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providing a reasonably safe place for the plaintiff's intestate to work. The doctrine is doubtless well settled by authority that the defendant is bound, not only to furnish a reasonably safe place for its employes to work, but it must use reasonable care in keeping such place free from unnecessary peril. Hawley v. Railroad Co., 82 N. Y. 370; Mehan v. Railroad Co., 73 N. Y. 585. But this rule does not go to the length of making the employer insurers against injury by the breaking of machinery, or the explosion of boilers, while used by an employe in the service of the employer, provided such machinery is apparently in a safe condition, and injury results from latent weakness or defect, unknown to the employer, and which the exercise of ordinary care and skill by the employer would not enable him to detect or guard against; and, when an accident happens under such cir cumstances, it must be regarded as one of the risks incident to the employment, which, when no fault is chargeable to the employer, the employe assumes. The boiler in this case, after the supposed burning of the crown plate, was subjected to the test of 145 pounds' pressure, its maximum capacity, and resisted that pressure, and upon that test was put in service by the defendant in hauling freight and passenger trains, under a pressure, as would seem from the evidence, of from 140 to 145 pounds of steam, and continued in such service for about one week after such supposed burning of the plate, to the time of the accident, without any evidence of weakness. It finally exploded, while carrying only 110 pounds of steam, and while running at a moderate rate of speed, alone, and without a train. We fail to see from the evidence either that the place furnished by the defendant for the intestate to work was unsafe, or that the defendant was guilty of negligence in suffering it to become unsafe while the intestate was employed by the defendant. We think, under the proof in this case, if it had been submitted to the jury, and a verdict had been rendered in favor of the plaintiff, it would have been the duty of the trial judge to have set it aside upon the minutes. In such a case it is the duty of the judge to nonsuit, and we think, therefore, that the nonsuit was properly granted in this case.

Judgment affirmed, with costs. All concur.

(70 Hun, 425.)


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


In an action for slander, in calling plaintiff a thief, defendant pleaded a general denial, and alleged in mitigation of damages that, at the time of uttering the words charged, he was greatly excited, in consequence of charges made against him by plaintiff, and that the language used was consequently stronger than it would otherwise have been. Held that, under the answer, defendant could not prove that defendant's words related to a transaction which was not itself a larceny.

Appeal from circuit court, Warren county.

Action by Charles N. Sherman against Walter G. Rogers, for slander. From a judgment entered on a verdict in favor of plaintiff for $600 and costs, defendant appeals. Affirmed.

The words charged in the complaint are: "You are a thief. You are a damn thief. You have stole a wagon from me. You are a robber, and I can prove it." The answer was a general denial, and alleged in mitigation of damages that at the time of uttering the words charged in the complaint the defendant was greatly excited, in consequence of charges made by plaintiff against him, and the language used by him in consequence of such excitement was stronger than it would otherwise have been.

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


King & Ashley, (J. M. Whitman, of counsel,) for appellant.
Lyman Jenkins, (H. A. Howard, of counsel,) for respondent.

MAYHAM, P. J. The words charged in the complaint were on the trial proved to have been uttered substantially as alleged. The case discloses that the defendant came to a shop in which the plaintiff was employed, and asked who could give him the price of painting a wagon. Plaintiff said, "I can." The defendant replied: "Oh! you go along. I don't want anything to do with you. You've stole a wagon from me, and sold it, and I want nothing to do with you." Defendant then started to go out of the shop, and said, "Who does painting here?" The answer was, "Mr. Sherman does our painting." Rogers spoke to the man in his wagon: "Drive on, Charlie. I don't want anything to do with that man. He is a thief. He stole a wagon from me once. He can't have any work of mine." Sherman said: "Hold on, you darned sucker. I will call you down some time for calling me these names. You have no right to call me these names." Defendant said: "You are a thief, and I can prove it." The evidence discloses no denial of this language by the defendant on the trial; but it is urged that evidence was cffered by the defendant tending to show that the charges made by the defendant against the plaintiff relate to a transaction which was in itself not a larceny, and that the hearers of these actionable words knew to what transaction they related, and knew that they did not convey, or intend to convey, the charge of the crime of larceny. But we do not think that contenticn is justified by the proof.

It is also urged by the appellant that the court erred in excluding certain offers of the defendant, tending to prove the nature of the transaction to which the words related which are claimed to be actionable; but we fail to see that the learned trial judge committed any error in excluding evidence. The evidence excluded, which is claimed by the appellant to be error, was not proper, under the answer; and we think the court went as far as the rules of evidence justified in admitting the witnesses to answer what they understood from the charges made by the defendant.

It is also urged that the damages in this case were excessive, and that the refusal of the learned trial judge to set aside the

verdict on that ground, on a motion made upon the minutes, was error. We do not think that the verdict in this case was so large as to evince passion or prejudice on the part of the jury. In actions of this character the rule is well settled that the verdict of a jury cannot be interfered with by the court unless it is so large as to be evidence in itself that the jury, in rendering the verdict, was actuated by passion or prejudice, or some undue influence, and not solely by the evidence. The charge in this case was proved beyond controversy. It was not sought to be justified, and we see no circumstance, either disclosed by the evidence, or in the offers of proof made by the defendant, calculated, in any considerable degree, to mitigate the gravity of the charge made against the plaintiff. On the whole case, we see no error for which this judgment should be reversed. Judgment affirmed, with costs.

All concur.

(70 Hun, 520.)


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

1. BUILDING CONTRACTS-ABANDONMENT BY CONTRACTOR-RIGHTS OF SURETY. Where the surety of a contractor completes the building, pursuant to the contract, after abandonment thereof by the contractor, he is entitled to recover from the owner the amount of the contract price, less the amount paid the contractor prior to abandonment, rather than on a quantum meruit. 2. SAME


A building contract provided that 90 per cent. of the work done and materials furnished during the previous month should be paid for on or before the 10th day of each month, the full amount "to be ascertained by the estimate of the architect." The specifications provided that the work should be done to the satisfaction of the architect and building committee, and “any disagreement that cannot be settled by” them “shall be settled by three disinterested arbitrators." During the progress of the work the architect made "an approximate estimate" that the amount due the contractor on a certain date was $7,155.72. The building committee refused to pay more than $3,500 thereon, claiming the estimate to be excessive. This amount the contractor accepted without any submission to arbitrators, and, on a paper which purported to be the esti mate, he procured of a bank the balance due thereon. Held, in an action between the owner and such bank, that the owner was not estopped by such estimate to deny that it owed the contractor the amount stated. 8. Same-PerFORMANCE BY SURETY-ACTIOn for Price-Costs.

Where the owner of a building failed to declare the contract forfeited on its abandonment by the contractor, but permitted the surety to complete the building pursuant to the contract, the surety is entitled to costs in an action against the owner to recover the balance due thereon.

Appeal from special term, Saratoga county.

Action by the board of education, etc., of Waterford, against the First National Bank of Richfield Springs, John D. Henderson, (receiver of the firm and individual property of John Brown and Charles Brown,) Alexander G. Cunningham, and others. From a judgment for defendant Cunningham on the findings of the circuit


court, plaintiff and defendant bank and others appeal. The following opinion was delivered by Mr. Justice KELLOGG at circuit:

This action is brought, as appears by the complaint, to have determined to whom, among the defendants, plaintiff should pay money in its possession, and the amount to be paid to each. The apparent theory is that a certain sum of money is, by order of the court, deposited with the county treasurer, subject to distribution among the defendants by judgment of this court,the plaintiff being only interested in properly and safely being rid of the money, and all liability to any defendant; that the defendants should litigate among themselves their rights thereto. The answer of the several defendants, and the course the litigation has taken, develop a somewhat different theory, which may also be considered consistent with plaintiff's right to maintain the action, viz.: To whom among defendants is plaintiff indebted, and in what sum or sums? Various independent claims have, by the several defendants, been made upon plaintiff, all growing out of a single transaction. One suit is pending by defendant Cunningham against plaintiff, claiming the entire sum in plaintiff's possession; another is threatened by defendant the Richfield Bank, claiming a portion of such money; and sundry proceedings supplemental to execution, in favor of other defendants, are also pending, liable to ripen into several actions, in the name of the receiver of John and Charles Brown, two other defendants, against the plaintiff. And while the sum of plaintiff's total indebtedness is conceded to be a limited sum, and its present obligation to each and all of the defendants is based on a single contract made with defendants John and Charles Brown, and not upon its separate dealings with other defendants, yet the plaintiff is in peril from these various claims, and, I think, properly brings into court, in one suit, all these defendants, and is entitled to judgment here determining all questions raised. Objection is made by no defendant, except defendant Cunningham, to this mode of procedure. There is no difficulty in making a full determination of all the questions in a single action. In such an action all matters of fact might properly be left to a jury, if a jury were insisted upon; and, even if a jury trial were denied, I am of the opinion that, theoretically, great injustice to the litigant is outweighed by the threatened vexatious litigation and expense attending a denial to plaintiff of standing in court in such an action.

The whole controversy grows out of a contract made by plaintiff in March, 1891, with defendants John and Charles Brown, to build a school building in the village of Waterford for $32,000. The contract is in writing. The contractors entered upon performance promptly, but before completion, and on November 15, 1891, abandoned the work, and without excuse, or pretense of excuse, refused to further perform; and defendant Cunningham, who was one of the sureties on the contractor's bond, and was also assignee for the contract from John and Charles Brown after the abandonment, completed the building after the manner prescribed by the contract. The contract_stipulated for payments of ninety per cent. monthly as the work progressed. At the time of the abandonment by the Browns they had been paid in money, by plaintiff, $23,271.54. Extra work had been done, of value, over certain proper deductions, of $256.17; and after the above-named payments the plaintiff, at time of abandonment, had in hand, to pay for balance of work and material to complete the building, exactly $8,984.63. This was what plaintiff would have to have paid the Browns, had they gone on and completed the building. About this there is no dispute, and this was known to Cunningham when he took his assignment from the Browns of the contract, and when he first began work after Brown left. It is clear, I think, from the position taken by Cunningham from the beginning, that he never had other expectation than to be paid out of that balance in plaintiff's hands, and no sum in excess of it, however much the completion of the building might cost him. This, from his actions and his conversations, the plaintiff also had a right to understand. And the claim of counsel for this defendant, made at the close of the case, that the facts warrant a judgment upon a quantum meruit for the value of

labor and materials in completion of the building by Cunningham, and in excess of the sum in hand, and without regard to the contract, or to the payments actually made to the Browns, is untenable.

If Cunningham were the only party in interest here, obviously, all that would be necessary, in disposing of the case, would be the ascertainment of the sum in the hands of plaintiff, unpaid upon the contract, and directing the payment of such sum, with interest from the time when due, to him. But the interest of the other defendants, if any they have, is in the sum due the Browns at the time of abandonment, over and above the sums paid to them by plaintiff, and, the plaintiff not seeking to claim any forfeiture by reason of the abandonment, investigation was largely directed to the determination of this question, to wit, the actual value of the labor and materials furnished by the contractors, John and Charles Brown. The testimony is practically undisputed that the contract price, $32,000, was a fair and reasonable estimate of the cost of construction of the building in accordance with the terms of the contract. It may also be regarded as undisputed that the actual and necessary cost of finishing the building, after the Browns left it, was $10,941.09. Evidently, the only accurate test of value or cost of the unfinished building, at the time the contractors left it, is the contract price, less cost of completion. This test is eminently more satisfactory than any judgment of architects or builders as to value of work and materials furnished by the Browns prior to their departure. From this it appears beyond question that, instead of there being anything owing the Browns when they left, they had been largely overpaid, in money, by plaintiff, for all they had furnished and done. This proof also established that after Cunningham is paid there will be nothing in plaintiff's hands for the Browns, or any of the defendants claiming under them, or either of them, for this cost of completion, in the sum of $10,941.09, was wholly borne by Cunningham. It is contended, however, by the defendant the Richfield Bank, that plaintiff is estopped from denying that it owed to the Browns on November 15, 1891, in excess of the money already paid them, the further sum of $3,500, and this contention is based upon these facts, viz.: The written contract for the construction of this building possesses the following language: "The contractors shall and will well and sufficiently perform and finish, under the direction, and to the satisfaction, of said George C. Adams and W. P. Regan, architects, as aforesaid, (acting as agents of said owners,) all the work included in the specifications, * according to the true intent and meaning of said drawings and specifications, and of these presents. In the event of any question arising respecting the true meaning of drawings or specifications, reference should be made to the architects, whose decision thereon, being just and impartial, shall be final and conclusive. * ** [The contract price, $32,000,] to be paid as follows: On or before the 10th day of each month, ninety per cent. of the work done and material furnished during the month previous; the full amount of work done and material so furnished to be ascertained by the estimate of the architect." The specifications provide that the work shall be done to the satisfaction of the architect "and building committee," and "any disagreement that cannot be settled by the architects or building committee shall be settled by three disinterested arbitrators."



It is the contention of counsel for the bank that the architects or architect were made, by this language, final arbitrators or umpires, and that their decision on any matter was final and conclusive, and that this is especially so as to monthly estimates of value of work done and material furnished during the progress of the work. Without doubt, the contractors, before they could demand monthly pay, were required to obtain, if practicable, the architects' estimate. Wyckoff v. Meyers, 44 N. Y. 145. But I think it is contemplated by the parties that in case either the contractors or building committee were dissatisfied the "disagreement shall be settled by arbitration," and this provision destroys the claim of conclusiveness to such estimates, in any event. It appears that on the 15th of November, 1891, the architect Regan made what purported to be an estimate of all the work done and material furnished up to that time from the beginning; that such estimate

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