is in the alternative, and under it the defendants agreed to furnish "four (4) horse steam power or sixty pounds' pressure." A review of the testimony will show beyond cavil that, in the negotiations which led up to the making of the lease and the insertion of this alternative covenant, it was thought and understood by the plaintiff and the broker who represented the defendants that its terms were equivalent, and that it was only after more than a year, when the defendants failed and neglected, owing to the inability of their boiler, to then supply 60 pounds' pressure, that attention was called to the fact that 4 horse power was not the equivalent of 60 pounds' pressure. Upon the trial it was conceded that the two terms are entirely different in meaning and application, "4 horse power" expressing quantity of steam, and "60 pounds' pressure" the quality or pressure at which the steam is delivered. It was also established that in the plaintiff's business what was needed was steam through a 11⁄2 inch pipe, supplied as needed during the day at 60 pounds' pressure.

The respondent states the rule correctly, that, in order to justify the interposition of a court of equity in undertaking to reform a contract in writing, the evidence should be clear and convincing—such as to leave no reasonable doubt as to the mutual mistake. The burden of producing satisfactory evidence rested upon the plaintiff, and, in our opinion, he has successfully sustained it, because it is seldom, if ever, that a case is presented wherein a mutual mistake has been so satisfactorily proved.

According to the plaintiff, the words "four horse power" were in the lease when first presented to him by the broker, and he then objected to them upon the ground that he did not know what these words meant, and that what he needed and must have in the conduct of his business was 60 pounds' pressure of steam; and he insisted that the covenant to supply that amount of pressure should be inserted in the lease, which was done, and the other words were allowed to remain upon the assurance of the broker that 1 horse power equaled 15 pounds' pressure, and 4 horse power would be equivlent to 60 pounds' pressure. It was upon this representation as to the terms being equivalent, which was undoubtedly relied upon by the plaintiff, and which we must assume that the broker himself believed, that the words "four horse power" were allowed to remain in the lease. We do not, therefore, agree in the contention of the respondent that this evidence fails to show that there was any mistake on behalf of the defendants in adopting the phraseology appearing in the lease relating to the supply of steam. The defendants were represented in the transaction by their broker, and as the agreement was arranged between the plaintiff and the broker, representing the defendants, the latter's acts and understanding of the meaning of the language used and its purpose are binding upon the defendants. The broker's testimony shows that he did not know the difference between 4 horse power and 60 pounds' pressure, and all the surrounding circumstances support the plaintiff's version that he refused to sign the lease with the words "four horse power" in it, until there was also inserted the covenant as to the 60 pounds' pressure. Unless the parties understood these terms to be equivalent, it is difficult

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to see any reason for inserting them in the lease, since they differ in meaning and application. What the plaintiff needed was sufficient steam for his business of sponging cloth, and this required 60 pounds' pressure of steam. Moreover, one of the defendants' witnesses, who rented steam, testified that, with respect to spongers, they always contracted to furnish a given pressure through a given pipe, because it was the only way to determine the amount to be supplied, and that 50 pounds was the ordinary requirement. The lease itself states that the sponging business was to be carried on, and the uncontradicted testimony is that this could not be done with less than 60 pounds' pressure. But the most significant fact, as indicative of the construction which the parties themselves placed upon the covenant in the lease, is that for more than a year, though it was attended with trouble and expense, the defendants actually furnished the 60 pounds' pressure; the engineer's testimony being that every morning he saw to it that 60 pounds was ready for the spongers when they arrived for work, and that he worked the boiler hard to keep up that pressure. It was only after the boiler had been used up and commenced to leak, and was unable to furnish 60 pounds' pressure, that the defendants fell back upon the alternative provision in the lease of 4 horse power, and insisted that in furnishing that amount of steam they were complying with their lease, regardless of the amount of pressure.

It has been many times held that the practical construction put upon a contract by the parties to it is sometimes almost conclusive as to its meaning (Nicoll v. Sands, 131 N. Y. 24, 29 N. E. 818), and that there is no surer way to find out what the parties mean than to see what they have done (Insurance Company v. Dutcher, 95 U. S. 273, 24 L. Ed. 410).

The entire evidence, including the nature of the plaintiff's business, the custom in furnishing steam for that business, the way in which the lease was made, and the conduct of the defendants in supplying for over a year the pressure needed, seems to us to point with unerring certainty to the fact that the words "four horse power" were inserted in the lease as the result of a mutual mistake, and that the plaintiff was entitled to have the lease reformed by striking out therefrom those words.

The question of damages, if any, to which the plaintiff would be entitled, is not before us upon this appeal; the judgment having been for the defendants.

The judgment accordingly should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

RANDALL v. HOLBROOK, CABOT & DALY CONTRACTING CO. (Supreme Court, Appellate Division, First Department. June 10, 1904.) 1. MASTER AND SERVANT-FELLOW SERVANTS.

Where a servant engaged in driving a wagon carrying rock from an excavation was injured while waiting for his wagon to be unloaded, owing to the negligence of the foreman in charge of those unloading the stone, the foreman at the time of the accident being engaged-outside the scope of his duties-in operating the hoisting engine in the absence of the regular engineer, the servant and the foreman were fellow servants.

2. SAME EMPLOYER'S LIABILITY LAW-SUPERINTENDENT.

Where one was known by all the men who were engaged in unloading stone from wagons as the foreman, and gave orders for the prosecution of that work, he was a superintendent, within the employers' liability law (Laws 1902, p. 1748, c. 600), giving an action for death of a servant where it is occasioned by the negligence of any person intrusted with and exercising superintendence.

3. SAME STATUTORY NOTICE-TIME FOR GIVING NOTICE.

The employers' liability law (Laws 1902, p. 1748, c. 600, § 2) declares that no action for injuries shall be maintained under the statute unless notice of the injuries be given to the employer within 120 days, and that, in case of the death of a servant without his having given such notice, his executor or administrator may give it within 60 days after his appointment. Held that, where a servant died of his injuries without having given any notice, a notice given by his administrator more than 60 days after his appointment was insufficient, though it was given within 120 days of the accident.

Appeal from Trial Term, New York County.

Action by Martin H. Randall, as administrator of the estate of Conrad E. Randall, deceased, against the Holbrook, Cabot & Daly Contracting Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Argued before MCLAUGHLIN, PATTERSON, O'BRIEN, INGRAHAM, and LAUGHLIN, JJ.

Benjamin Patterson, for appellant.
Benjamin Scharps, for respondent.

INGRAHAM, J. This action was to recover the damages caused by the death of the plaintiff's intestate. The complaint alleges that the plaintiff's intestate, "while in defendant's employ, through the negligence and carelessness of the defendant and of a person in its service, intrusted with and exercising superintendence, or acting as superintendent with its authority, in the management of an engine and the apparatus connected therewith, under the control of this defendant and of such person, and through the negligence and carelessness also of this defendant or its servants and agents intrusted with some general superintendence, in furnishing and using an unsafe and improper fastening or clamp for fastening large and heavy stones and rock to be hoisted and removed from carts and other places, said Conrad E. Randall was, without any fault or negligence on his part, struck by a large and heavy stone, receiving therefrom injuries which resulted

11. See Master and Servant, vol. 34, Cent. Dig. § 452.

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in his death," and that letters of administration were duly issued to the plaintiff on the 31st day of December, 1902.

An examination of the testimony discloses that, but for the employers' liability act (chapter 600, p. 1748, Laws 1902), there would have been no cause of action, as the negligence complained of was the negligence of one in the employ of the defendant who was a fellow servant with the plaintiff's intestate, and for the negligence of a fellow servant the defendant was not liable. To recover, therefore, the plaintiff must bring the case within the provision of that act. At the opening of the case, before any testimony was taken, counsel for the defendant moved to dismiss the complaint upon the ground that the notice required by this act had not been given, as no notice was given by the deceased in his lifetime, and the notice given by the plaintiff as administrator was not given until more than 60 days after his appointment as such administrator. The accident happened November 28, 1902. The deceased died December 22, 1902. Letters were issued to the plaintiff on the 31st day of December, 1902, and the notice required by section 2 of the act was given on March 17, 1903-a period of 76 days after the plaintiff's appointment as administrator. This motion was overruled, the court holding that, if notice was served within 120 days of the accident, the requirement of the law was complied with, and to that the defendant excepted. This exception presents the important question on this appeal.

The plaintiff's intestate was driving a wagon for the defendant, carrying rock that had been excavated for building an underground railroad in the city of New York. On the 28th of November, 1902, the deceased drove his truck, with a load of stone, down to the foot of Eighteenth street and East river. When he arrived, another truck was there, being unloaded, and the deceased drove up to await his turn to unload his truck. After putting blankets upon the horses, he turned around to walk away, and passed the rear end of the truck from which the stones were being unloaded. As he walked past the truck being unloaded, a large piece of rock which was being taken from that truck slipped from its fastening, struck the back of the truck from which it was being unloaded, glanced off, and fell upon his leg and crushed it. Amputation of the leg was necessary, which finally resulted in his death. When this stone was being hoisted up, one of the witnesses testified that he noticed that, instead of going up with a steady strain, it went up with jerks. There was evidence that one Antonio Domenico, who was in charge of unloading those stones for the defendant, was at this time running the engine by which the rock was lifted off the truck; that Donelin, the regular engineer, was not there at the time of the accident; that, immediately after the stone slipped out of the chain, the engineer came running down the dock, and went to the engine room. There was no evidence that the derrick or other part of the machinery was out of order, or that the method adopted was an improper one, and the only negligence alleged is that, in the absence of the regular engineer, this man Domenico, who was in charge of the work for the defendant, attempted to operate this engine; that, in consequence of his operation of the engine, the rock, instead of being steadily pulled up, was pulled up with jerks,

and in some way fell. There was also evidence by an engineer that these stones could be hoisted from the wagon without jerking. It also appeared that no license had been issued to Domenico to operate an engine in the city of New York.

On behalf of the defendant it was shown that the appliances, including the derrick, were in good order, and proper for the work that they were called upon to do. The regular engineer who was in charge of this engine testified that at the time of the accident he was running the engine; that he saw a chain put around the rock that fell, by the men at work on the wagon; that, as they started to raise this rock, it slipped; that he immediately stopped the engine and commenced to lower the stone, but that in lowering the stone it slipped through the chain, hit the truck, and slid off upon the ground, one end remaining on the truck; that the cable did not jerk as it was being raised; that the only jerk of the cable was after the stone fell off; that the chain did not break, and there was nothing the matter with any of the appliances with which this work was done; that he allowed Domenico to run the engine when he had other duties to perform, connected with his boiler, but that Domenico only operated the engine when the engineer was within 50 feet of the engine, attending to his boiler; that the stone was only raised about 3 inches above the truck; that it was then noticed that it was not securely fastened, when it was lowered again to the truck, but as it was lowered it slipped off the truck.

The defendants had supplied a competent engineer to manage this engine, and had put him in charge of it. They supplied proper derricks, chains, and engine to do the work, and competent men to operate them. There was no evidence that the defendant had ever instructed or authorized this foreman to manage this engine, or that it had knowledge that the engineer allowed him to run it; and it is clear that the foreman, when running this engine, and the men engaged in driving and unloading the trucks, were all fellow servants, and for the negligence of one of them, which contributed to an injury to another, the defendants were not liable, unless such a liability was imposed by the employers' liability law (chapter 600, p. 1748, of the Laws of 1902). Section 1 of that act provides that where, after the act takes effect, personal injury is caused to an employé, who is himself in the exercise of due care and diligence at the time, "by reason of the negligence of any person in the service of the employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendent, * ** the employee, or in case the injury results in death, the executor or administrator of a deceased employee who has left him surviving a husband, wife, or next of kin, shall have the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer nor engaged in his work." I think that Domenico was intrusted with and exercising superintendence in the service of the defendant at the time of this accident. He was known as the foreman by all the men on the work. He gave orders as to the prosecution of that work, and his negligence while