text:
    CHARLES F. TAG v. EUGENE M. KETELTAS, et al.

      Deed—description, land bounded by road, presumption-as to—intent, how ascertained.

    The rule, that a grant is to be construed as conveying the land to the center of the road forming one of its boundaries, unless there be words of exclusion, is not inflexible, and is controlled by the intent of the parties.
    Where the starting-point in the description is “at the southerly side of the road," which road belongs to the grantor, the return line running “along said road," in the absence of other evidence of intent, such road is thereby excluded.
    It will also be deemed the intent of the parties to exclude the road, where the starting-point is "at a road,” &c., “twelve feet from the easterly corner ” of adjacent land, theretofore conveyed by deed between the same parties, which excludes said road, the corner referred to being on the side of the road, and thence “ along said road,” etc. In such a case it is additional evidence of an intent to exclude the road, that the grantee accepts a deed granting him a right of way over it; that the grantor, owning land accessible in no other way than over such road, does not reserve a right of way; and that the number of acres mentioned in the deed, and the consideration at the rate per acre therein specified, and also a map annexed to a deed,—all coincide with this theory.
    Before Russell and Arnoux, JJ.

      Decided May 1, 1882.
    Exceptions ordered to be heard at general term in first instance.
    Action to recover damages for breach of .covenant.
    The facts are stated in the opinion.

      Richard W. Stevenson, attorney, and Stephen P. Nash, of counsel, for appellants.

      Salomon, Hall & Dulon, attorneys, and Edward Salomon, of counsel, for respondent.
   By the Court.—Arnoux, J.

This action was tried April 19, 1881, at a trial term, and resulted in a verdict for the plaintiff for $9,019, whereupon the court directed that defendants’ exceptions be heard in the first instance at the general term, and that judgment in the meantime be suspended on said verdict.

Defendant’s testator executed a full covenant warranty deed conveying certain lots on the southerly side of Seventy-sixth street, between Eighth and Ninth avenues, in the city of New York, and this action is brought by the plaintiff for breach of the covenant of seizin in said deed. The breach complained of affected the ownership of a strip of land, half of a road thirty-three feet wide, running from the Bloomingdale road to the commons, which encroaches upon the front.of the easterly portion of said lots.

Before 1801, Bichard Somarindycke owned a farm or tract of land of one hundred and six acres, extending from the Hudson river to the commons, and from Seventy-fourth to Seventy-eighth streets, through which he laid out the road in question. In June, 1801, he with his wife conveyed to Thomas Cadle a tract of land containing eight acres, bounded as follows: “Beginning in the Bloomingdale road at the southerly corner of a road two rods wide, leading to the commons, thence running southerly along the Bloomingdale road to land belonging to the Widow Magee; thence easterly along Mrs. Magee’s land; thence north 34° 30' east 7 chains and 30 links ; thence along the road aforesaid of two rods wide,” .... to the place of beginning. In 1807, Mrs. Somarindycke, as executrix of her husband, conveyed to said Cadle a tract of ten acres, including the premises in question, lying to the east of the eight-acre plot, under the following description: “ Beginning at twelve feet from the eást corner of land now belonging to Thomas Cadle, at a road thirty-three feet wide ; thence along the said road 30 chains and 24 links to ... . the commons; thence along said last-mentioned land 3 chains and 28 links; thence along the said Elizabeth Somarindycke’s line 30 chains and 74 links, to a lane twelve feet wide ; thence along the said lane 3 chains and 28 links to the place of beginning, containing ten acres of land, agreeable to a map or chart made by Samuel S. Stilwell, city surveyor, annexed to these presents.” The map shows the eight-acre plot as extending back from the Bloomingdale road south of the road thirty-three feet wide and west of the lane twelve feet wide, and taking the entire breadth of the land owned by Somarindycke south of the road. The ten-acre plot is a parallelogram 3 chains wide and 30 chains long, south of the road' thirty-three feet wide, east of the lane twelve feet wide and having to the south of it another tract of land of about the same shape, and dimensions, the sole access to which was through the twelve-feet lane, by way of the thirty-three-feet road. The land lying to the north of said road is also marked T. Cadle on said map.

The last-mentioned deed contains immediately after the description the following grant: “The said Elizabeth Somarindycke doth hereby grant the use and privilege of the road two rods wide leading from the Bloomingdale road to the commons, to the said Thomas Cadle, his heirs and assigns foreverand after the general clause, “ together with all and singular,” etc., comes the following: “And also all the estate, right, title and interest .... and also with free liberty for the said Thomas Cadle, his heirs and assigns, and his and their servants, with horses, carts and other cattle and carriages, to use at all times forever hereafter the said road two rods wide leading from the Bloomingdale road to the commons, and the easement, privilege and benefit of the same as the same is laid down in the said map annexed to these presents.”

Among the additional facts established by the evidence herein are the following : That the tract first conveyed contains, exclusive of said two-rod road, eight acres of land; that the tract secondly conveyed, exclusive of said road and the twelve-feet lane, contains ten acres of land; and that the land to the north side of said road contains the amount conveyed, exclusive of the road.

There can be no question of the soundness of • the legal proposition contended for by the counsel for the appellant: that every grant is to be construed as running to the center of the road adjoining, unless there are words of exclusion. The law abhors the infinitesimal interests and perplexing complications that would result from the opposite construction, whereby land would be unconveyed which is in itself valueless to the grantor and injurious to the grantee. There is nothing peculiar or mysterious in a street or a stream as a boundary. It is the same with a stake or a tree. Where the lines run to either of these, or to any other fixed point, it takes to the center. The law makes such boundary lines contiguous or coterminous. If we were limited to the description of this deed alone, applying the said rule, we must decide that this conveyance included the road to the center thereof.

But in this description there are no monuments which can determine the northerly and southerly lines of said description, and no authority can be found which under such circumstances holds that the three chains running from the center of the road can be extended so as to be three chains plus one half the road. We have not, therefore, a case coming absolutely within the principle above referred to. But even if we had, that rule is not an inflexible rule, and it is controlled by another rule—the rule of intent, which has been designated the pole-star of construction, it is more than the pole-star. The doctrine that the intent must govern is like the law of gravitation. It pervades the entire domain of land, as that does the material universe. The star is often observed ; the law is ever operative. And whatever conclusion may be drawn from the description itself, the intent of the parties must govern ; for every instrument, however solemn or however ordinary, must be controlled by that principle. As was eloquently said by the supreme court of the United States in the legal tender cases (12 Wall. 457): “This is a universal rule of construction, applicable alike to statutes, wills, contracts and constitutions. If the general purpose of the instrument is ascertained, the language of the provisions must be construed with reference to that purpose and so as to subserve it.”

To ascertain the intent of the parties there are in this case three lines of legal inquiry. First, the instrument itself; second, other instruments executed by the parties; and, third, the acts of the parties themselves. Without adopting the order proposed, we will first examine the deed of the eight-acre plot. There the starting-point excluded the road, and by no principle of construction could the last boundary along the road be held to remove the starting-point to the center. The only case we have been able to find that seems to have a contrary determination is the case of Lunt v. Holland (14 Mass. 149), to which we shall hereafter refer. In this State we find an authority directly in point. In Babcock v. Utter (1 Abb. App. Dec. 21, 40), the premises in question were bounded: “Beginning at a stake and stones on the west bank of the Unadilla river,” thence going by courses and distances around the tract “to the Unadilla river.” The court says: “The words ‘to the Unadilla river,’ according to the usual interpretation of such an expression in conveyances, would carry the line to the center of the river, as the general rule is that where a line touches the river it goes to the center; but the words are entirely consistent with an interpretation which should stop the line at the margin or bank of the river; and whether the one or the other interpretation should be given to them must depend upon the aparent intention of the parties, to be determined by other portions of the deed. The other portions of the deed which have reference to the river,' I think, show a clear intent to limit the operation of the grant to the bank of the river. The starting-point is unequivocally from ‘the bank,’ and not from the center of the river ; and if the last line in the description is confined to the center of the river it cannot run ‘ to the place of beginning,’ as the description requires.”

So in the case at bar, the starting-point being at the southerly side of the road, the return line could not run to the place of beginning, as the description requires. , Another test would be to reverse the order of the description : “Beginning at the southerly side of the road and runing thence easterly along the road,” would of necessity either exclude the road or incorporate into the description something that was not within the intent of the parties to the deed. This view as to the eight-acre plot is further confirmed by the cases of Smith -y. Slocum (9 Gray, 36) and Sibley v. Holden (10 Pick. 249). Excluding, therefore, the road in that grant, we come now to a consideration of the deed in question. Its starting point is twelve feet from the east corner of the preceding grant, at a road, etc. It is clear that this gives the grantee no right in the lane twelve feet wide; and as twelve feet from the east corner of the former grant, at the road, would only reach across the lane on the southerly side of the road, we must conclude that the intent of the parties was that the road should be excluded.

And when we come to consider the further provisions of the deed, it then is certain that Mrs. Somarindycke intended to reserve, and with the grantor’s consent did reserve to herself the fee of said road. If she had by the description already granted the fee to her grantee, it would have been absurd for her to have given him permission to use the road in the manner she did ; and surely, if the grantee understood that he had obtained the fee of said road, he would not have accepted a deed which contained provisions that would throw so much doubt upon his title. Besides this, the construction contended for by defendants’ counsel violates the ordinary legal rule. Mrs. Somarindycke reserved to herself no right of way over a road which was her only access to the Bloomingdale road on the west or the road through the commons on the east, and yet, owning the land, we are asked to hold by construction that she shut herself out of all ingress to and egress from her own premises.

Another fact showing the intent of the parties is the reference to the map annexed to the deed. In Hunt v. Holland (supra) the deed bounded the property, “ beginning at a hemlock tree standing by the south side of the river Androscoggin, then south, etc., to another hemlock tree also standing by said river.” The action was brought in ejectment, and the locus in quo was an island containing about thirty acres, lying between said two trees, the river running on each side of it. But preceding the description the conveyance specified “a certain tract of land, etc., which was surveyed and laid out, etc., by Samuel Titcomb and upon the trial the plan was produced, wherein it appeared the island was included. Id is a familiar principle of construction that ■ where a will, deed or other instrument refers in proper terms to a map or other paper it becomes a part of the instrument (French v. Carhart, 1 N. Y. 96 ; Jackson v. Ransom, 18 Johns. 107; Studwell v. Terrett, 4 Bos. 520; Glover v. Shields, 32 Barb. 374; Cox v. James, 59 Barb. 144). The map annexed to the deed in question was as effectual as the plan referred to in the case cited ; that, to include, and this to exclude, the premises claimed. For the plats on the map exclude Thomas Cadle from any ownership in the road or lane. It makes the same exclusion from the twelve-foot lane that it does from the two-rod road, and the same exclusion in front of the ten-acre tract that it does in front of the eight-acre tract.

The acts of the ^parties are in harmony with this construction. The grantee took possession of ten acres of land, which was all that was conveyed to him, and for which he had paid. For this he paid at the rate of $250 per acre. The strip claimed considerably exceeds half an acre; The acts of both parties, therefore, in reference to the premises, prove an intent to exclude the strip of land in question. We, therefore, on the grounds above stated, agree with the learned judge who tried this cause, that the land conveyed to Thomas Cadle did not extend to the center of the road, but only to the southerly side thereof; and hence the description of that deed cannot be held to extend the fee granted thereby to the center of the road. We are therefore of the opinion that the exceptions should be overruled and judgment directed for the plaintiff upon the verdict, with interest and costs.

Russell, J., concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick, Ch. J.

license: Public Domain

text:
    JOHN L. ROWE, Respondent, v. CHARLES G. PATTERSON, Appellant.

      ction on contract fraudulently contracted.—Allegations of fraud cannot he stricken out as redundant.—Oode Oiv. Proc. § 549, suhd. 4.
    The effect of the enactment of subdivision 4, of section 549, Code of Civil Procedure, is that a cause of action on contract fraucMently contracted is, for the purpose of pleadings and remedies, an action on the case, having the contract as one only of its facts. The fraud is a necessary element; therefore, the allegations showing it cannot be stricken out on motion as redundant and irrelevant to the cause of action on contract which would be left.

      It seems, that whether or not fraud be sufficiently alleged, is a question to be raised by demurrer.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 5, 1882.
    Appeal by defendant from an order denying a motion to strike from the complaint irrelevant and redundant matter.
    The complaint, as a first cause of action, alleged tiiat the defendant, on September 27, 1872, delivered his promissory note, payable to plaintiff or order, for money loaned to defendant by plaintiff. It then further alleged, “ that the said debt was created by the fraud of the defendant, that in order to induce the said plaintiff to make the said loan,” the defendant falsely, knowingly and with intent to defraud, made certain, representations as to his ownership of property, which the complaint specified.
    As a second cause of action, it was alleged that the defendant made, November 5, 1872, his certain other promissory note, payable to plaintiff, in these words, viz.: “New York, Nov. 5, 1872. On demand I promise to pay to John L. Rowe or order, $1,200, the same being a balance due him on purchase of an interest in patent ¡No. 69,028, heretofore assigned by James B. Bemarest to me at the request of said John L. ¡Rowe.”
    “This plaintiff further states that at the time of the creation of the said debt, he yet supposed the statements made by said defendant, as hereinbefore stated, were true, and upon the faith thereof accepted said note and parted with the consideration given therefor.”
    “ This plaintiff further states, upon his information and belief, that said debt was created by the fraud of said defendant, and at the time of its creation, the said defendant did not intend, ever to pay said debt or any part thereof.”
    The motion was to strike from the statements of the causes of action, severally, the allegations that referred to the alleged fraud of the defendant.

      Beach & Brown, for appellant.

      R. H. Shannon, attorney, and E. F. Bullard, of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

By section 549 of the Code of Civil Procedure, as amended by chapter 542 of Laws of 1879, and in subd. 4,“a defendant may be arrested in an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability.”' If nothing further were enacted, the rules which were recognized in Neftel v. Lightstone (77 N. Y. 96) should be applied now. They refer to cases where a complaint sets out a cause of action upon contract, the allegations intermixed with other allegations that appear to claim an action for tort. That case held that if, upon the trial, the plaintiff proved a cause of action on contract, the complaint should not be dismissed, although there was no proof of any of the allegations as to fraud. Of course, on demurrer, such a complaint would have been sustained, because it alleged a cause of action on •contract, at least.

Since the case cited was decided, the section 549 •referred to has been passed, and it further enacts that " when such an allegation is made, the defendant can,not recover, unless he proves the fraud, and a judgment for the defendant is not a bar to a new action, to recover upon the contract only.”

The effect of this, in my judgment, is, that for the purposes of pleading and remedies, to be suited to different states of fact, an action on contract, fraudulently contracted, to use a concise term, is different from a •cause of action on contract, pure and simple. The former is, if well founded, in its consequences, essentially •an action in tort, the difference being that it starts with a statement of a contract, with allegations of fraud .as an accessory. An action of tort would have as its principal basis the fraud. Perhaps, but no decision as to it is made, the incidental fraud need not be, per se, actionable fraud; but the result secured by the section is the same as if it were, for unless it be proved, there can be no judgment founded upon the contract proved. The result seems to be that the cause of action specified in the section involves the existence of the fraud meant and described in the section, and that whether or not a fraud is alleged, is a question of law that may be raised by demurrer, on the ground that the complaint does not state a cause of action. Such a question could be made as to the several allegations intended to state the different causes of action. While, on the one hand, the defendant has the privilege of raising the question in this way, and perhaps on the trial, the plaintiff has a right to demand that his claim shall not be entirely passed on upon motion. If there be, in the allegations of fraud, irrelevant or redundant matters, they may be stricken out, as in ordinary cases. In such a situation it is always implied that there is something in the pleading, which on its own claims is sufficient to sustain the demand for judgment: otherwise, the matters objected to could not be claimed to be redundant, or immaterial or irrelevant.

If what has been said is correct, the last consideration is not met by a suggestion that a cause of action on contract would be left, and that, as to it, the matters are irrelevant and redundant. The action is not on the contract pure and simple. It is on the case, which has the contract as one only of its facts. The plaintiff claims to have a cause of action, which will entitle him, as of course, and without an order of arrest being issued, to an execution against the person. This claim, as has already been said, should not be determined upon motion, and as to it I am of opinion that there is no irrelevancy or redundancy of allegation. As to the former, there is pertinency of claim, and as to the latter, the meagerness and, perhaps, the insufficiency of the averments, show a decidedly contrary condition.

Order affirmed, with $10 costs.

Freedman, J., concurred.


text:
    EDWARD HILL, Appellant, v. JOHN BLAKE, et al., Respondents.

      Contract —oral agreement extending time of performance of written contract.

    Plaintiff sold to defendant by written contract “ one hundred tons of pig iron, to be shipped by sail in December, 1879, or January, 1880, at seller’s option, and to be delivered ex ship in New York,” etc. On February 2, 1880, plaintiff notified defendants that the iron so sold had been shipped by sailing vessel from Great Britain to New York. On February 14, he notified them that this was a mistake, and offered to deliver to defendants iron by steamship then discharging in New York or iron to be shipped by sailing vessel in February, to which defendant replied verbally: “Ido not want the iron now, the later shipment will suit me better.” Plaintiff answered, “ That fixes it.” Upon the arrival of th£ iron shipped in February, plaintiff tendered the same to defendants, who refused it.

      Held, that plaintiff could not recover for breach of contract; that the conversation between the parties in February did not constitute a valid extension of time for the performance of the contract by plaintiff, as it must be held that the time for performance had passed and there was no contract in existence ; that it could not operate as a new contract, the agreement not being in writing and there being no new consideration to support it.

      Further held, that to prove waiver of performance, the burden of proof was upon plaintiff to show that at the time of the said conversation, he could have delivered a December or January shipment.
    Before Sedgwick, Ch. J., and Arnoux, J.

      Decided June 5, 1882.
    Appeal by plaintiff, from judgment that complaint foe dismissed.
    The action was on written contract by which plaintiff sold to defendants “onehundred tons of pig iron, to be shipped by sail in December, 1879, or January, 1880, at seller’s option, and to be delivered ex ship in New York, etc.”
    On February 2, plaintiff notified defendants that he was advised that the iron so sold had been shipped January 12, per ship " Blomindon’ ’ from Great Britain., to New York. On February 14, plaintiff notified defendants that the reported shipment per “Blomindon” was a mistake, and at same time offered to deliver them iron by steamship “Albos,” then discharging in New York, or iron to be shipped by sailing vessel in February. To this one of the defendants repliecL verbally, “ Well, I do not want the iron now; the-latter shipment will suit me better.” The plaintiff answered, “Well, that fixes it.” The plaintiff gave testimony tending to show, that on the arrival of the iron, shipped in February, he tendered the same to defendants, who refused to receive it.
    The court below dismissed the complaint on the-ground that on the facts the tender was not a delivery-of the iron, under the contract, in due time.

      Rodman & Adams, attorneys, and Charles D. Adams, of counsel, for appellant.

      Thomas Darlington, for respondent.
   By the Court.—Sedgwick, Ch. J.

Appellants counsel takes the position, that what occurred between, the parties on February 14, 1880, which he claims substituted a February shipment for the December or-January shipment called for by the written contract,.' was merely an extension of the time for the performance of the contract. It is not claimed that this extension of time, so called, was a part of a legal agreement, having its own consideration, and either entirely separate from the written agreement or by implication embodying the terms of the written contract. If either - were the case, it could not be enforced, as it would be void under the statute of frauds. All its terms would not be in writing.

It must be kept in mind that the conversation between the parties, on this point, was in February, whem the possibility of the plaintiff performing his written. contract-, by making a January shipment, had passed. All executory obligations had ended. The plaintiff' was not then bound to accept any delivery. There was, in fact, no contract existing, and therefore none that could be performed, and the time for performance of which could be extended. To create a new obligation on the part of the plaintiff, to accept any iron from the defendant, it was-necessary that a new contract should be made. It is clear, that any new oral contract would be invalid under the statute of frauds.

But it is supposed that there was some obligation, the time to perform which could be extended. It must be kept in mind, that the so-called extension was not given for any consideration, and that it was made after the time of performance had passed. A scrutiny of the cases cited by counsel for appellant, will disclose the importance of these things.

The counsel has argued that at the time the defendants said he would take the later shipment of February, it did not appear but that the plaintiff might have procured and tendered a December or January shipment, if the defendants had not said they would receive the later shipment. The plaintiff was bound to prove performance or waiver of performance. The former was not proved. The latter could be proved only by showing affirmatively that the defendants prevented performance or led defendant not to perform. The burden of proof then was upon plaintiff to show, that they could have tendered a December or January shipment.

In Keating v. Price (1 Johns. Cas. 22), the extension of time was effected by a parol, probably an oral, agreement, which implies a consideration. In Miller v. Holbrook (1 Wend. 318), the defense to an action on a. promissory note, was that, before the maturity of the note, plaintiff agreed to extend time of payment, in consideration of defendant’s agreeing to pay $200 when the note should fall due, and giving a note for balance. There was judgment for plaintiff. The court said that the exceptions were frivolous; that in Keating v. Price, the defendant was allowed to avail himself of an agreement such as- was set up, but it was to be presumed that in that case, it appeared that the promise to enlarge the time was founded upon a good and sufficient consideration.

In Fleming v. Gilbert (3 Johns. 520), the condition of the bond was that by the first of January next, the defendant should deliver to plaintiff a specified bond and mortgage, and procure the same to be discharged from record. Before the first of January, the defendant tendered the bond and mortgage, and offered to do any act which the plaintiff might require for the discharge. The plaintiff not knowing what act was, necessary, agreed that defendant might deposit the bond and mortgage with a third person, and he himself would deposit defendant’s bond with same person. The obligations were to be delivered to the parties respectively, as soon as the defendant should perform such further direction relative to the discharge of the mortgage as the plaintiff should give to the third person. The defendant deposited the bond and mortgage, as agreed upon, but the plaintiff did not deposit defendant’s bond, or give any further directions as to the bond and mortgage. The court, in holding that the plaintiff was not entitled to recover, distinguished, in effect, the contract or bond, from its performance. What was or was not performance, was a question of law and fact. The opinion was, “ that a tender and refusal or waiver (which must always rest in parol), is equivalent to actual performance,” and “ that the plaintiff’s conduct can be viewed in no other light, than as a waiver of a compliance with the condition of the bond, so far as it related to a discharge of the mortgage on record.” In connection with this, it is said, “it is a sound principle, that he who prevents a thing being done, shall not avail himself of the non-performance he has occasioned. Had not the plaintiff dispensed with a further compliance with the condition of the bond, it is probable that the defendant would have taken measures to ascertain what steps were necessary to get the mortgage discharged of record, and would have literally complied with the conditions of the bond.” And I think the facts of the cited case suggest a consideration that is pertinent to all cases that involve what is termed an extension of time of performance. When a party bound to perform, appears at the time and place fixed by the contract, and by consent of parties the matter goes over to a future day, and then the party bound is ready to proceed, there seems to be no necessity of considering the first day and the adjourned day,-as being two and different times, within the meaning of the contract.

As a matter of fact, the distinction between days, as to difference in time, is the same as between hours and minutes. Performance cannot be instantaneous. It may necessarily be protracted beyond the day when it was begun. The important thing is, that the proceeding be continuous. This, it may really and practically be, though an hour intervene for convenience, or a night from necessity, or days by consent. A comparison of the fact under such circumstances, with the terms of the contract, may show whether this was performance in due time, as well as when the matter did not pass beyond the day named in the contract.

In the case at bar, the time for performance having passed, there was no waiver by the defendant of his right to a December or January shipment. Performance was not tendered by plaintiff, nor was he led by anything said or done by defendant to omit to do what would have been performance in whole or in part.

In Frost v. Everett (5 Cow. 498), it was held that an oral agreement, made contemporaneously with the making of a note, to extend the time of the latter, did not enlarge its time of payment, because it was not a subsequent agreement. The court did not expressly or impliedly hold that a subsequent agreement not founded upon a new consideration, would enlarge the time, nor that a subsequent oral agreement could extend the time of performance of a contract that must under the statute of frauds, be evidenced by writing.

The principle of Mayor v. Butler (1 Barb. 337), so far as it affects this case, is comprised in the propositions “that no party can insist upon a condition precedent, when its non-performance has been caused by himself.” “It in effect amounts to a waiver.”

In Esmond v. Van Benschoten (12 Barb. 368), the agreement under seal named April 1, for the time of its performance, but no place. After its execution, the parties orally agreed to meet at a certain office, to perform the contract. On April 1, the parties met. The plaintiff was ready to perform on his part. The defendant was not, and asked an extension, and subsequently another extension to April 6. These extensions were in writing, not sealed, on the original agreement. The plaintiff on April 6 attended at the place named, and the defendant not attending, the plaintiff produced all the instruments he was bound to deliver, and offered to perform on his part. The plaintiff, it was held, was entitled to recover. The exact objections' made by the defendant are not stated. The court held, citing Franchot v. Leach (5 Cow. 506), that it was competent for the parties orally to appoint a place for performance. Clearly, this did not infringe the rule against varying by oral arrangements the terms of an agreement, sealed or not sealed. The place not being named, the general rules of law determined it. The general rule was, that the party seeking to perform was bound to find the other party or sufficiently excuse himself for not so doing. And the law held that this duty was performed by repairing to the place named for the purpose by the other party.

As to the extension of time, Esmond v. Van Bensehoten gives no support to the plaintiff’s claim here, under the particular circumstances. Esmond was ready to perform at the time named in the contract. His tender of performance was prevented by the request of the defendant until the day when he did tender. The plaintiff did, in fact, all the law required as to performance ,of the contract, unaltered and unmodified. Judge Willaed cited Fleming v. Gilbert, and Mayor v. Butler (supra); Hasbrouck v. Tappan (15 Johns. 200) and Dearborne v. Cross (7 Cow. 48), and said : “ The defendant having solicited the delay, cannot urge it as a defense.”

In citing Hasbrouck v. Tappen, there seems to be an incorrect view of the facts, which it is not important to correct now. In Hasbrouck v. Tappen (15 Johns. 200), the plaintiff had been always ready to perform his part of a covenant, by which the defendant was to convey real estate to him free from incumbrances, but had consented, at defendant’s request, that he should have further time to deliver the deed. At that time, the defendant tendered the deed, but plaintiff refused to accept it, on the ground that there were incumbrances. The covenant contained a provision for the payment of liquidated damages. Apparently the exact question in the case was, whether the extensions of the time operated to make a new agreement, in such a sense that the provision for liquidated damages in the original covenant was abandoned. Judge Thompson said: “Even admitting that an agreement to extend the time of performance would be a waiver of the stipulated damages, there was not, in fact, any such agreement . . . All that the plaintiff ever said, as to the extension of time, was, that if the defendant would perform, his contract, he would take no advantage of its not being done on the precise day. This could not be called an agreement to extend the time. No day was fixed to which the performance was postponed, and it would be a violent and unnatural construction of the plaintiff’s conduct, to consider it as intended to waive his covenant and enter into a new agreement, especially as such parol agreement would be void under the statute of frauds. If this is to be considered a new agreement, which in any manner affects the covenant, the plaintiff’s whole remedy is gone. ■. , . An agreement absolutely void can never be considered as altering, revoking or modifying a valid contract. In all the cases referred to, where the term had been extended, the subject-matter was such as might be embraced by a parol agreement, and the parties have been driven to the new contract. . . . ” It is to be noted that he further said that the “ mere extension of time, is not a waiver of anything.” By this was meant, that it was not a waiver of any other stipulation than such as referred to time.

In Dearborne v. Cross (7 Cow. 48), the defendants had given several notes, on one of which the action was brought. These notes had been given as consideration for a bond, made by plaintiff, which was conditioned' that the plaintiff should give a conveyance of certain real estate to the defendant. The defense was, that in pursuance of an oral agreement between the parties, the defendant had delivered his possession of the premises to the plaintiff, who, after his re-entry, had sold them to a third party. It was orally agreed to rescind the bond, but it had never been delivered up or canceled. At the trial, this defense was overruled, upon the ground that the contract could not be rescinded by parol agreement. On review, it was held, that the evidence showed not only an executory agreement to rescind the bond, but one executed and carried into effect, and that independently of the agreement, a rescinding of the bond would be presumed. The conclusion was, that the consideration of the notes had failed. Incidentally, the court said that the time for performance of a sealed or simple contract might be enlarged by parol, and “ that, indeed, the enlargement of the time is nothing more than a waiver of strict performance,” of course meaning performance as to time. This case is no guide as to the necessary concomitants of a valid extension of time. The point in view was the effect of acts, or an executed parol agreement, upon the rescinding of a sealed contract.

In Clark v. Dales (20 Barb. 45), I do not see that it was claimed by the defendant that it was not competent to extend the time of performance of a written, contract by the kind of means that were shown in the case. The claim was, that the evidence did not show that the time was extended. The contract was written, and was for the delivery of flour by defendant to plaintiff. The judge, at trial, found that the time for the delivery of the flour was extended by the agreement of the parties in writing until October 1, and that it was extended at the sole request of the defendant. The first request for time was made, and extension of time began, before the day for delivery named in the original contract. The court, however, relied upon considerations that do not sustain the" present plaintiff’s position. It said, “ nor is a new consideration necessary to give validity to an agreement to extend the time ; the waiver is enough for that purpose.” That meant a waiver of exacting timely performance at a period when timely performance is possible. After that, as in this case, there is nothing to waive. The court further proceeded to say what, if correct, is fatal to a recovery here. “The effect of such enlargement is to substitute or adopt the extended time for the time specified in the original contract. It then stands as a new agreement, wherein the mutual promises furnish a new consideration (citing Evans v. Thompson, 5 East, 189; Hasbrouck v. Tappen, 15 Johns. 200). It is a new agreement substituted for the former one, by which the parties agree in all respects as formerly, except as to the time of performance, which they then fix for a future period, and it is under the new substituted agreement that redress must be sought in case either should fail or refuse to perform.” If in this case, a new and substituted agreement were the basis of the claim, then, as it related to the sale of the one hundred tons of iron, it would not be capable of proof under the statute of frauds.

In Stone v. Sprague (20 Barb. 509), the agreement under seal was, that plaintiff should convey certain real estate to defendant, and as consideration the defendant should pay plaintiff a sum of money, the time for performance being fixed for April 9, and the defendant was in the meantime to go into possession. On April 8, the defendant saw the plaintiff, and having the money, which he would be bound to pay the next day, asked the plaintiff if he would receive it and give a deed. He said he would not. On the same day, the plaintiff signed an extension of all the conditions of payment, etc., and on the adjourned day of the extension, a second extension to May 15. Both extensions were indorsed on the original agreement, but not sealed. A few days before May 15, defendant’s agent again offered to pay, but plaintiff declined to receive the consideration. On the trial, the defendant offered to prove that at the same time the plaintiff said that he would not take advantage of the expiration of the contract, and that the lapse of a few days would make no difference. This offer was objected to and overruled by the court, on the ground that the agreement was by parol. On appeal the court held that the offer should have been, received on the ground stated in cases that have been examined, that the arrangement was a waiver of strict performance as to time ; that the omission to perform at the time was caused by plaintiff, and, therefore, he could take no advantage of it.

At the same term, French v. New (20 Barb. 482) was decided', and the court cited the cases relied on in Stone v. Sprague, to support the proposition that parties having by their bonds of submission to arbitration, required the award to be in writing, might waive that requirement orally and receive a verbal award, which would be binding. The court said that the parties had prevented, had waived a written award. The court of appeals, reviewing the case (28 N. Y. 147), said what is, in some respects, pertinent to one aspect of the present case: “ The verbal agreement of the parties that the award should not be in writing and that they would abide by a verbal award, had the effect to change the submission from one under seal to a mere verbal one, because the verbal agreement was acted upon, and that under seal was abandoned. The verbal award, therefore, was not valid, unless a verbal submission of the matters on which the award was made was binding upon the parties.” And then the court stated that the doctrine of estoppel was not applicable. “ The fact that the plaintiff prevented the arbitrators from making a valid award, does not deprive him of the right to show the invalidity of the one they did make. The legal presumption is that the defendant knew a verbal award would not be binding, but believed, notwithstanding that fact, that the plaintiff would abide by such a one.”

In my judgment, Friess v. Rider (24 N. Y. 367) has no authoritative relation to the matter now in view. It was an action for damages by a party who had agreed to convey real estate to the defendant, for money to be paid by the defendant. The contract was to be performed April 2. The opinion says, that “on that day the plaintiff was in default, on the day named in the contract, and the defendant being then ready and offering to perform on his part, might have had his action against the plaintiff without a formal tender of the money.” But at the plaintiff’s request, the performance was orally postponed to April 3, at one o’clock, at a place named. On that day, the defendant was at the place at the hour of one o’clock, ready to perform on his part, and the plaintiff not being' there, the defendant tarried until three o’clock and then left. At four o’clock, the plaintiff found the defendant and made a tender of performance, which was rejected by defendant. The court of appeals held that the plaintiff had no action. The opinion was, that “the agreement was not for an enlargement of the time until one o’clock of the next day, or such other time as should suit the convenience of either party.” Upon this being determined, under the facts, it was not necessary to decide whether the enlargement of time was valid and binding between the parties. If it were not, the plaintiff would not have an action, because he was in default at the time fixed by the contract. The remarks of the court as to the possibility of legally extending time by consent given orally, were based upon "the cases that have already been examined, and do not remove any limitations that are placed by those cases and their facts.

In Blanchard v. Trim (38 N. Y. 225), the general effect of the case as to the application of the statute of frauds, rather favors the defendant’s position in this case. The remark of the court that it is suggested is pertinent here, was made as to a state of facts not before the court. It was, “that the terms of payment by Calkins to Blanchard could have been modified at the pleasure of the parties and the original sale would have furnished a sufficient consideration for such arrangement.” The sale referred to had not been evidenced by writing, but the lumber sold, and the note given for its price, had been exchanged. The remark, however, has a most general import, and its meaning must be taken with many implied reservations.

In Erwin v. Saunders (1 Cow. 249), Judge Sutherland said the rule that written agreements are not to be varied by oral testimony, does not exclude oral evidence of the enlargement of the time for performance or a waiver of the performance of a written contract. There was no decision as to what was necessary to a valid oral consent to enlarge, or to a waiver, for he held that what was set up in the case for that purpose was neither, but was an entirely different contract from the written instrument, and made contemporaneously with it. He said that if the oral agreement had been made after the giving of the note, it would, perhaps, have been valid. He must have meant also, if the oral agreement were made before, or at the time of performance and not after it, because his reason was that the oral agreement ought to be regarded as a valid parol waiver of performance. The learned judge did not overlook that, in the absence of a waiver of performance, any oral agreement, to affect a prior contract, must be based upon a valuable consideration, for that was declared in his citation of the case of House v. Graham (3 Camp. 57).

There are many other reported cases in this State which are relevant to the position taken, but it is not necessary to go beyond those that have been relied upon by the learned counsel for the appellant. Beyond doubt he would have cited any that were of importance.

Hone of the cases uphold the validity of an arrangement made after time of performance has passed, for the contract being performed at a different time from that named in the contract unless a new agreement is made upon consideration. The party consenting to it cannot be said to waive strict performance or any condition precedent, or to have led the other party to omit to do anything which could have given him a cause of action. On the contrary, after time of performance the question is, has the party not in default a right of action, and then, if he have, what is sufficient in law to extinguish that. Clearly, his request, much less his consent, that the other party deliver goods, the same or not as those bargained for originally, upon the promise of the other party to deliver, unless the arrangement be carried out, does not extinguish the cause of action. It may be in cases of sales to arrive that the vendee can have no cause of action, but the same observations are pertinent if he be under no obligation to receive. A new contract is necessary for new obligations.

The case of Parmelee v. Thompson (45 N. Y. 58), should be cited. In the action on a promissory note, the defense was that while the payee held the note, he brought an action upon it, and it was agreed between him and defendant that the suit should be discontinued, the defendant pay the costs of the action, and that defendant should have until the month of December to pay, but that the new action was brought before December. The court of appeals held that there was no consideration for the promise to delay time of payment, and said : “It is competent for the parties, by a parol agreement, to enlarge the time of performance of a simple contract, and the time of payment of the note in suit might have been extended by such- agreement made upon a sufficient consideration (Keating v. Price, 1 Johns. Cas. 22; Miller v. Holbrook, 1 Wend. 317). But a promise to extend the time of payment, unless founded upon a good consideration, is void ” (Underwood v. Farmer’ I. S. Co., 57 N. Y. 500; Ripley v. Etna Ins. Co. 30 N. Y. 164).

The appeal has been viewed as if the arrangement of February 14 referred only to the time of performance specified by the original contract. My opinion is that it referred to another term, viz., the goods that were to be delivered. Its effect would have been to substitute another parcel of iron than that originally agreed upon by the parties. If this be so, I understand that there is no dispute that the statute of frauds is to be applied.

Judgment affirmed, with costs.

Arnoux, J., concurred.


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    SCHUYLER E. CHADSEY, Respondent, v. WILLIAM H. GUION, Appellant.

      Marine insurance—construction of policy—cargo free from particular average.

    Where an open policy of marine insurance contains, in addition to the usual general clause whereby the assurers take upon themselves all perils and losses that may come “to the said goods.and merchandise or any part thereof,” a memorandum-clause, providing that certain articles, among which is the cargo in question, are warranted by the assured “ free from average unless general,” and on the indorsement of said cargo on the policy are written certain letters meaning “free from particular average,”—the assured cannot recover for a partial loss.
    Where, under such a policy, the assurance is until “said goods and merchandise are safely landed,” the whole cargo is within the policy until all of it is landed, and, therefore, the assured cannot recover for the loss of that portion of the cargo remaining in the ship while she is unloading, and after a part of the cargo has been safely landed in port of discharge, as for a total actual loss.

      It seems that the expenses to be charged against a portion of memorandum cargo safely landed, with a view of making a total loss, must be. confined to the expense of taking them from the boat and safely landing them, and cannot be extended to expenses that would have been incurred if no disaster had happened.

      Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided June 5, 1882.
    Appeal by defendant from judgment entered upon verdict in favor of plaintiff.
    The action was upon a policy of insurance.
    A cargo of potatoes upon a canal boat was insured. “ free from particular average ” until safely landed at Yonkers, on the Hudson river. The boat arrived and was moored to the dock. After 109 barrels of potatoes were safely landed, an unusual wind drove against the boat cakes of ice, and did such hurt to her that she sank and was almost entirely submerged.
    The plaintiff claimed a total loss, on the ground, that the 109 barrels safely landed were not within the contract when the remainder, viz., 1541 barrels, were lost. He also gave proof, in order to show that what were not entirely destroyed were without value, inasmuch as the cost of getting them on shore was greater than their value when landed. There was a verdict for plaintiff. Further facts appear in the opinion.

      Treadwell Cleveland, for appellant.

      McDaniel & Souther, attorneys, and Everett P. Wheeler, of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

The cargo on board of the canal boat was in bulk, and amounted in quantity to 1650 barrels of potatoes. The boat was moored to the dock, before any loss happened. Before the loss, 109 barrels of potatoes were safely landed, and there remained on board 1541 barrels. The insurance was until the “said goods and merchandise shall be safely landed.”

The policy contained the usual clause that the assurers were to take upon themselves all perils and losses that might accrue “to the said goods and merchandise or any part thereof.”

The plaintiff claims for the loss of the 1541 barrels of potatoes. Beyond doubt this is a claim for the loss of a part of the subject that was insured in the beginning, viz., “of the whole cargo.”

The memorandum clause specifically provides that, among other articles named, “ potatoes and roots ” are warranted by the assured “free from average, unless general.” And certain letters were written on the indorsement of this cargo on the policy, which was an open policy. It is agreed that these letters mean “free from particular average.” It is thén the simple and often-determined case of insurer not being liable for a partial loss, provided that the true meaning of the policy is, that the insurers are not liable, unless the whole of the subject insured at the beginning of the suit, that is, the whole cargo, be lost.

The learned counsel for the respondent, however, urges, that the policy makes the subject of insurance not only the whole, as such, of the cargo, but also each part of the whole, in the words that the assurers take upon themselves all perils to the goods or any part thereof; that the insurance continued in force, until the cargo was safely landed ; that when the 109 barrels were safely landed, they went out of the contract and the policy continued as to the 1541 barrels on board ; that these 1541 barrels were the whole subject of the contract and that if a total loss as to them was shown, the plaintiff was entitled to recover. In other words, that the policy intended to provide that what was a part of the cargo in the first place, might become the whole of the subject insured when the other part had been safely landed and so discharged from the contract. Of course, this whole is separable into parts, and the result would be that whatever of that was taken from it and safely landed, could always be considered as discharged from the contract, and the insurers would have no protection from the memorandum. The argument is not valid, even if other considerations be not fatal to the claim, if the part safely-landed has not been separated from that on board but, in fact, the contract operates upon them taken together as a whole.

On this point, there is authority in this State which, must be followed. The decision in Gardiner v. Smith (1 Johns. Cas. 142) has been questioned, in my judgment not properly, by courts of other States and by learned text-book writers. It has not been overruled in, this State. The policy of insurance was “to any port in Jamaica, and twenty-four hours after the goods are-landed in Jamaica,” and was against risk of contraband and illicit trade. After arrival at the port of discharge, part of the goods were landed, and after they had been on shore more than twenty-four hours, were seized for illicit trading. One question was, whether these goods were protected by the policy, after the lapse of the twenty-four hours. The court held, “a protection against the risk of seizure, until they should be so-landed, was a direct and important stipulation in the contract, and the insurance being entire, we are of opinion that the risk continued on the entire goods, until twenty-four hours after all of them had been landed.”

In American Insurance Co. v. Griswold (14 Wend. 478), it was necessary to allude to what right.of apportionment or contribution the underwriter had in a. case where insurance was made for less than the value of the goods insured, and where, after arriving at the-port of discharge, some had been landed, and those remaining on board were of not greater value than the amount of insurance. Chancellor Kent cited Gardiner -o. Smith, in saying that in such a case there was to bean apportionment between the underwriter and the assured. “ Where the insurance is upon a single voyage, from one port to another, upon an entire cargo or lot of goods, to be laden on the vessel at the port of departure, and when a part of the goods have arrived at the port of discharge, and have been safely landed before the loss occurs,” i. e. the goods, actually landed are within the policy, and bear a proportion of the loss made on the goods not landed.

In the same case Senator Tracy used the principle of' Gardiner v. Smith, citing it, and said (p. 489), “ noiy, if instead of a seizure of all the goods, there had been a seizure of those only that were, or of those only that were not landed, it is plain on the principle of that decision, that it would have been but a partial loss, and the interests on all the goods must have contributed ratably.” He also said, “ as in the common case of insurance on goods from one port to another and until safely landed, where, after a part of the goods are-landed, the residue on board are lost; this is frequently denominated a total loss, though it is really a partial loss, because the goods landed were not, until the goods were all landed, withdrawn from all the risks-against which they were insured, although they were withdrawn from the particular risk, by which the loss occurred ; and therefore, as the insurer would have to-contribute in ease of their loss, notwithstanding they were landed, it is only reasonable and just that the owner should contribute on account of those on board,, the same as though the loss had occurred, before any were landed.”

It follows, then, in this case, that, as the 109 barrels-safely landed were within the policy, and would be, until the whole cargo was landed, and were not themselves lost, there was but a partial loss, and the plaintiff' should not have recovered.

The same result follows from the view just suggested. The form of the policy is prepared in advance, for a business of taking different kinds of risks, and is-meant to contain clauses that may be distributively used for different classes and conditions of merchandise or goods to be insured, as they will be severally presented for insurance. The general clause, describing what risks are undertaken, is meant to be applied to such goods in general, as to which it is not intended to limit the insured to a total loss, and the thing insured is stated to be “said goods and merchandise, or any part thereof.” But the memorandum clause is meant to make a reservation in case “ the said goods and merchandise ” are of such a kind that the underwriters do not intend to pay for a partial loss of them ; that is, if they are “potatoes or roots,” then the insured must bear any partial loss. The written words to the same effect have a more direct application, because they were placed on the policy contemporaneously with the cargo being entered on it. The insurance, then, is in substance, if the perils of the sea prevent any part of the cargo being landed, the insurers pay the value of the whole cargo; but if any part is safely landed, the insured is to bear the loss of the other part and the insurer is to pay nothing. There is no way of severing the contract, because the thing said to lead to the severing, is the contingency which satisfies the whole of the obligation of the insurer.

What has now been decided, determines the case as it is, and it may be unnecessary to pass upon other parts of the appeal. In view of a former appeal having been determined upon the other branches, it may not be inexpedient to express the opinion, that the facts do not show a total loss, within the rule that if the cost of forwarding memorandum articles from the place of disaster exceed their value, the loss will be deemed total, or within the case of Wallerstein v. Columbia Ins. Co. (44 N. Y. 204). Leaving on one side the safety of the 109 barrels, there was not a total loss of the 1541 barrels.

It is not the purpose to decide that the rule referred to is to be applied here, but to consider it as the most favorable that can be invoked for the plaintiff. In addition to the 109 barrels referred to there were at least 80 barrels, landed after the disaster. This was sufficient to make the loss partial, unless, where the rule is properly applied, the cost of transporting them to a safe landing was as great as their value. It is manifest that the rule must be confined to the expense of taking them from the boat and in safely landing them, and not extended to expenses that would be incurred if no disaster had happened. The expenses were said to be $3.65 greater than their value. To reach this result, the following sums were charged, which were not to be attributed to transporting the potatoes to shore or in safely landing them. The first was rent of a store on land for one month, $30 ; commissions and delivering on 80 barrels, $30; use of two stores, $10; lawyer drawing paper, $75; dispatches, $2; to Sew York twice —car fare and time, $5. If these are deducted, it appears that the 80 barrels of potatoes were in value at least $60 and over. There was, therefore, not a total loss.

The case made does not show the happening of a total loss, within the case of Wallerstein, so far as that case requires the existence of a total loss, irrespective of those ambiguous considerations, which pertain to what is there called a constructive total loss.

Judgment reversed, with costs of appeal to appellant to abide event, and new trial ordered. Order appealed from reversed, with $10 costs.

Freedman and Russell, JJ., concurred.

       46 Super. Ct. 118.


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    PATRICK REILLY v. THE MAYOR, &c., OF NEW YORK CITY.

      Officers—removal—resignation—incompatibility.—New Torh Oity—charter, § 77—-fire department.

    Plaintiff was duly appointed a member of the uniformed force of the Fire Department of New York city, as an assistant-engineer, at a certain salary, and after serving for some time, was, by order of the Board of Commissioners, relieved from duty as such, and appointed to a subordinate position as machinist, at a lower and per diem compensation, the duties of which latter position he entered upon and performed without protest. He was in like manner transferred from the one place to the other several times, without protest. It appeared from the minutes and order of the board, and from pay-rolls signed by plaintiff, containing receipts in full, and in which he is described at times as assistant-engineer, and at other times, as machinist, that the two places were distinct and different.
    In an action to recover the balance of plaintiff’s salary as assistant-engineer for the whole period of his employment,—Held, that such removal was not within the inhibition of section 77 of the charter of New York city, providing that no member of the uniformed force shall be removed without charges, etc., said section referring only to removals in imitum; and that plaintiff, by accepting the position, and performing the duties of machinist, without protest, yoluntarily vacated the place of assistant-engineer, the duties pf the two places being such that it would be incompatible for one person to fill them both.

      Further held, that the pay-rolls were admissible in evidence against plaintiff.
    Brennan v. The Mayor (63 N. T. 365), distinguished in that regard.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 5, 1882.
    Exception by defendant to a direction by the court that the jury find for plaintiff, ordered to be heard in first instance at general term.
    The plaintiff claimed to recover, in this action, a balance of salary, alleged by him to be attached to a subordinate place in the fire department of New York city.

      The facts appear in the opinion.

      Charles P. Miller, for plaintiff.

      William C. Whitney, corporation counsel, and David J. Dean, of counsel, for defendant.
   By the Court.—Sedgwick, Ch. J.

The plaintiff gave in evidence the following extract from a meeting of the Board of Fire Commissioners, of May 20, 1875. “ I. Patrick Rielly (the plaintiff) is hereby appointed an assistant-engineer in this department, at a salary of $1,250 per annum, and assigned to the repair shops. He will report for duty on the 21 inst., at 8 a. m., to the chief of battalion in charge of the repair shops. II. Assistant-engineer Patrick Rielly, of the repair shops, is hereby detailed for duty in engine company No. 43, and will report for duty at Pier No. 1, 9 a. m. on the 21 instant.” He did duty as assistant-engineer with company No. 43 until October 7, 1875. The plaintiff gave in evidence another extract from the minutes of the board meeting of October 6, 1875, which was: “Appointments were made to take effect on 7 instant, as follows : Patrick Rielly, relieved from duty as assistant-engineer of steamer, and appointed a machinist in the repair shop at a salary of $3 per day.” An order was made thereon, which was: “ Patrick Rielly is hereby relieved from duty as assistant-engineer of steamer, and appointed a machinist in the repair shops at a salary of $3 per day, to take effect at 8 a. m. on the 7 instant.” The plaintiff thereupon wentjnto the repair shop and did the duty of a machinist. He then, after a time, in pursuance of orders given, left the repair shop and was attached to an engine company. The orders were in the following form: “Machinist Patrick Rielly, of the repair shops, is hereby attached to the engine company No. 43, for duty as acting assistant-engineer of steamer, until relieved by the commanding officer of that company, whereupon, he will immediately report back for duty at the repair shops. During the time of his service, as herein ordered, he will be dropped from the repair shop payroll, and taken upon the pay-roll of engine company No. 43, as assistant-engineer of steamer, with the pay, at the rate of $1,250 per annum.” This order was in pursuance of a proceeding of the board, which was shown by the following extracts from its minutes: “ The president reported the following: Detail of machinist Patrick Rielly, from repair shop, to engine company No. 43, as acting assistant-engineer of steamer, at a salary of $1,250 per annum, from 22 instant.”

When the plaintiff was with the engine company, he was paid at the rate of $1,250 per annum, signing a receipt on the pay-roll, which described him as acting assistant-engineer. When he worked at the repair shops, as machinist, he was paid at the rate of $3 a day, signing a receipt on a pay-roll, which described him as a machinist.

Apart from the face of the orders and of the payrolls, there was no evidence as to what, in the organization of the department, according to rules established, or practice adopted, were the duties and official relations of an assistant-engineer or of a machinist. It was not otherwise shown whether an assistant-engineer had duties attached to his place, which were to be done at the repair shop, nor whether, if in regular' course that were the case, there were not duties of a similar or different kind to be done by another kind of subordinate, distinctively known as and designated by the name of machinist.

The plaintiff gave testimony tending to show that a uniform in which he appeared at the trial, was the insignia of his rank. These were his words, and further, that such uniform was the insignia of the rank of assistant-engineer in the fire department. He was asked by his counsel immediately: “Have you ever received any other appointment than the one already introduced in evidence, the one of 20 May, 1875?” His answer was, “Not any, at any time.” The defendant’s counsel then asked, “You have received orders at different times, detailing you to other services ?” “A. The other service was mechanical service.”

The pay-rolls, by themselves, would indicate that there were two places, distinctly different, one that of an assistant engineer, and the other that of a machinist. The counsel for plaintiff has argued that by Brennan v. The Mayor (62 N. Y. 365), the pay-rolls are not evidence against the plaintiff for any purpose. A reference to the facts of that case will show that the pay-rolls, which the court held not to be evidence against the plaintiff, were pay-rolls on which that plaintiff’s name did not appear, and on which, therefore, his receipt for salary could not have been. In the present case, the pay-rolls show by the admission of the plaintiff that he received salary as a machinist sometimes, and sometimes as an assistant engineer.

If resort be had for information to the proceedings of the board and the orders issued thereon, it appears from them, taken altogether, so far as I am able to see, that there was a subordinate place in the department designated as “assistant-engineer,” part of whose duties were to be done in connection with an engine company and part at the repair shops, as the board might assign. The first appointment, that of May 20, 1875, appointed him an assistant-engineer and assigned him, as such, to the repair shops ; and the same minute proceeds, “ assistant-engineer Patrick Reilly, of the repair shops, is hereby detailed for duty in engine company No. 43.” Accordingly, on October 6, 1875, after which he was paid for a time $3 a day, he was not assigned, as an engineer, back to the repair shops, but, as appears by the order of that day, he “ was relieved from duty as assistant-engineer of steamer and appointed a machinist in the repair shops” at $3 a day. This order, 1 suppose, follows the terms of the appointment by the board, although in the printed case there seems to be an omission of some words.

The order of March 22, and the minutes of March 30, call him machinist Patrick Reilly, and detail him by such title from the repair shops to engine company No. 43, as acting assistant-engineer of steamer, “until relieved by the commanding officer of the company, whereupon he will immediately report back for duty at the repair shops. During the time of his service as herein ordered, he will be dropped from the repair shop pay-roll and taken upon the pay-roll of engine company No. 43, as assistant-engineer of steamer, with pay at the rate of $1,250 per annum.” There was no proof given of what was an acting assistant-engineer.

It is upon this basis, that the learned counsel for plaintiff contends" that the plaintiff is-now, and always has been, a member of the uniformed force of the fire department; that by section 77 of charter of the city of New York (chap. 335, Laws of 1873), the Fire Commissioners are prohibited from removing a member of the uniformed force, except “ after written charges shall have been preferred against him, and after the charges have been publicly examined into, and after notice to the persons charged that the commissioners had no authority to relieve the plaintiff from duty as an engineer and appoint him to a subordinate position as a machinist, at a daily salary; that if such order could be enforced, it would amount to a removal, in violation of the charter ; that- the order was in fact a nullity, and in no way affected plaintiff’s place of assistant-engineer, or his right to be paid the salary, attached to that place.

So far as the testimony discloses, it seems to me that these places which the plaintiff filled, have annexed to them respectively duties which the law did not intend should be performed by one person at the same time, and that, as the term is, it would be incompatible for one person to fill the two places. In the People v. Green (5 Daly, 260), Judge J. F. Daly, in an opinion which, on review by the court of appeals (People v. Green, 58 N. Y. 295), was approved, said that legal incompatibility arises “ from the necessity of the incumbent performing the duties of both offices at all times in person and not by deputy.” It results from this, that when the plaintiff accepted the place of machinist, he voluntarily vacated the place of assistant-engineer. He did not resist his being appointed machinist, and he did not claim to be assistant-engineer when he was appointed machinist. Whatever of removal there may have been, he assented to and acquiesced in, and when he acted as machinist, he disabled himself from performing service as assistant engineer. On this service, or a readiness to perform it, is based his right to the salary (Smith v. The City of New York, 37 N. Y. 518).

The provision of the charter cited (§77), that officers and members of the uniformed force shall be removable only after written charges shall have been preferred against them, etc.,” means to refer to a removal in invitum. It does not mean to abridge the power and right of a person to resign or vacate an office or membership, at least of this kind. So far as the provision is for the personal advantage of the holders, as it was introduced for his benefit, he may renounce the advantage.

In the Metropolitan Police Act of 1857, there was a like kind of provision against the removal of patrolmen, excepting charges were made. The People v. The Board of Police (19 N. Y. 188), held that the act transferred to the police force created by it, the members of the then existing police in Hew York and Brooklyn, without any affirmative act of acceptance on their part. Although they were thus in office under the later act, and not to be removed except upon charges and conviction of them, the court of appeals held, in People ex rel. Hanrahan v. Board of Metropolitan Police (26 N. Y. 321), as undoubted law, that to divest a patrolman of the office, a formal resignation was not necessary. “ Affirmative acts on his part, of resignation or repudiation of the office, are quite as effectual to divest him of it, as affirmative words spoken or written.” There might be a practical desertion, abandonment and repudiation of an office or its duties. Another opinion looked upon the acts as equivalent to a resignation, because “ the relator refused to hold the office. Being in possession by' virtue of the statute, he refused to continue in possession, he refused to have the office. What act could he have done more effectually to divest himself of the office?” It can be said that there is a removal, when the holder is compelled to go; but when he voluntarily leaves, there is no removal, in the sense of the statute. He may think, as the plaintiff may have thought, in this case, that if he do not accept the subordinate and incompatible duty, there will be an attempt to remove him unjustly or illegally. But, while this may be motive of voluntary yielding, it does not alter the quality or the consequences of the act, done voluntarily by him, of accepting the incompatible place.

I am therefore of opinion, that the plaintiff was not entitled to recover the amount of salary due to an assistant-engineer, while he was filling the' place of machinist. He was paid for the latter, and the request of the defendant that the verdict be directed in his favor, should have been granted.

The exception to the direction of á verdict in favor of plaintiff, is sustained; the verdict set aside, and a new trial ordered, with costs to defendant to abide event.

Freedman, J., concurred.


text:
    ALBERT C. LAMSON, Respondent, v. J. MARION SIMS, Appellant.

      Principal and agent—authority of real estate agent to employ broker—continuance of broker's authority after revocation of agent's.

    Where the owner of certain real property employs a real estate agent to obtain a purchaser therefor, and such agent, acting within the scope of his authority, but without said owner’s knowledge, employs a broker for that purpose, said broker’s authority continues after the revocation of the agent’s authority and until notice thereof. If, during such period, he finds a purchaser for the real estate, he can recover his commissions from the owner.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 5, 1882.
    Appeal by defendant from judgment entered on verdict in favor of plaintiff, and from order denying motion for new trial made upon the minutes.
    The facts appear in the opinion.

      Gray & Davenport, attorneys, and John Clinton Gray, of counsel, for appellant.

      Sidney S. Harris, for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was to recover the amount of commissions alleged to be due to plaintiff, a broker, in procuring a purchaser of certain real estate, under an alleged employment by defendant. The defendant was the owner, and the plaintiff claimed that he was employed by defendant through an agent of the defendant. On the trial, at the end of the testimony, the defendant’s counsel moved that the court direct a verdict in his favor. The important exception is to the denial of this motion. There are no exceptions to this charge, and indeed it has not been made a part of the case on appeal. It must be supposed that all the matters of fact which were essentail to the recovery, were properly passed upon by the jury, unless the testimony is incontrovertibly in favor of the defendant on the two points presented at the trial and on this appeal.

The first is that the plaintiff failed to prove that the employment by the defendant’s agent came within the scope of the latter’s apparent authority. It was proved, and not denied by defendant, that the latter had empowered in writing the agent to sell the real estate, which was in this city. The plaintiff, who was a broker in real estate by business, testified that such property is almost invariably sold through a broker in the city of Mew York. The agent was a witness for the defendant, and gave detailed testimony as to his relations to the defendant and to the plaintiff, and in such a form that the jury were at liberty to take his testimony as affording circumstantial evidence as to his authority to employ a broker for the defendant. On the whole case, the jury could competently determine whether the defendant had given to his agent for sale authority to employ, for him and for that purpose, a broker.

The "second point is, that the defendant was not liable to the plaintiff, because the defendant had revoked the authority of his agent to sell the real estate, and the broker’s employment consequently terminated before a purchaser was found.

It was not disputed that the finding of the jury that the plaintiff did obtain a purchaser, is conclusive. It is said, however, that before that was done, there was a revocation of the authority of defendant’s principal agent to sell. There was an exception made in reference to the refusal of the court to allow the defendant to show, by a certain letter to his agent, that there was the revocation referred to. Regularly, that letter should have been part of the case. Both make no objection to its being handed to the court on this appeal, and it has been considered by it. It is very doubtful that the jury would have been justified in finding that the letter was intended to stop the proceedings toward a sale. I am, however, of the opinion that, as it was not shown, or offered to be shown, that the letter was made known to the plaintiff, it did not affect his right to compensation. Judge Story states the law on this point, in Story on Agency, § 470, in considering at what time and under what circumstances the revocation by the act of the principal takes effect: “As to the agent himself, subject to what has been already stated, it takes effect from the time when the revocation is made known to him, and as to third persons, when it is made known to them, and not before. Until, therefore, the revocation is so made known, it is inoperative. If known to the agent, as against his principal, his rights are gone, but as to third persons who are ignorant of the revocation, his act binds both himself and his principal.” If there are, which is •doubtful, any facts in testimony which tended to show a revocation of authority to sell, the jury could find that it was not made known to the plaintiff until after he had secured a purchaser with whom a contract of sale might have been made.

Judgment affirmed with costs, and order appealed from affirmed with $10 costs.

Freedman, J., concurred.


author: By the Court.—Freedman, J.

text:
    HUGH DILLON v. THE SIXTH AVENUE R. R. CO.

      Negligence—liability of corporation to employee—hidden defect—notice to company through director employed as contractor to erect the building—overloading floor—burden of proof.

    A corporation, for such acts and duties as it is required to perform as master or principal, is liable to an employee for negligence or want of proper care, without regard to the rank or title of the agent who represents it entrusted with the performance of such acts or duties, —e, g., it was held in this case that if there was negligence in ordering a large quantity of grain bought by defendant for the use of its horses to be stored on the floor in the building of defendant, a street railroad company, which storage caused said floor to fall, it was the negligence of the company and not of the officer or agent giving the order.
    If due care has been taken by the company in the construction and maintenance of such building, and an injury result solely from a hidden and internal defect therein, of which the company had no notice, and which could not be discovered by the exercise of ordinary care, the defendant is not liable.
    Where the defendant employed one of its directors to construct such floor by day’s work, and paid him a commission on the actual cost of the work, he is a mere contractor, and notice to him of any defect is not notice to the company.
    Mere overloading of a floor is not enough to establish negligence, the plaintiff having repelled, as to construction and maintenance of the building, and knowledge of defects therein, the presumption of negligence arising from the happening of the accident. To recover, the plaintiff is bound to establish an overloading which was wrongful in a legal sense, and which amounts to a specific act of negligence in the use of the floor—the test applied in this case being the supporting capacity of the floor, determined by expert evidence.
    A corporation can only be held to the exercise of ordinary care under all the-circumstances, whether the plaintiff was a servant or a stranger.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 5, 1882.
    The plaintiff, on May 25, 1878, was in the employ of the defendant as a laborer, and as such engaged in the work of putting in oats on the third floor of defendant’s depot, when part of the floor gave way and fell, in consequence of which the plaintiff fell with it and sustained serious injury. He brought this action, alleging negligence in the defendant, to recover $30,000 damages.
    The defendant, by its answer, denied the negligence imputed; charged contributory negligence; averred that the injury was caused by the negligence of a servant of the defendant, but without any negligence ob its part; and then pleaded payment and release.

      At the trial, evidence was given on both sides, and at the close of the testimony the court denied plaintiff’s motion to be permitted to go to the jury, and directed a verdict'for the defendant, which rulings were duly excepted to. The court then directed the exceptions to be heard in the first instance at general term, and that judgment in the meantime be suspended.
    Further facts appear in the opinion.

      Nelson Smith, for the plaintiff.

      D. M. Porter, for the defendant.
   By the Court.—Freedman, J.

A verdict having been directed for the defendant, all material facts as to which there is a conflict of testimony are to be decided on this appeal in favor of the plaintiff, and all presumptions and inferences which he had a right to ask from the jury, are to be conceded to him.

The question of contributory negligence was decided by the learned judge who presided at the trial, in favor of the plaintiff.

The plea of payment as an entire defense depended upon the sufficiency of the release obtained by the defendant, and as to that the circumstances under which it was obtained, were of such a character, that the question whether or not it had been obtained by undue influence, imposition or fraud, should have been submitted to the jury, provided there was sufficient evidence upon which the jury might have found negligence in the defendant by which the fall of the floor was caused. The most material question, therefore, is whether there was sufficient evidence of negligence for that purpose.

The defendant is a corporation, and as such can only act through agents. But a corporation is liable to an employee for negligence or want of proper care in respect to such acts and duties as it is required to perform as master or principal without regard to the-rank or title of the agent or representative entrusted with the performance. As to such acts, the agent or representative occupies the place of the corporation, and the latter is deemed present, and consequently liable for the manner in which they are performed. If, therefore, there was negligence in ordering the large quantity of oats to be stored on the part of the floor that fell, which were, in fact, stored there, and the storage of which caused the fall of the floor, it was negligence in the corporation, and not merely the negligence of the particular officer or agent who gave the order. Hence the question of the negligence of a co-servant for which the common employer is not liable, is not in the case.

The depot in question was built expressly for defendant’s use, and originally was two stories high, fronting on Sixth avenue, and extending from Forty-third to Forty-fourth street, in the city of Hew York». In about 1873, one and one-half of a story were added for the purpose of storing grain. This addition was-built by Mr. William R. Stewart, whose reputation as a builder was first-class, by days’ work instead of under a contract fixing the price, and under instructions, from the company that it should be built in the best-possible manner. For his services Mr. Stewart received, from the company ten per cent, on the actual cost. The evidence is uncontradicted that the materials used were first-class and that the work as a whole was done-in a first-class manner. Under these circumstances, the company was justified to use the third floor, which fell and injured the plaintiff, for the storage of grain, and the same was so used up to the time of the injury without any indication of weakness having manifested itself. Within twenty minutes of the fall, several officers of the company had been upon and under the-floor in question, and the witnesses on both sides agree that up to the time of the fall there was no indication anywhere of the impending catastrophe.

Consequently, in order to succeed, the plaintiff was-bound to establish either,- that notwithstanding the care taken by the company towards securing proper construction, as stated, there was some defect which caused the injury, of the existence of which the company had notice, or which, by the exercise of ordinary care, could have been discovered in the course of the use, or else that the use of the premises on the particular occasion complained of was so unreasonable under all the circumstances as to evince negligence.

For a mere hidden and internal defect of which the company had no notice, and which could not be discovered by the exercise of ordinary care, all the authorities agree that the defendant is not liable. ¡Now the only evidence of the existence of a defect, if a defect it was, was some evidence given on behalf of the plaintiff to the effect that while the floor in question would safely sustain a weight equally distributed of one hundred and twenty pounds to the superficial foot, there were upright posts under it that would only sustain a weight of eighty-seven and one-third pounds to the superficial foot, and that consequently the posts were weaker than the beams. The capacity of the floor as stated was shown to be entirely independent of the support derived from the posts. The learned counsel for the plaintiff claims, however, that as the strength of the beams would not be brought into service without some deflection, the entire weight rested upon the posts, and that the instant they broke, the weight came upon the beams with a jar, which suddenly deflected and broke them, though, if there had been no supporting posts and the weight had been applied to the beams gradually, the latter might have sustained the weight, suffering, however, a deflection. And in this connection it was further argued that, inasmuch as Mr. Stewart, at the time of the building of the depot and for years thereafter, was a director in defendant’s company, and as .an expert must be presumed to have been cognizant of the defect, his knowledge was equivalent to notice to the company. I propose to deal at once with this question of notice, for if that is determined against the plaintiff, the existence of the defect, if it was one, becomes immaterial.

The general rule undoubtedly is, that notice to the agent is notice to the principal, if the agent came to the knowledge of the fact while he was acting for the principal in the course of the very transaction which became the subject of the suit; for upon general principles of policy it must be taken for granted that the principal knows whatever the agent knows. And in such a pase there is no difference between personal and constructive notice, except in respect to the guilt; for if there were, it would produce great inconvenience, as notice might be avoided in every case by employing an agent. But the ground and reason of the rule is that the agent is substituted for the principal and represents him in the particular transaction. This relation exists only while the agent is acting in the business thus delegated to him, and the rule must be limited to such occasions. In the building of the depot in question, the relation of Stewart to the company was not that of an agent or representative entrusted and charged with the duty of looking after the interests of the company, but that of an independent contractor, and as such he acted under the orders of the president of the company. It was the latter who had to look after the interests of the company. Any mistake made by Stewart in the capacity of contractor in the construction of the building, cannot therefore be held to be notice se to the company. And there being no other evidence upon which the jury could have found that the company knew of the difference in weight-sustaining capacity existing between the beams and the posts, or that the company, in the exercise of ordinary care, could have discovered the existence of such difference, this branch of the case may be dismissed from further consideration.

ÜÑTor was there any evidence upon which the jury could have found negligence in the company in the maintenance of the building. On the contrary, a close examination made immediately after the accident with the view of ascertaining the true cause thereof, failed to disclose that any beam or timber or posts had become rotten or otherwise unsound.

The case, therefore, comes down to the question whether the use of the premises on the particular occasion complained of was so unreasonable under all all the circumstances as to evince negligence.

That the fall was occasioned by overloading, is reasonably certain. But that alone is not enough. To recover, the plaintiff was bound to establish an overloading that was wrongful in a legal sense.

True, the circumstance that the floor fell, if it stood alone and remained wholly unexplained, would make the doctrine of Mullen v. St. John (57 N. Y. 567), be prima facie evidence of negligence. But in the case at bar, the defendant did show, by way of explanation and by uncontradicted testimony, that sufficient care had been taken in the construction and maintenance of the building; that the floor which fell had been specially built for the storage of grain; that it had been used for that purpose for many years without any indication of weakness manifesting itself; that during such use it had always been considered perfectly safe ; and that, in the course of such use, on May 25, 1878, it fell suddenly, and without any premonitory signs of insufficiency. These facts removed the presumption and cast the burden upon plaintiff to show specific acts of negligence in the use.

The floor having been specially built for the storage of grain, as already stated, and the defendant not knowing of any defect in the construction, the defendant, if at any time its business required a heavy stock of grain to be stored, had a right to use the floor for that purpose, and it was not bound to stop at one-half the distance between the floor and the ceiling, nor at three-quarters or seven-eighths of the distance, but had a right to use every available square foot, provided the floor and the building could be reasonably subjected to such a test. Within the limits of such reasonable use, the only limit was the capacity of the floor and building. How then was the defendant to know such capacity % In the case of a ship there is a register showing her tonnage, and if she be loaded beyond her registered capacity, she will sink so low into the water as to plainly indicate her position even to a casual observer. But in the case at bar these external guides were wanting and the defendant did not possess the powers or knowledge of an expert. The defendant, then, not being restricted in any way, was justified in ascertaining the capacity of the floor and building as best it could by actual use in the course of its business. The floor having been expressly built for the storage of grain in connection with such business as herein before stated, and by a builder of such established reputation that he was described as standing at the head of his profession, and who thoroughly understood the wants of the company in that respect, and the company having thus taken all the care it could under the circumstances, it had a right to assume that the floor was strong enough for the exigencies of its business in the storage of grain, and so long as in the course of such use no indications to the contrary appeared, it had a right to act and to continue to act on that assumption. According to the testimony on both sides no indication of danger or insufficiency preceded the fall of the floor, and this fact would seem to be conclusive in favor of the defendant, unless the quantity of oats upon the floor at the time of its fall was of itself sufficient evidence of unreasonable use, and consequently of negligence.

The part of the floor that broke down and on which the oats were stored, was partitioned off. It was eighty-five feet long and twenty-two feet and six inches wide, and located about twenty-five feet north of the southerly side of the building, which side fronted on Forty-third street. If full, the jury might have found that there were eleven thousand bushels of oats upon it, which at thirty-two pounds per bushel weighed three hundred and fifty-two thousand pounds, and this is the extent of plaintiff’s claim. But it evidently was not full. True, the plaintiff testified in a general way that the oats were piled up in the room as high as the ceiling above in some places, and within seven or eight inches in others, and another witness called on behalf of the plaintiff testified that the oats might have been put a foot from the beams. But it also appeared that the room was at most only eight feet high, and that at the time of the fall the plaintiff and two men were on top of the oats, and that three other men were throwing up bags to them. And finally it was shown without contradiction, that the quantity of oats thus put in formed part of a cargo of about thirteen thousand bushels, of which four thousand were sold to the Broadway Railroad Company without having gone into defendant’s depot. Taken together, therefore, and taken in connection with the further circumstance that at the time of the arrival of the said cargo, the defendant’s company was out of oats, and that no witness testified to the presence of any other oats, the evidence would not have warranted a finding of a larger quantity stored than nine thousand bushels.

The only remaining question then is, whether the storage of nine thousand bushels under all the circumstances was in itself unreasonable, and consequently negligent. Upon this point, considerable expert testimony was given on both sides as to the bearing capacity of the floor that fell. The plaintiff’s witnesses testified that the floor was capable of bearing in absolute safety an equally distributed load exercising a pressure of one hundred and twenty pounds upon each superficial foot of the floor, and that with a factor of safety of four, which is the factor of safety generally used for steady weights, four hundred and eighty pounds to the superficial foot were considered the weight required to break the floor down. About an equal number of witnesses called by the defendant gave the safe weight at from one hundred and fifty to one hundred and ninety-seven pounds, and the breaking weight at from six hundred to eight hundred pounds. The weight of nine thousand bushels of oats at thirty-two pounds per bushel, was equal to a weight of one hundred and fifty pounds upon each of the one thousand nine hundred and twelve and one-half superficial feet which the floor of the storeroom contained. According to the defendant’s expert witnesses, this was within the line of absolute safety. According to the plaintiff’s witnesses it was somewhat beyond the line of absolute safety, but yet very far, according to ordinary experience, from the line of actual danger. It is also a conceded fact in the case that before the beams of the floor in question would break, there would be a deflection or sagging down of six or seven inches. Yet the floor suddenly fell without anybody having noticed any premonitory sign of danger, arid the true cause of the fall, beyond the weight of the nine thousand bushels of oats, could not be ascertained with any degree of certainty. In view of all these facts, it is difficult to see how it can be held that the storage of the nine thousand bushels under the circumstances disclosed by the whole ease was in itself such an unreasonable and therefore negligent use of the premises that a prudent man exercising ordinary care and caution would not have been guilty of it under the same circumstances. For, after all, the defendant can be held only to the exercise of ordinary care under all the circumstances, whether the plaintiff was a servant or a stranger who as such had come upon the premises by invitation of the company.

The foregoing examination demonstrates that in every aspect that can be taken of the case, the plaintiff upon whom the burden of proof rested, failed to prove sufficient to constitute negligence in the defendant causing the injury.

The verdict was properly directed, and consequently the exceptions of the plaintiff should be overruled and judgment should be ordered in favor of the defendant on the verdict, with costs.

Sedgwick, Ch. J., concurred.