First Department, May, 1921. [Vol. 197 and that the tenant said that he did not care about the yard but wanted the house heated from the printing shop and that the installation of radiators essential for that purpose was made by the landlord at a cost of $700 and heat was so furnished; that he informed the tenant the reason he was letting the house so cheap was on account of the building to be erected in the yard in the rear and that at the second interview, when the tenant's wife was present, he asked if she had been informed that a building was to be erected in the rear and the tenant answered in the affirmative; that he also informed the tenant that the building would have been commenced before that time were it not for delay in getting the permit and that he informed the tenant with respect to the dimensions of the new building, and that the only complaint the tenant made when the building was being constructed was that it was larger and closer to the house than he had been informed; that when the lease was signed he drew the tenant's attention to the fact that it only covered the dwelling and that the tenant agreed that that was his understanding. With respect to the material part of these interviews, Dillon was corroborated by the testimony of his secretary, Miss Keyes. Other evidence offered by the landlord fairly established the fact that the landlord at all times had the use and control of the alleyway and that there was free access therefrom without obstruction by fence or otherwise to the open yard in the rear of the two buildings and that the landlord used the alleyway and that open space as its business required. The tenant denied that he stated to Dillon that he did not care about the yard and testified that nothing was said to the effect that he was not to have the yard and also denied that he stated to Dillon, in substance, that his only objection was that the building was too large and was too near the house. I am of opinion that the lease did not give the tenant the use of the yard or preclude the landlord from building therein. Respondent makes no claim to the use of the alleyway which formed part of the open space around the building. His theory is that the yard was inclosed and that there was no access thereto excepting through the house. If that were so, the authorities cited (People ex rel. Murphy v. Gedney, 10 Hun, App. Div. 295] First Department, May, 1921. 151; Doyle v. Lord, 64 N. Y. 432, and Cohen v. Newman, 91 Misc. Rep. 561; affd., on dissenting opinion of MADDOX, J., 173 App. Div. 976) would tend to sustain his claim, but his theory is not sustained by the evidence. It is not only improbable that the landlord would have given the tenant the use of the yard when it had theretofore filed plans for the erection of a building therein, but the terms of the lease and the preponderance of the evidence show that such was not its intention. No entry by the landlord constituting an actual partial eviction which would entitle the tenant to remain in possession of the remainder of the premises without paying any rent (2 McAdam' Landl. & Ten. [4th ed.] 1385, § 406; Christopher v. Austin, 11 N. Y. 216; Fifth Avenue Building Co. v. Kernochan, 221 id. 370; Lodge v. Martin, 31 App. Div. 13), as he claims the right to do here, was shown, and it is well settled that even if there were a constructive eviction which here could be predicated only on the increase in the noise and vibrations and interference with light and air as to all or part only of the premises without an actual abandonment of the premises by the tenant, that would not be a defense to an action for rent. (2 McAdam Landl. & Ten. 1385, § 406; Edgerton v. Page, 20 N. Y. 281; Boreel v. Lawton, 90 id. 293.) It follows, therefore, that the determination of the Appellate Term should be reversed, with costs, and the order of the Municipal Court reversed, with costs, and a final order granted as prayed for by the landlord. CLARKE, P. J., SMITH, PAGE and MERRELL, JJ., concur. Determination and order of Municipal Court reversed, with costs and disbursements in this court and in the Appellate Term, and final order granted as prayed for by petitioner, with costs. First Department, May, 1921. [Vol. 197 MAMIE CONTI, Respondent, v. MAX COHEN, INC., Appellant. First Department, May 27, 1921. Master and servant contract of employment at salary and percentage of profits — action to recover percentage of profits-complaint insufficient which does not allege that profits were earned. In an action on a contract of employment at a fixed salary and certain percentage of net profits brought to recover the plaintiff's percentage of the profits, the complaint does not state a cause of action where the plaintiff alleges merely on information and belief that the defendant failed and refused to pay to the plaintiff a sum equal to the percentage of the net profits earned by the defendant during any year or period of accounting and that by reason thereof the defendant owes to the plaintiff the sum demanded in the complaint, and does not allege' or show that any profits were earned by the defendant during any accounting period, for it was incumbent upon the plaintiff to show that profits were earned and not paid over as agreed. APPEAL by the defendant, Max Cohen, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of April, 1921, overruling defendant's demurrer to the complaint. I. Maurice Wormser [I. Gainsburg, attorney], for the appellant. Lloyd Paul Stryker of counsel [Lorenz J. Brosnan with him on the brief; Whiteside & Stryker, attorneys], for the respondent. LAUGHLIN, J.: The plaintiff was employed by the defendant as a designer for the period of two years from the 23d day of June, 1915, pursuant to a contract in writing made between the parties on the 21st of June, 1915. Her compensation was to be $100 per week and in addition thereto a sum equal to twenty per cent of the net profits per annum earned by the defendant. She was paid the weekly compensation and brought this action to recover the percentage of profits. The only allegation of the complaint with respect to profits is an allegation upon information and belief that "the defendant failed and App. Div. 302] First Department, May, 1921. refused to pay to the plaintiff a sum equal to twenty per cent. (20%) of the net profits earned by the defendant during any year or period of accounting," and that " by reason of the premises there is now due and owing from the defendant to the plaintiff the sum of One hundred thousand dollars ($100,000)," for which amount she demands judgment, with costs. The contract provided that the net profits were to be computed at the end of every six months and paid upon the taking of stock and the ascertainment of the net profits earned by the business for the six months' period, and that the plaintiff should have the right at the time of taking the stock and computing the net profits to have access to the books of the defendant "so that the figures and the stock taking shall be fully known to her and that she shall have full access to any records with respect to the ascertainment of the said net profits so earned as aforesaid." On a former appeal on the authority of Funger v. Brooklyn Bottle Stopper Co. (132 App. Div. 837) we reversed an order granting the plaintiff an inspection of the defendant's books to enable her to frame a complaint. (Conti v. Cohen, Inc., 195 App. Div. 932.) Our reversal on Funger v. Brooklyn Bottle Stopper Co. (supra) plainly indicated that we were of opinion that the plaintiff should have obtained an order for the examination of the defendant for the purpose of identifying the books, an inspection of which might become necessary, and should have made an application then for a limited inspection. Moreover, the plaintiff did not show that at the time of the respective accountings she was deprived of the right given to her by the contract to examine the stock and books of the defendant and to ascertain for herself whether or not the accounting was had in accordance with the contract. The plaintiff, instead of applying for an order for the examination of the defendant and requiring the production on the examination of its books and thus ascertaining the profits, if any, or showing that the accountings were inaccurate, saw fit to attempt to frame a complaint by merely charging generally, as already shown, that she has not been paid twenty per cent of the profits earned during any accounting period. We are of the opinion that the complaint is insufficient in that it does not First Department, May, 1921. [Vol. 197 show that any profits were earned by the defendant during any accounting period. It is argued theoretically by the respondent that an allegation that there were profits is necessarily implied in the allegations made, but we think not and that it was incumbent upon the plaintiff to show that profits were earned and not paid over as agreed. (Mitchell, Schiller & Barnes v. Follett Time R. Co., 142 App. Div. 687; Nekarda v. Presberger, 123 id. 418; Tooker v. Arnoux, 76 N. Y. 400; Clark v. Dillon, 97 id. 370, 373; Stabilimento Metallurgico Ligure v. Joseph, 189 App. Div. 173, 177; 13 C. J. 724, 725.) It follows that the order should be reversed, with ten dollars costs and disbursements, and the demurrer sustained, with ten dollars costs, with leave to the plaintiff to amend upon payment of the costs of the appeal and of the motion. CLARKE, P. J., SMITH, PAGE and MERRELL, JJ., concur. Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs, with leave to plaintiff to serve an amended complaint on payment of said costs. WILLIAM A. STREET, as Surviving Trustee under a Certain Deed of Trust Made and Executed by HENRY MORGAN on December 30, 1880, Respondent, v. ALICE LEE POST and Others, Appellants, Impleaded with ADELA O. GIRDNER and Others, Respondents. Trusts First Department, May 27, 1921. trust in personal property for benefit of intended wife for life with reversion to grantor on her death or to his representatives or legatees on his predeceasing beneficiary assignee for benefit of creditors of grantor not entitled on claim first made more than twenty-five years after creation of trust- wife entitled to onethird of principal on death of grantor wife's one-third passes to her executrices. In an action to construe a trust deed it appeared that the grantor, in contemplation of marriage with the beneficiary, executed the deed in question for the benefit of his intended wife; that said trust deed provided, among other things, that " upon the death of the said intended wife, |