The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

GIEGERICH and GREENBAUM, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

FREDERIKA GREENFIELD, Respondent, v. OTTO DOEPFNER, Appellant.

Negligence Acts or omissions constituting negligence - Use of buildings Insufficiently lighted hall and stairway.

APPEAL by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, Fourth District, borough of Manhattan, in an action for personal injuries, tried before the court without a jury.

Arthur F. Cosby, for appellant.

Philip I. Schick, for respondent.

SCOTT, J. The evidence that the hall and stairways were insufficiently lighted and that this was the immediate cause of the accident is quite satisfactory. We may not say, as matter of law, that the plaintiff was guilty of contributory negligence because she only steadied herself against the bannister, without actually grasping it (Brown v. Wittner, 43 App. Div. 135), nor should we, in my opinion, so find as matter of fact, in face of the opposite view taken by the trial justice. The damages were very moderate.

I favor affirmance, with costs.

GIEGERICH and GREENBAUM, JJ., concur.

Judgment affirmed, with costs.

WILLIAM J. F. LYONS, Respondent, v. MAX DORF, Ap

pellant.

Deeds - Lands, tenements and hereditaments granted - Rents - Arrearages of rent and water rents past due.

Executors and administrators - Collection of assets - Property constituting assets-Arrear yes of rent and water rents past due.

APPEAL by the defendant from a judgment of the Municipal Court of the city of New York, Eleventh District, borough of Manhattan, rendered in favor of the plaintiff.

Spiro & Wasservogel, for appellant.

Wallace & Van Hoevenberg, for respondent.

GREENBAUM, J. A judgment for unpaid accrued water rents, payable by the defendant as lessee under a lease, was recovered against defendant by the plaintiff as assignee of the purchasers of the fee of the leased premises under a referee's sale in partition. Plaintiff's assignors merely obained a referee's deed which, it may be assumed, carried with it an assignment of an existing lease of said premises.

There was no proof adduced that the plaintiff or his assignors had paid these arrearages or had obligated themselves to pay them. It cannot be said that such assignment transferred any arrearages of rent or water rates payable by the tenant. Such past claims were personalty and, as these claims had accrued prior to the death of the owner from whom those holding title as heirs became entitled to maintain partition, it would seem that the legal representatives of the deceased or their assigns alone could maintain an action for their recovery.

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

SCOTT and GIEGERICH, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

ALFRED OLENICK, Appellant, v. MORRIS HABER et al.,

Respondents.

Modification and merger of contracts - Merger of contract of sale in deed.

APPEAL by the plaintiff from a judgment in favor of the defendants, rendered in the Municipal Court of the city of New York, Ninth District, borough of Manhattan.

Schleimer & Schleimer (Max Schleimer, of counsel), for appellant.

Henry Bloch, for respondents.

Per Curiam. There seems to have been sufficient testimony, introduced without objection, tending to show that the gas ranges, the subject of this action, were the property of the Northern Union Gas Company at the time they were agreed to be conveyed to the plaintiff by the defendants, which agreement was afterward consummated. Upon the question of merger of the contract made between the parties, in the subsequent warranty deed given by the defendants, this court in the case of Wynne v. Friedman, 49 Misc. Rep. 616, held, upon a similar state of facts, that no merger took place and a judgment for the value of the ranges was affirmed.

Present: SCOTT, GIEGERICH and GREENBAUM, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

INDEX.

ABUTTING OWNERS.

-

Remedies of Actions against railroad companies - Damages —
Interest on damages. In an action by a property owner to restrain the
operation of an elevated railway in front of his premises and for dam-
ages, interest upon the damages is not recoverable on each annual rental
damage award as a matter of right, but is in the discretion of the
court; and the general practice is to award interest in such cases only
from the date of the trial. Kerr v. New York El. R. Co., 331.

Rights and liabilities in general-Liability for injuries to passers-
by. Crimmins v. United Engineering & Constr. Co. 622.

ACCOUNTING.

See Executors and Administrators; Guardian and Ward; Trusts.
ACCOUNT STATED.

What constitutes giving a note.- The giving of a promissory note
for the amount shown due by an account is prima facie evidence of an
account stated; but the maker may show that it was not given in
acknowledgment of the correctness of the account or in settlement
thereof. Kneeland v. Pennell, 94.

ACTIONS.

-

1. Joinder of causes of Whether complaint states more than one
cause Against directors of corporation. The objection that because
plaintiff alleges that she is a policy holder and also a shareholder
causes of action are improperly united is not tenable; as a policy
holder she may be only a creditor but as a creditor she states no cause
for relief and asks none, her action being simply as stockholder.
Young v. Equitable Life Assurance Soc., 347.

2. Defenses - Evidence and proof.- Where the record on appeal from
a judgment for defendant in said action shows that the trial court evi-
dently confused plaintiff's claim with one that might have arisen out of
another clause of the contract which provided for indemnity to plaintiff
for any expense it might have been put to in case of being compelled
to remove the sign on account of the failure of the tenant to secure
the consent of the landlord, which he was obliged to procure under the
contract relating to the sign, and plaintiff absolutely disclaimed that it
removed the sign for any such reason, it should have been permitted
to try the case upon its own theory. Federal Sign System El. Co. v.
Epps, 547.

See Brokers; Discontinuance; Insurance (Life); Negligence; Prin-
cipal and Agent.

ADOPTION.

1. Of children Construction of contract.- Where, in a contract for
the adoption of a female child, the parties agreed to adopt the child
as their own, to feed, clothe, educate and provide proper care and
nourishing when sick, provided she should remain with them and sub-
mit to their government until she should arrive at the age of eighteen
years "when she shall be entitled to her dower right to the property
of her foster parents "the same as though she were their own legiti