and 122 New York State Reporter Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Burnham Kalisch, for appellant. Mulqueen & Mulqueen, for respondent. FREEDMAN, P. J. The complaint complained for services, work, and labor performed for the defendant's intestate between May 16, 1901, and June 15, 1902. The defendant offered no testimony upon the trial. The testimony of the plaintiff established a cause of action against the estate of the decedent. Services on the part of the plaintiff were shown to have been rendered; promises on the part of the decedent to compensate the plaintiff for such services, and their value, were shown. There was some testimony given from which it might fairly be inferred that the plaintiff had received certain checks from the defendant in payment of at least a portion of the services sued for, and several checks were produced, and identified by the plaintiff as having her indorsement thereon. The amount of these checks was not shown, nor were they introduced in evidence. As the case stood at the close of the case, the complaint should not have been dismissed. Schlesinger v. Jud, 61 App. Div. 453. 70 N. Y. Supp. 616. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur. HECK V. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Appellate Division, Third Department. May 4, 1904.) 1. RAILROADS-NEGLIGENCE-DEGREE OF CARE-RULES OF COMPANY-EFFECT. The rule of a railroad company requiring its employés to use "great care" to avoid injury does not change the degree of care which the law requires from the company to a stranger. 2. SAME-INSTRUCTIONS. An instruction in an action by an employé of a railroad company for injuries sustained while lawfully in the railroad yards of defendant, another company, by being struck by a switch engine, that it was the duty of defendant to use "great care" in the running of the engine, was erroneous; reasonable care being the measure of defendant's duty. Appeal from Trial Term, Rensselaer County. Action by George Heck against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed. Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ. C. C. Van Kirk, for appellant. McClellan & Dardess (Lewis E. Griffith, of counsel), for respondent. SMITH, J. Plaintiff is an employé of the Boston & Albany Railroad Company. While lawfully in the yards of the defendant upon the morning of February 17, 1899, he was struck by the tender of a switch engine operated by the defendant's employés. The claim of the plaintiff is that this engine proceeded down the track upon which he was employed without warning by whistle, bell, or light, and that he himself was free from contributory negligence. The defendant contends that its employés were free from negligence, and that the accident was caused solely by the negligence of the plaintiff. This being the issue, the court defined the duty which the plaintiff owed to the defendant as follows: "It was the plaintiff's duty, gentlemen-Mr. George Heck's duty-to use the reasonable care of a reasonably prudent person under the circumstances, which was his duty to look and listen for the approach of any train or engine upon the track at that time. If you find that he did not use such care, and that he was injured as the result of his lack of care, then your verdict will be for the defendant railroad company." The trial judge thereafter defined the duty which the defendant owed to the plaintiff in these words: "It was the duty of the defendant, the railway company, and its employés in charge of this engine and tender, to use great care in running this engine and tender, and to give sufficient warning of its approach." The court thereafter charged: "If you find that this defendant, the railway company, used such care in the operation of its engine and tender as I have stated to you was necessary, and that it gave sufficient warning of its approach, then you may find in this case a verdict for the defendant." At the end of the charge the defendant's attorney noted the following exception: "Mr. Patterson: I except to that part of your honor's charge in which you state it was the duty of the defendant to use great care in the running of this engine and tender-whatever your honor said upon that subject." We are unable to see why this exception is not fatal to the judgment. It appeared in the evidence that the defendant company had a rule requiring its employés to use great care to avoid injury. The rule, however, which an employer gives to an employé, cannot change the degree of care which the law requires from the employer to a stranger. The duty of the plaintiff was defined to be the reasonable care of a reasonably prudent person, while almost in juxtaposition to this the jury was told that the defendant's duty was to exercise great care for the plaintiff's protection. At no other point in the charge was the jury told that reasonable care was the measure of the defendant's duty, and the inference seems. to be irresistible, under the instructions of the court, that a greater degree of care was required from the defendant toward the plaintiff than he was required to exercise in his own behalf. This error was distinctly pointed out in the exception taken by the defendant's counsel, and for it we are of the opinion that the judgment and order must be reversed. In Leonard v. Brooklyn Heights R. R. Co., 57 App. Div. 125, 67 N. Y. Supp. 985, a charge was sustained which defined the duty of the defendant to exercise "a very high degree of care." This case followed the authority of Koehne v. N. Y. & Q. C. R. Co., 32 App. Div. 419, 52 N. Y. Supp. 1088. But those cases were both of them cases of injuries and 122 New York State Reporter to passengers to whom a railroad company owes a greater degree of care than to a stranger. Judgment and order reversed, and new trial granted, with costs to appellant to abide the event. All concur. KOBRO v. SCHLOMOWITZ. (Supreme Court, Appellate Term. May 5, 1904.) 1. CHECK-NONPAYMENT-FRAUD-JURY QUESTION. In an action on a check, payment on which was stopped, and defense made on the ground that its execution and delivery to the payee were induced by a fraudulent representation on the part of the payee, to the knowledge of plaintiff, an alleged innocent holder, the question whether there was a fraudulent representation, to the knowledge of plaintiff, was, under conflicting evidence, for the jury. Appeal from City Court of New York, Trial Term. Action by Max Kobro against Elias Schlomowitz. From a judgment for plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Jacob Manheim, for appellant. LEVENTRITT, J. The plaintiff had recovery on a check for $1,000 made by the defendant to one Jacob Sheer, who indorsed it to the plaintiff. Payment was stopped after transfer to the plaintiff on the alleged ground that the check was obtained through certain false and fraudulent representations. The allegations of the complaint were admitted, and the defendant had the affirmative. The defense was, in substance, that Sheer represented that he had a valid contract between himself and the owner for the sale and purchase of certain premises for $31,000; that the representations were false, to Sheer's knowledge, and made with the intent to cheat and defraud the plaintiff, who, relying thereon, agreed to pay $32,000 for the premises; that the $1,000 involved in this suit was given in part payment; that Sheer never held any contract from the owners of the premises, and that all these facts and the circumstances surrounding the transaction between the defendant and Sheer were known to the plaintiff; and that the latter was therefore not an innocent holder for value. The defendant gave proof in support of all of these allegations, and, in the absence of contradiction by the plaintiff, would undoubtedly have been entitled to a verdict. The plaintiff's proof amounted, in effect, to a general denial of all the defendant's allegations. It is not questioned, nor can it be, that, if the representation was made, it was false. There was no written contract between Sheer and the owners. There was not even an oral one. Sheer sought to have it appear that he had concluded an oral bargain at a specified price with the agent of the owner, and that he had communicated that fact to the 1. See Bills and Notes, vol. 7, Cent. Dig. § 1879. defendant, and claimed that the latter, making use of the information obtained, sought out the agent, and induced him to rescind the oral contract and to sell to the defendant, who thereupon stopped payment of the check given to Sheer as earnest money. Naturally the defendant and the agent deny these matters, but their story, in view of all the circumstances, is far more likely the true one. It is unnecessary, however, to review the judgment from the standpoint of the weight of evidence, as the case was submitted to the jury on an erroneous theory, and as there are specific exceptions to essential refusals to charge, which require a reversal. This much may be said, however: It cannot be open to serious dispute that Sheer did represent to the defendant that he had a written contract for the purchase of the premises. He admitted it on cross-examination. The plaintiff, who was present at all the important transactions, admitted on direct examination: "And Mr. Sheer said he had a contract from the owner about those three houses; that he had a written contract." The plaintiff's other main witness, one Minsky, gave evasive, though corroborative, testimony. It was testified to, and not contradicted, that Minsky, Sheer, and the plaintiff were partners in the transaction. The making of the representation that a written contract had been executed having been admitted, and it being undisputed that the representation was false, it becomes very evident that the question of fraud and of the plaintiff's good faith was the very essence of the transaction. In other words, the defendant was entitled to recover if he proved that he parted with the check, relying on the intentional fraudulent representation of Sheer regarding the execution of the contract, and if he proved that Kobro, the plaintiff, had knowledge of the whole transaction, and took the check, therefore, subject to all the equities existing between the original parties. In my opinion, he proved all of this. Yet in the charge the court eliminated entirely the question of fraud. The sum and substance of the charge was that, if the defendant had "done something that estops him from defeating the payment of that check," judgment must be for the plaintiff. And this so-called estoppel is thus defined: "If he went there and prevented Mr. Sheer from performing the contract, he is estopped from complaining against Sheer if the contract was not performed." The court charged that, if the defendant "corruptly used" the facts of which he obtained knowledge "to defeat the party who purchased the property from ever being able to deliver title, he is estopped from saying that delivery was not had." Save in the form of a request charged, which was afterwards nullified, not one word was mentioned of the fraud charged against Sheer, which is the gist of the defense, and which created the sole issue in the case. If there was a fraudulent representation as to the existence of a written contract, made to deceive the defendant, and relied on by him, he was entitled to recover, if the plaintiff had knowledge; and what the defendant did thereafter was entirely immaterial. If Sheer represented that he had a contract, oral or written, when he had none, the defendant, on discovery of that fact, was justified in getting the property for himself, the same as any third party. It is not quite clear what the court meant by "corruptly used." No fraud was charged against the defendant. The court in its charge, assumed that the plaintiff's version was correct, as to the circumstances under and 122 New York State Reporter which the $1,000 was paid. That, at least, is the inference which the jury must have drawn from the charge, especially in view of the omission to refer to the question of fraud, and of the refusal to charge this entirely proper request: "Defendant's Attorney: I ask your honor to charge that if he told Schlomowitz that he had a written contract, when he had not, he cannot recover, even if he had a verbal assurance from Hopkins [the agent]. The Court: I decline to charge that, because I have already charged that if your client availed himself of information he received that day, and made it impossible for Sheer to perform the contract, he cannot be heard to complain." The court thus consistently to the end refused to place before the jury the fraud alleged against Sheer to the knowledge of Kobro. The first question in this case is, was there fraudulent misrepresentation? None other is reached before that is disposed of. And that question was not submitted to the jurv. The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event. All concur. HELD v. AUERBACH. (Supreme Court, Appellate Term. May 5, 1904.) 1. PRINCIPAL AND AGENT-EXISTENCE OF RELATION-EVIDENCE-SUFFICIENCY. In an action for labor performed and materials furnished in the construction of a building, evidence held insufficient to show that the one with whom plaintiff contracted as principal was in fact merely the agent of defendant. Appeal from City Court of New York, Trial Term. Action by Henry Held against Mayer S. Auerbach. From a judgment for plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. L. Laflin Kellogg, for appellant. Thaddeus D. Kenneson, for respondent. GREENBAUM, J. Plaintiff concededly performed certain work, labor, and services, and furnished certain materials, in connection with the construction of a building on the southwest corner of Bleecker and Wooster streets, at a stipulated price, under an agreement nade with one Ritterbusch, as principal. It is sought to hold the defendant liable as the real or undisclosed principal, upon the theory that, although Ritterbusch ostensibly acted as principal, he was in reality and fact the agent of the defendant. The question to be here determined is whether the testimony adduced upon the trial warranted a finding against the defendant. There can be no doubt that, if no competent proof was submitted from which it may be inferred that the defendant was in fact the principal in the transaction, then the verdict of the jury in favor of plaintiff should not be sustained. It was established that the defendant purchased the premises on Bleecker Street subject to a mortgage of $45,000, giving in exchange |