App. Div.] Third Department, January, 1906. of such covers was intended between the parties, yet the evidence was not so clear and undisputed as to warrant us in now holding. that they were so sold, and that the trial court was authorized to withhold that question from the jury. Without a finding of the jury upon that question, we may not say that the instruction of the trial court as to the plaintiff's title to the covers was harmless. The defendant's counsel takes several exceptions to the admission and rejection of evidence by the trial court; I am of the opinion that neither of them was a harmful error for which the judgment should be reversed. My conclusion is that so much of the judgment as affects the plaintiff's claim made and set forth in the first cause of action in its complaint, viz., its claim for the crossers, should be affirmed, and that so much thereof as affects its claim for the covers, as set forth in its second cause of action in said complaint, is erroneous and should be reversed, and that as to such second claim a new trial should be had. All concurred; KELLOGG, J., not sitting. So much of the judgment and order as affects the plaintiff's claim made and set forth in the first cause of action in its complaint, to wit, its claim for the crossers, unanimously affirmed, and so much thereof as affects its claim for the covers, as set forth in the second cause of action in said complaint, reversed, and as to such claim a new trial granted, without costs in this court. W. H. PIPER and W. D. PIPER, Respondents, v. JOHN C. SEAGER, Appellant. Third Department, January 8, 1906. Fartnership - when new partnership cannot recover on unperformed contract of sale made by former partnership - amendment of pleading -when error to refuse to allow vendee to amend answer to allege breach of contract. When a partnership has contracted to sell and deliver a certain quantity of coal at a stated price, and when at a time when said contract is partly performed the partnership is dissolved by the retirement of one partner and a new partnership is formed, which new partnership, after a few deliveries, refused to APP. DIV.- VOL. CXI. 8 Third Department, January, 1906. [Vol. 111. complete said deliveries as agreed in the original contract, there can be no recovery from the vendee by the new partnership on the original unperformed contract of the old firm. In such action it is error to refuse to allow the vendee to amend his answer so as to set up the breach of said contract. APPEAL by the defendant, John C. Seager, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Cortland on the 4th day of May, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the Cortland Trial Term, and also from an order entered in said clerk's office on the 18th day of April, 1905, denying the defendant's motion for a new trial made upon the minutes. This action is brought by the plaintiffs, W. II. Piper and W. D. Piper, doing business under the style and name of W. II. Piper & Co., to recover for a quantity of coal alleged to have been sold by the plaintiffs and delivered to defendant in the month of March, 1903, at the agreed price of $1.30 per ton F. O. B. at their mines in Pennsylvania, the whole number of tons so delivered being 1,576,8, and the price thereof so sought to be recovered being $2,049.76. The defendant, for an answer thereto, first, denied all the averments of such complaint; second, set forth a counterclaim thereto. To such counterclaim a reply was served, but which in no manner explained or enlarged the said claim of the plaintiffs as set forth in their complaint. Upon these pleadings the case came on for trial, and the court, after hearing the evidence, directed a verdict for the plaintiffs for the amount claimed in the complaint, and from the judgment thereon entered, and from the order denying a new trial upon the minutes, the defendant takes this appeal. Further facts appear in the opinion. O. U. Kellogg, for the appellant. James F. Dougherty, for the respondents. PARKER, P. J.: It seems that some time prior to February, 1903, there was a firm consisting of this plaintiff, W. H. Piper, and one Lewars, doing App. Div.] Third Department, January, 1906. business under the firm name of W. II. Piper & Co., which for many years had been miners and sellers of soft coal in the State of Pennsylvania, and that in such month of February they entered into a contract by written correspondence with this defendant, by which they agreed to ship to Wickwire Brothers, at Cortland, in the State of New York, 20,000 tons of their coal between April 1, 1902, and April 1, 1903, in equal monthly shipments, at the rate of one dollar and thirty cents a ton on board the cars at their mines, and this defendant agreed to pay therefor. On January 1, 1903, and while this contract was outstanding, such firm was dissolved, Lewars withdrew therefrom, and the plaintiff W. D. Piper, who was the son of the other member, W. II. Piper, then joined with him in the continuance of such business, and con tinued to carry it on under the same name and style that the prior firm had always used, viz., W. II. Piper & Co., and they claim that at that time they sent out a printed notice of such dissolution to all the customers of the old firm, including this defendant. The mines and the assets of the old firm seem to have been taken by this new firm, and the general business of mining and selling coal seems to have been continued without interruption by such new firm. At the time of the creation of such new firm there had been delivered to Wickwire Brothers on such contract by the old firm some 5,000 or 6,000 tons. The new firm continued to deliver thereon during January and February some 700-odd tons, which were paid for by the defendant. In March the plaintiff's delivered the number of tons set forth, and which is claimed for in this complaint, and then notified the defendant by letter, dated April 1, 1903, that they would deliver no more upon such contract, but considered it completed so far as they were concerned. At this time there were some 12,000 tons back and undelivered upon such Wickwire contract. It is to be noticed that there is no evidence in the case that the defendant ever made any contract whatever with the new firm for the purchase from it of any coal whatever, and the only request by the defendant that it deliver any coal that appears from this record is that contained in the letter of January 19, 1903, and from which it is evident that he considered the "W. H. Piper & Co.," to whom he was writing, as the old firm, and the defendant distinctly testified that he never received the notice of dissolution, Third Department, January, 1906. [Vol. 111. and that at that time he did not know of the existence of the new firm. And it is to be further noticed that in no letter written by the new firm is there any claim that it was not liable to perform the Wickwire contract, so called, save for the reason that, owing to strikes and causes beyond their control, for which provision was made in the contract, it could not perform the same. It is apparent, therefore, that the coal for which the plaintiffs seek to recover was never purchased from them by this defendant; no contract concerning it was ever made between the plaintiffs and this defendant, and, therefore, they have been allowed to recover upon a cause of action which was not stated in their complaint. Moreover, it is also apparent that the contract under which this coal was delivered to the defendant in the month of March and paid for by him in the months of January and February, was purchased from the old firm, and the old firm is still in default in the performance of that contract on its part, something over 12,000 tons being yet due defendant thereon, and if the plaintiffs are to be allowed to recover in this action for coal purchased upon that contract, it would seem very clear that the defendant should have been allowed to plead as a defense to that action the breach of the contract under which such coal was purchased, and yet the trial judge refused to let the defendant amend his answer in any particular. Not only have the plaintiffs' been allowed to recover upon a contract that they did not set forth in their complaint, but also upon a contract that was never made with them but with an entirely different party, and the judgment that is rendered in favor of these plaintiffs would not bar an action if brought by the old firm for the same coal. This seems to be clear error for which this judgment should be reversed and a new trial granted. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event. App. Div.] Third Department, January, 1906. MARGARET E. MCAULEY, as Administratrix, etc., of HUGH MCAULEY, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant. Third Department, January 8, 1906. Negligence-death of engine driver by collision with derrick of wrecking train-failure of wrecking crew to give warning- negligence of fellow-servant. The plaintiff's intestate, while driving the defendant's engine, was struck and killed by the arm of a derrick engaged in removing wreckage from an adjoining track, which arm extended over the track upon which the intestate was driving, which was in other respects unobstructed and safe. The negligence charged was the failure of the crew of the wrecking train to flag the engine which plaintiff's intestate was driving. Held, that assuming said negligence, it was that of the intestate's fellow-servants, for which the defendant was not liable; That the fact that the flagman was employed on the wrecking train did not make him the master's alter ego. APPEAL by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 7th day of April, 1905, upon the verdict of a jury for $6,000, and also from an order bearing date the 3d day of April, 1905, and entered in said clerk's office denying the defendant's motion for a new trial made upon the minutes. The plaintiff's intestate was a passenger engineer in the employ of the defendant. On the morning of February 27, 1901, he received orders to take a light engine and train crew and run west on track 2 on defendant's road from 'Albany to Rotterdam Junction. Such run was to be made as a third section of train 37. The first section of such train, consisting of a regular passenger train, left Albany at the usual time, and passed through Schenectady at three-twelve that morning. A wreck had occurred on track 4 at a curve in the road about one and three-fourths miles west of Schenectady, and the wrecking train was ordered out and proceeded westward from Albany to Schenectady on track 2, and thence on track 3 to the place of the wreck, following such first section and passing Schenectady at three-thirty-five. At the place of the wreck there were |