and 106 New York State Reporter erate and persistent violation of the election law while in the performance of his duty as presiding officer of the town election board, destroying the secrecy of the ballot, which the legislature has so carefully provided for, and which our whole people are so much interested in preserving, was without excuse or palliation, and renders respondent entirely unfit to further hold this judicial office, where he can do so much harm. An order should be entered confirming the referee's report, and removing the respondent from office. The order should further provide that the respondent pay the cost of this proceeding. All concur. (64 App. Div. 511.) MINER et al. v. BLUME et al. (Supreme Court, Appellate Division, Second Department. October 18, 1901.) SALES-DELAY IN DELIVERY-DAMAGES-ACTION. Plaintiffs contracted to sell a piece of machinery, to be delivered by them on board a vessel, and they purchased such machinery of defendants. In an action for damages for delay in delivery, plaintiffs' bill of particulars demanded a sum for demurrage of the vessel. Defendants did not deny that they knew the machinery was to be delivered on the boat, and that it was held for that purpose, and evidence as to the damages by reason of the demurrage was received without objection. Held, that an award of damages for the demurrage would be sustained. Hirschberg, J., dissenting. Appeal from municipal court, borough of Brooklyn. Action by Elwin R. Miner and others against Henry Blume and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed. Argued before GOODRICH, P. J., and JENKS, WOODWARD, HIRSCHBERG, and SEWELL, JJ. David Spiro, for appellants. Willard U. Taylor, for respondents. WOODWARD, J. The plaintiffs in this action are copartners, and in the course of their business as dealers in machinery entered into a contract with the defendants for the purchase of a certain hoisting engine and boiler, which the plaintiffs, to the knowledge of the defendants, had agreed to deliver to a customer on a certain day on board a vessel which was held for the purpose of receiving such engine and boiler. The defendants accepted the check of a third party in payment, and delivered to the plaintiffs an order upon the watchman having the property in charge for the delivery of the same, stating that this would be sufficient to enable the plaintiffs to secure the same. The latter hired a truckman, went to the place designated, and was refused possession of the property. After about one week's delay the engine and boiler were delivered on board the boat, and this action was brought to recover for the time and money spent by the plaintiffs in getting possession of their property, as well as for the expense of keeping the vessel in waiting, which had cost them $24 per day. Upon the trial the learned court appears to have disregard ed the claim of the plaintiffs for time spent in the transaction, but allowed for the cost of keeping the vessel, and for the money actually expended in telegraphing, street car fares, etc.; and from the judgment entered defendants appeal to this court. The pleadings were verbal. The plaintiffs complained of breach of contract, and the defendants appeared, making a general denial, and asking for a bill of particulars. This was ordered, and the bill of particulars was served, in which, as a part of the damages, is set forth the following item: "Demurrage of vessel held in waiting until title to property could be effected by the defendants, 7 days, at $24 per day, $168." Assuming that the bill of particulars demanded and served after the general denial is within the denial, there was evidence upon the trial that this boat was held for seven days, and that the value of the use of this boat was $24 per day, and this evidence was received without objection. The theory on which the case was tried was that there was no original liability, and, so far as the record discloses, there was no question raised as to the liability for the demurrage if there was liability for a breach of the contract to deliver the goods to the plaintiffs. There was no denial by the defendants that they knew the engine was to be delivered on board the boat, and that it was held for this purpose; and, evidence being given without objection as to the damages sustained by reason of the boat being held, would seem to be conclusive upon the defendants upon this point. The case, in so far as this feature is concerned, appears to have proceeded upon this theory, and I am of opinion that it is within the authority of Booth v. Mill Co., 60 N. Y. 487, though lacking, perhaps, in the direct evidence upon the point. We think no material error was committed by the court. The judgment appealed from should be affirmed, with costs. All concur, except HIRSCHBERG, J., who dissents. HIRSCHBERG, J. I dissent from the conclusion reached in this case by the majority of the court. The plaintiffs have recovered a judgment for damages for the breach of a contract of purchase of an engine and boiler, to be delivered for transportation upon a vessel, the damages arising from a delay of seven days in the delivery of the articles. The judgment recovered amounts to the sum of $183, and, while there are four items in the plaintiffs' bill of particulars, the recovery appears to have been made up from two of such items only, viz. one representing the actual expense incurred by the plaintiffs in the delay, amounting to $15; and the other being for demurrage in the detention of the vessel, seven days, at $24 per day, amounting to $168. It therefore appears that almost the entire claim is made up of the item of demurrage. It is stated in the prevailing opinion that the property was to be delivered to a customer of the plaintiffs "on a certain day on board a vessel which was held for the purpose of receiving such engine and boiler." The inference is, from the language of the opinion, that these facts were known to the defendants. The defendants did know that the engine and boiler were to be delivered to a customer on a certain day on board a vessel, but there is no evidence whatever in the case that they knew that the vessel 72 N.Y.S.-21 and 106 New York State Reporter was to be held for the purpose of receiving them. Nobody testifies to it, and there are no facts in the case from which such an inference may be drawn. The complaint was oral, and alleged only damages for a breach of contract. In the absence of any proof tending to show that the defendants knew that a failure to deliver the property would entail special damages upon the plaintiffs for the demurrage, and in the absence of any claim in the complaint of such special damage, the recovery of this large sum is manifestly unjust and illegal. There is nothing to the contrary in the case of Booth v. Mill Co., 60 N. Y. 487, the only authority cited in the prevailing opinion. It is true there was no denial by the defendants that they knew that the boat was to be held for the purpose of receiving the property, but I know of no rule of law which requires the defendants to deny a fact which is not proved and not pleaded. The evidence of the amount of demurrage was received without objection, but that fact does not prevent this court from doing justice in the case, because the evidence of the defendants' knowledge might have been supplied afterwards by the plaintiffs. (64 App. Div. 515.) APATI V. DELAWARE, L. & W. R. CO. (Supreme Court, Appellate Division, Second Department. October 18, 1901.) 1. APPEAL QUESTION FOR REVIEW-PRESENTATION BELOW-WAIVER. At the close of plaintiff's evidence, defendant moved to dismiss for want of proof, and, on the court's refusal to rule thereon, introduced evidence, at the close of which he requested the court to dispose of the motion. Held, that defendant would not be deemed to have waived his objections by introducing his evidence, and hence the question of whether there was sufficient proof was reviewable on appeal. 2. MASTER AND SERVANT-PERSONAL INJURIES-PROPER TOOLS-NEGLIGENCEQUESTION FOR JURY. In an action by an employé of a railroad for personal injuries, the evidence as to the defendant's negligence in supplying improper tools for the work consisted of a witness' statement on cross-examination that improved implements were used, to his knowledge, by but two other railroads. Whether the change to improved implements was made on account of their superior safety or on the score of economy did not appear, except by the witness' assertion that all roads which desired to accomplish the work in safety used them. The tools used were apparently in good condition, and were such as had been used for many years in such work. Held, that the submission of the question to the jury whether defendant should have supplied such improved implements was error. Appeal from trial term, Westchester county. Action by Joseph Apati against the Delaware, Lackawanna & Western Railroad Company. From a judgment in favor of plaintiff, and an order denying a new trial, defendant appeals. Reversed. Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ. Hammond Odell (Hamilton Odell, on the brief), for appellant. WOODWARD, J. On the 17th day of July, 1900, the plaintiff was employed by the defendant's foreman in charge of its work at Bernardsville, N. J., as a laborer, to fix the ground around the depot. During the employment the plaintiff, with other members of the gang, was called upon to assist in cutting off some rails. In performing this work a chisel made somewhat after the form of an ax, with a handle, was used. The rail to be cut was placed crosswise over another rail, and while the foreman held the chisel by the handle one of the other members of the gang struck the chisel upon the head, and in this way a cut was made all the way around the rail, when it was broken off by letting it fall in such a manner as to receive the strain at the weakest point. The plaintiff on the occasion of one of these cuts being made was directed by the foreman to sit upon the rail at a point near the place of operation, and about two feet from the place where the chisel was in use. While sitting in this position the man who was using the sledge hammer struck the chisel, when a piece from the cutting edge of the tool was broken out, striking the plaintiff in his right eye, destroying the sight. It was testified to by one of the witnesses that two other chisels had been broken just before this accident, and that they had been thrown aside by the fore man. Upon the trial of the action the defendant moved at the close of plaintiff's case to dismiss the complaint on the ground of a total absence of proof of negligence on the part of the defendant. The learned court announced that it would reserve decision upon the motion, and hear the defense. At the close of all of the evidence, defendant's attorney said: "I ask your honor to dispose of the motion I made at the close of the plaintiff's case." The learned court responded: "I think I will deny it, and send it to the jury on the single question as to the sort of apparatus you used,-as to whether that was negligence. There is nothing on the other branch of the case, because your tools, from outward appearance, seemed to be all right, and I will take that from the jury entirely." Defendant excepted to this ruling. In charging the jury the learned court said: "The law of the case, as I lay it down to you, is that it was the duty of the defendant railroad company, by whom the plaintiff was then employed, to furnish him with a reasonably safe appliance for the doing of the work to which he was put. By that I do not mean to say that the company were to furnish him with the best and latest appliance,-the most modern,—but the ordinary, everyday appliance in general use. Therefore you will inquire and determine as a question of fact from the evidence given in your hearing, and that alone, was this method in use-the hammer and chisel-a reasonably safe way of doing the work, or is there a better way in common, general use, which defendant should have adopted? You will also inquire how general in use is the saw method, about which testimony has been given, as applied to the cutting or separating of rails. How long has that method been in use? If there was in general use a better or safer way than the one used, you will say whether the defendant was negligent in using the chisel method instead of the saw way of cutting rails." At the close of the charge, defendant's attorney asked the court to charge "that the defendant was not bound to use the hack saw instead of a hammer and chisel, even if the jury are of the opinion and 106 New York State Reporter that the hack saw was an improved method of cutting rails." This the court charged. Defendant's attorney then said: "I would except then, if your honor please, to the submission by the court to the jury of the question of the defendant's negligence, claiming that there is no such question fairly involved. I also except to that part of your honor's charge in which you submit to the jury the question whether there was a better way of doing the work than the way pursued by the defendant on the occasion." To this the court replied: "I do not mean to limit them. I tried to make myself thoroughly understood. It was not a question of a better way. It was a question whether the saw was the everyday, accustomed, general way in common use. If they do not find that to be the fact, then there can be no recovery. Defendant's Attorney: I will except, then, to your honor's submission of that question to the jury, as I claim there is no proof that it is in common or general use. The Court: That I leave to the jury to determine from the evidence." The jury rendered a verdict for the plaintiff for $2,500, and defendant's counsel moved to set aside the verdict and for a new trial upon all of the grounds mentioned in section 999 of the Code of Civil Procedure. This motion was subsequently denied, and the appeal brings up for review the exceptions. The appellant urges that there was no proof of negligence on the part of the defendant; therefore the court erred in denying the motion to dismiss the complaint. The respondent, on the other hand, insists that, as the defendant introduced evidence after making the motion to dismiss, the defendant must be deemed to have waived the point, and that this question cannot be reviewed, citing Jones v. Railway Co., 18 App. Div. 267, 46 N. Y. Supp. 321, where it is said that: "If, at the close of a plaintiff's case, the defendant is confident that no cause of action has been made out, the only method of securing a review of an erroneous ruling on the point is to let the case stand without further evidence. If the defendant enters upon its evidence, it takes the chances of supplying the deficiencies of the plaintiff's case." While it is perhaps true that the defendant, by introducing evidence, takes the chance of supplying the defects in the plaintiff's case, it is not to be doubted that by a renewal of the motion at the close of all of the evidence the defendant has the right to a ruling as to whether there is evidence in the case to go to the jury at that time (Hopkins v. Clark, 158 N. Y. 299, 304, 53 N. E. 27); and the defendant in the case at bar, not having been able to get a ruling upon his motion at the close of plaintiff's case, by requesting the court to dispose of his motion at the close of the evidence must be deemed to have intended a renewal of the motion, and his exception to the disposition then made of the motion gives him the right to review here. We are brought, then, to a consideration of the question: "Was there any evidence of negligence on the part of the defendant? Was there a question to be submitted to the jury?" The defendant owed the plaintiff the duty of furnishing him a reasonably safe place in which to perform his work, and the further duty of providing him with reasonably safe tools and appliances for the performance of the labor assigned to him. He is not bound |