owners. While the defendant acquired title to all the property, the referee has found, on evidence which sustains the finding, that there was no merger of the title to the rink and the hotel premises in the said defendant. There was accordingly the same separation as prior to his ownership. Certainly, during the occupancy by the independent owners, possession of this rink or hall was sufficient notice to a grantee under a conveyance containing this significant exception, who should be on his guard, and ascertain what constitutes the foundation of that possession or title. Every grantee understood by the exception in his deed that there was some separation of title, and it was incumbent upon him to ascertain its source as long as it was supported by occupancy. If there was no merger, as the defendant had recognized the outstanding leasehold title by purchasing it, there was the same duty upon any subsequent purchaser of the land to find out why the reservation was still incorporated in the deeds and papers, although Henry owned the entire property. Whether there was a merger or not depended upon the intention of Henry, and it devolved upon the plaintiff, if he did not fully understand what that intention was, to inform himself thereof. When the land was sold at foreclosure sale, in 1898, there had been a concurrent occupancy of the two pieces of property by Augustus W. Henry for nearly 10 years, and yet the judgment, as well as every other paper in that action describing the premises, recited the exception. The plaintiff acquired his only title by virtue of this foreclosure, and the judgment effectually estopped him from asserting there was a merger, a union of the skating rink property in that of the hotel property,-for the distinction is recognized in all the foreclosure proceedings.

As stated, the only title the plaintiff had secured was the mortgage foreclosure sale, and, unless he took title to the skating rink by virtue of the referee's deed, he had none at all. When the mortgage was taken the separation of ownership of these two pieces of the property was distinct. So the mortgage did not become a lien on the rink property at that time. It did not subsequently become a lien unless there was a union,-a merging of the title of the rink with that of the hotel premises, and the referee has settled that question by deciding there was none.

There are several other facts which it seems to me make against the plaintiff's contention. In the conveyance from Crandall to Henry, in May, 1896, aside from the reservations quoted, there appears the following recital: "That, when the said special uses relating to the skating rink, lockup, and watering trough shall have lapsed by operation of time, the fee absolute of the land upon which the same stand shall become vested, and pass by this conveyance as though such had never been created." This implies that the land was distinctive from the buildings. The plaintiff paid for the property he purchased $1,600. The other premises were worth that sum, and, with the opera house added, the value was considerably in excess of the purchase price. The plaintiff had known Henry for 13 or 14 years, and "knew of the exception of the skating rink in all the deeds when I took both my deeds, and when I entered into the written agreement (Exhibit H) with Carl Howden." The skating

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rink was the exception which attracted his attention, and of which he knew, as contradistinguished from any interest in the land. He testified, further: "I calculated that I got property that my deed did not cover." This can have reference only to the skating rink or hotel. These facts, coupled with the finding that there was no merger, make the two titles, which were defined upon the erection of the skating rink, continue separate.

The judgment should be affirmed, with costs to the respondents.

WILLIAMS, J., concurs.

CARTER WHITE LEAD CO. v. POUNDS.

(Supreme Court, Appellate Division, Second Department. November 15, 1901.) 1. AGENTS-AUTHORITY TO RECEIVE PAYMENTS.

In a suit by a corporation to recover for goods sold to defendant by one of its agents, the evidence showed that he used a card with the corporation's name and the address of a branch office, and that its general manager knew of such use. Prior to ordering the goods, defendant visited such office several times, found the corporation's sign on the window, and the agent alone in charge. Held, that the agent was held out by the corporation as more than a mere selling agent, and that a payment to him of the price of the goods discharged the defendant. 2. WITNESSES-CROSS-EXAMINATION-IMPeaching Credibility.

In a suit by a corporation to recover for goods sold defendant by its agent, where plaintiff's general manager testifies that no part of the claim has been paid, an affidavit made by him on a criminal prosecution against the agent, averring that money paid to such agent by the defendant belonged to the corporation, is admissible on cross-examination as tending to impeach his credibility, though not to establish the agent's authority to receive the payment.

Appeal from trial term, Queens county.

Action by the Carter White Lead Company against Lewis H. Pounds. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Affirmed.

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

J. Harry Hull, for appellant.

Edward M. Bassett, Jr., for respondent.

BARTLETT, J. This action was brought to recover the purchase price of 1,200 pounds of white lead, sold by the plaintiff to the defendant, through the agency of William B. Cahey. The defense was payment. There is no doubt that the defendant paid Cahey for the goods, but the plaintiff contended below and contends here that the evidence showed Cahey to have been a mere selling agent, without custody of the property sold, and therefore without any implied authority to receive payment therefor. The case is a close one, but I am inclined to think that the proof establishes a more general agency on the part of Cahey. He used a card of the "Carter White Lead Company, New York Branch, 41 Water Street," and he did this with the knowledge of Mr. Alexander Stewart, at the time the general manager of the plaintiff's business. Prior to order

ing the white lead, the defendant had visited the office at 41 Water street, "maybe half a dozen times." The sign of the Carter White Lead Company appeared on the front window. "Mr. Cahey was in charge of the office when I went in," says the defendant. "I never saw any one else there except Mr. Cahey, and never saw Mr. Stewart." From this and other evidence in the record it seems to me that the plaintiff, by permitting Cahey to be apparently in charge of its New York branch, held him out as being something more than a mere agent authorized only to sell goods, but not receive payment therefor. The facts are quite different from those in Higgins v. Moore, 34 N. Y. 417, relied upon by the appellant. There the payment for a lot of grain was made to a grain broker, who, as Judge Peckham says, had no apparent authority to do anything but make the sale. So, also, in Dunn v. Wright, 51 Barb. 244, which related to a sale of bags, the selling agent was a mere broker, and was known to the purchaser not to be a dealer in such bags as were the subject of the purchase.

The only ruling concerning evidence which requires notice was the admission of an affidavit made by Mr. Stewart in a criminal prosecution to recover from Cahey some of the money paid to him by the defendant. In this affidavit Mr. Stewart swore that the money was the property of the Carter White Lead Company. Of course, this was not received as tending to establish Cahey's authority to receive payment, but it was properly admitted on Mr. Stewart's cross-examination to impeach his credibility, for it was in conflict. with the statement which he made on his direct examination, to the effect that no part of the plaintiff's claim had been paid by the defendant. I conclude that the judgment should be affirmed.

Judgment and order affirmed, with costs. All concur.

(65 App. Div. 353.)

HEALY V. VORNDRAIN.

(Supreme Court, Appellate Division, First Department. November 15, 1901.) 1. NEGLIGENCE-DANGEROUS PREMISES-EVIDENCE-QUESTION FOR JURY.

The evidence showed that certain premises of defendant were vacant, but for a crate used for the purpose of piling lumber, which was constructed near the sidewalk, between which crate and the walk, and within 20 inches of the walk, there was a hole 3 feet wide and several feet deep, which was unguarded. It appeared that the 20 inches next to the walk was also used by pedestrians. Plaintiff, while passing along in the evening, noticed a young child on the crate, and, thinking it to be in danger, took a single step to the side, slipped, and fell into the hole, breaking her arm. Held, that the evidence was sufficient to take the case as to defendant's negligence and plaintiff's contributory negligence to the jury.

2 SAME QUESTION OF FACT.

Whether a warning placed on the back of the crib, some distance from the walk, which was intended to warn people going on the premises, was sufficient as a warning of which plaintiff was bound to take notice, so as to have made her a trespasser, was a question of fact for the jury. Ingraham and Laughlin, JJ., dissenting.

Appeal from trial term, New York county.

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Action by Margaret Healy against Catherine Vorndrain. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Thomas P. Wickes, for appellant.

George H. Taylor, Jr., for respondent.

HATCH, J. This action is brought to recover damages for personal injuries averred to have been sustained by the plaintiff by reason of the negligence of the defendant in leaving unguarded a hole or excavation on her premises, contiguous to the street. The complaint avers that the negligence consisted, briefly stated, in the defendant's failure to fence, inclose, or protect a piece of land belonging to her, on the southerly side of 147th street, in the city of New York, and to properly inclose, protect, and fence a crib, crate, or structure or arrangement made of boards, planks, or timbers placed across each other at angles, leaving a space between them forming a sort of network on the top, and which crib, crate, or structure was even with or rested on or near the sidewalk, and was supported by posts, beams, planks, or boards upon said lot, and allowing the same to continue in such a condition, position, and proximity to the street, and in failing to provide proper safeguards to prevent young children from being enticed or allured from the street upon the crib, or upon the land of the defendant; that the plaintiff, while attempting to remove a young child from a dangerous position on said crib, in the evening, and to save him from falling and being injured, slipped between the sidewalk and one of the planks of the crib, and fell or was thrown down into a hole or space, opening, or gully along and between or in front of said crib and the sidewalk, and was severely hurt and injured, and her left arm broken between the elbow and wrist. At the close of the plaintiff's case the complaint was dismissed.

As I view the case, the evidence tended fairly to support the averments of the complaint. The premises of the defendant were vacant, except for a structure which is spoken of as "crib" or "crate,” which was used for the purpose of piling or storing lumber. The hole into which the plaintiff fell was shown to be about 12 feet deep, 3 feet wide, and ran for about 14 feet within 20 inches of the edge of the city sidewalk. The use which had been made of the premises in hauling in and out the lumber and other materials had to some extent broken down the edge of the sidewalk upon this space of 20 inches, but it was used as part of the walk by pedestrians. The hole itself had existed for a considerable time, and was not protected by any guard or light at night. As the plaintiff was proceeding along the walk, she saw a neighbor's child sitting upon a timber near the hole. Thinking the child was in danger, she took a single step to the side to pick it up, stepped upon some clay by the beam, and fell into the hole; going down until her head was about on a level with the sidewalk. In falling she struck her arm upon one of the timbers of the crib or crate, which stopped her fall and broke her arm, on account of which she avers that she sustained permanent injury. No evidence was given on the part of the defendant,

I am of opinion that the dismissal of the complaint was unwarranted, and constitutes reversible error. The questions of defendant's negligence and the plaintiff's contributory negligence, upon the testimony, were questions of fact which should have been left for the jury to determine, under proper instructions from the court. When an owner makes an excavation on his own land so near to the highway as to render travel thereon dangerous, and fails to guard it, he is chargeable with negligence by a person sustaining injury therefrom, in the absence of negligence on the part of the party injured, contributing thereto. Beck v. Carter, 68 N. Y. 283, 23 Am. Rep. 175; Thompson v. Railroad Co., 41 App. Div. 78, 58 N. Y. Supp. 193. The defendant under such circumstances is in no measure relieved by the fact that in making use of his property and maintaining a hole he has invaded the sidewalk, and to some extent destroyed it. The particular act here complained of, and the one on account of which the plaintiff sustained injury, was the existence of a hole into which the plaintiff fell. That hole was maintained by the defendant, and the jury were authorized to predicate negligence thereon if the plaintiff was without fault. It is of small consequence whether the plaintiff was right or wrong in supposing that the child she went to rescue was in danger. She had the right so to suppose, and, in turning aside to secure it, was not engaged in an act which can be characterized as negligence as matter of law. She had the right to assume that the sidewalk was safe, and also to assume that the plaintiff maintained no pitfall in immediate proximity to the walk; and, in the absence of knowledge or warning of the existence of the hole, her act would not necessarily constitute contributory negligence. Jennings v. Van Schaick, 108 N. Y. 530, 15 N. E. 424, 2 Am. St. Rep. 459; Chisholm v. State, 141 N. Y. 246, 36 N. E. 184; Ayres v. Railroad Co., 158 N. Y. 254, 259, 53 N. E. 22.

Nor can the plaintiff be charged as a trespasser, in any such sense as would bar her right to a recovery. The locus in quo was actually used, up to the edge of the timber, as part of the sidewalk; and the case, in principle, falls within the rule of the authorities which we first cited. The warning was placed upon the back of the crib, some distance from the walk, and was doubtless intended to warn people going upon the premises. It does not appear that it was seen by the plaintiff, or that it could be at the time when she received the injury. In any event, whether it was sufficient as a warning, of which the plaintiff was bound to take notice, was a question of fact for the jury. If these views are sound, it follows that the judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.

VAN BRUNT, P. J., and PATTERSON, J., concur.

INGRAHAM, J. (dissenting). The defendant is to be held liable upon the principle that where an owner makes an excavation on his land so near the highway as to render travel thereon dangerous, and fails to guard it, he is chargeable with negligence, notwithstanding that no such condition is alleged in the complaint or proved upon the