(182 N.Y.S.)

ESPOSITO v. AMERICAN RAILWAY EXPRESS CO.

(Supreme Court, Appellate Term, First Department. May 25, 1920.) Master and servant 305-Negligent operation of automobile truck by chauffeur's helper, forbidden to drive, not imputable to employer.

Where plaintiff, a pedestrian, was struck by defendant's automobile truck, and it appeared that while defendant's chauffeur was delivering a package, his helper started the truck before the chauffeur could stop it, and that the helper had been forbidden by the rules of the employer to drive an instruction that negligence, because of the chauffeur's permission to helper to drive, was attributable to the employer, was erroneous, in view of the rule forbidding the helper to drive.

Appeal from City Court of New York, Trial Term.

Action by Carmine Esposito against the American Railway Express Company. From a judgment for plaintiff on the verdict of a jury, defendant appeals. Reversed, and complaint dismissed.

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

Edward V. Conwell, of New York City, for appellant.

Leon Sanders, of New York City (Jacob Zelenko, of New York City, of counsel), for respondent.

BIJUR, J. Plaintiff was engaged in pushing a handcart north on First avenue just below 112th street, when he was injured by defendant's automobile truck, operating under the following circumstances: The truck, in charge of defendant's chauffeur, Gilroy, had stopped at the south side of 112th street, facing east. Gilroy there delivered a package, and while he was so engaged McAdams, his helper, got into the chauffeur's seat, which was on the left side (it was a left drive car), and started the truck. When Gilroy returned from his errand, the truck had already proceeded quite a way, and he ran after it. He caught up with it just as it was turning the corner at First avenue and 112th street to go south. Gilroy jumped on the running board on the right side and "hollered" to McAdams to stop the car. It appears that McAdams' foot slipped off the clutch as he put on the foot brake, while Gilroy pulled the emergency brake, which was on the right side of the driver's seat; i. e., in the middle of the double front seat. Nevertheless the truck proceeded some short distance and injured plaintiff.

It was proved beyond question that the rules of the company, expressed in a circular, communicated to and known by both Gilroy and McAdams, forbade McAdams to drive the truck without the written permission of Mr. Park, the "supervisor" of the company, and that no such permission had been given. On this record the learned judge below charged the jury that

"If Mr. Gilroy, the chauffeur in charge of the car, notwithstanding the lack of such permission from Mr. Park [the supervisor], permitted Mr. McAdams to drive that car, then any negligence causing the accident by reason of Mr. Gilroy's permission to drive the car will be attributable to the company,

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 182 N.Y.S.-7

and, if that car was negligently operated, it was so operated because Mr. Gilroy permitted the person operating it to do so, and in that event, if you find that to be the fact, such negligence will be chargeable to the defendant."

To this defendant's counsel duly excepted. This charge incorrectly stated the law as laid down, notably in Rose v. Balfe, 223 N. Y. 481, 487, 488, 119 N. E. 842, Ann. Cas. 1918D, 238. See, also, to the same general effect, Goldberg v. Borden's Condensed Milk Co., 227 N. Y. 465, 125 N. E. 807; and Rolfe v. Hewitt, 227 N. Y. 486, 125 N. E. 804.

Passing the consideration that there is no evidence from which it can be inferred that Gilroy "permitted" McAdams to drive the car at all, and laying aside the point that, even in the absence of the specific rules and instructions of the company above adverted to, Gilroy, in the light of these recent decisions, had no right to delegate his employment, or to bind the defendant by the employment of some other person to do the very work for which he was hired, we have in this case the express forbiddance, known to and controlling upon both Gilroy and McAdams. So far as the latter is concerned, he was no more in the employ of the defendant at the time when he operated this truck and brought about the accident than if he had been a mere stranger in the street, utterly unknown to the defendant; and Gilroy was, both by the natural limitations of his position and particularly by the instructions and rules of the company, without power to employ McAdams as a chauffeur on behalf of the defendant, either permanantly or temporarily.

Respondent refers to a number of cases, including Althorf v. Wolfe, 22 N. Y. 355; but in that case the court said significantly, at page 361:

"The defendant had given him [namely, the master's actual employé] general instructions to throw the snow from the roof of his house, enjoining no caution, and suggesting no mode of doing it, to prevent injury, nor placing the servant under any restriction against procuring aid in the work."

Judgment reversed, and complaint dismissed, with costs of this appeal, and with costs in the court below. All concur.

(192 App. Div. 896)

PHONOGRAPH CORPORATION OF MANHATTAN v. SMITH. (Supreme Court, Appellate Division, First Department.

Appeal from Trial Term, New York County.

May 14, 1920.)

Action by the Phonograph Corporation of Manhattan against Alphonzo Smith. From a judgment for plaintiff on a directed verdict, and from order denying a motion to set aside such verdict and for a new trial, defendant appeals. Affirmed.

Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and MERRELL, JJ.

(182 N.Y.S.)

Smith & Reiher, of Brooklyn (Dominic B. Griffin, of New York City, of counsel, and Frank V. Smith, of Brooklyn, on the brief), for appellant.

Gregory, Stewart & Wrenn, of New York City (Allen S. Wrenn, of New York City, of counsel), for respondent.

PER CURIAM. Judgment and order affirmed, with costs.

SMITH, J. (dissenting). The defendant was a local dealer in phonograph stock, and was engaged in selling phonographs under a license given to the plaintiff for the sale of Edison phonographs. They had had some business relations, and upon October 1, 1917, there was due from the defendant to the plaintiff the sum of $7,685.65. Upon the 18th of October the plaintiff made a proposition to the defendant by which they should make a new contract and in that proposition stated: "In order to secure a 2 per cent. discount, and to get the old balance off of the open account, so that only your current purchases will appear on the regular statement, we have suggested that you give us a six months note, on which you are to make payments each month, if possible, and at maturity this note is to be subject to renewal for the unpaid balance. If you would prefer, however, to give us a series of notes, this will be acceptable to us; but it will be necessary that one of these plans be used in getting your present indebtedness off of the open account."

A paper was then submitted by the plaintiff to the defendant, in the form of a letter to be written by the defendant to the plaintiff, and upon October 20, 1917, that letter was written, containing in substance the matter contained in the proposed letter submitted. In reference to this balance due, the letter said:

"In order to earn the discount referred to, and to get the old balance, amounting to $7,686.65 October 1st, off the open account, so that only our current purchases will appear on the regular monthly statement rendered to us, we herewith submit a six months note for the full amount of our indebtedness; this note bearing interest at 6 per cent. It is understood that we will pay on this note each month all that we can, and in the event that we cannot take up the note at its maturity it will be subject to renewal from time to time until fully settled."

In response to that, on October 24th this plaintiff wrote to the defendant:

"We have your letter of October 20th with reference to the proposed method of handling your future purchases, and would state that this arrangement will be satisfactory to us. We will therefore consider this plan in operation from October 5th, and we will render to you two statements on the 1st of November; one for your record and merchandise purchases since October 1st; the other for any phonographs delivered to you since October 5th."

In pursuance of this correspondence the defendant did execute a note upon October 22d for $7,685.65, the exact amount found due. That note became due upon April 22, 1918, at which time, in pursuance of their written agreement, part of the same having been paid, there was executed another note for $7,000, and the first note was canceled. Upon this second note, of $7,000, $200 had been paid prior to October 22, 1918, and, this note not having been paid in full on October 22, 1918, the plaintiff refused to renew the same, and has brought this

action to recover upon the note. The trial judge apparently admitted these other letters, containing the agreements for renewal, as qualifying the liability upon the note, and these were properly admitted, because these papers were all executed as part of one transaction and must be read together. The trial judge held, however, that because the agreement to renew the note from time to time was not more definite, that agreement became an agreement to renew at will, and that the plaintiff therefore might lawfully refuse to renew at any time and sue upon the note last given for the balance due. The defendant, however, offered to prove that these papers represented only a part of an oral contract which provided that these notes should be renewed up to January 15, 1920, and that such part of the oral contract was omitted from the written contract through inadvertence. The trial court refused to accept such evidence, and directed a verdict for the full amount due on the note.

In my judgment the evidence should have been admitted. As a matter of reasonable interpretation the agreement to renew this note from time to time upon payment by the maker of such sum as he was able to pay prima facie omits a material term of the contract. That the agreement to renew was made as part of the original contract is undisputed. The limit of the right to demand renewals, however, having been agreed upon in the oral contract and omitted from the written contract, it seems to me, can properly be proven, so as to complete the contract. It was never intended that this plaintiff should have the right to refuse to live up to its contract and grant renewals of the principal, or part of the principal, at least, of this note. It was never intended that this should be performed or not at the will of the plaintiff. Abundant consideration is found for this agreement to renew in the other business relations which were created between the parties by these same papers and by parol at the same time. If the defendant can prove that it was orally agreed that these renewals should be made of such amount as the defendant was unable to pay up to January 15, 1920, I think the case is governed by the wellsettled rule that if a contract be made by parol, and only part thereof be reduced to writing, the whole contract may be shown. The case is clearly distinguishable from those in which it has been held that, where a note has been given for a specific time, you cannot show an agreement to renew by parol. Such an agreement would be in contradiction of the written instrument. By the writings themselves in this case the right to renew is given, and the only element of the contract sought to be proven by parol is the extent of that right. Judgment and order should be reversed, and a new trial granted, with costs to appellant to abide the event.

DOWLING, J., concurs.

(191 App. Div. 526)

(182 N.Y.S.)

BIGGS et al. v. STEINWAY & SONS.

(Supreme Court, Appellate Division, First Department. April 30, 1920.) 1. Specific performance 16-Not decreed as to contract to purchase land for particular use, where subsequent ordinance prevents use.

Specific performance will not be decreed of a contract to purchase land with the understanding that it could be used for business purposes, where an ordinance was subsequently passed making it a residence district, even if the ordinance could be declared unconstitutional on an action therefor.

2. Specific performance 128 (1)-Vendor not entitled to damages on vendee's failure to accept conveyance and denial of specific performance.

Where a contract to purchase land was entered into, with the understanding that it was to be used for business purposes, and an ordinance was subsequently passed making it a residence district, on refusal of specific performance, seller was not entitled to recover for any loss sustained by preparations made to perform the contract, consisting of bonuses paid to tenants for moving, bonuses paid to mortgagees for accepting payment before maturity, etc., even if the ordinance could be declared unconstitutional in an action therefor.

3. Appeal and error 197 (1)—Claim cannot be made first on appeal that evidence was inadmissible under pleadings.

Where no claim was made on the trial that evidence presented was not admissible, because not pleaded, such point cannot be raised on appeal. 4. Pleading 183-New matter in reply or supplemental reply deemed denied, and subject to available defenses.

Any new matter in a reply, or supplemental reply, is deemed denied, and subject to any available defense on the part of the defendant; a reply being the last pleading contemplated by Code Civ. Proc. § 514.

5. Pleading 283-Defense of new matter in supplemental complaint must be pleaded in amended answer.

Where plaintiff sets up new matter in a supplemental complaint. the defendant, if he wishes to prove matter in defense, must set it up by an amended answer.

6. Specific performance 16-Vendor held not entitled to relief, though restriction defeating suit was removed at time of trial.

Specific performance will not be decreed of a contract to purchase land with the understanding that it could be used for business purposes, where an ordinance was subsequently passed making it a residence district, although such ordinance is amended before the trial, so that the restriction is removed; there being a substantial change in the condition of the parties.

7. Specific performance 16-Vendor held not entitled to specific performance on payment of damages for delay in the removal of restriction.

Where a contract to purchase land was entered into with the understanding that the land was to be used for business purposes, and an ordinance was subsequently passed making it a residence district, and the purchaser refused to perform, and the seller brought an action for specific performance, and at the time of the trial, two years after contracting, the ordinance had been amended, and the restriction removed, court properly refused to decree specific performance, even if there was an offer to compensate purchaser for delay, where there had been a material change in the condition of the parties on account of the outbreak of the World War which would render it inequitable to decree specific performance. 8. Specific performance 116-Willingness to perform expressed in answer not manifestation of willingness at time of trial.

Provision in an answer in an action for specific performance manifesting readiness and willingness to perform, but asking for the return For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes