and 114 New York State Reporter

other contracts for receiving and measuring lumber. The same thing may be said with reference to the entirety and distinctness of the obligations of each of the other contracts.

Starting with these views as to the character of the contracts, it follows, upon the view most favorable to plaintiff, that certainly, at the completion of all the work covered by any contract, a right of action existed in favor of plaintiff to recover for his services thereunder. No time having been fixed for the termination of these various employments of plaintiff by defendant, as found by the referee, the same were so far terminated as to entitle plaintiff to his compensation when allthe work thereunder ceased. All of them were completed more than six years prior to November 6, 1893, except the one for receiving and inspecting pulp wood. No item in either of the other three contracts accrued subsequent to July 19, 1893, and, therefore, subject to the consideration of payment hereafter to be discussed, said three claims were all barred by the statute of limitations when the action was commenced.

Under the employment with reference to the pulp wood, plaintiff claims that he performed one item of services November 7, 1893, and that his employment was so far continuous, and the contract so far entire, that his right to compensation did not become perfected until after the rendition of the last item of services. The defendant insists that each item of services in this employment constituted an entire, distinct cause of action, and that, therefore, no recovery can be had except for the one item upon the last date. The question whether various items for services constitute a single, entire cause of action, or whether they are respectively different and distinct claims, is not always free from difficulty. Courts must bring somewhat to their aid in its solution considerations of expediency, of reasonable enforcement, of usage, and of what may be supposed to have been the intent of the parties. Employing these aids, we think that neither reason, usage, nor the parties required or contemplated, under the employment found by the referee, that the plaintiff should be entitled to receive or collect from defendant 15 cents every time he inspected and measured a cord of pulp wood. This would be so unreasonable as to be almost absurd. We think, rather, that a plain and reasonable construction of the contract is that plaintiff, as an entire undertaking, was employed to perform services with reference to such pulp wood as might be delivered, and for which when the job was completed he would be entitled to his compensation in a single payment. There is nothing burdensome. about this interpretation for either party. If there seemed danger of prolongation of the work to such an extent as would be undesirable or inconvenient, either party would have had the right to terminate it and make a settlement with the other. These views seem to be entirely in accordance with the principles laid down in Smith v. Velie, 60 N. Y. 106; Pursell v. Fry, 19 Hun, 595; Dailey v. Devlin, 21 App. Div. 62, 47 N. Y. Supp. 296; Denise v. Denise, 110 N. Y. 567, 18 N. E. 368.

Appellant, as sustaining his views, has called to our attention Davis. v. Gorton, 16 N. Y. 255, 69 Am. Dec. 694, and In re Gardner, 103 N. Y. 533, 9 N. E. 306, 57 Am. Rep. 768. Each of these cases in

volved a claim for services performed in the management of the household of the deceased, and which services had extended over several years. It is a matter of common observation and knowledge that an employment of services of such a character, extending over a long time, does not ordinarily contemplate postponement of all payment to the end of the services, but that, upon the contrary, it is customary and usual to make payment either weekly or monthly. In the first case cited the judge rendering the opinion says: "The law will not, I think, intend, in respect to a permanent and continuous employment, an agreement so unusual in its character, and so little conducive to the interests of either party to it, as that the payment of any compensation shall be postponed until the termination of the employment;" and this view was followed and adopted in the Case of Gardner. In the facts. involved the two cases above cited are, we think, clearly distinguishable from the one at bar, and, as already pointed out, it would be as unreasonable and extraordinary to hold that in this case it was the duty of plaintiff to collect pay for each cord of wood measured as it would have been forced and strained to have held in the cases cited that the claimant could not, if he chose, collect any compensation at all until the years of service had expired.

While plaintiff's claim, as above found, was accruing, and at frequent intervals from February 9, 1890, to October 8, 1891, defendant advanced to him various sums of money. It is quite apparent, however, that these moneys were advanced for the specific purpose of paying persons who delivered wood, and that they cannot be regarded as payments upon the various items of plaintiff's claim. The referee has not found in favor of any such application, and, as we understand it, none of such a character is claimed upon this appeal.

On September 20, 1899, plaintiff drew upon defendant an order for $24, with instructions to "charge same to my account." As found by the referee, some time thereafter this order was accepted by the defendant and paid by him. It does not appear more definitely than this what the date of acceptance was. No evidence was given by plaintiff as to the application of this payment. The defendant, speaking with reference to it, says: "I kept a book of account of Shafer. Haven't it with me. I think I charged the order to Shafer." It appears that plaintiff and defendant had had various other business relations. It does not appear definitely whether they had been closed at the time of this payment or to what account upon his books with plaintiff defendant charged this order. At the time of its payment all of the claims in favor of plaintiff involved in this action were, as already found, outlawed, except one. The referee has refused to find that this was such a payment as would revive said claims. We think he was correct in this holding, there being no such evidence as was necessary of an intent upon the part of the defendant to have said. payment applied to the claims made by plaintiff which were then outlawed, and thereby revive them. Burdick v. Hicks, 29 App. Div. 205, 51 N. Y. Supp. 789; Adams v. Olin, 140 N. Y. 150, 35 N. E. 448. In accordance with the views expressed, we think the judgment appealed from must be reversed, and a new trial had, with costs to the appellant to abide event.

80 N.Y.S.-8

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Judgment reversed, and new trial granted, with costs to appellant to abide event upon questions of law only, the facts having been examined and no error found therein. All concur.

(79 App. Div. 121.)

LEEDS V. NEW YORK TEL. CO.

(Supreme Court, Appellate Division, Second Department. January 23, 1903.) 1. TELEPHONE COMPANY-NEGLIGENCE-PROXIMATE CAUSE.

Defendant telephone company maintained a wire for over two years across a public street, from an old brick chimney on a low building to another building at a considerable elevation, 200 feet distant. During the construction of a building the wire was struck by the arm of a derrick operated by workmen engaged on the building, causing the chimney to be pulled over into the street, a part of which struck plaintiff, a pedestrian, causing the injuries complained of. Held, that defendant's negligence in so maintaining the wire was the proximate cause of the injury.

2. FORMER APPEAL-LAW OF THE CASE.

Where, on an appeal from a judgment dismissing the complaint on the pleadings in an action for negligence, it was held that defendant's negligence as averred was the proximate cause of the accident, and that the facts pleaded, if proved, presented an issue for the jury, the decision constituted the law of the case on a subsequent appeal from a judgment in favor of plaintiff on a verdict in her favor.

3. TELEPHONE COMPANY-NEGLIGENCE-EVIDENCE.

In an action for injuries sustained through defendant's alleged negligence in maintaining a wire attached to a defective chimney, evidence of the defective nature of the mortar in the chimney, occasioned by lapse of time and action of the elements, and of the appearance of the brick and mortar when the chimney fell to the street, was competent to showing the actual existing conditions.

4. SAME-PHOTOGRAPHS.

Where plaintiff was injured by the falling of a chimney, a photograph of the building taken after the accident was not objectionable, where there was no claim that the building differed in appearance at the time when the photograph was taken from that which it presented at the time of the accident.

5. RELEASE-ADMISSIBILITY IN EVIDENCE.

Where, in an action for injuries caused by the acts of two corporations, a release executed by plaintiff to one of them expressly reserved and excepted the liability of the other therefrom, and such release was neither under seal, nor executed by the corporation purported to be released, and there was no proof of delivery, such release was not admissible in an action against the excepted corporation.

6. TELEPHONE COMPANY-NEGLIGENCE-INSTRUCTIONS.

In an action for injuries sustained by the falling of a chimney, caused by the striking of a wire attached thereto by a derrick on a building in process of construction under the wire, an instruction that it was not the duty of defendant, the owner of the wire, to watch for the erection of buildings under its wires, or to inquire as to the intended height thereof, was properly refused, where the court charged in response to the request that defendant's duty was that of reasonable care, proportionate to the apparent dangers of the situation, known, or which it could have known with reasonable care.

Goodrich, P. J., dissenting.

14. See Evidence, vol. 20, Cent. Dig. §§ 1509, 1511.

Appeal from trial term, Queens county.

Action by Florence Leeds against the New York Telephone Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, and HIRSCHBERG, JJ.

Eugene Lamb Richards, Jr. (Arnold W. Sherman, on the brief), for appellant.

Louis Hicks, for respondent.

HIRSCHBERG, J. The case was heretofore before this court, on appeal from a judgment dismissing the complaint upon the pleadings. See Leeds v. Telephone Co., 64 App. Div. 484, 72 N. Y. Supp. 250. In the opinion then delivered for a reversal of the judgment, Mr. Justice Sewell, after an elaborate analysis of the authorities, reached the conclusion that the facts stated in the complaint, if duly established by evidence, would require a submission to the jury of the question whether the accident suffered by the plaintiff was attributable to the defendant's negligence, as the proximate cause. The defendant, as charged in the complaint, and as now established by the evidence and the verdict of the jury, had negligently suspended a wire across one of the public streets of the city of New York from an old brick chimney on a low building to another building at a considerable elevation, nearly 200 feet distant. More than two years intervened between the stretching of the wire and the happening of the accident. Meanwhile a building was in course of construction beneath the wire, and on the day of the accident it had been so far completed that the wire was within apparent reach of the processes of construction; and, being struck by the arm of a derrick operated by the workmen engaged on the building, the old chimney around which the wire was fastened was pulled over into the street, and upon the plaintiff. There was no inspection of the conditions and surroundings by the defendant during the interval, and no attempt made to avoid such danger as the circumstances rendered reasonably apprehensible. Assuming the establishment of the allegations of the complaint, we said (page 487, 64 App. Div., and page 252, 72 N. Y. Supp.):

"These allegations authorized the admission of evidence to establish a nuisance as well as negligence. They are broad enough to admit evidence showing the height, location, and age of the chimney; that it was weakened by age and decay; and other facts from which the jury might have found that it was negligent to secure or maintain the wire by passing it around the chimney, or that the situation created and maintained by the defendant rendered the street dangerous for passengers. It is contended by the defendant that, even though the defendant was negligent in securing and maintaining the wire by passing it around the chimney, such negligence cannot be regarded as the proximate cause of the accident, in that the allegation in the complaint is that the wire was struck above the surface of the street by the arm of the derrick operated by workmen engaged in the construction of a building on the lot opposite, over which the telephonic wire ran, causing the chimney to break, and the brick thereof to fall and to strike the plaintiff. It is true that the chimney did not fall from the mere weight of the wire, and might not have fallen if the wire had not been struck by the arm of the

and 114 New York State Reporter

derrick; but this fact did not, as a matter of law, make the striking of the wire the proximate cause of the accident, to the exclusion of the antecedent one, without which no occasion would have arisen for the intervention of a new agency. The company was bound to use reasonable care in the maintenance of its line, and if the chimney gave way because it was weakened by age or decay, or if, because of its height, location, manner of construction, or any other defect, it was not reasonably sufficient, it matters not whether the negligence of a responsible third party, or lightning, wind, or some other natural cause, operated to produce the disastrous result. It would seem, therefore, that the case comes fairly within the rule that where two causes combine to produce an injury, both of which are in their nature proximate.— one being culpable negligence of the defendant, without which the accident would not have happened, and the other some accident for which neither party is responsible,-the defendant is liable. Sawyer v. City of Amsterdam, 20 Abb. N. C. 227; Merritt v. Fitzgibbons, 29 Hun, 634; Sheridan v. Railroad Co.. 36 N. Y. 39, 93 Am. Dec. 490; Ring v. City of Cohoes, 77 N. Y. 83, 33 Am. Rep. 574; Cohen v. Mayor, etc.. of City of New York, 113 N. Y. 532, 21 N. E. 700, 4 L. R. A. 406, 10 Am. St. Rep. 506; Phillips v. Railroad Co., 127 N. Y. 657, 27 N. E. 978."

We held further that it was for the jury to say whether the accident could have happened but for the negligence of the defendant in running and maintaining a wire across the street at a low elevation over the building in process of construction; that the defendant was responsible for any negligent condition existing by reason of its passive. acquiescence, whether such acquiescence followed actual knowledge of danger, or resulted from a negligent failure to acquire such knowledge; and that the fair intendment from the circumstances alleged

was

"That, although the defendant and the workmen on the building acted independently of each other, the striking of the wire by the arm of the derrick was not an independent force that came in and produced the injury, but was a single act, caused by the concurrent negligence of the parties, and that the plaintiff would have escaped injury without the co-operation of one or the other of the causes for which the defendant is responsible."

We further said (page 489, 64 App. Div., and page 253, 72 N. Y. Supp.):

"The case presented by the complaint bears no analogy to that of Laidlaw v. Sage, 158 N. Y. 73, 52 N. E. 679, 44 L. R. A. 216. There was no allegation or proof in that case which tended to show that defendant was in any way responsible for the explosion, or that there was any connection whatever between the defendant's acts and the explosion which followed."

And finally we said:

"It seems to us that, under the allegations of the complaint, the question whether the defendant was in fault-whether the accident was wholly attributable to the negligence of those engaged in constructing the buildingwas one of fact for the jury, and that the learned trial judge erred in holding that the proximate cause of the accident was the striking of the wire by the arm of the derrick."

In the brief now presented the learned counsel for the appellant endeavor to show that the decision of the former appeal is not conclusive of the questions raised upon the trial. A careful examination. of the record, however, leads to the conclusion that all the points presented for review, excepting those which will be specially considered in this opinion, are either specifically embraced within that decision, or necessarily result from the principles then announced. It is also