Misc.] Supreme Court, Appellate Term, February, 1896. defense was substantiated by six witnesses, nearly all of whom were disinterested, who were corroborated to an extent by one of the plaintiff's witnesses. This witness did not testify at the new trial. Upon the second trial the plaintiff was materially corroborated by Mr. Schlereth, a disinterested witness, who was a passenger on the defendant's car at the time the collision occurred. So that. the present record comes before us with the respondent's case considerably strengthened and hardly open to the criticism made against the first judgment. The jury heard the testimony of the different witnesses and observed their manner of testifying. It was peculiarly appropriate in a case of this kind, where the testimony was conflicting, that a jury should determine whether the story told by the plaintiff's witnesses was truthful or not. We cannot now say that the verdict is against the evidence, and as that is the only objection urged on this appeal the judgment must be affirmed, with costs. Present: MCADAM and BISCHOFF, JJ. JOHN F. REILLY, Respondent, v. THE SICILIAN ASPHALT PAving Co., Appellant. Negligence (Supreme Court, Appellate Term, February, 1896.) Defendant, which was engaged in repairing the sidewalks of Central park, left piles of asphalt in the gutter, about forty feet apart, and between them, and about four feet from the gutter, a pile of sand and gravel The piles of asphalt had lights upon them, but the other had no danger signal. Plaintiff, while driving in the park driveway on a dark night, collided with the pile of sand and his carriage was thereby injured. Held, that the facts justified a finding of negligence on the part of the defendant. APPEAL from a judgment of the Eighth Judicial District Court in favor of the plaintiff. John Mulholland, for respondent. Herbert C. Smyth and G. Thornton Warren, for appellant. Supreme Court, Appellate Term, February, 1896. [Vol. 16. BISCHOFF, J. The plaintiff sued for and recovered damages for injuries to his carriage, occasioned by his driving upon and against a pile of wet sand and gravel, placed by the defendant company in the western driveway of Central park, and maintained during darkness, without any signal of danger, in that highway. No questions other than those touching the negligence of the defendant and the contributory negligence of the plaintiff are brought before us by the appellant. The facts upon which the judgment is based are that the plaintiff was driving his vehicle, between 8:30 and 9 o'clock in the evening of July 1, 1895, it being at the time quite dark; that the defendant was engaged during the daytime in repairing the sidewalks of the park and had left piles of asphalt in the gutters of the roadway, at the locality of the accident, with a light upon each pile. The bank of sand and gravel, which caused the damage, had been deposited by the defendant midway between two piles of asphalt, each being twenty feet, respectively, from such bank, but the latter was about four feet from the gutter, and thus nearer the middle of the road than were the asphalt piles. This sand and gravel mound was, in appearance, like the bed of the road, and the plaintiff, proceeding in a line parallel with the lighted piles, drove upon it without having any warning of his danger. We fail to find any reason for this appeal upon the facts, since the justice below could most properly find from the evidence that the defendant was negligent in its manner of maintaining the locality, thus rendered dangerous by the work in progress, and that the plaintiff used due care under the circumstances. There is no reason why the plaintiff's testimony in this case should not have been believed by the justice, and that testimony quite fairly shows an absence of any contributory negligence. Judgment affirmed, with costs. MCADAM, J., concurs. Judgment affirmed, with costs. Misc.] Supreme Court, Appellate Term, February, 1896. JOHN A. ECKERT, Respondent, v. PERCY W. CLARK, Appellant. (Supreme Court, Appellate Term, February, 1896.) Jurisdiction-District Courts -Money had. Where the defendant, in an action for money had and received, admits that he received and holds for the use of the plaintiff a specified sum, the fact that such fund arose out of a partnership transaction is immaterial, and does not deprive the District Court of jurisdiction of the action. 4 APPEAL from a judgment of the District Court in the city of New York for the First Judicial District, in the plaintiff's favor. Action for money had and received to the use of the plaintiff. Sproull, Harmer & Sproull, for respondent. John M. Ward, for appellant. BISCHOFF, J. The action was for money had and received to the use of the plaintiff, the claim being admitted by stipulation in the record, as follows: "It is stipulated herein, and the defendant admits, that he has received to the use of this plaintiff the sum of $32.50 which the defendant received on or about the 1st day of February, 1895, and which he now holds for the plaintiff herein, being plaintiff's share in the interest of defendant in the firm of Plyer & Clark, for the month of January, 1895." The issue litigated was solely as to the defendant's counterclaim for services. Upon the first trial of this action judgment was rendered in favor of the defendant for the excess of the counterclaim over and above the plaintiff's admitted cause of action for money had and received. This judgment was reversed by the Court of Common Pleas, the ground of the decision being that, by the terms of the copartnership agreement between these parties and two other persons, it appeared that the services for which the counterclaim was made were performed as part of the defendant's duties and that, therefore, the claim could not prevail in the absence of a special agreement. Eckert v. Clark, 14 Misc. Rep. 18. Upon the second trial no further evidence was brought out, the parties simply submitting the minutes of the first trial, and Supreme Court, Appellate Term, February, 1896. [Vol. 16, the present record is the same as that reviewed by the Court of Common Pleas The justice below, following the decision of the appellate court, rendered judgment for the plaintiff upon the admitted demand, and the defendant now claims that the court was without jurisdiction over the cause of action, since it arose out of a partnership transaction, the basis of the contention being that the accounts were involved and that the action could not be maintained at law. It appears, however, from the admission of liability in evidence that the claim in suit consisted of liquidated profits received by the defendant for payment to the plaintiff, and that payment had not been made. Demand and refusal were also verbally admitted. The question, therefore, had no bearing upon the partnership accounts, was solely one of an admitted legal liability as between these parties, and whether they were partners or not is quite immaterial. First Nat. Bank v. Wood, 128 N. Y. 35; Matter of Bingham, 82 Hun, 51; Bank of British N. A. v. Delafield, 126 N. Y. 410, 416. So, too, the question as to the rights of the other partners is not in the case; the defendant having been sued as an individual upon a personal liability, and having chosen to admit the claim for the purpose of receiving some expected benefit from his counterclaim, cannot now recede from his position and point to a supposed demand which strangers to the record might make upon him touching this fund. The defendant's contention, that the judgment cannot bind the partnership in this action at law, is undoubtedly correct, but it is sufficient that it binds him upon his admitted individual promise to pay the sum received to the plaintiff. The judgment should be affirmed, with costs. MOADAM, J., concurs. Judgment affirmed, with costs. Misc.] Supreme Court, Appellate Term, February, 1896. THE PATTERSON GAS GOVERNOR Co., Respondent, v. SAMUEL G. BAYNE et al., Appellants. (Supreme Court, Appellate Term, February, 1896.) Appeal Conflict of evidence. In an action upon a contract for the purchase of a gas-governor on condition that, upon trial, it should show a saving of a certain percentage of gas; if not, to be removed at the vendor's expense, the evidence as to the fact of such sawing was conflicting, and it appeared that no direction to remove it had been given. Held, that & decision in favor of the plaintiff would not be disturbed. APPEAL by defendants from judgment of the Eighth Judicial District Court. Taylor & Parker (Herman Aaron, of counsel), for appellants. P. C. Talman, for respondent. MOADAM, J. The action was on a contract in these words: "New York, November 19, 1894. "Patterson Gas Governor Co. 553 West 33d Street. "Please attach to meter at Riverside drive, corner of 108th street, Patterson gas governor, for which I hereby promise to pay to your order ninety dollars after thirty days' fair trial, provided said machine effects a saving of from fifteen to forty per cent., as demonstrated by actual time test, of same number of burners for a given period, with and without governor, against open street pressure. Failing to record above saving machine to be removed at your expense. "S. G. Bayne." The burden of proving performance of the condition that the governor would demonstrate after thirty days' fair trial a saving of from fifteen to forty per cent. in the consumption of gas rested upon the plaintiff. Patterson Gas Co. v. Glenby, 4 Misc. Rep. 532. Mr. O'Keefe, an employee of the plaintiff, testified that he tested the governor, and that it effected a saving of thirty-two per cent.; and Mr. Patterson, who is also connected with the plaintiff, testified that the defendant Samuel G. Bayne told him |