that the court here made no reference whatever to the defense of want of consideration, which was one of the principal matters litigated upon the trial. The jury were told, in contradiction to what had previously been said to them as to the defense of no consideration, that they must find a verdict for the plaintiff unless duress had been proved, or a counter-claim had been estab lished in a larger amount than the plaintiff's demand. This direction, given just before the jury retired, may well have destroyed the effect of what had been previously said on the subject of want of consideration, and thus have misled the jury to the detriment of the defendants. For this reason the judg ment must be reversed. Judgment reversed, and new trial ordered, with costs to abide the event.

VAN BRUNT, P. J., concurs. MACOMBER, J., concurs in result.

GAMBLE v. HINE.

(Supreme Court, General Term, First Department. November 23, 1888.) MASTER AND SERVANT-DANGEROUS MACHINERY-DUTY TO WARN SERVANT.

Where the servant is of such tender years as not to fully appreciate the danger ous character of the machinery which he is put to operate, it is the duty of the 'master to admonish and instruct him; and where the evidence is conflicting as te the fact of such instruction, a verdict for plaintiff will not be disturbed.1 Appeal from circuit court, New York county.

Action for personal injuries by Frank A. Gamble against Edward Hine From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

Argued before Van Brunt, P. J., and BARTLETT and MACOMBER, JJ. Edwin B. Smith, for appellant. Ashton & Fromme, for respondent.

MACOMBER, J. When the plaintiff received the personal injuries which form the basis of this action he was a lad of the age of 14 years and 9 months. It was the duty of the defendant, in employing a boy of such tender years to work upon dangerous machinery, to give him full and explicit instructions, not only to enable him to master the mechanism, but also to enable him to avoid injuries by unnecessarily exposing himself to danger. Had the defendant thus instructed him he would have discharged the whole of the obligation which he, as employer, owed to the employe. The plaintiff was of sufficient years, manifestly, to have understood and appreciated fully, not only the dangerous character of the business in which he was employed, but also of suffi cient intelligence to understand and apply in practice the admonitions of his employer. Hence it was of the primest importance in the trial of the action that the court and jury should be instructed by evidence upon the question whether the defendant had placed before the boy the proper facts to have enabled him to appreciate the dangerous business in which he was employed. Though the pressure upon the treadle of the machine, while the operator's hand was beneath the weight, would to an experienced eye seem to be apparently dangerous, it did not necessarily convey to a boy of these tender years the admonition which it was the duty of the employer to make to him. Had the plaintiff been a person of experience and of mature years, the case before us would be essentially different, and the employer would doubtless be exempt from liability. In the evidence it is shown on the one hand that the boy was

1 Concerning the duty of the master to give instructions to an employe, to the end that the latter may perform the duties assigned him with safety to himself, see Foster v. Pusey, (Del.) 14 Atl. Rep. 545, and note. See, also, Berger v. Railway Co., (Minn.) 88 N. W. Rep. 814, and note. As to the master's duty to provide safe and proper ar rangements and machinery, see Improvement Co. v. Smith's Adm'r, (Va.) 7 S. E. Rep. 365, and note; Railway Co. v. Crenshaw, (Tex.) 9 S. W. Rep. 262, and note.

put at work blindly, and without any instructions as to the dangerous character of the machinery, and of the means of avoiding the danger, and was left to feel his own way, without instruction or suggestion as to the danger or how to protect himself against it, while the evidence in behalf of the defendant, particularly of his foreman and of two other persons, was to the effect that the plaintiff was given specific instructions, not only how to work the machine, but also as to the danger involved. This presented a case of clear conflict of testimony which the court was in duty bound to submit to the jury. After an examination of the evidence we do not feel justified in saying that the jury has rendered their verdict without evidence, or against the weight of the evidence, taking the interest of the parties and the circumstances of the case into account. The judgment should be affirmed, with costs. VAN BRUNT, P. J., and BARTLETT, JJ., concur.

(50 Hun, 189)

NIGHTENGALE et al. v. EISEMAN et al.

(Supreme Court, General Term, First Department. November 23, 1888.) SALE-ACTION FOR PRICE-PARTIAL Delivery.

When goods are ordered in a certain quantity to be delivered at definite times, and the seller agrees to furnish them as near as possible at such times, the quantity is material, and the seller cannot sue for the price of any part of the goods until he has delivered all of them; the order being indivisible, though the deliveries be several.

Appeal from circuit court, New York county.

Action by John Nightengale and another against Moses L. Eiseman and another for the sum of $663, the price of 17 pieces of goods. The order for the purchase of the merchandise from plaintiffs was in writing, signed by the agent of defendants, and, so far as material to this appeal, was as follows: "JANUARY 4, 1886.

Balance before March 15, or earlier, if possible.

"No. 756. 100 pieces 19-in. surah, @ 60c." Then follows a statement of the colors of the different pieces to be furnished. In acknowledging the receipt of the order, plaintiffs said: “We are in receipt of an order from your house, dated January 4th, for 100 pieces, 756 surahs, at 60c. We shall endeavor to forward the same as near as possible to the time specified." Testimony was offered and excluded under exceptions tending to excuse plaintiffs' failure to deliver more articles, within the time specified in the order, on account of strikes of workmen in plaintiffs' shop, and the complaint was dismissed. Plaintiffs appeal.

Argued before VAN BRUNT, P. J., and BARTLETT and MACOMBER, JJ. Smith & White, for appellants. Theodore Connolly, for respondents.

MACOMBER, J., (after stating the facts.) The order for the merchandise, mentioned above, standing alone, would not only require a delivery of the whole number of articles before any action could be brought by the plaintiffs, but a delivery within the time specified in the order. Except for the modification mentioned in the letter accepting the order, the time of delivery of the several pieces, as mentioned, would be deemed to be an essential part of the contract, and a failure to comply therewith in the time mentioned would absolve the defendants from liability. But, by the terms of the acceptance of

the order, the plaintiffs did not assent to the proposed agreement in respect to the exact times of delivery, but promised to deliver the same 'as near as possible" to the time stated in the order. No objection was made to this modification of the proposed contract, and the parties seemed to have assented thereto. Hence, so far as the time is concerned, the proposed evidence offered by the plaintiffs, designed to extenuate their failure to deliver more than 17 pieces, would be admissible; and, had it come up to the point of establishing a reasonable excuse for the failure to deliver within a reasonable time, a recovery might still be had, except for the following consideration: The order was indivisible, although the deliveries were to be had at different times. The vendee under this contract had a right to receive and use the goods delivered without waiting to see whether or not the vendors would fully perform their contract by delivering the residue. Catlin v. Tobias, 26 N. Y. 217. Where the agreement is to furnish goods of a certain amount, the quantity specified is material, and governs the contract. Brawley v. U. S., 96 U. S. 168. Says the court in Norrington v. Wright, 115 U. S. 204, 6 Sup. Ct. Rep. 12: "The seller is bound to deliver the quantity stipulated, and has no right either to compel the buyer to accept the less quantity, or to require him to select part out of the greater quantity; and when the goods are to be shipped in certain proportions monthly, the seller's failure to ship the required quantity in the first month gives the buyer the same right to rescind the whole contract that he would have had if it had been agreed that all the goods should be delivered at once." There is nothing in the case which shows that the defendants have in any respect waived their right to insist upon the fulfillment of the whole contract before paying for any part of the goods purchased. On the contrary, the plaintiffs' evidence itself establishes that the defendants consistently denied the right of the plaintiffs to recover for the goods delivered until the whole amount contracted for had been delivered. these reasons the trial judge was justified in nonsuiting the plaintiffs' complaint. The judgment should be affirmed, with costs.

VAN BRUNT, P. J., and BARTLETT, J., concur.

(50 Hun, 221)

Stodder v. New York, L. E. & W. R. Co.

For

(Supreme Court, General Term, First Department. November 23, 1888.) 1. RAILROAD COMPANIES-LEASE OF ROAD-DEFECTIVE SWITCH-LIABILITY OF LESSOR. A railroad company is directly liable to one who is injured, while riding on the train of another company operating over defendant's road, by reason of a defective or mismanaged switch maintained by defendant, towards the maintenance of which the carrier company paid defendant a certain sum monthly.1

2. SAME-EVIDENCE-PRIOR NEGLIGENCE-HARMLESS ERROR.

In an action against a railroad for injuries caused by a defective or mismanaged switch, it was harmless error to ask defendant's switchman if he recollected a prior act of negligence on his part, where it appears that the question was asked more to test his recollection than with any other view, and nothing more was asked in regard to it.

8. SAME-REPAIR OF TRACK.

Evidence was admissible of the defective condition of the track some time after the accident, though a new switch-stand had been put in, and several other parts replaced, there being evidence that these changes did not affect the particular defect supposed to have caused the accident.

Appeal from circuit court, New York county.

Action by Rosa S. Stodder against the New York, Lake Erie & Western Railroad Company for damages for personal injuries. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

'See note at end of case.

Argued before VAN BRUNT, P. J., and MACOMBER and BARTLETT, JJ. Charles Steele, for appellant. Charles W. Gould, for respondent.

BARTLETT, J. The accident which gave rise to this action occurred to a train belonging to the New Jersey & New York Railroad Company, while running over a railroad track, near Nanuet Junction, in Rockland county, in this state, belonging to the New York, Lake Erie & Western Railroad. The latter corporation allowed the New Jersey & New York Railroad Company to run its trains over the Erie track at this place. There was a switch at this point, the defective condition of which, or the mismanagement of which, is alleged to have caused the accident. This switch was maintained by the defendant corporation, which employed the persons who looked after it. The New York & New Jersey Railroad Company paid the defendant corporation $18 a month, towards the cost of maintaining the switch. This appears to have been the only compensation received by the Erie Company for the use of its track, or the maintenance of the switch. The plaintiff was a passenger on a train coming from Spring Valley to Jersey City. As this train approached the switch which has been mentioned, at Nanuet Junction, it should have left the Erie track, and, turning to the right, have run southward, onto the New Jersey & New York line. The switch was apparently set so as to take it in this direction. The engine and tender, and the forward truck of the passenger car in which the plaintiff was riding, passed the switch properly, and took the right track; but the rear truck of the passenger car, instead of leaving the Erie line at the switch, as it should have done, continued to run along upon the Erie track. As the Erie track and the New Jersey & New York tracks diverge abruptly from each other at this point, the result was that the passenger car broke loose from the rest of the train, and was thrown over an embankment some 15 feet in height.

We have carefully examined the evidence, and think the proof sufficed to warrant the jury in finding that the accident was due, either to the defective condition of the switch, or to the negligence in its management. In either event, however, the defendant denies that it is liable to the plaintiff, inasmuch as she was not a passenger on the defendant's road, but was present thereon as a mere licensee, and not in pursuance of any contract. So far as this point is concerned, the case appears to be indistinguishable from Smith v. Railroad Co., 19 N. Y. 127, 129. In that case, the plaintiff's husband, an engineer employed by the New York & New Haven Railroad Company, was killed by an accident to his train while running over the tracks of the New York & Harlem Railroad, in consequence of the misplacement of a switch upon the latter road, through the negligence of a switch-tender employed by the Harlem Company. There was an arrangement between the two companies whereby, for a certain compensation, the New York & Harlem Railroad Company gave the New York & New Haven Railroad Company the right to run trains over its track, and provided switchmen and flag-men along that portion of the line. The question arose whether, under these circumstances, the New York & Harlem Railroad Company was liable to any one except the New York & New Haven Railroad Company, with which its contract was made. The court of appeals held that, inasmuch as death or great bodily harm was a natural consequence of negligence in the management of a railway, the defendant was liable to any one lawfully traveling over its road. This decision was based upon the leading case of Thomas v. Winchester, 6 N. Y. 397, where it was held that a dealer in drugs, who sold poison, labeled as a harmless medicine, was liable to a person who, in turn, bought it from an innocent buyer, for an injury arising from its use. It is argued that the doctrine of Thomas v. Winchester has no application here, because it does not appear that the appliance which caused the accident at Nanuet Junction was intrinsically dangerous to human life, as the bottle of poison was. It is in

sisted that the principle laid down in that case cannot be invoked, where the claim is simply that the machine is out of repair, or is defectively constructed. That this view is incorrect is made manifest by the statement of the case in Smith v. Railroad Co., supra, where it appears that the jury, in answer to a specific question, found that the death of the plaintiff's intestate was caused by the negligence of the defendant's switch-tender. This shows that the accident which was the subject of that litigation was due, not solely to a defect in the mechanical appliances of the line, but to the negligence of one of the railway servants as well. Furthermore, we are of opinion that a railway switch, which is either defective in construction or out of repair, is intrinsically dangerous to the lives of passengers transported over that portion of the track upon which the switch is situated, and where it must be used in order to regulate the movement of passenger trains. It is also sought to distinguish the present case from Smith v. Railroad Co., on the ground that the defendant did not receive any compensation from the New Jersey Railroad Company for the use of its tracks, and was not bound to keep its tracks in repair, or to operate the switch for the trains of that company. As to compensation, the proof shows that the defendant made a charge of $18 a month against the New Jersey & New York Railroad Company, for the cost of maintaining the switch, and that this amount was paid. The defendant selected and hired the switchman, and he acted under its orders. There can be no doubt, upon the evidence, that the defendant did undertake to keep the track and switch at Nanuet Junction in safe and proper order, and did maintain and control the switch there; and, in the absence of any proof to the contrary, it will be presumed that the consideration for so doing was this payment of $18 a month by the New Jersey & New York Railroad Company. It was not error, therefore, for the court to charge the jury that the defendant owed the plaintiff the duty of keeping its switch in a safe condition; nor was it error to charge that if the negligence of the switchman caused the accident the defendant was liable. As already pointed out, one of the grounds of liability in the Smith Case was the negligence of a switchman.

Some exceptions to the admission of certain testimony, under objection, remain to be noticed. When the defendant's switchman was under cross-examination, he was asked whether he recollected an occasion, previous to the accident in which the plaintiff was injured, when he left the New York & New Jersey train down the Piermont branch. This question was objected to as immaterial; the objection was overruled, and an exception was taken. The witness answered that he did remember it, but he was not questioned further on the subject. This ruling is assigned as error, on the ground that evidence of other acts of negligence is not admissible to prove negligence on a particular occasion. Up to this point of his examination the witness had manifested a poor memory as to many important points upon which he was interrogated; and it is apparent that this question was put rather for the purpose of testing his recollection than with any other view. As soon as he answered that he remembered the incident, he was asked nothing more in regard to it, and it is plain that this single question and the response thereto could not have harmed the defendant.

A good deal of testimony was introduced by the plaintiff, under objection and exception by the defendant, as to the condition of the switch some time after the accident, when a new switch-stand had been put in, and several other parts had been replaced. This evidence was not admissible, without proof that, in spite of the substitution of the new portions, the condition of the switch remained practically the same as it was when the accident happened, so far, at least, as related to the particular defect which was supposed to have caused the disaster. This was looseness in the fitting together of the various parts of the switch, and in its adjustment to the tracks, which produced what is known as "lost motion," and prevented the switch from doing