theretofore been payable in monthly installments in advance) a complete cause of action had arisen, by operation of law, which could be successfully prosecuted without regard to what occurred afterwards. Giles v. Comstock, 4 N Y. 270. The law, from the continuance in possession, implied at once a contract on the tenant's part to renew the tenancy for another year, (Laughran v. Smith, 75 N. Y. 210;) and the amount recoverable, that day, would be at the rate mentioned in such notification from the landlord, (Despard v. Walbridge, 15 N. Y 374; and see Hazeltine v. Weld, 73 N. Y. 160, 161.) A new tenancy at a higher rent having thus commenced, impliedly, it continued on for another year from May 1, 1887. The landlord's right to treat the tenancy as continuing, with the rent increased, pursuant to the notification, is unaffected by the fact that the tenant directly refused to renew the hiring. Conway v. Starkweather, 1 Denio, 113; Schuyler v Smith, 51 N. Y 309; Dorr v. Barney, 12 Hun, 259. By retaining possession after May 1, 1887, the defendant became, ipso facto, bound for the year ensuing, at the increased rent, and he could not thereafter terminate his liability by abandoning possession before the expiration of the year. Laughran v. Smith, 75 N. Y. 205, affirming 11 Hun, 311. The relation of landlord and tenant, having been once established, continues until severed by mutual agreement of the parties, or some new act or proceeding to such effect, by implication of law. Ackley v. Wester velt, 10 Wkly. Dig. 391, affirmed 86 N. Y. 448. It follows, the defendant, by his retention of the premises on and after May 1, 1887, after notification of the increase of rent for a new holding, became freshly liable as tenant, at plaintiff's option, for the ensuing year, at such higher rent; and the landlord did not lose his legal option to treat defendant either as a trespasser, or a tenant holding over, until the commencement of this action, which alone was a binding exercise of that option. Benedict v. Bank, 4 Daly, 171; Rosevelt v. Giles, 7 Hill, 201.

As regards the received "copy telegram" allowed in evidence, no error was committed on the trial. It is beyond dispute that the telegraphic message, therein contained, emanated from the landlord, and, that being clear, the presumption is that the telegraph company did its duty properly, in the usual way, and that the original corresponded with the copy sent to the tenant's representative; and hence, under Steam-Ship Co. v. Otis, 100 N. Y. 453, 454, 3 N. E. Rep. 485, such copy was prima facie admissible without production of the original. On its face this telegram, as delivered, showed it was in response to the letter of April 22, 1887, to the landlord (A. S. Thorp) from Mr. Harris, who acted as the tenant's attorney, asking the terms for said tenant's continuance in possession after May 1, 1887; and said telegram was the notification above referred to, and it informed such tenant that the landlord would not relet for a short period, (less than a year,) and that the price of the premises would be $2,400 a year. The propositions of said telegram were reiterated, and again insisted on, in the landlord's letter of May 6, 1887, which is fair confirmatory evidence that said telegram came and emanated from the landlord. In connection with the tenant's said letter of April 22, 1887, said telegram, plainly transmitted in response thereto, was proper to go to the jury. Curlewis v. Corfield, 1 Q. B. 814; Hicks v. Duke of Beaufort, 4 Bing. N. C. 229. Notwithstanding all this, the defendant continued on in possession to hold the premises for many months after May 1, 1887. He thereby became liable, as above stated, at the higher rent. The holding over concludes the tenant, as he thereby deprives the landlord of opportunity to let to other tenants. Smith v. Allt, 4 Abb. N. C. 214.

The character or record of the action by McDermott against Harris was not legal evidence herein as a binding election or as res adjudicata, being between other parties, in which matter this defendant was not concerned; nor did it otherwise affect the present parties with respect to this controversy. The tes timony therein had no bearing relative to the issues herein, which are based

on the defendant's aforesaid retention of the premises in question. The same or similar reasoning applies to the "dispossess precept" offered herein, upon which the proceeding was not conducted to any adjudication. See People v. Bennett, 14 Hun, 68.

The exceptions taken by the defendant (appellant) are all without force, and the verdict is right. The judgment and order appealed from should therefore be affirmed, with costs.

BROWNE and EHRLICH, JJ., concur.

WALP et al. v. BOYD.

(City Court of New York, General Term. November 28, 1888.) COSTS-MUTUAL ACCOUNTS-JURISDICTION OF JUSTICE-AMOUNT OF RECOVERY.

Code Civil Proc. N. Y. § 2863, subd. 4, provides that a justice cannot take cognizance of an action where, in a matter of account, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds $400; and section 9228 provides that a plaintiff recovering judgment in such an action may recover costs, regardless of the amount of his recovery, while in other actions for the recovery of money he is not entitled to costs unless he recovers the sum of $50 or more. Plaintiffs sued defendant, who had sold goods for them, and collected $1,448.45 on account of the proceeds of such sales, for an alleged balance of $373.61. Defendant pleaded that his commissions on the sales amounted to $1,348.32, and also pleaded counter-claims to the amount of $107.80. Plaintiffs obtained a verdict in the city court for $47.46. Held, that they were not entitled to costs, the account being within the jurisdiction of a justice.

Appeal from special term.

Action by Aaron B. Walp and others against Robert J. Boyd. Plaintiffs recovered judgment for $47.46, and costs. Defendant appeals from the order affirming the taxation of plaintiffs' bill of costs. Code Civil Proc. N. Y S 2863, subd. 4, provides that a justice of the peace cannot take cognizance of a civil action, where, in a matter of account, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds $400; and section 3228 provides that the plaintiff is entitled to costs upon judgment in his favor in either of the following actions: (1) An action to recover real property; (2) an action to recover a chattel; (3) an action specified in subdivision 1, 3, 4, or 5, of section 2863; (4) an action other than one of those specified, in which the complaint demands judgment for a sum of money. But the plaintiff is not entitled to costs, under this subdivision, unless he recovers the sum of $50 or more.

Argued before MCADAM, C. J., and BROWNE and EHRLICH, JJ.

A. B. Carrington, for appellant. Cantor & Seldner, for respondents.

PER CURIAM. The plaintiffs complained that the defendant, as their agent, sold their goods, and collected for them on account thereof the sum of $1,448.45, and that, after deducting all proper credits, there remained due and owing to the plaintiffs $373.61, for which they demanded judgment. In striking this balance, the plaintiffs were in duty bound to give the defendant credit for all his commissions, for the amount of the collections less commissions constituted their sole demand. The defendant, in defense, contended that the commission account should be credited with $1,348.32. He did not claim that the plaintiffs owed him this amount, nor did he demand an affirmative judgment against them therefor. All he claimed was that the commission side of the plaintiffs' account should be credited with what he claimed to be the true amount of commissions; and in doing this he simply demanded that the plaintiffs should strike the true balance, instead of that which they claimed. If the claims are to be called cross-demands, they certainly originated in the same transaction, and the balance due constituted the only debt between the parties. So construed, the action is brought within the jurisdiction of a jus

tice's court. This is clearly proved by the figures. The defendant pleaded two independent counter-claims,-one for $57.80, and the other for $50. These aggregated $107.80. The plaintiffs' verdict was for $47.46. Total amount involved in the litigation, $155.26. Take it in the only other possible form, and we figure up as follows: True balance due plaintiffs, $155.26; deduct the two independent counter-claims, $107.80; amount of the plaintiffs' verdict, $47.46. Even aggregating the $155.26 and the $107.80, makes but $263.06; so that "the sum total of the accounts of both parties did not exceed, but was less than, $400." Code, § 2863, subd. 4. Calling the correct credit claimed for commissions "an offset or counter-claim" does not alter its character. The complaint, answer, and reply all show that it was a mere claim that the proper credit be given, and the answer concludes with a prayer for an affirmative judgment of but $84.44. It is clear, therefore, that, the plaintiffs' recovery being for less than $50, the defendant became entitled to taxable costs. Lablache v. Kilpatrick and Hayes v. O'Reilly, 8 Civ. Proc. R. 340, 347; and see Brady v. Smith, 1 City Ct. R. 175; Gregory v. McArdle, 1 How. Pr. (N. S.) 187. It follows that the order appealed from must be reversed, with costs, and the clerk directed to tax costs in favor of the defend. ant.

MULLER v. RYAN.

(City Court of New York, General Term. November 30, 1888.)

1. TROVER AND CONVERSION-WHAT CONSTITUTES CONVERSION-DELIVERY TO WRONG PERSON.

The delivery, by mistake, to the wrong person, of a watch left to be repaired, is a conversion rendering the watch-maker liable for the value of the watch.

2. SAME-VERDICT-VALUE OF GOODS CONVERTED-EXPERT TESTIMONY.

The watch had cost $76, 11 years before. One expert testified that plaintiff ought to have $50 to make good his loss, and another testified on cross-examination that the watch had deteriorated $50 in value since plaintiff bought it. Its cost, age, condition, and the character of its use were in evidence. Held, that a verdict for $55 was authorized.

Appeal from trial term.

The plaintiff, Louis Muller, on August 12, 1887, left a gold watch with the defendant, Michael Ryan, a watch-maker, for repairs. About the 20th of that month he called for it, and the watch could not be found. On the 27th, the plaintiff again called, and the defendant told him the watch had, by mistake, been given to some other person. The plaintiff thereupon brought this action in trover to recover the value of the lost watch. The jury awarded the plaintiff $55, and the defendant appealed.

Argued before MCADAM, Č. J., and BROWNE and EHRLICH, JJ.

Thos. O'Callaghan, Jr., for appellant. J. G. Flammer, for respondent. MCADAM, C. J. The delivery of the watch to the wrong person constituted a conversion of it, and made the defendant liable to the plaintiff for the value. Edw. Bailm. §§ 72, 99, 162. Upon the question of value, the expert Welsh testified that he would duplicate the watch for $60, and that the plaintiff ought to get $50 to make his loss good. The expert Benedict testified that he sold the watch to John Muller, October 9, 1876, for $76; and, upon crossexamination, testified that the watch, at the time of the loss, was worth $26, having depreciated in value $50 since the time of the purchase. Expert evidence is, at most, the mere opinion of witnesses versed in the technics of a particular art, science, or mechanism. It is admitted because knowledge on the subject is not common to all, but comes from the personal observation and experience of those, only, who have given the particular subject special attention. The value of the different opinions, and the weight to be attached to each, is for the jury, (Case v. Pexew, 10 N. Y. St. Rep. 811;) yet the value of an article or a service, if in dispute, is not to be determined exclusively

upon the expert evidence; for the jury are still called upon to exercise their own judgment in respect thereto, upon all the facts in the case, considered in the light of their own experience. Reeves v. Hyde, 14 N. Y. St. Rep. 689. The jury heard the expert evidence, weighed it, and, in the exercise of their best judgment and experience, fixed the value of the lost watch at $55. They had before them the fact that the watch originally cost $76, with proof of its age and condition; likewise the character of its use from the time of purchase, and, from these circumstances, aided by the expert evidence and their own experience, they arrived at a conclusion as to value that the evidence in its entirety authorized. We cannot say that it was either arbitrary, unjust, or at variance with truth. The fact that the plaintiff's experts differed as to value makes no difference in the result. It is but natural for men to differ in opinion, and it is not unusual for experts to disagree. Indeed, as a rule, they do. We have failed to discover any substantial reason for impugning the verdict, and the judgment entered upon it must be affirmed, with costs. BROWNE and EHRLICH, JJ., concur

STARK v. MCCLOSKY.

(City Court of New York, General Term. November 30, 1888.) SALE-ACTION FOR PRICE-EVIDENCE-PURCHASE FROM AGENT.

In an action for the price of goods, for which defendant contends that he has paid, it is error to exclude defendant's evidence to show that at the time of the sale plaintiff was the manager of a company, and that the transaction was with the company. On exceptions from trial term.

Action by J. Emery Stark against Charles McClosky for the price of goods sold and delivered. After verdict for plaintiff, defendant moves for a new trial on exceptions which were ordered to be heard in the first instance at the general term.

Argued before MCADAM, C. J., and BROWNE and EHRLICH, JJ.

R. H. Channing, for appellant. J S. Merwin, for respondent.

BROWNE, J. The action is for a balance claimed to be due for goods sold and delivered. The answer put in issue every allegation of the complaint. An issue in the case was whether the contract of sale was in fact made with plaintiff in his individual capacity or as the representative of the Central Moulding & Lumber Company. The defendant requested to be permitted to give testimony showing that the plaintiff was the manager of the company at the time of the transaction referred to in the complaint, and that the transaction was in fact one with the company; and that, if there was any liability on the part of the defendant, (which is denied, the defendant claiming payment,) it was to the company. The justice declined to receive the evidence. The defendant thereupon excepted.

The ruling was error. The exception will be sustained; the verdict in favor of the plaintiff will be set aside; and a new trial ordered, with costs to abide the event.

MCADAM, C. J., and EHRLICH, J., concur.

DONALDSON v. NEIDLINGER.

(City Court of New York, General Term. November 30, 1888.)

1. LANDLORD AND TENANT-RENT-ACTION AGAINST SURETY.

The fact that the landlord has not tried to collect from the tenant the rent due is not a defense in an action against the surety of the tenant.

v.2N.y.s.no.20-47

2. SAME CONSIDERATION OF LEASE-GUARANTY.

In the absence of anything to the contrary, it will be presumed that the landlord agreed to let the premises in consideration of the promise of the tenant's surety, and it is immaterial that the instrument by which the surety is bound is dated two days before the lease.

Appeal from trial term.

Action by Helen S. Donaldson against William Neidlinger for the recovery of one month's rent, guarantied by defendant. Plaintiff appeals from judg ment entered upon dismissal of the complaint on the trial.

Argued before MCADAM, C. J., and BROWNE and EHRLICH, JJ.
Barlow & Carman, for appellant. Rollin Tracey, for respondent.

BROWNE, J Action to recover one month's rent against surety upon a lease. It was admitted upon the trial that the tenant was in occupation of the premises in February, 1887, the month for which rent is claimed; that the rent was not paid by the tenant, and was demanded from the defendant before action brought. He refused to pay. The guaranty bears date two days prior to the date of the lease, and expresses to be in consideration of the letting described in the lease. When the plaintiff rested the defendant moved to dismiss the complaint upon two grounds: (1) That there was no endeavor on the part of the plaintiff to collect the rent from the tenant; (2) that the guaranty created no liability against him, because the guaranty was executed two days before the lease. The learned justice granted the motion upon the ground that the surety cannot be made liable until default be made.

The grounds stated by the judge involve both propositions of the defendant's counsel, neither of which are tenable. Where nothing to the contrary is shown, it is presumed that the landlord agreed to let the premises in consideration of the promise of the surety. The date of the instrument is not material if the lease was granted upon the faith and credit of the guaranty. There was nothing to the contrary shown in this case. See Speyers v. Lambert, 1 Sweeny, 335; Gottsberger v. Radway, 2 Hilt. 342. A default in payment occurred when the day passed upon which the rent should have been paid, in accordance with the terms of the lease, and the tenant failed to pay. It was the tenant's duty to seek the landlord, and pay the rent. Mann v. Eckford, 15 Wend. 501. A right of action accrued immediately in favor of the landlord against the surety. Neither proof of demand nor notice of the tenant's default to the surety was necessary to maintain it. Cordier v. Thompson, 8 Daly, 172. To dismiss the complaint was error. The judgment will be reversed, a new trial ordered, with costs to abide the event.

MCADAM, C. J., and EHRLICH, J., concur.

ALLEN V. DRY-DOCK, E. B. & B. R. Co.

(City Court of New York, General Term. December 4, 1888.)

1. CARRIERS OF PASSENGERS-INJURIES TO PASSENGERS-DEFECTIVE STREET CAR. Where a street car driver closes the door to keep out a drunken man, who, in his efforts to open it, breaks the glass so that it is ready to fall, and, knowing that injury is done, neglects to examine its extent, and to warn à passenger who attempts to enter, the company is liable for injuries caused by the falling of the glass. 2. SAME-CONDITION OF CAR-EVIDENCE.

Evidence as to the absence of a conductor, and existence of steps in front, the broken door being in the rear, is descriptive of the situation under which the car was run, and properly admitted.

8. SAME-DEFECTIVE CAR-RULES OF COMPANY.

Testimony of the driver that the rules of the company required him not to take any passengers when the car became damaged en route shows the rule of law ou that subject irrespective of any rule of the company, and is properly admitted.