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The case shows that the defendants, as partners, were contractors for the building of that portion of the St. Lawrence & Adirondack Railroad as lies between the village of Malone and the northerly line of Franklin county. That, as such contractors, they entered into a contract with one Martin T. Lally to perform the work required by their contract on a portion of the line of such railroad. That contract was in writing, specifying the duties and obligations of the respective parties. The plaintiff, with his hands and teams, worked for Lally, for some time, by the day, on this contract, and about the 26th of August, 1891, contracted with Lally, through one Livingston, his agent, who was empowered by Lally to make such contract, for grading and excavating at a place known as "Coony Creek," at an agreed price per cubic yard, with an understanding that the agreement was to be reduced to writing, and presented for execution at a designated day in the future, and in the mean time plaintiff, with his hands and teams, were to, and did, commence excavating and grading at that point. A contract was afterwards prepared and presented for signature, but was not executed, for the reason assigned by the plaintiff, that it was not in accordance with the parol understanding between Lally, through his agent, and the plaintiff. Livingston, the agent of Lally, swears that plaintiff's son said, when the contract was presented, that he would continue the work by the day until the contract was perfected and signed, and the referee finds that Livingston assented to that proposition. That contract was not signed by the parties, but the plaintiff went on and completed the work in the Coony creek cut and fill. While the plaintiff was at work in that cut, a conversation occurred between the plaintiff and the defendant Fauquier at which, as the plaintiff testifies, the defendant Fauquier told plaintiff to go on and complete this work, and they (the defendants) would pay them for their labor. This Fauquier denies, but the referee finds that there was such an agreement. Whether there was or was not such an agreement is purely a question of fact, and while it is possible that this court, from the printed record, might have reached a different conclusion if it were an original question, we do not feel authorized on this appeal to revise the findings of fact of the referee, as there is sufficient evidence to sustain this finding, especially as the referee enjoyed the advantage of seeing the witnesses and hearing their evidence as given upon the witness stand, an advantage which the appellate court does not possess, and one which is always important in determining disputed questions of fact.

Assuming, therefore, as we must, that the defendants made this agreement, and that the work performed by the plaintiff after it was made was done under it, and in reliance upon the defendants' promise to pay for it, the contention of the defendants that it was a parol collateral agreement by the defendants to pay the debt of Lally cannot be sustained; but it became an original undertaking by the defendants to pay the plaintiff for the work thereafter performed, and is not therefore within the statute of frauds, espe

cially as the contract between Lally and the plaintiff was never signed or executed, and the referee finds, upon sufficient evidence, that, until the contract was signed, the plaintiff's work was by the day; and, as the work to be performed was for the benefit of the defendants on their job, the agreement to pay for it by the defendants was supported by a sufficient consideration. Bayles v. Wallace, (Sup.) 10 N. Y. Supp. 191; Gallagher v. Nichols, 60 N. Y. 445; Quintard v. De Wolf, 34 Barb. 97.

But it is insisted that the contract to cut and fill at Coony creek by the yard was a binding agreement between Lally and the plaintiff, and that the alleged change to a contract by the day with Livingston was unauthorized, and therefore inoperative to bind the defendants. But the plaintiff, at the time of the alleged agreement with Farquher, was at work on this job by the day, as the written contract had not been signed; and if, as we have seen, that was a valid agreement, we do not see how the question of Livingston's authority can affect the question of the defendants' liability to pay for the work done under it.

We have examined the objections and exceptions taken by the appellants to the receipt and rejection of evidence, and find no error affecting the result in this case; and, as the questions upon which the case turns are largely questions of fact, and the findings and conclusions are supported by the evidence, the judgment must on this appeal be upheld.

Judgment affirmed, with costs. All concur.

(70 Hun, 495.)

COTTRELL, Supervisor, v. MARSHALL INFIRMARY IN THE CITY OF TROY.

(Supreme Court, General Term, Third Department. July 8, 1893.)

1. NEGLIGENCE-CONSTRUCTION OF DAM-QUESTION FOR JURY.

In an action for damages caused by a dam washing away, where it appeared that there was no waste weir to the dam, or flagging over the dirt filling between the walls of the dam, and an expert testified that it was not safe to build a dam without a waste weir, and a witness called by defendant testified that he would not build such a dam without a waste weir, the question of defendant's negligence in the construction of the dam was properly submitted to the jury.

2. SAME-INSTRUCTIONS.

The court properly charged that the dam should have been constructed so as to resist such extraordinary floods as might have been reasonably expected to occur occasionally, but that defendant was not liable for a phenomenal flood, that no one could expect.

Appeal from circuit court, Rensselaer county.

Action by George N. Cottrell, as supervisor of the town of Poes tenkill, against the Marshall Infirmary in the City of Troy, for damages caused by defendant's dam washing away. From a judgment for plaintiff for $1,949.55 damages and costs, entered on a verdict of a jury, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK,

JJ.

Robertson & Batchelder, (Matthew Hale, of counsel,) for appellant. Moses Warren, (Charles E. Patterson, of counsel,) for respondent.

PUTNAM, J. The position of the learned counsel for defendant, that negligence must be shown in order to make the defendant, as owner of the dam, liable, is undoubtedly correct. Losee v. Buchanan, 51 N. Y. 487, and cases cited. But we think there was testimony in the case which rendered the submission of the question of defendant's negligence to the jury proper. There was no waste weir to the dam, or flagging over the dirt filling between its walls.. The expert witness, Rickets, testified: "It is not the proper and safe construction of a dam to build it without a waste weir." Also: "I do not think you could speak with 'safety' in connection with such a dam. I do not think there is any such term to be used." The witness Baerman, called by defendant, testified as to the dam: "It was a good construction of the kind. Question. Do you consider that it was safe to build such a dam without building a waste weir? Answer. I would not build one, but there are other circumstances which might modify somebody else's opinion." There was other evidence in the case indicating an improper construction of the dam, and hence negligence on the part of the defendant, which it is unnecessary to recapitulate. On the part of defendant, much testimony was produced, tending to show proper construction of the dam. We do not think, however, that such testimony was so overwhelming as to compel the trial judge to withdraw from the jury the question as to the construction of the dam.

The trial judge, in his charge, in stating the degree of care a party should use in constructing such a dam, quoted from Angell on Water Courses as follows:

"It must be in proportion to the extent of the injury which will be likely to result to third persons, providing it should prove insufficient. And it is not enough that the dam is sufficient to resist ordinary floods, for, if the stream is occasionally subject to great freshets, those must likewise be guarded against; and the measure of care required, in such cases, must be that which a discreet person would use if the whole risk were his own."

He also charged as follows:

"The duty of the defendant was to so build it in the first instance that it would resist all the water that it was constructed to store in the first place. It must resist the pressure of all the water that could be got in it, relieved, as it was, or was intended to be, by this bulkhead and this flume. If it failed to do that, it was improperly constructed, in law. It must resist all the storms, and all the water that would flow into it by the storms common in the locality, and, not only that, but all the water that would flow into it by extraordinary storms, such as do sometimes occur, and are likely to occur, although at irregular intervals, in this vicinity. Was it so constructed? That question is for you. * It does not follow that the defendant was bound to guard against a very unusual storm, that had never occurred but once before in the history of this vicinity, and that long years ago. The law does not exact any such thing as that of a party. Although a thing extraordinary in character of a phenomenal type-has once occurred, it does not follow that it is

to be anticipated that it will occur again, and the law does not require anybody to guard against anything that is so phenomenal that it has only occurred once in the history of mankind. It is only such things as experience teaches are likely to occur that men must foresee and guard against. I must submit to you, and I do submit to you, the question whether this was not an extraordinary,-a very extraordinary storm,-one that had never occurred before in this vicinity."

We are unable to discover any error in the charge of the learned trial judge. Ang. Water Courses, § 336; Mayor, etc., v. Bailey, 2 Denio, 433--440, 441; Gray v. Harris, 107 Mass. 492.

In Mayor, etc., v. Bailey, supra, it is held that:

"The dam should, therefore, have been constructed in such a manner as to resist such extraordinary floods as might have been reasonably expected to occasionally occur."

The trial judge, in this case, so charged, at the same time instructing the jury that if damage was caused by a phenomenal flood, that no one could expect, defendant was not liable.

We think there was evidence justifying the submission of the case to the jury, indicating that the freshet which caused the dam to give way was one of the extraordinary floods which might be occasionally expected to occur, and not a phenomenal one, which no one could could expect ever to occur. The witnesses Hull, Dustin, and Coyer, testified to other occasions when water was as high as when the dam gave way. It also appears that in 1869 there was a larger rainfall than that which occurred at the time in question. This testimony justified the submission of the question to the jury whether the flood which caused the dam to give way was a phenomenal one, such as defendant was not compelled to guard against, or one of the extraordinary rainfalls occasionally occurring, and which, as stated in Mayor, etc., v. Bailey, supra, defendant should have anticipated.

We think that the evidence in the case rendered the submission of the question as to the proper construction of the dam to the jury necessary, and that the verdict, on such evidence, cannot be disturbed.

We do not discover any error in the charge of the judge as to the liability of the defendant in the construction of the dam, assuming that the exception taken by defendant on the trial is sufficient to raise this question. The passage in the charge criticized by the learned counsel for appellant should be considered in connection with other parts of the charge. The instruction given by the court to the jury, taken together, we think, correctly states the law applicable to the case.

Nor do we think the court erred in the charge as to the duty of Wager, the gate keeper. There was testimony indicating that Wager discovered the dam washing away several days before the accident in question, and took no measures whatever to protect it. The judgment should be affirmed, with costs. All concur.

(70 Hun, 490.)

LADD et al. v. AETNA INS. CO.

(Supreme Court, General Term, Third Department. July 8, 1893.)

1. INSURANCE-CONDITIONS OF POLICY-CHANGE OF TITLE.

Where the assured enters into an executory contract for the sale of the insured premises, and immediately informs the insurance agent as to such contract, and requests him to make the necessary indorsement to prevent a forfeiture of the policy, a mistake of the agent in making the indorsement will not avoid the policy.

2. SAME-EXECUTORY CONTRACT OF SALE.

An executory contract for the sale of insured premises, followed by delivery of possession to the purchasers, is a "change of title" within a condition of the policy that it shall be void in case of such change, “unless otherwise provided by agreement indorsed" on it.

3. SAME-FAILURE TO OPERATE MILL.

Where the operation of a sawmill is temporarily suspended by reason of the illness of the sawyer, it does not "cease to be operated," within a condition of a fire insurance policy that it shall be void if the mill "cease to be operated more than 10 consecutive days."

Appeal from circuit court, Franklin county.

Action by Eugene H. Ladd and William E. Smallman against the Aetna Insurance Company to recover the amount of a policy insuring plaintiffs for cne year in the sum of $2,500 against loss by fire of a water-power sawmill and machinery therein. From a judgment in favor of defendant, entered on a verdict directed by the court at the close of the evidence, and from an order denying a motion for a new trial, plaintiffs appeal. Reversed.

The policy was issued on February 26, 1891, and contained the following conditions: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy; or if the subject of insurance be a manufacturing establishment, and it be operated in whole or in part at night later than ten o'clock; or if it cease to be operated for more than ten consecutive days; or if any change other than by death of an insured take place in the interest, title, or possession of the subject of insurance, (except change of occupants without increased hazard,) whether by legal process or judgment or by voluntary act of the insured or otherwise; or if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days." On June 29, 1891, plaintiffs entered into a contract with Peter King and Nelson Trushaw, which, omitting the formal parts, is as follows: "That the parties of the first part, (plaintiffs,) for and in consideration of the sum of one dollar, now actually paid, and upon condition that the parties of the second part, their heirs and assigns, shall and do well and faithfully perform the covenants hereinafter on their part stipulated to be performed, do hereby covenant and agree to deliver to the said parties of the second part, their heirs or assigns, a good and sufficient deed, duly executed, for all that certain piece or parcel of land, [here follows description of premises;] and the said parties of the second part do hereby for their heirs and assigns covenant and agree as follows; that is to say: First. To pay to the said parties of the first part the sum of twenty-two hundred dollars in the manner following, to wit, five hundred dollars down or at the ensealing and delivery of these presents, and the balance, namely, $1,700, in five equal annual payments from this date, with interest annually upon all sums remaining unpaid. Secondly. To pay all surveys, taxes, and any and all taxes that may arise against said property, assessments and charges on the said land and this contract from and

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