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(182 N.Y.S.) 370.” Jacobs v. Monaton R. I. Corp., 212 N. Y, at page 56, 105 N. E. at page 971.

[4] It may be that the plaintiff, who was but nonsuited, has a cause of action for nuisance; but my conclusion is that he did not plead it, so as to escape the statute of limitations pertinent to an action for negligence. Capone v. City of New York, 182 App. Div. 931, 169 N. Y. Supp. 1087, appeal dismissed 127 N. E. 910. · [5] The defendant pleaded :

"IV. That this action was not commenced, as required by the provisions of section 261 of the Greater New York Charter (Laws 1901, c. 466], within one year after said cause of action had accrned, and that said cause of action accrued more than one year prior to the commencement of this action."

The defendant pleaded the wrong statute, instead of chapter 572 of the Laws of 1886. But the latter statute contains the same limitation, and it appears that the substantial objection that the action was belated (see section 413, .Code Civ. Proc.) was taken by the plea:

“And that said cause of action accrued more than one year prior to the commencement of this action."

I think that the error of nomenclature was not fatal. Van Hook v. Whitlock, 7 Paige, 373, affirmed 26 Wend. 43, 37 Am. Dec. 246. As was said in Camp v. Smith, 136 N. Y. 203, 32 N. E. 645:

"The allegation was ample to give the plaintiff notice of the precise defense relied upon.”

The judgment is affirmed, but without costs. All concur.

BELMONT v. CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. May 7, 1920.) Appeal from Trial Term, Queens County.

Action by Emma Belmont against the City of New York. From the judgment rendered, plaintiff appeals. Affirmed.

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

PER CURIAM. Judgment unanimously affirmed, without costs, on authority of Albert Belmont v. City of New York, 191 App. Div. 717, 182 N. Y. Supp. 173, decided herewith.

(111 Misc. Rep. 624)

H. F. BINDSEIL & SON, Inc., v. AARON LITTMAN & Co., Inc.

(Supreme Court, Appellate Term, First Department. May 18, 1920.) 1. Contracts 323(1)-Whether dyers properly performed work held for

jury.

In an action for services rendered in dyeing furs, defended on ground that work was improperly done, question of whether plaiutiff had properly

performed the work held a question for the jury. 2. Evidence mw129 (6)—That other skins than those complained of dressed at

same time were satisfactory held admissible.

In dyer's action against fur manufacturer for compensation for dyeing furs and skins, where dyer claimed as against fur manufacturer's defense that work had been improperly done, that the spoiled condition of the furs was due to the dressing process of the skins before delivery to dyer, testimony that other skins belonging to same lot and dressed by the same dresser, at the same time and in the same chemical liquid, had been sent to other dyers and had resulted in proper dyeing without injury to the

leather held admissible. Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by H. F. Bindseil & Son, Incorporated, against Aaron Littman & Co., Incorporated. Judgment for plaintiff on verdict, and defendant appeals. Reversed, and new trial ordered.

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

Rosenthal & Heermance, of New York City (S. Michael Cohen, of New York City, of counsel), for appellant.

Henry H. Silver, of New York City, for respondent.

WAGNER, J. On March 18, 1919, the defendant, a fur manufacturer, delivered to the plaintiff, which was engaged in the business of dyeing furs and skins, 50 dressed red fox skins for the purpose of dyeing them. Upon their delivery back to defendant after dyeing, and the discovery that they had been damaged, the defendant resisted plaintiff's suit, brought to recover for services rendered. Its claim is that, although the hair of the skins had been properly changed to the color agreed up in the process of dyeing, the plaintiff had so spoiled the hide or leather as to render them useless and of no value. It is not disputed by the plaintiff that the skins when returned were in a bad condition, but it is insisted that such condition was due to the dressing process of the skins by another which preceded the dyeing process performed by it.

[1, 2] Its contention was that it had properly performed its engagement for dyeing, but that the hardness and brittleness which developed in the leather skins was by reason of an excessive use of acid in. the previous dressing, which would not manifest itself in result until subjected to heat in the dyeing process, when it would become intensified and burn the leather. The determinative issue of the case, whether or not the plaintiff had properly performed the services for which it demanded compensation, was sharply contested, and presented a clear question of fact for the jury, with whose judgment we Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.) would be undisposed to interfere, were it not for the fact that we think the learned trial justice committed error in excluding certain testimony offered by defendant bearing upon the issue, and which we think was a matter of proper consideration by the triers of fact.

The testimony offered was to prove the fact that the dressing of the skins directly involved in the suit could not have been responsible for their spoiled condition, because other skins belonging to the same lot and dressed by the same dresser at the same time and in the same chemical liquid had been sent to other dyers and had resulted in proper dyeing, with no injury thereof to the leather. In other words, it was conceded that the skins were apparently in good condition when delivered to the plaintiff, but that they were in a damaged condition when returned by it; that for this condition there must have been some cause, which the plaintiff insisted was the dressing. We think this testimony might have been to a degree both cogent and convincing in the matter of disputing the plaintiff's claim that the dressing was to blame, and admissible for that purpose.

It is, of course, well-established law that, in the trial of cases, courts must be zealous in their care to exclude from the consideration of the jury extraneous and collateral matter not pertinent to the real issue at trial. But this evidence was not calculated to distract the jury and lead to the trial of a multiplication of issues, which the above rule attempts wisely to prevent. Here the plaintiff's witnesses were agreed that the dyeing by any process could not have led to the results found in the skins; so that the defendant did not propose to prove that the plaintiff's dyeing process was an improper one, by comparing it with the dyeing processes used by other furriers. It was merely attempting to dispute the plaintiff's claim that it was the dress ing alone that was responsible for the condition of the skins. The plaintiff, not contenting itself with explaining to the jury its owi process and proving that such process is a proper one, went a step further and attempted to point out the specific fault which it claimed was latent in the skins. The testimony offered was certainly of some value in disputing that claim. It tended to negative the existence of the specific latent defect which the plaintiff relied upon, and we think it should have been submitted to the jury. Evans v. Keystone Gas Co., 148 N. Y. 112, 42 N. E. 513, 30 L. R. A. 651, 51 Am. St. Rep. 681 ; Chase v. Blodgett Co., 111 Wis. 655, 87 N. W. 826.

We are further fortified in our view that the exclusion of this evidence was erroneous by the fact that the trial court permitted the plaintiff to show the effect of the same dyeing process used by it upon skins other than those involved in the present suit.

Judgment reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All concur.

182 N.Y.S.-12

GLANZER et al. v. SHEPARD et al. (Supreme Court, Appellate Term, First Department. May 25, 1920.) Contracts Omw 186 (4) –Weigher owes no duty to person not employing him to

accurately weigh merchandise.

In an action for damages suffered because defendant had erroneously weighed a certain number of packages of beans purchased by plaintiffs from a third party, evidence failing to show any duty on defendant to plaintiffs to weigh the beans accurately, and disclosing that defendants were employed by the third party to do the weighing and were paid by him, held insufficient to support judgment for plaintiffs, since, if plaintiffs had a cause of action, it was against the third party, and not against defendant.

Appeal from City Court of New York, Trial Term.

Action by Abraham Glanzer and another against Levi Shepard and another. From a judgment for plaintiffs, defendants appeal. Reversed, and complaint dismissed.

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

Adolph E. Gutgsell, of New York City (Lorlys E. Rogers, of New York City, of counsel), for appellants.

I. Gainsburg, of New York City, for respondents.

WAGNER, J. This action was brought to recover from the defendants the sum of $1,261.26 damages, which the plaintiffs claim they suffered because of the erroneous weighing of a number of bags of beans purchased by plaintiffs from a third party.

The plaintiffs in their complaint allege that Bech, Van Siclen & Co., the third party, employed in behalf of itself and these plaintiffs, as official weighers, the above-named defendants, and that, in reliance upon the weight sheets of the defendants, the plaintiffs paid Bech, Van Siclen & Co., for 224,086 pounds of beans at 1042 cents per pound. Plaintiffs further allege:

"That the said defendants owed to these plaintiffs the duty carefully and accurately to weigh said 905 bags of beans; that in violation of said duty the said defendants carelessly, negligently, and inaccurately weighed said 905 bags of beans, and incorrectly reported by their official weight sheet that the said 905 bags of beans contained 228,350 pounds of beans, when in fact and in truth said bags contained only 212,232 pounds of said beans;" and that by reason of the error in weighing they overpaid, and were damaged in the sum of $1,261.26.

The answer of the defendants contains a general denial and alleges that the weighing of which plaintiffs complain was done for Bech, Van Siclen & Co., and not for these plaintiffs.

The plaintiffs upon the trial produced evidence to prove that they had purchased from Bech, Van Siclen & Co., the third party referred to, 905 bags of beans, and that the defendants had weighed said bags and reported by certificate that their weight was 228,380 pounds; that subsequently 17 of these bags were withdrawn from the sale, leaving

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

(182 N.Y.S.) the number of bags finally sold 888. In order to again ascertain the weight of the 888 bags, the 17 bags withdrawn were reweighed by the defendants and certified by them to weigh 4,136 pounds, which was subtracted from the total weight of the 905 bags, leaving a balance of 224,244 pounds, which were paid for by the plaintiffs to Bech, Van Siclen & Co.

The beans were stored in the warehouse of the New York Dock Company, and after a lapse of about five months they were again weighed by the plaintiffs at the request of the defendants. The second weighing showed a discrepancy between that and the first weighing of about 12,022 pounds. If this discrepancy existed at the time of the first weighing, and there was no shrinkage or other destruction of any of the beans, the plaintiffs clearly overpaid Bech, Van Siclen & Co. to the amount of $1,262.31. The action was brought against the defendants for the damage caused by the overpayment to Bech, Van Siclen & Co. because of this discrepancy in the weight, upon the theory that the defendants were employed by them, the plaintiffs, to do the weighing referred to, and that because of the negligent manner in which the defendants performed their work the plaintiffs suffered as is claimed. There was evidence offered by the plaintiffs, also, to show that the possible shrinkage by the storing of the goods in the warehouse for the period above mentioned was insignificant, being less than one-half of 1 per cent. The defendants offered evidence to show that some of the bags in which the beans were packed had holes in them, and that some of the beans, even on the dock, had escaped from the bags. However, there was very meager evidence to account for the different showing in the two weighings, except that an error was committed in one of the weighings.

At the end of the trial both sides moved for the direction of a verdict, and the trial judge directed a verdict in favor of the plaintiffs for the full amount sued for. This we think was error. There was no evidence adduced at the trial to show that the defendants, at the time of the first weighing, owed any legal duty to the plaintiffs to weigh the beans accurately. The evidence is clear that defendants were employed by Bech, Van Siclen & Co. to do the weighing in question, and that subsequently, as is conceded by the plaintiffs, they were paid by Bech, Van Siclen & Co. for these services. The defend ants were therefore, so far as the transaction in question is concerned, exclusively the servants of Bech, Van Siclen & Co. There was no contractual relationship between plaintiffs and defendants. If, because of this improper or erroneous weighing, the plaintiffs overpaid Bech, Van Siclen & Co., their remedy is against that party, to whom the overpayment was made. The motion of the defendants to dismiss the complaint should have been granted.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.

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