rector when appointed or elected thereby prescribes and fixes the duties imposed upon such director. It is stated that there has been no authoritative decision as to whether such portion of such section does impose a duty upon a director. If there has been no decision, there will now be an attempt to make one. It seems to me too plain to permit of cavil that the Legislature prescribed by that section that each director will so far as the duty devolved upon him diligently and honestly administer the affairs of such corporation, and will not knowingly violate or willingly permit to be violated any of the provisions of law applicable to such corporation. This is a prescribed qualification by the statute of a director in a trust company. The oath itself must be filed with the Superintendent of Banks, where it is, of course, accessible to any person desiring to see the same. It is preliminary to becoming a statutory director. It is the credentials as we may call it, or a part of them of any person who assumes to act as a director of a trust company. It is his qualification in the method prescribed by law. He is required to so qualify himself by the solemnity of an oath. It is difficult to see why this does not prescribe the director's duties, and why by acquiescing in and taking such oath he does not subscribe thereto. Under circumstances as disclosed by this indictment, assuming the indictment to be true, the director has clearly violated his oath as director, and omitted to perform the duties prescribed by law. Section 196 of the banking law prescribes the financial liability of directors who omit to perform their duty, and it is argued here that, because that is prescribed, there cannot be any criminal liability. If the statements in the indictment are true, the financial liability of the defendant would impose no terrors upon him whatever, and would in any case be no protection to the stockholders, depositors, or other creditors of a trust company. It is also urged that defendant is not charged solely as the indictment purports to do with omission to do his duty, but that, in fact, it alleges in all the counts that the defendant did "willfully, knowingly and unlawfully order, direct, permit, advise, counsel, and procure" said trust company to make said loans, and that because all these words, except "permit," imply affirmative action, and that because he did things forbidden by law, instead of passively not trying to stop the doing of forbidden things or doing nothing, when he might have done something, that such part of the indictment is not good because defendant is not sufficiently apprised of what he is charged with. It seems to me that making full allowance for the technicalities of criminal law, and even taking into full consideration the great amount of sophistry that passes for precedents in decisions in criminal cases, that this is a mere play upon words, and that it is going far afield to set an indictment aside. It is plainly charged that Knapp omitted to do his duty by actually doing that which he was forbidden to do. If it was Knapp's duty to go north, and an indictment charged him with omitting to perform his duty, and that he omitted it, not only by failing to go north, but that he actually and continuously went south, the indictment would be good, would it not? If it was Knapp's duty to heat a room to 70 degrees in zero weather, and an indictment charged him with omitting to do his duty by failing to keep the room heated to 70 degrees, and that he omitted it by actually putting the fire out and carrying away all combustibles with which the fire could even be started again, the indictment would be good, even if in order to omit doing his duty he actually did something. In other words, Knapp is directly charged with omitting to do his duty by doing something-by doing directly the opposite from what he should have done. I think the indictment is good, and that the order and judgment sustaining the demurrer should be reversed. SCHUSTERMAN v. KRAUS. (Supreme Court, Appellate Division, Second Department. January 5, 1912.) BROKERS ($ 46*)-COMMISSIONS-WHEN Earned. A broker, not given the exclusive right to procure a purchaser, is not entitled to commissions, where the owner, before the broker produces a customer, sells the premises in good faith to a customer produced by another broker. [Ed. Note. For other cases, see Brokers, Cent. Dig. § 47; Dec. Dig. $ 46.*] Appeal from Municipal Court, Borough of Brooklyn, Second District. Action by Jennie Schusterman against Emma Kraus. From a judgment of the Municipal Court for plaintiff, defendant appeals. Reversed, and new trial ordered. Argued before JENKS, P. J., and HIRSCHBERG, THOMAS, CARR, and RICH, JJ. J. Hunter Lack, for appellant. JENKS, P. J. This is an action for the recovery of broker's commissions upon the sale of realty. The defendant sought to prove that, prior to the communication of the plaintiff to her that plaintiff had found a purchaser, the defendant had affirmed a sale made through another broker. But she was prevented by various general objections, which were sustained by the court under exceptions. It did not appear that the employment of the plaintiff was exclusive. Therefore evidence that tended to show that, before the plaintiff produced her customer, the defendant in good faith had accepted a purchaser produced by another broker, was relevant to the issue of the defendant's liability. Ettinghoff v. Horowitz, 115 App. Div. 571, 100 N. Y. Supp. 1002. The judgment of the Municipal Court must be reversed, and a new trial must be ordered, with costs to abide the event. All concur. SINGER v. SMITH et al. (Supreme Court, Appellate Term. January 5, 1912.) LANDLORD AND TENANT (§ 114*)—CREATION OF TENANCY. A written lease for a year at a yearly rental of $600, payable monthly, was executed after the tenant had been in possession of the premises as a yearly tenant for $500 per year. Shortly before the termination of the written lease, the tenant wrote to the landlord a letter, reciting: "If it is agreeable to you, we will continue using that office and pay you $50 per month therefor, which is the same amount we are now paying." The landlord orally accepted the conditions. Held, that the tenant became a yearly tenant, and not one from month to month, under the rule that, where two possible constructions may be adopted, that one will be adopted which is most unfavorable to the person using the language construed. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 373-381; Dec. Dig. § 114.*] Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by Sigmund Singer against James F. Smith and another. From a judgment of the Municipal Court of the City of New York for defendants, plaintiff appeals. Reversed, and new trial ordered. Argued before SEABURY, LEHMAN, and PAGE, JJ. Rosenthal & Steckler, for appellant. Abraham B. Keve, for respondents. PAGE, J. This is an action to recover rent for the months of February and March, 1911, for a portion of the premises 334 Broadway. The defendants had been in possession of that portion of the premises for about 20 years as yearly tenants. A written lease was executed April 5, 1909, for one year from May 1, 1909, at the yearly rental of $600, to be paid in equal monthly payments. Prior thereto the rent had been at the rate of $500 per year. So much is admitted by both sides. Treating the controverted facts as settled in the defendants' favor by the decision of the court, it appears that on April 29, 1910, the defendants wrote and caused to be delivered to the plaintiff the following letter: "Mr. S. Singer, 334 Broadway, New York City-Dear Sir: Our lease with you for the rear of the store No. 334 Broadway expires May 1, 1910, and if it is agreeable to you we will continue using that office and pay you $50 per month therefor, which is the same amount we are now paying. Thanking you in advance for letting us know promptly whether this is satisfactory, we are, "Yours truly." Upon the receipt of this letter, plaintiff said to one of the defendants, "I accept the conditions of this." The defendants remained in possession until January 6, 1911, when they removed from the premises, having paid the rent until February 1, 1911. Defendants contend that by reason of this agreement the character of their tenancy was changed from a yearly to a monthly hiring. Plaintiff's contention is that this letter was only an agreement to continue the lease For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes at the rent of "$50 per month," which was the amount they were paying them, and did not refer to the term of hiring, and the specification of the amount was prompted by the fact that the rent had been raised the previous year; while defendants claim that "$50 per month" expresses, not alone the rent, but the term. Certainly it cannot be said that the construction that plaintiff puts upon this letter is not a possible one, and, that being the case, it must be adopted, for it is elementary that, of two possible constructions, that one will be adopted which is most unfavorable to the person using the language construed. The learned counsel for the defendants states in his brief that it is clear "that respondents really intended to change the nature of the tenancy and remain in the premises as monthly tenants"; but that is not the test. Did they communicate that intention so clearly that the landlord understood it and acted upon that understanding? There must have been a meeting of the minds, and if the tenant expressed the intention in his mind so blindly that the landlord understood something different, and acted upon that understanding, there would be no agreement reached that would bind the landlord. The defendants' counsel further says: "It can well be conceded that the letter might have been clothed in more explicit terms." It not only "might," but, if it was expected thereby to change the relations that had existed for 20 years between the parties, it should. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. LIVINGSTON v. POLLATSCHEK. (Supreme Court, Appellate Term. January 5, 1912.) TRIAL (§ 252*)-INSTRUCTIONS-APPLICABILITY TO EVIDENCE. Where, in an action to recover $930 claimed to have been advanced for defendant's use, the jury could have found that plaintiff advanced that sum, but that defendant had repaid $362 thereof, it was error to instruct that plaintiff was either entitled to recover $930 or nothing at all. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. 252.*] Appeal from City Court of New York, Trial Term. Action by Bernard Livingston against Jacques Pollatschek. From a judgment for defendant, and an order denying a motion for a new trial, plaintiff appeals. Reversed, and new trial ordered. Argued before SEABURY, LEHMAN, and PAGE, JJ. Sporborg & Canter (William O. Sporborg, of counsel), for appel lant. Joseph Sapinsky and Alvin T. Sapinsky, for respondent. PAGE, J. The action was brought to recover the sum of $930, paid for defendant's use while he was in Mt. Sinai Hospital. The de fense was that not more than $362 had been advanced, which had been repaid. The learned trial justice instructed the jury: "At the very outset let it be clear in your mind that there cannot be any question of doubt in reference to the amount to which this plaintiff is entitled. He is either entitled to the sum of $930, or he is not entitled to a single cent from you in the shape of a verdict." At the conclusion of the charge the plaintiff's counsel made the following request: "I ask your honor to charge In view of the fact that your honor has charged that the plaintiff may recover the sum of $930 or nothing, may I ask your honor to modify the charge and instruct the jury that the plaintiff may recover $930, or $930 less the $362 which the defendant claims he paid him." The court declined to so charge, and stated: "Your claim is that he owes you $930." Plaintiff's counsel: "But the jury might find that he owed $930, and still find that defendant paid $362. I take an exception." Upon the evidence the jury could have found that plaintiff had advanced $930, and the defendant had repaid $362, and, if not for the charge of the court, could have returned a verdict for $568. But, under the charge, if the jury believed that $362 had been paid, they were required to return a verdict for the defendant. The instruction was erroneous and prejudicial. The judgment should therefore be reversed, and a new trial had, with costs to the appellant to abide the event. All concur. FEDERAL SIGN SYSTEM ELECTRIC v. SOUTSOS. (Supreme Court, Appellate Term. January 5, 1912.) DAMAGES (79*)—LIQUIDATED DAMAGES-VALIDITY OF STIPULATION. Agreement under a lease of an electric sign that the lessee should pay $3.75 per week for its use, and that on breach by him the company could remove the sign, and should be entitled to $8.75 for each unexpired month of the term specified in the agreement, constituted a valid provision for liquidated damages. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 164-169; Dec. Dig. 79.*] Appeal from Municipal Court, Borough of Manhattan, Second District. Action by the Federal Sign System Electric against Theodore Soutsos. From a judgment for partial relief, plaintiff appeals. Reversed, and new trial ordered. Argued before SEABURY, LEHMAN, and PAGE, JJ. David Paine, for appellant. Samuel Wasserman, for respondent. •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |