light of the plaintiff's representation of her age, if found to have been made, the defendants were negligent when violating the statute; the fact of negligence through the violation being, as noted, for the jury to decide, in connection with all the circumstances of the case. The charge as quoted simply related to the bearing of the plaintiff's representation upon the fact of the defendants' compliance with the statute, and so far it was not erroneous; but the defendants did not present the point to the court that the statement of her age by the plaintiff should be considered upon the question of negligence, the words of counsel being only, "I except to that part of your honor's charge in which you said her writing her age did not excuse the defendants." The correct proposition being that the defendants were not, as matter of law, to be deemed excused, but that the plaintiff's statement of her age might be considered upon the question of negligence, this exception, accompanied by no suggestion of a modification of the charge, cannot properly be deemed sufficient present error to justify a reversal of the judgment. We conclude that the judgment should be affirmed, with costs. All concur. (50 Misc. Rep. 345) ROSENSTEIN v. CASEIN MFG. CO. (Supreme Court, Appellate Term. April 24, 1906.) 1. SALES-ACTION FOR PRICE-BURDEN OF PROof. Where, in an action for goods sold by sample, the buyer pleaded the general issue, and alleged that the goods fell below the sample, the seller had the burden of proving that the goods delivered were equal to the sample. [Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, § 1047.] 2. SAME-ISSUES AND PROOF. In an action for the price of goods sold by sample, the buyer pleaded the general issue, and alleged that the goods fell below the sample. The evidence of the buyer was to the effect that the goods fell below the sample, and part of them were practically worthless. Ield that, in the absence of evidence that the seller delivered goods equal to the sample, there could be no recovery, though defendant's evidence was disregarded. Appeal from City Court of New York, Trial Term. Action by Max H. Rosenstein against the Casein Manufacturing Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed, and new trial granted. Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. Gillespie & O'Connor (George J. Gillespie and William F. Delaney, of counsel), for appellant. Engel, Engel & Oppenheimer (J. B. Engel, of counsel), for respondent. SCOTT, P. J. The plaintiff sued for goods sold and delivered, alleging the sale and delivery of 39 barrels of a certain manufactured product known as "casein." The defendant, denying the contract set forth in the complaint, alleged an agreement for sale by sample; that 39 barrels were received; that they did not conform to the sample; and that and 132 New York State Reporter they were for that reason rejected. A counterclaim was also pleaded for freight paid on the barrels received. At an early stage of the trial the plaintiff conceded, and, indeed, the evidence clearly showed, that the sale had been by sample, and the only point litigated was whether or not the merchandise delivered came up to the sample. The only evidence upon that point was that which was given by the defendant, and it was all to the effect that the casein in 34 out of the 39 barrels fell below the sample, and was practically worthless. The learned justice in the course of his charge instructed the jury as follows: "The burden of proof, ordinarily, in a case for goods sold and delivered is upon the plaintiff; but in an action of this character, where the defense is that the goods are not up to sample,, the burden shifts from the plaintiff to the defendant, and it becomes the duty of the defendant to satisfy you, by a fair preponderance of the evidence, that the goods were not up to sample." This was duly excepted to, as was the court's refusal to charge that it was the duty of the plaintiff to establish that the goods delivered by him were up to sample, under which the sale was had, and the charge and refusal to charge are now called in question as reversible errors. The charge in the particular noted was obviously erroneous, and cast upon the defendant a burden which it was not called upon to bear. Duryea, Watts & Co. v. Rayner, 20 Misc. Rep. 544, 46 N. Y. Supp. 437; Rose v. Wells, 36 App. Div. 593, 55 N. Y. Supp. 874. It is elementary that the plaintiff, in order to recover, must affirmatively establish the essential elements of his cause of action. One of the essential allegations of his complaint was that he had delivered the casein which had been the subject of sale. This allegation was put in issue by the general denial, as well as by the more specific separate defense which alleged the sale by sample. So soon as the fact was established, by concession or proof, that the sale had been by sample, the plaintiff could establish his allegation of delivery only by showing that the goods attempted to be delivered were the goods which had been the subject of the sale, i. e., goods equal to the sample. Hence, it became a part of plaintiff's affirmative case to show that the goods were equal to sample, and he burden of doing this never shifted from him to the defendant. The verdict was contrary to all the evidence in the case as to the quality of the goods attempted to be delivered, and we cannot say that the jury was not influenced to the defendant's prejudice by the erroneous charge. We think that the trial justice might well have dismissed the complaint, or at least have set the verdict aside as against the evidence. As has been said, the only issue litigated was whether or not the goods came up to sample, and all the evidence on this point was to the effect that they did not. It is no answer to say that the jury were not bound to believe the defendant's witnesses, for, if their testimony should be entirely disregarded, the case would be left with a concession that the sale was made by sample, and with no evidence that the plaintiff ever delivered, or attempted to deliver, the goods which he sold, to wit, goods equal to the sample by which the sale was made. The judgment must be reversed, and a new trial granted, with costs to appellant to abide the event. All concur. (50 Misc. Rep. 317) MESSENIO v. ATCHISON, T. & S. F. RY. CO. (Supreme Court, Appellate Term. April 24, 1906.) MASTER AND SERVANT-CONTRACT OF EMPLOYMENT-MODIFICATION. A person applied for a position as boiler maker, on condition that he was competent. No time was mentioned when the employment was to begin or terminate. On examination by the master mechanic, the applicant was found incompetent, and was assigned to other work for less wages, if he so desired. He entered on the duties assigned, and received the wages agreed on without protest. Held that, as the contract of em ployment as boiler maker was terminable at the will of either party, the acceptance by the applicant of other work for less wages operated as a termination thereof. Appeal from Municipal Court, Borough of Manhattan, Second Dis trict. Action by Joseph Messenio against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. Crocker & Wickes (Forsyth Wickes, of counsel), for appellant. Raymond Cotte, for respondent. TRUAX, J. The defendant advertised in this city for men to fill the places of its striking workmen in Arizona and California. The plaintiff applied for the position of boiler maker. He signed a contract, which recited that it was made upon the express understanding and condition that the answers and statements therein contained were true, and that "he was a competent boiler maker," and that "this agreement is made upon the condition of the truth of said representations." His compensation was to be not less than 34, nor more than 38, cents per hour. No time was mentioned when such employment was to begin or terminate. The plaintiff was conveyed to California by the defendant, and upon his arrival there was subjected to an examination by the defendant's master mechanic, and it is clear from the testimony in the case that the plaintiff was deficient in the qualifications necessary to fill the position of a competent boiler maker. He was informed of the result of such examination, and was told that, if he so desired, he would be assigned to work as a machinist's helper at wages of 21 cents per hour. He thereupon entered upon the duties of that position, and remained in the defendant's employ from May, 1901, until August of that year, when he voluntarily left the service of the defendant. He was paid in full at the rate of 21 cents per hour, and for every hour of overtime was paid at the rate of "time and a half," and he accepted such payment, seemingly without protest or claim for further remuneration. The time plaintiff worked and the amount paid him is not disputed. Upon the trial the plaintiff offered the written contract in evidence. Over the objections of the defendant, the plaintiff was allowed to offer oral testimony of conversations had prior to the making of the written agreement, which tended to vary it in several important particulars, but the testimony thus given does not seem to have entered into the computation by which the court below arrived at the judgment given in and 132 New York State Reporter favor of the plaintiff, as such judgment only represented the difference between the sum actually paid the plaintiff and the lowest rate he would have received under the written contract. We think, however, the plaintiff is not entitled to recover in any event upon the facts disclosed. The contract was clearly terminable at the will of either party. Martin v. Ins. Co., 148 N. Y. 117, 42 N. E. 416; Outerbridge v. Campbell, 87 App. Div. 597, 84 N. Y. Supp. 537; Byrne v. Weir, 38 Misc. Rep. 741, 78 N. Y. Supp. 1110. When the defendant, by the examination which it had a right to make, ascertained that the plaintiff was incompetent to perform the duties of the position. for which he had made application, another position was offered by the defendant and accepted by the plaintiff. The original contract was thus not only by the understanding, but by the acts, of the parties terminated, and a new one entered into, the terms of which were adopted, and the benefits received by the plaintiff. He cannot now resort to the previous written contract for the purpose of enforcing a cause of action against the defendant. The judgment must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. (50 Misc. Rep. 628) COSTELLO v. FORTY-SECOND. ST., M. & ST. N. AVE. RY. CO. (Supreme Court, Appellate Term. April 24, 1906.) 1. JUDGMENT-DEFAULT-SETTING ASIDE. On a motion to open a default judgment, based not only on affidavits, but on all the proceedings and pleadings and the inquest taken by the plaintiff against the defendant, the testimony given at the inquest will be examined, and where it does not show a cause of action the judgment will not stand. 2. STREET RAILROADS-OPERATION-COLLISION WITH VEhicle. Where plaintiff, while standing with his cab three yards from a street car track, saw a car approaching at half speed, but turned and drove on the track, and was struck by the car, he is not entitled to recover for the injuries. [Ed. Note. For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 214.] Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by Michael T. Costello against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company. From an order denying a motion to vacate a judgment by default and for a new trial, defendant appeals. Reversed, and new trial ordered. Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. TRUAX, J. From an examination of the affidavits submitted on the part of the defendant, it is clear that they do not furnish a sufficient excuse for opening the default. The motion, however, is based not only upon affidavits, but "upon all the proceedings and pleadings had here in and the default and inquest taken by the plaintiff against the defendant." The testimony given at the inquest is attached to, and forms part of, the return, and, for the purpose of determining whether or not the default should be opened, we may examine such testimony, with a view of determining whether the same sets forth a cause of action against the defendant, because, unless the plaintiff from the facts shown is entitled to recover, the judgment should not stand. The plaintiff was the only witness sworn in his own behalf. He testifies that he was standing with his cab on Broadway between Forty-Fifth and Forty-Sixth streets, near the center of the block, on the east side of the street. He wanted to go south, and for that purpose started to cross the street. He was then about three yards from the car track, and saw a car at Forty-Fifth street, coming north at "half speed." It is evident that his horse was headed north, as he says: "I was in the center of the square [Long Acre Square], turning to get out." As he was crossing the north-bound track, he was hit by the car. It would appear, therefore, that after he saw the car he turned his horse towards the west, traversed the distance from where he stood to the track, and had got upon the track when struck by the car. Whether the car struck the horse or the cab is not shown. The accident occurred in the center of the block. There was no evidence that the speed of the car was accelerated, nor of any other circumstance showing negligence on the part of the motorman. The mere happening of an accident in such a case is no evidence of negligence, and, under the circumstances disclosed, if the defendant was in any way negligent, the plaintiff was equally so. Order reversed, and new trial ordered, with costs to appellant to abide the event. All concur. (50 Misc. Rep. 635) D'OLIER v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Appellate Term. April 24, 1906.) CARRIERS-INJURY TO SHIPMENT DAMAGES. Where 14 cases of yarns were shipped, of which 5 were broken and the yarns therein damaged, and the shipper made no effort to discover the condition of the yarn in the uninjured cases, but sold the whole 14 cases as damaged goods, and there was no other evidence as to the amount of the damage, the shipper is not entitled to recover the difference between the value of the yarus when shipped and the amount received at the sale. Appeal from Municipal Court, Borough of Manhattan, Seventh Dis trict. Action by James D'Olier against the New York Central & Hudson River Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial granted. Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. Charles C. Paulding, for appellant. Ezra P. Prentice, for respondent. |