found that in each of these cases there has been absent the element of laches on the part of the vendor, which is so prominent a feature of the present case. In the most extreme case (Člute v. Robinson, 2 Johns. 595) seven years elapsed between the date of the contract and the final decree of the Court of Errors awarding specific performance to the vendor. But in that case it was well understood by both parties that there was an infirmity in the title which could be cured only by legislation, and as soon as the Legislature acted, in 1803, the vendor offered to perform. The balance of the seven years was taken up in litigation.

[2] It is the general and proper rule that, while specific performance may be granted if the vendor has good title at the time of trial, yet equity will not extend that favor to a vendor who has not done all that was in his power to make out a good title within a reasonable time. Pomeroy, Specific Pèr. § 421.

[3] The defendants were guilty of the most extreme laches, after the defect in the first deed from Hunter's executrix had been pointed out, and made absolutely no effort to get a sufficient deed until after they had gone to trial, although the apparent ease with which they then got it indicates that, by very slight effort, they could have perfected their title years before.

We see nothing in the evidence to justify a court of equity in showing to defendants such extreme favor as was extended by the judgment appealed from, which must accordingly be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

DITTMAN v. EDISON ELECTRIC ILLUMINATING CO.

(Supreme Court, Appellate Division, Second Department. May 5, 1911.) EVIDENCE (505*)—EXPERT WITNESS-FACTS AND CONCLUSIONS-PROVINCE OF JURY.

An expert witness, in an action by a servant for injuries by the breaking of a belt, cannot testify to his conclusion that the belt was unsafe for use, and could not have been fit at the time of the accident; but he must be limited to proof of the condition of the belt, its ability to resist strain, the likelihood of its breaking in its condition when subjected to use, and generally the facts in relation to it, from which the jury may infer whether or not it was a sufficient appliance.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2308; Dec. Dig. § 505.*]

Appeal from Trial Term, Kings County.

Action by Fred H. Dittman against the Edison Electric Illuminating Company. From a judgment for plaintiff, and from an order denying a motion for new trial made on the minutes, defendant appeals. Reversed, and new trial granted.

Argued before JENKS, P. J., and HIRSCHBERG, BURR, CARR, and WOODWARD, JJ.

H. Snowden Marshall, for appellant.

William G. Cooke (Howard O. Wood, on the brief), for respondent.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

HIRSCHBERG, J. The plaintiff was injured in February, 1901, by the breaking of a belt, while working in the defendant's employ in its power house in the borough of Manhattan. The action, based on the defendant's negligence, was tried in January, 1903, and the plaintiff recovered a verdict, which was reversed by this court because an expert witness was permitted to testify that the belt was unsafe, in, stead of testifying to the facts in relation to it, from which the jury could infer its unsafe condition. See Dittman v. Edison Electric Ill. Co., 87 App. Div. 68, 71, 83 N. Y. Supp. 1078. On the second trial, a verdict was directed for the defendant; the judgment entered thereon, however, being afterward reversed by this court on the ground that the facts proven required the submission of the controversy to a jury. See Dittman v. Edison Elec. Ill. Co., 125 App. Div. 691, 110 N. Y. Supp. 87. On the latest trial, now under review, the same error was repeated which occurred in the first instance, and an expert witness was allowed to testify to the conclusion that the belt in question was unsafe for use, and could not have been fit at the time of the accident.

The evidence was condemned on the first appeal as being within the ruling in the case of Dougherty v. Milliken, 163 N. Y. 527, 57 N. E. 757, 79 Am. St. Rep. 608, to the effect that, where the jury can form a proper conclusion after facts known only to experts have been disclosed to them, it is the jury's province to draw the conclusion. Where, however, the conclusion depends as much upon expert knowledge as does the existence of the facts, the rule is otherwise. The learned counsel for the respondent argue in their brief that the case of Dougherty v. Milliken, supra, does not control, and insist that the case is only where the conclusion to be drawn from the facts is matter of expert knowledge as well as are the facts themselves. We held otherwise on the first appeal, and the rule there laid down must be regarded in this case as controlling. It seems quite clear, on reexamination, that the province of the experts should be limited to proof of the condition of the belt, its ability to resist strain, the likelihood of its breaking in its condition when subjected to the use to which it was put at the time of the accident, and generally all the facts in relation to it, from which the jury can infer whether or not it would be, or was, a sufficient appliance.

The judgment and order must be reversed, and new trial granted; costs to abide the event. All concur.

BRENDLIN v. BEERS.

(Supreme Court, Appellate Division, First Department. May 5, 1911.) ASSAULT AND BATTERY (§ 15*)-CIVIL LIABILITY-JUSTIFICATION.

Plaintiff went to defendant's apartment building to collect a bill from a tenant. The janitor, upon being informed what he wanted told plaintiff to go downstairs and make the collection by the use of a dumbwaiter, according to a rule established by the landlord. Plaintiff refused, and attempted forcibly to pass the janitor, who thereupon seized

him, and they fell to the floor. There was no evidence that plaintiff had been invited, expressly or impliedly, by the tenant, to enter the building contrary to such rules. Held, that the janitor had a right to prevent his entering the building, by using force sufficient for that purpose, and the landlord was not liable for the assault.

[Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. §§ 1315; Dec. Dig. § 15.*]

Appeal from Appellate Term.

Action by Emil C. Brendlin against Lucius H. Beers. From a judgment of the Appellate Term (68 Misc. Rep. 310, 123 N. Y. Supp. 1062), reversing a judgment of the City Court dismissing the complaint, defendant appeals. Reversed, and judgment of the City Court affirmed.

See, also, 140 App. Div. 914, 125 N. Y. Supp. 1114.

Argued before INGRAHAM, P. J., and MCLAUGHLIN. SCOTT, MILLER, and DOWLING, JJ.

Henry De Forest Baldwin, for appellant.
Charles E. Travis, for respondent.

MCLAUGHLIN, J. The plaintiff, at the time stated in the complaint, was engaged in the retail tea and coffee business, employing several salesmen to take orders and make deliveries; he personally collecting the bills. On July 12, 1909, he went to an apartment house owned by the defendant in this action for the purpose of collecting at bill from a customer. He entered the vestibule, rang the customer's bell, and thereupon the janitor of the house appeared and asked him. what he wanted. The plaintiff informed the janitor that he came to collect a bill from one of the tenants, whom he named. The janitor then told him to go downstairs and make the collection by means of the dumb-waiter, at the same time saying this was in accordance with orders given to him by the owner of the premises. The plaintiff refused to do this, and attempted to forcibly pass the janitor for the purpose of going to his customer's apartment. The janitor thereupon seized him, and they both fell to the floor, where they remained until separated. The plaintiff then left the premises and instituted this action in the City Court of the City of New York against the owner of the apartment house to recover damages for alleged assault and battery by the janitor. The complaint was dismissed at the close of plaintiff's case, and the plaintiff appealed to the Appellate Term, which reversed the judgment and ordered a new trial, and from such determination the defendant appeals to this court. No claim is made but what the janitor was acting within the scope of his authority and that defendant is responsible for whatever he did.

I am of the opinion the complaint was properly dismissed. There is no evidence that the janitor used any more force than was necessary to prevent the plaintiff from entering the house after he had been told he could not do so. The alleged cause of action is predicated upon. the proposition that the plaintiff had a legal right to enter the apartment house, notwithstanding the fact that the owner forbade his do

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ·

ing so. He had no such right, and, if he had, he could not resort to force to accomplish that purpose. When the owner of a house rents it to another, he thereby confers upon the tenant the right to use the building or such part of it as is rented, and this includes an easement of ingress and egress by the usual way. This easement, however, is for the tenant (Totten v. Phipps, 52 N. Y. 354; Doyle v. Lord, 64 N. Y. 432, 21 Am. Rep. 629), and third parties, except upon the invitation, either express or implied, of the landlord or tenant, have no more right to enter the building than they would if it were vacant. Here the record is absolutely barren of any evidence that the tenant had, either expressly or impliedly, invited the plaintiff to enter the building, contrary to the rules established by the landlord. The plaintiff, before the alleged assault was committed, had been informed, that he could not deliver goods or collect bills, except by means of the dumbwaiter, which was located in the basement. This was a rule which had been established by the landlord, and so far as appears was a reasonable one, and entirely satisfactory to the tenant. It certainly was one which, so far as this plaintiff was concerned, the defendant had a right to make, and when he was so informed, and told he could not enter for the purpose of collecting the bill, he should have left the building. When he thereafter attempted to force his way into the building, defendant had a right to prevent his doing so, by using force sufficient for that purpose. Foye v. Sewell, 21 Abb. N. C. 15; Breitenbach v. Trowbridge, 64 Mich. 293, 31 N. W. 402, 8 Am. St. Rep. 829; Parsons v. Brown, 15 Barb. 590.

Even the owner of real property cannot, by resorting to force, obtain its possession from one wrongfully withholding the same from him. Resorting to force, under such circumstances, is unlawful, and the one in possession may resist with force. Parsons v. Brown, supra; Bliss v. Johnson, 73 N. Y. 529; Bristor v. Burr, 120 N. Y. 427, 24 N. E. 937, 8 L. R. A. 710.

It follows that the determination of the Appellate Term, and judgment appealed from, must be reversed, with costs, and the judgment of the City Court of January 29, 1910, affirmed, with costs in this court and at the Appellate Term. All concur.

KLAW v. NEW YORK PRESS CO., Limited.

(Supreme Court, Appellate Division, First Department. May 5, 1911.) 1. LIBEL AND Slander (§ 95*)-PLEA-MITIGATION OF Damages.

In an action for libel, a partial defense, to mitigate damages, alleging that plaintiff proved himself an undesirable person in certain business relations not connected with or involved in the subject-matter of the publication in controversy, and not showing plaintiff's general bad character, was demurrable.

[Ed. Note. For other cases, see Libel and Slander, Cent. Dig. § 227; Dec. Dig. § 95.*]

2. LIBEL AND SLander (§ 95*)-PARTIAL DEFENSES-MITIGATION OF DAMAGES. A partial defense, in an action for libel, for mitigation of damages, alleging that the statements complained of were communicated to defend

ant by persons and from sources which it had theretofore found to be reliable, and which it then believed to be reliable, and that in publishing the article defendant relied on the statements made to it, and believed that the article was true, was not demurrable because it also contained irrelevant matter.

[Ed. Note. For other cases, see Libel and Slander, Cent. Dig. § 227; Dec. Dig.

95.*]

3. LIBEL AND SLANDER (§ 94*)-DEFENSES-RELEVANCY.

In an action for libel, the complaint charged that prior to February 1, 1909, plaintiff's firm had advertised in defendant's newspaper, but after such date ceased to do so, and that thereupon defendant, contriving and maliciously intending to injure plaintiff, published the libel in question. Defendant, in a separate defense, demurred to, recited the history of a quarrel between defendant and H., a member of a theatrical managers' association, to which plaintiff belonged, and charged that as a result of such quarrel the members of the association, including plaintiff, with a view to coercing defendant in the conduct of his business, agreed to discontinue their advertising after February 1, 1909; but there was no connection between the facts pleaded and the libel. Held, that such defense could not be sustained on the ground that the facts charged were provocative; there being no allegation that the libel was published in the heat of passion or was provoked by any act of plaintiff.

[Ed. Note. For other cases, see Libel and Slander, Cent. Dig. §§ 219225; Dec. Dig. § 94.*]

Appeal from Special Term, New York County.

Action by Marc Klaw against the New York Press Company, Limited. Cross-appeals from an interlocutory judgment sustaining plaintiff's demurrer to the second defense, and overruling a demurrer to the third and fourth defenses, pleaded in the answer. Judgment sustaining a demurrer to the fourth defense affirmed, judgment overruling the demurrer to the third defense reversed, and demurrer to that defense sustained, with leave to withdraw the demurrer, and with leave to defendant to serve an amended answer.

See, also, 137 App. Div. 686, 122 N. Y. Supp. 437.

Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, MILLER, and DOWLING, JJ.

David Gerber, for plaintiff.

Cornelius J. Sullivan, for defendant.

SCOTT, J. These are cross-appeals from an interlocutory judgment overruling the plaintiff's demurrer to the third and fourth separate defenses, and sustaining his demurrer to the second separate defense; all of said defenses being pleaded as partial defenses.

[1] The action is for libel, based upon an article published on March 10, 1909, charging plaintiff with having unfairly overreached a business associate. The second separate and partial defense charges plaintiff and certain other theatrical managers with having entered into a pooling combination to control theaters and theatrical productions, and sets forth an indictment of such managers, including plaintiff, as wel as a statement, purporting to have been issued by the district attorney, regarding the existence of the pooling combination and its effect. The defense is not connected in any way with the alleged libel, and appears to be designed to reduce the damages, by showing that plaintiff's char

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 129 N.Y.S.-15