said premises were damaged by fire to an extent rendering them untenantable. A dispute arose between the landlord and the tenant as to whether the landlord complied with the terms of the lease as to repairing the damage. The landlord insisted that he was complying with this provision of the lease, and demanded the rent. The tenant claimed that the failure of the landlord to repair the premises constituted such a breach of this covenant of the lease. as to give him a claim against the landlord for the damages which he suffered.

On December 23, 1910, the defendant sent the landlord a check for $53.40, which check stated upon its face that it was in full payment of all claims. The defendant's letter, which accompanied the check, stated that the amount of $53.40 was the amount of rent for the demised premises up to December 12, 1910, the day of the fire, and that he considered the relation of landlord and tenant terminated. The check inclosed in this letter the plaintiff immediately returned, with a statement that he declined to accept the amount named in the check in full satisfaction of his claim for rent. The defendant returned the check to the plaintiff, with a note informing the latter that he might accept or reject it, as he saw fit. To this letter the plaintiff replied that he accepted the check in part payment for the December rent, and collected the money upon it, although the defendant, immediately on receipt of the last letter from the plaintiff, again wrote the plaintiff that the check was given. only in full payment of all claims, and that, if the plaintiff accepted and deposited the check,. the defendant should consider such action as ending the transaction and terminating his liability.

Upon the trial, the defendant claimed that the facts recited above constituted an accord and satisfaction, or that, at least, these facts were sufficient to require the court to submit to the jury the question whether or not there had been an accord and satisfaction. The learned court below took a different view of the case, denied the motion of the defendant to go to the jury, and directed a verdict for the plaintiff for the full amount of his claim. From the judgment entered upon this verdict, the defendant appeals to this

court.

[1] Whether or not there was a bona fide dispute between the parties was a question of fact, which should have been submitted to the jury. If the jury found, as it seems to us they might well have found, that there was such a dispute, all the other elements necessary to establish an accord and satisfaction were present, and their verdict should have been for the defendant.

[2] The respondent urges that the debt due the plaintiff was liquidated and certain, and that, therefore, a payment of the debtor of a less sum did not constitute an accord and satisfaction. This rule, however, does not apply where the debtor has a claim for damages against the creditor. In such cases, although the amount of the creditor's claim is not disputed, the fact that the debtor claims to be entitled to an offset renders the whole claim unliquidated, and as such the subject of an accord and satisfaction. Jack

137 N.Y.S.-58

son v. Volkening, 81 App. Div. 36, 80 N. Y. Supp. 1102, affirmed 178 N. Y. 562, 70 N. E. 1101; Fuller v. Kemp, 138 N. Y. 231, 33 N. E. 1034, 20 L. R. A. 785; Laroe v. Sugar Loaf Dairy Co., 180 N. Y. 371, 73 N. E. 61; Uvalde Asphalt Paving Co. v. N. Y., 99 App. Div. 327, 91 N. Y. Supp. 131.

[3] When the defendant tendered his check to the plaintiff in full satisfaction, the latter was not obligated to accept it. He could do one of two things: Either return it, or accept it upon the condition specified. He could not retain the check and repudiate the condition upon which alone it was offered. Fuller v. Kemp, supra; Logan v. Davidson, 18 App. Div. 356, 45 N. Y. Supp. 961; Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695; Komp v. Raymond, 175 N. Y. 112, 67 N. E. 113; Hand v. Supreme Council R. A., 44 App. Div. 487, 60 N. Y. Supp. 808; Lewinson v. Montauk Theater Co., 60 App. Div. 576, 69 N. Y. Supp. 1050; Jones v. Keeler, 40 Misc. Rep. 224, 81 N. Y. Supp. 648; Williams v. Bienenzucht, 54 Misc. Rep. 211, 104 N. Y. Supp. 438; Freiberg v. Moffett, 91 Hun, 20, 36 N. Y. Supp. 95. The evidence presented a question of fact, which the jury, under proper instructions, should have been allowed to pass upon, whether or not the check was accepted under circumstances constituting an accord and satisfaction.

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

STRNAD v. WILLIAM MESSER CO.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) MASTER AND SERVANT (§ 330*)—INJURIES-NECESSITY OF PROOF ON THE PART OF THE PLAINTIFF-RES IPSA LOQUITUR.

Though the defendant, in an action for injuries to a person from a block of wood, which fell from a house in course of construction, was a plumbing contractor, and at work in the house at the time of the accident, when there were servants of several other contractors at work in the building at the same time, the mere allegation that his negligence caused the injury would not relieve the plaintiff from the obligation of proving the defendant's negligence, and cast upon such defendant the burden of explaining the accident.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. § 330;* Negligence, Cent. Dig. § 240.]

Appeal from City Court of New York, Trial Term.

Action by Sophia Strnad by Anna Strnad, her guardian ad litem, against William Messer Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

James B. Henney, of New York City (Floyd K. Diefendorf, of New York City, of counsel), for appellant.

Otto H. Droege, of New York City, for respondent.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

SEABURY, J. This action was brought on behalf of an infant to recover damages for injuries alleged to have been sustained by her through the negligence of the defendant. While playing in the yard in the rear of the house where she lived, the plaintiff was struck by a piece of wood, which fell from the adjoining building. The adjoining building, at the time, was in the course of construction. The defendant was a contractor engaged in doing plumbing work upon the adjoining building. There were upon that building servants of several other contractors, who were also engaged in work. The chief issue in the case was to determine whether or not the servants of this defendant were responsible for the accident.

The learned court below charged the jury that the fact that an object fell from the building was presumptive evidence, requiring the "one charged with such an act to present to the jury evidence denying the negligence by explaining the occurrence." The charge also withdrew from the jury the issue of contributory negligence, and stated to the jury that the failure of the one charged with doing the negligent act to explain it was conclusive evidence of negligence. The fact that the plaintiff charged the plumbing contractor with responsibility did not relieve her of the obligation of offering proof to show that the plumbing contractor was liable. The mere charge of negligence has no probative force. The charge was not only incorrect, but prejudicial, since it permitted the plaintiff to recover a verdict. based on her pleadings, rather than upon proof.

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

(78 Misc. Rep. 156.)

HOWATT v. BARRETT.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) 1. CARRIERS (§ 197*)-MODIFICATION OF SHIPMENT-RESTORATION TO CONSIGNOR.

The modification of an interstate C. O. D. shipment so as to read "without C. O. D.," which was indorsed on the express receipt, not relieving the consignee from paying the express charges, did not entitle the contracting carrier, after having failed to either tender or deliver the goods to the consignee, to demand payment of the express charges back and forth as a condition to restoring the goods to the consignor.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 891-900; Dec. Dig. § 197.*]

2. CARRIERS (§ 175*)-INTERSTATE SHIPMENT-INITIAL CARRIER-LIABILITY FOR CONNECTING CARRIER.

In view of the Carmack amendment (Act June 29, 1906, c. 3591, 34 Stat. 595, 7, pars. 11, 12 [U. S. Comp. St. Supp. 1911, p. 1307]) making the initial carrier liable for the acts of its connecting carrier, it was immaterial in such case that the failure to make proper delivery or tender was the fault of the connecting carrier.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 764, 765; Dec. Dig. § 175.*]

Appeal from Municipal Court, Borough of Manhattan, First District.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Action by Michael E. Howatt against William H. Barrett, as President of the Adams Express Company. From a judgment for defendant, plaintiff appeals. Reversed, with directions.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

George A. Ferris, of New York City, for appellant.

Guthrie, Bangs & Van Sinderen, of New York City (Robert E. Palmer and Francis Dean, both of New York City, of counsel), for respondent.

GUY, J. Plaintiff sues to recover damages for breach of contract of carriage.

[1] On March 19, 1910, plaintiff shipped goods, valued by him at $44.50, C. O. D. to J. T. Saidy at Excelsior Springs, Mo., by the defendant, the Adams Express Company. On March 25, 1910, he modified the shipment to read, "Deliver to M. A. Saidy, Denver, Colo., without C. O. D.," which was indorsed on the express receipt. This did not relieve the consignee from the payment of the express charges, but only from payment of the value of the goods. The goods were never delivered or tendered to the consignee, but were returned to the plaintiff conditionally on his paying express charges back and forth, which were demanded by defendant and refused by plaintiff. The defendant company, having failed to perform its contract, was not entitled to demand payment of express charges.

[2] The defense was that the Wells Fargo Express Company is the only express company at Excelsior Springs, that both they and the defendant were gratuitous bailees, and defendant was not liable for the connecting carrier's error or nondelivery, if any. Under the Carmack amendment (34 U. S. Stat. at Large, 595, § 7, pars. 11, 12), a connecting carrier acts as agent for the initial carrier, which is made liable as if it itself had done the act complained of. The purpose of the Carmack amendment was to enable the shipper, in case of loss or damage to his goods to have recourse to the initial carrier, and leave the initial carrier to its recourse, for whatever damages it might have to pay to the connecting carrier doing the injury. If there is anything in the express receipt contrary to the Carmack amendment, it is invalid. De Winter & Co. v. Texan Central R. R. Co., 150 App. Div. 612, 616, 617, 135 N. Y. Supp. 893; Atlantic Coast Line R. R. Co. v. Riverside Mills, 219 U. S. 186, 194, 197, 199, 201, 203, 207, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7.

Judgment reversed, with costs, and judgment directed for the plaintiff in the sum of $49.90. All concur.

(78 Misc. Rep. 168.)

PERLMAN v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) 1. NEW TRIAL (§ 78*)—SUCCESSIVE VERDICTS-CONCLUSIVENESS.

A finding by three successive juries on disputed questions of fact in a negligence case should be deemed conclusive, in the absence of any circumstances tending to show that the jury was actuated by passion, prejudice, or corrupt motive; and the setting aside of the third verdict for plaintiff as against the weight of evidence was error, especially where the court denied a motion, made by defendant at the close of plaintiff's case, to dismiss on the ground that plaintiff had failed to make out a cause of action.

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 162–165; Dec. Dig. § 78.*]

2. JURY (§ 12*)—"TRIAL BY JURY"-CONSTITUTIONAL LAW.

Const. art. 1, § 2, in providing that "trial by jury" in "all cases where it has been heretofore used shall remain inviolate forever," meant that questions of fact shall be determined by juries, and not by the court.

[Ed. Note. For other cases, see Jury, Cent. Dig. §§ 27-34, 82, 99, 101, 103; Dec. Dig. § 12.*

For other definitions, see Words and Phrases, vol. 8, pp. 7103-7107, 7821.]

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Morris Perlman, by Jacob Perlman, his guardian ad litem, against the Brooklyn Heights Railroad Company. From an order of the Municipal Court of the City of New York (135 N. Y. Supp. 542), setting aside the verdict in his favor, plaintiff appeals. Reversed.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

Charles S. Rosenthal, of New York City, for appellant.

George D. Yeomans, of Brooklyn (James W. Carpenter, of Brooklyn, of counsel), for respondent.

GUY, J. Plaintiff appeals from an order setting aside the verdict of a jury in favor of plaintiff (an infant) for $50 in an action to recover for personal injuries. Two previous juries rendered verdicts for the same amount in favor of plaintiff, and each of said verdicts was set aside by the trial justice as against the weight of evidence.

[1] The plaintiff appellant contends on this appeal that, three successive juries having found in favor of the plaintiff for the same amount, this verdict cannot be again set aside as against the weight of evidence. The respondent cites, in opposition to plaintiff's contention, the decision of the Appellate Division, First Department, in the case of Meinrenken v. Central R. R., 103 App. Div. 319, 92 N. Y. Supp. 1015, where, in setting aside a third verdict, the court, Mr. Justice McLaughlin writing the opinion, says: "This judgment is based upon a verdict, which, in the opinion of this court, the jury had no right to render, and it has so declared on two previous ap*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes