author: By the Court.—Vah Vorst, J.

text:
    ELLIS C. STOKES and CHARLES STOKES, Plaintiffs and Appellants, v. CARL L. RECKNAGEL, and Others, Defendants and Respondents.
    I. SALES TO ARRIVE.
    1. Contract that goods should have been shipped fob vendors’ ACCOUNT.

      a. What not a breach of.

    1. Borrowing funds, or credits at the place of shipment, to enable the vendor to pay for them, is not; the vendor having-the bills of lading and invoices, and the goods being entered in his name.
    H. CONTRACT.
    1. Construction of.

      a. Parties by their words and acts, may, in cases of doubt, put a construction on the contract by which they will be bound.
    3. Entire contract.

      a. Acts or consent of parties may make it divisible.
    3. Conditions precedent.

      a. May be waived by the parties, or excused on proper grounds.
    HI. TITLE TO PROPERTY.
    1. What sufficient to pass.

      a. The delivery or assignment of store receipts given by a warehouseman with invoice and weigher’s return is sufficient.
    IV. TENDER. —REFUSAL TO ACCEPT.—WHAT CAN NOT BE. URGED TO JUSTIFY.
    1. When a party places his refusal on certain specific objections, he can not, after action commenced, raise other objections, trifling is their character, and which could easily have been remedied at the time.
    V. APPLICATION OF ABOVE PRINCIPLES.
    Defendants contracted to purchase of plaintiffs the balance of jute-butts shipped for their account per ships Nagpore and Jaypore, from Calcutta, not exceeding two thousand bales, and less damaged, bales, out of a lot of four thousand bales, to be landed alongside ship in New York or Brooklyn. Duty paid. Buyer to have-benefit of any reduction of duty, and to pay any increase of same-Goods to be of good merchantable quality.

      1. The butts having been imported from Calcutta, for account of plaintiffs, and they being the owners, and entitled to the control and disposition of the same,
    HELD,
    that the fact that some of the bales had on them the mark W. and that F. & S. had advanced in Calcutta funds or credits to enable plaintiffs to pay for them, did not affect the principal fact that they were imported for plaintiff’s account.
    2. The Jaypore having arrived before the Nagpore, defendants were notified of the fact, and received an order in writing for the delivery of the two thousand bales out of her, and no objection was made to such delivery.
    HELD,
    1. The parties had thus construed the contract as authorizing the delivery of the whole two thousand bales out of the Jaypore.
    2. If the contract was entire, so that the same could be' legally satisfied only out of the cargoes of both vessels, yet the parties by this act had made it divisible.
    8. The defendants directed the butts to be put in bond so as to obtain the advantage of a reduction in duties thereafter to' take effect.
    HELD,
    1. This was a waiver of delivery alongside.
    2. It was a waiver of actual payment of duties as a condition precedent to payment.
    4. The butts having been placed in bond, and the store receipts with an invoice with duties deducted, having been delivered; and passed over to defendants,
    HELD,
    that the property passed to the defendants, and was placed completely at their disposal, and was a sufficient tender and delivery.
    6. The invoice delivered to defendants showed a deduction for an estimated amount of duties, and stated the number of butts incorrectly, but the weigher’s returns which stated the amount correctly, accompanied the invoice. The defendants placed their refusal to accept on other grounds, but made no objection to the sufficiency of the tender on these grounds, until after the action was commenced
    held,
    that they could not be allowed to raise these objections.

      Before Freedmah and Yah Yorst, JJ.

      Decided December 9, 1874.
    Appeal from judgment entered on a dismissal of complaint, on trial before the court and jury.
    About February 1, 1873, the plaintiffs, who were -merchants residing in Philadelphia, and importers of jute butts, from Calcutta, employed Cabot, Bowles & Co., merchandise brokers, of the city of New York, to sell jute butts for them out of shipments to arrive for their account, on two vessels, the Jaypore and the Nagpore.
    On February 10, 1872, a contract was made by the brokers with the defendants. The contract was in these words:
    “No. 1705.
    “New York, February 10, 1872.
    “ Sold to Messrs. Recknagel & Co., of New York, for account of Messrs. E. & C. Stokes, of Philadelphia, balance of the jute butts shipped for their account, per ships Nagpore and Jaypore, from Calcutta, not exceeding two thousand bales, and less the damaged bales ■out of the lot of four thousand. Buyers’ option to take damaged at an agreed upon allowance. This "sale is intended to cover the lot purchased for shipment by those vessels, as advised by cable. Terms three and seven-sixteenths cents per pound, actual gross weight, as landed alongside ship in New York or Brooklyn. ■Grold. Cash in thirty days from average delivery from -each vessel. Duty paid. No arrival, no sale.
    “ S’d Cabot, Bowles & Co.,
    [Revenue Stamp.] “ Merchandise Brokers,
    “121 and .123 Front-st.
    “No responsibility taken unless by special agreement.

      “ Buyer to have benefit of any reduction of duty and to pay any increase of same. Duty clause retained.
    “ S’d, Cabot, Bowles & Co.,

    “ 121 Front St., New York. 15 Kilby St., Boston.
    “ To be of good merchantable quality.
    “ (Accepted) Recknagel & Co.”
    The bought and sale notes were duly exchanged between the parties.
    Before making the contract of sale with the defendants, the brokers had already sold out of the cargoes “ to arrive,” the following quantities. On February 5, 1372, one thousand bales out of theNagpore, or “other vessel or vessels.” On February 8, five hundred bales out of the Nagpore. On February 10, five hundred bales out of the Nagpore or Jaypore, either or both.
    The Jaypore arrived in the port of New York on June 19. She had on board, shipped on the plaintiffs’ account, four thousand three hundred and seventy-two bales, an amount more than sufficient to satisfy the sales made to others in any event deliverable out of her cargo, before the contract with defendants was made, as well as the contract with the defendants.
    The Nagpore, with two thousand bales, shipped on plaintiffs’ account, did not arrive until June 26.
    On the day of the arrival of the Jaypore, the brokers called on the defendants, and advised them of the arrival of that vessel, and asked whether they wished the butts put in bond. They replied they did.

    The brokers then added that they supposed all the other parties who had butts on the vessel, would have them put in bond, and they would put the whole in bond. The testimony of one of the brokers was to the effect, that the defendants wished the butts put in bond to obtain the advantage of the reduction of duties on such articles which was to take effect under an act of congress, on the August 1, 1872. He testified “a bill had been passed by congress taking off the duty from jute butts, to go into effect, I think, August, 1,
    “ Q. He wished them put in bond and avail himself of that ?
    “A. Yes, sir ; I informed him of the arrival of the vessel.
    “ Q. What then took place ?
    “ A. The new orders were given on the ship for the-goods.”
    On June 21, the brokers sent to the defendants an. order as follows:
    “New York, June 21, 1872.
    “ Please deliver to Messrs. Recknagel & Co., or order,, two thousand bales of jute butts, marked, viz., 1,000 bales, S. C. &Co., 1,000 bales S. Ex. ship Jaypore, after-being verified by Messrs. Yoorhees & Hegeman.
    “ And oblige,
    “ E. & C. Stokes,
    “by Cabot, Bowles & Co.,
    6 ‘ Agents.

    “ To clerk of ship Jaypore, Erie Basin.”
    And on the 22nd, a new order was delivered to-the defendants, as follows:
    “New York, June 22, 1872.
    “Please deliver to Messrs. Recknagel & Co.’s order two thousand bales jute butts, marked, viz.: 1,500' 6. C. &. Co., 500 bales, W. Ex. ship Jaypore, after-being verified by Messrs. Yoorhees & Hegeman,
    “ And oblige,
    “E. & C. Stokes,
    “ by Cabot, Bowles & Co., '■‘•Agents.

    “To clerk ship Jaypore, Erie Basin.”
    The evidence being, that the last order was sent to-take the place of the first, and was necessitated through a misdescription of marks in the first order. The difference appears in the order.

      The order of the 32nd was delivered to the defendants by the brokers, in person, who informed the defendants of the error made in the first order in respect to numbers. The defendants inquired whether the bales were of the same weight. The brokers replying that they could not tell as they had not the invoices, the defendants answered that all they cared about was the question of weight. The defendants were informed verbally, as well as by the orders themselves, that these two thousand bales were out of the Jaypore, to which they made no objection.
    The butts were put in bond by the brokers, in the stores of Woodruff & Robinson, Commercial Wharf, Atlantic Dock, and receipts were issued for the same, as follows:
    “No. 5459.
    “Brooklyn, June 26,1872.
    “ Received in store No. 5, Erie Basin, from Messrs. Recknagel & Co., Ex. Jaypore, fifteen hundred bales jute butts on storage, subject to the order of themselves, on payment of the charges accrued thereon, and in accordance with the marginal note hereto annexed.
    “ Woodruff & Robinson,
    “ Offices at the stores and
    “No. 14 Coenties-slip, New York.”
    “1,500 bales of which, some with ropes broken. Rate, 5 cents per bale, storage per month, and 6 cents per bale, labor.
    ‘ ‘ The annexed receipt may be transferred by indorsement (unless the words “not negotiable” shall be written or stamped on the face thereof), and any person to whom the same may be so transferred, will be deemed and taken to be the owner of the property therein specified, and no property can be delivered except on the surrender and cancellation thereof. Tide §§ 6 and 8, of the act to prevent, &c. Not negotiable.”
    A similar receipt was taken from Woodruff &
      Robinson, for five hundred bales from the same vessel, as received from Messrs. Recknagel & Co., on June, 26.
    The invoice and weigher’s returns of the butts were-sent to defendants on J uly 8.
    The invoice showed the weight of the bales to be eight hundred and ten thousand five hundred and sixteen pounds, and the price of the same in gold to be at
    3-fg....................................... $27,861 48-

      “Less estimated duty”............ 2,148 00»
    $25,713 48
    After the butts had been placed in bond, and the orders, invoices and returns of weight delivered to the-defendants, the defendants first interposed any objection. They first claimed that if there were any-damaged bales on board the Jaypore, they were entitled to have them discounted from the amount. This was conceded, but no damaged bales were found in the-cargo.
    Afterwards the defendants claimed that if there were-any damaged butts on the ISTagpore, they were entitled to an allowance for those also. .
    This claim was conceded, but on the discharge of that vessel no damaged bales were found, and the bill was presented to the defendants the second time. In an interview about July 1, but after the goods had oeen entered and placed in bond, defendants stated to the brokers that “on the whole, they did not-know that they were bound to take all the goods ; that they had been informed by some one else that a portion of the goods were entered by another party,, and did not belong to E. & C. Stokes.”
    The evidence showed that the butts were merchantable, and of a superior quality.
    Also, that they were imported for the account of the-plaintiffs, and were under their sole control. They had the bills of lading and invoices. Findlay & Schlichterhad furnished credits in Calcutta to enable plaintiffs to pay for a portion of the butts. Findlay & Schlichter and plaintiffs often exchanged credits, and aided each other in the importation of merchandise. There is no evidence that any of the butts for the price of which this action is brought were “entered” in the names of any person other than than .the plaintiffs.
    On July 18, the brokers wrote the defendants a letter in these words :
    “Hew York, July 18, 1872.
    “ Messrs. Recknagel & Co.
    “ Dear Sirs.—We have at your request conceded the right you had under your contract to the advantage of discounting the damaged bales, if there were any on “the invoice of 4,000 bales,” from your purchase of two thousand by vessel or vessels. The whole quantity shipped has been discharged in good order. Hot a damaged bale in either ship, and we inclose the bills, weigher’s returns and storage receipts. Will you kindly verify this statement of facts, and relieve us of the custody of these papers \ We have complied, we think, with all the conditions you have contended for.
    “Very respectfully,
    “ Cabot, Bowles & Co.,
    “Agents for E. & C. Stokes.”
    See said letter, 61. To this the defendants made the following reply:
    “ Memorandum.”
    “ From Recknagel & Co., Office 46 Cedar-st.
    “Hew York, July 18, 1872.
    “Dear Sirs.—We return the papers relating to the jute butts, which we decline to accept for reasons stated before. We are willing to take 879 bales you had on board the Jaypore, over and above the 2,000 bales first sold. “ Yours respectfully,
    “R. & Co.
    “Messrs. Cabot, Bowles & Co.”

      About July 23 or 24, defendants, in a conversation with the brokers, said that if there was any legal way to get out of the contract, they meant to take advantage of it, as there was a good deal of money to be lost by it. They afterwards stated to the plaintiff "that they thought there was a doubt whether they were bound legally .to take the butts, and they did not mean to take them if they could help it.
    The action is brought to recover the contract price of the two thousand bales of butts. The plaintiffs, by their complaint, allege a due and sufficient tender of the .goods, and a fulfillment on their part of all the conditions of the sale, and a refusal by the defendants to take and pay for the butts or any part thereof.
    The answer of the defendants denies a sufficient tender by the plaintiffs, and other allegations in the complaint, except the contract of sale which they admit.
    On the trial before one of the judges of this court and a jury, the above facts substantially appeared in evidence.
    At the close of the plaintiffs’ testimony, the counsel ior the defendants moved, to dismiss the complaint “ on the ground that the parties plaintiffs have not put themselves in such a position as that they can enforce the contract against the defendants.”
    Plaintiffs’ counsel urged that the contract was on its face distributive, because it contemplated the delivery of butts from two vessels, also, that there was a waiver of the condition of the contract as to tender.
    The court held “ that the contract was entire and indivisible, and granted the motion to dismiss the complaint.
    The plaintiffs’ counsel excepted, and from the judgment entered upon the dismissal of the complaint, this appeal is taken.

      Steele & Boyd, and Dennis McMahon, of counsel for appellants,
    among other things, urged;—I. Under the circumstances surrounding the putting the goods in bonded warehouses, and the tender of the warehouse receipts and weigher’s return and bill of items, together with order on the ship for the goods, the delivery was complete (Hayden v. De Mets, 34 Sup'r Ct. 344 ; Glen v. Whitaker, 51 Barb. 451 ; Stanton v. Small, 3 Sandf. 230 ; Story on Sales, 311; Wilkes v. Ferris, 5 Johns. 335; Western T. Co. v. Marshall, 4 Abb. Ct. App. Dec. ; Hawkins v. Baker, 46 N. Y. 666; Dunham v. Mann, 4 Selden, 508; Bates v. Conklin, 10 Wend. 389 ; Dunham v. Pettee, 1 Daly, 112; Hankins v. Baker, 46 N. Y. 666; People v. Haynes, 14 Wend. 546).
    II. Ho objection to the tender was made by defendants to the plaintiffs on the ground that the goods themselves had not been actually tendered, but the objections to receive the goods were put on other grounds. Ho objection that the duty was not paid, was made by the defense; on the contrary, the plaintiffs showed that the. defense requested the goods put in bond, so they might avail themselves of the taking off of the duty which was expected on August 1, then proximo. If the objection had been made then, the plaintiffs would have paid the duty preliminarily, and made the tender.
    HI. The gounds on which the court granted the dismissal were untenable, (a) The contract on its face is ..distributive, because it contemplates deliveries from .two vessels. These deliveries by the contract are contemplated to be distinct.

    IV. The defendants have waived strict performance -of a delivery out of both vessels, by their acts and declarations, and the delivery of the two thousand bales -out of the Jaypore is good. “ Ho consideration is necessary to give validity to a waiver” (Shelden v. Horton, 43 N. Y. 93). Parties have a perfect right, orally or by acts, to alter or to waive any of the terms of an original written agreement (Van Buskirk v. Stow, 42 Barb. 10 ; Moses v. Bierling, 31 N. Y. 462). If the refusal to pay the loss is put upon grounds other than the insufficiency of the notice or proofs furnished, the insurers will be held to have waived objections of that character (9 How. Pr. 390; 16 Wend. 385; 3 Comst. 122 ; 6 Cush. 342, 40 ; 25 Ill. 466). The defendants have done such acts, and they are: (1) The acceptance and retention of the order of delivery of two thousand bales of these butts. The remark, also, that all they cared about was the weight of the bales. (2) The order by Mr. Recknagel to Cabot to put the two thousand bales, in bonded warehouses, which was done in defendants’ name, and the receipts given to him (Bradly v. Wheeler, 44 N. Y. 495; Dunham v. Pettee, 1 Daly, 112). (3), The defendant Recknagel, when the invoice was presented to him, put at first his objection on the ground, that the damaged bales on the Jaypore were not deducted. Then, secondly, that the damaged bales on the ifagpore were not deducted. Thep, when none were shown, he put his objection on the ground that Mr. Stokes did not own the bales. It was not until July 18, that he put his objections on the ground that the two thousand bales were not the balance on the Nagpore as well as Jaypore. In the meantime, the plaintiffs had sold and delivered all on the Nagpore. (4) The letter of defendants refusing to accept the jute butts for the above three reasons, and saying that they were willing to take eight hundred and seventy-nine bales on the Jaypore, over and above the two thousand already delivered. "
    V. A request was made by the plaintiffs’ counsel to have the court allow the case to go to the jury on the question whether the defendants did not waive strict performance of the contract; (1) as to the question of ■delivery out of one vessel, instead of out of both vessels ; (2) whether they did not do so upon the question of payment of duty ; also on the question whether the plaintiffs were not entitled to recover for eight hundred and seventy-nine bales mentioned in the defendants’ letter of July 19; also that the case be generally submitted to the jury; should have been allowed, and the exception to the court’s refusal to do so is good (Kimberley v. Patchin, 19 N. Y. 330). As to whether there has been an acceptance of goods sold, is always a question of fact (Corning v. Colt, 5 Wend. 253; Vanderbilt v. Eagle Iron Works, 25 Id. 665; Gray v. Davis, 10 N. Y. 285).

      Charles M. Da Costa, and T. P. Chapman, of counsel for respondents,
    among other things, urged I. The contract was entire and indivisible, because, (<z) It was not a sale, but an executory contract of sale; and it is uniformly held that such contracts are entire (Reimers v. Ridner, 2 Robt. 11; Matthews v. Hobby, 48 Barb. 167; Kein v. Tupper, 52 N. Y. 550), on appeal from this court (33 N. Y. Sup'r Ct. 465). Until, therefore, both vessels had arrived and discharged, it was impossible to determine how many of the said lot of four thousand bales might be damaged, and, therefore, how many Becknagel & Co., would be obliged to accept as constituting the balance of the lot, of four thousand, after the two thousand previously sold had been delivered.
    II. The contract is, strictissimi juris; and, in such a contract, the vendor must perform all its conditions upon his part, if he would compel performance by the vendee (Cases supra; Nelson v. O. P. Elevating Co., Ct. of App. 10 Albany Law Journal, 153 ; Cases supra, especially 52 N. Y. 550, and 10 Alb. L. J. 153; Crane v. Knubel, 34 N. Y. Sup’r Ct. 443, 445 ; Sherman v. Mayor of New York, 1 N. Y. 316; Pike v. Butler, 4 Id. 362; Norton v. Woodruff, 2 Id. 153; Oakley v. Morton, 11 Id. 25; Smith v.
      Meyers, Law R. 5 Q. B. 420, 433 ; affirmed on appeal by the Exchequer Chamber, 7 Q. B. 139, 140, et. seq).

    III. Plaintiffs did not comply with all such conditions precedent. (1) Until both vessels had arrived and fully discharged—that is, until July 9—no valid tender could be made, because—(a) “The balance of the 4,000 bales, less the damaged bales,” could not be ascertained ; that is, after the two thousand bales which had been previously sold had been delivered, the number of perfect bales remaining, and which alone Becknagel & Co., were obliged to accept, could not until then be determined. (5) The contract provides for the delivery and acceptance only on the arrival and discharge of both vessels. (2) The delivery of the storage receipts, weigher’s returns, and the invoice or bill was not a sufficient tender, because, (a) The duty had not been paid. (6) The goods had been in store since June 26, and the storage charges had not been paid.
    IV. The defendants did not waive a strict performance of these conditions precedent. (1) The first time, so far as it appears in evidence, that the defendants discovered that the Nagpore had not yet fully discharged, the objection was instantly raised that the contract was entire, and that there could be no delivery until there had been an opportunity to determine the exact number of bales which the defendants must accept, that is, until the complete discharge of both vessels. (2) The plaintiffs contend, however, that on the arrival of the Jaypore, the defendants ordered the goods to be put in bond. The goods were put in bond in accordance with those instructions, and the bill or invoice, as rendered, deducted the amount of the duty. And the objection that the duty is unpaid, can not be interposed, since such was the result of the defendants’ instructions, (a) The defendants having specified certain objections to the earlier attempted tenders, waived and were debarred from raising all other objections, however valid, to subsequent offers to deliver. To the first ground it is a sufficient answer that the fact is not as alleged. The duty, as estimated in the bill, and deducted, is incorrect. The number of tons is greater, by more than three, than therein expressed ; and the amount to be paid by the defendants larger, by over twenty dollars, than the plaintiffs had a right to demand. The second ground is untrue in fact, because the objections specified were not all special. Before July 1, the defendants interposed the general objection that they “did not think they were bound to take all the goods tendered.” It is unsound as a legal proposition (Page v. McDonnell, 66 How. Pr. 299 ; Nelson v. O. P. Elevating Co., 10 Alb. L. J. 153). All the cases which may be relied upon as seeming to hold the reverse of this proposition establish this point merely, that if, when a tender is made, an objection is interposed which is invalid, and no valid objection is stated at the time, or if the vendee declines to fulfill his contract for some other reason without objecting to the tender, the tender is sufficient (Hayden v. De Mets, 53 N. Y. 426). If, then, the mere failure to specify every existing objection on the occasions of the former tenders has not estopped the defendants from relying upon them now, the plaintiffs have not shown a waiver of the payment of the warehouse charges. If they say that the defendants ordered the goods in bond, and therefore, undertook to pay the expenses of bonding them, we answer, they had no right to impose upon the defendants the storage expenses from June 26, the day they were bonded, when they could not have been delivered, pursuant to the contract, until July 9, the day the Nagpore finished discharging. If the plaintiffs say that the defendants ordered the goods in bond, and, therefore, authorized the amount of duty to be deducted from the bill, instead of being paid, we answer, if that be so, authority was given them to deduct the exact and full amount of duty only, and that the plaintiffs did not comply with that authority, since they failed to deduct the amount of duty by more than twenty dollars.
   By the Court.—Vah Vorst, J.

The contract in this case was executory, and, under the evidence, the question arises whether it became completely executed on the part of the vendors, so as to enable them to maintain an action for the price of the goods agreed to be sold and delivered to the defendants.

What was sold by the contract of February 10,1872, was the balance of the jute butts shipped for the account of the plaintiffs, the vendors, per ships Nagpore and Jaypore, from Calcutta, not exceeding two thousand bales, and less the damaged bales out of the lot of four thousand. The sale was intended to cover the lot purchased for shipment by these vessels, as advised by cable. The terms were three and seven-sixteenth cents per pound actual gross weight, as landed alongside ship in New York or Brooklyn, gold; cash in thirty days from average delivery from each vessel; duty paid. The buyer was to have the benefit of'any reduction of duty, and to pay any increase of same. The merchandise was to be of good merchantable quality. Under this contract the vendees could not have been obliged to accept butts shipped for the account of others than the plaintiffs (Hayward v. Scongall, 2 Camp. 56; Yernede v. Weber, 1 Hurl. & N. 311). Nor were the vendees obliged to take, in any event, more than two thousand bales, and were entitled to have deducted from that amount the damaged bales out of the entire lot shipped for plaintiffs’ account on the two vessels. The entire lot shipped was believed to be four thousand bales on the two vesséls. Nor could the plaintiffs well insist, that the defendants should receive any butts under the contract, other than those shipped on the vessels named—and those of a good merchantable quality, upon which the duty was paid. These are severally substantial parts of the contract, and as far as they act upon and obligate the plaintiffs, are conditions precedent, to be performed by them in addition to the making of a proper delivery or tender, before they could successfully maintain an action for the price of the merchandise in question. In this view the contract is entire. The principles out of which the above statements arise are elementary.

All the conditions precedent to be performed by the plaintiffs should be met and observed by them, before they could enforce by action the contract against, the defendants (Smith v. Brady, 17 N. Y. 173 ; Guidet v. Mayor of New York, 36 Sup'r Ct. [4 J. & S.] 557).

But the performance of conditions precedent may be excused on proper grounds, or may be waived, if there be in other respects a faithful observance of the contract by the contracting party (Moses v. Bierling, 31 N. Y. 464; Johnson v Oppenheimer, 55 N. Y. 291). The butts for the price of which this action is brought, as the evidence discloses, were imported from Calcutta for the account of the plaintiffs, who were the owners, and entitled to the control and disposal of the same.

The fact that some of the bales had upon them the mark “ W,” and that Finlay & Schlicter had advanced, in Calcutta, funds or credits to enable plaintiffs to pay' for them, does not affect the principal fact, that they were imported for plaintiffs’ account.

These butts were shipped upon, and were taken for delivery from the Jaypore, one of the vessels named in the contract, and were a portion of those purchased for shipment, and shipped on the two vessels for plaintiffs’ account.

We do not. think it incumbent, under the evidence, to construe the contract, so as to determine whether or not the defendants could have properly insisted that no delivery or 'tender could be made under the contract until both vessels had arrived, and the damaged bales,. if any, should have been separated from the entire lot of both shipments. But it is to be observed that the-cargo of the Nagpore consisted of two thousand bales, only, and that the two thousand bales previously sold to. other parties, might, by the terms of those sales,' all be' taken .from the cargo of that vessel, which would exhaust it completely. We are, however, of opinion that the parties have themselves, by their words and acts, put a construction upon the contract in question in this, regard, and to the effect that the contract with the defendants might be satisfied out of the cargo of the Jay-pore exclusively.

The Jay pore arrived in New York on June 19. TheNagpore did not arrive until the 26th of .the same month.

On the day of the arrival of the Jay pore, the defendants were advised of the fact by the brokers who had effected the sale.

She had on board upwards of four thousand sound bales. In any event a quantity more than sufficient to> satisfy the number called for by the defendants’ contract.

When advised of the arrival of this vessel, defendants stated that they wished their bales put in bond.

On June 22, orders in writing were given to the defendants for the delivery to them of two thousand bales out of the Jay pore. In addition to the order in writing that these two thousand bales were to come from the Jay pore, defendants were verbally informed of the same fact, and no objection was made to a delivery of the entire quantity from that vessel.

If the contract was entire, so that the same could be legally satisfied only out of the cargoes of both vessels, although one contained a sufficient number to answer completely its demands, yet the parties could make it divisible by their consent or acts.

Where a. contract for the delivery of two boatloads of wheat was entire in form, it was made divisible in its execution by the concurrence of the parties (Winne v. McDonald, 39 N. Y. 333; Tipton v. Feitner, 20 Id. 423).

We are of opinion that the evidence is sufficient to-establish the concurrence of the parties after the Jay-pore arrived, that the two thousand bales called for by the contract should be taken from her cargo exclusively.

The evidence also shows that those bales were-merchantable, and of a superior quality, and that the examination made to ascertain the quality, was sufficient to establish these facts.

The above considerations all bear upon the question &s to whether there has been a sufficient delivery or tender of the merchandise under the contract, to which we will more specifically advert.

There was no specific place in the city of New York, designated for the delivery of the bales, unless it be by the words “ three and seven-sixteenths cents per pound,, actual gross weight, as landed alongside in New York or Brooklyn.”

But even though a specific place “ alongside" was designated, the parties could agree that the merchandise might be delivered and received at another place. The order of J une 22 would have enabled the defendants to have taken the merchandise from alongside the ship, but not without the payment of the duties after-the goods had been weighed.

Such order, without an agreement in respect to-duties, other than the terms of the written contract, would not constitute a good delivery.

But the plaintiffs do not rely on this order alone.

The evidence is undisputed that the defendants said to the brokers, when advised of the arrival of the Jay-pore, that they wished their butts put in bond. They wished such disposition made in order to obtain the-advantage of the reduction of duties, as provided for in the contract, which was to take effect under the act of congress, on August 1.

This was a direction from the defendants to the brokers to put the two thousand bales from the Jaypore in bond for them, and was also a waiver of the actual payment of the duties by the plaintiffs, as a condition precedent to their right to demand the payment for the merchandise, after the same should have been placed in bond, in pursuance of such directions. For the sole ■object of putting the bales in bond was to give the defendants the advantage of the reduction of duties, which could be effectually realized only by postponing their payment until after August 1.

In the meantime, by deducting from the price of the merchandise the duties existing at the time of the placing the same in bond, the plaintiffs gave the defendants the benefit of such reduction, as after August 1, if not removed from bond before, the defendants would be obliged to pay duties only according to the reduced scale. The weigher’s returns informed defendants of the weight of the bales.

The store receipts passed the property to the defendants. These documents, with an invoice or bill with duties deducted, were delivered to the defendants, and the property was placed completely at their disposal. This, we think, under the evidence above adverted to, was a sufficient tender and delivery (Hayden v. De Mets, 34 Super. Ct. 344; S. C., 53 N. Y. 426; Story on Sales, § 311; Benjamin on Sales, 558; Dunham v. Pettee, 4 Seld. 508).

The evidence shows that the defendants at no time objected to the delivery of the goods in bond. By their letter of July 18, in which they return the papers sent to them by the brokers, they say that they decline to accept for the “reasons stated before.” But express a willingness to take eight hundred and seventy-nine bales out of the lot from the Jaypore.

Now, the only objection which had been at any time before made by the defendants, and those were made after the merchandise had been placed in bond by their directions, were,—1. That any damaged bales on the Jay-pore should be deducted from the two thousand bales. This was yielded, and the objection was removed. 3. That any damaged bales on the Nagpore should be deducted, and this point was also conceded. But as there were no damaged bales, there were no deductions to be made. Their last objection grew out of information they professed to have received, that a portion of the two thousand bales from the Jaypore had been entered by another party and did not belong to the plaintiffs. It was on the basis of this information, without ■doubt, and on the assumption that of the entire shipment on the Jaypore of four thousand three hundred and seventy-two bales, one thousand four hundred and ninety-three had been imported by Findley & Schlicter, or on their account, and that the remaining number, eight hundred and seventy-nine bales only, bad been imported on plaintiffs’ account that the offer of the defendants to take said last mentioned number was made.

Now, the evidence does not show that any portion of the two thousand bales had been entered at the Custom House by Findley & Schlicter, but it does show that the whole number of bales in question, and for the recovery of the price of which this action is brought, were shipped on account of the plaintiffs, and were owned by them.

What the defendants intended by the statement made by them to the plaintiffs as late as July 33, that they thought there was a doubt whether they were bound legally to take the bales, is not clear, unless they referred to the assumption that all these bales had not been Imported for plaintiffs’ account, which was incorrect.

It was too late to object that the two thousand bales, "had. been taken from the cargo of the Jaypore exclusively. For, in making such appropriation, the plaintiffs acted with the defendants’ knowledge and concurrence, and have delivered to others after such appropriation, the butts from the Nagpore. It was too late to obj ect that the merchandise had been placed in bond, for in doing, so, the plaintiffs had but followed the directions given, by the defendants, and by placing the butts in bond had appropriated them to the execution of the contract on their part, and had placed them under the exclusive control of the defendants, and apparently beyond their own power to recall, or otherwise dispose of them.. As far as the duties were concerned their “estimated” amount was deducted from the price of the merchandise, as appears by the bill or invoice rendered to the defendants. In respect to the charges for storage to-which the merchandise was subject, the plaintiffs are not responsible for the charges, as they grew out of the-putting the merchandise in bond, and commenced only when the same was so disposed of.

If put in bond by the defendants’ orders, they, and. not the plaintiffs, are liable for these charges.

For all that the case discloses, the objection that the-amount of duties proposed to be deducted was twenty dollars less than the actual duty to which they were= subject, is now first taken.

It, certainly, was not taken in the defendants’ letter, of July 18, returning the papers. The reasons which influenced the defendants in declining to accept the butts, as they alleged in their letter, had been “ stated before.” No such reason had been assigned at. any time. ,

These objections related to other matters, to which allusion has already been made.

The amount deducted from the price of the butts for duties in the bill rendered,was two thousand one hundred and. forty-eight dollars. It was statedin the bill that this was the “ estimated duty ” on three hundred and fifty-eight tons. And in the letter of the brokers inclosing this bill, the defendants were asked to “ verify the statements.” The error, if any, as we understood it on the argument, was that the bill rendered stated the number of pounds’ weight incorrectly, there being a mistake of some ten pounds’ weight in the addition or extension. But as the weigher’s returns, accompanying the papers, stated the amount correctly, the mistake was apparent. How the other error, if any, making up this amount of "twenty dollars, arose, is not pointed out, nor is it stated distinctly in what it consists. But it is immaterial.

The objections to the tender having been placed on other grounds, the defendants should not now be .allowed to set up to defeat the plaintiffs’ action, if otherwise meritorious, an undisclosed objection of this nature, involving an amount, trifling, compared with the sum in controversy, and which could have been instantly corrected by the papers furnished to the defendants, which contained accurate information in •detail and which they were asked “to verify.”

In Hayden v. De Mets (supra), there was a slight deficiency in the quantity of copper tendered, but the tender was upheld on the ground that no objection had been made on account of the deficiency, and in that •case there was an offer only to pay storage and charges.

The ease seems to indicate a desire on the plaintiffs’ part fairly to fulfill the contract according to its terms, and to obviate the defendants’ objections, which, as made, were confined to two subjects, damaged butts from the two vessels, and a supposed importation of a portion of the merchandise for the account of others than the plaintiffs. The objections on examination turn out to be groundless.

The evidence also shows that the defendants had •come to the conclusion after the goods were bonded, that the contract if carried out, would entail upon them loss, and that they did not mean to take the butts if they could help it. They so informed the plaintiffs in their last interview with them.

The defendants have a clear right to insist upon every proper objection to the manner in which the plaintiffs have performed the contract on their part, and to the sufficiency of the tender or delivery.

But the objections, to be available, should rest on valid legal grounds. The defense is technical.

We are of opinion that the evidence makes out a. case upon which the plaintiffs were at least entitled, when they rested, to go to the jury. That the question whether or not the defendants had waived compliance-by plaintiffs with the provision of the contract, requiring the payment of the duty, should have been submitted to the jury as a question of fact, and that the-direction of the judge, dismissing the complaint, was-erroneous.

In this view it is not necessary to examine and pass-upon the various exceptions taken to the exclusion off evidence offered by plaintiffs.

We are of opinion, however, that the exceptions to the exclusion of the question, as to whether or not “at the time the defendants directed the brokers to put the goods in bond, anything was said about duty,” was. well taken. We think, also, that the papers and documents received by the judge as evidence, but limited by him as to their effect, are evidence upon the subject off tender and its sufficiency, and their contents, so far as. they go, available for that purpose (Dustan v. McAndrew, 10 Bosw. 130).

The judgment should be reversed, and a new trial; ordered, with costs to the appellants to abide the event..

Fkeedmak, J., concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    JOHN D. HOSSACK, Plaintiff and Respondent, v. THORWALD HEYERDAHL and Others, Defendants and Appellants.
    Before Monell, Ch. J., Sedgwick and Speir, JJ.

      Decided December 9, 1874.
    I. REFERENCE.—ACCOUNT.
    1. What is.—Ex pabte account.

      a. Items on one side only constitute an account within the meaning of the provisions of the Code relating to references.
    1. It is not necessary that the account should be a statement of dealings having a recognized mutual or reciprocal character.
    2. Finding below.—Effect of, on question of LONG ACCOUNT.

      a. It is conclusive on the question of fact as to whether the account to be taken is long or not.
    The complaint in this action was as follows:
    The amended complaint of the plaintiff herein by Meade & Rockwell, his attorneys, respectfully shows to-this court:
    First.—That heretofore the defendants, Thorwald Heyerdahl, John GL Sibbald, Greorge B. Clachar, and David L. Schonberg, were doing business as copartners, at the city of New York, under the firm name and style of Heyerdahl, Schonberg & Company.
    Second.—That from March 13, 1874, to and including May 19, 1874, at New York city, the plaintiff rendered and performed for and at the request of said defendants, as such copartners, certain work, labor, and services as an accountant, to wit, in and about the examination, auditing, and settlement of accounts and books of account on behalf of said firm, which said work, labor, and services were reasonably worth the gum of nine hundred and eighty dollars and twenty-five cents, and said defendants did promise and agree to pay the same. That no part of said sum has been paid, except the sum of one hundred and sixty dollars, and that the sum of eight hundred and twenty dollars •and twenty-five cents is now due, owing and unpaid from defendants to plaintiff, and that the payment thereof was duly demanded by said plaintiff, and payment thereof refused; wherefore 'plaintiff demands judgment against the said defendants for the sum of eight hundred and twenty dollars and twenty-five cents, with interest thereon from May 20, 1874, besides the costs of this action.
    The defendants, by their answer, admitted the co-partnership, and the payment of the sum of one hundred and sixty dollars, but denied the other allegations of the complaint.
    The plaintiff moved for a reference on an affidavit made by one of his attorneys in which he swore “that the trial of the aforesaid issue will require the examination of a long account on the side of the plaintiff, consisting of at least fifty items of charges of said plaintiff for said work, labor, and services at various times. That, in the judgment of your deponent, this is a fit action for reference,” and the pleadings and the bill of particulars which was as follows :.

      Messrs. Heyerdahl, Schonberg & Go., Dr. to Johh
    I). Hossack, Public Accountant, 70 Wall-street, N.Y.
    For services rendered in auditing the books of your firm kept in New York, examining and correcting accounts and books sent out by your London house, and making, so far as practicable, a final settlement and the closing entries in the New York books of the affairs of this concern to April 30, 1874:

      The defendants read in opposition an affidavit made by one of them, in which he swore that the trial of the issue would not require the examination of a long account on the side of the plaintiff, consisting of at least fifty items of charges of said plaintiff' for work, labor, and services at various times, and that such trial would not require the examination of such an account or any long account whatever.
    The motion was granted, and an order referring the issues for trial, was made.
    From this order defendants appealed.
    Dunning, Edsal & Hart, of counsel for appellant
    urged ;—I. What is meant by the term “long account,” as used in section 271 of the Code % (a) The history of the legislation upon the subject of references of actions involving the examination of long accounts is. presented in Townsend v. Hendricks (40 How. Pr. 143). (b) From the language of the decisions under these statutes, it would appear that a cause was referable only when the matter in controversy was the account, itself or arose upon it, or where the account was directly involved in the issue (Thomas v. Reab, 6 Wend. 503; Dederick v. Richley, 19 Id. 110; Ronalds v. Mechanics’ National Bank, 37 N. Y. Sup'r Ct. 208). In Brinck v. Republic Fire Ins. Co. (2 N. Y. Supreme Ct. 550), it was said “ That term was simply designed to. include actions involving the examination of accounts arising out of transactions of business or dealings between parties.”
    II. Will the examination of such a long account be required on the trial of this action ? The action does not arise upon an account, nor is an account directly involved in the issue, nor are any of the characteristics of referable accounts to be found in the statement of the plaintiff’s services. An inspection of the so-called “long account” of the plaintiff shows, that while it consists of many items or entries, only the last three entries are fairly matters of account between the parties, viz.: (1) the final debit; (2) the solitary credit, and (3) the balance. It will be seen that the plaintiff has put a fixed valuation of three dollars upon each hour of his employment whatever the kind of service he was then engaged upon, and that his account is substantially for three hundred and twenty-six and three-quarters hours’ work, at the rate of three dollars per hour. It can scarcely be argued seriously that by itemizing the days upon which this work was done, the plaintiff can deprive the defendants of their right to the verdict of a jury as to whether he actually did the work claimed to have been done, and if so, as to its value. Again, it nowhere appears that there was more than one employment, or that there was an employment in separate matters of service which would constitute legally distinct items of charge (Secor v. Sturges, 16 N. Y. and cases cited. Opinion, MS. by Bobir sor, J., recently delivered at special term, Common Pleas, in case of Martin v. Grould).

      Meade & Rockwell, attorneys, and of counsel for respondent,
    urged ;—I. The plaintiff is required to prove each and every day’s service charged as in bill of items, the time occupied upon each day, and the value of every day’s services, and these questions of fact are fully put in issue by the answer.
    II. The Justice at special term has settled the question as to whether a long account was involved and the appellate court will not review his decision (Bachelor v. Albany City Insurance Co. 37 H. P. R. 399, and cases there cited).
   By the Court.—Sedgwick, J.

This is an appeal from an order directing a reference to hear and determine the issues. The principal point of the appellants is that the examination of a long account, in the sense o£ the Code, will not be required on the trial, in the necessity of the plaintiff to show many instances of service, on several days, and for different numbers of hours. However correct the proposition of the learned counsel for the appellant may be, that an account as known by the law is not an ex parte enumeration of items, but a statement of dealings having a recognized mutual or reciprocal character, yet. the practice is not to apply their strict definition to the words of the Code, but to consider that the Code intended that whatever presents the same kind of difficulties as a strict account for the action of a jury, should be sent to a referee.

The finding of the judge below that the account to be taken was long is conclusive on the question of fact involved.

The order appealed from should be affirmed, with costs.

Monell, Ch. J., and Speir, J., concurred.


text:
    THOMAS HARRISON, et al., Plaintiffs and Respondents, v. GEORGE W. KIRKE, et al., Defendants and Appellants.
    t. EVIDENCE.
    1. Words in a letter.—Parol evidence as to meaning.
    а. The writer of a letter (not being a party to the action), can not be permitted to testify as to the sense in which he used a word occurring therein.
    б. The meaning the writer intended to express is immaterial, except as the letters themselves, in view of the surrounding circumstances known to both sides, disclose that intention.

      Before Monell, Ch. J., Sedgwick and Speie, JJ.

      Decided December 9, 1874.
    8. Entries in books op account.—Explanation.

      a. When a defendant on plaintiff’s examination, has stated that he has received certain payments from plaintiff (e. g. commissions), and he is asked to point out in his books any entries as to commissions, and he answers that there are no entries of commisions as such,
    IT IS ERROR
    to overrule a question put to him by his own counsel, asking him to look at plaintiff’s account in defendant’s books, and explain the way in which the account was kept, and how the commissions paid by the plaintiff appeared therein.
    Appeal from judgment entered on report of referee.

      Mr. John P. Reed, Jr., for respondents.

      Mr. Arthur W. Knapp, for appellants.
   By the Court.—Sedgwick, J.

The action was for goods sold and delivered. The defense was that the goods were not sold but consigned for sale. The issue was to be determined by the conclusion drawn from the correspondence between the parties. It is strange, but it is true, that the more than forty letters that passed between the plaintiffs and defendants are- not explicit -as to whether the goods were sold absolutely or consigned. The counsel for the appellants made a resolute and not unsubstantial argument as to the nature of the contract to be inferred from the terms of the letters, but the referee has come to a different conclusion. There is a great deal to support that, and we would have to hold his report on that point, final, if no error was committed on the trial as to the rejection or admission of evidence which improperly affected or tended to affect the mind of the referee in passing upon the contents of the letters.

I think, however, that there was a material error in allowing this question, “Does the word agent in the letters of plaintiffs, pat in evidence, refer to defendants as parties who were to sell the goods of the plaintiff, as agents, or was it applied to them as agents who had been allotted a territory in which to sell goods, or rather Arzurene, sold by plaintiffs to them?” to be answered under the specific objection that it was incompetent to take the witness’s testimony on that point, in place of the legal conclusion to be drawn by the referee from the letters themselves. The part of the letters referred to were very material. It characterized the defendants as the plaintiffs’ agents. The witness was the writer of the letters. The construction of the letters was solely for the referee, but if the witness is allowed to construe an important part of the letters, the inference is that it had the influence that all testimony admitted is deemed to have. There is implied another error that the meaning the writer intended to express, is material, except as the letters by themselves, in view of the surrounding facts known to both sides, disclose that intention. There is no way of ascertaining the weight that was given to this testimony, and that it did not affect the result. This requires a reversal of the judgment.

There were other questions of a like kind, which it is not important to specify, which were erroneously admitted. It may be expedient to point out another matter, in which appellant may have been injured. The plaintiffs’ counsel asked one of the defendants, when on the stand as a witness, the pertinent inquiry if they had received commissions froto the plaintiffs. The answer was, “Yes.” He was then asked to point out in some of the defendants’ books of account, any entries as to commissions received. The answer was that there were no entries in these books as to those commissions in that way, and that there were no charges in the books for commissions as such. This was, or might have been claimed to be, at least unusual with a person acting for another for a commission, who had received the commission. It called for an explanation. The same witness was then asked on behalf of defendants, to look at the account of plaintiffs in defendants’ books and explain the way in which the account was kept, and how the commissions paid by the plaintiffs appeared in the account, and was further asked in a general way how the commissions paid to the defendants for the sale of plaintiffs’ goods, was shown on the defendants’ books. The reasons for the exclusion of the testimony called for, do not appear. It seems to me material, under the circumstances, for the defendants to show that the amount of commissions appeared on the accounts, although not explicitly stated to be commissions. The fact that the books did not show the amount of commissions as such, may have materially influenced the referee’s mind in coming to the conclusion that the plaintiffs’ goods were not sent to defendants to sell for the plaintiffs on commission.

Of course, we do not undertake to say that the conclusion of the referee was unjust to the defendants ; we can only ascertain if the methods fixed by law to attain justice were used.

The judgment should be reversed, and a new trial granted, with costs to appellant to abide the event, and the order of reference should be vacated.

Monei/l, Ch. J., and Speir, J., concurred.


text:
    CHARLES L. MILES, Plaintiff and Respondent, v. EDWARD E. BROWN and Others, Defendants and Appellants.
    I. ATTACHMENT AGAINST PROPERTY.
    1. Indemnity.—Bond of to sheriff in junior attachment.— Liability of obligors on.
    1. They are liable in trespass de bonis asportites, for the whole value of the goods taken by sheriff, although there was a senior-attachment in the hands of the sheriff at the time provided the sheriff first takes or claims that physical control of the property which is necessary to levy, after the giving of the bond, and so-takes it under the junior as well as the senior attachment.

      This, although the goods were sold under the execution issued on the judgment in the action in which the senior attachment was issued, and nearly the whole of the proceeds-applied to that judgment, the balance only being applied on the execution issued, after the sale, on the judgment in-the action in which the junior attachment was issued.
    2. Levy of attachment.—What not sufficient to constitute.
    1. The service of a copy of the warrant on the person in charge of the goods, and informing him of the character of the papers, without any further steps being taken, does not constitute a levy.
    8. Removal of goods.—Several writs.
    1. Question as to under which the removal took place.

    1. Where the deputy sheriff testifies that he served a warrant of attachment by leaving a copy of the warrant with a person in, charge of the store in which the goods were, and informing: such person of the character of the papers, and afterwards served in the same manner a warrant of attachment subsequently-issued in another action, but took no further steps until after the plaintiff in the -second action had given a bond of indemnity, when he removed the goods under both attachments and afterwards testified that the removal was under the first attachment only,
    HELD,
    that the finding of a referee that the removal was under both, attachments should be sustained.

      Before Monell, Oh. J., Sedgwick and Speir, JJ.

      Decided December 9, 1874.
    H. EVIDENCE.
    1. As to delivery of an instrument.

    When an offer is made as follows : “ Plaintiff’s counsel offers in evidence the indemnity bond signed and executed by all defendants,” and the same was received without objection,
    It can not be objected on appeal that there was no proof of delivery.

      a. The offer is of a bond in fact, and it could not be such without having been delivered. ,
    Appeal from judgment for plaintiff on report of referee.
    The complaint charged the defendants with trespass, in taking and converting personal property belonging to the plaintiff.
    The property in question was taken by the sheriff, under an attachment. The conclusion of the referee— that it belonged to the plaintiff—is not disputed on this appeal. It was testified that the property in August, 1869, the date not being specified, was removed from the store of the plaintiff. The sheriff’s officer gave the testimony which affects the main question on this appeal. He testified that a copy of an attachment issued in an action of Lowell v. F. H. Bufford, against the defendant’s (Bufford’s) property was served on a Mr. Schick, at the third or fourth door of the Sixth-avenue, above Fourteenth-street, on the east side of the avenue ; this was served on July 1, 1869. “I then went to No. 1199 Broadway, and served a copy of the attachment on a lady in that store. This was also served on July I, 1869. On July 3, 1869, I served the attachment in the case, E. E. Brown,” the present defendant Brown against F. H. Bufford, ‘‘on the same parties, and same places” as the attachment in Lowell v. Bufford. The places named in this testimony were occupied by the plaintiff, who had there the goods involved. in this action. The witness further testified : “I left a written copy of the attachment in each case. Part of the goods in the Sixth-avenue store, and all the goods in the Broadway store, were removed by the sheriff under these attachments some time after the service and after a bond of indemnity was given to the sheriff. They were removed by virtue of the attachment of Lowell v. Bufford.”
    The only bond of indemnity that appeared in the case was one given by the present defendant, Brown, as principal, with the other two present defendants as sureties, to the sheriff.
    That bond was made a,nd delivered August 14,1869. It recited the pendency of the action of Brown v. Bufford; that therein an attachmenthad been issued against the property of Bufford and delivered to the sheriff ; that •certain personal property, that appeared to belong to Bufford, was claimed by some other party, and was conditioned to be void “if theabove bounden obligees,” as it is printed in the case—but obligors was intended— “shall well and truly save, keep, and bear harmless, .and indemnify the said James O’Brien, and all and every person and persons, aiding and assisting him in the premises, of and from all harm, let, trouble, damage, &c., that shall or may at anytime arise,. &c., as well for the levying and making sale, under and by virtue of such attachment, of all or any personal property which he or they shall or may judge to belong to ' the said debtor ; or under and by virtue of any execution which may be issued in the said action and levied upon the attached property, as well as in entering any •shop, &c., for the taking of any such personal property,” ■otherwise to be in full force. It appeared, in a general way, that the property had been sold after its removal ■by the sheriff. The answer alleged that the defendant, .Brown, had received from the sheriff under an execution issued in Brown v. Bufford, of the proceeds of a sale of Bufford’s property, made under an execution issued in Lowell v. Bufford, the sum of one hundred and forty-two dollars only. This averment was supported by the evidence, which also showed that the balance of the proceeds had been applied on executions prior to that of Brown v. Bufford.

      Edwin M. Felt, attorney, and of counsel for appellant,
    urged;—I. There is no evidence in the case to show that the sheriff levied on the property of plaintiff, in said action of Brown v. Bufford, or sold the same under such levy; but, on the contrary, the evidence shows that the levy and sale made by said sheriff were so made under and in pursuance of warrants of attachment in other actions against the same defendant, prior in point of time to the attachment issued in the suit of Brown v. Bufford. On defendant’s part, evidence was given which did show that the property in controversy in this action was taken under an attachment issued in the suit of Lowell v. Bufford, to the sheriff July 1, 1889 ; whereas the attachment in the suit of Brown v. Bufford was not issued until July 3, 1869.
    II. The referee erred in finding as matter of fact that the defendants, Beay and Felt, authorized, directed and indemnified the sheriff unlawfully to take away plaintiff’s property. (1) There was no proof of the execution of the bond by said sureties. Nothing to show that it was an original undertaking by defendants. (2) There was no proof that it was ever delivered to the sheriff, and until it was so delivered it was not available to any one for any purpose. The fact that the counsel for defendants on the trial made no objection to its admission has no force if made. There was no admission that it was the defendants’ bond, and defendants having duly excepted to the findings of the referee, can avail themselves of it on this appeal. The court of appeals having held it to be error for the referee to make a finding in insufficient evidence, although no objection was taken at the'trial. It must be conceded that whatever liability the defendants Reay and Pelt incurred in this action, it was simply by their execution of this undertaking as sureties, and as that is their contract we must-look to it to find out what obligation or liability they incurred. It was a personal protection to the sheriff in case he should, under said attachment, suffer loss by taking the property of other parties in executing the-attachment against Bufford’s property. It is not shown that the 1 sheriff has suffered any such loss or damage, that any suit has been commenced against him, or that he has incurred any of the various troubles and obligations against which he was to be indemnified.

      Justin Palmer, attorney, and of counsel for respondent,
    urged I. The report of the referee on his finding of fact cannot be questioned upon the evidence. There being no conflict of evidence as to the wrongful taking by the sheriff, the testimony shows that defendants took the plaintiff’s goods in the manner alleged in the complaint, and converted the proceeds thereof to-their own use. The execution of the bond was conceded upon the trial, and it was put in evidence on the trial without objection. It is too late to raise an objection, on appeal not taken on the trial when the objection, if tenable, could have been obviated by proof on the part of the plaintiff (Lewis v. Russell, 43 N. Y. 251; Buffalo & N. Y. R. R. Co. v. Brainard, 9 N. Y. 100).
    II. It is a general rule that the verdict of a jury is conclusive upon the question of fact submitted to them if there is any evidence to support it (Miller v. Lockwood, 33 N. Y. 393 ; Ward v. Perrin, 54 Barb. 89).
    III. It is also an intendment of law that a verdict, settles in favor of the prevailing party every question of fact litigated upon the trial (Wolf v. Goodhue Fire Ins. Co., 43 Barb. 400; Van Pelt v. Otter, 2 Sweeny, 202). The same authorities apply to a referee’s report.
   By the Court.—Sedgwick, J.

When the defendants delivered the bond of indemnity to the sheriff, they encouraged and impliedly requested him to levy and sell the plaintiff’s property under the attachment in Brown Bufford, which had been issued, or under the execution in that action, which might thereafter be issued, and, as a necessary implication, they also requested or encouraged him to take such steps as are usually taken towards á levy or sale.

The appellants argue that it appears by the evidence that the levy of the attachment in Brown v. Bufford, was made July 3, 1869, before the bond was given; that the removal was made of the goods from the store, not under the attachment in Brown v. Bufford, but in Lovell v. Bufford; that it does not appear that any sale of the plaintiff’s goods was made under the execution in Brown v. Bufford, and that therefore the sheriff committed no trespass by the influence of the bond of indemnity.

Leaving unconsidered the defendant’s liability, if the proof showed that the sheriff, under the bond, took no step towards levying under the attachment, or for the purpose of subjecting the property to the execution, I am of opinion that there were sufficient facts in evidence to support the conclusion of the referee, that the levy of the attachment in Brown v. Bufford, was made upon the plaintiff’s property after the bond was given.

The witness says that the attachment was served July 3, 1869. A referee or jury might be sustained in construing this to mean actual levy, in certain cases. In this case, however, as the testimony showed that the only thing done, was handing a copy of the attachment to the person in charge of plaintiff’s property, the-referee could properly find that no actual levy was made on July 3, 1869. The same is true of the attachment in Lowell «. Brown, served July 1, 1869. There is no-evidence of the sheriff taking or claiming that physical control of the property which is necessary to a levy, until he removed the goods after the bond of indemnity' had been delivered. Other testimony shows that this removal was in August, 1869, and the bond was given August 14,1869. These facts sustain an inference that the sheriff refrained from a levy until the bond was-given, that then he removed the goods, and that having the two attachments, towards which he held the definite duty to levy them if possible, he levied in a legal sense-both at or immediately upon the removal. It is true that the witness, immediately after he had given this-testimony, said that the goods were removed under the attachment in the action by Lowell. The referee was-bound to give due weight to this, but he was equally bound to- give weight to the evidence that the removal was under both attachments, and to decide which statement was entitled to his credence, in view of the corroborations made by the other facts of the case. On this point the referee’s report should be sustained.

The appellant’s counsel claimed the judgment should be reversed, on the ground that there was no proof that the bond of indemnity was ever delivered to the sheriff.. All the printed case contains on this subject is a statement in these words: “Plaintiff’s counsel offers in evidence the indemnity bond signed and executed by all the defendants.” It is argued that this is no proof' of delivery. I take this to be a statement of a fact that occurred on the trial, viz., that the plaintiff offered in evidence what was in deed and not in appearance the defendant’s bond. It could not be a bond without having been delivered. This objection should be disregarded.

I am of opinion that the judgment should be affirmed,, with costs.

Monell, Ch. J., and Speir, J., concurred.


author: By the Court.—Sedgwick, J. Monell, Ch. J. (dissenting).

text:
    THE AMERICAN MEDICINE COMPANY, Plaintiff and Appellant, v. ROBERT KESSLER, Defendant and Respondent.
    I. CONVERSION. —EVIDENCE OF.
    1. What not sufficient.
    A., being the lessee of certain premises in which he had stored.' three thousand five hundred and twenty-four bottles of medicine, in paper boxes, and boxes of other kinds, let the premises, to B. and sold him one thousand of the bottles, and at his-request allowed the balance to remain on the premises. A fire occurred on the premises. An agent of A. testified that a short time after the fire he went to the premises and found that some of the boxes were smoked by the fire, but he could not discover that any of the medicine had been destroyed or injured; that he looked into two or three boxes and saw that bottles of medicine were in them; counted the boxes, and calculated that there were two thousand six hundred and thirty-four bottles of medicine; that he called a few days after, and found none of the medicine there. Another witness testified that he called at defendant’s place of business, and saw defendant, who showed him a large pile of boxes containing medicine; that he asked defendant if he had taken all the medicine that was in B.’s place; that defendant said he had, that he took it. under a mortgage made by B., that the mortgage covered the whole place, fixtures and everything; the witness further testified that he thought the boxes had the appearance of having been smoked or burned a little in a fire, but he could not identify the boxes as having come from B.’s premises, only as defendant said they had.

      Before Monell, Ch. J., Sedgwick and Speie, JJ.

      Decided December 9, 1874.
    insufficient, and that a complaint charging the defendant with wrongfully taking and carrying away the medicine and wrongfully withholding it, was properly dismissed.
    Appeal from a judgment entered on an order dismissing complaint. The facts sufficiently appear in the opinion.

      Messrs. Thayer & Shoudy, of counsel for appellant.

      Mr. Daniel B. Robertson, of counsel for respondent.
   By the Court.—Sedgwick, J.

The following was the plaintiff's case : The plaintiff carried on the business of making medicines, at No. 1378 Broadway, from May, 1870, to March 1, 1871. At that time the company let the street floor of that building to one Smith, and the basement of it to one Zieger. The company was then in possession of three thousand five hundred and twenty-four bottles of medicine, in paper boxes and boxes of other kinds. At that time the company sold one thousand bottles of the medicine to Zieger, to be taken from the paper boxes, and at his request allowed the other two thousand five hundred and twenty-four bottles to remain in the premises. They were all piled up in the cellar of the building. From time to time an agent of the company called at the building and saw these medicines in the cellar. On February 3, 1872, a fire occurred in the premises. A short time before the fire the agent called on Zieger, and told him that the company intended to take out the medicines and divide it among the stockholders. After the fire the agent found that some of the boxes that had held the medicines were smoked by the fire. He could not discover that any of the medicines had been destroyed or injured by the fire. He looked into two or three of the boxes, saw that bottles of medicine were in them, counted the boxes, and calculated that there were two thousand six hundred and thirty-four bottles of medicine. A few days after he called and found none of the medicine- there.

About April 23, 1872, the president of the company, who was a witness on the stand, had an interview with the defendant, at his place of business, in Seventh avenue. The president did not know what quantity of medicine the company had on hand when it stopped business, nor any knowledge of the facts relating thereto, down to his seeing the defendant. He asked the defendant if he had taken any medicine from 1328 Broadway. The defendant said he had. The witness told him that the property belonged to the company, and demanded its return by the defendant. The defendant took him to a place where there was a large pile of boxes containing medicine. The defendant said he had taken that from 1328 Broadway, and under a mortgage which Mr. Zieger bad given him for loaned money. The witness asked the defendant if he had taken all the medicine that was there, and the reply was yes ; and that the mortgage was on all the whole place, fixtures and everything, the witness thought the defendant said. The medicine was in boxes, and the witness thought in wooden boxes. The boxes had the appearance, the witness thought, of having been smoked or burned a little in a fire, as the witness understood the defendant. The witness could not in any way identify the boxes as having come from Ho. 1328 Broadway, only as the defendant said they had.

This being, in substance, the case for the plaintiff, I am of opinion that the court was right in dismissing the. complaint. Indeed, apart from the defendant',s declarations, the facts, which if sufficiently proven, and of sufficient weight, would show the identity of the property-in defendant's possession, with the property of the company, taken as alleged from No. 1328 Broadway, was; slight, vague, almost imponderable, and were shown by witnesses, who, from the face of their testimony, were not certain in their minds as to the existence of the facts. As to the defendant's declarations, there is nothing tending to show that he had taken that part of the medicine in 1328 Broadway which belonged to the plaintiff, excepting that to a question of the witness, whether he, the defendant, had taken all there was in 1328 Broadway, the defendant said he had. One consideration is conclusive to my mind on this point. There is nothing tending to show the time when the defendant took what was in his possession. If it was after the fire, there was nothing tending to show that the goods which the plaintiffs' agent saw, had not been removed in parcels, and that the last parcel taken was all that was left, was all taken by the defendant, and was the property sold by the plaintiff to Zieger.

The judgment should be affirmed with costs.

SPEIR, J., concurred.

Monell, Ch. J. (dissenting).

The action was for the conversion of a quantity of medicine put up in bottles and boxes, and the question on the trial was, the ownership, identity, and conversion of the property. The cOmplaint was dismissed for insufficient evidence on these points.

It was, I think, without contradiction, that in Fébruary, 1871, when the company discontinued business, it was the owner of two thousand five hundred and twenty-four bottles of medicine, put up in boxes. Of the whole number then on hand Kthree thousand. five hundred and twenty-four) they had just previously sold to Zieger one thousand bottles. Zieger succeeded the company in the occupancy of the store, and it was agreed that the whole number (three thousand five hundred and twenty-four bottles) should be put in the cellar, the one thousand bottles sold to Zieger, to be taken out by him, as he should sell them, and the residue (two thousand five hundred and twenty-four bottles) to remain on storage. It was also uncontradicted that after a fire which had occurred there, there was found on the premises two thousand six hundred and thirty-four bottles.

This evidence was sufficient to establish the plaintiffs’ title to all the property found after the fire, except the one thousand bottles sold to Zieger.

I think, also, there was sufficient evidence to go to the jury of the conversion of at least the one thousand six hundred and thirty-four bottles.

When the plaintiffs went to demand the property, the following interview was had according to the testimony given by the president of the plaintiffs’ company :—“ I told the defendant my errand, that I understood that he had a quantity of medicine that had been taken by him, or somebody else, from the premises I have mentioned, 1328 Broadway, and he said “yes,” and I told him in substance that the property belonged to the Medicine Company, and that I was the president, and as president for the company I came there to demand it, and asked him if he would show it to me, and he said he would ; he took me back through the butcher’s shop, up stairs, and in a loft, or a place there, he showed me and my friend who was with me, the boxes it was in ; there was a large quantity of them—a large pile of them; I endeavored, I believe, to count them, but I was unable to do it; I stated to him that the medicine belonged to this company, and he said that he had loaned—[I am stating the substance, I could not tell the words]—he said he had loaned Mr. Zieger some money, and Mr. Zieger had given him a mortgage on it; I told him Mr. Zieger did not own the medicine, and never owned it—had no interest in it at all, not the slightest, and that I must demand it for the company, and that I must bring suit for it if it was not delivered; I asked him if he had taken all the medicine that was there, and he said that he had; he said he had a mortgage on all the whole place, fixtures and everything—I think he said. I have told you the substance of what occurred.”

Another witness testified that he was with the last witness, and that the president, Mr. Culver, asked the defendant, in substance, “if he had any medicine that he had taken from 1328 Broadway—1 think that was the number—and he said he had, and Mr. Culver then asked him if he would allow him to see it, and he said he would, and he took us up in the rear of the butcher’s shop; we went up stairs, in aloft, and there were boxes piled there from eighteen to twenty inches long and a foot in height; he stated that he had taken the property from 1328 Broadway; that he had a mortgage on it, as I understood, and had taken the property there by virtue of that mortgage; Mr. Culver then told him that he was the president of the American Medicine Company, and demanded the return of it to the company, and he refused to give it.”

This evidence, in connection with that which had preceded it, that the plaintiffs were the owners of all the property in the premises 1328 Broadway, except the one thousand bottles sold to Zieger,. was sufficient, I think, to show a conversion.

The defendant admitted that he had taken all the property in the place designated, which, upon the evidence, included some one thousand six hundred and thirty-four bottles of the plaintiffs’ property, and which the defendant refused to deliver.

There was further proof that Zieger had no other property upon the Broadway premises, than the one thousand bottles sold to him by the company, and some store fixtures which are not in controversy in this action, and that a few days after the fire, and after it was found that there were two thousand six hundred and thirty-four bottles remaining, the whole of such remaining property was taken away—and by the defendant.

The defendant did not deny or dispute the taking away of all the property upon the Broadway premises ; and his refusal to deliver was not put upon any ground that placed the taking in issue. He claimed to hold the property under a mortgage from Zieger, and asserted no right or title to it other than such as his mortgage gave him ; and the only defence he can make is, that Zieger was in fact the owner of all the property taken, and had the right to transfer it by way of security for his debt.

As the case stood at the close of the plaintiffs’ evidence, there was, I think, sufficient proof of ownership in the plaintiffs, at least, of a part of the property, and of conversion thereof by the defendant, to put the latter upon his defense.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.


author: By the Court.—Van Vorst, J. Speir, J. (Dissenting).

text:
    ELIZABETH SAMMON, Administratrix, &c., of THOMAS SAMMON, Deceased, Plaintiff, v. THE NEW YORK & HUDSON R. R. COMPANY, Defendant.
    Before Freedman, Van Vorst, and Speir, JJ.

      Decided December 9, 1874.
    I. NEGLIGENCE, CONCURRING.—RUN-OYER CASE.
    1. Employee.
    1. When an employee leaves his post of duty and goes to a place of danger (he knowing it to be such), and there receives an injury, he is guilty of contributory negligence,
    Unless, Perhaps, some new duty or obligation to his employer, outside of his regular employment, called him to such place.

      a. The above principle applied to the facts of the case at bar, and
    HELD,
    That the deceased, on the facts of the case, was guilty of contributory negligence, and that the complaint of his administratrix was properly dismissed.

    1. Speir, J., Dissented, Holding that the question of contributory negligence should have been submitted to the jury.

    8. Evidence.—Acts of other Employees in a simpar line of employment are inadmissible when the contract of employment is express in its provisions as to the duties to be performed under it.
    Exceptions ordered to be heard at general term
    The action was brought to recover damages for negligently causing the death of the plaintiff’s intestate husband.
    The evidence shows that the intestate was in the defendant’s employment, and that it was his duty to take charge of the chain across Fifty-second street, west of Fourth avenue, on which defendant’s railroad is laid.
    This chain was permanently fastened at one end to a post, in Fifty-second street, and was to be carried across to the opposite side of the street as occasion might require, and then attached by hooks to a post standing there. It was the duty of the deceased to put up the chain as trains approached and passed, and if people wanted to cross the avenue to warn them. The position of the deceased was at the chains. He had no business on the track, nor any duty there. The deceased was to stop persons from the west from driving or going across the track. A similar chain under the care of another person was attached to a post on the east side of the track at Fifty-second street, to guard ..against crossing from that side, as trains approached and passed.
    At Fiftieth street there was a switch to a side track, on the defendant’s road.
    On August 10, 1872, as a train of cars was passing over the track, going north from the depot at Forty-second street, through the negligence of an employee of the defendant in his omission to put in the iron pin or bolt, intended to fasten and hold the lever attached . to the switch in its place, the switch became displaced, and two of the cars of the train became detached, and ran off the track and collided with some empty cars which were standing on a side track. These were put suddenly in motion, and the deceased was found lying on or near the side track, crushed, and in a dying condition.
    When the plaintiff rested, the defendant moved.to dismiss the complaint, on the ground of contributory negligence on the part of the deceased, and that the company was guilty of no negligence.
    The motion was denied.
    When the evidence on both sides was closed, the motion was renewed and granted, and the plaintiff’s-counsel excepted.
    But judgment was suspended until after a hearing: and determination at general term on a case and exceptions.

      Johnson & Ward, attorneys, and John H. Hand, of counsel for plaintiff,
    urged ;—I. Testimony tending: to show contributive negligence was improperly admitted, because no such defence is pleaded. Under section 149 of the Code a defendant is required, in all cases, to-plead any new matter constituting either an entire or partial defense, and can not give such matter in evidence when not set up in the answer (McKyring v. Bull, 16 N. Y. 297).
    II. The testimony' tending to show contributive' negligence is always to be submitted to the jury, unless; entirely undisputed and conclusive (39 N. Y., p. 61).. (1) The question of negligence is ordinarily one of mixed law and fact, and it is the duty of the judge to-submit the same to the jury, with proper instructions, as to the law (Filer v. Central R. R. Co., 49 N. Y. 47 ; Silliman v. Lewis, 49 N. Y. 379). (2) The undisputed existence of a fact sometimes may constitute negligence at law, but where inferences are to be drawn, or it depends upon circumstances, it is always a question, of fact for the jury (Viner v. N. Y. A. G. &. W. Steamship Co., 50 N. Y. 23 ; Worster v. Forty-Second Street R. R. Co., 50 N. Y. 203). (3) Only absolute-proof of negligence which is manifest and not disputed,, can take the question of contributive negligence from-the jury (54 N. Y. 230, Spooner v. Brooklyn C. R. R. Co). (4) Defendant cannot say that the deceased ThomasSammon being on a railroad track of the company was-negligence, per se, so as to exonerate it from liability (Willis v. L. I. R. R. Co., 34 N. Y. 670; Ferris v. U. F. Co., 36 N. Y. 312; McIntyre v. N. Y. C. R. R., 37
      N. Y. 287; Hulbert v. N. Y. C. R. R., 40 N. Y. 146; Holbrook v. U. & S. R. R. Co., 12 N. Y. 236).
    III. It was error for the judge to refuse to submit the contested question of fact to the jury "(Philadelphia R. R. Co. v. Derby, Am. R. Cas. ; 1 Smith & Bates N. 109, United States Supreme Court, December term, 1852 ; Yale v. Brooklyn R. R. Co., N. Y. Sup'r Ct. R. 686 ; Barrows v. Erie R. R., Id. 44; Strong v. Boston R. R., Id. 54).
    IY. A plaintiff not connected with the negligent occurrence which caused the death, cannot be held accountable for contributivo negligence (30 N. Y. R. 208 ; 36 Id. 655 ; 39 Id. 227).

      Eliot F. Shepard, attorney, and of counsel for defendant,
    urged;—I. The negligence of deceased was the immediate cause of his injury and death.
    IT. The subject of Summon’s duties was introduced by plaintiff by her own first witness, and by their second witness Bradley. It was, therefore, independent of the pleadings, and a proper subject of testimony on behalf of defendant. And this inquiry developed his contributory negligence. Such testimony for defendant was also proper under the pleadings, as the complaint alleged that Summon was “entirely free from negligence,” which was denied by the answer, and so one of the issues of the action. The deceased being in defendant’s service, it was necessary for the plaintiff both to-allege and prove his freedom from negligence (McDonall v. Buffum, 31 Bow. Pr. 154). The defendant gave-evidence on this point under the direction of the court, to which no exception was taken. This disposes of ail plaintiff’s exceptions to the evidence of Sammon’s duty and negligence (Wilds v. Hudson R. R. R. 24 N. Y. 442; S. C. 29 N. Y. 315; McCall v. N. Y. Cent. R. R. 54 N. Y. 642; Cruty v. Erie Railway, 3 N. Y. Sup'r Ct. 245).

      III. Ho material or relevant testimony, offered by plaintiff, as to Sammon’s duties, was excluded. Plaintiff’s questions were clearly objectionable, for the witnesses knew nothing at all of Sammon’s contract of service with'defendant, nor could they swear as to the knowledge of defendant’s officers on any subject, nor were the duties of other of defendant’s servants at all material. Hearsay evidence, such as plaintiff attempted to introduce, was, on long settled legal principles, inadmissible.
   By the Court.—Van Vorst, J.

No evidence has been adduced, or reason assigned by the plaintiff, to account for the presence of the deceased at the place of known danger, where he was killed.

Had he been an ordinary traveler, killed in an attempt to cross the track at Fifty-second street, while the chains were up, to indicate that trains were passing, or about to pass, the fact that such reasonable precautions had been taken by the defendants, would seem to characterize such act as exceedingly rash, and would justify the conclusion that he had been guilty of contributory negligence.

But the deceased was an employee of the company, having charge of the chain, with specific duties.

It is conceivable that some extraordinary emergency might possibly arise, sufficient to justify him in leaving his station, and going upon the track. Some new duty or obligation to his employer, or others, outside of his regular employment, might possibly call him there (Eckert v. Long Island R. R. 43 N. Y. 502).

But the evidence shows no such call or duty on the occasion in question.

Franklin, the depot master of the defendants, testified that he hired the deceased to attend to the chains, and gave him instructions to perform such services. That he was instructed to attend the chain at Fifty-second street. That he had no business to go upon the track ; it was not his duty to go there. That he had nothing to do with trains or flagging them. He was to flag wagons and stop them from going on the track. His position was at the chain.

The witness Miller, a fellow employee with the deceased, in the defendant’s service, and to whom deceased was brought by the depot master, “to break him in on the chain,” says that the deceased was seen by the depot master on some occasions standing with the witness on the track, and that he, witness, was instructed by the depot master to keep deceased at the chain, and that he informed deceased that he was instructed to tell him to stay back at his chain, where he belonged.

Deceased had both a white and a red flag, and it was his duty to keep people off the track when trains were passing.

If a wagon happened to get on the track a red flag was used to stop the train. He could see the trains approaching, by looking down the avenue, without going off the sidewalk.

No one saw the deceased when he received the injury which led to his death. Nor is there definite evidence as to how it was occasioned. He was found crushed, and in a dying condition.

One witness testified that when he last saw him he was lying “ between the cars, between the rails of the track, and between some large stones that were knocked up.” He was on the point of expiring when they removed him. In another place, the same witness says the deceased was found about the middle of the two tracks, between the track on which the freight cars were, and another one; and he thought a freight car had struck him.

Another witness says he was killed between the side and main track.

It is not entirely clear, therefore, where the deceased, was standing at the time he received the injury, nor what killed him. But in the view which we have taken, of this case, it is not material whether he was injured while standing between the freight cars on the sidetrack, one of which had been put suddenly in motion by the cars, detached from its train through the-negligent handling of the switch, or whether he was. between the two tracks. The result would be the same.

The switch, through the negligent handling of which, two cars were thrown off the track, was two-blocks distant from the position of the deceased at the-chain.

He had no summons to duty there, nor any cara or responsibility in regard to the accident, or the detached or freight cars. His position on the west side of Fourth ávenue, at the chain, and where it was-his duty, under express directions, to remain, was forty feet distant from the side track, on which the freight cars were standing, and was a place of safety, as the place of duty is usually.

Although, in leaving the chain he violated his duty, yet his negligence in that respect only, was not an immediate cause of his death.

His contributory negligence consisted in going,, under the circumstances, to the spot where he was. killed.

He knew the purpose for which the chain was suspended, and that it was a warning to keep persons from the tracks while trains were passing.

The chain was placed there expressly to prevent persons from attempting to cross at such times.

His being on the tracks, or between them, under the conditions stated in the evidence, in a position of known danger, was presumptively negligent, and, being wholly unexplained, is conclusive.

The employer should not beheld liable for an injury sustained by an employee, in a place of known danger, to which he unnecessarily, and without command, exposed himself, and to which no duty or obligation within the scope of his employment called him.

This view of the case dispenses with an inquiry in respect to the negligence of the defendants, and the extent to which it contributed to, or ca'used the decedent’s death.

As has already been observed, no person saw the -decedent at the precise time he was injured. That he was struck by the car put in motion on the side track, by the car detached through the negligence at the switch, is highly probable. If there had been no contributory negligence on the plaintiff’s part, there was sufficient in the evidence to have carried the case to the jury as to whether or not the negligence of the defendants was the cause of his death.

There was no conflict in the evidence, which would have justified the submission to the jury of the question, of the plaintiff’s negligence.

As already observed, the duties of the deceased, under his hiring, are clearly proven. His position was at the chain, to put it up, and remain there with his flag to warn persons until the danger was past, and the crossing safe.

The manner in which the witness Bradley, who had -some years before been a street-flagman, performed his duties, or what his duties were, or what others had done or did, do not affect the question as to what the deceased was to do under his specific employment.

In order to have justified the submission of the case as to the negligence of the defendant, the deceased should have been shown to have been without fault.

The burden was on the plaintiff to do this. This she failed to do.

We are of opinion that the complaint was properly •dismissed. We find no error in the rulings on the trial which would justify a disturbance of the verdict.

The motion for a new trial should be denied, and judgment ordered for the defendants, according to the-direction of the judge on the trial, with costs.

Freedman, J., concurred.

Speir, J. (Dissenting).

Whether the deceased was guilty of contributive negligence, even if he was told to-stay at his chain by the defendants, and did not remain at that post, must depend upon the question as to whether he also acted as a flagman with the knowledge of the defendants. It appeared that he had a white flag in his hands at the time, which was given to-him by the defendant’s agent. If he had the white flag in his hands, which was used by him to signify that' everything was in proper condition when the-train was approaching, then it is reasonable and sensible to suppose he would be justified in leaving his post at the chain if necessary to show his wliité signal.

The evidence is plain, and repeated several times, that the deceased was killed between the side tracks and the main tracks of the road. It is then not certain but he may have been hit by the car, which, it is admitted,, ran against the freight cars standing on the side track. At any rate, it is not proven in what precise way he lost his life. In such a case I think it is going too far to-infer he had by his own act contributed to the accident.

The offer was made to show that the flagman had to-cross the tracks for the purpose of stopping trains, and for the purpose of flagging trains, and to warn people-of danger, and that it was their duty to do so. This-was not permitted. The answer of the witness, “ that he had seen the deceased flag trains dozens of times,”' was stricken out on motion. If the defendant put flags-into his hands, he was practically a flagman, whether that was his special duty or not. I think it was error to refuse testimony that flagmen were constantly in the habit of stopping and flagging trains with the knowledge of the company, and the question of contributive negligence should have been submitted to the jury. I am of the opinion that a new trial should be granted, with costs to the appellants to abide the event.