farm, who entered upon the per- finding in this regard, and in our formance of his agreement. judgment effectually disposes of

The referee found as a fact that the claim of the appellant; for if the lease or contract was not re- he notified defendant Merritt prior newed after April 1, 1884. That to the first day of April, 1884, that during the year 1884, and down to he would no longer work the April 1, 1884, and thereafter, plain- premises, that he was going West, tiff contemplated disposing of his and defendant assented to the goods and farming implements proposition that he need not work and removing West; and also fre- the premises longer, and therequently during that time stated to upon Merritt entered into a condefendant M. and others that he tract with defendant Sutton to would not work the farm any work the premises, of which con. longer, and defendant M. assented tract plaintiff had notice, and after to plaintiff's proposition not to such notice assented to the same, work the same; that about March surely he cannot after this insist 1, 1884, defendant M. had a conver

that he was a tenant from year to sation with defendant S. in regard year and entitled to notice to quit. to working said farm and pastur- Judgment affirmed. ing his live stock in common with Smith, P.J., Barker and BradM.'s stock in the pasture lot, and an ley, JJ., concur. understanding was come to between them, and plaintiff had

JUSTICE'S COURT. COSTS. notice thereof and assented to the same, and also stated that he N. Y. SUPREME COURT. GENERAL would work defendant's premises

TERM. FOURTH DEPT. no longer, and that he might do as George N. Balcom, applt., v. he pleased with them, which Francis Terwilliger, respt. statements were communicated to defendants immediately after the

Decided Nov., 1886. same were made.

On appeal from a justice's judgment, where

no offer is served, the party recovering a Geo. W. Lamb, for applt.

verdict, report or decision is entitled to Henry J. Sullivan, for respts. costs, although the appeal was taken be

Appellant contended that a ten- fore and the verdict rendered after the ancy from year to year had been

amendment changing the rule as to costs. created, and it was not terminated Appeal from order of County by notice to quit. We have not Court, setting aside taxation of thought it necessary to discuss plaintiff's costs and striking them this question, because we are of from the judgment, and directing the opinion that the case must be costs to be taxed in favor of dedisposed of upon the other grounds. fendant.

HAIGHT, J.-It is true that the Action brought in Justice's evidence upon this subject was Court and issue joined in Dec., conflicting, but there was ample 1884. Jan. 10, 1885, plaintiff reevidence to sustain the referee's covered $93.92 damages, and appealed Jan. 28th 1885, demanding amended in 1885, it is provided, a new trial. No offer was made viz.: if neither party make an offer by respondent, and on June 17, as provided herein, the party in 1886, plaintiff recovered and en- whose favor the verdict, report or tered judgment for $49.22 damages decision in the Appellate Court is and $13.98 interest, in all $103.20. given shall be entitled to recover Plaintiff taxed his costs and en- his costs upon the appeal. As no tered them in his judgment. The offer was made and plaintiff rerecovery is not more favorable to covered in the County Court $89 him by $10, and defendant would we must hold his case falls within be entitled under $ 3070 before it the provision we have quoted from was amended by Chap. 522, Laws $ 3070, Code Civ. Pro., as amended of 1885, to costs.

in 1885, in accordance with cases Cannif & Penrie, for applt. adjudged. 24 W. Dig., 168. Carver & Deyo, for respt.

If the question were an open one Held, That the order was erro- in this court it might be doubted neous. Garling v. Ladd, 27 Hun, whether in this case either party 112, is an authority to the effect was entitled to costs, inasmuch as that costs “will be granted or no offer of judgment as provided refused in accordance with the law in § 3070 as amended by Chap. 522, existing when the party has a Laws of 1885, could be made. It right to costs." This action was might be questioned whether the commenced after Sept. 1, 1880, to legislature intended that the omiswit: on the day of Dec., 1884, and sion of an offer as provided should therefore does not fall under the cast a party in costs who when exceptional provision of $ 3347, the appeal was taken was not ausubd. 11. Chap. 522, Laws of 1885, thorized to make such offer as that amended § 3070 of the Code of named in $ 3070 as amended by the Civil Procedure and it took effect legislature of 1885, 80 N. Y., 344; July 3, 1885. If we apply the ex- 15 Abb. N. C., 72; however, as beception as to when the amendment fore remarked, we must follow shall take effect, or if we assume Shehan v. Butler, 24 W. Dig., 168, that the section as amended shall and the cases referred to in the be restricted in its application to opinion of Mr. Justice Follett, and cases enumerated in subd. 11 of $ apply $ 3070 as amended in 1885 3347, we must say that as this to this case, and reverse the order action was commenced after Sept. of County Court and direct a res1 1, 1880, it is not excluded from the toration of the costs taxed in operation of $ 3070 as it stood after plaintiff's favor and inserted in the the amendment thereof in 1885. judgment as originally entered. We are thus brought back to the Order reversed, with $10 costs general rule, that costs are regu

and disbursements. lated and given by the statute in Opinion by Hardin, P.J.; force “when the party has the Boardman, J., concurs; Follett, right to costs." By S3070, as J., concurs in result.

NEGLIGENCE. DAMAGES. making so as to be satisfactory for N. Y. COMMON PLEAS. GENERAL the trade; and that “to go down

town and make contracts you canTERM.

not get any one to do that for Isaac Marks, respt., v. The

you." Long Island RR. Co., applt.

Hinsdale & Sprague, for applt. Decided Dec. 6, 1886.

Vanderpoel, Green & Cuming,

for respt. In an action for damages for personal injuries, there can be no recovery for profits

Held. That it was for the loss of which plaintiff would have made, if unin. profits this plaintiff recovered, aljured, in his business as manufacturer of though his counsel calls it earn

clothing upon contract with dealers. The jury should not be permitted to specu- ings. These profits depend upon late as to the uncertain profits of com

too many contingencies and are mercial ventures in which plaintiff if un- altogether too uncertain to furnish injured would have been engaged.

any safe guide in fixing the Appeal by defendant from judg- amount of damages. Plaintiff ment in favor of plaintiff for had the right to prove the business $1,000 and costs, for personal in- in which he was engaged, its exjuries sustained through defend tent and the particular part transant's negligence, and from order acted by him, and, if he could, denying motion for new trial. the compensation usually paid to

Plaintiff was a manufacturer of persons doing such business for clothing. He employed hands to others. These are circumstances sew and make up clothing which the jury have a right to consider was cut and furnished to him in in fixing the value of his time. large quantities by dealers in cloth- But they ought not to be permitted

to speculate as to the uncertain contracts personally and over- profits of commercial ventures in looked the work. He was allowed which plaintiff, if uninjured, to show his earnings in this busi- would have been engaged. ness upon the ground that his per- The element of personal skill sonal skill, experience and knowl- and experience was even stronger edge were required in it, and that than here in the case of Masterton, he could not have employed where the question was as to judganother person to take his place ment in the buying of teas, alwith equal efficiency. Appellant though it does not appear that claims that these

these “earnings there was any testimony in that were profits and that the proofs case as to ability to employ others should have been excluded under to do the work. It is not too the ruling in Masterton v. Village much to assume, however, in every of Mount Vernon, 58 N. Y., 391. such case, that success in every Plaintiff testified that he made the business is due to the special fitcontracts down town for the work, ness and aptness of the men at got the goods and brought them the head of it or of its various dehome and then superintended the partments, but the profits of such

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business do not depend solely upon tice July 23, 1885, but no notice of the skill of the individual and are such filing, or a copy of the undernot, therefore, the measure of his taking was served upon plaintiffs. damage when he seeks a recovery August 18, 1885, respondent's atfor his loss of time and opportuno torneys served upon appellant's ity to earn money arising from attorney a notice of retainer, and personal injury.

on August 31 served a notice exJudgment reversed and new cepting to the sureties upon the trial ordered, with costs to abide undertaking, and on Nov. 20 event.

served a notice of trial. Upon Opinion by Daly, J.; Van Hoe- Nov. 25 respondents moved to dissen, J., concurs.

miss the appeal upon the ground

that appellant's sureties failed to APPEAL. WAIVER.

justify, and that no new underN. Y. SUPREME COURT. GENERAL taking had been executed and filed. TERM. FIFTH DEPT.

It was contended that respondWilliam T. Slattery et al.,

et al., ents, by serving a notice of retainrespts., v. Samuel E. Haskin, applt. er and of trial, waived the justifiDecided Oct., 1886.

cation of the sureties.

H. Bemis, for applt. l'pon an appeal from Justice's Court for a trial in the County Court, the appellant

0. E. Searl, for respts. failed to serve a notice of the filing of the Held, That the service of a noundertaking, with a copy thereof, upon tice of retainer and of a notice of the respondent, who, notwithstanding,

trial by respondent's attorneys appeared by an attorney, who served a

was no waiver of the right to renotice of retainer, afterwards a notice excepting to the sureties, and subse- quire the sureties upon appellants quently a notice of trial, and then moved

undertaking to justify. to dismiss the appeal upon the ground of Itis wellsettled that parties by apthe failure of appellant's sureties to justify. Held, That neither the service of

pearing generally waive irregularsuch notice of retainer nor the notice of

ities theretofore existing, and may trial was a waiver of the respondent's confer jurisdiction upon the court, , right to require such sureties to justify.

even though the court without Appeal from order permitting such appearance would have had defendant to perfect his appeal by no jurisdiction. 67 Barb., 385; 63 procuring the proper justification N. Y., 176; 62 id., 111; 6 T. & C., and allowance of the sureties 120. named in the undertaking within The most that respondents could twenty days, or in default that be held to have waived by their his appeal be dismissed.

appearance was the service upon Action was brought in Justice's them of the copy of the undertakCourt, plaintiff recovered judg. ing with the notice of its filing. ment, and defendant appealed for This did not admit the sufficiency a new trial in the County Court. of the sureties, nor deprive them Notice of appeal was served and of the right to except tirereto. By an undertaking filed with the Jus- appearing they cannot be deemed

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to have assumed that the sureties Order affirmed, appellant to have
would fail to justfy, or that appel-twenty days in which to perfect
lant would fail to furnish a new his undertaking under the order
undertaking if required. The appealed from.
right to dismiss the appeal grows Opinion by Haight, J.; Barker
out of that which transpired sub- and Bradley, JJ., concur.
sequent to the notice of retainer,
and consequently was not waived

LARCENY. INDICTMENT. by the service of such notice. The

N. Y. SUPREME COURT. GENERAL waiver, if any, must therefore have been in the service of the

TERM. FIFTH DEPT. potice of trial. But appellant has The People, respts., v. Alexanfailed to call our attention to a sin- der Dumar, applt. gle case holding that the service

Decided Oct., 1886. of a notice of trial or argument is

Since the obtaining of goods by means of a waiver of the right to move to

false pretenses is merely one of the acts dismiss an appeal, and we are in- constituting the crime of larceny, an inclined to doubt the propriety of so dictment as for larceny at common law, holding. In Beebe v. Marvin, 17

-simply alleging that “defendant un

lawfully and feloniously did steal, take Abb., 194, held that plaintiff was

and carry away "goods specified,—is sufnot barred from making a motion ficient, without setting forth the means for judgment upon a sham answer or pretenses by or through which the after having noticed the case for

goods were obtained or stolen. trial; that he was entitled to the

Appeal from judgment convictearliest disposition of the case he | ing defendant of the crime of grand could get.

larceny in the second degree. In Arnoux v. Homans, 32 How., The indictment was in the usual 382, it was ruled that the service and common form for larceny at of notice of argument of an appeal common law and under the Redid not preciude the enforcing vised Statutes, alleging that depayment of the judgment where fendant “ unlawfully and felonino stay of proceedings had been ously did steal, take and carry granted.

away” the specified goods “then It is true that appellant was in and there being found.” The default in not procuring the allow- prosecution proved, against objecance of his undertaking at the tion, that defendant purchased the time the notice of trial was served, goods by means of false and fraudubut he still had the right to move lent representations as to his inthe court for relief in this regard, dorser's financial responsibility. and respondents not wishing the The court was requested to discase to go over another term of charge defendant upon the ground the court may have noticed it for of variance between the proof and trial without intending or desiring the indictment, which was denied. to waive their right to also move The question was, whether since to dismiss the appeal.

the obtaining of goods by false

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