(179 N.Y.S.)

attorneys, no such order was ever entered, and they desire to avail themselves of the court's decision, they should have entered the proper order.

Appeal dismissed, without costs to either party. All concur.

BUCHBERG v. HERSKOVITZ et al.

(Supreme Court, Appellate Term, First Department. December 10, 1919.) BROKERS 8(3)—SUFFICIENCY OF EVIDENCE TO SUSTAIN VERDICT FOR COMMIS

SION.

In an action for a broker's commission, evidence consisting largely of the mere statement that plaintiff "was going to have commission for the other goods, too," held insufficient to show that the defendant agreed to pay commission on all sales made to the party, who had originally been introduced by the plaintiff.

Bijur, J., dissenting.

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by Abraham Buchberg against Charles Herskovitz and another. Judgment for plaintiff, and defendants appeal. Reversed, and new trial ordered.

Argued November term, 1919, before LEHMAN, BIJUR, and WAGNER, JJ.

Louis Dorfman, of New York City (I. Balch Louis, of New York City, of counsel), for appellants.

Meyer Marlow, of New York City (Samuel W. Fisher, of New York City, of counsel), for respondent.

LEHMAN, J. The defendants appeal from a judgment in favor of the plaintiff for the sum of $155.16. At the trial the plaintiff testified that in April, 1919, he sold some goods, of the value of $1,166, belonging to the defendants, to the Commercial Cloak & Suit Company, and that the defendants agreed to pay him 3 per cent. commission upon such sale. When the plaintiff demanded this commission, one of the defendants stated:

"I will tell you what I will do. I will give you $25, and you are going to have for the other goods commission, too"

-and that defendant then told him that the commission on the "other stuff" would be 2 per cent. Thereafter the Commercial Cloak & Suit Company bought goods of the plaintiff of the value of $7,758, and the judgment in favor of the plaintiff is for 2 per cent. commission on such sale. It is undisputed that at the time when such sale was made the plaintiff was ill, and that he did not personally take part in such sale. The head of the Commercial Cloak & Suit Company, produced as a witness by the plaintiff, testified that he went to the defendant's place of business and purchased these goods, not through the direct

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efforts of the plaintiff, but "because I thought I would buy some goods I needed."

The judgment can therefore be sustained only if the parties agreed that the plaintiff should receive commissions, not only on sales thereafter made by his efforts, but on any further sales made to the Commercial Cloak & Suit Company. I have quoted above all the testimony concerning the making of the agreement between these parties, and it seems to me that the mere statement that the plaintiff was "going to have for the other goods commission, too," is insufficient to show that the defendant agreed to pay commissions on all sales made to the party who had originally been introduced by the plaintiff. The conversation is fairly open to the construction that the defendant intended and agreed to pay commissions for the future only if the goods were sold through the plaintiff's efforts.

It follows that the judgment should be reversed, and a new trial ordered, with $30 costs to appellant to abide the event.

WAGNER, J., concurs.

BIJUR, J., dissents.

(189 App. Div. 384)

SMITH v. A. M. OESTERHELD & SON et al.

(Supreme Court, Appellate Division, Third Department. November 12, 1919., MASTER AND SERVANT 403-WORKMEN'S COMPENSATION; PRESUMPTION OF DEATH BY ACCIDENT ARISING OUT OF AND IN COURSE OF EMPLOYMENT.

Where an employé, sent to a private railroad yard to unload a carload of lumber, twice telephoned his employer about the nonarrival of trucks by which to remove the lumber, being told when to expect them, was run over and killed in a nearby railway yard, through which he might have gone to reach a telephone, it will be presumed, in a proceeding by his widow under the Workmen's Compensation Law, in the absence of evidence to the contrary, that his journey was made to serve his master, and that he was killed by an accident arising out of and in the course of his employment.

Appeal from State Industrial Commission.

Proceeding under the Workmen's Compensation Law (Consol. Laws, c. 67) by Emma Smith to obtain compensation for the death of her husband, John A. Smith, opposed by A. M. Oesterheld & Son, employers, and the Etna Life Insurance Company, insurance carrier. Compensation was awarded by the State Industrial Commission, and the employer and insurance carrier appeal. Affirmed.

Argued before JOHN M. KELLOGG, P. J., and LYON, WOODWARD, COCHRANE, and HENRY T. KELLOGG, JJ.

James B. Henney, of New York City (William H. Foster, of Syracuse, of counsel), for appellants.

Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for State Industrial Commission.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(179 N.Y.S.)

HENRY T. KELLOGG, J. On the day that the deceased was killed he had gone, at about 7 in the morning, to the private railroad yard of the Hurlburt Motor Company, in the city of New York, to unload a carload of lumber. This yard lay to the west of Third avenue, while the yard of the Central New Jersey Railroad lay to the east of that avenue. The trucks which were to remove the lumber Idid not arrive, so at about 8 o'clock the deceased telephoned to the office of his employer, inquiring the cause of delay. He was told that the trucks were on their way. The first truck arrived and was loaded about 10 o'clock. The deceased again telephoned to his employer, asking when the next truck would arrive, and was advised that it would be 1 o'clock before it came. At about 10:30 a telephone message came in to the employer, announcing that the deceased had been run over and killed in the yards of the Central New Jersey Railway. Shortly before the deceased was killed, he was seen crossing the tracks of that railroad on the easterly side of Third avenue, evidently heading for the railroad offices.

It is not known definitely from what point the deceased had sent in the telephone calls to his employer, but there was a telephone at the offices of the railroad, near the place where the deceased was killed. The commission assumed that the deceased was on his way to telephone his employer once more, when he was struck and killed. No one knows the purpose to serve which the deceased had gone upon the railroad lands. He may have gone there in aid of his master, or upon business or pleasure of his own. There being no substantial evidence to indicate the contrary, it must be presumed that his journey was made to serve his master, and that he was killed by an accident arising out of and in the course of his employment. Driscoll v. Gillen & Sons, 226 N. Y. 12, 123 N. E. 863, affirming 187 App. Div. 908, 173 N. Y. Supp. 825.

The award should be affirmed. All concur.

(189 App. Div. 664)

In re HURLEY'S WILL.

(Supreme Court, Appellate Division, First Department. December 5, 1919.) WILLS 55(1)-TESTAMENTARY INCAPACITY SHOWN.

Verdict finding that testator was insane and incompetent to execute a will held supported by the evidence.

Appeal from Surrogate's Court, New York County.

Proceeding for the probate of the will of Timothy Hurley, deceased. From an order setting aside a verdict rendered at the Trial Term of the Surrogate's Court on a contest, the contestants appeal. Order reversed, and verdict reinstated, and the proceedings remitted to the surrogate for further action in accordance with the opinion.

Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, PAGE, and MERRELL, JJ.

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Joline, Larkin & Rathbone, of New York City (Albert Stickney, of New York City, of counsel, and Charles A. Springstead, of New York City, on the brief), for appellants.

Ellison, Goldsmith & Allen, of New York City (William B. Ellison, of New York City, of counsel, and Oliver B. Goldsmith and Benjamin F. Allen, Jr., both of New York City, on the brief), for respondent.

MERRELL, J. This appeal is by two contestants on the probate of the alleged last will and testament of Timothy Hurley, deceased. The alleged testator was formerly an inhabitant of the state of New York, but died on December 31, 1917, at Stamford, Conn., while an inmate of Stamford Hall, a sanatorium for the treatment of the insane, and where he had been confined as an insane person since on or about December, 1905.

The paper propounded for probate is alleged to have been executed at the city of New York on February 24, 1905. The proceeding was instituted by the filing of a petition in the office of the surrogate of the county of New York, on or about January 17, 1918, praying for the probate of said alleged will, and for the issuance of letters testamentary thereon to the proponents, one John Dunston, a former business associate of the decedent, and one Daniel Hurley, his nephew, both of the city of New York. The proponents were named as executors in said will. According to the petition, the heirs at law and next of kin of decedent were Dennis Hurley, a brother, residing at Hyde Park, Mass., Daniel Hurley, a brother, residing in Ireland, and Mary Minihan, a sister, residing at Brookline, Mass.

The brother, Dennis Hurley, and the sister, Mary Minihan, filed objections to the probate of said instrument upon the ground that the paper offered for probate was not the last will and testament of Timothy Hurley, deceased, that it was not duly executed by decedent, and that he did not publish the same as his will in the presence of witnesses. The contestants further allege, by way of answer to the petition for the probate of said instrument as the will of decedent, that at the time of its alleged execution on February 24, 1905, Timothy Hurley was not, and for a long time prior thereto had not been, of sound mind, memory, or understanding, or mentally capable or competent of executing a last will and testament, but that he was at such time of unsound mind and mentality, and incompetent; that the paper offered for probate was not freely or voluntarily made or executed by said decedent as his last will and testament, but that the execution thereof was obtained by undue influence and fraud, and was illegal and void, and not entitled to probate. The contestants duly demanded a trial by jury of the issues raised by their answer, and such trial was ordered by one of the surrogates of New York county. The order directed the trial by jury of the following issues of fact:

(1) Did Timothy Hurley, the testator, subscribe the paper offered for probate at the end thereof in the presence of the attesting witnesses, or any two of them, or acknowledge to them, or any two of them, that such subscription appearing on said paper had been made by him?

(2) At the time of making such subscription or acknowledgment, did the

(179 N.Y.S.)

said Timothy Hurley declare to the attesting witnesses, or to any two of them, that the paper offered for probate was his last will and testament?

(3) Were there at least two attesting witnesses, each of whom signed his or her name at the end of said paper at the request of the said Timothy Hurley? (4) At the time of the execution of the paper offered for probate, was said Timothy Hurley of sound and disposing mind and memory, and possessed of testamentary capacity?

(5) At the time of the execution of said paper was said Timothy Hurley free from restraint?

(6) Was the execution of said paper by said Timothy Hurley caused or procured by the fraud of any person or persons?

(7) Was the execution of said paper by said Timothy Hurley caused or procured by undue influence of any person or persons?

The trial was commenced before the surrogate and a jury on December 16, 1918. A jury was impaneled and a large amount of testimony was presented, both by the proponents and the contestants, concerning the various issues presented. At the close of the evidence the learned surrogate eliminated from the consideration of the jury all of the issues directed to be tried by the order theretofore made by him, with the exception of the fourth; the surrogate holding that upon the testimony there was no sufficient evidence from which the jury could properly return a verdict in accord with the contention of the contestants upon the issues thus eliminated, and finally submitted to the jury for its determination upon the testimony offered the fourth question only:

"At the time of the execution of the paper offered for probate, was said Timothy Hurley of sound and disposing mind and memory and possessed of testamentary capacity?"

The question thus submitted was answered by the jury in the negative. Thereupon a motion was made by counsel for the proponents to set aside the verdict thus rendered, as against the weight of the evidence. The decision of such motion was deferred, the learned surrogate receiving briefs of counsel for the respective parties thereon. After deliberation, the surrogate made a decision, accompanied by a brief opinion, granting the motion to set aside the verdict and for a new trial, upon the ground of preponderance of evidence in favor of the testator's competency to make a will at the time of the execution of the paper offered for probate. Thereupon the order appealed from was entered, wherein it was ordered, adjudged, and directed that the motion to set aside the verdict of the jury and for a new trial be and was thereby granted, on the ground that the said verdict was against the evidence. From such order the contestants have brought this appeal.

The question presented for our determination is as to whether or not the surrogate properly set aside the verdict of the jury upon the sole issue of the competency of the decedent to execute the alleged last will and testament. A large amount of testimony was presented upon the trial, and from a careful consideration thereof I am convinced that the learned surrogate was in error in his impression that there was an "overwhelming preponderance" of evidence presented upon the trial in favor of decedent's competency to make a will at the time he is alleged to have executed the paper offered for probate. Contrary to