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STATE OF NEW YORK,

SUPREME COURT, COUNTY OF MONROE.

Esther G. Rolick, Plaintiff,

-against-

The Jacques Seligmann $ Company, Defendant.

Motion by defendant for change of venue; motion and cross-motion, by plaintiff and defendant respectively, under Rule 113, Rules of Civil Practice, for summary judgment.

Lubelle and Berman, of Rochester, N.Y., attorneys for plaintiff,

Benjamin, Galton and Robbins, of New York, N.Y. (Irving Choban, of Counsel), attorneys for defendant.

Memorandum Decision

Plaintiff artist submitted certain of her paintings to the defendant for the purpose of sale by the defendant. Their contract was oral and referred to the amounts each was to receive upon the sale of any particular painting. After a "one-man" exhibition of plaintiff's paintings, the defendant volunteered to store the same, without cost, in its warehouse. Plaintiff accepted the offer; while in storage, the pictures were destroyed by fire.

The defendant conducted the negotiations with its insuror and has received from the insuror the sum of $8,305, a certain portion of which was with reference to plaintiff's paintings lost in the fire. The sum of $4,796.67, the value allegedly assigned by the insurance company to the paintings, has been tendered by the defendant to the plaintiff and refused.

Plaintiff complains that the defendant received $7,195.00 from the insurance company, "* * * which sum was due and owing to

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