#### The Railway Advertising Company, Respondent, *v.*The Boston Dental Association, Appellant.

(Supreme Court, Appellate Term,

June, 1898.)

1. When a contract is not entire.

Where an advertising contract, for placing cards in all Lenox avenue electric cars for a term of three months, provides that “ the omission of any reasonable number of cards from the cars shall not constitute a violation of this contract, but the advertiser shall be entitled to a *pro rata*rebate for such cards as may have been omitted ”, the advertiser is not in a position to resist payment upon making proof that the cards were not shown in some of the Lenox avenue electric cars, as the contract cannot be deemed to be entire.

*2.*Jurisdiction of District and Municipal Courts of New York city.

The charter of the Greater New York, by its section 1351, particularly continues the District Courts of New York city under the name of Municipal Courts and, by its section 1352,_ provides that the justices, in office on January 1, 1898, shall continue for the remainder of their terms and shall be called justices of the Municipal Court.

Appeal from a judgment of the First District Court, in favor of the plaintiff.

J. P. Davenport, for appellant.

Greene & Johnson, for respondent.

Gildersleeve, J.

Plaintiff and defendant entered into a contract, on or about August 25, 1897, by which advertising cards of defendant were to be placed for the term of three months, beginning October 1, 1897, in all Lenox avenue electric cars. By the terms of the agreement, defendant was to pay to plaintiff $30 a month. No payments were made, and plaintiff brought this action for $90. Defendant claims that plaintiff did not fulfill the requirements of the contract, ifor the reason that some of the Lenox avenue Cars did not have the 'cards. Plaintiff admits that some of the cars running on Lenox avenue did not contain the cards, but claims that these cars belonged to the Madison Avenue Line, and were only making trial trips. The testimony is conflicting, and *664the court gave judgment for plaintiff to the extent of $70. The defendant claims that the contract wás an entire one, and that no part of the consideration was recoverable, unless the whole of that for which the consideration was to be paid, was performed; and that there was no waiver by defendant of a full performance of the contract. It appears, however, that the contract particularly states that “the omission of any reasonable number of cards from the cars shall not constitute á violation of this contract, but the advertiser shall be entitled to a *pro rata*rebate for such cards as may have been omitted.” The defendant also ■,claims that the contract was not- substantially performed, and also calls in question the jurisdiction of the court below. We are of opinion that there is sufficient evidence to support .the finding of the trial justice, and that none of the points raised by appellant can be sustained. As to the question raised by the motion to set aside the summons, we may "call' attention to the fact that section 1351 of the charter particularly *continues*the District Courts under the name of Municipal Courts, while section 1352 of the charter provides that the justices, in office on January 1,1898, shall *continue,*for the remainder of their terms, and shall be called justices of the Municipal Court..

The judgment must be affirmed, with costs.

Beekman, P. J., and Giegebich, -J., concur.

Judgment affirmed, with costs.