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they do it so plainly as not to require any statement of the reasoning that leads to such a conclusion.

I am also of the opinion that the same facts, with the inferences naturally deducible therefrom, that disclose the apparent authority in Rosenkranz, compel, or at least warrant, the finding that Rosenkranz was actually given the authority to bind the company, and was thus "a properly authorized officer of the company" for the purpose in question. It would, it seems to me, be out of reason to permit a corporation so to conduct its business as to place in the power of one of its executive officers the opportunity to create the impression that he was authorized to negotiate contracts, and reserve to itself, by secret means, a limitation upon his specific acts directly within the sphere of his constant activity and performance of duty. Express authority, like an express contract, may be shown by conduct as well as by words, and the other officers and the directors of the company may well be deemed to have expressly permitted Rosenkranz to act as a selling officer, with all the rights that such an officer normally and customarily feels free to exercise in the business world. There has been a somewhat tardy, but increasingly plain, trend of judicial thought toward holding corporations to contracts that they would be the boldest to assert were authorized, in case the contracts should turn out well for the company, but which they claim to have been made without authority when it later transpires that the company cannot perform, either at all or with profit to itself.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event.

WAGNER, J., concurs in the result.

BIJUR, J. (concurring). I concur, also, on the ground that the limitation placed upon the defendant's form of contract, "This order is subject to acceptance or rejection by a properly authorized officer of the company," manifestly had reference only to contracts negotiated by persons other than officers of the company-salesmen, for example—and that, read in the light of common sense and the ordinary experience of mankind, the stress is to be laid, not on the words "properly authorized," but on the word "officer," as distinguished from salesman or mere employé. Rosenkranz was an officer of the company, and is shown from the previous correspondence and the circumstances. of the case to have been permitted to have all the appearance of being, if he was not actually, "a properly authorized officer."

(192 App. Div. 784)

(183 N.Y.S.)

NEW YORK CENT. R. CO. v. BARNET et al.

(Supreme Court, Appellate Division, Third Department. July 8, 1920.) 1. Judgment 721-Former judgment conclusive against parties.

Judgment roll in former action by brakeman against plaintiff railroad held conclusive evidence against defendants, parties to that action, that the brakeman was injured on their side track, as also of the extent of his damages.

2. Judgment 956 (3)—Charge in former action admissible to show what issues adjudicated.

Charge to jury in prior action against plaintiff, and defendants, judgment in which is claimed to be conclusive against defendants, held admissible to show what issues were decided.

3. Indemnity 14-Testimony in prior action prima facie evidence against defendants there and here.

Testimony in a prior action for injuries against plaintiff and defendants was at least prima facie evidence against defendants in favor of plaintiff as to their responsibility for the injuries for which the prior suit was brought.

4. Appeal and error

for successful party.

927 (7)—Directed verdict resolved all fact questions

Direction of verdict for plaintiff resolved in its favor all questions of fact and inferences properly deducible from testimony for it.

5. Indemnity ~~13 (1) —Factory owners liable to railroad for recovery by injured brakeman,

Factory owners, who in contracting with railroad for side track assumed responsibility for all injuries thereon, except those due solely to railroad's negligence, held liable to railroad for recovery against it by brakeman, injured by coal retaining fence erected by factory owners, which leaned toward the track.

Appeal from Trial Term, Albany County.

Action by the New York Central Railroad Company against William Barnet and another. From a judgment for plaintiff, directed on motion of both parties, defendants appeal. Affirmed.

In the year 1906, pursuant to a written contract between the defendants and the New York Central & Hudson River Railroad Company, a predecessor of the plaintiff herein, a siding or spur track was constructed on the premises of the defendants in the city of Rensselaer, connecting a factory on their said premises with the main line tracks of the said railroad company, for the transportation of freight to and from said factory. Such contract contains the following provision: "That second party [the defendants herein] assumes the responsibility of all damage to property or injury to persons, employés or others, which may occur on said track, except such as may be due to the sole negligence of the railroad company, its agents or employés, while operating on said track."

The siding or spur track thus constructed continued to be operated by the plaintiff or its predecessor for the mutual advantage of the railroad company and the defendants in the transportation of freight to and from the factory of the latter. On the defendants' premises near such siding or spur track they maintained a coal pocket in connection with their business. The answer herein contains the following statement: "Plaintiff did notify the defendants that coal was rolling upon and likely to roll upon the said siding or spur track from defendants' said coal pocket, and requested defendants to construct a barrier along the side of said coal pocket, adjacent to said siding or spur track, to prevent the coal from rolling or falling over upon said spur track. Whereupon defendants did erect the barrier described as a fence in For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

or about the year 1915, in compliance with the plaintiff's direction, and plaintiff acquiesced in such erection." Such fence had an average height of 10 feet above the top of the rail of the spur track. In the course of time the pressure of the coal from the opposite side caused the fence to incline toward said track to such an extent that only 6 or 8 inches intervened between the top of the fence and a car standing opposite on the spur track, and that condition had existed for a considerable time until the accident hereafter mentioned.

In September, 1917, one Forstner, a brakeman in the employ of the plaintiff, while ascending a ladder on the side of a freight car moving along said spur track, was caught between the car and the said fence and injured. He brought an action against the plaintiff, and recovered a judgment therein, on the ground of its negligence in failing to provide him a safe place in which to work. The defendants herein were given timely notice of the pendency of such action, and required to protect the plaintiff from its consequences, and they appeared and participated in the trial thereof. The plaintiff herein, having paid the Forstner judgment, brings this action to recover the amount thereof, with its incidental expenses, against these defendants.

Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.

Andrew J. Nellis, of Albany, for appellants.

Visscher, Whalen & Austin, of Albany, for respondent.

COCHRANE, J. [1] On the trial of this action the plaintiff herein introduced in evidence the judgment roll, the charge of the court to the jury, and the material testimony in the Forstner action. The judgment roll was conclusive evidence against these defendants that Forstner had been injured on this side track and the extent of his damages. Mayor, etc., of New York v. Brady, 151 N. Y. 611, 616, 45 N. E. 1122; Carleton v. Lombard, Ayres & Co., 149 N. Y. 137, 151, 43 N. E. 422; Scott v. Curtis, 195 N. Y. 424, 88 N. E. 794, 40 L. R. A. (N. S.) 1147, 133 Am. St. Rep. 811; Western Union Telegraph Co. v. Gest, 183 App. Div. 548, 170 N. Y. Supp. 808.

[2] The charge of the court to the jury in that action was competent herein to show the precise issues therein decided. Rowland v.、 Hobby, 26 App. Div. 522, 50 N. Y. Supp. 629. It clearly establishes that the judgment therein went against this plaintiff, the defendant therein, on the ground that Forstner was not furnished a safe place in which to work. Under that charge the verdict in favor of Forstner was necessarily predicated on the dangerous proximity of the leaning fence to the passing freight car. That element was necessarily found by the jury to exist, and without it their verdict could not have been rendered.

[3, 4] The testimony in the Forstner Case, while establishing the negligence of the railroad company, at the same time establishes the liability of these defendants to the railroad company. Such testimony shows that they constructed the fence on their own premises in close proximity to the spur track, likewise constructed on their premises at their request and for the mutual benefit of themselves and the railroad company, and that they permitted the fence to incline toward the track to such an extent that there was an unsafe clearance between fence and track. If the railroad company was negligent, these defendants were equally negligent in the same particular. The tes

(183 N.Y.S.)

timony in the Forstner action thus produced herein was at least prima facie evidence against these defendants (Western Union Telegraph Co. v. Gest, 183 App. Div. 548, 554, 170 N. Y. Supp. 808), and, when both parties moved for a directed verdict, a direction in favor of the plaintiff herein resolved in its favor all questions of fact and inferences properly deducible from such testimony.

[5] The defendants herein contend that Forstner could not have maintained an action against them for their negligence, because they owed him no duty, and no contractual relation existed between them and him, and in support of that proposition cite the case of Sias v. Rochester Railway Co., 169 N. Y. 118, 62 N. E. 132, 56 L. R. A. 850. That proposition, if otherwise applicable, is not here involved. There was a contractual relation between the defendants and the railroad company, by the terms of which contract these defendants assumed responsibility for personal injuries occurring on the track, "except such as may be due to the sole negligence of the railroad company. It is clear that the negligence of the railroad company, for which it has been held liable, could not have existed, except for the acts and conduct of these defendants in constructing and maintaining the fence in dangerous proximity to the spur track. The injury to Forstner was not due, therefore, to the "sole negligence" of the railroad company, within the meaning of the contract, but to such negligence cooperating with the acts of these defendants. They laid the foundation for such negligence. As was forcibly and tersely stated by Mr. Justice Hasbrouck in deciding this case at the Trial Term: "The accident could not have happened, except the fence leaned." For that these defendants were responsible. Part of the inducement to the railroad company for the operation of the spur track on defendants' premises was protection against such liability as that in question. The purpose of the indemnity clause in the contract was to afford that protection, especially against acts of the defendants themselves, for which they were primarily responsible.

The judgment should be affirmed, with costs. All concur.

(192 App. Div. 559)

MILLER et al. v. GREENWALD PETTICOAT CO.

(Supreme Court, Appellate Division, First Department. July 2, 1920.)

1. Witnesses 380 (5)—Affidavit with samples attached held inadmissible to contradict own witness, who denied having made affidavit with samples attached.

In sellers' action for price, involving the question of whether the goods delivered corresponded to the samples, where sellers' agent, who had been discharged prior to the trial, and who had been called as a witness by sellers, with knowledge of his hostility toward them, testified, in response to questions by sellers' counsel, that the samples by which sale was made were those shown by buyer, and not those shown by sellers and attached to affidavit previously made by the agent, and where he denied that samples were attached to affidavit at the time he made it, the admission of the affidavit in evidence with samples attached held reversible error, notwithstanding his hostile attitude toward sellers.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 183 N.Y.S.-7

2. Witnesses 256-Refusal to permit inspection of papers used by adverse witness to refresh memory, without introducing it in evidence, error.

Where witness, testifying as to tender of goods, refreshed memory by reference to invoices, court's refusal to permit adverse party to inspect the invoices, with opportunity to cross-examine thereupon, except on the assurance that it would introduce them in evidence, held prejudicial error. 3. Appeal and error 260 (3)—-Error in refusing inspection of paper used to refresh memory of witness reviewable, in absence of exception.

Error of court in refusing to permit defendant's counsel to examine paper used by plaintiffs' witness to refresh memory in testifying as to a material fact which they were required to prove will not be disregarded on appeal, because of the failure of defendant's counsel to except to court's ruling, where neither the court nor plaintiff's counsel were misled by the failure to except, where the testimony related to a material fact. Appeal from Trial Term, New York County.

Action by Harris A. Miller and others against the Greenwald Petticoat Company. From a judgment for $5,210.45 for plaintiffs, entered on the verdict of a jury, and from an order denying its motion for a new trial, defendant appeals. Judgment and order reversed, and new trial granted.

Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, SMITH, and GREENBAUM, JJ.

Kurzman & Frank, of New York City (Nathan Ottinger, of New York City, of counsel, and Walter Frank, of New York City, on the brief), for appellant.

Morris & Samuel Meyers, of New York City (Samuel Meyers, of New York City, of counsel, and Albert J. Rifkind, of New York City, on the brief), for respondents.

SMITH, J. The action is brought upon a contract of sale of certain material to be used by the defendant in its business. While the complaint does not so allege, it was proven that the sale was by sample, and the only contention here is upon the question as to whether the sale was in accordance with the sample. The first cause of action is for goods delivered under the contract and accepted by the defendant. The evidence of the defendant is to the effect that the acceptance was under a claim by them that the goods were not according to sample, and under a contract with the plaintiff that it would accept those. goods at a reduced price of 30 cents per yard; the contract price being 312 cents. The defendant admits its liability for those goods. at the reduced price, and the only question in the first cause of action is whether that acceptance was upon such a contract.

The second and third causes of action are based upon tenders made and refused by the defendant on the ground that the goods were not of the same quality as were the samples upon which the goods were sold. This was a question submitted to the jury, and the sole question upon the second and third causes of action.

These goods were sold by the plaintiffs' agent, Reiss. He was afterwards discharged by the plaintiffs, and there was evident feeling between him and the plaintiffs existing at the time of the trial. Before the trial he had made an affidavit in behalf of the plaintiffs, in which

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

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