment within six years after its delivery, and an opinion to the same effect was written by Judge Barker at Special Term. The Court of Appeals affirmed that judgment upon a different ground (82 N. Y. 400), and observed that it was unnecessary to pass upon the point decided by the General and Special Terms. This was the latest exposition of the law at the time of the enactment of section 410 of the new Code. It is evident from the language of that section, as well as from Throop's note thereto, that it was not intended to change the law, but Supreme Court, March, 1896. [Vol. 16. merely to clear away doubt and compile it as it then existed, reducing it to a precise and accurate statement. 29 Hun, 60, The check in question is presumed to represent an ordinary indebtedness on the part of the defendant to the plaintiff's intestate, then due and payable, but under the rules of the law merchant an action could not be brought against the drawer until after presentation of the check to the bank and refusal by the latter to pay. The check did not constitute an assignment of any funds in the bank, if there were any at that time, as to which there is no evidence (71 N. Y. 327, 330), and the bank owed the payee of the check no obligation. The right existed in favor of the plaintiff's intestate to the payment, by the maker, of the fifty dollars and interest immediately; but the demand of the payee and notice of nonacceptance was necessary for the convenience and benefit of the maker, and to relieve him of the cost and annoyance of a litigation, by affording him an opportunity to pay, in case his depositary refused to accept the check. 43 N. Y. 171-5; 17 Wend. 94-8; 79 Hun, 264, 267; 104 N. Y. 192. I am of the opinion that the statute of limitations has run against this action, both under the ruling of the General Term in Brush v. Barrett, supra, on account of the failure of the plaintiff's intestate to present the check within six years, and also under section 410 of the Code, which, I think, should be construed as requiring that the time within which the action must be commenced must be computed from the time when the right to make the demand was complete. The right to make the demand was complete upon the delivery of the check, and the holder of a check should not be permitted to postpone indefinitely the liability of the maker, by omitting to present the check for payment. When the statute of limitations would be a bar to an action on the indebtedness represented by the check, it should also bar an action on the check. 3 Lans. 33; 38 N. Y. 289. The early ruling that, as between the drawer and payee of a check, the check must be presented within a reasonable time or the drawer will be released to the extent of any damages he may have sustained, and that the burden is on the payee to show that the drawer has not sustained damages, was made before the enactment of the statute of limitations, and that phase of the question was not considered. 17 Wend. 94; 2 Hill, 425; 21 Wend. 382-3; 52 N. Y. 545-8; 6 Cow. 490. If, however, the holder of a check is entitled to a reasonable time to present the same before the statute of limitations com Misc.] Supreme Court, March, 1896. mences to run thereon, I think it must be held as a matter of law, that a presentation after fourteen years is not within a reasonable time. White v. Sutherland, Ct. App., 2 Albany Law Journal, 50; 75 Iowa, 294; 41 N. Y. 581, 589; 36 Mich. 487; 4 Sandf. 594-595; 15 Wend. 304-306. The motion for a new trial is denied, with costs. Motion denied, with costs. BERNARD MARCHAND, Plaintiff, v. HARRY D. HABER, Defendant. (Supreme Court, New York Trial Term, March, 1896.) 1. Summary proceedings protection to landlord. Defective petition - Warrant furnishes no A judgment of dispossession, entered in a proceeding instituted upon a petition which was defective by reason of a failure of the notary to sign the jurat, in which there was no appearance by the tenant, is void and furnishes no protection to the landlord. 2. Same Amendment of petition. A justice cannot, by amending the petition in a particular which is necessary to give him jurisdiction, acquire an authority nunc pro tunc. Where the judgment of dispossession was void because of a jurisdictional defect in the process, but the landlord acted in good faith, the tenant had no existing right to possession and the trespass was not accompanied by bodily fear or circumstances of aggravation, compensatory damages only may be recovered. ACTION for trespass vi et armis. Hal Bell, for plaintiff. A. Finelite, for defendant. MCADAM, J. On February 1, 1893, the defendant, as landlord, commenced a summary proceeding against the plaintiff, a monthly tenant, to remove him from the five rooms on the top floor, east side, of the tenement known as No. 96 East Broadway, for holding over after the expiration of his term. The defendant |