. 1919.] Opinion, per POUND, J. [225 N. Y.] covered by the agreement. (Hawks v. Swett, 4 Hun, 146.) The licensee obtains the authority or permission to use for a period the patent rights of plaintiff on payment of compensation therefor at a rate to be determined by the number of bottle caps, seals or closures sold or delivered by it. An agreement to pay such royalties is contingent and creates no debt until the time stipulated for payment arrives. The rights of the licensee may, before the obligation to pay matures, be lost by the interference of the licensor or by assertion of a paramount right by a third party, or the license may be abandoned or assigned, with the consent of the licensor, or under conditions terminating the obligation to pay royalties. mere It is urged that, as to the minimum payments, the full liability of the corporation was fixed when the assignment was made and that as to such amounts the debt was then contracted. But the promise to make such payments is not absolute. In legal contemplation, the enjoyment of the undisturbed use of the patent, not the execution of the grant, is the consideration for the royalties. The debt is not contracted until the consideration is furnished. (Garrison v. Howe, supra; Whitney Arms Co. v. Barlow, 68 N. Y. 34; Gold v. Clyne, 134 N. Y. 262.) If the right to make, use and sell the patent terminates meanwhile; if the licensor does not respect the right; if it had no right to transfer; then the duty to pay royalties ceases; the time for payment never arrives and the debt is not contracted. When a lease calling for fixed payments of rent is signed, no debt is contracted until the premises are used or the rent becomes due. (Deane v. Caldwell, 127 Mass. 242, 244; Watson v. Merrill, 136 Fed. Rep. 359; 69 L. R. A. 719; Matter of Roth & Appel, 181 Fed. Rep. 667, 669; 31 L. R. A. N. S. 270; Thistle v. Jones, 123 App. Div. 40; Walla Walla City v. Walla Walla Water Co., 172 U. S. 1, 19, 20.) The same rule applies here. The [225 N. Y.] Statement of case. [Jan., debt is not contracted until it becomes a fixed liability, absolutely owing, established under the terms of the contract. The contract is for a future indebtedness to be incurred which defines the minimum amount to be paid when the consideration is furnished. The judgment appealed from should be reversed and the demurrer overruled, with costs in all courts, with leave to answer within twenty days on payment of costs. HISCOCK, Ch. J., CHASE, HOGAN, CARDOZO, MCLAUGHLIN and ANDREWS, JJ., concur. Judgment reversed, etc. MARY QUEENEY, Appellant, v. GEORGE WILLI, JR., Respondent. JOHN QUEENEY, Appellant, v. GEORGE WILLI, JR., Respondent. Evidence distinction between insufficient evidence and unsatisfactory evidence landlord and tenant — negligence when evidence of negligence of landlord sufficient to make a case for the jury-order of reversal finding of negligence disapproved requires new trial (Code Civ. Pro. § 1338). 1. There is a distinction between insufficient evidence and unsatisfactory evidence. The statement that "insufficient evidence is, in the eye of the law, no evidence," merely means insufficient in law, not insufficient to the mind of one trier of fact with whom others may with reason differ. If any legitimate conclusion can reasonably be drawn from the evidence it should not be wholly rejected by the court. The jury should pass upon it and if the trial judge or the Appellate Division is not satisfied with the soundness of the conclusions reached, the verdict should be set aside and a new trial ordered. 2. Actions by tenants against their landlord for negligently failing to protect water pipes under his control from frost whereby the pipes burst and water fell through the ceiling bringing the plaster down with it injuring plaintiff and causing conditions for which damages are sought. Upon the evidence the landlord had sufficient notice of the defective condition of the water pipes to make a case for the jury to pass upon and plaintiff's complaints should not have been dismissed. 1919.] Points of counsel. [225 N. Y.] 3. The bodily injuries sustained by plaintiff in one of the actions as the immediate result of being struck by the falling plaster should not be considered as elements of damage under the complaint which declares on the injuries resulting from the dampness only. "Substantial justice between the parties" (Code Civ. Pro. § 519) means justice to both parties. 4. The orders of reversal specify that the finding of the jury that the defendant was guilty of negligence is disapproved by the Appellate Division. It thus appears that the judgments were reversed on questions of fact as well as on the law. A new trial must, therefore, be granted. (Code Civ. Pro. § 1338.) Queeney v. Willi, 171 App. Div. 588, reversed. (Submitted January 10, 1919; decided January 21, 1919.) APPEAL in each of the above-entitled actions from a judgment entered March 17, 1916, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.. The first action was to recover for personal injuries alleged to have been occasioned plaintiff through the negligence of defendant. The second was to recover for the loss of a wife's services due to such injuries. The facts, so far as material, are stated in the opinion. James B. Mackie and Herbert C. Smyth for appellants. The evidence required a submission to the jury. (Kassner v. Weintraub, 130 N. Y. Supp. 229; Golob v. Pasinsky, 178 N. Y. 458; Dollard v. Roberts, 130 N. Y. 269; Levy v. Roosevelt, 131 App. Div. 8; Pincus v. Schlechter, 167 App. Div. 361; Frank v. Simon, 109 App. Div. 38; Rubenstein v. Hudson, 86 N. Y. Supp. 750; Kassner v. Weintraub, 130 N. Y. Supp. 229; Abramowitz v. Schlessinger, 152 N. Y. Supp. 337; Obendorfer v. Hart, 145 N. Y. Supp. 50; Worthington v. Parker, 11 Daly, 545; Rauth v. Davenport, 60 Hun, 70; Fitch v. Armour, 27 [225 N. Y.] Points of counsel. [Jan., J. & S. 413; Coleman v. Central Trust Co. of N. Y., 25 Misc. Rep. 295.) There was no variance between the pleading and the proof. (1 Nichols New York Practice, 1035; Disbrow v. Harris, 122 N. Y. 362; King v. Mc Kellar, 109 N. Y. 215; Simpson v. Cowan, 56 Barb. 395; Abb. Brief on Pleadings [1st ed.], § 724; White v. Spencer, 14 N. Y. 247; Williams v. N. Y. & Q. C. R. Co., 97 App. Div. 133; Becker v. N. Y., L. E. & W. R. R. Co., 31 N. Y. S. R. 750; Powell v. Cohoes Ry. Co., 136 App. Div. 204; Sallie v. N. Y. Railway Co., 110 App. Div. 655; Turner v. Nassau Electric Co., 41 App. Div. 213; McCahill v. N. Y. Transportation Co., 201 N. Y. 221; Keen v. Village of Waterford, 130 N. Y. 192; Lyons v. Second Ave. Railway Co., 89 Hun, 374; Hurley v. N. Y. & Brooklyn Brewing Co., 13 App. Div. 167.) Stephen P. Anderton, Edward K. Hanlon and Alfred W. Meldon for respondent. There was no notice to the landlord of the supposed defect, that the pipe which burst in its concealed position between the roof and the ceiling was not covered with insulating material. (Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90; Lopez v. Campbell, 163 N. Y. 340; People v. Rozezicz, 206 N. Y. 249; Lamb v. Union Ry. Co., 195 N. Y. 260; O'Gara v. Eisenlohr, 38 N. Y. 296.) As the landlord had no notice of the supposed defect, which was concealed, the complaint was properly dismissed. (Cohen v. Cotheal, 156 App. Div. 784; Kassner v. Weintraub, 130 N. Y. Supp. 229; Abramowitz v. Schlessinger, 152 N. Y. Supp. 337; Golob v. Pasinsky, 178 N. Y. 458; Dollard v. Roberts, 130 N. Y. 269; Pincus v. Schlechter, 167 App. Div. 361.) The trial court committed reversible error in holding that the plaintiff was entitled to prove that she had been struck and injured by a portion of the ceiling which fell. (A. B. & B. Co. v. Addicts, 19 Misc. Rep. 36; Wilkins v. Nassau N. D. Co., 98 App. Div. 130; Sheu v. Union 1919.] Opinion, per POUND, J. [225 N. Y.] R. Co., 112 App. Div. 239; Finnegan v. Robinson Co., 124 App. Div. 117; Murphy v. Milliken, 84 App. Div. 582.) POUND, J. The actions are by tenants against the landlord. They allege that the defendant negligently failed to protect water pipes under his control from frost. Plaintiffs occupied a top floor apartment in a building owned by defendant. Water was supplied from a tank on the roof. The evidence for the plaintiffs is to the effect that from December, 1913, to February, 1914, Queeney, the husband, had noticed that the walls and ceiling of the bedroom were damp. He could get water out of the wall paper by rubbing his hand on it. Notice of this condition was given to the landlord and to the janitor, his agent, some time in January, 1914. At about ten o'clock on the night of February 13, 1914, by reason of the freezing of the water in a vertical pipe between the ceiling of plaintiffs' apartment and the roof of the building, the pipe burst and a large quantity of water fell through the ceiling of the bedroom bringing the plaster down with it. Mrs. Queeney, who was preparing for bed, was struck by the water and plaster. She prematurely gave birth to a child on the same night; her left breast, where she struck the bed, wasted away; she suffered from neurasthenia; caught cold, developed acute bronchitis and tuberculosis. It is said that the circumstances were a competent and producing cause for the conditions. The pipe which burst was not covered properly to protect it from freezing as pipes in such a position customarily are covered. An expert witness testified that an uncovered pipe, such as this one was, will "sweat" or condense moisture on its outside in cold weather. it is in a vertical position the moisture will drip into the walls and ceiling, thus giving notice of its condition. If |