condition of the bin the next day after three or four car loads of grain had been removed from it. The question whether there was danger in entering the bin depended altogether upon the quantity of grain remaining in it. If it was a small amount adhering to the sides, needing only to be scraped off, it would be comparatively safe. If, however, it was a large quantity sufficient when loosened to fill up the bottom of the bin, it would be unquestionably dangerous. He did not know, and could not know with the means of knowledge, how much grain there was left in the bin. He had a right to assume that the superintendent did know and had not ordered him to enter the bin when it was manifestly dangerous to do so.

We are therefore of the opinion that there was evidence in the case from which the jury might have found that the plaintiff's intestate was free from negligence. Bulkley v. Port Henry Iron Co., supra; Pantzar v. Tilly Foster Mining Co., supra.

The judgments of the courts below should be reversed and a new trial ordered, with costs to abide the event.

All concur, except ANDREWS, J., not voting, and PECKHAM, J., dissenting.

WILLIAM O. WYCKOFF et al., Resp'ts, v. THE UNION LOAN & TRUST CO. OF CLEVELAND, OHIO, App'lt.

(City Court of New York, General Term, Filed October 6, 1890.) CORPORATIONS-IDENTITY.

A corporation formed several months after a sale made to a company of the same name cannot be held to be the same company on account of similarity of name for the purpose of holding it liable for such sale, where the officers and stockholders of the two companies are different, except that one person connected with the second corporation was an officer of the first at the time of the sale.

APPEAL from judgment rendered in favor of plaintiff.

C. W. Wright (George Tiffany, of counsel), for app'lt; H. Pressprich, for resp'ts.

PER CURIAM The property was sold to the "Union Loan & Trust Company," doing business at 886 Eighth avenue, N. Y., February 5, 1889. The defendant is an independent corporation known as "The Union Loan & Trust Company, of Cleveland, Ohio," organized September 25, 1889, seven months after the sale. The officers and stockholders of the two companies are different, except that one person connected with the defendant company was, at the time of the sale, an officer of the former corporation. Jekyll-Hyde tactics have been traced to individuals, and may to an extent enter into corporate transformations. In the case of individuals, but one exists in point of fact, but here two independent entities exist, each having a charter, a mission and separate corporate rights. We cannot hold that the second corporation is the first, for such is not the truth. Upon the proofs and the law applicable, the complaint ought to have been dismissed. It follows that it was error to send the case to the jury, and that the judgment entered on their verdict in favor of the plaintiff must

be reversed and a new trial ordered, with costs to the appellant to abide the event.

MCADAM, Ch. J., EHRLICH and VAN WYCK, JJ., concur.

MORRIS ISAACS, Resp't, v. ISAAC MINTZ, App'lt.

HYMAN LEVY, Resp't, v. ISAAC MINTZ, App'lt.

(City Court of New York, General Term, Filed October 6, 1890.) JUDGMENT-MISNOMER OF DEFENDANT.

When a person is known equally well by two names, he may be sued by either name, or both, and a judgment recovered against him in either name is valid.

APPEAL from order made at special term, denying motion to set aside sale upon executions.

Norwood & Coggeshall, for app'lt; D. Leventritt, for resp'ts.

PER CURIAM.-The proof shows that Israel Mintz went by the name of Isaac Mintz, and the rule is that when a person is known equally well by two names, he may be sued or indicted by either name or both. Eagleston v. Son, 5 Robt., 640; Kennedy v. The People, 39 N. Y., 250. On this theory the judgment was good as to the debtor, and equally so as to his receiver. The creditors, represented by the receiver, sued the defendant by the name of "Isaac," recovered judgment in that name, and after the return of an execution instituted supplementary proceedings, after which they undertook to amend all their prior proceedings nunc pro tune without issuing a new execution, so that the receiver builds his title on the same alleged error of which he complains. If there was fraud in obtaining the judgments, an action will lie to set them aside. For these reasons, and those assigned by the court below, the order appealed from will be affirmed, with costs. MCADAM, Ch. J., EHRLICH and VAN WYCK, JJ., concur.

CHARLES BAB, Resp't, v. MORITZ J. HIRSCHBEIN, App'lt.

(City Court of New York, General Term, Filed October 6, 1890.) BROKERS-COMPENSATION OF.

By mutual agreement between the seller, the purchaser and the broker, the purchaser was to pay the broker's commission, and this provision was inserted in the written contract of sale. Held, that the oral agreement gave the broker a good cause of action against the purchaser for his commissions, which a subsequent cancellation of the contract, without the broker's consent, could not take away.

APPEAL from judgment entered on verdict in favor of plaintiff. J. H. Hull, for app'lt; M. Rapp, for resp't.

PER CURIAM. The property was sold for $28,500 on condition that the defendant, the purchaser, paid the brokerage. This understanding prevented the broker from suing the vendor (all) parties having assented to the arrangement), and the broker must either recover from the defendant or get nothing. The brokerage was earned when the minds of the vendor and vendee met on the terms of sale, which were reduced to writing and subscribed

by the contracting parties. The written contract contains a provision that the defendant (the vendee) is to pay the commission. This may be regarded as corroborative evidence that the plaintiff's theory is correct. The question whether a stranger to a sealed instrument can sue upon it does not arise, for independently of this provision the oral understanding between the broker, the vendor and vendee, that the latter should pay, gave the plaintiff a good cause of action, which the subsequent cancellation of the written contract, without the consent of the broker, did not take

away.

The case was fairly submitted to the jury, who found for the plaintiff, and we find no reason for disturbing their verdict. It follows that the judgment appealed from must be affirmed, with costs.

MCADAM, Ch. J., and VAN WYCK, J., concur.

JENNIE CORNELIUS, Resp't, v. JACOB REISER, App'lt.

(City Court of New York, General Term, Filed October 6, 1890.) SERVICES-CHARGE.

In an action for services performed under an alleged employment by an agent of defendant, where such agency was denied, the court charged that if plaintiff performed the work she was entitled to recover, and that if defendant used the articles washed by plaintiff he was liable. Held, error.

APPEAL from judgment entered on verdict in favor of plaintiff. Johnston & Johnston, for app'lt; E. F. Stern, for resp't.

PER CURIAM. The plaintiff sought to recover for washing towels for the defendant. It was not claimed that the plaintiff made any contract with the defendant personally, but it was insisted that the husband of the plaintiff, an employe of the defendant, was his agent, and that, acting under his agency, he employed the plaintiff. The defendant denied the authority asserted, and its existence was the main contention in the case. Instead of submitting this question to the jury the trial judge told them in substance (1) that if the plaintiff did the washing she was entitled to recover, and (2) that if the defendant used the towels washed by the plaintiff the defendant was liable. The defendant excepted to the charge in both respects.

The trial judge erred, first, in not making the authority of the alleged agent the ground of liability, and, next, in charging that the use of the towels made the defendant liable. If the trial judge had instructed the jury that if the defendant used the towels, knowing that the plaintiff had washed them under an employment of one assuming to act as his agent, he might have ratified the employment and become liable, the second portion of the charge might have been justified. But the trial judge made no qualification, and, under the brief instructions given, the jury found for the plaintiff.

For these errors the judgmant must be reversed and a new trial ordered, with costs to the appellant to abide the event. MCADAM, Ch. J., and EHRLICH, J., concur.

GEORGE W. FURGUSON, Resp't, v. THE UNITED STATES LAND & INVESTMENT Co., App'lt.

(City Court of New York, General Term, Filed October 8, 1890.)

TRIAL-EXCEPTIONS.

In an action on a bond and coupons, which contained a condition providing that in case of default in payment of interest for ninety days after it became due, and demand of judgment, the whole should be due, no point was made that it was necessary to prove a demand ninety days before suit, but motion was made to dismiss on the ground that plaintiff had failed to prove his cause of action. Held, that this general objection was not sufficient to enable defendant to present the specific objection on appeal, as it might have been obviated on the trial if pointed out.

APPEAL from judgment entered on verdict in favor of plaintiff. W. S. Cowles, for app'lt; A. S. Jackson, for resp't.

PER CURIAM.-The action is upon a bond issued by the defendant, and on certain coupons attached thereto. The coupons were past due, but the bond did not become due till July 1, 1894. There is a special condition expressed in the bond that if default shall be made in the payment of the interest, and continues for ninety days after it becomes due and payable, and has been duly demanded, that, at the option of the holder thereof, the principal sum of the said bond, with all arrearage of interest, shall become due and payable immediately thereafter. The action being upon the bond, as well as the coupons, it was necessary, in order to recover upon the bond, to prove that the interest due upon the bond had been demanded ninety days prior to suit brought, and if this point had been specifically taken at the trial term, it would have been error for the trial judge to have refused a dismissal of the complaint as to the principal obligation. But the attention of the trial judge was not specifically called to this feature of the case, nor to the defect in the proof respecting it. The motion to dismiss was upon the general ground that the plaintiff failed to prove his cause of action. This general objection is not sufficiently explicit to enable the defendant, upon this appeal, to present a specific ground of objection which might, perhaps, have been obviated at the trial if the objection had been pointed out. Falk v. Beeckman, 18 N. Y. State Rep., 1018; Devoe v. Brandt, 58 Barb., 493; Newton v. Harris, 6 N. Y., 345; Binsse v. Wood, 37 id., 526; Jencks v. Smith, 1 id., 90; Lewis v. Ryder, 13 Abb. Pr., 1. For these reasons it was not error to refuse to dismiss the complaint, and as we have failed to discover any other objection that requires comment, it follows that the judgment appealed from must be affirmed, with costs.

MCADAM, Ch. J., EHRLICH and VAN WYCK, JJ., concur.

ANN BRADY, Appl't, v. NICHOLAS MARTIN, Resp't.
(City Court of New York, General Term, Filed October 10, 1890.)

1. DEFAULT-DISMISSAL BY-WHEN NOTICE OF TRIAL NOT NECESSARY. Where the trial of an action is adjourned from time to time by N. Y. STATE REP., VOL. XXXIII. 54

consent, such consents are in the nature of stipulations to try the cause on the adjourned day, and upon such day the defendant may take a dismissal by default although he has not served a notice of trial.

2. SAME.

Where, however, an arrangement was made with the clerk of defendant's attorney that neither side should take a default, such default will be opened.

THE action was commenced in October, 1887, and was placed on the calendar by the plaintiff. The plaintiff noticed the case for trial; the defendant did not. The plaintiff's attorney swears that the action was on the day calendar at least twenty times, and was on all these occasions adjourned at the defendant's request. The defendant's attorney swears that he never asked an adjournment except on two occasions when he was engaged in another court. The plaintiff's attorney swears that he agreed with the clerk of the defendant that no default should be taken by either party; but the defendant's attorney denies all knowledge of this arrangement. The action was reached on the calendar September 8, 1890, and was dismissed by default, the plaintiff failing to appear. The plaintiff moved to set aside the default, and the dismissal was opened on payment of fifteen dollars costs.

H. H. Browne, for appl't; J. F. Swanton, for resp't.

PER CURIAM-We recognize the statutory requirement that either party desiring to bring a cause to trial must serve notice thereof, and this provision was followed by the plaintiff, who duly noticed the cause. The parties appeared in court on the call of the calendar, and the cause was evidently adjourned from time to time, by consent, for trial. The defendant was called upon to protect himself on the different occasions when the action was called, and on the failure of plaintiff to appear on September 8, the complaint was dismissed. We think the defendant was regular in his practice. The supreme court held in Jones v. Anderson, 5 Week. Dig., 422, that a stipulation entered into between attorneys to set a cause down for trial for a day certain binds each party to it, without regard to the previous notice of trial, and that a default taken in such a case should be opened only on terms. See also Smith v. Grant, 11 Civ. Pro., 354; Townsend v. Keenan, 2 Hilt., 544. The consents to adjourn were in the nature of a stipulation to try the cause on the adjourned day. In Dart v. Soloman, 5 N. Y. State Rep., 911, no notice of trial was served by either party, and there was no waiver. That case is, therefore, inapplicable.

The plaintiff's attorney claims to have made an arrangement with the clerk of the defendant's attorney that neither side should take a default, thereby conceding the right of the defendant to take one in case of the failure of the plaintiff to appear.

The defendant's attorney swears that he had no knowledge of the arrangement, but no affidavit is presented denying the fact that one was made in fact.

For this reason the order appealed from will be modified by opening the default and restoring the case to the calendar, without costs, and as modified the order will be affirmed, without costs. EHRLICH and VAN WYCK, JJ., concur.