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App. Div.]

Second Department, July, 1911. mon carrier could be held liable therefor (Stewart v. Brooklyn & Crosstown R. R. Co., 90 N. Y. 588), unless the jury determined that the plaintiff used provoking language with the intent to bring about the assault and battery. (Weber v. Brooklyn, Queens County & Suburban R. R. Co., 47 App. Div. 306.) Although the language did not in terms directly invite the violence, its character was such as to present the question whether it was not used with the intent to provoke it. For this reason I think that the learned court erred in its refusal to instruct the jury within the exception noted in Weber's Case (supra). And if there was such question then the learned court also erred in instructing the jury that if they believe the plaintiff's version or story they must find for the plaintiff, and if they believe the defendant's story they must find for the defendant, for thereby the court relegated the jury to be but triers of the credibility of the witnesses. (Kellegher v. Forty-second St., etc., R. R. Co., 171 N. Y. 309.) The order is affirmed, with costs. THOMAS, CARR, WOODWARD and RICH, JJ., concurred. Order of the Municipal Court affirmed, with costs.

CHARLES F. HOFMANY and JOHN M. HOFMANN, as Executors, etc., of BARBARA XESTEL, Deceased, Respondents, v. MICHAEL NESTEL, Appellant.

Second Department, July 27, 1911. Husband and wife - action on separation agreement – pending action

for separation no bar - alimony pendente lite.

A wife may maintain an action on an agreement of her husband, made when the parties, had separated, to pay her a weekly sum for support for life, although she has brought a prior action for separation and alimony. Nor is such action on the agreement barred because the husband has been ordered to pay his wife aliinony pending the prior action for separation.

APPEAL by the defendant, Michael Nestel, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff decedent, rendered on the 13th day of April, 1909, after a trial before the court without a jury.

APP. Div.- VOL. CXLVI. 20

(Vol. 146.

Second Department, July, 1911. Allen Caruthers, for the appellant.

Clarence Edwards, for the respondents.

HIRSCHBERG, J.:

The facts in this case are undisputed and the appeal presents only a question of law. The original parties to the action were husband and wife. In February, 1904, they had separated and an action had been brought in the Supreme Court in this State by the wife, the original plaintiff herein, against her husband for a separation. In February, 1904, while that action was pending, a written agreement was executed by the parties; and the defendant, the husband, contracted therein to pay his wife the sum of five dollars per week for her support during her lifetime. The husband failed to make the payments provided for by the agreement, and from time to time his wife sued him in the Municipal Court for the money in arrears.

The present action was brought to recover the payments for the fifteen weeks intervening December 8, 1908, and March 22, 1909. Recovery was had for the full amount claimed and, the plaintiff having died pending the appeal taken by the defendant, her executors have been substituted in her place as respondents.

The defense interposed by the answer is that another action is pending for the same cause, and the contention of the appellant on the appeal is that the pendency of the action in the Supreme Court for a separation and alimony is a bar to the maintenance of an action under the written agreement. The actions are not for the same cause, although in the action for a separation a decree could be made requiring the defendant to provide for the support of his wife by the payment of alimony. The present action is one at law upon the written contract, and it has never been doubted that such an action could be maintained where the parties were actually separated at the time the agreement was executed. (See Effray v. Effray, 110 App. Div. 545, and cases cited.) The learned counsel for the appellant asserts in his brief that an order requiring the defendant

pay his wife the sum of five dollars per week alimony pendente lite had been granted in the separation suit prior to the commencement of this action. I do not find any such order in the record, but assuming its existence it would present no bar

to

App. Div.]

Second Department, July, 1911. to the present action. A somewhat similar question was presented in the recent case of De Brauwere v. De Brauwere (144 App. Div. 521), and it was held that a wife could maintain an action against her husband to recover for moneys expended by her from her separate estate in her support, notwithstanding the existence of an order of a court of competent jurisdiction requiring him to furnish a stated weekly sum for her support.

The judgment should be affirmed.
JENKS, P. J., BURR, THOMAS and CARR, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v.

HENRY C. FICHTEN, Respondent.

Second Department, July 27, 1911.

Public health - oleomargarine - sale of broken package – seal.

A person is liable for the penalty prescribed by section 41 of the Agricul

tural Law forbidding the sale of oleomargarine unless at the time of sale the seal required by the statute is unbroken, if the band to which the seal was attached was broken at the time of sale, even though the seal itself was intact.

APPEAL by the plaintiff, The People of the State of New York, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant rendered on the 16th day of January, 1911.

Robert P. Beyer, Deputy Attorney-General, for the appellant.

Frank K. Runyon and Joseph F. Farmer, for the respondent.

HIRSCHBERG, J.:

The action is brought to recover a penalty claimed to have been incurred by the violation of section 41 of the Agricultural Law (Consol. Laws, chap. 1 [Laws of 1909, chap. 9), as amd. by Laws of 1909, chap. 357), in the sale of a package of oleomargarine. The section provides as follows: “No such substance shall hereafter be soid, offered or exposed for sale in this State

Second Department, July, 1911.

(Vol. 146. except it be sold in packages containing not more than five pounds, such packages to be wrapped and sealed, the original seal of which shall be unbroken and upon which seal shall be plainly printed the name and address of the manufacturer of said oleomargarine, and the said packages shall be plainly and conspicuously labeled with the word ‘Oleomargarine' in gothic or equally conspicuous letters at least three-eighths of an inch high.'

The evidence clearly shows a sale by the defendant of a package of oleomargarine and, I think, in violation of the requirements of the law.

The purchase in question was made by two inspectors of the Department of Agriculture. The package of oleomargarine was wrapped in parchment paper with a band around it attached to a seal. The band was labeled with the word oleomargarine,” as required by the statute, and the seal bore the name and address of the manufacturer. The seal, as such, was unbroken, but the band to which it was attached was broken at the time, so that there was no difficulty in opening or changing the contents of the package. The contention on the part of the appellant is that the breaking of the band was the equivalent of the breaking of the seal, within the intent of the statute, while the respondent insists that inasmuch as the seal itself was unbroken there was no violation of the law.

No decisions in this State have been found upon the question presented. It seems clear to me, however, that the statute was violated, not because the seal was broken, but because in the condition in which the package was sold it was unsealed. The breaking of the band necessarily operated to unseal the package, and a loose seal could not be used by the vendor in compliance with the requirements of the law. He could not take a single loose seal, for instance, and lay it on the outside of each package as he offered it for sale, using the same seal all the time. An affirmance of the judgment appealed from would destroy and defeat the obvious purpose of the law. That contemplates that the product in question should be securely wrapped and sealed so that the contents, as furnished by the manufacturer, should remain intact until placed in the possession of the purchaser, with the word “oleomargarine"

App. Div.)

Second Department, July, 1911. remaining labeled on the package and the unbroken seal of the manufacturer in some manner attached and remaining attached thereto. The judgment should be reversed. JENKS, P. J., BURR, THOMAS and CARR, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered.

MORRIS GROSSMAN, Respondent, v. LAFAYETTE TRUST COMPANY and CLARK WILLIAMS, as Superintendent of Banks of the State of New York, Appellants.

Second Department, July 27, 1911. Banks — right of depositor to recover amount of notes charged against

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Where a depositor in a bank had been credited on his pass book with the proceeds of promissory notes, payable to his order and indorsed by him, and the notes not being paid at maturity, no notice of protest was given him, but the amount of the notes was charged against him, which fact he first learned on delivering his pass book to be written up after the bank had been taken possession of by the State Superintendent of Banks, he is entitled to recover the amount of the notes. Under such circumstances, there was no account stated, nor did the fact that the depositor received a dividend upon the balance of deposits admitied to be due amount to an acquiescence as to the correctness of

that balance.

of Kings

APPEAL by the defendants, the Lafayette Trust Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county

on the 30th day of June, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 23d day of July, 1910, denying the defendants' motion for a new trial made upon the minutes.

Roswell S. Nichols, for the appellants.

Herman S. Bachrach, for the respondent. HIRSCHBERG, J.:

The plaintiff was a depositor in the Jenkins Trust Company, afterwards named the Lafayette Trust Company, a corporation

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