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and 140 New York State Reporter manner which carried with it imminent danger of irremediable damage. Down to the time the order to show cause, with the stay, was obtained, there was no suggestion that the supervisory committee was acting under any other provision than section 35 of the by-laws. That section points unerringly to proceedings under section 36 and the following sections, which may lead directly onward to suspension or expulsion. Plaintiff was warranted in believing, as, indeed, the court is, that the proceedings were instituted with a view to imposing one or other of those penalties upon him. The law is settled that a member of an organization, such as the New York Cotton Exchange is, must first exhaust his remedy within the corporation before the courts will interfere; but the cases wherein this rule is laid down are those in which the proceedings against a member are commenced and conducted in conformity with the provisions of the constitution and by-laws of the organization. Here plaintiff's complaint is that the proceedings against him were instituted and conducted contrary to the by-laws.

In the first notice to him to appear before the supervisory committee he was, in substance, required to appear to give evidence against himself. The sworn statements of the members of the supervisory committee sufficiently show that their attitude was that of judges toward a culprit at the bar, rather than that of fellow members of an organization conferring about its best interests, with a view to punishing misconduct on the part of some other member. That there was no hope of redress in the board of managers, the highest power within the Exchange to which he could appeal, was made manifest by its approval in advance of the illegal methods pursued by the supervisory committee. The law does not require resort to higher authority within the organization when it appears that such action would be futile. Plaintiff's only hope for protection against the calamity which threatened him lay in a resort to this court, and I do not think relief should be denied to him.

The motion for a temporary injunction should therefore be granted, enjoining the defendants from prosecuting against him the proceedings instituted by the notice of August 19, 1907, and from proceeding against him in any way except in strict conformity with the charter and by-laws of the Exchange. No restraint should, however, be imposed upon the defendants affecting their right to proceed against him in any manner authorized by the charter and the by-laws. In other respects the application should be denied.

(121 App. Div. 549.)

CRAFT V. PEEKSKILL LIGHTING & R. CO. (Supreme Court, Appellate Division, Second Department. October 18, 1907.) RAILROADS-COLLISIONS WITH ANIMALS--NEGLIGENCE-SUFFICIENCY OF Evi


In an action for killing plaintiff's cow, a mere showing that the cow was struck by the defendant's electric car and killed was insufficient to support a verdict for plaintiff, since it did not show defendant negligent.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, 88 1578– 1580, 1608.)

Hooker, J., dissenting.

Appeal from Westchester County Court.

Action by George E. Craft against the Peekskill Lighting & Railroad Company to recover for the killing of plaintiff's cow. From a judgment for plaintiff, and an order denying defendant's motion for a new trial, defendant appeals. Reversed.

Argued before JENKS, HOOKER, GAYNOR, RICH, and MIL 'LER, JJ.

Nathan P. Bushnell, for appellant.
Eugene B. Travis, for respondent.

GAYNOR, J. The plaintiff's cows strayed along the country highway at night, and one of them was killed by the defendant's electric car thereon while crossing in front of it. That the cow was killed is not enough to prove that the defendant was negligent and therefore liable. And yet that is all this verdict is based on. The plaintiff gave no evidence of how the thing happened. The defendant called the motorman, who testified that the cow suddenly appeared before him about to cross the track 30 feet ahead. He did all he could to stop his car but could not stop it in time. The plaintiff's lack of evidence cannot be eked out by saying the motorman's evidence is improbable, or colored, or does not seem to be truthful; there must be evidence to support the verdict. It may well be that the cow did what we well know from our experience here that human beings often do, viz., suddenly went upon the track. We may be able to see that if she had been walking along the track for a considerable distance the motorman should have seen her in time; but we have no such case here. Dettmers v. Brooklyn Heights R. Co., 22 App. Div. 488, 48 N. Y. Supp. 23.

The judgment should be reversed.

Judgment and order of the County Court of Westchester county reversed, and new trial ordered; costs to abide the event. All concur, except HOOKER, J., who dissents.

(121 App. Div. 554.)


(Supreme Court, Appellate Division, Second Department. October 18, 1907.)



Where plaintiff, who was employed in defendant's railroad yard, was directed by his foreman to go between two cars standing near together in order to cross a track, at a time when cars were being kicked down the track against the standing cars, and as he hesitated the foreman told him to go ahead, and as he did so his arm was caught and crushed, the act of the foreman in hurrying plaintiff between the cars was a negligent act of superintendence, for which the railroad company was liable as pro

vided by Employer's Liability Act, Laws 1902, p. 1748, c. 600, $ 1. 2. SAME-ASSUMED Risk-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.

Whether plaintiff assumed the risk, and was himself negligent in remaining in the place, knowing it was dangerous, was for the jury, as ex.

and 140 New York State Reporter pressly provided by Employer's Liability Act, Laws 1902, p. 1750, c. 600, $ 3.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Serv. ant, 88 1068–1132.] Appeal from Trial Term, Orange County.

Action by Luigi Onesti against the Central New England Railway Company. From a judgment for defendant on dismissal by the court at the close of plaintiff's evidence, plaintiff appeals. Reversed.


Hobart S. Bird, for appellant.
W. C. Anthony, for respondent.

of men in do, one thing. The foreme directes

GAYNOR, J. The plaintiff was employed by the defendant. He worked in the railroad yard. It was four miles long and had fourteen tracks. Cars were “kicked" down upon these tracks daily and often, so that many cars stood there. Many men worked there. The plaintiff was with a gang of men in the yard under the direction of a foreman. He directed them what to do, one thing and then another, and they had to cross the tracks among the cars. The foreman was leading them from one place to another to do some work. He directed them to go between two cars standing near together in order to cross a track. The plaintiff hesitated, and looked to see if the car toward the direction from which the cars were kicked might move, but the foreman told him to go ahead. He went on and the car did come down against the other car. His arm was caught and had to be amputated. The kicking engine was at work at the time, and the jury could have found that a car had just been kicked upon that track, and striking the first of a line of five or six cars, of which the one that hit the plaintiff was the last, drove them down, causing the collision that hurt the plaintiff. There was no other movement of cars going on.

The act of the foreman in directing and hurrying the plaintiff between the cars when a car was being kicked down that track was an act of superintendence, and it was for the jury to say if it was not negligent. He was in the exercise of his authority and superintendence in leading and directing the men at the time. The rule that such negligence would be the negligence of the master applied to the case, for the action was brought under the employer's liability act (Laws 1902, p. 1748, c. 600), which contains such rule (section 1), and also another rule that the question of the assumption of the risk by the plaintiff or of his contributory negligence, by remaining in the place knowing it was dangerous, was a question of fact for the jury (section 3).

The judgment should be reversed.

Judgment reversed, and new trial granted; costs to abide the event. All concur.

(121 App. Div. 524.)

COLLINS et al. v. CARLIN et al. (Supreme Court, Appellate Division, Second Department. October 18, 1907.) 1. APPEAL-REVIEW-ESTOPPEL TO COMPLAIN OF ADMISSION OF EVIDENCE.

The trial judge having instructed without objection that both parties conceded the contract sued on was not fully expressed in writing, defendants may not on appeal complain of the admission of evidence tend

ing to show the real contract. 2. SAME-CONCLUSIVENESS OF VERDICT.

A verdict based on conflicting evidence will not be disturbed in the absence of legal error.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Er

ror, $8 3935-3937.) 3. TIME-DAY-WHAT CONSTITUTES.

Ordinarily a contract by the day means the calendar day, or hours of a calendar day ordinarily used.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 45, Time, $ 10.] 4. CONTRACTS-ACTION FOR PRICE.

Repairs being necessary on work done on a city prison by defendants, and the authority of a city officer to contract with, plaintiffs therefor, being questioned, it was so arranged that plaintiffs made the repairs as an extra under defendants' contract. Held, that defendants were liable to plaintiff for the price of the repairs, though the city refused to pay defendants therefor; defendants having induced plaintiffs to perform the services, knowing that plaintiffs did the work without any expectation that the city would pay them, except as it might do so through defendants. Appeal from Trial Term, Nassau County.

Action by William P. Collins and another, copartners as William Collins' Sons, against Patrick J. Carlin and others, copartners as P. J. Carlin & Co. From a judgment for plaintiffs, and an order denying a new trial, defendants appeal. Affirmed.

See 94 N. Y. Supp. 317.


John C. Wait, for appellants.
James A. Allen, for respondents.

WOODWARD, J. The learned justice presiding at the trial charged the jury, and no one raised an objection, that both parties to the controversy conceded that the contract between the plaintiffs and defendants was not fully expressed in the letters and other documents in evidence. This being true, the defendants are not now in a position to urge error in the admission of evidence, the object of which was to bring before the jury the real contract between the parties. The evidence introduced by the plaintiffs, and which supplemented the written evidence, did not tend to vary a written contract; but it served to complete the contract as understood by the parties at the time, and such evidence was clearly competent. With this question out of the case, and it clearly has no place upon this appeal, if it is once conceded that the written evidence did not disclose the real contract, there are merely a number of questions of fact involved in the case;

and 140 New York State Reporter and these, upon a conflict of evidence, have been determined by the jury in favor of the plaintiffs and against the defendants, and in such cases, in the absence of legal error, there is nothing for an appellate court to do but to affirm the judgment entered upon the verdict. This must be done in this case.

In February, 1902, the defendants were doing the carpentry and mason work on the city prison for the city of New York. In the basement of the building they had constructed a water-tight pan or caisson, intended to shut off the subsurface water from the boilers which were to be placed therein. Owing to a delay in placing the boilers, this caisson "huckled" and became unfit for the purpose for which it was designed, necessitating repairs. The commissioner of corrections, who had charge of the erection of the city prison, desiring to have these repairs made, requested the plaintiffs to bid for doing the work. This resulted in the plaintiffs making a proposition to the commissioner; but, a question arising as to the authority of the commissioner to contract with plaintiffs, it was arranged that the plaintiffs should do the work as an extra under the defendants' contract, and the agreement, as found by the jury, was that the plaintiffs should reconstruct the caisson for $800, and that they should do the necessary pumping in connection with the work at $10 per day, allowing 8 hours for a day. The questions litigated related to the pumping; it being contended on the part of the defendants that the contract merely called for pumping during the time the work of reconstructing the caisson was in progress, while the plaintiffs contended that the contract was to do all of the pumping, covering the work of construction as well as the work of placing the boilers by third parties afterward, and the jury has found that this was the contract, and that the work required 5008/10 days of 8 hours each, aggregating $5,003. It is true, of course, that ordinarily a contract by the day means the calendar day, or the hours of a calendar day which are ordinarily made use of, and, if there was only the written evidence in this case, we should be disposed to hold that there could not be liability beyond the calendar days employed; but the evidence is that the parties had a conversation over the telephone, in which it was agreed that the work should be at the rate of $10 per day of 8 hours, and the testimony indicates that the pumping was required at intervals throughout the 24 hours, making 3 days in each 24 hours.

The real difficulty in this case arises from an effort on the part of the defendants to help the commissioner out of an embarrassing situation. It was undoubtedly expected that the city would pay the defendants for this extra work and that they would pay the same over to the defendants. But the city has not paid the bill, which the defendants put in, and which they subsequently brought an action to enforce, and now, when the plaintiffs seek to recover, the defendants urge that the contract is not what they contemplated, though it is not seriously disputed that the defendants knew that the plaintiffs were doing the work, and that it was not with an expectation that the city would pay them, except as it might do so through the defendants. It works a hardship upon the defendants, no doubt; but they were the ones who created the situation, and who induced the plaintiffs to

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