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four stories of the mill. The method of burning was as follows: The material from which the cement was made was put in the kilns near the top on the fourth floor. The coal was fed into the kilns on the third floor. On the second floor there were four doors on opposite sides of the kilns, through which, when opened, long rods were inserted to poke the cement down. On the first floor the burned product was drawn from the kilns. The plaintiff's work was in poking down the cement with a long rod at one of the kilns on the second floor. On that floor there were four iron bands around the kiln at which plaintiff worked, each being six inches in width and one-half inch thick; one being near the floor, one near the ceiling, and two others between. The ends of these bands were butted and riveted together. The heat was intense about the kilns, and the men had to strip and wash frequently to keep their flesh from becoming sore and chafed. Pails were provided by the defendant for this purpose at each of the kilns. The kiln at which plaintiff worked had just been drawn, plaintiff had washed himself, and was in the act of setting his pail down near the kiln, in its customary place, when one of the bands, which was about 8 or 10 feet high, and which weighed about 400 pounds, broke by the sheering off of the rivets that fastened it together, and fell, striking the plaintiff upon his head as he was in a stooping position, and severely injuring him. The break was caused by the expansion of the kiln under the intense heat to which it was subjected. Another of these bands had broken several months before, and in falling broke an employe's leg. After this the plaintiff told the foreman of the burners that the band was wrong, and, if it was not loosened, he would not work there; and the foreman replied “that he would see that it was attended to at once." The matter was also called to the attention of the superintendent by a committee of the men, and he suggested that it could be made safer by loosening the bands, and said that he would have them loosened, and, as soon as they got material, he would have something put up as a guard. After this, and before plaintiff was injured, four lateral iron guards running from the floor to the ceiling outside and crossing the bands on four sides of the kiln were put up.

These were intended to prevent a band from flying out from the kiln in case it should break.

While it is the rule that a servant assumes all the risks usually incident to his employment, yet that rule is based on the supposition that the master has exercised reasonable care in providing the servant a safe place in which to work, and it is those risks only which cannot be obviated by the exercise of such care by the master that the servant assumes. Pantzar v. Tilly Foster Iron Co., 99 N. Y. 368, 2 N. E. 24. Known dangers which can be avoided by the exercise of reasonable care by the master are not such as are incident to the business. McGovern v. Central Vermont R. R. Co., 123 N. Y. 289, 287, 25 N. E. 373 The court, in holding that the plaintiff assumed the risks, put its ruling in this respect on the ground that the plaintiff knew the cause of the danger equally with the defendant; or, in other words, that it was an obvious risk. If that was so, the ruling was undoubtedly right; but the plaintiff was entitled, on a motion to dismiss the

and 122 New York State Reporter complaint at the ciose of his case, to the most favorable view of the evidence that could be taken, and we must apply that principle in reviewing the ruling. When the danger was pointed out to the foreman and the superintendent, the plaintiff was assured that the bands would be loosened at once. While the lateral guards were put on after that, these would not prevent the bands from breaking by the expansion of the kilns, Lut the loosening of the bands would. It is a fair inference from the evidence that the plaintiff assumed that the foreman or superintendent had loosened them, as they said they would; and, if they had done so, the accident would not have happened. More than this, the rivets sheered off and the band parted on the opposite side of the kiln from where the plaintiff was standing. He testified:

“I did not know that the band had not been loosened. I supposed that when he said he would do a thing he done it. I could not see, from where I stood and worked, whether it had been loosened or not. No man could, because the dust was so settled around there between the draws that it would cover every. thing up. There was much dust. At the time of the draws there was dust. smoke, and gas."

With this evidence in the case, we think the court should not have held, as a matter of law, that the risk was an obvious one, but that a question of fact was presented, which should have been submitted to the jury. We think, also, that there was enough evidence to require the submission of the questions of defendant's negligence and of plaintiff's freedom from contributory negligence to the jury, and therefore that the complaint should not have been dismissed.

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

GOLDBERG et al. v. ZUCKER et al.

(Supreme Court, Appellate Term. May 19, 1904.) 1. CONTRACTS-MANUFACTURE OF Goods-BREACH.

The fact that plaintiffs returned unfinished a portion of the garments sent to them by defendants to be manufactured did not constitute a breach of contract by plaintifis, where they had not agreed to make any certain number of garments, and it did not cost defendants any more to manufacture the garments returned by plaintiffs than the price agreed to be

paid plaintiffs for making similar garments. Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by Morris Goldberg and another against John Zucker and another. From a judgment for plaintiffs, they appeal. Reversed.

Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.
Jacob Rieger, for appellants.
Richard I. White, for respondents.

PER CURIAM. Plaintiffs sued for work done for the defendants in the manufacture of ladies' underwear. They proved their claiin to be $63.57. The pleadings were oral, the defendants interposing a gen

cral denial and a counterclaim for $4.38. Upon the trial defendants admitted that the plaintiffs manufactured garments at prices agreed upon to amount to the sum of $40. They endeavored to show that some of the garments sent by them to plaintiffs to be made up were returned in a wholly unfinished state. They failed to show, however, that plaintiffs had agreed to make any certain number of garments, or that it cost defendants more to manufacture the garments returned by plaintiffs than the price agreed to be paid plaintiffs for making similar garments, and as to such goods they failed to show any breach of contract upon the part of the plaintiffs regarding them. Defendants also claimed that some of the work done by plaintiffs upon the garments charged for was done in an improper manner. As to the number of garments so improperly finished the testimony is very unsatisfactory, and no testimony was given as to what would be the cost of correcting the improperly made garments, if any there was. The trial judge, however, reduced plaintiffs' claim from $63.57 to $20.01, giving judgment for the latter amount only. As the testimony stood when the case was closeci, the plaintiffs should have had a judgment for at least $40.

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

WOODMAN v. WICKER.

(Supreme Court, Appellate Term. May 19, 1904.) 1. AGENCY-RATIFICATION-WANT OF ORIGINAL AUTIIORITY.

The fact that defendant made use of a report submitted by plaintiff could not be considered as a ratification of the acts of a third person as defendant's agent in contracting with plaintiff to perform certain services as a chemist, where there was nothing to show that the third person ever

had authority from defendant to act as his agent. Appeal from Municipal Court, Borough of Manhattan, Twelfth District.

Action by Durand Woodman against Cassius M. Wicker. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.
White & Otheman, for appellant.
W. P. Dewey, Jr., for respondent.

PER CURIAM. The facts in this case are substantially admitted, and the only question in the case is whether the testimony and all the facts and circumstances shown upon the trial are sufficient to warrant the conclusion, as a matter of law, that one Cullen was the agent of the defendant in contracting with the plaintiff to perform certain services as a chemist, for the value of which services this action is brouglit. We have carefully examined the record, and can find nothing therein to sustain the plaintiff's contention in that respect. The use made by the defendant of the plaintiff's last report cannot be considered as a ratification of the acts of Cullen as defendant's agent, for the reason that

11. See Principal and Agent, vol. 40, Cent. Dig. $ 622.

and 122 New York State Reporter there is nothing in the testimony from which it can legitimately be inferred that Cullen ever had authority from the defendant to act as his agent. The judgment must be affirmed.

Judgment affirmed, with costs.

CROCKER-WHEELER CO. V. VARICK REALTY CO. et al.

(Supreme Court, Appellate Term. May 19, 1904.) 1. CONTRACTS-INSTALLMENT OF ELEVATOR-TIME AS ESSENCE-WAIVER-EF

FECT ON COUNTERCLAIM. The fact that, after stipulating with a contractor for the installment of an elevator by a certain date, the property owner permits the contractor to put in the elevator after that date, while operating as a waiver of the delay as a defense to a claim for the contract price, is not a waiver of the property owner's counterclaim for damages resulting from his tenant's refusal, pursuant to the terms of the lease, to pay rent until the

elevator was installed, of which lease the contractor had notice. Appeal from City Court of New York.

Action by the Crocker-Wheeler Company against the Varick Realty Company and others. From a judgment for plaintiff, defendants appeal. Reversed.

Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.
Gould & Wilkie, for appellant Varick Realty Co.
L. Hollingsworth Wood, for appellant National Surety Co.
Liebmann & Naumburg, for respondent.

SCOTT, J. The plaintiff contracted with the defendant Varick Realty Company to furnish and install, in a building owned by said defendant, two electric elevators. One of the elevators was to be in operation by February 2, 1903; the installation of the other to be completed as quickly as possible after the installation of the first; io days being mentioned as the probable time. It is made clear by the evidence that much stress was laid by defendant upon the necessity of having at least one elevator in running order by February 2d, and that plaintiff was distinctly notified that no contract would be made which did not definitely state the date for the complete installation of at least one of the elevators. There can be no doubt that it was thoroughly understood by both parties that the timely installation of at least one elevator was an important and essential element of the agreement. The reason for this insistence on the part of the defendant was that it had already negotiated and was about to execute a lease of the premises from February ist, under which the tenant was to pay no rent until at least one elevator had been installed and was in running order. It was shown that plaintiff at the time of making its contract with defendant, or very shortly thereafter, had knowledge of the making of such a lease, and that its agent in the transaction between plaintiff and defendant had knowledge of the special clause respecting the payment of the rent. At all events, from the character and size of the building, the plaintiff might well be held bound to know that its value for rental purposes would be much affected by the existence or nonexistence of proper ele

vator service. The plaintiff, for reasons which constitute no excuse, did not comply with its contract as to time, and did not complete either elevator until March 2d. The lessee of the building, under the terms of his lease, refused to pay the rent for the month of February, amounting to $1,750. Notwithstanding plaintiff's failure to complete its contract on time, the defendant did not exercise its right to terminate the contract for this reason, but permitted plaintiff to go on and complete the work. The effect of thus permitting the plaintiff to go on and perform, notwithstanding its default as to the time of performance, is well settled. The defendant thereby waived any right it might have asserted to plead the delay as a defense to an action for the agreed price. Dunn v. Steubing, 120 N. Y. 232, 24 N. E. 315. It did not, however, thereby waive its right to counterclaim for any actual damage it might have suffered by reason of the delay. Granniss & Hurd L. Co. v. Deeves, 72 Hun, 171, 25 N. Y. Supp. 375. Unless, therefore, the defendant in some

waived its claim for damages, it is still in a position to recover them. We can find no evidence of such a waiver. As has been shown, the mere forbearance to insist upon a forfeiture did not constitute a waiver. Nor did the letter from defendants' attorneys, which is much relied on by plaintiff. That letter was dated March 7th, after the first elevator had been installed, and, in terms, applies to an elevator not then installed, by which must necessarily have been meant the second elevator, concerning which no controversy exists. The error into which the court below fell was in treating defendants' acquiescence in the completion of the contract as a waiver of damages for nonfulfillment, instead of only a waiver of any defense to a claim for the contract price. Upon the case made, the plaintiff was entitled to recover the unpaid balance of the contract price, but the defendant, as against this, was entitled to recoup its damages, if any, suffered by reason of the unexcused delay in installing the first elevator.

The judgment must be reversed and a new trial granted, with costs to the appellants to abide the event. All concur.

(13 Misc. Rep. 217.)

LADIES' UNION BENEV. SOC. V. VAN NETTA.

(Supreme Court, Trial Term, Tompkins County. March, 1904.) 1. WILLS-INTENTION OF TESTATOR-EXTRINSIC EVIDENCE.

To ascertain the real intention of a testator in disposing of his property, extrinsic evidence is admissible, where the will, in connection with

the codicil, leaves his intention uncertain. 2. SAME-LETTER WRITTEN BY TESTATOR.

Intention of testator in executing an obscure codicil may be shown by a letter written by him to his residuary legatees three days before he executed the codicil. Action by the Ladies' Union Benevolent Society against John E. Van Netta, as executor of the will of Dwight McIntyre, deceased. Complaint dismissed.

E. H. Bostwick, for plaintiff.
Tompkins, Cobb & Cobb, for defendant.

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