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was a brand used by the defendants in their business. There was also no proof of any adequate notice that the plaintiff's assignor held the goods as bailee for the defendants.

[1, 2] If the goods were salable in the ordinary course of business, the measure of damages to which the plaintiff would be entitled was the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted. Personal Property Law (Consol. Laws, c. 41) § 145. If, on the other hand, it is held that the goods could not readily be resold at a reasonable price, then the plaintiff should have notified the defendants that the goods were held by the plaintiff as bailee for the defendants. Personal Property Law, § 144, subd. 3. In either event, it is clear upon this record that it was error to allow a recovery for the full purchase price.

It follows that the judgment should be reversed, and a new trial ordered, with $30 costs to the appellant to abide the event. All con

cur.

EDWARD J. BARTON LIGHTERAGE CO., Inc., v. LA BRECQUE CO., Inc.

(Supreme Court, Appellate Term, First Department. May 25, 1920.) Contracts Ow322 (3)—Evidence held insufficient to show complete performance

of lighterage contract.

In an action on a contract to lighter certain drums of menthol acetate, to recover the stipulated compensation, wherein defendant claimed that performance had not been completed, and it appeared that the lighter, before being unloaded, capsized, precipitating the drums into the water, whereby some of them were permanently lost, evidence held insufficient to show complete performance on plaintiff's part, so as to entitle it to a verdict for the full amount of the contract; it not appearing whose duty it was to unload the lighter.

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by the Edward J. Barton Lighterage Company, Incorporated, against La Brecque Company, Incorporated. From a judgment for plaintiff, and an order denying defendant's motion for a new trial, defendant appeals. Reversed, and new trial ordered.

Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ.

O'Brien, Malevinsky & Driscoll, of New York City (Arthur F. Driscoll, of New York City, of counsel), for appellant.

Benjamin Marcus, of New York City, for respondent.

WAGNER, J. On or about March 15, 1919, the plaintiff, in writing, agreed to lighter certain drums of menthol acetate, as embodied in the following confirmatory letter sent by plaintiff to defendant:

"March 15, 1919. "La Brecque Warehouse Co., Woolworth Building, New York City-Dear Sir: Attention Mr. Farley. As per agreement with your Mr. Farley, we are placing our lighter H. S. & T. No. 8 at the foot of Eagle street, Greenpoint, So For other cases see same topic & KEY-NUMBER in all Key Numbered Digests & Indexer

(182 N.Y.S.) March 14th, to lighter 620 drums of menthol acetate, from the above-mentioned point to the New Jersey Zinc Works, Hackensack river.

“The rate on this shipment to be 12 cents per one hundred pounds, allowing four (4) calendar days free time. In the event of demurrage accruing on this boat, the charge will be $25 for each and every day. "Thanking you for this business, we remain, “Very truly yours,

“lSigned] Edward J. Barton Lighterage Co., Inc." This action is brought to recover for the services claimed to have been rendered under the contract. Plaintiff claimed complete performance. It introduced evidence to prove that the lighter was loaded with the drums in question (being 616 in all) at the foot of Eagle street, Greenpoint, as provided by the contract. The loading began on March 14th. There is no evidence as to how long it took to load the lighter, or when it left Eagle street for its destination, or the length of time it took to reach the New Jersey Zinc Works, Hackensack river, its destination, or when it arrived there. After this hiatus in the proof we have the testimony of the plaintiff's foreman, who testified that he saw the lighter tied to the bulkhead of the New Jersey Zinc Works on April 8th; he did not know when it reached there. When he arrived the lighter was listing about 45 degrees. About five minutes after his arrival the lighter suddenly "groaned,” turned over, and spilled a number of the drums into the water. All but 8, according to the testimony, were eventually recovered. While there was evidence that the lighter was properly fastened to the posts on the bulkhead, there was no attempt made to account for the overturning of the lighter, no evidence when the lighter arrived, whether or not the defendant or its employés were notified of its arrival, and no evidence as to the condition of the lighter at the time of its arrival. Upon this evidence the plaintiff rested its case.

The defendant moved to dismiss the complaint upon the ground that the plaintiff failed to prove its cause of action. The court denied the motion, and defendant offered no further proof, but rested on plaintiff's case. The court then submitted to the jury the question as to whether or not the plaintiff had completely performed its contract. That was the only question submitted to the jury. The jury rendered a verdict for the full amount of its contract. This we think was error. The complaint should have been dismissed for failure of proof. There was no direct evidence offered at the trial as to whether the contract for lighterage included the loading and unloading of the drums in question in addition to their transportation. The contract is silent on that point, unless the words “to lighter” include, in addition to transportation, the loading and unloading of the merchandise to be transported. There is evidence that the plaintiff's employés loaded the lighter, and also evidence that plaintiff's foreman, who witnessed the overturning of the lighter, went there for the purpose of superintending the unloading of the lighter. It is not clear whether that was a duty under the contract, or whether it was a mere voluntary act on the part of the plaintiff's employés. If the contract included loading and unloading, then clearly the plaintiff did not by its evidence prove the performance of the contract, for the drums transported were never unloaded com

pletely at the New Jersey bulkhead, and there is absolutely no evidence to account for the failure to unload or to account for the listing of the boat, except the fact that it happened; but, even if the unloading was not part of plaintiff's contract, but a mere voluntary act on its part, we are convinced that the evidence is short of showing complete performance of the contract, for it was the duty of the plaintiff at least to transport the merchandise in question to the bulkhead in New Jersey in such a way as to give the defendant a reasonable opportunity, after the notice of arrival, to unload it.

The record is absolutely silent as to whether the defendant, by any act of negligence, or any act of commission or omission, on its part, prevented plaintiff from giving it that reasonable opportunity. From the evidence upon which the jury were asked to render a verdict they were forced to speculate, because of the lack of evidence, as to why the plaintiff was prevented, if it was prevented, from carrying out its contract. Did the boat list because it was unseaworthy, and, if so, was that unseaworthiness due to any negligence on the part of the plaintiff; or did the boat list because defendant failed to give plaintiff a safe place to dock its lighter? Plaintiff's employés were in control of the boat, yet none of them were called to account for the accident that occurred at the bulkhead. We conclude, therefore, that there was insufficient evidence upon which to base a finding that the plaintiff had completely performed its contract.

The judgment is therefore reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All concur.

CARPENTER et al. v. SPARTA SAVINGS BANK et al. (Supreme Court, Appellate Term, First Department. May 1, 1920.) Banks and banking Cw18874-Bank's telegram that it is remitting money does

not raise contract.

That defendant bank, on being directed by C. to remit $3,000 to plaintiffs, telegraphed plaintiffs that it was remitting such sum for C.'s credit, raised no contract, so as to make it liable for not remitting, on counter

mand of the order by C. Appeal from City Court of New York, Special Term.

Action by Joseph N. Carpenter and others, partners as N. L. Carpener & Co., against the Sparta Savings Bank, impleaded with another. From an order denying the motion of the named defendant to vacate an attachment, on the ground that no cause of action was alleged against it, said defendant appeals. Reversed, and motion granted.

Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ.

Marion B. Pierce, of New York City, for appellant.

Sidney R. Perry, of New York City (Frank S. Moore, of New York City, of counsel), for respondents.

PER CURIAM. The only question involved is whether defendant appellant, having been directed by one Culver, a customer of plain

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.) tiffs, to remit money for him to the plaintiffs, and having thereupon telegraphed to plaintiffs, "Am remitting three thousand dollars for credit E. B. Culver," is liable for breach of contract when, the order having been countermanded by Culver, the money was actually not sent by appellant. We are unable to see how any contract can be spelled out of the incidents just related, nor does respondent explain what the contract was, or how any contractual relations arose.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs.

(191 App. Div. 717)

BELMONT v. CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. May 7, 1920.) 1. Limitation of actions en 180 (7)—Nonsuit proper, where pleading shows ac

tion barred.

Where pleading does not state a cause of action, because barred by

limitations, nonsuit may be rendered at the outset of the trial. 2. Pleading em 34 (3)-Rule as to liberal construction applicable only to mat

ters of form.

The liberal construction of pleadings sanctioned by Code of Civil Procedure extends but to matters of form, not to the fundamental requisites

of a cause of action. 3. Pleading my Essential fact is not alleged, when only inferable.

The fact essential to a cause of action is not alleged, when it is only to be inferred from other facts, specifically averred, which are not in

consistent with the opposite fact. 4. Limitation of actions Ow183 (4) --Municipal corporations On 816 (1)-Com

plaint held to state cause of action for negligence, and not nuisance, within rule as to pleading limitations; "wrongful;" "negligent.".

Complaint alleging that defendant city "maintained" manhole in a "wrongful, careless and negligent manner," so as "to constitute an obstruction,” and “to render” the highway "dangerous,” and that plaintiffs sustained injuries through the careless and negligent manner in which defendants "maintained" such manhole, held to state a cause of action for negligence, as against contention that cause of action was for a nuisance, and that pleading of limitations pertinent to an action for negligence was not applicable, notwithstanding complaint characterized the “manhole" as a "nuisance," and alleged that defendant was "wrongful,” since the term "wrongful” may be regarded as a synonym for “negligent.”

[Ed. Note.-For other definitions, see Words and Phrases, First and

Second Series, Negligent; Wrongful.] 5. Limitation of actions eww183 (2) - Pleading of limitations in action against

city held sufficient.

In an action for negligence, a pleading that the action was not commenced within one year after the cause of action had accrued, as required by Greater New York Charter. $ 261, "and that said cause of action accrued more than one year prior to commencement of this action," held to warrant nonsuit on ground of limitations, though Laws 1886, c. 572, should have been pleaded; the quoted words being a substantial objection that the action was belated, and under Code Civ. Proc. & 413, the error of nomen

clature not being fatal. Appeal from Trial Term, Queens County.

Action by Albert Belmont against the City of New York. Judgment of dismissal, and plaintiff appeals. Affirmed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Argued before JENKS, P. J., and MILLS, RICH, BLACKMAR, and JAYCOX, JJ.

Judson D. Campbell, of New York City, for appellant.

Henry J. Shields, of New York City (William P. Burr, Corp. Counsel, and John F. O'Brien, both of New York City, on the brief), for respondent.

JENKS, P. J. [1] The appeal is from a judgment of nonsuit at the outset of the trial. The practice was proper (Kelly v. Security Mutual Life Ins. Co., 186 N. Y. 16, 78 N. E. 584, 9 Ann. Cas. 661), and if the complaint was for negligence and limitation was well pleaded the judgment was right. But the appellant contends that, as the complaint was for nuisance, the statute of limitations invoked by the defendant, even if well pleaded, did not apply, and also, if the complaint was for negligence, there was no proper plea of the statute. While the distinction between negligence and nuisance "is narrow in basis and operation" (Herman v. City of Buffalo, 214 N. Y. at page 321, 108 N. E. 451), the authorities recognize an essential distinction, stated by Miller, J., for the court, in McCluskey v. Wile, 144 App. Div. at page 473, 129 N. Y. Supp. at page 457:

“Nuisance involves the element of positive wrongdoing as distinct from mere acts of carelessness, whether of omission or commission."

See, too, Herman v. City of Buffalo, supra; De Moll v. City of New York, 163 App. Div. 676, 148 N. Y. Supp. 966.

I think that this principle is the touchstone of the plaintiff's pleading in the case at bar. The complaint is against a sewer entrance or manhole in a city street. Normally this is a proper structure in such place, and there is no allegation to the contrary. The charge of shortcoming is that defendant "maintained" such structure in a "wrongful, careless, and negligent manner," and in such a position as "to constitute an obstruction," and "to render” the highway "dangerous," and that the damages and injuries were caused through the careless and negligent manner in which the defendants “maintained" the said manhole.

As I read the complaint, the gravamen of the shortcomings of the defendant is not wrongdoing, but neglect. It is true that the plaintiff calls the structure a "nuisance," and alleges that the defendant was wrongful and careless and negligent (italics mine); but characterization is not pleading, and "wrongful,” thus used, may be regarded as a synonym for “negligent.” Wells v. Sibley, 9 N. Y. Supp. 343.1

12,31 The liberal construction of pleadings sanctioned by the Code of Civil Procedure extends but to matters of form, not “to the fundamental requisites of a cause of action.” Clark v. Dillon, 97 N. Y. at page 373. “A fact essential to a cause of action is not alleged when it is only to be inferred from other facts specifically averred which are not inconsistent with the opposite fact. Clark v. Dillon, 97 N. Y.

1 Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 56 Hun, 614.

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