author: MaRHN, J.:

text:
    Nancy M. Skinner, Respondent, v. James Steele, Appellant.

      Examination of a party before trial — laches in making the application — sufficiency of the motion papers — when an order for examination will not be granted where the examination will only criminate the witness — second application — rule 25 of the General Rules of Practice.

    If tbe necessity therefor exists, when an application is made to examine a party '■ to an action before trial, the fact that the application for the order is not made as soon as possible is no reason why it should not be granted.
    If it plainly appeal’s from the papers upon which an order for the examination of a party before trial was based that the facts sought to be proved on the examination before trial were to be used on the trial, and could be proved only through the party examined, and that a relation of trust and confidence existed between the parties to the action, and that the facts sought to be proved were principally, if not wholly, within the knowledge of the party sought to be examined, an order for examination will not be reversed on appeal.
    If it appears that the only material evidence that can be given by a party to an action sought to be examined before the trial thereof will tend to show that he is guilty of a crime or subject him to a penalty or forfeiture, the order should not be granted, but if it appears that any testimony material to the action may be given not having necessarily that tendency, an examination may be had and the party left to assert his privilege upon the examination.

      There is no statute law or rule oí practice which requires a plaintiff to obtain the leave of the court before applying for a second order for the examination of the defendant before the trial of the action, where the previous order for such examination was vacated by reason of the insufficiency of the papers upon which the application was made.
    Where an order directing the examination of the defendant before trial has been vacated by reason of the insufficiency of the papers upon which the application was made, the failure of the plaintiff, upon his second application for an order directing such examination, to comply fully with the provisions of rule 25 of the General Rules of Practice, by showing what new facts are claimed to be shown on the second application, or whether or not there are any new facts, is at most an irregularity and does not compel the court to refuse the order or ter vacate it after it is granted.
    Appeal by tlie defendant, James Steele, from an order of tbe Supreme Court, made at tlie Onondaga Special Term and entered in tbe office of tbe clerk of tbe county of Herkimer on tbe 4tb day of April, 1895, denying tbe defendant’s motion to vacate and set aside an order for tbe examination of tbe defendant before tlie trial, made on tbe 7th day of March, 1895, and entered in said clerk’s office.

      Steele & Prescott, for tbe appellant.

      Peed d¡ T homos ¡ for tbe respondent.
   MaRHN, J.:

Tbe appellant moved to vacate tbe order for bis examination before trial upon tbe grounds: 1. That tlie plaintiff was guilty of laches in obtaining tlie order. 2. That tlie papers upon which it was granted were insufficient, in that no necessity for tbe examination of tbe defendant before trial was shown, as no reason was given why tbe defendant could not be examined as a witness on tbe trial. 3. That tbe matters in reference to which the plaintiff proposed to examine the defendant were privileged, i. That a previous order granted had been set aside, and tbe order setting it aside did not give leave to the plaintiff to apply for another order; and 5. That tbe affidavits did not show what new facts are claimed to be shown on the application for tbe second order, or whether or not there were any new facts to be shown as required by General Court rule 25.

Tbe appellant’s claim, that tlie order for the examination of the defendant should have been set aside because the plaintiff did not make her application for such an order earlier, cannot, we think, be sustained. The right of examination or discovery is given by the Code, and the fact that a party does not apply for the order as soon as possible is no reason why it should not be granted if the necessity for it exists when the application is made.

Nor do we think the court erred in refusing to vacate the order •on the ground that the papers upon which it was granted were insufficient. The affidavits and papers which were the basis of the •order were full, and stated the matters required by the statute. They clearly disclosed the necessity for the examination of the defendant, that the plaintiff would .be unable to prove the existing facts„upon which her action was founded otherwise than by his evidence, and that the plaintiff had no personal knowledge of the facts upon which her action was based. The appellant, however, contends that as no reason was stated in the affidavits why he might not be called and examined as a witness on the trial, no necessity for his examination before trial is shown. It has been said in some of the ■cases cited by the appellant that where it is shown that the evidence of the party cam be secured on the trial, it is not the practice of the courts to direct the party to submit to an examination at the instance of his adversary before trial. (Williams v. Folsom, 54 Hun, 308; Waters v. Shayne, 32 N. Y. St. Repr. 435.) But an examination of the Williams case discloses that the decision in that •case was based upon the case of Jenkins v. Putnam (106 N. Y. 272), and that the decision in the Waters case was based upon the decision in the Williams case. When we examine the case of Jenkins v. Putnam, upon which the decision in those cases seems to have been based, we find that the only question involved in that case was, whether the statute was mandatory and absolutely required a judge to grant an order for the examination of a party, or whether it was so far discretionary as to permit a judge to whom such an application was made, in his discretion to deny it, where he could see that the examination was unnecessary. In discussing the question in that case Eael, J., said: ■“ The nature of the controversy shows that the facts of the case were probably within the knowledge of the defendant, as the contract is alleged to have been made with him, and the services were claimed to have been rendered in the sale of his property. It is scarcely possible that the facts were not all as well known to the defendant as to the plaintiff, and as the defendant could examine the plaintiff at the trial, it does not appear that it was essential that he should have his examination before trial. -x- -x- * "While the whole examination is placed within the absolute control of the judge by the power given him to place limits upon it, it cannot be supposed that it was intended to absolutely bind him to grant it, whatever might be his judgment as to its propriety or necessity. Where the judge can see that the examination is sought merely for annoyance or for delay, and that it is not in fact necessary and material, he ought not to be required, and cannot absolutely be required, to make the order.” We find nothing in this case which justifies the contention of the appellant.

In Herbage v. City of Utica (109 N. Y. 81, 82) Danforth, J., said: “ The cases cited by the respective counsel show that the practice in relation to the subject is not uniform throughout the various departments of "the Supreme Court, but'we are of opinion that a party litigant may, in the discretion of the judge to whom application is made, under the provisions of sections 870, 872, 873 of the Code of Civil Procedure, have a general examination of his adversary as a witness in the cause as well before as at the trial, and that it is not, as of course, to be limited to an affirmative cause of action or an affirmative defense set forth in favor of the party desiring that examination.”

In Grout v. Strong (49 N. Y. St. Repr. 78) it was held that where the testimony sought is solely within the defendant’s control and knowledge, and an examination of the defendant is necessary to enable the plaintiff to maintain his action on the trial, such an examination before trial may properly be ordered. The same doctrine was laid down in Wahle v. McMillen (1 Misc. Rep. 89.) The decision in Carter v. Good (57 Hun, 116) was to the effect that the strictness of the rule usually governing the granting of an order for the examination of a party before trial will be relaxed when a relation of trust and confidence has existed between the parties to the action; and that where the information desired seems to be important to the proper presentation of the cause of action alleged, and wholly within the knowledge of the defendant, or more within his knowledge than that of the plaintiff, an order for the examination of the defendant should be granted. In this case the Williams case was referred to, and it was held that the rule stated in that case was not applicable to one like this. Without further examination of the authorities bearing upon this question, and without attempting to harmonize or further discuss them, we are of the opinion that the granting or refusal of this order was discretionary; that as it plainly appeared from the papers in the case that the facts sought to be proved by the defendant on his examination before trial were to be used on the .trial and could be proved only by him; that a relation of trust and confidence existed between the parties to the action, and that the facts sought to be proved were wholly within the knowledge of the defendant, or at least more within his knowledge than that of the plaintiff, the affidavits and papers upon which the order was granted must be held as sufficient.

This brings us to the consideration of the question whether all the matters, as to which the plaintiff proposed to examine the defendant, were privileged upon the ground that any testimony that he might give upon such examination would tend to convict him of crime or form a link in the chain of testimony tending to convict him of crime or expose him to a penalty or forfeiture. It is admitted by the respondent that if the sole purpose of an examination under such an order is to prove the party guilty of a criminal offense, or to subject him to a penalty or forfeiture, it should not be granted, and if granted should be set aside. But he contends, and we think correctly, that that rule applies only where there are no matters respecting which the party may give material and competent evidence which is not privileged. The rule is that if it appears that the only material evidence that can be given by the party sought to be examined will tend to show that he is guilty of a crime or subject him to a penalty or forfeiture the order should not be granted; but if it appears that any testimony material to the case may be given, not necessarily having that tendency, the examination may be had and the party left to assert his privilege upon the examination. (The Mechanical Orguinette Co. v. Haynes, 19 Wkly. Dig. 535; Corbett v. De Comeau, 5 Abb. N. C. 169; Ball v. Evening Post Pub. Co., 12 N. Y. Civ. Proc. Rep. 4; Canada Shipping Co. v. Sinclair, 49 N. Y. Super. Ct. 242; Sprague v. Butterworth, 22 Hun, 502; Kinney v. Roberts & Co., 26 id. 166; Yamato Trading Co. v. Brown, 27 id. 248; Fogg v. Fisk, 30 id. 61; Andrews v. Prince, 31 id. 233; Davenport Glucose Manuf. Co. v. Taussig, 83 id. 32; Davies v. Fish, 35 id. 430; Farmer v. National L. Assn., 73 id. 522; Judah v. Lane, 12 N. Y. St. Repr. 130; Franks v. Riemer, 28 id. 156; Haynes v. Hatch, 39 id. 805.) Applying tlie rule stated to this case, it is quite obvious tliat the court committed no error in refusing to vacate the order upon the ground that any evidence which the defendant might be called upon to give upon such an examination was privileged, as manifestly there are facts material to the issues in this case, as to which the defendant may give evidence,- which are not so privileged.

We are not aware of any statute law or rule of practice which requires a plaintiff to obtain leave of the court before applying for a second order for the examination of a defendant, where, as in this case, a previous order was vacated by reason of the insufficiency of the papers upon which the application was made.

The only remaining ground upon which the appellant contends that the order should have been set aside, -is that the respondent did not fully comply with the provisions of rule 25 of the General Rules of Practice. This failure was, at most, an irregularity, and did not compel the court to refuse the order, or to vacate it after granted. (Bean v. Tonnelle, 24 Hun, 353.)

These considerations lead to the conclusion that the Special Term properly denied the defendant’s motion, and that the order should be affirmed.

HaediN, P. J., and IVIebwiN, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: MaetiN, J.:

license: Public Domain

text:
    Eilline E. Niles, Respondent, v. David Crocker and Edwin L. Crocker, as Executors, etc., of Luther Crocker, Deceased, Appellants.

      Costs ■— on the reference of a disputed claim against cm estate — due presentation of a claim — lcnoioled(/e ~by the executor of its existence — effect of the JRepealing Aet, chapter 245 of 1880.
    The referee to wliom a claim against the estate of a decedent is referred under section 2718 of the Code of Civil Procedure has power to award costs to the plaintiff under such section of the Code; the right of the plaintiff to costs is regulated and controlled by sections 1885 and 1886 of the Code of Civil Procedure. Under the statute, two things are necessary to entitle a plaintiff to costs: Mrst, the demand must be presented during the time limited by a notice published as prescribed by law; and, second, the demand must be unreasonably resisted or neglected.
    Where a note made by a testator is in the possession of his executor, who received directions from the testator to deliver the same to the payee in case of the testator’s death, a demand by such payee, made on the executor, that he should deliver the note to her or her attorney, is not a sufficient presentation of a claim upon or against the estate of the decedent to entitle the claimant to costs upon a reference of the claim made upon the note.
    The knowledge by an executor or administrator of the existence of a claim against the estate which he represents, does not avoid the necessity for the due presentation of such claim in writing, stating the nature and amount of the claim, and demanding its payment.
    The right of a prevailing party upon a reference of a disputed claim against an estate under the statute to recover the fees of the referee and witnesses, and other necessary disbursements, as provided for in those portions of the Revised Statutes left unrepealed after the act of 1880 took effect, was preserved by subdivision 8 of section 8 of chapter 245 of the Laws of 1880.
    Appeal by tlie defendants, David Crocker and another, as executors, etc., of Luther Crocker, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 5th day of January, 1895, upon the report of a referee.
    The action or proceeding was taken under section 2118 of the Code to recover the amount of a promissory note made by the defendants’ testator, and delivered to one of the defendants to be delivered to the plaintiff in case of his death, and, in case he should recover from the illness from which he wTas then suffering, it was to be returned to him. The testator died a few days after the making of the note, and the defendant to whom it was delivered retained it in his possession until an action was brought against him to recover its value, when he surrendered the. note to the plaintiff. Thereupon, and on the 29th of November, 1893, the plaintiff presented to the defendants a claim for the amount of such note and interest. The claim was rejected by the defendants, and a stipulation entered into by the parties referring the matter in controversy to a referee to hear and determine. The referee found in favor of the plaintiff, and awarded her a judgment for the amount of the note and interest, with costs.

      BahcoeJc, Sperry <& Vcm Oleve, for the appellants.

      Milla/rd c& Stewart, for the respondent.
   MaetiN, J.:

After an examination of the evidence and rulings contained in the appeal book we have reached the conclusion that there were no rulings on the trial which would justify us in disturbing the judgment herein, and that the findings of the referee were sustained by the evidence. It, therefore, follows that the judgment, so far at least as it relates to the amount of damages recovered, should be affirmed.

The appellants, however, contend that the referee erred in awarding the plaintiff costs, and that to that extent the judgment should be reversed or modified by deducting the amount of the costs from the judgment. The referee had power to award costs if the plaintiff was entitled to them. (Code Civ. Proc. § 2118.) This authority is not denied by the appellants. The question whether the plaintiff was entitled to costs is regulated and controlled by sections 1835 and 1836 of the Code. If, under those sections, the plaintiff was not entitled'to her costs, the referee erred in allowing them. Section 1835 ¡provides : “Where a judgment for a sum of money only is rendered against an executor or administrator, * * * costs shall not be awarded against him, except as j^rescribed in the next section.” The next section declares : Where it appears, in a case specified in the last section, that the plaintiff’s demand was presented within the time limited by a notice, published as prescribed by law, requiring creditors to present their claims, and that the payment thereof was unreasonably resisted or neglected, * * "x‘ the court may award costs against the executor or administrator.”

It is conceded by the respondent that under the statute two things are necessary to entitle the plaintiff to costs : (1) That the demand must be presented within the time limited by a notice, published as prescribed by law; and (2) the demand must be unreasonably resisted or neglected. The cases are also to that effect. (Supplee v. Sayre, 51 Hun, 30; Horton v. Brown, 29 id. 654; King v. Todd, 21 N. Y. Civ. Proc. Rep. 114.)

That the written claim presented by the plaintiff was presented within the time limited by a notice, published as prescribed by law, does not appear. On tlie contrary, all the proof there is in the case upon the question tends to show that it was not presented until long after such a notice was published. We think it may be admitted that the demand was unreasonably resisted or neglected and yet the plaintiff not be entitled to costs. The only attempt made by the plaintiff to show any presentation of her claim within the time-limited by the published notice -was, that one of the executors had possession of the note in question from the time it was delivered to him by the testator until about the time the written claim was presented. There is nothing to show that any claim was made upon the note against the estate of the testator previous to the delivery of the written one, but the only demand made of the defendant in whose possession it was, was that he should deliver the note to the plaintiff or her attorney. It seems to us that this was not a sufficient presentation of a claim against the estate of the testator to constitute a compliance with the requirements of the statute. In Matter of Morton (58 N. Y. St. Repr. 515) it was held that knowledge, by a representative, of the existence of a claim against his estate did not avoid the necessity of its due presentation, and that the presentation must be in writing, stating the nature and amount of the claim and demanding its payment. In King v. Todd (supra) it was held that a mere verbal notice of a claim was not sufficient and that it should be presented in writing. In Cruikshank v. Cruikshank (9 How. Pr. 350) it was held that to entitle a party to costs against an executor or administrator it must appear that an account or some claim against the estate which could be supported by vouchers and affidavits was presented to the executor and that a vague demand of a gross sum was not sufficient.

The respondent seeks to uphold the decision of the referee as to costs upon the authority of Gansevoort v. Nelson (6 Hill, 389). If we assume the correctness of that decision, still it is not decisive of the question here as that case is clearly distinguishable from this. In that case a claim was presented by letter, while in the case at bar there was no presentation of any claim whatever by the plaintiff. These considerations lead to the conclusion that the referee erred in allowing the plaintiff the costs of this action.

The only remaining question is whether the plaintiff was entitled to her disbursements. Section 317 of the Code of Procedure con7 tained the following provision: And whenever any claim against a deceased person shall be referred, pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law.” Section 3, subdivision 8, of chapter 245 of the Laws of 1880, an act repealing the Code of 'Procedure, ■contained the following provision: “ The repeal effected by the Erst section of this act (which included the Code of Procedure) is subject to the following qualifications: * * * 8. It does not affect the right of a prevailing party to recover the fees of referees and witnesses and his other necessary disbursements, upon the reference of a claim against a decedent, as provided in those portions of the Revised Statutes left unrepealed after this act takes effect.”

The provisions of article 2, title 3, chapter 6, part 2 of the Revised Statutes, providing for and regulating the reference of a claim against a decedent, were not at that time repealed. "While the law stood thus it was held that upon such a reference the prevailing party was entitled to recover his necessary disbursements, and that the provisions of the Code of Procedure allowing such disbursements were not taken away by the repealing act of 1880, but the right thereto was preserved by subdivision 8 of section 3 of that act. (Larkins v. Maxon, 103 N. Y. 680. See, also, Hallock v. Bacon, 64 Hun, 90, and cases cited in the opinion of HardiN, P. J.)

In 1893 the Legislature passed an act amending the Code of Civil Procedure by making those provisions of the Revised Statutes a pjart of the Code of Civil Procedure (Chap. 686 of the Laws of 1893). Section 2118 now contains substantially the same provisions as were contained in the Revised Statutes as to the reference of claims against decedents, and the provisions of the Revised Statutes which related to such a reference were repealed. Thus the question is presented whether a substantial re-enactment of the R'evised Statutes by making them a part of the Code of Civil Procedure, and the repeal of that part of the Revised Statutes have changed the rule in regard to referees’ fees, witness’ fees and other disbursements paid or incurred by the prevailing party on the reference of a claim against the estate of a decedent. We have found no statute which repeals the portion of section 311 of the Code of Procedure, to which we have referred, except chapter 245 of the Laws of 1880, and in that, as we have already seen, the right to referees’ fees, witness’ fees and other disbursements paid or incurred by the prevailing party on the reference of such a claim is preserved,, nor have we been able to find that subdivision 8 of section 3 of chapter 245 of the Laws of 1880 has been repealed. Assuming that, these provisions of the statute are unrepealed the question is whether they apply to a reference under section 2718 of the Code of Civil Procedure.

We are disposed to think the provisions of those statutes are still' in force. The purpose of the statute of 1880 was to retain the provision of the Code of Procedure which gave the right to a prevailing party to recover his necessary disbursements upon a reference of' a claim against a decedent. It is true that the act added a description of the statutes under which such a reference might then be had ;• but when the Legislature in substance re-enacted the same law, making it a part of the Code of Civil Procedure, and did not repeal the. provision of the Code of Procedure referred to, nor the provision of the repealing act of 1880, which preserved the right to such fees and disbursements, we are inclined to the opinion that it indicated an intent upon the part of the Legislature to leave the provisions as. to disbursements in such proceedings as they originally existed. If correct in this conclusion, it follows that the judgment should be. modified by deducting from the amount of costs and disbursements Ihe sum of $60, thereby reducing the judgment from the sum of $395.47 to the sum of $335.47, and that as so modified the judgment should be affirmed.

HatjdiN, P. J., and PIeewiN, ¡L, concurred.

Judgment modified by deducting therefrom $60 costs allowed to-the plaintiff, thus reducing the judgment from the sum of $395.47' to tie sum of $335.47, and as so modified, affirmed; without costs, of th? appeal to either party.


author: MabtiN, J.:

text:
    Mary E. France, as Administratrix, etc., of Lewis J. France, Deceased, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.

      Duty of a master td furnish suitable appliances — risks assumed by a servant —failure of a railroad company to equip its trains with air brakes.

    A master does not owe to his servants the duty of furnishing the best known or conceivable appliances; he is simply required to furnish those that are reasonably safe and suitable, such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances.
    As a rule a servant entering into an employment which is hazardous assumes the usual risks and perils of the service — those which are apparent to ordinary observation or which he must know if he exercises ordinary care and observation; and when he-accepts or continues in the service with knowledge of the structures or implements used from which injury may be apprehended he assumes the hazards incident to the situation.
    .Semble, that a master may carry on his business rvith old appliances and machinery not provided with all the safeguards attached to newer ones, and that he has the right to arrange his own premises and appliances in a way which suits his convenience, and is not bound to change the arrangement to secure greater safety to his employees where the dangers to which the servant is exposed are known and obvious.
    Prior to the general use of air brakes upon railroad trains, and the thorough establishment of the practical efficiency thereof, it was not negligence for a railroad company not to equip its trains with air brakes and to rely upon hand brake? which were at that time supposed to be reasonably safe and suitable.
    Appeal by the defendant, The Rome, Watertown and Ogders-bnrgli Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of ;he county of Oswego on the 19th day of July, 1894, upon the verlict of a jury rendered after a trial at the Oswego Circuit, and also from an order made at the Oswego Circuit on the 2d day of April, ;894, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

      D. G. Griffin, for the appellant.

      'William Tiffany, for the respondent.
   MabtiN, J.:

This action was to recover damages for the death of the plaintiffs intestate, alleged to have been caused by the negligence of the defendant.

The accident in which he was killed occurred at Carlyon on the 27th day of July, 1883. The decedent was an employee of the defendant. He was a fireman upon one of the engines drawing the train to which the accident occurred. He had been employed in that capacity for about two years, and had been otherwise employed upon the defendant’s road for several years before he commenced work as a fireman. The train to which the disaster occurred, besides the two engines drawing it, consisted of six Wagner sleeping cars, three sleepers of the defendant, a day coach and baggage car. At Carlyon there was a branch track leading from the defendant’s main track, and upon it had been left a freight car standing some distance from the main track. During a heavy storm of wind and rain, which shortly preceded the accident, this freight car had been blown from the branch so as to obstruct the main line, which was the cause of the disaster that followed. This obstruction was not discovered until the engine was within three or four rods of the car, when a signal for brakes was immediately given and the engine reversed, but the collision followed, resulting in the derailment of the two engines, the baggage car, the day coach and the three sleepers of the defendant. The decedent fell under the engine or tender and was killed. The train was not equipped with air brakes, and at the time none of the defendant’s trains were thus equipped, but hand brakes were used by the defendant upon all its trains. There were but two or three brakemen upon the train.

The only grounds of the defendant’s negligence, which the learned trial judge submitted to the jury, were.- 1, whether the defendant was negligent in not equipping its train with air brakes; and, 2, whether it was negligent in not furnishing a greater number of brakemen. He also submitted to the jury the questions whether the defendant’s omission to equip its train with air brakes, or its failure to furnish additional brakemen, contributed to or caused the injury which resulted in the decedent’s death.

The first question presented for consideration in this case is as to the propriety of the submission to the jury of the question of the defendant’s omission to furnish air brakes upon its train, as a ground of negligence, entitling the plaintiff to recover if it contributed to the injury complained of.

At the time of the accident the use of air brakes may be said to have been in its infancy, and their practical efficiency was not, perhaps, thoroughly established. While it was shown that they had been adopted and were in use upon several railroads in the State, still, the evidence failed to show that they were in general use. The question of their efficiency in controlling the movement of trains was not at that time as well understood as now. We think the court improperly submitted to the jury the' question of the defendant’s negligence, based upon its omission to supply its cars with air brakes.

It was held in Burke v. Witherbee (98 N. Y. 562) that the master does not owe to his servant the duty to furnish the best known or conceivable appliances; he is simply required to furnish those that are reasonably safe and suitable, such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances. The doctrine of that case was followed in Probst v. Delamater (100 N. Y. 266); Marsh v. Chickering (101 id. 396); Bajus v. Syracuse, B. & N. Y. R. R. Co. (103 id. 312, 318); Hickey v. Taaffe (105 id. 26); Laffin v. Buf falo & Southwestern R. R. Co. (106 id. 136); Stringham v. Hilton (111 id. 188), and Harley v. B. C. M. Co. (142 id. 31).

Another well-settled rule of the law of negligence is that, as a general rule, a servant entering into an employment which is hazardous assumes the usual risks and perils of the service and those which are apparent to ordinary observation or which he must have known if he exercised ordinary care and observation, and when he accepts or continues in the service with the knowledge of the structures or implements used from which injury may be apprehended, he assumes the hazards incident to the situation. (Gibson v. Erie Railway Co., 63 N. Y. 449; Mehan v. Syracuse, B. & N. Y. R. R. Co., 73 id. 585; De Forest v. Jewett, 88 id. 264; Powers v. N. Y. L. E. & W. R. R. Co., 98 id. 274; Appel v. B., N. Y. & P. Ry. Co., 111 id. 550; Williams v. D., L. & W. R. R. Co., 116 id. 628; Odell v. N. Y. C. & H. R. R. R. Co., 120 id. 323; Davidson v. Cornell, 132 id. 228.)

It seems also tliat a master may carry on his business with old appliances and machinery not provided with all the safeguards that are attached to newer ones, and that he has the right to arrange, his own premises and appliances in a way which suits his convenience, and is not bound to change the arrangement to secure greater safety to his employees, where the dangers to which the servant is exposed are known and obvious. (Sweeney v. Berlin & Jones Envelope Co., 101 N. Y. 520; Bajus v. Syracuse, B. & N. Y. R. R. Co., 103 id. 312; Anthony v. Leeret, 105 id. 591; McDugan v. N. Y. C. & H. R. R. R. Co., 10 Misc. Rep. 336.)

Applying these rules to the facts, it becomes obvious that the-plaintiff was not entitled to recover in this action upon the ground of the defendant’s omission to equip its train with air brakes; that the court erred in submitting that question to the jury, and in refusing to charge that the evidence was insufficient to justify the jury in finding the defendant liable for negligence in that respect. As we have already seen, the plaintiff’s intestate had been in the employ of the defendant for several years, and had been a fireman upon its engines running over the road for about two years. There were no air brakes used by the defendant upon any of its trains; and never had been up to the time of the accident. This fact must-have been known to the decedent, and he must have accepted and! continued in the defendant’s service with a full knowledge of that fact, as it was clearly apparent to ordinary observation. He, therefore, assumed the risks and perils of the service with the machinery- and appliances used by the defendant, and it was not bound to change its machinery or appliances to secure greater safety to him.. That the hand brakes were, at the time of the accident, regarded as. reasonably safe and suitable there can be little doubt, and the: defendant was not, we think, bound to furnish its employees with: the best known or conceivable appliances. Thus it is manifest that the learned trial judge erred in submitting to the jury the question of the defendant’s negligence based upon its omission to equip, its. train with air brakes.

Again, an examination of the evidence rendered it extremely-doubtful if there was any proof that the omission of the defendant: to furnish air brakes contributed to or was the cause of the,- decedent’s injury. The appellant’s claim that this accident would not have occurred if the train had been supplied with air brakes, does not seem to be supported by the evidence, and is at best merely speculative and conjectural. In Webster v. R., W. & O. R. R. Co. (40 Hun, 161, 162), which arose out of this accident and was an action by a passenger, Haight, J., who delivered the opinion of the General Term, said: “ It further appeared that there were no air brakes upon the train; that the cars were supplied with the old hand brakes, but we are of the opinion that no negligence chargeable in this regard contributed to or caused the injury, for it distinctly appears from the testimony of all the witnesses who have given evidence upon the subject, that had the train been supplied with air brakes they could not have been set in time to prevent the collision Or to have lessened its effect.”

Whether the defendant was negligent in not furnishing a greater number of brakemen, is not perhaps important in view of our conclusion as to the preceding question. If, however, it were assumed that the defendant’s omission to furnish a greater number of brakemen constituted negligence upon its part, it may be said that it is at least doubtful if the evidence was sufficient to justify the jury in finding that that omission contributed to or caused the injury which resulted in the death of the plaintiff’s intestate.

Without further discussion of this case, we are clearly of the opinion that the court erred in submitting to the jury the question of the defendant’s negligence based upon its not equipping its train with air brakes, and that for that error the judgment should be reversed.

HaediN, P. J., and MebwiN, J., concurred.

Judgment and order reversed and a new trial ordered, with costs to abide the event.


text:
    Andrew D. Ely, Appellant, v. New York Central and Hudson River Railroad Company, Respondent.

      Duty of a master to furnish suitable appliances — extent of the obligation of a railroad company to promulgate rules. '

    A master owes to his servant the duty of furnishing reasonably safe appliances and machinery, a reasonably suitable and safe nlace in which to pa-form his work, and the exercise of reasonable care in the selection of his co-employees.
    The law imposes upon a railroad company the duty of making and promulgating rules which, if faithfully observed, will give reasonable protection to its employees. This rule, however, is a reasonable one, and does not impose upon a railroad company the duty of making a specific rule for every particular act that is to be performed by its employees. The failure to adopt a particular rule is not evidence of negligence, unless it appears that the master, in the exercise of reasonable care, should have foreseen and anticipated the necessity therefor.
    Appeal by the plaintiff, Andrew D. Ely, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Madison on the 17 th day of October, 1894, dismissing the plaintiff’s complaint upon the merits, and also from an order denying the plaintiff’s motion for a new trial made upon the minutes. On the trial the plaintiff was nonsuited.
    The action was for personal injuries alleged to have beeen caused by the defendant’s negligence.
    The plaintiff was an employee of the defendant, and had been in its employ four or five days previous to the accident. At the time of the accident the plaintiff was engaged with twenty-three other men in picking up and loading on to a flat or platform car old rails that had been replaced by new ones. These men were divided into two gangs of twelve each, one on each side of the car. The rails were taken by each gang and thrown on to the car. The car had loops at the sides for six stakes, but none were used during the time of the loading, although there were stakes for the use of the platform 'ears in the tool car which was attached to the train. The cars were three and one-half or four feet above the top of the track. The rails being loaded would weigh some 600 or 700 pounds, and were piled between the tracks. The gang with which the plaintiff was working on the north side of the car picked up a rail and threw it on to the car about the same time that the gang on the south side threw one on. The latter struck the top of the car, swung around and slid off the north side, striking the plaintiff. They had worked through the day in this manner, and no one had warned them when the rails were thrown from the opposite side. It was the first day the plaintiff had worked at loading rails. He commenced work at about seven o’clock in the morning, and the accident occurred about four o’clock in the afternoon. At the time the rail slid off, the rails were piled to the height of a, foot or a foot and one-half in the center, and sloped down to the edge.

      Tuttle <& Ransom, for the appellant.

      O. D. Prescott, for the respondent.
   MaetiN, J.:

. The only question raised by the appellant is as to the propriety of the nonsuit granted by the trial court. He has cited a great number of authorities relating to the dutes and liabilities of a master to his servant, the risks assumed by the servant, and upon the questions of negligence and contributory negligence. There is no uncertainty as to the rules of law established by the cases cited, but the question is as to their applicability to the facts in this case. We have carefully read the evidence and proceedings upon the trial, and fail to find sufficient proof of the defendant’s negligence to entitle the plaintiff to recover under the doctrine of the cases bearing upon that question.

That a master owes to his servant the duty of furnishing reasonably safe appliances and machinery, a reasonably suitable and safe place in which to perform his work, and to exercise reasonable care in the selection of his co-employees, are well-settled principles of the law of negligence. We fail to find in the evidence in this case any omission upon the part of the defendant to discharge any of the duties required by these rules. There is no evidence to show that the appliances, machinery and the place where the plaintiff was performing his work were not reasonably safe. Neither do we find any evidence that any of the plaintiff’s co-employees were incompetent, nor that the defendant was negligent in their selection.

The law also imposes upon a railroad company the duty of mak-iug and promulgating rules, which, if faithfully observed, will give reasonable protection to its employees. This rule, however, is a reasonable one, and does not impose upon a railroad company the duty of making a specific rule for every particular act that is to be performed by its employees. The failure to adopt a particular rule is not evidence of negligence, unless it appears that the master in the exercise of reasonable care should have foreseen and anticipated the necessity therefor. It was not suggested at the trial, nor here, what particular rule the defendant should have adopted. In this case there was no evidence that any rule relating to the work in which the plaintiff was engaged had been adopted by other companies engaged in business of a similar character, or by experts or other witnesses to show that any rule was necessary or practicable in such a case. Nor was the evidence such as to make the necessity and propriety of making and promulgating any rule so obvious as to render the question one of common experience and knowledge. Under similar circumstances it was held by this court in Doing v. N. Y., O. & W. R. R. Co. (73 Hun, 270) that the evidence was not sufficient to justify the court in submitting to the jury the question of the defendant’s negligence upon that ground. The same doctrine is held in Berrigan v. N. Y., L. E. & W. R. R. Co. (131 N. Y. 582), and Morgan v. The Hudson River Ore & Iron Co. (133 id. 666.)

The judgment and order should be affirmed, with costs.

HaediN, P. J., and IVIekwin, J., concurred,

Judgment and order affirmed, with costs.


text:
    Daniel J. Francis, Respondent, v. William H. Porter, Appellant.

      Application for a discovery of books and papers — after its denial, a reference to determine whether the defendant can pi'oduce them is improperly ordered — the order therefor affects a substantial right.

    Upon a proceeding taken under the provisions of section 808 et seq. of the Code of Civil Procedure for the discovery of certain books and papers the court made an order directing the filing with the clerk of a certain assignment, but otherwise denied the motion, with costs, with leave to the plaintiff to renew his application for inspection. The order contained a further provision directing a reference to take proof of wliat kooks and papers tlie defendant had the power to produce for inspection, and also gave the plaintiff the right to cross-examine the defendant in relation to such production. The defendant appealed from that portion of the order which directed a reference and permitted the plaintiff to cross-examine the defendant.

      Held, that after the motion had been decided by denying the plaintiff’s application for a discovery there was no motion or proceeding before the court and it had no power to order a reference;
    That the portion of the order appealed from affected a substantial right of the defendant and was reviewable upon its merits under the Code of Civil Procedure (§ 1847, subd. 4).
    Appeal by the defendant, William IT. Porter, from so much of an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 4th day of March, 1894, as directed a reference to take proof as to what books and papers the defendant had the power to produce 'and giving the plaintiff the right to cross-examine the defendant in reference thereto.

      Hatch <& WicJces, for the appellant.

      Ed/mard II. Burdick, for the respondent.
   MaetiN, J.:

This was a proceeding under the Code of Civil Procedure for the discovery of books and papers. The statute required it to be commenced by petition and it could not be by motion. (Code, § 805; Dick v. Phillips, 41 Hun, 603.)

• A petition was prepared and presented to a justice of this court, who made an order requiring the defendant to allow the discovery sought, or to show cause at a Special Term of the Supreme Court to be held in the city of Syracuse on the 12th day of February, 1895, why the prayer of the petition should not be granted. Upon the return of tliat order affidavits were read by the defendant in which it was stated that most of the books and papers of which a discovery was sought were not under or within his control. The court, after reading and filing the papers of both parties read on the application, and after hearing counsel for the respective parties, made an order requiring a certain assignment to be deposited with the clerk of Onondaga county, to remain there - until the further order of the court, and in other respects denied the motion or application, witli ten dollars costs to abide tlie event, but with leave to the plaintiff to renew his application for inspection upon the same papers without reservice, and to furnish further papers alleging certain facts more fully than they were alleged in the original petition and papei’s accompanying it.

The court also ordered a reference to take proof as to what books and papers the defendant had the power to produce for inspection to be used upon a further application, and gave the plaintiff the right upon such hearing to cross-examine the defendant in relation thereto. From the latter portion of the order the defendant appealed. TIis contention is that, inasmuch as the court denied the plaintiff’s application for discovery, no motion or proceeding was pending in which an order to examine a party as upon a motion could be made, and, hence, that the portion of the order appealed from should be reversed.

That the plaintiff’s application for an inspection was denied is admitted by the respondent. It is manifest that, except as to the assignment ordered to be filed with the clerk of Onondaga county, the court denied the plaintiff’s application for the reason that upon the papers produced upon the hearing it was of the opinion that the plaintiff was not entitled to the relief asked for. With the exception mentioned and that giving a right to renew, the order was one absolutely denying the plaintiff’s application, with costs to abide the event of the action.

Thus the question arises whether, after the application had been absolutely disposed of by granting a portion of the relief sought and denying the remainder, the court had authority to make an order appointing a referee to take the proof mentioned. Unless the Legislature has, by some statute, conferred upon courts the power to make such an order, it does not, we think, exist. While the Code provides that where a court is authorized by that act to make an examination or inquiry it may direct a reference (§ 827) that it may appoint a refere'e to report upon a question of fact arising upon a motion (§ 1015), and that a referee may be appointed to take the deposition of a person not a party to be used on a motion (§ 885), yet we find no authority in these or any of the provisions of the Code which authorized the court to appoint a referee to take proof on a motion or application of this kind when it had been already decided and no question in relation to it was pending before the court.

In this case no steps bad been taken under that portion of tbe order which gave the plaintiff leave to renew his application, and consequently no proceedings in renewal of such application were pending. If the court, instead of absolutely deciding the application of the plaintiff, had suspended the hearing and directed a reference to ascertain or take proof as to certain questions of fact that were before it another question would have been presented. The respondent has called our attention to no authority, statutory or other, which would uphold this order. Ye are of the opinion that the court was not justified in granting the portion of the order appealed from, and that it should be reversed.

The respondent’s contention, that the order was not appealable to this court, cannot, we think, he sustained. The portion of the order appealed from affected a substantial right of the defendant, and was reviewable upon the merits upon appeal under subdivision 4 of section 1341 of the Code of Civil Procedure. (Central Trust Co. v. N. Y. C. & N. R. R. Co., 42 Hun, 602; Whitaker v. Desfosse, 7 Bosw. 678; Moffat v. Moffat, 3 How. Pr. [N. S.] 156.)

HakdiN, P. J., and MeewiN, J., concurred.

Order, so far as appealed from, reversed, with ten dollars costs and disbursements.


author: MaetiN, J.: ParKer, J.:

text:
    Julia L. Meagley, as Executrix, etc., of Rosell H. Meagley, Deceased, Respondent, v. Joel S. Hoyt, as Surviving Partner of Joel S. Hoyt & Co., Appellant.

      Bale hy sample — a warranty survives acceptance — effect of the vendors offer to take hack the goods and repay the purchase pn'iac.

    Where goods are sold hy sample with a warranty that they shall correspond with the sample the vendee may recover damages for a breach of the warranty,, although he has accepted the goods after ah opportunity for inspection.
    Where an action has been commenced to recover damages resulting from a breach of warranty, the right of the vendee to recover damages is not affected hy the vendor’s offer to take back the goods to which objection has been made and to repay the vendee the purchase price.

      Semble, that the only manner in which a defendant can end such an action or mitigate the damages claimed^ therein is hy making a legal tender or an offer to allow judgment to he taken against him.
    Appeal by the defendant, Joel S. Hoyt, as surviving partner of tbe firm of Joel S. Hoyt & Co., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 15th day of December, 1891, upon the verdict of a jury rendered after a trial at the Broome Circuit, and also from an order entered in said clerk’s office on the 3d day of January, 1895, denying the defendant’s motion for a new trial made upon a case arid exceptions.
    The action was for a breach of warranty on the sale of a large quantity of tallow to the plaintiff’s testator by the firm of Joel S. Hoyt & Co., of which the defendant is the survivor. The defendant’s firm were manufacturers of tallow. The contract was made by correspondence between the parties. The questions whether there was an express warranty of the tallow sold, if so, whether there was a breach of such warranty, and as to the amount of damages sustained by the plaintiff were submitted to the jury, which found for the plaintiff. The verdict was $172.21, after deducting the defendant’s counterclaim of $404.18. Thus the amount of damages awarded to the plaintiff was $576.39, including the interest upon the balance after deducting the amount due the defendant.

      Homer Weston, for the appellant.

      .Gla/rh <& Brown, for the respondent.
   MaetiN, J.:

A careful examination of the evidence in this case, and of the opinions by this court and the Court of Appeals upon a former appeal, renders it manifest, we think, that the judgment should be affirmed, unless there was a failure to prove a breach of the defendant’s contract of warranty, or to establish damages to the amount recovered by the plaintiff. We are of the opinion that as to the eighty-five barrels of tallow for which the plaintiff was permitted to recover damages, there was sufficient proof of a breach of the defendant’s warranty and of the plaintiff’s damages to uphold the judgment. Two barrels of this tallow were melted, and found to contain about thirty per cent of marble dust. The plaintiff’s evidence was to the effect that lier testator had eighty-three barrels of this tallow on hand March 16, 1884; that every barrel of it that was used after that time was examined, and it was found that in all of them, after taking the shimmings off the top, which looked all right, and getting into the barrels, there was grit, and after going into the barrels white specks could be seen and grit could be felt between the fingers. The evidence was also to the effect that on the bottom of all the kettles in which this tallow was melted there was a sediment, similar to that found after melting the two barrels; that sixteen or eighteen barrels of this sediment, weighing about 500 pounds to the barrel, were taken out of two of the kettles, and that there was some in the tank below which opened into the drain. It was also proved that the defendants had marble dust, like that found in the tallow melted, in the factory where this tallow was manufactured, and no use for it was shown unless for adulteration.

On the former trial the court charged that the jury was authorized upon the evidence to find that all the tallow sold to the plaintiff’s testator by the defendant, except the first five barrels, wat adulterated, and to award damages therefor. This the Court of Appeals held was error (36 N. Y. St. Eepr. 2Y, 30), and, in discussing that question, Eugee, Oh. J., said: “ So far as the 122 barrels, which had been used before adulteration was discovered, are concerned, there was no evidence whatever that they were adulterated, but, on the contrary, there was affirmative evidence that a large proportion thereof was free from the admixture of any foreign substance. 'With reference to the balance of the tallow, there was no positive evidence that any of it was adulterated, except about three barrels.”

On the last trial, the court held that, as to the 122 barrels, the plaintiff could not recover, but as to the eighty-five barrels, the court submitted to the jury the question whether it was adulterated, the extent of such adulteration, and the amount of damages sustained by the plaintiff. If it were admitted that there was no direct and positive proof that all of these eighty-five barrels of tallow were adulterated, still, we think the case was properly submitted to the jury, as there were circumstances shown which rendered it at least quite probable that they were adulterated, and that the plaintiff sustained damages thereby to the amount .for which the jury rendered a verdict. This conclusion is not, we think, in conflict with the decision of the Court of Appeals. It was not held by that court that the evidence' was insufficient as to this portion of the tallow, the only statement in regard to it being that there was no positive evidence that any of it was adulteratéd except about three barrels. It would seem that if it was then contained in the appeal book, the learned judge who wrote the opinion must have overlooked the evidence of the plaintiff’s witnesses to the effect that every barrel of this tallow used was examined, and this foreign substance found which could be seen and felt after getting through the skimming-upon the top. As the evidence now stands, we are of the opinion that it was sufficient to justify the submission to the jury of the questions submitted and to uphold the verdict.

No further consideration of the questions in this case seems necessary, as they are fully discussed in the opinion -of Parker, J., delivered at Special Term, in which we concur.

The judgment and order should be affirmed, with costs.

Harden, P. J., and MerwiN, J., concurred.

Judgment and order affirmed, with costs.

The opinion of Parser, J., was as follows:

ParKer, J.:

The action is for a breach of warranty in the sale of a large quantity of tallow. The defendant earnestly contends that there was no-warranty that survived the acceptance and use of the tallow by plaintiff, and urged a nonsuit upon that ground. The court denied the motion and left that question to the jury. Exception was also taken to such ruling on the ground that it was a question of law for the court.

"When this case was in the Court of Appeals no opinion was expressed upon this question. The only point there decided was that there was no evidence to show that any of the,tallow was adulterated other than the eighty-five barrels on hand March twelfth, and that it was error to include any of the other barrels in estimating plaintiffs loss. Tliat decision was followed upon the last trial and none but the eighty-five barrels were considered.

Tbe existence of a warranty and the plaintiff’s right to recover for its breach without having offered to return the property was recognized and sustained by the General Term in 12 N. Y. St. Repr. 357. The decision upon that question has never been reversed and is still controlling upon this case.

Moreover, I am entirely satisfied that the contract between the parties was a sale of goods with a warranty that they should correspond tq a sample furnished. The first five barrels were sold as a 1 sample ” of defendant’s tallow, and it seems very plain to me that Doth parties understood that all tallow subsequently ordered and delivered should correspond to such sample. The letters and plaintiff’s evidence clearly indicate that. In this view of the case the refusal to nonsuit was no error, and even if the question was one for the court alone, its submission to the jury was harmless. In Zabriskie v. C. V. R. R. Co. (131 N. Y. 72, 77) it is said: “ The principle is well established that upon an executory sale of goods by sample, with warranty that the goods shall correspond with the sample, the vendee is not precluded from claiming and recovering damages for breach of warranty although he has accepted the goods after an opportunity for inspection.” These considerations dispose of defendant’s objections that no warranty survived plaintiff’s acceptance of the tallow.

On the trial plaintiff’s right to recover was limited to the loss sustained by an adulteration of eighty-five barrels. But defendant claims that the' evidence to show an adulteration of those barrels and the extent of it, is too uncertain and speculative to sustain a recovery. It appeared that two barrels of this eighty-five were melted by themselves, and a deposit of marble dust or other extraneous matter was discovered in the bottom of the kettle. Out of 487 pounds melted, 132 pounds of this worthless substance was deposited. Nearly thirty per cent of those two barrels proved tobe an adulteration and not tallow. Upon this discovery the remaining eighty-three barrels were inspected, and after taking a thin skimming off the top the rest of each barrel was found to exhibit a gritty feeling to the touch, and white flakes were visible throughout the •whole. Upon being used in the soap kettles with tallow from other sources it was found that in a few weeks the steam coils in such kettles were so covered with a similar deposit that they would not heat the material. And upon being cleaned out many barrels of such deposit were found in them, each barrel weighing about 500 pounds.

The, average weight of the eighty-three barrels was 284 pounds each, and plaintiff testified that the two barrels, tested as above, were worth thirty per cent less than if they had been as warranted. It was also shown that at about this time defendant had in the works at Syracuse some barrels of marble dust similar to that deposited.

Here seems to be direct evidence of some injurious, gritty substance in all of the barrels, and that in two of them taken indiscriminately from the lot, such gritty substance equaled about thirty per cent of the whole. Also, the number of barrels and weight of a similar deposit found after using the eiglxty-three barrels in the soap kettles, gave some indication of its proportion to the whole. It is not a forced presumption that the deposit in these kettles was the gritty substance perceived in the eighty-tliree barrels; and, while a jury may not have been able to reach with mathematical certainty the precise weight and extent of this adulteration, yet here was ample evidence from which they could estimate it. Here was actual adulteration in each barrel shown, and data from which the amount of the whole could be ascertained with reasonable certainty.

The defendant’s claim,, that it did not appear that the tallow tested and that contained in the eighty-three barrels was tallow purchased from defendant, is not sustained by the evidence.

Although Hogan could not tell what particular shipment it was from, or even that any tallow at all came from Hoyt’s, except from hearsay, yet he knew that the tallow came from the lot set apart as Hoyt’s, and the plaintiff himself identified the lot as defendant’s tallow.

After the action had been commenced, and before the eighty-three barrels had been used, defendant offered to take them back and repay to the plaintiff the purchase price of the same. This - offer the plaintiff rejected, and defendant now claims that for such reason he can recover only nominal damages. To sustain this propo: sition defendant invokes the well-established rule, that it is the duty of a person claiming for the breach of a contract to use such reasonable exertions as will render his injury or loss as small as possible. His argument is tbat had plaintiff accepted the offer he would have been fully compensated, and that by rejecting it he has enhanced the damages, and that, therefore, he should not now recover any damages at all. Manifestly that rule does not go to that extent nor apply to this case. Under the rule it is only the enhanced damages which plaintiff has willfully created that he is prevented from recovering. Here defendant seeks to deprive plaintiff of all his •damages.

Moreover, by plaintiff’s refusal defendant is not now called upon to pay more than he then offered. He was to restore the purchase price and himself take the adulterated tallow, which the evidence shows was worth thirty per cent less than that price. In either way the thirty per cent loss, and no more, is borne by the defendant.

Nor was plaintiff’s refusal to accept the offer unjust, for by doing it he would have received no compensation for his loss on the two barrels that had been melted, and he would have had to pay his ■own costs already incurred in this action.

But this position of defendant’s is untenable for the reason that in no case can a defendant, after action brought, bar the same, or reduce the damages by a mere offer to restore property, or to pay as damages a specified sum. He may make a tender as provided by law, or an offer for judgment, as provided by the practice, but an •offer of settlement in any other form neither abates the action nor mitigates the damages.

It may be that the use of the tallow for the making of soap, after ■the discovery of its adulteration, was not warranted, and that plaintiff would not be entitled to recover any damages sustained solely because of such use. It may be that the depreciation of the eighty-five barrels as a marketable commodity were the only damages he was entitled to recover, and that so far as the charge presents to the jury any other rule of damages it was error, but no exception is taken to any instruction on that subject, save the refusal to charge that only nominal damages could be recovered. The attention of the court was not called to any expression that might bear an improper meaning in that respect, nor does defendant now suggest .■any, and hence a criticism of the charge on that subject is not properly before me. As to the admission of the evidence of the plaintiff, who was deceased since the trial at which it was given, no objection was made except to that part referring to samples had upon the former trial, but lost, and hence not produced at this. The ground of the objection was “that a lost exhibit cannot be put in evidence.” The exhibit was not put in evidence. The testimony of the witness was allowed to be read so that the evidence of the expert Griffis, who referred to samples that he had tested by numbers, would be intelligible. Clearly no evidence was given under that ruling that has at all prejudiced the defendant. And I now understand that defendant’s counsel makes no point about it.

I do not find any error in the record that requires a new trial, and the motion is, therefore, denied, with costs.


author: HardiN, P. J.:

text:
    The Immaculate Conception Church, Ithaca, Appellant, v. Charles E. Sheffer, Respondent.

      Might of way ■ — •ambiguous language— the circumstances of use and situation of the parties may he shown — proof of contradictory statements of a witness made out of court.

    Where the language used in the grant of a right of way is ambiguous, evidence may ho received as to the circumstances attending the actual use of such right of way and the situation of the parties, with a view of arriving at their true intent in using the language to he construed.
    A party is entitled to show inconsistent statements of an adverse witness made out of court which tend to contradict the evidence of the witness given on the trial. "
    Appeal by the plaintiff, The Immaculate Conception Church, Ithaca, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tompkins on the 30th day of August, 1893, upon the report of a referee, with notice of an intention to bring up for review upon such appeal the report of said referee.

      Tompkins <& GoJ)b, for the appellant.

      J. A. Elston, for the respondent.
   HardiN, P. J.:

Plaintiff’s complaint alleges ownership of certain lands therein particularly described, situate in the city of Ithaca in block 10Y, and that on the 26th of April, 1892, the defendant wrongfully entered upon the plaintiff’s land described,- “ tearing down the gates and taking down the fence standing upon said land of the plaintiff and removing the same and injuring said premises, and thereby said defendant has deprived the plaintiff of the use and occupation of said land'above described, and prevented it from enjoying the same as it otherwise would have done to the plaintiff’s damage of one hundred dollars.” The answer contains several denials, and denies that the plaintiff is entitled “to a strip of land twelve feet wide taken off from the north side of lot 182, the said strip of land being a portion of the premises described in the complaint in this action.” The answer of the defendant also alleges “ that he is entitled to use as a lane or alleyway, and for alley purposes, the lane tw-elve feet wide off from the North side of Lot 182. Block 10Y, on Plain street, in said City of Ithaca, said alleyway being a part and parcel of the land described in the complaint in this action.” The answer also alleges “that said alley was reserved for a right of way and alley purposes by Anson Braman, the former owner of said premises, for the use of Lots 181 and 182, and also for the use of himself and his assigns.” And the defendant alleges that he is the owner of lot 181 “ and has the right to use said alley or right of way off from the North side of Lot 182.” The evidence reveals that both parties claim title to their respective lands, through Anson Braman, who, in 184Y, purchased lots 182, 183 and 184, situated at the corner of Plain and Buffalo streets, in the said city. January 1, 1849, Anson Braman conveyed to Theron Seymour the corner lot of 66 feet on Buffalo street by 198 feet on Plain street, which is known in the evidence as the Wilgus or Dox-stader lot. In the conveyance so made there was a reservation for the use of the balance of Braman’s lots of a right of way twelve feet, wide across the north end of the land conveyed. The conveyance, after describing the premises as parts of lots Nos. 182, 183 and 184, contained the following language : “ Reserving, however, to the said parties of the first part, their heirs and assigns, for the use of the balance of said lots, a right of way of an alley twelve feet wide on the North end of the premises hereby conveyed.” Subsequent, to the execution of that deed, and on May 8, 1850, Braman purchased of "Williams lot 181, which was sixty feet wide on Plain street and immediately joining his former ownership on the north. Subsequently, and on the 3d of September, 1868, Braman conveyed to Addison M. O’Daniel the west half of lot 186, being 66 feet by 132 feet, and in that conveyance were the following words: “ Together with the right of way over the lane taken off from the North side of Lot 182, being a part of the same premises conveyed to said Anson Braman by deed from J. B. "Williams.” The principal controversy at the trial was over the length of the lane mentioned in the language just quoted, the contention of the plaintiff being that the language vested the right to the grantee of a use of a right of way a distance of sixty-six feet from Plain street; whereas, the contention of the defendant is that the lane was to be extended 132 feet from Plain street so as to accommodate the entire length of the premises conveyed. The defendant has succeeded to all the right, title and interest embraced in the deed last mentioned, inasmuch as O’Daniel conveyed to Mead and Mead conveyed to Mary O’Daniel and she conveyed to the defendant. Subsequently, and in January, 1869, Anson Braman, having published his last will and testament, died and the devisee under his will conveyed the remaining portions owned by him to one Phillip Lynch, who conveyed to the plaintiff. Abundant evidence was given on the trial to indicate that at the time of the execution of the deed to O’Daniel, and for some time prior thereto, the lane, which commenced at Plain street and continued a distance of 132 feet east over the north side of lot 182, had been used its entire length and that a traveled way appeared as the result of considerable use. Prior to the execution of that conveyance Braman had carried on a nursery business on lots 181, 182, 183 and 184 for a number of years, and he resided on the east half of lots 183 and 184, and his barn was on lot 182 and faced the lane. There were also several buildings located along and adjacent to the lane, and Braman had been accustomed to use his barn and nursery grounds by passing over the lane from Plain street, that being the convenient means of egress to his premises from Plain street; and there had been in use a portion of the time a gate at the east end of the barn, at a point 132 feet east of Plain street. There was some evidence tending to show a use of the lane along the north side of lot 182 since about the year 1853 and its frequent use by Braman. It is made quite apparent by the evidence that when the defendant purchased the west half of lot 181 he had become familiar with the lane and its use prior thereto, and he had walked over the lane from Plain street, a distance of 132 feet, for a period of some twenty years that he had been acquainted with it, and that prior to his purchase he had walked over it, and that he saw that it was open from Plain street to the east end of the lot which he acquired, to wit, for a distance of 132 feet. In April, 1892, the defendant commenced building a barn on the back end of his lot and using the lane for the purposes of carrying the building material through to the site •chosen for the location of the barn. Before he had completed his building, and while he was still working upon it, the plaintiff, through its officers and agents, took means to close the lane by placing a gate across it and locking the gate so as to exclude the defendant from the use of the lane. After the gate had remained closed for some two or three days the defendant opened it and resumed the use of the lane for the convenience of his building. During the trial the plaintiff conceded “ that no part of the fence on the south side of the O’Daniel lot was taken down by the defendant, except so much thereof as was in front of and necessary to make convenient access to the bam.” The will of Bramah, which bears date the 21st of June, 1866, devised to his wife that portion of the lands then owned by him, and after a minute description of them occur the words, viz-. : “ Including a right of way from the above-described premises to said Plain street.” After his will was probated his widow and heirs at law joined in án instrument executed on the 26th of April, 1876, conveying to Phillip E. Lynch the lands described in the complaint, and at the close of the description occur these words, together with the use of a right of way from the above-described premises to said Plain street.” Lynch, on the 16th of December, 1878, conveyed to the plaintiff the premises described in the complaint, and that conveyance, after the words of description, contained the following words : Together with the use of a right of way from the above-described premises to said Plain street in the said village of Ithaca, being the same premises owned and occupied by Anson Braman, now deceased, in his lifetime, and described in tlie will of said Braman.” From the language found in the conveyance just alluded to, it is apparent that it was the intention that the right of way should be for the convenience of the properties, to wit, the property owned by the defendant and the property owned by the plaintiff. In order to subserve fully the purposes of the right of way, and especially to enable the defendant to have full benefit thereof, it is quite reasonable to suppose that the intention of the parties was that the right of way mentioned in the conveyance by Braman to O’Daniel should be of the entire length of the premises thereby conveyed to him. A careful perusal of the oral testimony, although it is very conflicting, and would, perhaps, have warranted the referee in reaching a different conclusion from the one he states in his report, seems to indicate that the language found in the conveyance to O’Daniel was used for the intent and with the purpose of giving him a continuous right of way from Plain street to the rear of his premises, to wit, for a distance of 132 feet. The referee received evidence from both parties as to the circumstances attending the practical and actual occupation of the land or right of way, and, we think, in doing so he kept within the rule of law which permits such evidence to be received where there is ambiguity or uncertainty as to the intention of the parties in using the language to be construed.

In Herman v. Roberts (119 N. Y. 37) it was held by Rugee, Ch. J., viz.: In considering the extent of the rights of the respective parties in the grant of a right of way, it is not proper to refer to the parol negotiations which preceded its execution or the colloquium accompanying it (Bayard v. Malcolm, 1 Johns. 467; Renard v. Sampson, 12 N. Y. 561; Long v. N. Y. C. R. R. Co., 50 id. 76); but we are to regard the language of the grant, and, when that is uncertain or ambiguous, the circumstances surrounding it, and the situation of the parties, with a view of arriving at the true intent of the parties.” We find no occasion to disturb the rulings of the referee or his .report, because he received the facts and circumstances as to the situation of the property at the time the language was used by the parties in creating the easement. As we have before said, there was a great conflict in the evidence, and, after a careful review of it, and awarding to the referee’s report such influence as we think it should receive, we accept his conclusions upon the facts, and we are of the opinion that his conclusions upon the facts accord with the weight of the evidence. (Barnard v. Gantz, 140 N. Y. 249.) Nor do we find any occasion to disturb the conclusions of law stated, by the referee in his report, which were as follows, viz.: 1. That by the deed of September 3d, 1868, Anson Braman conveyed to Addison M. O’Daniel with the western portion of lot 181 an easement appurtenant thereto for the right of way over a strip of land twelve feet in width, taken oif from the north side of lot 182 and extending eastward from the line of the Seymour property, which was sixty-six feet east of Plain street, to a line one hundred and thirty-two feet east from Plain street, and at the.same time granted to said O’Daniel and his assigns the right of way, so far as it was in the power of the owner of the premises now •held by the plaintiff to do, over that portion of said lane which extends from Plain street sixty-six feet eastward.

2. That the defendant, as the successor to the title and interests so conveyed to said O’Daniel, did, on the 26th day of April, 1892, have the light as against the plaintiff to use the lane throughout its entire length as a means of ingress and egress to his premises ; the right to open by force, if necessary, the gate across the lane at the west line of the plaintiff’s property, and also had the right to .remove so much of the fence in front of his barn as was necessary to make convenient access thereto from the lane.”

(2) Appellant complains of a ruling made by the referee. When the witness Catherine M. King was being examined the following question was propounded to her: u Q. Did you have a conversation with Mrs. Braman, now Mrs. Starr, before the premises were sold to Lynch, and after Mr. Braman’s death, in which a lane on the north side of the Braman barn was referred to ? ” This question was objected to by the plaintiff as leading, incompetent and improper ; the objections were overruled and an exception was taken, and the answer of the witness was “ I did,” and then the question was propounded, “ State what it was ? ” Thereupon plaintiff’s counsel stated that as Mrs. Starr was, at the time of making the statement, only life tenant, and had no right to convey, her evidence could not be received. Plaintiff had theretofore placed Mrs. Starr upon the stand and examined her at length with a view of giving facts and circumstances tending to show that no use of the lane was made beyond a distance of sixty-six feet from Plain street. In the course of her cross-examination she was ashed especially as to having had a conversation with Mrs. King, and especially as to whether she had stated that “ Whoever owned the O’Daniel lot had a right to use this barnyard * * * for a driveway,” and she had answered that she did not state that. Some other questions of a similar character were put to her which led to her denials. The referee was, therefore, warranted in delivering his ruling, which he did in the following language : “ The witness may state what Mrs. Starr said, if anything, with regard to the existence of a lane at that point at that time, confining herself to that simple fact, and also to the conversation to which Mrs. Starr’s attention was called.” Immediately after .this intimation of the referee the counsel for the defendant stated, viz.: This question is ashed witness for the purpose of contradicting Mrs. Starr.” The plaintiff took an exception to the ruling and the witness answered, viz.: “ She proposed 'to sell me the land between my lot and the O’Daniel line for a certain price. I said if I paid that price for it I should want to have the land clear through to the O’Daniel line. She said that she could not give that because O’Danie1 had a right of way across there. I think I have stated all that she said.” We think no error was committed by the referee under the circumstances apparent to him when he made the ruling. (Sloan v. N. Y. C. R. R. Co., 45 N. Y. 125; People v. Brockett, 85 Hun, 138; S. C., 65 N. Y. St. Repr. 667.)

(3) Many other rulings were made during the progress of the trial; in some instances, after the particular question that was propounded and the objections thereto’sustained, it appears the evidence was subsequently received which the question apparently called for. We observe that the referee allowed considerable latitude to either side in developing the evidence that related to the situation of the premises and the acts of the parties in respect thereto. We have observed no ruling that presents prejudicial error calling for us to interfere with the result reached by the referee. Numerous exceptions were taken to the referee’s declining to make some more minute findings of fact in response to requests that were made. In several instances the requests related to matters involved in conflicting evidence, and the referee in declining committed no error which should lead us to interfere with his refusal. And in some instances the requests were for facts which were immaterial in the light of the principal findings made by the referee upon the leading features of the case.

(4) It is contended in behalf of the appellant that as some evidence cropped out during the trial which indicated that “the defendant’s barn being two feet over on plaintiff’s land,” it is, therefore, apparent that the defendant “ is not entitled to cover a portion of it with his barn,” and it is insisted in behalf of the plaintiff that by so doing he “trespassed upon plaintiff’s rights and, therefore, plaintiff is entitled to recover.” If it be assumed that the plaintiff is right in the construction of the evidence to the effect that the barn is over the line to some extent, still we think the plaintiff is not entitled to have us disturb the report of the referee. J3y turning to the complaint, from which we have already quoted, it will be seen that the gravamen of this action is for an entry on the 26th day of April,'1892, and that it is alleged the defendant tore down “ the gates ” and took down “ the fence standing upon said land of tile plaintiff,” and removed the same and injured said premises, and no other wrongs or trespasses are mentioned in the complaint, and we find no language that would bear us out in construing the complaint as applicable to the circumstance that the barn was, as claimed by the plaintiff, over the line two feet, and, therefore, a trespass. Nor do we find the question of the plaintiff’s right to recover by reason of the location of the barn made a ground for relief during the progress of the trial.

The foregoing views lead to the conclusion that the report of the referee should be sustained.

The judgment should be affirmed, with costs.

MartiN and MeewiN, JJ., concurred.

Judgment affirmed, with costs.


author: HaediN, P„ J.:

text:
    Eames Vacuum Brake Company, Respondent, v. Thomas Prosser and Thomas Prosser, Jr., Appellants.

      Contract — when it.will not be reformed — receipt of money by a creditor after illegal, charges have been deducted— when not am, accord and satisfaction.

    Where the reformation of a contract is demanded on the ground that through mutual mistake it did not express the intention of the parties thereto, and it appears that the contract is as one of the parties thereto intended to make it, the court will not reform the instrument.
    Where sales agents hold a promissory note of a corporation under an agreement that they are to pay themselves from collections which they make (such collections to he applied on such note until it is paid), and they thereafter remit a balance .to the corporation, after deducting a commission which the corporation notifies them is illegal, the receipt by the corporation of such money in partial payment, coupled with its statement that such sums would be received on account, does not estop the corporation from recovering the sums withheld by the agents.
    Such a transaction is not an accord and satisfaction.
    Appeal by the defendants, Thomas Prosser and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 26th day of September, 1894, upon the report of a referee, arid also from an order entered. in said clerk’s office on the 21st day of August, 1894, granting the plaintiff an additional allowance.
    On the 22d day of January, 1877, an agreement was entered into between the plaintiff, the Eames Vacuum Brake Company, and the defendants, under which the defendants were to act as agents for the plaintiff in the sale of certain brakes manufactured by the company ; this agreement provided, among other things, that the defendants should receive a commission of ten per cent upon all sales so made by them for the company. ■
    Controversies having subsequently arisen between the parties, the litigation was settled by the execution of an agreement, dated May 23, 1883, which contained, among other provisions, the following: “In consideration thereof, the said Eames Vacuum Brake Company ■ hereby agree to pay to the said Prossers for their advances in said business and for said property as follows: The said company to give to the said Prossers its note, dated May 19th, 1883, on interest at four months, to be satisfactorily endorsed, for the amount due them on account of advances, being hereby agreed and fixed at twenty-five thousand four hundred fifty-two dollars and ninety-eight one-hundredths ($25,452.98), said Prossers to hold said note and collect the outstanding accounts, and as fast as collections and those for orders unfilled at this date are made, to apply on said note till paid, and when note is paid the balance collected of said accounts to be paid, and those not collected to be transferred to the company. And the'company to pay to the said Prossers $10,000 in cash; said note and cash to be given and paid in fifteen days from this date, and upon such note and cash being given and paid, the transfers, assign» ments and delivery of the above property to be given by the said Prossers as aforesaid. The said Prossers to use all due diligence to collect said accounts. All orders up to this date unexecuted to be filled through the said Prossers as sales agents as before.”
    This action was brought to recover collections alleged to have been unlawfully withheld by the defendants and retained to their own use.
    The answer of the defendants alleged that the defendants’ right to retain commissions under the sales contract of January 22, 1877, at the rate of ten per cent was reserved as stated therein, and that the omission to state the fact of such reservation specifically in the agreement of May 23, 1883, was because of the mutual mistake of the parties thereto, and the answer demanded that the agreement of May 23, 1883, be reformed so as to provide that the defendants should receive and retain commissions at the rate of ten per cent as provided in the contract of January 22, 1877.
    Payments were made by the defendants under a claim on their part to retain commissions (which were deducted on making such payments) which commissions the plaintiff claimed the defendants were not entitled to, but the money thus paid was taken by the plaintiff with a statement that it would be received on account.

      Watson M. Rogers and John Ransing, for the appellants.

      Eton R. Brown and A. E. Sajwyer, for the respondent.
   HaediN, P„ J.:

Defendants requested the referee to find that the settlement agreement omitted a provision to the effect that they might retain commissions as agents under the agreement of January, 1877, “ by inadvertence and the mutual mistake of the parties thereto.” There was, at most, a. conflict in the evidence upon that subject, and there was not such a preponderance of evidence in favor of defendants as to warrant the conclusion that the refusal of the referee to so find was erroneous. Besides, where it appears, as by some of the evidence it does appear, that the contract is as one of the parties intended to make it, the court will not reform it. (Bartholomew v. Mercantile M. Ins. Co., 34 Hun, 265; Paine v. Wyman, 75 N. Y. 593.)

The proof in the case given to secure' the reformation does not come up to the degree required by the rule laid down in Bartholomew v. Ins. Co. (supra), and cases there cited. Upon, the trial evidence given to support the defendants’ averments that the agreement of May, 1883, did not express the true intent of the parties, was received and admissible under that part of the answer which sought a reformation. Although some of the evidence was not admissible on the other issues, its admission is not such an error as requires an interference with the report of the referee. The principal issue in the case turned upon the construction to be given to the contract of settlement of May 23, 1883. Plaintiff and defendants were parties to litigation, and sought to make an amicable adjustment of the controversies, and in the presence of experienced counsel on either side the negotiations were brought to an end, and the instrument prepared under the supervision of their counsel was executed. Its terms and stipulations were matured after much discussion and deliberation. It was prepared to supersede and rescind the other contracts existing, and to produce new relations of the parties to the subject-matters embraced within its terms. ¥e must look at the circumstances surrounding the parties in giving construe-' tion to the language used. Defendants’ claim to commissions cannot be recognized under the contract of 1877, unless expressly or impliedly reserved by the terms of the new instrument of May, 1883. (McCreery v. Day, 119 N. Y. 1.) The latter instrument provided in terms that defendants should transfer and assign to plaintiff <£ all orders received for goods and not filled in full, and hand over and deliver on receipt thereof orders which may be hereafter received by them growing out of their connection with said business carried on by them.” Then it provides for the payment of $10,000 in cash by plaintiff, and in addition thereto a note was to be made by plaintiff for $25,452.98, on time, and for the purpose of having security for the note the defendants were to “ collect the outstanding accounts, and as fast as collections and those for orders unfilled at this date are made, to apply on said note till paid, and when note is paid the balance collected of said accounts to be paid, and those not collected to be transferred ” to plaintiff. No words of reservation are found in the language used to describe the accounts. On the contrary, “ the collections ” are to be applied or transferred to plaintiff. The defendants expressly stipulated to use all due diligence in collecting such accounts. However, the defendants claim that the words at the close of the instrument should be construed to give them a commission of ten per cent on orders executed at that date. The clause reads, viz.: All orders up to this date unexecuted to be filled through the said Prossers as sales agents as before.” Prior to that time the arrangement of the parties was evidenced by the agreement of the 22d of January,. 1877. By turning to that instrument it is found to provide that defendants should have the sales in the United States and Canada, and the plaintiff was to indemnify the defendants from all suits for infringement of patents, and the. plaintiff was not at liberty to sell or give any license to any persons to use the said brake within the said territory without the consent of the defendants and payment of ten per cent on the amount of any sales. The contract further provided in terms, viz.: Tire said Thomas Prosser &r Son, in consideration of said ten (10) per cent, to be paid them as aforesaid, and as such agents, do hereby agree to use their best efforts to promote the sale of said brakes; all canvassing and advertising expenses to be paid by them.” The consideration for the ten per cent commission is thus clearly defined. By the terms of the compromise or rescinding agreement, the defendants were relieved from the burdens which they had assumed, as a consideration for the commission to be received for sales made by them pursuant to the terms of the agreement of 1877. When the agreement of 1877 was abandoned, by the act of the parties, of course the defendants ceased to be sales agents; and, under its terms, ceased to be bound by the stipulations which cast upon them burdens, and were not required to render the “ consideration ” theretofore due from them as an equivalent for the ten per cent commission. Under such circumstances it does not seem to be a reasonable construction to hold that the defendants were to receive ten per cent commission upon the unexecuted orders to be thereafter filled. The construction put upon the instrument by the learned referee seems -more reasonable. He found : “ That said agreement does not provide that defendant should have commissions on unfilled orders,” or on “ filled orders.” He also found that there was no account stated between the parties. Plaintiff objected to the withholding of its money by the defendants, and by receiving part thereof did not forfeit its rights in the sum wrongfully withheld. (Stenton v. Jerome, 54 N. Y. 480.) Defendants held the moneys of the plaintiff, and their assertion that the lesser sum must be received by the plaintiff in full, did not produce an accord and satisfaction. The case of Schuyler v. Ross (13 N. Y. Supp. 944) differs from this. There a sale had been made of bark, and the plaintiff, by accepting the check, admitted the measurement claimed to be correct.

Hills v. Sommer (53 Hun, 392) was a case where a draft was sent for .the amount alleged to be the balance for goods sold, after deducting for the par’ts that were defective, and the defendants disputed the liability for any greater sum than the draft they sent, and plaintiff accepted the same as a compromise of the dispute. Here, the plaintiff did not acquiesce in the claim of the defendants, but objected to the sufficiency of the advances, and expressly notified the defendants that the sums remitted would be credited on account. (Stenton v. Jerome, 54 N. Y. 480; Ryan v. Ward, 48 id. 204; Nassoiy v. Tomlinson, 65 Hun, 491; S. C., 20 N. Y. Supp. 384.) There was a deficiency. The defendants retained money. which, by the instrument signed by them, had been assigned to and belonged to the plaintiff, and the part payment thereof to plaintiff did not discharge the defendant’s liability. (Jaffray v. Davis, 48 Hun, 500.) The referee refused to find that defendants expended money for goods ordered, cartage and telegrams in May, subsequent to the nineteenth of May, amounting to $914.92, and refused to find that defendants expended, in June, $408.11, and that such sums were credited on the books of plaintiff. Ye think such refusals were erroneous and that the evidence warranted the findings requested. Some of the evidence bearing upon tbe items is found in the testimony of Prosser to the effect that he was requested to allow the goods ordered for the company to be delivered and that all the goods and expenses mentioned in Exhibits Q and it were delivered and received by plaintiff subsequent to May 23, 1883. Bingham’s evidence tends to the same result. The plaintiff has been allowed improperly to recover for the items referred to in Exhibits Q and R, to wit, $914.92 and interest from June 1, 1883, and $46.58 and interest from July 1, 1883. The amount of the items should be deducted from the judgment.

(2) The affidavits and papers used at Special Term were such that the court was called upon to exercise its discretion as to the propriety of granting an extra allowance. (Burke v. Candee, 63 Barb. 552; Gooding v. Brown, 21 Wkly. Dig. 46; Morss v. Hasbrouck, 13 id. 393; Tolman v. S., B. & N. Y. R. R. Co., 31 Hun, 403.) It is not apparent that the discretion was abused and, therefore, the order should be affirmed.

MaktiN and MbewiN, JJ., concurred.

Judgment and order reversed and a new trial ordered, with costs to abide the event, unless plaintiff shall stipulate to modify the report and judgment by deducting $914.92 and interest from June 1, 1883, and $46.58 and interest from July 1, 1883, in which event the judgment as so modified and the order are affirmed, without costs to either party of this appeal.