689, § 115, known as the "Banking Law," to have one Alexander McKeown made a party defendant in this action. Under the decision in the case of Mahro v. Bank, 16 Misc. Rep. 537, 40 N. Y. Supp. 29, this order must be affirmed as hereinafter modified. The case at bar is much stronger than the case above cited, as in this case it is conceded that Alexander McKeown had an interest in the fund in question; said fund having been deposited with the defendant bank in the name of the plaintiff and said Alexander McKeown jointly. Under the authority of Faivre v. Bank (Super. N. Y.) 13 N. Y. Supp. 423, the order appealed from must be modified by striking out the words, "Ordered that the said funds on deposit, which are the subject of this action, remain with the defendant Bank for Savings upon the same interest as other deposits of like amount, until the final determination herein," and inserting in place thereof, "That the said defendant Bank for Savings be required to deposit said fund in court, according to the usual practice in such cases, within ten days after entry of this order, and service of notice of entry upon said defendant bank, unless the parties within that time stipulate in writing that the said fund remain with said bank”; and as so modified the order of the special and the general terms is affirmed, with costs to defendant, the Bank for Savings, to be paid out of said fund. All concur. (26 Misc. Rep. 726.) METZ v. VIRGIL PRACTICE-CLAVIER CO. (Supreme Court, Appellate Term. March 24, 1899.) SALES-IMPLIED GUARANTY. In an action for the value of articles made and sold for a certain use, the evidence showed that at the time they were to be used they were not sufficiently seasoned, were imperfect, and that competent and experienced workmen were unable to use them; and it was not shown with reasonable certainty that they would ever be fit for the use for which they were designed, though they were partially satisfactory at the time of trial. Held that a judgment for their price was not supported. Appeal from municipal court, borough of Manhattan, Second district. Action by Charles Metz against the Virgil Practice-Clavier Company. There was a judgment for plaintiff, and defendant appeals. Reversed. Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ. Hobbs & Gifford, for appellant. T. L. Eckerson, for respondent. FREEDMAN, P. J. This action was brought to recover the value of 1,672 sets of decalcomania transfers, which are words or figures designed to be transferred from paper to wood or leather. The plaintiff is the assignee of the cause of action. Thomas P. Burke, the assignor, was the only witness sworn on behalf of the plaintiff whose testimony materially affects the case. Burke, at the time the cause of action accrued, was the manufacturer of the goods in question, and and 90 New York State Reporter. At the time the order personally made the sale to the defendant. was given by defendant to Burke for the transfers, nothing appears to have been said as to when the goods were to be delivered, or when they were needed for use by the defendant; but on December 18, 1896, the defendant, by its president, Virgil, wrote Burke that the defendant would not have use for the goods before the following July or August, and in July, 1897, Burke made the transfers, and sent them to the defendant. Although the testimony is not direct upon the question, the reasonable inference to be drawn from the letters and the other circumstances of the case is that Burke knew the goods were to be used, if not immediately, at least within a short time after delivery. It appears, however, that the defendant made no use of them until October, 1897, at which time they were found to be imperfect, and the defendant was unable to use them, and so informed Burke. Some correspondence passed between the parties relative to the manner in which the transfers should be used; Burke giving instructions, and the defendant claiming to follow them, but without successful results. Burke subsequently, by appointment, came to New York, in October or November, 1897, and endeavored to use the transfers. There is some dispute in the testimony as to the degree of success attained by Burke in the use of the goods, and Burke testifies that he told the parties present at the experiment that the goods were not sufficiently "seasoned"; to "let them season, and they would be all right." So that it appears that the delay in the use of the goods tended to benefit them, and that both at the time of their delivery and the time of their use the goods had not sufficiently seasoned. It was clearly shown by the testimony of the defendant's witnesses that the transfers were imperfect, and that experienced workmen, fully competent and acquainted with such work, were unable to use them, and a large amount of them were returned to Burke within a short time after his visit to defendant. From all the facts and circumstances in this case, as shown by the evidence, Burke must be held to have warranted the goods to be adapted to the use for which they were intended. "Where a manufacturer contracts to sell an article of his own make or manufacture, and there is no express warranty, the law implies a warranty that it shall be reasonably fit for the purpose to which it shall be applied." 10 Am. & Eng. Enc. Law, p. 144, and cases cited. The proof shows that the goods could not be used at the time and for the purpose they were intended to be used; nor was it shown with reasonable certainty that they would ever be fit for the purpose for which they were de signed. That some of the experiments made at the time of the trial appeared to be satisfactory, while others failed, does not relieve the plaintiff from the implied guaranty. The judgment must be reversed. Judgment reversed, and new trial ordered, with costs to the appel lant to abide the event. All concur. MARSH et al. v. NASSAU SHOW-CASE CO. (Supreme Court, Appellate Term. March 24, 1899.) 1. MUNICIPAL COURTS-APPLICATION FOR ADJOURNMENT. Under Greater New York Charter, § 1377, providing that the rules of the supreme court shall apply to municipal courts, where an attorney, pursuant to rule 5 of the supreme court, applies to a municipal court for adjournment, and presents an affidavit that he is actually engaged in the supreme court, the justice errs in not granting it. 2. SAME-OPENING DEFAULT-ERROR CURED. Where the justice refuses such an application, and permits plaintiff to take judgment, the error is not cured by opening the default, where terms are imposed on defendant. Appeal from municipal court, borough of Manhattan, first district. Action by Marsh & McClennen against the Nassau Show-Case Company. From a judgment of inquest, and an order granting defendant's motion to open the default conditionally, it appeals. Reversed. Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ. McKelvey & Mattocks, for appellant. MacLEAN, J. This case having been called upon the day calendar of January 19, 1899, for trial, a representative of the defendant's attorneys applied for an adjournment, and presented and filed an affi davit, verified on that day, wherein the affiant deposed that he was one of the attorneys, and had charge of the above-entitled action; that he was actually engaged in the trial of a case (named) in the supreme court, New York county, trial term, part 7, and would be unable to proceed with the trial of this case on that date. As there was presented to him the very affidavit contemplated in rule 5 of the rules to regulate calendar practice in this department, including the practice in the municipal court (section 1377, Greater New York Charter), the justice erred in not granting the application, and in permitting the plaintiff to take an inquest and recover judgment. This error was not cured by opening the default upon a motion made and heard upon conflicting affidavits, with the imposition of terms upon the defendant. The judgment appealed from should be reversed, and the order vacated, with costs to the appellant. Judgment reversed, and order vacated, with costs. All concur. (26 Misc. Rep. 715.) RYER et al. v. PENNSYLVANIA R. CO. CARRIERS-Loss OF GOODS. Plaintiff, after shipping goods over defendant's line, made a written request that defendant use all available means to stop the articles before delivery to the consignee, and return them to plaintiff; "the full meaning and intent of this agreement being that you are to act as our agent in this transaction." Only part of the goods were returned, but there and 90 New York State Reporter. was no evidence to show that more of them had been found, or that defendant was negligent. Held, that plaintiff could not recover. Appeal from city court of New York, general term. Action by James B. Ryer and another against the Pennsylvania Railroad Company. From a judgment of the general term reversing a judgment for plaintiffs (54 N. Y. Supp. 583), they appeal. Affirmed. Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ. Campbell & Murphy, for appellants. Robinson, Biddle & Ward, for respondent. MacLEAN, J. It was alleged in the complaint that in 1889 the plaintiffs delivered to the defendant, a common carrier, certain merchandise, to be delivered to a furniture company at Ft. Scott, Kan.; that, before the delivery of the goods to the consignee, plaintiffs instructed the defendant to return the goods, which defendant undertook to do, receiving payment for such shipment and return, but it neglected to return or deliver the goods mentioned. In its answer the defendant admitted receipt of the goods as common carrier, and said that after the goods were delivered by the defendant to another company, at some point in the state of Illinois, the defendant was notified to return the same to the plaintiffs, and subsequently did return certain of the goods, which were accepted by the plaintiffs; but it denied any agreement or undertaking safely to transport the goods on the return, and also any negligence on its part. An employé of the plaintiffs testified that he went to the office of the defendant; there requested the return of the goods; was asked to make out an application, which he did; and was told "that they would see that the goods were returned if found." The application, offered in evidence by the defendant and admitted by the plaintiffs' counsel, was a request to use all available means to stop the articles before delivery to the consignee, and return them to the plaintiffs. It closed with: "The full meaning and intent of this agreement being that you are to act as our agent in this transaction." Under this application, the defendant company procured the return of certain merchandise, which was offered and delivered to the plaintiffs, who claimed that less than the original shipment was returned, and that part of it was damaged; but there was no evidence showing, or tending to show, that more goods had been found, or to show negligence or lack of diligence on the part of the defendant, whose special services the plaintiffs had requested when they employed it as their agent. judgment of the general term should be affirmed, with costs. Judgment affirmed, with costs. The FREEDMAN, P. J., concurs. LEVENTRITT, J., concurs in result. (26 Misc. Rep. 730.) JAMISON v. HOWARD LOCKWOOD & CO. et al. KILTZ v. SAME. (Supreme Court, Appellate Term. March 24, 1899.) BANKS-DEPOSIT OF TRUST FUNDS-LIABILITY TO BENEFICIARY. Where a bank declined to receive from an employé a deposit made to secure his employer against the employé's dishonesty, but suggested that the employé hand the amount to the employer, who could deposit it in his open account, the bank is liable as for conversion, if it applies the deposit on the employer's debt. Appeals from municipal court, borough of Manhattan, Third district. Actions by Ewell Jamison and Elden D. Kiltz against Howard Lockwood & Co. and others. Both actions were tried together, and there were judgments for defendant Howard Lockwood & Co., and plaintiffs appeal. Reversed. Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ. Charles Capron Marsh, for appellants. Sullivan & Cromwell, for respondent Howard Lockwood & Co. MacLEAN, J. These actions were brought to recover for an alleged conversion by the defendant corporation of certain bills of exchange and moneys of the plaintiffs deposited by them severally with the defendant corporation in contemplation of entering into the employment of another corporation, the Cyclists' Review Publishing Company, for the express purpose of securing said last-named corporation against loss incurred through the dishonesty of the plaintiffs in the course of their employment, for a period to be terminated upon notice. It appeared in evidence that the bills of exchange and moneys were deposited in each case at interviews had by the several plaintiffs with one Hankey, the treasurer of the defendant company, and Carrie B. Summers, the treasurer of the Cyclists' Review Publishing Company, and that the moneys and the proceeds of the bills of exchange were paid out as called for by the Cyclists' Review Publishing Company, or applied to the indebtedness of that corporation to the defendant corporation. The justice before whom these actions were tried found, as matters of fact, upon evidence amply warranting such findings, that the plaintiffs desired and offered to make the deposits as security for their honesty while employed by the Cyclists' Review Publishing Company; that Mr. Hankey, the treasurer of the defendant company, declined to receive a deposit from the plaintiffs, but stated that, if the plaintiffs desired, they might hand it over to the Cyclists' Review Publishing Company, and the latter company might deposit it in the open account between Howard Lockwood & Co. and the Cyclists' Review Publishing Company; and that Mr. Hankey, the treasurer of the defendant company, knew that the plaintiffs made the deposits as security for the faithful performance of their duties. As matter of law, the justice found that because Mr. Hankey declined to receive the money as a deposit, and informed the |