farm, who entered upon the per- finding in this regard, and in our formance of his agreement. The referee found as a fact that the lease or contract was not renewed after April 1, 1884. That during the year 1884, and down to April 1, 1884, and thereafter, plaintiff contemplated disposing of his goods and farming implements and removing West; and also frequently during that time stated to defendant M. and others that he would not work the farm any longer, and defendant M. assented to plaintiff's proposition not to work the same; that about March 1, 1884, defendant M. had a conversation with defendant S. in regard to working said farm and pasturing his live stock in common with M.'s stock in the pasture lot, and an understanding was come to between them, and plaintiff had notice thereof and assented to the same, and also stated that he would work defendant's premises no longer, and that he might do as he pleased with them, which statements were communicated to defendants immediately after the same were made. Geo. W. Lamb, for applt. Henry J. Sullivan, for respts. Appellant contended that a tenancy from year to year had been created, and it was not terminated by notice to quit. We have not thought it necessary to discuss this question, because we are of the opinion that the case must be disposed of upon the other grounds. HAIGHT, J.-It is true that the evidence upon this subject was conflicting, but there was ample evidence to sustain the referee's judgment effectually disposes of the claim of the appellant; for if he notified defendant Merritt prior to the first day of April, 1884, that he would no longer work the premises, that he was going West, and defendant assented to the proposition that he need not work. the premises longer, and thereupon Merritt entered into a contract with defendant Sutton to work the premises, of which contract plaintiff had notice, and after such notice assented to the same, surely he cannot after this insist that he was a tenant from year to year and entitled to notice to quit. Judgment affirmed. Smith, P.J., Barker and Bradley, JJ., concur. TERM. FOURTH DEPT. George N. Balcom, applt., v. Francis Terwilliger, respt. Decided Nov., 1886. On appeal from a justice's judgment, where no offer is served, the party recovering a verdict, report or decision is entitled to costs, although the appeal was taken before and the verdict rendered after the amendment changing the rule as to costs. Appeal from order of County Court, setting aside taxation of plaintiff's costs and striking them from the judgment, and directing costs to be taxed in favor of defendant. Action brought in Justice's Court and issue joined in Dec., 1884. Jan. 10, 1885, plaintiff recovered $93.92 damages, and ap pealed Jan. 28th 1885, demanding a new trial. No offer was made by respondent, and on June 17, 1886, plaintiff recovered and entered judgment for $89.22 damages and $13.98 interest, in all $103.20. Plaintiff taxed his costs and entered them in his judgment. The recovery is not more favorable to him by $10, and defendant would be entitled under § 3070 before it was amended by Chap. 522, Laws of 1885, to costs. Cannif& Penrie, for applt. Held, That the order was erroneous. Garling v. Ladd, 27 Hun, 112, is an authority to the effect that costs "will be granted or refused in accordance with the law existing when the party has a right to costs." This action was commenced after Sept. 1, 1880, to wit: on the day of Dec., 1884, and therefore does not fall under the exceptional provision of § 3347, subd. 11. Chap. 522, Laws of 1885, amended 3070 of the Code of Civil Procedure and it took effect July 3, 1885. If we apply the exception as to when the amendment shall take effect, or if we assume that the section as amended shall be restricted in its application to cases enumerated in subd. 11 of § 3347, we must say that as this action was commenced after Sept. 1, 1880, it is not excluded from the operation of § 3070 as it stood after the amendment thereof in 1885. We are thus brought back to the general rule, that costs are regulated and given by the statute in force "when the party has the right to costs." By § 3070, as amended in 1885, it is provided, viz.: if neither party make an offer as provided herein, the party in whose favor the verdict, report or decision in the Appellate Court is given shall be entitled to recover his costs upon the appeal. As no offer was made and plaintiff recovered in the County Court $89 we must hold his case falls within the provision we have quoted from 8 3070, Code Civ. Pro., as amended in 1885, in accordance with cases adjudged. 24 W. Dig., 168. If the question were an open one in this court it might be doubted whether in this case either party was entitled to costs, inasmuch as no offer of judgment as provided in § 3070 as amended by Chap. 522, Laws of 1885, could be made. It might be questioned whether the legislature intended that the omission of an offer as provided should cast a party in costs who when the appeal was taken was not authorized to make such offer as that named in § 3070 as amended by the legislature of 1885, 80 N. Y., 344; 15 Abb. N. C., 72; however, as before remarked, we must follow Shehan v. Butler, 24 W. Dig., 168, and the cases referred to in the opinion of Mr. Justice Follett, and apply § 3070 as amended in 1885 to this case, and reverse the order of County Court and direct a restoration of the costs taxed in plaintiff's favor and inserted in the judgment as originally entered. Order reversed, with $10 costs and disbursements. Opinion by Hardin, P.J.; Boardman, J., concurs; Follett, J., concurs in result. NEGLIGENCE. DAMAGES. N. Y. COMMON PLEAS. GENERAL TERM. Isaac Marks, respt., v. The Long Island RR. Co., applt. Decided Dec. 6, 1886. In an action for damages for personal injur- late as to the uncertain profits of com- Appeal by defendant from judgment in favor of plaintiff for $1,000 and costs, for personal injuries sustained through defendant's negligence, and from order denying motion for new trial. Plaintiff was a manufacturer of clothing. He employed hands to sew and make up clothing which was cut and furnished to him in large quantities by dealers in clothing upon contract. He made the contracts personally and overlooked the work. He was allowed He was allowed to show his earnings in this business upon the ground that his personal skill, experience and knowledge were required in it, and that he could not have employed another person to take his place with equal efficiency. Appellant claims that these "earnings" were profits and that the proofs should have been excluded under the ruling in Masterton v. Village of Mount Vernon, 58 N. Y., 391. Plaintiff testified that he made the contracts down town for the work, got the goods and brought them home and then superintended the making so as to be satisfactory for the trade; and that "to go down town and make contracts you cannot get any one to do that for you.' Hinsdale & Sprague, for applt. Vanderpoel, Green & Cuming, for respt. Held. That it was for the loss of profits this plaintiff recovered, although his counsel calls it earnings. These profits depend upon. too many contingencies and are altogether too uncertain to furnish any safe guide in fixing the amount of damages. Plaintiff had the right to prove the business in which he was engaged, its extent and the particular part transacted by him, and, if he could, the compensation usually paid to persons doing such business for others. These are circumstances the jury have a right to consider in fixing the value of his time. But they ought not to be permitted to speculate as to the uncertain profits of commercial ventures in which plaintiff, if uninjured, would have been engaged. The element of personal skill and experience was even stronger than here in the case of Masterton, where the question was as to judgment in the buying of teas, although it does not appear that there was any testimony in that case as to ability to employ others. to do the work. It is not too much to assume, however, in every such case, that success in every business is due to the special fitness and aptness of the men at the head of it or of its various departments, but the profits of such business do not depend solely upon the skill of the individual and are not, therefore, the measure of his damage when he seeks a recovery for his loss of time and opportunity to earn money arising from personal injury. tice July 23, 1885, but no notice of such filing, or a copy of the undertaking was served upon plaintiffs. August 18, 1885, respondent's attorneys served upon appellant's attorney a notice of retainer, and on August 31 served a notice excepting to the sureties upon the undertaking, and on Nov. 20 served a notice of trial. Upon Judgment reversed and new trial ordered, with costs to abide event. Opinion by Daly, J.; Van Hoe- Nov. 25 respondents moved to dissen, J., concurs. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. William T. Slattery et al., respts., v. Samuel E. Haskin, applt. Decided Oct., 1886. Upon an appeal from Justice's Court for a trial in the County Court, the appellant failed to serve a notice of the filing of the undertaking, with a copy thereof, upon the respondent, who, notwithstanding, appeared by an attorney, who served a notice of retainer, afterwards a notice excepting to the sureties, and subsequently a notice of trial, and then moved to dismiss the appeal upon the ground of the failure of appellant's sureties to justify. Held, That neither the service of such notice of retainer nor the notice of trial was a waiver of the respondent's right to require such sureties to justify. Appeal from order permitting defendant to perfect his appeal by procuring the proper justification and allowance of the sureties named in the undertaking within twenty days, or in default that his appeal be dismissed. Action was brought in Justice's Court, plaintiff recovered judgment, and defendant appealed for a new trial in the County Court. Notice of appeal was served and an undertaking filed with the Jus miss the appeal upon the ground that appellant's sureties failed to justify, and that no new undertaking had been executed and filed. It was contended that respondents, by serving a notice of retainer and of trial, waived the justification of the sureties. H. Bemis, for applt. Held, That the service of a notice of retainer and of a notice of trial by respondent's attorneys was no waiver of the right to require the sureties upon appellants undertaking to justify. It is well settled that parties by appearing generally waive irregularities theretofore existing, and may confer jurisdiction upon the court, even though the court without such appearance would have had no jurisdiction. no jurisdiction. 67 Barb., 385; 63 N. Y., 176; 62 id., 111; 6 T. & C., 120. The most that respondents could be held to have waived by their appearance was the service upon them of the copy of the undertaking with the notice of its filing. This did not admit the sufficiency of the sureties, nor deprive them of the right to except thereto. By appearing they cannot be deemed to have assumed that the sureties would fail to justfy, or that appellant would fail to furnish a new undertaking if required. The right to dismiss the appeal grows out of that which transpired subsequent to the notice of retainer, and consequently was not waived by the service of such notice. The waiver, if any, must therefore have been in the service of the notice of trial. But appellant has failed to call our attention to a single case holding that the service of a notice of trial or argument is a waiver of the right to move to dismiss an appeal, and we are inclined to doubt the propriety of so holding. In Beebe v. Marvin, 17 Abb., 194, held that plaintiff was not barred from making a motion for judgment upon a sham answer after having noticed the case for trial; that he was entitled to the earliest disposition of the case he could get. In Arnoux v. Homans, 32 How., 382, it was ruled that the service of notice of argument of an appeal did not preclude the enforcing payment of the judgment where no stay of proceedings had been granted. It is true that appellant was in default in not procuring the allowance of his undertaking at the time the notice of trial was served, but he still had the right to move the court for relief in this regard, and respondents not wishing the case to go over another term of the court may have noticed it for trial without intending or desiring to waive their right to also move to dismiss the appeal. Order affirmed, appellant to have twenty days in which to perfect his undertaking under the order appealed from. Opinion by Haight, J.; Barker and Bradley, JJ., concur. LARCENY. INDICTMENT. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. The People, respts., v. Alexander Dumar, applt. Decided Oct., 1886. Since the obtaining of goods by means of false pretenses is merely one of the acts constituting the crime of larceny, an indictment as for larceny at common law, -simply alleging that "defendant unlawfully and feloniously did steal, take and carry away" goods specified,—is sufficient, without setting forth the means or pretenses by or through which the goods were obtained or stolen. Appeal from judgment convicting defendant of the crime of grand larceny in the second degree. The indictment was in the usual and common form for larceny at common law and under the Revised Statutes, alleging that defendant "unlawfully and feloniously did steal, take and carry away" the specified goods "then and there being found." The prosecution proved, against objection, that defendant purchased the goods by means of false and fraudulent representations as to his indorser's financial responsibility. The court was requested to discharge defendant upon the ground of variance between the proof and the indictment, which was denied. The question was, whether since the obtaining of goods by false |