The order granting defendant's motion to withdraw its demurrer and to plead over should have been conditioned upon payment of taxable costs to date, with $10 motion costs. The record discloses that these costs would be $28.97, the amount awarded in the second judgment, plus the disbursements awarded in the appeal therefrom, namely, $10.57, making a total of $39.54. To this total should be added the $10 motion costs, making the complete sum of $49.54. As to the second phase of the appeal, the merits indicate that the judgment should stand as security to the plaintiff pending the trial of the action, and hence the order should not be disturbed in that respect. Order modified, by reducing the award of costs to $49.54, and, as modified, affirmed, without costs. HYLAND v. FINK. (Supreme Court, Appellate Term, First Department. October 17, 1919.) BANKRUPTCY 423(1)-EVIDENCE SHOWING FRAUDULENT OBTAINING OF PROP ERTY BY BANKRUPT. Evidence held to justify finding that defendant bankrupt, at time of obtaining loan from plaintiff to a third person, was beneficially interested, so that plaintiff's judgments against defendant, rendered in an action for obtaining property by false representations, under Bankruptcy Act, § 17 (U. S. Comp. St. § 9601), were unaffected by defendant's discharge, and improperly canceled at defendant's motion pursuant to Debtor and Creditor Law, § 150. Appeal from City Court of New York, Special Term. Action by Catherine Hyland against Valentine Fink. From orders granting motions by defendant to cancel two judgments for plaintiff, after defendant's discharge in bankruptcy, plaintiff appeals. Orders reversed, and motions denied. Argued October term, 1919, before GUY, BIJUR, and DELEHANTY, JJ. John J. Cunneen, of New York City, for appellant. Samuel D. Lasky, of New York City, for respondent. GUY, J. The motions for cancellation of the judgments in question were made pursuant to section 150 of the Debtor and Creditor Law (Consol. Laws, c. 12) on the ground that defendant had procured a discharge in bankruptcy. These motions were opposed for the reason that the judgments were rendered in an action for obtaining property from plaintiff by false representations. Section 17 of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. § 9601]) provides as follows: * * "Debts Not Affected by a Discharge.-a. A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as (2) are liabilities for obtaining property by false tions. * * * * representa For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (178 N.Y.S.) The action was instituted upon a complaint which alleged: "I. That before the commencement of this action, and on or about the 10th of July, 1907, the defendant, for the purpose of inducing the plaintiff to loan two thousand ($2,000) dollars to one Gustave E. Beyer, stated and represented to the plaintiff that said Beyer was worth one hundred thousand ($100,000) dollars, and that defendant's money was tied up at the time, or otherwise he, the defendant, would personally make said loan, and that he, the defendant, wanted to oblige the said Beyer, and requested plaintiff to make such loan; and defendant further stated and represented to plaintiff that, if said Beyer did not repay the said loan, he, the defendant, would repay it." Then followed the essential allegations of a fraud action, viz. falsity, scienter, deception, and injury. The answer consisted practically of a general denial. Upon the trial it appeared that in July, 1907, defendant was coexecutor with plaintiff of her husband's will, and knew that she had on deposit in a savings bank $2,000 bequeathed her by her husband; that he requested plaintiff to loan said sum to Beyer, stating that he knew Beyer to be a rich man and worth $100,000; that plaintiff said, "I would rather have nothing to do with it;" that defendant then said, "You will have no trouble getting your money back, because, if he doesn't give it to you, I will;" that plaintiff said, "On those conditions I will give you the money;" and defendant said, "I will see that you get it back all right;" that plaintiff relied on said statements, and loaned the money to Beyer, and received his note of hand accordingly; that the loan in question was used in paying overdue interest on one of Beyer's mortgages; that the only interest money received by plaintiff on the loan in question was from defendant, either in cash or by his personal check; and finally that Beyer's total worth was about $53,000. The trial record of this case clearly shows that the action was pleaded, tried, and submitted to the jury as a common-law action for deceit with full acquiescence and approval on the part of defendant, and the only question up for determination is whether under the circumstances detailed the judgments were properly discharged of record pursuant to provisions of the Bankruptcy Law cited. In Matter of Dunfee, 219 N. Y. 188, 190, 114 N. E. 52, the court said, in construing the provisions of subdivision 2 of section 17 of the Bankruptcy Law: "The Bankruptcy Law does not require that the property shall be obtained by the bankrupt at the instant of making the false representations nor that it shall pass directly to the bankrupt." (Italics mine.) If it is shown that the bankrupt derives a benefit from the property obtained he comes within the provisions of the statute in question, which by its very terms places no limitations as to whom the property is obtained for. In this case, as tending to prove defendant's beneficial interest in the loan, we have his promise to repay the loan if Beyer did not, the subsequent payments of interest by him personally, supplemented by the testimony of plaintiff's witness Fellman that prior to July, 1907, the time of the making of the loan, defendant told him that he was jointly interested in real estate with Beyer, and that he, the witness, knew of several real estate transactions between 1904 and 1908 in which the defendant and Beyer were jointly interested; also by defendant's admission, on cross-examination, that the Third avenue property, to which Beyer had the legal title in 1907, and to pay the mortgage interest on which the money was admittedly borrowed from plaintiff, was about a year or more later conveyed by Beyer as part consideration in an exchange for property the title to which was then taken by Beyer and defendant jointly, and that defendant and Beyer never had any accounting as to said property. In the light of this proof, the jury, which found defendant had been guilty of fraud in inducing plaintiff to make the loan, was fully justified in discrediting defendant's testimony that he never had any interest in real property with Beyer prior to 1908, and in finding, as matter of fact, that defendant was, at the time of obtaining the loan from plaintiff, beneficially interested in the securing of said loan. It follows, therefore, that the orders appealed from should be reversed, with $10 costs and disbursements, and motions denied, with $10 costs. All concur. (189 App. Div. 904) LEWIS v. NEW YORK MUNICIPAL RY. CORPORATION et al. (Supreme Court, Appellate Division, Second Department. October 3, 1919.) 1. CONTRACTS 28(3) -EVIDENCE INSUFFICIENT TO ESTABLISH CONTRACT TO BUILD ELEVATED RAILWAY AS ALLEGED. In action, by one contracting to build elevated railroad structure, to recover on quantum meruit, after rescission because of breach by a defendant, the original contractor, evidence held insufficient to sustain plaintiff's burden to prove contract alleged in complaint, showing that his bid was predicated on the contract of the railroad with the original contractor, the drawings therein referred to, and the drawings showing conditions taken from data furnished by the various city departments, etc. 2. CONTRACTS 316(3)-PARTY SEEKING RESCISSION FOR BREACH LIMITED TO CAUSE RELIED ON IN PLEADING. Plaintiff, suing to recover on quantum meruit after rescission, having expressly grounded his attempted rescission on the placing of the piers of the elevated railroad structure which he was to construct, and their foundation, in front of existing curbs, can be heard on no other ground for rescission. 3. CONTRACTS 312(1)-EVIDENCE INSUFFICIENT TO SHOW BREACH OF CONTRACT BY ORIGINAL CONTRACTOR WITH PLAINTIFF SUBCONTRACTOR. Original contractor to build elevated railroad structure, who sublet the work to plaintiff, suing to recover on quantum meruit after rescission for an alleged breach, held not to have breached the contract in the particular alleged, by requiring the placing of piers and their foundations in front of existing curbs. Appeal from Special Term, Queens County. Action by Frederick N. Lewis against the New York Municipal Railway Corporation, the Conners Bros. Company, Incorporated, and another. From judgment for defendants Conners Bros. Company, and another, plaintiff appeals. Affirmed. The following is the opinion of Kelby, J., at Special Term: The action is to foreclose a lien. The defendant Conners Bros. Company on the 15th day of November, 1915, entered into a contract in writing with the New York Municipal Railway Corporation to construct concrete foundations For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (178 N.Y.S.) and to erect thereon approximately 22/10 miles of a two-track elevated railroad structure known as section 2 of the Jamaica Line, commencing at a point on Jamaica avenue, near Walnut street, and running thence easterly along Jamaica avenue, in the borough of Queens, to Cliffside avenue, formerly Grant avenue. The work to be done under said contract was divided into five items. Item 1 was for the foundation excavation, and item 2 was for the construction of concrete foundations for piers or columns. On January 12, 1916, plaintiff, Frederick N. Lewis, entered into a contract in writing with the Conners Bros. Company, Incorporated, by the terms of which plaintiff undertook to perform items 1 and 2 of the said contract made by Conners Company with the railroad company for the agreed unit price of $1.20 for each cubic yard of excavation and $5.90 for each cubic yard of concrete masonry. Plaintiff entered upon the performance of the last-named contract and actually continued work down to and including May 29, 1916. On the 1st day of June, 1916, the plaintiff formally notified the Conners Bros. Construction Company that they elected to rescind the said contract. This was in conformance with a previous letter by the plaintiff to the said defendant, dated May 29, wherein he stated an intention to abrogate the contract. The express ground of rescission was that the work that he was being required to do was at variance with the contract, contract drawings, and certain other set of drawings, entitled "Supplemental Drawings," showing existing conditions above; the specific ground being that the contract and drawings above referred to showed the location of columns behind existing curbs, while the defendant and the railroad company were insisting upon the columns being erected in front of existing curbs, except in a few instances, where proposed curb lines have been shown in the contract drawings. The lien filed herein was bonded and discharged of record. The plaintiff now sues on a quantum meruit after rescission, because of the alleged breach of the contract by Conners Bros. Company, Incorporated, and he has adduced evidence showing the reasonable value of the work performed to be $7,526.70. The defendant Conners Bros. set up a counterclaim, alleging that the plaintiff breached his contract, and setting up damages of $35,000. The sole question then is: Which party breached the contract? The contract of the plaintiff with Conners Bros. provides that he will "furnish all materials and labor and tools * * * * * * necessary * * * for the performance all the excavation, masonry work, and incidentals, as set forth in items 1 and 2 in the contract" between the railway company and Conners Bros., and further provides it shall be done "according to the specifications and plans set forth and referred to in said contract, and which said plans and specifications, so far as they relate to said items 1 and 2, are hereby made part of this agreement," and again, "All necessary lines, locations and grades * will be furnished * * by the engineer of the New York Municipal Railway Corporation, under whose direction and to whose satisfaction the work is to be performed." * * * * * The main contract between the railway company and Conners Bros. provides that "a description of the work to be done is set forth, and the requirements, provisions, and details and specifications are stated in the printed form of contract and in the drawings therein referred to;" and at page 3 of the same contract it is provided that the contractor "shall complete the works in accordance with this contract and specifications and drawings herein mentioned: * * * Provided, however, that the said drawings may from time to time be altered or modified as hereinafter provided." There is a further provision on page 5, subdivision 7, which gives the company the right, during the progress of the work, to amplify the plans and to add explanatory specifications and drawings; and subdivision 8 on the same page: "The company further reserves the right to alter in any way in which it may deem necessary the drawings aforesaid in part or altogether at any time during the progress of the work, without constituting any ground for any claim by the contractor for payment or allowance for damages or extra service on any basis other than that provided for in the schedule of prices for items of the different classes of construction involved in such changes or alterations. All work thus occasioned is not susceptible of classification under the schedule of prices than as otherwise provided herein." At page 25, subdivision 2, is found the following: "(2) The precise location, dimensions and other characteristics of the works are more fully stated in the specifications forming a part of this contract and on the detail drawings and plans hereinafter mentioned." And at page 27: "(1) The drawings referred to in this contract and specifications are divided into two general classes: Contract drawings C2901 to C2914, inclusive. The second class comprises drawings showing the details of elevated construction and are numbered as follows: Standard drawings, C886, C2538, A46, A523-1, A683, A684. In the contract drawings themselves, C2902 to C2910, both inclusive, are designated as alignment plans, and C2911 is designated as typical cross-section and details. The alignment plans above mentioned that is, C2902 to C2910, both inclusive-are drawn to scale, and they show either "existing curb" or "proposed curb lines"; the curb line without any notation being existing curb line. An inspection of these alignment plans shows that there were but few proposed changes in the curb line. The engineer of the railway, however, stated that he knew that there was going to be a substantial change in the curb line, but that he did not know whether the general contractor knew of this change of curb line by the city or not. It seems to me clear that the alignment plans were intended to and did show the existing curb along the work. C2911, denominated "a typical cross-section and details," contained two half sections showing the type of construction with columns on curbs, and another half section showing type of constructinn with columns in street, and a general note on said plan reads as follows: "Information to be supplied later as to which cols. are on curb and which are in street." The distance from the center of the street to the center of the column is indicated by the word "varies," and this latter is with relation to columns on curbs. The half section with columns in street, the distance from the center of the column to the center of the street is indicated as 13 feet, plus or minus. It appears from the evidence that the American Bridge Company was given the order for the steel on behalf of the contractor, and that the contractor authorized the railway company to deduct from his contract price the amount to be paid for said steel, and that on December 24, 1915, said company had received and commenced to fabricate the form of steel construction for piers on the curb. On September 29, 1915, the railway company furnished plans C5051 to C5071, inclusive, which are denominated "plans showing existing wiring conditions," and which were drawn to scale showing existing curb line, and in a few instances proposed curb, exactly as did the contract drawings. They also contained symbols of a dot within a small circle delineating proposed foundations. These foundations were behind the existing curb line, or behind the proposed curb line which had been set forth on the contract plans. This delineation of proposed foundations could not, of course, be a picture of "the existing conditions," but apparently located with a fair degree of accuracy that said foundations were behind existing curb. On January 12, 1916, the date of the signing of the contract between Lewis and Conners Bros., the detailed work plan of the column foundations was completed, and these called for a new curb not shown on either the contract plans or the existing wire condition plans, and by these detailed work plans 126 of the 244 piers east of Queens boulevard were located in front of existing curb line, but actually behind a new curb line that had been established by the local authorities. The action of the local authorities narrowed the street by pushing out into the roadway the proposed curb in front of the existing curb. It is claimed by Lewis that before he entered into the written agreement between himself and Conners Bros. on January 12, 1916, he called upon Conners and stated in effect that the contract plans given him did not locate the columns with sufficient accuracy, and that he could not give Conners any price without knowing the position of the columns with respect to the curbs, and that Conners thereupon said that the columns were all behind the curbs, and that he was informed by Conners or by Mr. Lee, an employé of Conners, in the presence of Conners, that there could not be any doubt about the location of the columns, for the reason that the steel had been ordered for that form of construction which provided for the columns on the curbs, and that reference was then made to plan C2911; and plaintiff further contends that the plan showing existing wiring conditions was then produced by Mr. Lee in |