(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 own 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 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 102 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 defendants 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. MAUER v. EGAN. (Supreme Court, Special Term, New York County. March 1, 1920.) 1. Principal and agent 159 (2)—Agent not liable to third persons for nonfeasance. An agent. charged with duty of erecting a trapdoor in a sidewalk for the accommodation of the public, who negligently permitted a defective trapdoor to be erected, held guilty merely of nonfeasance, and not liable to third persons injured by reason of the defect. 2. Municipal corporations 816 (3) -Complaint for allowing trapdoor to remain open held insufficient. Mere statement in a complaint that defendant personally and by his employés negligently allowed a trapdoor to remain open, without an allegation that the opening was wrongfully or unlawfully made or maintained, and without facts from which such construction or maintenance could be inferred, or that the trapdoor was in that part of the sidewalk traveled by the public, was insufficient to show a nuisance. Action by one Mauer against one Egan. On motion by defendant for judgment on the pleadings. Motion granted, with leave to amend. James Mahoney, of New York City, for plaintiff. W. S. Sawyer, of New York City, for defendant. DELEHANTY, J. [1] The complaint fails to state a cause of action against the defendant for negligence. The acts charged constitute nonfeasance, and not misfeasance; and while the agent may be liable to his principal for negligence, he is not answerable therefor to third parties. Their remedy is against the owner of the property. Van Antwerp v. Linton, 89 Hun, 417, 419, 35 N. Y. Supp. 318; Burns v. Pethcal, 75 Hun, 437, 442, 443, 27 N. Y. Supp. 499; Murray v. Usher, 117 N. Y. 542, 546, 547, 23 N. E. 564; Denny v. Manhattan Co., 2 Denio, 115. [2] Neither are the essential allegations of an action for nuisance set forth in the complaint. The mere statement that the defendant personally and by his employés negligently allowed a trapdoor to remain open, without an allegation that the opening was wrongfully or unlawfully made or maintained, and without facts from which such construction or maintenance could be inferred, is insufficient. Furthermore, it does not appear that the trapdoor in question was in that part of the sidewalk traveled by the public. See Ennis v. Myers, 29 App. Div. 382, 384, 51 N. Y. Supp. 550; Hayes v. Brooklyn Heights R. R., 200 N. Y. 187, 93 N. E. 469; Porter v. Waring, 69 N. Y. 250, 253; Fairchild, v. Leo, 149 App. Div. 31, 34, 133 N. Y. Supp. 572. Motion for judgment on the pleadings granted, with $10 costs, with leave to amend within 10 days upon payment of said costs. Settle order on notice. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) MURRAY v. EISFELDT. (Supreme Court, Special Term, New York County, May 20, 1920.) 1. Landlord and tenant 169 (3)-Pleading alleging negligent failure of landlord to furnish fire escape insufficient. A complaint in an action against a landlord for damages, alleging that the defendant failed to furnish sufficient or any fire escapes upon the said premises as required by ordinance, was insufficient, where it contained no description of the building in question; the ordinances not requiring the placing of fire escapes upon all buildings. 2. Landlord and tenant 169 (3)-Pleading as to negligent maintenance of defective skylight insufficient. A complaint alleging that landlord negligently and unlawfully maintained and permitted a skylight and an exit to the roof to be in a defective, unsafe, and dangerous condition, so that the premises constituted a nuisance, and was a danger and menace to life, limb, and safety of those having occasion to use the same, was insufficient to state a cause of action. 3. Landlord and tenant 164 (1)—“Skylight," under Tenement House Law, not intended as a means of exit in case of fire. Under Tenement House Law, § 77, skylights are required only as the "means of light and ventilation," and are not intended as a means of exit; a "skylight" not being a door, but a window, usually glazed, facing skyward. Action by Robert Murray, an infant, by George F. Murray, Jr., his guardian ad litem, against May Irwin Eisfeldt. On motion by defendant to dismiss amended complaint. Motion granted, with leave to plaintiff to serve second amended complaint. Holt & Gaillard, of New York City (Charles Capron Marsh, of New York City, of counsel), for the motion. Randolph A. Gerard, of New York City, opposed. GIEGERICH, J. [1] The defendant moves for judgment dismissing the amended complaint, on the ground that it does not state facts sufficient to constitute any cause of action. Three alleged causes of action are set forth in the amended complaint. For a first cause of action the complaint alleges that, at the time of the accident, the plaintiff resided with his parents, who occupied a furnished apartment in the premises in question as subtenants of the defendant; that the defendant failed to furnish sufficient, or any, fire escapes upon the said premises, as required by the Revised Code of Ordinances of the City of New York; that a fire occurred in said premises, and that the plaintiff was injured while endeavoring to escape from said fire through a skylight in the roof. In Rita Zalmani v. Eisfeldt, N. Y. Law Journal, February 15, 1919, the allegations of the complaint were identical in form with those in the present case so far as concerns the injuries alleged. Mr. Justice Philbin, in granting the defendant's motion for judgment on the pleadings, among other things, said: "While it is true that this court will take judicial notice of city ordinances (Laws 1917, c. 382; Greater N. Y. Charter [Laws 1901. c. 466] § 1556), that fact does not avail the plaintiff in this case. The ordinances do not require the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |