(176 N.Y.S.) request for delivery until August, and then require seller to make deliveries in greater quantities than that provided by contract, as latter request would not make new contract, so as to entitle buyer to damages for breach. Appeal from Municipal Court, Borough of Manhattan, First District. Action by the R. & R. Handkerchief Company against Bertha Dix. From a judgment for plaintiff, after a trial by the court without a jury, defendant appeals. Reversed, and complaint dismissed. Argued April term, 1919, before GUY, WHITAKER, and FINCH, JJ. Kleiner & Kleiner, of New York City (Lewis Nadel, of New York City, of counsel), for appellant. Goldstein & Goldstein, of New York City (Jonah J. Goldstein, of New York City, of counsel), for respondent. FINCH, J. The action is for damages for breach of contract to deliver certain paper boxes to the plaintiff. The basis of the action is a written agreement in the form of a letter, dated January 19, 1918, sent by the defendant to the plaintiff, which is as follows: "We hereby accept your written order for 175,000 boxes 10x10x%, packed 12 to a nest, at $25 per M, and 50.000 boxes, 9x9x% at $23.50 per M, terms 2%, 10 days, E. O. M. Monthly settlements required. "The above boxes are to be same as samples submitted, and O. K.'d by you. All boxes to be taken in by September 1, 1918. Picture tops for the above boxes are to be furnished by you. Deliveries to be taken in about 30,000 to 40,000 per month." The defendant at plaintiff's request began deliveries late in February, and prior to March 7th had delivered 35,000 boxes, and there is no question that defendant had complied with the contract up to this point. On March 7th plaintiff wrote defendant as follows: "Kindly do not send in any more boxes to us until further notice, as we are stacked up with boxes now." Thereafter, apparently, the defendant made deliveries as requested by the plaintiff until, on May 11, 1918, the defendant had delivered about 129,000 boxes. Thereafter, and until August 15, 1918, plaintiff requested no further deliveries, but on August 15, 1918, according to plaintiff's testimony, it requested defendant to resume deliveries, and defendant delivered as many boxes as it could. Fursuant to this request, there is no complaint that between the 15th of August and the 1st of September the defendant did not deliver all that should have been delivered. Plaintiff further testified that on August 26th the defendant asked for more labels, but not until September 26th did plaintiff deliver the same. On September 26th, in answer to plaintiff's request for more deliveries, defendant notified. plaintiff that the contract period had terminated September 1st, and that the defendant was not under any obligation to deliver any more boxes at the prices named in the contract above referred to, and on the 27th of September confirmed this by letter: [1] It seems clear that the position taken by the defendant was correct, and that the learned court below should have dismissed the complaint, instead of awarding damages to the plaintiff. Without passing on the question raised by the plaintiff's order or request to defendant to stop deliveries for practically a month between August 26th and September 24th, pursuant to the due demand of the defendant under the contract, it is clear that the complaint should have been dismissed for the following reasons: When the plaintiff notified the defendant to cease deliveries, and the defendant acquiesced, this did not have the effect of making a new contract for the parties. There was then an outstanding written contract between the parties, having as one of the terms thereof that the boxes to be taken under this contract must be taken before September 1st, or, in other words, during the dull season. The written notification by the plaintiff to the defendant to cease making deliveries until further notified cannot be held to operate more broadly than its terms import. The contention of the plaintiff is, in effect, that such notification was not only to stop making boxes, but implied within its terms an agreement that extended the obligation of the defendant to make deliveries of the boxes long after the dull season should have expired. This contention cannot prevail, since the notification must operate exactly according to its terms, and that was to stop deliveries until further notice, and then to make deliveries as requested. The plaintiff must be the one to bear the consequences of its own deliberate act and request, and not be permitted to use its own breach of the contract, or at least its own request for advantage, as a benefit to itself and at the expense of the defendant. If the plaintiff had requested the defendant to cease making deliveries when it did, and if the defendant had acquiesced, and the plaintiff had then not requested any further deliveries until after September 1st, surely it could not be urged. that the defendant would then have to begin again, and make deliveries contrary to the express provisions of the written contract between the parties, and yet the contention of the plaintiff amounts to giving the plaintiff this right. [2] There is another aspect of the matter which might be noted. The written contract between the parties called for deliveries in an amount between 30,000 and 40,000 during a month. After the notification of August 15th by the plaintiff to the defendant to make further deliveries, the defendant delivered boxes far in excess of this ratio. The same principle would apply to this provision of the contract as has been applied to the provision that all boxes must be taken before September 1st. The plaintiff, by requesting the defendant to cease making deliveries in March, could not delay making further requests for boxes until the 15th of August, and then insist that the defendant should make deliveries at a greater rate than according to the ratio provided in the contract. This would be to make a new contract for the parties in this respect also, and there is nothing in the record from which it could be held that such new contract had been made on the part of the defendant; also to so hold would permit the (176 N.Y.S.) plaintiff to use such an advantage for itself for the purpose of inflicting loss and expense upon the defendant. It follows that the judgment appealed from should be reversed, with $30 costs, and the complaint dismissed, with costs. All concur. (187 App. Div. 740) SMITH et al. v. GRAVES. (Supreme Court, Appellate Division, Third Department. May 7, 1919.) 1. WEIGHTS AND MEASURES 5-PRESSING OF HAY TAGS. General Business Law, § 253, requiring pressers of hay for market to tag the same, and that the hay shall be sold at the weights indicated on the tag, does not apply where hay pressed is not for the market and the owner agrees to himself furnish the tags. 2. APPEAL AND ERROR TRIAL COURT. 230-RESERVATION OF OBJECTIONS-CONDUCT OF Where the trial judge stated that he would not be present when the verdict was returned and directed a sealed verdict, upon the return of which the defeated party might make a motion on all the grounds stated in Code Civ. Proc. § 999, which would be deemed denied, and judgment entered, with a stay of 60 days, the irregularity in the proceeding could not be raised by a defeated party, in the absence of timely objection. Appeal from Trial Term, Cortland County. Action by William A. Smith and another against Ida J. Graves. From a judgment on the verdict of the jury, and from an order denying a new trial on the minutes, defendant appeals. Affirmed. Argued before JOHN M. KELLOGG, P. J., and LYON, WOODWARD, COCHRANE, and HENRY T. KELLOGG, JJ. James O. Sebring, of Corning, for appellant. JOHN M. KELLOGG, P. J. [1] At the close of the evidence each side moved for judgment. The motions were denied, and the defendant's counsel asked what question would be submitted to the jury. The court asked if there was any other question, except the fact that the hay was pressed for the market. Plaintiffs' counsel suggested also the question as to whether the defendant was to do her own tagging and furnish her own tags. The defendant's counsel objected to the latter question going to the jury. The course of the trial, therefore, eliminated all other questions on the merits from the case. There was evidence that the defendant agreed to do her own tagging and furnish the tags, and that the hay was not pressed for the market. The jury found for the plaintiffs, and therefore the provisions of section 253 of the General Business Law (Consol. Laws, c. 20) does not prevent a re covery. [2] The defendant attempts to raise another question, which she has foreclosed herself from raising, and which probably would be unavailable, if properly raised. Justice Davis, the former partner of the plaintiffs' attorney, was presiding at the Trial Term, but Justice McCann tried this case on account of Justice Davis' disqualification. When the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes case was submitted to the jury, Justice McCann stated that on account of the lateness of the hour, and the fact that he could not be there to receive the verdict, that he had prepared a blank, and told the jury how to enter their verdict upon it and sign it, and that after they had done so it should be sealed and the foreman would deliver it to the clerk. The court further said: "I will have noted upon the minutes that upon the return of the verdict the defeated party may make a motion on all the grounds stated in section 999; that such motion will be denied, and judgment may be entered, and a stay of 60 days granted after entry of judgment. This verdict is to be signed by each of the jurors." The defendant's counsel then made several requests to charge, and took exceptions to the charge. Upon the return of the verdict to the clerk he was required to adjourn the court until 9:30 the following morning. The jury retired for deliberation at 6:10 p. m. At 9:50 p. m. the jury returned into the courtroom and handed to the clerk the sealed verdict. The roll of the jury was called, all being present. The clerk opened the seal, filed the verdict, entered it in his minutes, and adjourned court as directed. On February 30, 1918, Justice McCann signed an order, as of the Cortland term, reciting the trial, and that the jury having rendered a verdict in favor of the plaintiffs, and the justice having then entertained a motion for a new trial upon his minutes upon all the grounds specified in section 999 of the Code of Civil Procedure, except that the verdict is inadequate, and having denied said motion, now on motion of Mr. Sebring the motion is denied. Justice Davis being disqualified to act in the case, we may well disregard what took place before him on the day following the verdict. The method pursued by Justice McCann, while quite usual, was irregular. Nevertheless the direction was given by him in open court, and neither counsel objected. Considering the course of the trial, each counsel must be assumed to have agreed to it. A timely objection would have led to a different procedure and avoided the irregularity. The appellant cannot well at this time raise the question. Dubuc v. Lazell, Dalley & Co., 182 N. Y. 482, 75 N. E. 401. Counsel cannot speculate upon a verdict of a jury by holding back a technical objection, and apparently consenting to an irregular practice, and then, after the verdict is against him, without any motion based upon the irregularity, appeal, and mulct the plaintiff in a large bill of costs. If there was an irregularity, the proper way to correct it was by motion to set aside the verdict, and not by an appeal from the judgment and from an order denying a new trial upon the minutes. The order, made February 20th, denying the motion for a new trial upon the grounds. mentioned in section 999 of the Code of Civil Procedure, and based upon no other grounds, and the notice of appeal, should be deemed an effectual waiver of any objection which might exist. The judgment and order should be affirmed, with costs. All concur. (176 N.Y.S.) VERSCHLEISER v. JOSEPH STERN & SON, Inc., et al. (Supreme Court, Appellate Division, Third Department. May 7, 1919.) Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Act (Consol. Laws,. c. 67) by Morris Verschleiser to recover for personal injuries, opposed by Joseph Stern & Son, Incorporated, employer, and the Zurich General Accident & Liability Insurance Company, Limited, insurance carrier. From an award by the State Industrial Commission, the employer and insurance carrier appeal. Reversed, and claim dismissed. Árgued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, and H. T. KELLOGG, JJ. Alfred W. Andrews, of New York City (John N. Carlisle, of Albany, of counsel), for appellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission. PER CURIAM. Award reversed, and claim dismissed, on the authority of Stillwagon v. Callan Bros., 183 App. Div. 141, 170 N. Y. Supp. 677, affirmed 224 N. Y. 714, 121 N. E. 893, Griffin v. Roberson & Son, 176 App. Div. 6, 162 N. Y. Supp. 313, and De Filippis v. Falkenberg, 170 App. Div. 153, 155 N. Y. Supp. 761, affirmed 219 N. Y. 581, 114 N. E. 1064. JOHN M. KELLOGG, P. J. (dissenting). The claimant, at the time of the injury, was engaged in removing offal from a slaughterhouse with a hand truck. He was somewhat advanced in years, and, owing to his age and perhaps to some peculiarities the other employés were accustomed to pick on him, and this made him somewhat irritable. While doing his work, a fellow employé threw a bull's penis around his neck. The claimant evidently understood, from the situation of the parties, that Dudler had committed the assault, and he immediately struck Dudler. Dudler kicked him, inflicting serious injuries, for which compensation has been allowed. If the old man had been right in assuming that Dudler committed the assault upon him, his striking back would have been a natural result of the act, and it might then well be said that the claimant would be within the act. Matter of Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344. "Altercations and blows may, however, arise from the act of a fellow servant while both are engaged in the employer's work and in relation to the employment. The employer may be badly or carelessly served by two men engaged in his work, and yet it may be inferred, when one injures the other in a quarrel over the manner of working together in a common employment, that the accident arose out of the employment, and was not entirely outside of its scope, if it was connected with the employer's work and in a sense in his interest. Such cases necessarily present close questions of fact." 218 N. Y. 153, 112 N. E. 751, L. R. A. 1917A, 344. The mere fact that the claimant was mistaken as to the aggressor does not show that he attempted to commit an affirmative assault on |