text:
    Charles R. Frace, Resp't, v. The New York, Lake Erie & Western Railroad Company, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Railroad—Negligence—Fires caused by defective engines.
    In an action to recover damages for the alleged negligence of defendant railroad company in burning plaintiff's barn and hotel, it appeared that the buildings were near defendant’s track; that on a windy day a spark from defendant’s engine fell on the barn and destroyed it, and the flames extended to the hotel, which was also burned. The engine was drawing a freight train up grade and discharging a large quantity of sparks, as it had done several times before, once before setting on fire the hotel. The cinders were from one-half to three-quarters of an inch in diameter. The evidence tended to show that an engine when drawing a train up grade emits sparks in larger quantities and throws them a greater distance than on a level, but that an engineer can so manage his engine as to lessen the flow. Defendant’s witnesses testified that the netting of the spark arrester was three-sixteenths of an inch, and that it had just been examined and found in perfect condition. Held,, that the case was properly submitted to the jury, and their verdict for plaintiff conclusive.
    2. Same—Proximate cause.
    In such case the jury was justified in finding that the burning of the barn was the proximate and natural cause of the burning of the hotel.
    3. Same—Evidence—Expert.
    A witness called by plaintiff, who had worked upon an engine for twelve years as fireman and engineer, may properly be allowed to give his opinion as an expert that if the engine had been equipped with a properly constructed spark arrester it could not have emitted sparks of the size it did.
    Appeal from a judgment entered upon a verdict of a jury in the clerk’s office of the county of Allegany, and from an order denying defendant’s motion for a new trial on the minutes of the court.

      James H. Stevens, for app'lt; Clarence A. Farnham, for resp't.
   Lewis, J.

This action was to recover damages for the alleged negligence of the defendant in burning plaintiff’s barn and hotel and their contents, situated at Scio Station, Allegany county. The barn was distant from the defendant’s railroad track at one end seventy-seven feet and sixty-seven feet at the other. The hotel was sixty feet distant from the track and thirty-nine feet from the barn. On the afternoon of the 21st day of April, 1889, a spark from the smokestack of defendant’s engine No. 579 fell upon the roof of the plaintiff’s barn, set it on fire, and the barn and its contents were destroyed. The flames from the burning barn extended over to and upon the hotel, and it was burned with its contents. There is an up-grade to the defendant’s track of eight feet to the mile ‘as it extends easterly through Scio. The engine was at the time going in an easterly direction, drawing a freight train, and, as it passed the hotel and barn, it discharged a large quantity of sparks. A very strong wind was blowing at the time from the railroad track towards the barn. There was evidence tending to show that on several occasions prior to the day of this fire this same engine threw out of its smokestack, as it passed through the village, large quantities of live coals and set fires along the sides of the railroad track, and that about three weeks before the day of the burning of the barn and hotel, as the engine passed easterly by plaintiff's hotel, large live cinders were thrown out of the smokestack. Some of them fell upon the roof of plaintiff’s hotel and set it on fire.

The cinders thrown out from time to time were shown to have been from one-half to three-quarters of an inch in diameter, as large as the end of a man’s thumb or a hickory nut The evidence tended to show that when an engine is drawing a train up grade its labor is very materially increased, and that it emits cinders and sparks in larger quantities and throws them a greater distance than when it is running on a level or down grade. An engineer can so manage his engine as to materially lessen the flow and velocity of the sparks from the smoke stack by lessening the amount of steam used, and allowing the train to be partially propelled by its own momentum. It is the contention of the plaintiff that it was the duty of the engineer on this occasion, knowing that the wind was blowing with great velocity across the railroad track towards the plaintiff’s buildings, to shut off or lessen the quantity of steam while passing, and that his failure so to do was evidence of negligence. The plaintiff further contends that the fact that the engine scattered such a quantity of large sparks was evidence that it was improperly constructed, or was out of condition, or that it was negligently and improperly managed.

Plaintiff’s evidence made, we think, a prima facie case of negligence against the defendant. Case v. Northern Central R. R. Co. 59 Barb., 644; Field v. N. Y. C. R. R. Co., 32 N. Y., 339; Collins v. N. Y. C. & H. R. R. R. Co., 33 St. Rep., 569.

The defendant called a number of witnesses whose evidence tended to show that the engine was equipped with a well known and approved appliance for regulating the flow and preventing the discharge of sparks of improper dimensions. The meshes of the netting of the spark arrester were square and scant three-sixteenths of an inch in size. A number of defendant’s employes, whose duty it was to inspect the spark arrester of its engines, testified that this engine was examined just before and immediately after the fire, and its netting was found to be in perfect condition. It was obviously impossible for cinders of the dimensions the plaintiff proved were thrown out of the smoke stack of this engine from time to time to pass through the meshes of its spark arrester. Being confronted by evidence that the size of the sparks thrown out were much larger than the meshes of the spark arrester, the defendant attempted to explain it, and called as a witness its mechanical engineer, A. E. Mitchell, who testified that he had made experiments with an engine with a view of ascertaining how it was possible for sparks of dimensions larger than the meshes of the spark arrester to be thrown out of the smoke stack of an engine. His conclusion from his experiments was that the sparks pass through the netting in a molten state, and that before they pass out of the smoke stack in some way they come in contact with each other, and adhere together, and thus form large cinders. The theory was an ingenious one, but, in view of the terrific commotion to which the sparks are subjected whjle in the stack, the conditions would not seem, to the ordinary lay mind, to be favorable to such a union of the sparks. Notwithstanding the defendant’s very vigorous and able defense, it was, we think, still a question for the jury whether the fire was caused by the negligence of the defendant. The bam and hotel were constructed of wood. The barn was a large one, and at the time of the fire full of combustible material. The distance between the two buildings was only thirty-nine feet.. The barn burned first, and the testimony tended to show that the flames from the burning barn extended to the hotel and set it on fire. The jury was justified in finding that the burning of the barn was the proximate and natural cause of the burning of the hotel. Proximate cause is defined, vol. 16, p. 436, of the American and English Encyclopedia of Law, as “ that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produced the result complained of, and without which that result would not have occurred.”

Elmer A. Chase, a witness called bv the plaintiff, was allowed, against the objection of the defendant, to give his opinion that if this engine had been equipped with a properly constructed spark arrester, properly placed in the engine, it could not have emitted sparks of the size this engine did. He had testified that he had worked upon a locomotive engine for twelve years, six years as a fireman and six years as an engineer: that he was familiar with all of the parts of a locomotive engine, including the spark arrester. His experience must have made him very familiar with all the parts and the operation of engines. The jury presumably were not acquainted with the mechanism and operation of locomotive engines. It was, we think, proper to allow Chase to give his opiniqn as an expert. The question of the suitableness of the spark arrester under the evidence was-properly left to the determination of the jury. The evidence showing that the engine was properly constructed consisted of the opinions of expert witnesses. They were the employes of the defendant. Such evidence cannot be held to be conclusive. Cornish v. Farm Building Fire Ins. Co., 74 N. Y., 295.

Wo have examined all of the exceptions of the defendant and find nothing in them justifying a reversal of the judgment. The case was properly submitted to the jury, and their verdict must be held to be conclusive.

The judgment and order appealed from should be affirmed.

Dwight, P. J., Macoüiber and Haight, JJ., concur.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Rudolph Hoffeld, Resp't, v. Jacob Zeuzius, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Contract—Construction.
    Z. being the owner of certain land contracted to sell the same to K., or those whom he should name, for $35,000; thereafter another agreement was entered into between the parties, which provided that should Z., under the contract, give a deed of the land and take a mortgage on the premises to secure the unpaid portion of the purchase price, then whenever there should be paid on the purchase price $20,000, and interest thereon, he would assign to K., or such person as he might name for- IC.’s services in selling the property, the mortgage and all sums due or to grow due thereon. Held, that the words “interest thereon” referred to the $20,000, and not to the amount for which the property was sold, and that the interest on the excess of $20,000 belonged to K.’s assignee.
    Appeal from a judgment entered in the Brie county clerk’s office upon the decision of special term.

      George Wadsworth, for app'lt; Moses Shire, for resp't.
   Lewis, J.

The defendant being the owner of a parcel of land iu the city of Buffalo, on the 25th day of March, 1884, entered into a written agreement, under seal, with one Baptiste Kahabka, by the terms of which the defendant agreed to sell to Kahabka said land for the sum of $25,000, upon the terms and conditions stated in the contract. Thereafter, and on the same day, another agreement was executed between said parties, materially changing the terms and conditions of the first agreement. The agreements were read in evidence, and marked Exhibits “A ’’ and “ B.”

Exhibit “ B ” recites : “ That, whereas, Jacob Zeuzius, party of the first part, has this day agreed, for the sum of $25,000, to convey to Kahabka, party of the second part, or to such person, persons or association as said second party may hereafter designate, certain real estate situate in said city of Buffalo, more particularly referred to in said agreement to sell; and, whereas, Kahabka has performed certain services in the sale of said lots, and has assumed certain obligations and agreed to perform certain services in disposing of said land and collecting the payments thereon; now,.therefore, this agreement witnesseth, that in consideration of the premises and of one dollar to him duly paid, the party of the first part hereby agrees that whenever there shall have been paid upon the aforesaid contract of sale the sum of $3,000, said party of the first part will thereupon pay to the said party of the second part, or his assigns, for his services, the sum of $150, which shall be next thereafter received on said contract of sale, and thereafter, so often as said party of the first part shall receive the sum of $3,000 on said contract, the next $150 received thereon shall be paid to second party or his assigns. Said party of • the first part further agrees that when there shall have been paid to him on said contract of sale the sum of $20,000 and interest thereon, according to the terms of said contract, over and above such sums as shall have been paid to said second party, or his assigns, as hereinafter provided, said first party will thereupon assign to said second party, or such person as he may designate, said contract of sale, and all sums due, or to grow due, thereunder.

“ Should said party of the first part, under the covenants contained in said contract of sale, hereafter give a deed of the premises mentioned in said contract, and take a mortgage on said premises to secure the unpaid portion of the purchase price, then the said party of the first part agrees that whenever there shall have been paid upon the purchase price of said premises the sum of $20,000 and interest thereon, according to the terms of said contract of sale, he will then assign to the second party, or to such person as he may designate, said mortgage and all sums due or to grow due thereon.”

Kahabka sold the land, and the defendant, after receiving a portion of the purchase price, executed a deed of the land and received from the purchaser a purchase money mortgage for the sum of $16,000. This mortgage more than covered the amount coming to the defendant; and thereafter, and on the 28th day of August, 1890, the mortgagor, desiring to pay the mortgage, applied to the defendant to receive that portion of the mortgage coming to him, and reserving therefrom the sum of $924.90, being the amount of interest which had accrued upon the sum of $5,000, which the premises were sold for over and beyond the sum of $20,000. The defendant demanded that the said sum of interest should be paid to him, and received the same, and, in violation of the terms of the agreement, satisfied and discharged the mortgage of record. Kahabka had theretofore assigned his interest in the contract to the plaintiff. The plaintiff thereupon demanded of the defendant that he pay to him the said sum of $924.90, which the defendant refused to do; the defendant claiming and contending that he was entitled to receive the entire proceeds of the farm, including interest thereon, less the sum of $5,000; and the plaintiff’s contention being that all that defendant was entitled to receive was the sum of $20,000 and interest thereon, and that he, as assignee of the claim, was entitled to receive the balance of the purchase price, with the accumulated interest thereon. The trial court sustained the contention of the plaintiff, and held that he was entitled to recover of defendant the said sum of $924.90, with interest from the day the same was paid to the defendant.

We agree with the construction given to the contract by the learned trial court. We think that the words, “ interest thereon ” refer to the $20,000, and not, as claimed by the defendant, to the amount for which the property was sold. By the agreement, Exhibit “ B,” the defendant agreed to receive as his portion of the proceeds of the sale of the farm the sum of $20,000, and interest •on that sum ; and agreed that Kahabka should receive for his services and expenses in selling the property all that should be realized over and beyond the $20,000, with the interest on that sum. There is nothing in the contract limiting Kahabka’s compensation to the exact sum of $5,000. The claim of the plaintiff is not to recover interest on the commissions of Kahabka; it is to recover of the defendant the sum of $924.90 received by the ■defendant belonging to the plaintiff. That was the amount due to the plaintiff over and above what had already been paid to him and his assignor, Kahabka. The defendant neglected and refused, after receiving the amount coming to him, to assign the bond and mortgage as he had agreed to do in his contract. The damages the plaintiff was entitled to recover was the value of such bond and mortgage after the defendant had received the moneys due him. The defendant received and collected $924.90 which belonged to the plaintiff, and that sum the plaintiff was entitled to recover of the defendant. It was stipulated upon the trial that the only question in the case is, who is entitled to the interest upon $5,-•000 provided in the contract of sale. A statement of the plaintiff’s claim, including computation of interest, was by agreement of parties received in evidence. It showed the balance due according to the claim of the plaintiff. We see no reason for reversing the judgment appealed from. It should be affirmed.

Dwight, P. J., Macomber and Haight, JJ., concur.


text:
    Samuel H. Morgan, Ex'r, Resp't, v. Helen Hills et al., by Guardian, App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Mortgage—Satisfaction—Receipt.
    In a foreclosure action the answer did not deny any of the allegations of the complaint, but alleged that when the mortgage was given it was agreed between the parties that the mortgagor should not be required to pay the mortgage, that it was given to preserve the property from his improvident transactions and should be satisfied during the lifetime or at the death of the mortengee and that it was so satisfied during her lifetime. Witnesses for defendants testified that the mortgagee said: “ There was no mortgage; pa has cancelled the mortgage," and at other times she said she intended to cancel it. The mortgage was found among her papers at her death, and indorsed upon it in the handwriting of her deceased husband was a payment of §2,000, and signed by him. Held, that the receipt, even if authorized, did not operate to satisfy the mortgage; that the evidence failed to establish a gift, and judgment for plainlifE should be sustained.
    Appeal from a judgment of the special term entered in the clerk’s office of Allegany county October 17, 1892.

      D. D. Dickson, guardian ad litem and counsel for app'lts; F. M. Todd, for resp't.
   Lewis, J.

This action was brought to foreclose a mortgage upon real estate in the county of Allegany. The complaint was in the ordinary form in foreclosure actions. The answer of the guardian ad litem did not contain a denial of any of the allegations of the complaint, but set up as an affirmative defense that at the time the mortgage described in the complaint was executed, it was distinctly understood and agreed by and between the parties that the mortgagor should not be required to pay the mortgage; that it was given for the purpose of preserving and protecting the real estate mortgaged from unwise speculations and improvident transactions on the part of the mortgagor, and that it was understood and agreed at the time of the making of the mortgage that it should be canceled and satisfied during the lifetime of the mortgagee or at her death, and that it was so satisfied and canceled before the death of the mortgagee. The infants were the only defendants who appeared in the action. The issues were referred to a referee, and at the opening of the trial the plaintiff moved for judgment upon the pleadings, on the ground that the allegations of the complaint were not denied and were, therefore, admitted by the answer of the guardian ad litem. The motion was denied. The plaintiff rested his case without offering any evidence. The defendants thereupon entered upon the defense, and evidence was introduced in behalf of both parties which tended to establish all the material allegations of the complaint. The principal part of the evidence was produced by the defendants, and consisted of the declarations of the mortgagee to the effect that her husband during his lifetime transacted her business ; that .he had canceled the mortgage before he died. Justin Hills, one of the defendants, testified : “I remember of hearing a conversation between Mabel Freeborn and Priscilla Freeborn in relation to this mortgage and property; I don’t remember when it- was; it was as much as four or five years ago; I didn’t take any part in this conversation; Mabel asked grandma 1 why don’t you give up this mortgage ?’ She said that there was no mortgage; she said that pa has canceled the mortgage, so that it can’t make you any trouble.”

Other conversations with the testatrix were testified to, in which she stated that she intended to cancel the mortgage; that she was retaining the mortgage so that if she needed it at any time she could have it to use in her old age, but that she intended to have it cancelled. The mortgage was found among the papers of the testatrix after her death by the executor, and was read in evidence. It was in form an ordinary real estate mortgage under seal. It was executed and acknowledged by the mortgagor, and was duly recorded. It contained a clause to the effect that it was given to secure the payment of the purchase money of the premises mortgaged. There was written on the face of it, immediately following the description of the premises, iri the hand-writing of Rodman Freeborn, the following :

“ $2,000.
“ Received on the within mortgage two thousand dollars. No receipt given.
“ Belfast, Jrnie 24, 1882.
“Rodman Freeborn.”

Rodman Freeborn was the husband of the mortgagee. The mortgagor was her son. They both died before the death of the mortgagee. The referee found that the mortgagee retained possession of the mortgage; that she had never authorized nor ratified the said indorsement to be made upon the mortgage, and that the principal sum secured by the mortgage, with the accrued interest thereon, was due and unpaid, and that the plaintiff was entitled to j udgment of foreclosure and sale of the premises. The evidence failed to show any authority on the part of the testatrix’ husband to satisfy or discharge the mortgage. There was no evidence that there had ever been anything paid upon the mortgage. The receipt written upon it, even if authorized by the plaintiff, did not operate to satisfy or discharge it. The evidence failed to establish a gift of the mortgage, for neither the receipt nor the mortgage was ever delivered to the mortgagor or his representative, but, as we have seen, they were retained by the testatrix and found among her papers after her decease.

The defendants failed to establish any defense, and we fail to find any reason for a reversal of the judgment. It should be affirmed, with costs of the appeal.

Dwight, P. J., Macomber and Haight, JJ., concur.


author: Macomber, J.

text:
    Lizzie Wilson, Resp't, v. Maria Heath, Ex'rx, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Hew trial—Newly discovered evidence.
    Where a portion of the affidavits used on a motion for a new trial relate to a declaration of a deceased person made many years ago,and where the facts therein stated, adduced upon a trial, would be regarded as evidence of a very unreliable character, and the other affidavits were, in substance, that the affiants had received letters from a person whose signature was in question, or had seen him write, and that they had seen the disputed signature. and that it was genuine, without the affiants producing the letters or writings of the alleged signer, Held, that the motion for a new trial was improperly granted.
    Appeal by the defendant, Maria Heath, executrix of the last will and testament of Orin Heath, deceased, from an order made by Mr. Justice Daniels, and entered in Orleans county clerk’s office, jSTovember 11, 1891, granting to the plaintiff a new trial upon the ground of newly discovered evidence.
    The plaintiff is the daughter of one Robert Hannan. She brought this action against the defendant upon a contract alleged to have been made by the defendant’s testator, Orin Heath, August 20, 1877. That contract is, literatim, as follows :
    “West Barrs, August 20, 1877.
    “This is to Certify that Mr. Heath of Medina agrees to Pay Lizzie Hannan Daughter of Robt. Hannan if she Stays with him and goas by the name of Lizzie Heath and his daughter he would Provide for hir in every respect as his own Child if She gets married and Sattle in life I do bind Myself to Pay hir Two thousand dollars also give hir a good fitont and She will also have a Daughters share in all that I have.
    “Orin Heath.
    “ Robert Hannan,
    “Wm. Hannan, Witness.”

      S. E. Filkins and E. L. Pitts, for app'lt; John J. Ryan, for resp't.
   Macomber, J.

The complaint in this action is based solely upon the above quoted contract and prays for judgment for the $2,000 and an outfit mentioned in the contract, and also for a daughter’s share in all of the property left by Orin Heath, amounting in all to $35,500. The answer put in issue the execution of that instrument by the testator.

The plaintiff is one of eleven children of Robert Hannan. In the year 1871, when she was ten years of age, she left her father’s home and went to live in Medina, with Orin Heath and his wife, and there remained, going generally by the name of Lizzie Heath, until June 20, 1888, when she intermarried with one Samuel J. Wilson.

The trial of the issues came on at the Orleans circuit, in May, 1891, and was quite protracted, lasting about a week, and resulted in a verdict of the jury in favor of the defendant. Thereupon a motion for a new trial was made upon the minutes of the court, upon the following grounds: (1) Upon the exceptions; (2) Upon the ground of newly discovered evidence; (3) On the ground that the verdict was contrary to the evidence; (4) For irregularities and surprise; and (5) Upon the ground that the jurors were tampered with. Subsequently, affidavits were prepared and served, asking for a new trial upon the ground of newly discovered evidence, and these, together with those read in opposition thereto, were considered and passed upon by the trial justice at a time subsequent to the trial term of the court, and that hearing resulted in the order granting a new trial upon the ground of newly discovered evidence alone.

The learned justice presiding at the trial has written an opinion in which he clearly shows that no error was committed at the trial. The order granting the new trial, is, by its terms, made “ On the ground of the newly discovered evidence of Elisha H. Gage, Hannah Turner, Warrington Paige, Artemus J. Goodwin, Clara A. Goodwin, Corni L. Morgan, John J. Swobe, and the newly discovered signatures and writing of William Hannan, made about the time of the contract.”

It becomes necessary, therefore, to examine these affidavits seriatim to see if they contain any such newly discovered evidence as to warrant the granting of an order for a new trial. The affidavit of Elisha H. Gage is to the effect, that about ten or fifteen years before making the affidavit he met Orin Heath in Medina, where “Mr. Heath said that he had taken a girl, and he went on to speak of her, and of his property, and, as I recollect the statement, he said, I have taken a little girl and if she proves a dutiful girl, the same as a daughter to a parent, I intend she shall be an heir and give her a share of my estate the same as though she was my daughter.”

Hannah Turner’s affidavit is to the effect that in the spring or early summer of 1876 or 1877, Orin Heath was driving by deponent’s house and stopped in the road and had a conversation with deponent, whereupon he said that he had just come from Robert Hannan’s house; that he had been there to get Lizzie, but that he did not find her, as she had gone over to Mr. Cozzins’, and that he was going over there after her; that Lizzie’s sister had been sick, and that Lizzie had been home to see her, and that now her father said she could not go back with him to live unless he would make a written contract as to the property he would give her. Orin Heath then said further, that he would make a written contract just as Hannan wished him to, for he wanted her to live with him just as she had done.

Both of these affidavits relate to a mere declaration of a deceased person, made many years ago. and, were the facts therein stated adduced upon a trial, would be regarded as evidence of a very unreliable character. But, irrespective of those considerations, it seems to us that in character and kind, though not in the identical fact there mentioned, they are obnoxious to the rule against allowing new trials where the proposed evidence is merely cumulative. Much evidence of the general character and description of this contained in these two affidavits was actually given upon the trial, namely, the declarations of Orin Heath, made at or about the time the plaintiff went to live with him, and subsequently, all of which was designed to, and did, tend to the same general result sought upon the trial, presenting a condition of things where the jury might say that the testator was likély to have made a contract similar to the one relied upon in this action. This was conspicuously so in the testimony given by Robert Han-nan. But Robert Hannan, in order to break the great weight of suspicion which his concealment of the contract until after the death of Orin Heath naturally awakened, testified that its existence was kept secret by him at the request of Mr. Orin Heath himself. Hence it is that these affidavits, particularly that of Mrs. Turner, go far to upset an important theory of the plaintiff's case as made at the trial.

The affidavits of Artemus J. Goodwin, Clara A. Goodwin and Gorni L. Morgan may be considered together. They are, in substance, that they had received letters from William Hannan, or had seen him write, at or near the time this contract is alleged to have been made, and that what purported to be the original contract was shown to them, and they did not hesitate to say that the signature as a witness of William Hannan, together with the word “ witness,” was written by William Hannan himself. But these proposed witnesses do not produce the letters or writings of William Hannan, and it is incredible that they should be able at this late day, from recollection merely, to describe .the changes which the handwriting of William Hannan had undergone between the time of witnessing the contract and the time of signing his deposition taken in this case.

The affidavit of Warrington Paige was, in substance, that Heath told him, about the year 1877, that he had no heirs or descendants to whom to leave his property, but that there was a young girl living with him who would have his property, who would be pretty well off when he got through with it This evidence, if given upon the trial, would be of the same general character as that already produced, and at best would show no more than an expression of a purpose by Mr. Heath, that was never carried out, of adopting this girl under the statute.

Swobe’s affidavit is that, about the year 1875, he saw Orin Heath and Lizzie Heath, now Lizzie Wilson, in Orin Heath’s garden ; deponent asked Heath if that was his girl, and he replied yes; and deponent asked him how many children he had, and he replied “ Hone of our own ; this is a girl we have taken.” Then deponent asked: “ Is it one you have adopted? ” and he replied “yes; ” and then deponent and he talked on' the topic of children; that he appeared to be very proud of her; and he then said that he had taken her as one of his own children, and to be as one of his own, and she should have all that he had got, the same as though she was his own, when he got through with it. This, too, is of the same character as Paige’s affidavit, and the same comment would apply to this as to the other.

But the greatest stress is laid upon the newly discovered signatures of William Hannan, one of the witnesses to the alleged contract. These signatures are produced in connection with, and are described in the affidavit of Robert Hannan, the father of the plaintiff, and the person who has had the principal management of the case in behalf of the plaintiff, and in procuring the evidencé for the trial. In his affidavit he says, that some days before the beginning of the trial of this action, the plaintiff’s counsel urged him to search for and obtain signatures in the handwriting of deponent’s son, William Hannan. That he was unable to procure any at that time, as William Hannan was in the state of Washington; but since the trial he has searched and made the following discoveries of such signatures; that, after the verdict, he says he was searching an old cupboard up stairs, among a lot of very old books, and found a book entitled “ History of M. E. Church, by Doctor Bangs, Volume 12,” on the back part of the frontispiece of which deponent found the following signature and handwriting of William Hannan: “ William Hannan, Braggs Corners, July 4, 1878; at home with a sore hand ; ” the alleged original of which was produced upon the hearing. He then testifies that this was the genuine signature of William Hannan; that the n's and m’s used in this signature are sharp pointed, and the signature is almost identical with that of William to the contract in question. The second new signature he found in possession of his son-in-law, Earnest Myhill, in a copy of Robinson Crusoe, which belonged to William, wherein it was written, “ William Hannan’s book, April 4th, 1881.” This was also exhibited at the hearing, and contains the same characteristics of handwriting as that upon the contract in suit. Another one he found in the possession of one of his daughters, Jennie, in a book entitled “The Daughters of America,” wherein it is written: “ Wm. Hannan to Jennie Hannan, January 6, 1878.” At the same interview with his daughter Jennie she produced an arithmetic containing the signature of William Hannan.

Is is a singular fact that neither the affidavit of Earnest Myhill, nor that of Jennie, was made to these important matters. All of those signatures rest solely upon the unsupported and ex parte oath of Robert Hannan himself, who was impeached upon the trial as a man unworthy of credit in any case where he was interested. Though the defense was not confined to an effort to prove that Robert Hannan signed Orin Heath’s name to the contract, yet it is very evident that the jury believed that he was the author of the entire instrument, including all the signatures. That conclusion was borne out by the testimony of many witnesses who were called in the defense.

It was conceded at the trial that Robert Hannan wrote the body of the instrument. That instrument was before the jury and it has been placed before us, and we are not prepared to say that the jury was not warranted, from the appearance of the paper itself, and from the history of the case as related by the several witnesses, in arriving at the conclusion that Robert Hannan was the sole author and signer of that instrument. Shall the ex parte affidavit of a witness, so interested as Robert Hannan clearly is, touching these new signatures, be regarded as of sufficient moment to warrant a court in setting aside a verdict and granting a new trial ? There is nothing in his affidavit which would bring the case within the rule, that in all probability such evidence if obtained at the trial would have produced a different result. He himself knew, as he says in his affidavit, that there had been a change in the handwriting of William Hannan from the time that this contract was made to the time of the trial, when William Hannan’s -testimony was taken by commission; yet he did not offer himself as a witness upon that subject at the time of the trial.

The controversy over William Hannan’s signature arose incidentally, though it was anticipated by the plaintiff’s managers. It was there claimed that his two signatures upon the deposition taken on commission, which of course were genuine, were so unlike his supposed signature as a witness to this agreement, that the signing by him of that instrument was denied at the trial. We cannot say that the question whether or not he was a bona fide signer of that paper is not an important one, although whether he signed it or not would make no difference, provided it had been shown that Orin Heath himself had signed it.

Were these several signatures of William Hannan which are now produced offered in evidence upon a new trial, it is extremely doubtful if it could be held that such signatures had been sufficiently proved to furnish a basis for a comparison of those writings with the signature to the written contract. By chapter 555, of the Laws of 1888, which materially amended chapter 36, of the Laws of 1880, relating to this subject, it is permitted to give evidence of comparison, but it must be shown that the subject of the comparison is the genuine handwriting of the person claimed on the trial to have executed the disputed writing or instrument. We must assume that the proof in relation to these new signatures of William Hannan would be the same at the trial as they are in this record. They would stand, therefore, as having been produced by Robert Hannan, and upon his oath in regard to their genuineness, unsupported by any other proof.

The court, under such circumstances, would, under chapter 555 of the Laws of 1888, probably feel compelled to exclude such comparison. But, however that may be, it is the common experience of courts and juries that there is scarcely a kind of evidence which is more susceptible of abuse in actual practice than a resort to a comparison of signatures. Such testimony is, at the best, but opinion testimony, not having within itself any element of fact. We think, therefore, that it would be an unsafe precedent in this instance to grant a new trial upon this ground; and we are constrained to differ from the learned justice, before whom the case was tried, in respect thereto, as well as upon the sufficiency of the other affidavits relied upon by counsel for the plaintiff.

The order appealed from should be reversed.

Order appealed from reversed, with costs.

Dwight, P. J., Lewis and Haight, JJ., concur.


text:
    Sarah V. Denise, Resp't, v. Albert L. Swett, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Patents—Royalties—Goods manufactured after termination of license.
    B. agreed to license for one year the firm of S. & S. to manufacture and sell a certain article patented by him; he further agreed to extend the contract for any length of time, S. & S. to pay a royalty upon each article. By mutual consent it was extended from year to year until 1886, when negotiations for another extension failed, B. giving notice of their discontinuance, and a settlement was had. Thereafter S. & S., and their successor, continued to manufacture and sell an article substantially like those previously made. Held, that S. & S., and their successors, were liable to B. for the royalty on the articles manufactured and sold since 1886.
    Appeal by the defendant, Albert L. Swett, from a judgment en tered in Monroe county, October 2, 1892, on the report of a referee.

      E. L. Pitts, for app'lt; Q. Van Voorhis, for resp't.
   Macomber, J.

The defendant was formerly a member of the firm of Sampson & Swett, a copartnership engaged in manufacturing business. This copartnership was dissolved in the month of January, 1890, and the defendant assumed all obligations of the firm then outstanding, and agreed to indemnify Sampson from any loss, damages or costs growing out of their joint business.

On the 3d day of July, 1882, an agreement was made between one Henry H. írown, of the first part, and Sampson & Swett of the second part, by which Brown, who was the owner of an invention known as an improvement in barrel headers, for which, and also for an improved screw barrel press, letters patent had been issued, agreed to license for the term of one year from the 1st day of July, 1882, Sampson & Swett to manufacture and sell, exclusively, such improvements within the entire territory covered by the letters. Brown further agreed, upon receiving a notice of at least sixty days before the expiration of such license, to extend the contract for any length of time within the life of the patents which Sampson k Swett might desire. Sampson & Swett, on their part, agreed to pay for the use of such patented inventions a license fee or royalty of $3.50 upon each and every dozen presses manufactured and sold by them. The contract contained a further clause to the effect that in case the licensees should violate the terms of the agreement in respect to payments, etc., “this contract and all the provisions thereof shall, at the option of the party of the first part, be and become in all things null and void, and the party of the first part may resort to any legal remedy; and the party of the second part shall not thereby be discharged from liability to party of the first part for any license fees, commissions or royalty due at the time of the exercise of such option.”

Under this agreement, the defendant and his copartner began to manufacture and sell the machines and continued to manufacture and sell the same up to the time of the dissolution of the defendant’s firm; and after such dissolution this defendant continued alone to manufacture and sell the same up to the beginning of this action, which was on November 16, 1891. The defense interposed consisted of a denial of liability for the manufacture and sale of such machines after the month of June, 1886, when, as is claimed by them, the above contract was terminated. The further defense is, that the machines manufactured by the firm and by the defendant after the last-named date differed materially from the machines manufactured and sold under Brown’s patents.

The referee, in accordance with a clear preponderance of the evidence, has found in his report that there was no substantial difference in such machines. It is further abundantly established by the evidence, that after the month of June, 1886, and up to November, 1891, there were manufactured and sold by Sampson & Swett, and by the defendant Swett, in all, 529 dozen upon which no royalties or license fees had been paid, for which, at the rate of $3.50 per dozen, this plaintiff, as assignee of Brown, brings this action, and judgment in the sum of $1,851.50 was accordingly directed in behalf of the plaintiff.

It is contended by the learned counsel for the appellant, that the agreement of 1882 was not continued after June 30,1886, and was not in force or effect between the parties thereto after that date. This proposition was the subject of several requests made to the referee to find as a fact.

It is true that the agreement between the parties was not in terms extended by Brown beyond June 30, 1886. From that date to the beginning of this action, the defendant denied all liability to Brown; and his counsel now urges, that inasmuch as the contract had not in words been extended, there can be no recovery, but that the plaintiff’s remedy, if any, is by an action for the infringement of his patents, and that such action is solely cognizable by the Federal courts. But the recovery, we think, may in this case be sustained upon the ground of an implied contract, which was manifested by the conduct of the defendant and his copartner.

Having once settled upon the existence and terms of the contract in words, there would necessarily arise an implied promise on the part of the defendants to pay for the use of such patented inventions under this agreement the sum therein provided for. And notwithstanding the fact, that the plaintiff’s assignor, Brown, affirmatively objected to such further manufacture and refused to continue the contract under the old terms, it does not, as it seems to us, preclude a recovery, for the reason that the defendant ought not to be heard to deny the existence of a contract without which he would not originally have begun the manufacture and sale of the barrel headers. Having once entered into contractual relations with the owner of the patent, of the character above mentioned, it cannot be permitted to the licensee to repudiate liability measured by the terms and conditions of the contract.

The learned referee, James 0. Smith, has written the following opinion, which we adopt, fully covering other branches of the case: “ The agreement which was made in July, 1882, for the term of one year, contained a provision that it might be extended for any length of time which the defendant’s firm might desire, within the life of the patents therein mentioned. By mutual consent, it was extended from year to year, until July, 1886. negotiations for a further extension were had about that time, but they proved fruitless, and Brown gave notice that negotiations for an extension- were ended. Thereupon a settlement was had, and the firm paid royalties, at the rate stipulated in the agreement, on all the barrel headers and presses made and sold by them prior to July, 1886. nevertheless, the firm while it existed, and the defendant after he acquired the interest of his partner in the firm, continued to manufacture and sell barrel headers and presses which the plaintiff contends were substantially like those which had been previously made and sold by them. That contention is controverted by the defendant, he asserting that there were material differences between the machines made subsequently to the first of July, 1886, and those made previously.

“ The evidence on that point supports the plaintiff’s contention. A specimen of each class of machines was produced at the trial and testimony was given as to their differences. The only difference appears to be in the mode of fastening the follower to the screw. The defendant testified that the machines made by him prior to July, 1886, had ‘a pin through the screw under the washer; the pressure of the screw come on top of the washer. Those made since 1 have a groove turned in the lower end of the screw, and is held in place by a washer made in two parts, the washer fitting into the groove m the screw ; the pressure of the screw bears upon a separate casting placed on the inside of the follower and under the washer.’ The substance of the testimony is understood to be that the fastening in the earlier machines was by means of a pin through the end of the screw; in the later ones it was by means of a groove at the end of the screw and a washer fitting into the groove. So far as can be gathered from the testimony, each arrangement seems to serve the purpose (and that only) described in the specifications annexed to the patent, of fastening the follower to the end of the screw, but swiveling it in place, so that it can turn freely in either direction. ‘ Swivel ’ is defined by Ainsworth, in his dictionary, as 1 something used in or on another body so as to turn round in or upon it.’

“ The definition applies to either arrangement. It does not appear that either method differs- from the other in practical operation or utility, or even in durability or cost. The two seem to be ‘identical in function, and substantially identical in performing that function,’ and so are ‘equivalents.’ Walker on Patents, 2d ed., § 362.

“ It must be held, therefore, that the machines made during the two periods were substantially alike. That being the case, I think the defendant and his firm, in continuing to make and sell the machines after June, 1886, in the circumstances shown, became liable to pay the royalties thereon fixed by the contract, notwithstanding there was no express extension of the contract, and notwithstanding the notice then given by Brown that negotiations for a further extension were at an end. The subsequent conduct of the parties, in the circumstances, was a virtual extension of the contract.

“ The case of the Union Manufacturing Company v. Lounsbury, 41 N. Y., 363, seems to be an authority for that position. The learned counsel for the defendant suggests that that ease is distinguishable from this, by reason of the fact that there the notice forbidding the further use of rights under the agreement was given during the lifetime of the agreement, while here the notice that negotiations for an extension "were ended was not given until the agreement had expired. It is true that the term covered by the extension of the agreement in question expired with the month of June, 1886, and the notice referred to was given at about that time, as has been remarked, but the agreement, by its terms, was to be extended for any length of time during the life of the patents that the defendant’s firm might desire, the firm giving notice of such desire. Nothing was done by Brown towards rescinding the agreement or prohibiting the use of the rights conferred by it, beyond giving the notice already mentioned. It "was competent for the parties to continue the agreement, notwithstanding that notice, and to waive the formalities prescribed by the agreement. The desire of the defendant and his firm to extend the agreement was manifested by their continuing to use the right, which it gave them, of manufacturing and selling the machines, and the plaintiff’s acquiescence in such use was shown by his taking no measures to prevent it, and by his suing for the royalties provided for by the agreement. There does not appear to be any substantial difference between this case and that of the Manufacturing Company v. Lounsbury, so far as the point under consideration is concerned.

“ The cases cited by the defendant’s counsel, which hold that a state court has not jurisdiction to try the question of an infringement of a patent for an invention, have no application to the case in hand. There is no question of an infringement here. The action is on the contract. The only allusion to an infringement, in the pleadings, is fcAind in one of the counts in the defendant’s answer, which alleges that the machines made and sold after July 1, 1886, were not covered by Brown’s patent, and did not infringe it. That averment does not deprive the state court of its jurisdiction to try the question whether the plaintiff is entitled to recover upon the contract set forth in the complaint. Nor would it have given a federal court jurisdiction of the action, if the action had been brought there, and the like pleadings had been put in. Hartell v. Tilghman, 9 Otto, 547; Albright v. Teas, 16 id., 613; Dale Tile Manf g Co v. Hyatt, 125 U. S., 46.

“In the circumstances of the case, the only question raised by the portion of the answer referred to is one of comparison between the machines made at the different periods above mentioned, and that comparison is material, not for the purpose of determining whether the defendant has infringed the plaintiff’s patent, but for the sole purpose of determining whether, since June, 1886, the defendant, or his firm, has made and sold machines answering to the description contained in the contract, and if so, how many.

“If that question takes the case out of the jurisdiction of the court, it follows that the defendant, in every action brought in a state court to recover royalties or other compensation agreed to be paid, for the use of a patent right, may oust the court of jurisdiction by interposing a defense like the one in question, and if he is then sued by the plaintiff in a federal court for the same cause, he may procure there a dismissal of the complaint for want of jurisdiction in that court by omitting to set up such defense in his answer.

“ In Hyatt v. Ingalls, 124 N. Y., 93; 35 St. Rep., 114, it was contended that a reissue of a patent, under which the plaintiff claimed, was void, for the reason that it embraced claims not included in a former reissue, and omitted claims which were in the latter, and it was also contended that the issue thus made was not within the jurisdiction of the state court, p. 102, but the contention did not prevail, the court holding that it was niatter of comparative construction of the two reissues; and although the last reissue was broader than the first, it embraced the claims represented by the former reissue substantially, and with a sufficient distinctness to preserve them within the principle that the reissue of letters patent, embracing more than did those surrendered, will be deemed invalid as to the excess, or new claims only, and the state court had jurisdiction, p. 103. So here the matter is one of comparison of two machines; and they being substantially alike, no question arises which the state court cannot determine.

“ The defendant’s counsel argues that the principle of the Brown patent had become used before his patent was issued, and, therefore, the patent is useless. The defendant, or his firm, in whose place he now stands, having entered into the contract with Brown, and having taken from him a license to make and sell the subject of the patent, cannot, for the purpose of a defense to an action to recover the royalties, question the validity of the patent. Mars ton v. Swett, 66 N. Y., 206; S. C. on second appeal, 82 id., 527; Hyatt v. D. T. Manf'g Co., 8 St. Rep., 631.

“ The defendant, having assumed the liabilities of his firm on its dissolution, is liable for royalties on the machines made by the firm, as well as on those made by himself since June, 1886..

“ The assignment made by Dunning, as the general assignee of Brown to the plaintiff, carried the claim sought to be recovered herein.

“ If the views above expressed are correct, the plaintiff is entitled to recover.

There is evidence tending to show that the defendant and his firm have made and sold 6,347 machines since June, 1886, upon which no royalty has been paid. The royalty upon them, at the rate fixed by the contract, $3.50 per dozen, amounts to $1,851.50. It appears that forty-eight machines sold in July, 1886, were manufactured previously, and the royalties on them were paid.

“ The plaintiff’s counsel claims interest on the amount due; but interest is not demanded in the complaint, and as it appears that no demand was made for payment, or for a report of sales until about the time of the commencement of the suit, I think no interest should be allowed.”

It follows that the judgment appealed from should be affirmed, with costs.

Dwight, P. J., Lewis and Haight, JJ., concur.


author: Bischoff, J.

text:
    Catharine Tuomey, Resp't, v. The O'Reilly, Skelly & Fogarty Co., Impl'd, App'lt.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    1. Negligence—Pleading—Election.
    The complaint charged the owner of a building with havi g constructed a cellarway with wooden doors encroaching on the street; the tenant with maintaining the nuisance, and this defendant with negligently permitting the cellar entrance to remain open and uncovered while delivering barrels to the tenant, whereby plaintiff was injured. Held, that a motion to dismiss as to this defendant was properly denied, as the complaint stated a cause of action for negligence against it; that its remedy was by motion to compel plaintiff to elect between the causes of action alleged, and if she elected to proceed upon that for a nuisance, a motion for dismissal would be proper.
    3. Same—Evidence.
    The complaint was dismissed as against the owner. Previous thereto certain ordinances were admitted in evidence and a survey of the cellar-way. Held, that the evidence was competent when received, and if irrelevant after the dismissal as against the owner, defendant should have moved to strike it out.
    8. Same.
    Evidence to show that there were similar cellar doors in the vicinity was excluded. Held, that if relevant when the exception was taken because the action had proceeded as for a nuisance, it became immaterial when the action continued as one for negligence.

      4. Same—Damages—Evidence.
    Under a general allegation of damage, a plaintiff is entitled to include in her recovery compensation for pain and suffering endured up to the time of the trial and to be thereafter endured, and hence evidence as to whether her hurt has been entirely cured is admissible.

      5. Same—Proof of ownership.
    An admission, by not denying, that defendant was engaged in the brewing business and owned trucks and employed drivers in its business, coupled with proof that the truck from which the barrels were being delivered bore defendant’s name, and a refusal of defendant to disprove its ownership and the employment of the men so deliveiing, is sufficient to sustain a finding that the truck was its property and the men its employes.
    6. Evidence—Motion to strike out.
    A motion to strike out evidence as irresponsive is properly denied, where the motion includes evidence which is proper.
    Appeal from a judgment for plaintiff which was entered upon a verdict, and from an order denying defendant’s motion for a new trial on the minutes.
    Action to recover damages for an injury sustained from the negligence of defendant’s servants in the use of a cellar entrance adjacent to the street, aud the street in front thereof, while engaged in the delivery of merchandise to the occupant of a building from one of defendant’s tracks.

      Geo. H. Yeaman and Horace C. Skelly, for resp’t; Edward H. S. Johnston, for app’lt.
   Bischoff, J.

The complaint charged defendant, Moore, with being the owner of the premises No. 72 New Chambers street, in the city of New York, and with having constructed in front thereof, in close proximity to the sidewalk or street and partly encroaching thereon, a cellar entrance provided with wooden doors which, when the entrance was in use, were folded back so as to leave the entrance exposed; and that lie so let the premises to the defendant, Tallón. The latter was charged with the maintenance of the nuisance as lessee of the premises. Defendant, the O'Reilly, Skelly & Fogarty Co., was charged with having negligently permitted the cellar entrance to remain open and uncovered without guarding against the risk of injury to passers by, and the sidewalk in front thereof obstructed, while its servants and employes were engaged in the delivery of a number of barrels of ale to Tallón, between seven and eight o’clock in the evening of April 2, 1891. The complaint farther states that by reason of the several acts of the defendants, plaintiff, while proceeding along New Chambers street, without fault or negligence on her part, fell into the open cellar, and in that manner sustained the injury for which she sought to recover in this action.

It seems indisputable that with respect to defendants, Moore and Tallón, the complaint was framed as upon a cause of action for damages resulting from the creation and maintenance of a nuisance, Forde v. Nichols, 36 St. Rep., 729, and cases there cited, with which the defendant, the O’R., S. & F. Co. was wholly disconnected, but so far as concerns the last mentioned defendant, who is the only appellant, the facts alleged are sufficient to.constitute a cause of action for damages resulting from an injury sustained by plaintiff through the negligence of defendant’s servants.

At the opening of the trial, counsel for defendant, the O’R., S. & F. Co., moved to dismiss the complaint for insufficiency, but for the reasons already stated, the motion was properly denied. The proper course for the defendant, the O’R, S. & F. Co., would have been to compel plaintiff to elect between the two causes of action, and then, if she had elected to proceed upon that for damages resulting from the creation and maintenance of a nuisance, the motion for dismissal of the complaint, as against the OR-., S. & F. Go., would have been proper, and should have been granted.

Respecting defendants Tallón and the O’R S. & F. Co., the use of the street in front of the premises for the delivery of merchandise was, for the time being, lawful, so neither per se nor prima fade a nuisance, Callanan v. Gilman, 107 N. Y., 360; 12 St. Rep., 21; and observing the allegations of negligence in the use of the cellar entrance and street for the purposes mentioned, the learned trial judge properly treated the action as against the defendant, the O’R, S. & F. Co., to be one for negligence. This also disposes of the contention that on the trial plaintiff was permitted, against the objection of the defendant, the OR., S. & F. Co., to substitute and litigate a different cause of action for the one alleged in the complaint.

When plaintiff rested, the court dismissed the complaint as against defendant Moore. Previous to this, plaintiff was permitted, under objection by counsel for the defendant, the O’R, S. & F. Co., to introduce in evidence certain city ordinances which, in effect, prohibit the construction and maintenance of cellar doors, extending into the street beyond a specified distance. Underlike objection, a survey showing the cellar entrance and the testimony of the surveyor were admitted in evidence. The complaint, however, charged, and the answer of the appellant denied, that the cellar entrance in front of the premises was constructed and maintained in violation of the ordinances. Hence, at the time of its admission, the evidence was competent and relevant to the issues under the pleadings, and at any rate admissible as against defendants, Moore and Tallón. Laws 1878, chap. 219, p. 273, as amended by Laws 1879, chap. 211, § 1, p. 290; McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y., 530.

If, upon the dismissal of the complaint as against defendant Moore and the prosecution of the action against the remaining defendants as one for negligence, the evidence admitted was irrelevant, the defendants should have moved to have it struck out or requested the court to instruct the jury to disregard it. Again, before the dismissal of the complaint as against the defendant Moore counsel for appellant defendant, on cross-examination of Lynch, the surveyor, sought to show that like cellar entrances to the one in question had existed in this city for many years and then existed in the vicinity of the promises described in the complaint, but this evidence was excluded. Assuming it to have been relevant at the time of taking exception to its exclusion because the action had proceeded as one for a nuisance, it ceased to be so when the action continued as one for negligence. That there were other cellar entrances elsewhere in the city or vicinity of the premises could not in any sense help the appellant-defendant to relieve it from the exercise of due care in the use of the particular cellar entrance in question or the street in front thereof. The exclusion of the evidence was, therefore, not error.

Appellant next contends that the trial judge improperly refused to strike out certain irresponsive testimony on plaintiff's direct examination. This testimony was to the effect that plaintiff’s husband was blind. On a proper motion it ought certainly to have been stricken out, as by the pleadings plaintiff was confined to the recovery of compensatory damages for the injury sustained by her, and that her husband was blind, or crippled, could in no wise tend to establish either that appellant-defendant was negligent, plaintiff free from contributory negligence, or the extent of the injury or damages to which she was entitled. Pennsylvania Co. v. Roy, 102 U. S., L. ed., 141; 12 Otto, 451; Platner v. Platner, 78 N. Y., 90, 102; Farmers’ Bank, etc., v. Cowan, 2 Abb. Ct. App. Dec., 88, 90. But the motion to strike out included evidence tending to show that plaintiff’s fall was caused by a rope stretched across the sidewalk, a fact which was competent and relevant to the questions of defendant’s negligence and plaintiff’s freedom from contributory negligence. Hence, the motion was properly denied, McCabe v. Brayton, 38 N. Y., 196; People v. Beach, 87 id., 508, 512. It was not thereafter renewed nor was the court asked to instruct the jury to disregard the objectionable testimony. Baylies Trial Practice, 205, etc.

Plaintiff was asked on her 'direct examination “ Has your hurt ever been entirely cured ? ” This was answered under objection and exception, the objection being that the inquiry was “improper ” and the subject-matter thereof not pleaded.

The question was plainly intended to elicit the fact of the continued effect of the injury upon the witness and, construing the action, as we do, to be one for negligence against the appellant-defendant, plaintiff was1 entitled, under, a general allegation of damage, to have included in her recovery compensation for the pain and suffering endured up to the time of trial, and to be thereafter endured. Schuler v. Third Ave. R. R. Co., 48 St. Rep., 663.

An exception was taken to the alleged charge of the learned trial judge “ that the jury may take into consideration what the physicians consider as reasonably certain would be the permanent injury to the plaintiff,” but what he did charge was that the jury “may take into consideration what the physicians have said as to the permanency of the injury,” thus merely referring the jury to the testimony and not assuming the injury to be of a permanent nature. But the evidence was sufficient to justify the jury’s inference that the injury was permanent. Dr. Shannon testified: “At her age, unless it was treated gradually (meaning plaintiff’s arm), with manipulation and moving about, she won’t recover the use of it. The prospect is, Ithink, it wilj. remain permanently injured; ” and we understand this to mean that while there was a possibility of a cure by gradual manipulation and moving about of the arm, it was not within the bounds of probability because of plaintiff’s advanced age, and her injury was, therefore, reasonably certain to remain permanent

The complaint alleged that the appellant-defendant was at the time of plaintiff’s injury engaged in the brewing business in the city of New York, and owned trucks and horses, and employed drivers and assistants in and about its business. This was not denied by answer, and must, therefore, be taken as admitted, Code Civ. Proc., § 522 ; and the admission with the evidence that the truck from which the ale was being delivered at the time of plaintiff’s injury bore the name of O’Reilly, Skelly & Fogarty,” coupled with appellant-defendant’s refusal to disprove its ownership thereof and the employment of the men assisting in the delivery of the ale, on the trial, was sufficient to sustain a finding that the truck was the property of the appellant-defendant, and the men its servants and employes. Seaman v. Koehler, 122 N. Y., 646; 33 St. Rep., 729; Wylde v. R. R. Co., 53 N. Y., 156.

The remaining exceptions are without gravity, viewing the action as one for negligence and not for the creation and maintenance of a nuisance.

The judgment and order should be affirmed, with costs.

Bookstaver, J., concurs.

Pryor, J.—In form the complaint is undoubtedly faulty; since it alleges two several and distinct wrongs, for each of which only some of the defendants were responsible. As the causes of action so combined do not affect all the parties, they were improperly united; But the appellant’s remedy was by demurrer, and by failure to demur it waived the vice in the pleading.

True, the appellant was not answerable for the” creation or maintenance of the alleged nuisance. in the highway; but the verdict does not proceed upon appellant’s liability for the nuisance. The complaint explicitly imputes to the appellant that it obstructed the sidewalk in so careless, negligent and unlawful a manner that thereby the plaintiff was precipitated into the excavation. The evidence tended to establish the allegation of negligence against the appellant; the court submitted the issue of negligence to the jury; and the verdict finds the fact of negligence upon sufficient proof.

The appellant, however, insists that it owed no such duty to the plaintiff as would support an imputation of negligence. The contention is untenable. Whoever uses the highway, and for whatever purpose, is under obligation so to conduct as not unreasonably and carelessly to expose to peril another lawfully engaged on the highway. Indeed, in every situation and relation of life the law exacts proper care to avoid injury to another. Sic utere two ut alienum non laedas is a principle of universal prevalence.

Other exceptions are obviated by the argument in the prevailing opinion.


author: Per Curiam.

text:
    Paul Zunz, Resp't, v. James H. Heroy et al., App'lts.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    Appeal—Interlocutory judgment.
    An appeal from a final judgment brings up for review an interlocutory judgment only where it has not already been reviewed upon a separate appeal. Where such interlocutory judgment has been affirmed at general term upon a separate appeal, it is conclusive.
    Appeal from a filial judgment for plaintiff on the referee’s report.
    Action for an accounting for the sales of merchandise consigned by plaintiff to defendants.

      Otto Horwitz, for resp’t; W. W. Niles and Henry Thompson, for app’lts.
   Per Curiam.

appeal from a final judgment brings up for An review an interlocutory judgment which has not already been reviewed upon a separate appeal therefrom. Code Civ. Pro., § 1316. The interlocutory judgment in this action was affirmed at general term upon appeal by the present appellant, Zunz v. Heroy, 15 Daly, 411; 28 St. Rep., 182, and is, therefore, conclusive upon us.

The closest scrutiny of the evidence and proceedings before the referee on the accounting directed by the interlocutory judgment, which involved the examination of much testimony and numerous exhibits, labor which the many inaccuracies in the brief of appellants’ counsel did not tend to diminish, has not enabled us to discover any error. The referee’s findings of fact are abundantly supported by the evidence, and his conclusions of law are fully warranted by the facts found.

The judgment and orders should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


text:
    Mary Barker Pareira, Resp't, v. Roderick H. Smith, App'lt.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    Money loaned—Evidence—Right to sum up.
    In an action for money loaned, plaintiff relied on an instrument written upon a letter heading of the New York Stock Trust, of which defendant was an officer, in the form of a receipt for money, to be repaid on a certain day, and signed by defendant. The court excluded evidence offered by defendant to show that he did not receive the money, but that it was loaned to the stock trust, and also declined to permit counsel for defendant to sum up to the jury, saying there was only a simple question of fact for them. Held, that the judgment in favor of plaintiff should be reversed.
    Appeal from judgment of the general term of the city court of New York, which affirms a judgment for plaintiff entered upon a verdict in her favor; and from an order denying defendant’s motion for a new trial on the minutes.
    Action to recover for moneys alleged to have been loaned by plaintiff to defendant. The defenses were a general denial and that the loan ivas not made to defendant, but to a third person through defendant as the medium.

      Adolph L. Sanger, for resp’t; Theron G. Strong, for app’lt.
   Bischoff, J.

To substantiate her claim of a loan to defendant plaintiff gave in evidence the following instrument:

“American Loan & Trust Company,
“ Registrar of the Certificates,
“New York Stock Trust,
“6 Wall Street.
“ Trustees:
“ Roderick H. Smith,
Manager.
“Geo. Condit Smith,
Secretary.
“George F. Shaver.
“New York, December 10, 1890.
“ Received from Mrs. M. Barker Fareira, as a loan, one thousand dollars, to be returned January 1, 1891.
“ Roderick H. Smith.”

and the trial court excluded oral evidence, offered by defendant, which tended to show that the sum mentioned was never received by him, and was in fact loaned to the New York Stock Trust, on the ground that the evidence excluded varied the legal effect of a written instrument; to which defendant’s counsel duly excepted.

The exception was well taken and the judgment and order appealed from si i ould, therefore, be reversed. In De Lavalette v. Wendt, 75 N. Y., 579, the instrument was as follows: “New York, November, 3, ’66, $500. Received from B. M. Peyser five hundred dollars, due on demand.” It was held that the instrument did not sufficiently name a payee, bearer or otherwise, that the effect of the omission was to render the instrument a mere receipt of the payment of money, and as such open to explanation by parol evidence. Edwards on Bills and Promissory Notes, 131, star paging; Union Trust Co. of N. Y. v. Whiton, 97 N. Y., 172. As the instrument in the case at bar is essentially identical, except as to the time of payment, with the one in De Lavalette v. Wendt, there is no escape from the conclusion that the court below erred in excluding the evidence referred to.

Waiving the defect, however, and viewing the instrument sufficient for the purposes of a promissory note it was, nevertheless, ■competent, as between the parties and their privies with notice, to show a failure of consideration, and this by parol evidence. Rice on Evidence, vol. 1, p. 274; vol. 2, p. 1137; Randolph on Negotiable Instruments, § 565; Bookstaver v. Jayne, 60 N. Y., 146; Isaacs v. Jacobs, 15 Daly, 490; 29 St. Rep., 145; Homestead Bank v. Wood, 48 St. Rep., 775; Julliard v. Chaffee, 92 N. Y., 529, 535. That an instrument recites the receipt of a consideration at most clothes it with the dual character of contract and receipt. As the latter, it is but, prima facie evidence of the fact and open to rebuttal by oral proof. Meyer v. Peck, 28 N. Y., 590; Abbe v. Eaton, 51 id., 410; Van Etten v. Newton, 15 Daly, 538, 543; 25 St. Rep., 751; 29 id., 411.

Other exceptions of gravity appear in the record, but as the one discussed requires reversal, we refrain from specially noticing those remaining, as the alleged error thereby presented may not again occur.

Judgment and order reversed and new trial ordered, with the costs of this appeal to the appellant to abide the event.

Pryor, J.—On perusal of the record the inference is unavoidable that the court declined to permit counsel for the defendant to sum up to the jury on the issue submitted to their determination.

After passing upon a motion by plaintiff’s counsel for the direction of a verdict, the court immediately proceeded to charge the jury; and at the earliest moment possible without an indecent interruption, counsel for defendant asked: “ Are we not to have an opportunity to sum up the case?” to which the court responded : “ No summing up was necessary, * * * inasmuch as there was but one simple question of fact for the jury.”

Be the issue simple or complex, counsel have a legal right to be heard upon it before the jury. If the court may deny the privilege upon the assumption that the case is too plain for argument, then the exercise of the.privilege stands not upon legal right, but upon the misconception, or caprice, or arbitrary volition of the court. To this proposition I cannot assent. The dictum in its support, People v. Cook, 8 N. Y., 67, 77, is of no authority; and is repugnant alike to the rights of litigante and the duty of counsel. 2 Rumsey’s Pr., 804; Douglass v. Hill, 29 Kansas, 527, per Brewer, J.; Garrison v. Wilcoxson, 11 Ga., 154.

Upon this ground I concur in the reversal of the judgment.


author: Daly, Ch. J.

text:
    Robert V. Johnson, Resp't, v. John S. Crotty et al., App'lts.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    Master and servant—Employment.
    Defendants employed plaintiff as salesman for their goods, but thereafter, needing financial assistance, made an arrangement with one S. to do their business through the firm by which he was employed on a commission, introduced plaintiff as the salesman to do the business, and agreed to put in the hands of S. moneys to pay plaintiff’s salary. S. gave to plaintiff a letter stating that he engaged his services, and setting forth the terms thereof. Plaintiff then consulted one of the defendants as to his status, and was informed that he was defendants’ employe, and that the letter was a mere form, and acting on such assurance, answered accepting it. The arrangement was carried out, defendants giving S. the money for plaintiff for ten months, when defendants refused to pay on the ground of the failure of S. to perform some part of his agreement, and claim that plaintiff was not employed by them. Held, that a finding in plaintiff's favor was proper.
    Appeal from a judgment of the city court, affirming a judgment in favor of plaintiff for $880.27 entered upon the report of a referee on March 25, 1891.

      J. Tredwell Richards, for app’lts; John Delahauty, for resp’t.
   Daly, Ch. J.

The action was for $500 balance due for services alleged to have been rendered to defendants, at their request, as sálesman, from October 1, 1887, to October 1, 1888, at the agreed compensation of $3,000, and for which they had paid only $2,500. The defense denied that the services were rendered to the defendants, or that they promised to pay therefor, and, while admitting that they paid the plaintiff $2,500, allege that they did so at the request of one Chalíes H. Spencer and for his account. The question of fact to be determined by the referee was, whether the plaintiff was employed by Spencer or by defendants, and he found in plaintiff’s favor.

Prior to the dates above mentioned, the defendants, who were manufacturers of corsets and desirous of obtaining the services of the plaintiff as salesman for their goods, agreed with him upon the terms of such employment. Owing to the necessity, from their want of capital, of their making an arrangement for advances with some house of means, they negotiated with the aforesaid Spencer for doing their business through his firm of Iselin, Neeser & Go., and agreed upon a commission to Iselin, Neeser & Go., who were to make them advances on goods sold or delivered ready for shipment, and they introduced the plaintiff to Spencer as the salesman whom they desired to make sales of their goods, and agreed to place in Spencer’s hands from time to time enough money to pay his monthly salary of $250. Spencer was to get three per cent from Iselin, Neeser & Go., and he agreed with defendants that if it yielded him one and one-half per cent net after paying expenses, he would annually hand such surplus to defendants towards paying plaintiff’s salary. At the time that this agreement between Spencer and the defendants was made, Spencer drew up and handed to plaintiff the following letter:

“New York, October 5, 1887.
■ “ My Dear Sir: Having now completed my arrangements with Iselin, Neeser & Go., as agreed between you and me, 1 desire to define our relations so that there may be no misunderstanding. I understand that I engage your services to sell the corsets made by Grotty Bros., and such other corsets as may be added, if any, at a salary of $3,000 a year, to begin October 1, 1887, and to be paid as wanted by you through each month one-twelfth part. I also agree to pay your traveling expenses in so selling. " Such arrangement to continue until October 1, 1888. The matter of ■ the woolen business you control will be made the subject of another agreement to be arranged to your satisfaction, on exhibition of the sample which, I understand, can be seen in a few days.
“ Yours respectfully,
“ Chas. H. Spencer.
“B. V. Johnson, Esq.”

On receipt of this letter the plaintiff went immediately to the defendant, John S. Grotty, with whom he had made the arrangement for employment, and asked him what it was for; whether he was his, Grotty’s employe, or Spencer’s ? Defendant answered that the plaintiff was his employe and was to receive the money from him, and the letter was only a mere matter of form; that Spencer was acting as defendants’ agent in that respect. Plaintiff then said : “ I will acknowledge it,” and defendant replied : “ If you like.” Plaintiff then wrote to Spencer as follows:

“ New York, October 8, 1887.
Chas. H. Spencer, Esq.
“ My Dear Sir : Replying to your letter of October 5th, containing the details of your proposed arrangement for the current year, I have to say that I accept its provisions as there detailed.
“Yours very truly, R. V. Johnson.”

It is upon these writings, which upon their face appear to constitute a contract between Spencer and the plaintiff for the services now sued for, that the defendants base their contention that the plaintiff was never in their service, but was the employe ■of Spencer. The referee, after hearing the testimony of Spencerr of the plaintiff and of John S. Grotty, who conducted all the negotiations for his firm, the defendants, these three persons being the only witnesses, and after considering all the correspondence of the parties, has found, upon what appears to us to be entirely satisfactory evidence, that the above writings were in effect but matters of form on Spencer’s part, and in nowise affected the agreement or employment, the terms of which had been fixed between the plaintiff and defendants before Spencer came into the negotiations, and pursuant to which the services of plaintiff were rendered directly to, and for the -benefit of, defendants.

From the beginning of the services defendants paid the plaintiff’s salary directly and gave him direct orders, and only refused to pay his last two months’ salary upon the ground of the failure of Spencer to perform some part of his agreement with them and not for any cause within the control of the plaintiff. It is not necessary to go into a review of all the evidence in the case, to point out upon what testimony or facts the referee might, with justice, have relied in sustaining the plaintiff’s contention. There is, of course, room for a difference of opinion in the case, based upon the letters of the plaintiff to the defendants written in the course of the business, in which his attitude is that of representing Iselin, Neeser & Co., and not the defendants; also upon the circumstances that prior to this action he had brought suit against Spencer for the same claim and demanded it. But none of these circumstances were conclusive, and after a perusal of the testimony it is not possible to say that the preponderance of evidence is with the defendants.

On the contrary the whole case is convincing that the plaintiff, selected by the defendants for the express purpose of selling their goods and induced to leave his then employment with another firm, in the same line of business, in order to serve them, had no intention of becoming the employe of Spencer (who was himself actually at that time an employe of Iselin, Neeser & Co.), but that he accepted in good faith the explanation of defendants that Spencer acted as their agent in proposing the writing to which he assented. And as to the conflict between the plaintiff and Mr. Grotty on the question as to whether the latter made any such representation, this must be decided according to the reliance we are inclined to place upon the recollection of the witnesses.

The probabilities are that the plaintiff, to whom such a written proposal was presented, would make some inquiry of the defendants before wholly abandoning his arrangement with them and taking service under a third party, and that his memory as to what assurance was made him at the time would be more tenacious than defendant’s, to whom at that period the question must have seemed of less importance than it did to plaintiff, for defendants were bound, even by their arrangement with Spencer, to pay the plaintiff’s salary in full, besides their commissions to Iselin, Neeser & Co., and whether they gave plaintiff verbal assurance that he was their salesman and not Spencer’s might have seetned at that time a matter of no moment.

We think, therefore, that the referee did not err in his conclusions, and that the judgment must be affirmed.

The only exceptions argued upon the brief are two in number. One is to the refusal to permit plaintiff to answer upon cross-examination the question whether he relied in this action upon a direct agreement between him and Mr. Grotty. This question was improper, as calling for no fact, but the opinion of the witness as to the legal basis of his claim ; as the appellant argues, “ to press the witness upon that point and ascertain whether he really made any serious claim upon a direct oral agreement, or whether he abandoned the pretense and relied upon the Johnson-Spencer agreement and the Spencer-Grotty agreements to make out a case under Lawrence v. Fox." It is also urged that it was important in case an attempt should be made to rest the case upon the Johnson-Spencer agreement as an agreement with Spencer as the agent of the defendants; but the opinion of the witness as to whether he relied upon a direct agreement or not would not have affected the defendants’ legal rights upon any such claim.

Error is charged in excluding the evidence of the defendant as to his reasons for stopping his payments of salary to the plaintiff. This was immaterial, because it was not intended to show any breach of agreement by plaintiff, but a breach of agreement between Spencer and the defendants. If plaintiff was the employe of Spencer and not of defendants it was not necessary to give any reason for stopping the payments. If he was the employe of defendants he was not affected by the defaults of Spencer. The findings and judgment having established that he was defendants’ employe, the exclusion of the evidence worked them no harm.

The judgment must be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


text:
    The Central Gas & Electric Fixture Co., Resp't, v. August Kohn, App'lt.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    Guabanty—Extension of time.
    Plaintiff contracted -with, one 0. to hang certain fixtures in buildings by May 1st. Defendant, in consideration of a sum paid' and one to be paid, guaranteed payment by 0. for said fixtures when hung “ as therein stated,” and agreed to pay on a day specified if 0. did not. 0. not having the buildings ready, plaintiff was not able to complete by May 1st, but did so subsequently with defendant’s knowledge and consent. It appeared that 0. was acting for defendant, who was the real principal. Held, that the waiver of plaintiff’s non-performance at the time originally appointed, and his consent to the future performance had the effect of extending defendant’s liability on his guaranty to the damage sustained by plaintiff from O.’s further default.
    Appeal from, a judgment of the general term of the city court of New York which affirms a judgment for plaintiff entered upon a verdict rendered by direction of the trial court, and from an order of affirmance of said general term upon which its judgment of affirmance was entered.
    Action to recover upon defendant’s guaranty of the payment of the sum agreed to be paid for gas fixtures to be supplied and annexed by plaintiff to certain buildings then in process of construction.

      Benjamin H. Bayliss, for resp't; Wm. J. Lippmann, for app'lt.

       Affirming 49 St. Rep., 212.

   Bischoff, J.

In so far as this appeal purports to be from an order of affirmance of the general term of the court below, it must be dismissed, the order, as such, not being appealable. Whitfield v. Broadway & Seventh Ave. R. R. Co., 16 Daly, 288; 31 St. Rep., 285.

On April 15, 1891, plaintiff agreed with one Carey, in writing, to supply certain buildings, then in process of construction, with gas fixtures of the value of $1,350, and to have them in place by the 1st day of May following. On April 16th, defendant, in consideration of the sum of $110, thereafter to be paid him, under his hand and seal, guaranteed Carey’s payment for the fixtures when they were hung as stated in plaintiff’s agreement with Carey.

Thereafter, this action was brought upon the guaranty, the complaint alleging performance by plaintiff of its agreement with Carey, and that the latter had failed to pay the sum agreed. The answer denied these allegations.

On the trial it abundantly appeared from plaintiff’s direct evidence that all the fixtures were supplied and hung, except to the value of twenty-one dollars, and that both Carey and defendant had failed to pay the sum agreed after due demand. It also appeared that a substantial part of the work in hanging the fixtures was not done until a considerable time after May 1st, but in respect to this it further appeared that the delay was exclusively due to the fact that the buildings were not sooner in fit condition to enable plaintiff to annex the fixtures. Carey’s testimonjq which was adduced as part of plaintiff’s case, also tended to show that he was only nominally the person interested in the erection and completion of the buildings; that he was acting under the direction of defendant, who supplied the money required for labor and materials, and that the latter was the real party in interest under plaintiff’s agreement to supply the fixtures.

Defendant, maintaining that because plaintiff had not performed its agreement with Carey to hang the fixtures by May 1st, and that his guaranty was conditioned upon plaintiff’s performance at the time stated, claimed to be discharged from liability, and moved the dismissal of the complaint. This motion was denied, and defendant then rested without adducing further evidence on his behalf or requesting submission of the case to the jury. The trial court thereupon directed a verdict for plaintiff for thirteen hundred and fifty dollars, less twenty-one dollars, with interest; to which defendant excepted.

We can conceive of no ground upon which the disposition of the case by the court below may be justly assailed. Substantial performance of its agreement was all that was required of plaintiff to enable it to recover against Carey, Flaherty v. Miner, 123 N.Y., 382, 388; 33 St. Rep., 681, and the motion for dismissal of the complaint without asking that the facts be submitted to the jury conceded the evidence to be true, and that only questions of law were involved. Such a motion authorizes the court to find all the facts of which there is any evidence, and for the purpose of this appeal we are compelled to assume that the trial court did find that plaintiff had substantially fulfilled its contradi with Carey ; that the delajr was owing to Carey’s neglect to have the buildings in fit condition; that in the matter of the completion of the buildings Carey acted as the representative of defendant, and that plaintiff’s performance of, its agreement to supply and hang the fixtures subsequent to May 1st was with defendant’s knowledge and consent. Winchell v. Hicks, 18 N. Y., 558, 565; Collins v. Burne, 63 id., 1; Owens v. Dauchy, 82 id., 443; Dillon v. Cockcroft, 90 id., 649; Provost v. McEncroe, 102 id., 650.

A guarantor or surety may limit his liability as such by whatever conditions he may see fit to impose, and however immaterial they may appear to be non-compliance with them will preclude recourse to him. Benjamin v. Rogers, 126 N. Y., 60, 70; 36 St. Rep., 393. His undertaking is strietissimi juris and cannot be extended beyond the fair import of its language, Henry McShane Co. v. Padian, 48 St. Rep., 705, and for the purposes of this appeal we may assume that the true interpretation of defendant’s guaranty is as contended by him, and that pursuant to its terms he was not to be held for Carey’s default in payment, unless the latter’s agreement with plaintiff was fully performed by it on May 1.

Such being the case, in the absence of the guarantor’s consent to subsequent performance, it was unquestionably plaintiff’s duty when it was prevented from performance within the time agreed by Carey, to terminate its agreement with him, and to confine its claim against the guarantor to the damages thus far sustained. Hunt v. Roberts, 45 N. Y., 691, 696. The case cited was an action brought to enforce the liability of the guarantor for perform- • anee of a contract to do carpenter work on certain houses. The work was to have been done by October 15, 1861, but was not so done owin£ to the failure of one Crossley, for whom it was to be done, to furnish the materials required therefor. The defendant had guaranteed Crossley’s fulfilment of the contract, and after October 15th gave notice to plaintiff that if the work was not completed by November 1st he would not be responsible as guarantor therefor. Plaintiffs recovered judgment, and in reversing it the court of appeals says: “ By the terms of the original contract the work was to have been done on October 15th. If not performed at this time the defendant, had he not interfered in the transaction-or consented to an extension o£ the time, would have been entitled to have the matter closed. If the delay had been owing to the default of the plaintiffs, the defendant would have been discharged. If it was caused by Crossley, he had been guilty of a breach, and the defendant would have been entitled to insist upon the contract being terminated, and on such termination would have been liable as guarantor for the work done up to that time and for the damages sustained by the plaintiffs in not being allowed to complete the job.’’ McKechnie v. Ward, 58 N. Y., 541, 551; Emery v. Baltz, 94 id., 408, 414.

In Hunt v. Roberts, the judgment against the guarantor was reversed upon the ground that his consent to plaintiff’s performance after Orossley’s breach was expressly limited to performance by November 1st, and that the'recovery included damages sustained after that time. Examining the question of the effect of the guarantor’s notice the court says: “We think that the extension left the parties in the same position on the first of November in which they would otherwise have been on the fifteenth of October, and that it did not operate as an extension of the guaranty indefinitely to such time as might be necessary to complete the work, and that the defendant had the right to insist that his liability as guarantor should be limited to the debt and damages which the plaintiffs were entitled to claim as of the day specified in their notice,” thus sustaining the proposition required to support the judgment in the case at bar that the waiver of plaintiff's nonperformance at the time originally appointed, and his consent to plaintiff’s future performance, had the effect of extending defendant’s liability upon his guaranty to the damage which plaintiff sustained from Carey’s further default.

Equally untenable is defendant’s claim that the judgment is excessive because lie was not allowed out of the amount which plaintiff was held entitled to recover the sum promised to be paid him in consideration of his guaranty. No such claim was made by answer, nor was it suggested on the trial.

We have examined each of the remaining grounds of alleged error, and pronounce them of no gravity.

The judgment should be affirmed, with costs.

Booiistaver and Pryor, J J.? concur.