THE NEW YORK SUPPLEMENT VOLUME 151 MURRAY v. J. F. HAYES, Inc. (Supreme Court, Appellate Term, First Department. January 7, 1915.) 1. WAREHOUSEMEN (§ 34*)-PRESUMPTION-NEGLIGENCE. Proof that a trunk delivered to a warehouseman for storage was damaged by water makes out a prima facie case of negligence. [Ed. Note. For other cases, see Warehousemen, Cent. Dig. §§ 71-85; Dec. Dig. § 34.*] 2. WAREHOUSEMEN (§ 34*)—ACTIONS-BURDEN OF Proof. Plaintiff, who asserted that a warehouseman was guilty of negligence in caring for her trunk, has the burden of proof upon the whole case to establish negligence. [Ed. Note. For other cases, see Warehousemen, Cent. Dig. §§ 71-85; Dec. Dig. § 34.*] 3. WAREHOUSEMEN (§ 24*)-NEGLIGENCE-WHAT CONSTITUTES. A warehouseman, who stored trunks below the level of the street, is not bound to anticipate that, the city having torn up the street and placed obstructions therein, waters from an unprecedented rain would be cast into his basement, when the sewers were unable to carry them off. [Ed. Note.-For other cases, see Warehousemen, Cent. Dig. §§ 11, 48, 49, 51-54; Dec. Dig. § 24.*] 4. WAREHOUSEMEN (§ 24*)-DUTY OF DUE Care. Where, as soon as it became apparent that the waters from an unprecedented rain would be cast into the basement, where the defendant warehouseman had stored trunks, the removal of the trunks was commenced, the warehouseman was not guilty of negligence because he did not have a large force on hand, so as to remove the trunks promptly. [Ed. Note. For other cases, see Warehousemen, Cent. Dig. §§ 11, 48, 49, 51-54; Dec. Dig. § 24.*] Appeal from Municipal Court, Borough of Manhattan, Third District. Action by Leoni Murray against J. F. Hayes, Incorporated. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Argued November term, 1914, before LEHMAN, DELANY, and WHITAKER, JJ. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 151 N.Y.S.-1 Bernstein & Lewis, of New York City (Max Bernstein, of New York City, of counsel), for appellant. Ignace Irving Apfel, of New York City, for respondent. LEHMAN, J. [1, 2] The plaintiff has recovered damages for injuries to her trunk and its contents while in defendant's storage warehouse. The plaintiff showed only that the property was damaged by water; but this proof was, I think, clearly sufficient to make out a prima facie case of negligence, and required of the defendant some explanation. But, when such explanation was offered, it then remained a question upon the entire case whether or not the bailee has been negligent, and the burden of proof was always on the plaintiff to establish that proposition. [3, 4] In this case it is undisputed that the trunk was damaged during a rainstorm of unprecedented severity, that at the time the street in front of the defendant's premises was torn up by the city and obstructed with sand and Belgian blocks, that the sewers proved insufficient to carry off the rainfall, and that, owing to the condition of the street and the boiling up of water from the sewers, the water was caused to flow in a solid stream across the sidewalk and into the defendant's premises. It is, of course, not disputed that the defendant is not responsible for the state of the street, the state of the sewer, or the extraordinary rainfall; but it is claimed that the defendant might reasonably have foreseen that such a chain of circumstances might arise, and should have exercised reasonable care to guard against the result of such circumstances. It seems to me, however, that no man can possibly be held negligent for failure to foresee rainfall of such severity that the water could not be carried off through the usual channels, but would flow across the street into the basement. In effect the result of such a view would be that it constitutes negligence per se to store any property below the level of the street. Since no negligence can be inferred from the mere fact that the trunk was stored in a place where water could reach it under such circumstances, the only other question is whether the defendant took reasonable care to protect the property after it became evident that the rainfall could not be carried away in the usual channels. It appears that about 1 o'clock in the afternoon the circumstances might fairly be considered as sufficient to have given notice to a reasonable man that there was danger to the trunks stored in defendant's basement, and the evidence further shows that defendant failed to remove the plaintiff's trunk till some hours thereafter. The defendant, however, shows that he started to move the trunks at 1 o'clock, and that the reason why plaintiff's trunk was not moved sooner was because there were about 1,000 trunks stored in the basement, which had to be moved out. I think that, if the defendant proceeded to move the trunks out promptly, he cannot be held liable for negligence because he failed to provide in advance means by which they could be moved more quickly. It follows that the judgment should be reversed, and a new trial. ordered, with costs to the appellant to abide the event. All concur. EISNER v. CROMMETTE. (Supreme Court, Appellate Term, First Department. January 7, 1915.) 1. ALTERATION OF INSTRUMENTS (§ 27*)-BURDEN OF PROOF. In an action on a note, the burden of explaining an alteration on its face was on the plaintiff, and the note should not be received in evidence until such explanation was given. [Ed. Note.-For other cases, see Alteration of Instruments, Cent. Dig. §§ 230-247; Dec. Dig. § 27.*] 2. ALTERATION OF INSTRUMENTS (§ 29*)-EVIDENCE. In an action on a note bearing on its face evidence of an alteration, where plaintiff on his direct case attempted no explanation, and on crossexamination testified that the apparent change in the amount was due to the fact that when he had partly written it he dipped his pen in an inkwell, where different parts appeared to be written with different pen and ink, and in a different handwriting, and where his explanation as to the erasure of certain words and the writing in of other words was inadequate, judgment against defendant will be reversed, and a new trial granted. [Ed. Note. For other cases, see Alteration of Instruments, Cent, Dig. §§ 259-263; Dec. Dig. § 29.*] Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by Philip B. Eisner against Jessie B. Crommette. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted. Argued December term, 1914, before GUY, BIJUR, and PAGE, JJ. Horace W. Palmer, of New York City, for appellant. George A. Knobloch, of New York City, for respondent. PAGE, J. [1] This action was brought on a promissory note which bears on its face evidence of having been altered. The burden of explaining these alterations rested on the plaintiff, and the note should not have been received in evidence until such explanation was given. [2] The plaintiff did not on his direct case attempt to give any explanation. The court interrupted the cross-examination of the payee, who had filled out the body of the note, and inquired concerning the apparent change of the amount of the note from "seven" to "seventyfive." His explanation was that when he had written the word "seven" the ink gave out, and he dipped his pen in an inkwell. The remaining part of the note, "at 549 W. 159 St. in payment for," appears, however, to be written with the same pen and ink as the portion preceding the "ty-five." The figure "5," "ty-five," "and plumbing" all appear to have been written with a different pen and ink from the other written portion of the note. The explanation as to the erasure of the words "legal services" and the writing of the words "Repairs Boiler" is also inadequate. The payee stated that the maker of the note, when he handed the note to her for signature, wrote the words "legal services," that he removed them with ink eradicator, and wrote over the words "Repairs Boiler"; and yet the words "in pay For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ment for," which immediately precede the alteration, are concededly in his handwriting. In the interest of justice, the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur. (165 App. Div. 583) HART v. CORT. (No. 6469.) (Supreme Court, Appellate Division, First Department. December 31, 1914.) 1. CUSTOMS AND USAGES (§ 17*)-ADMISSIBILITY. Evidence of custom is incompetent to contradict those terms which attach to a contract by implication of law, as well as to contradict the express terms of a contract; the test of repugnancy being whether or not the custom, if written into the contract, would make it insensible or inconsistent. [Ed. Note. For other cases, see Customs and Usages, Cent. Dig. § 34; Dec. Dig. § 17.*] 2. CUSTOMS AND USAGES (§ 16*)-CONTRACTS-ADDITION OF IMPLIED TERM. Where a contract by which plaintiff licensed defendant to perform a play in the United States and Canada did not provide that the license should be exclusive, parol evidence of a custom in the dramatic field that such licenses are in fact intended to be exclusive was incompetent to add such alleged exclusive feature to the contract. [Ed. Note. For other cases, see Customs and Usages, Cent. Dig. §§ 27, 28; Dec. Dig. § 16.*] Clarke and Dowling, JJ., dissenting. Appeal from Appellate Term, First Department. Action by Thomas R. Hart against John Cort. From a determination of the Appellate Term, affirming a judgment of the City Court entered on a verdict directed for plaintiff, defendant appeals. Affirmed. See, also, 83 Misc. Rep. 44, 144 N. Y. Supp. 627. Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ. House, Grossman & Vorhaus, of New York City (Louis J. Vorhaus, of New York City, of counsel, and Charles Goldzier, of New York City, on the brief), for appellant. Appell & Taylor, of New York City (George H. Taylor, Jr., of New York City, of counsel), for respondent. HOTCHKISS, J. The action is for royalties under a contract by which plaintiff licensed defendant to perform the play "La Tosca" within the United States and Canada. The license is not expressed to be exclusive, nor is there anything in it from which an exclusive license may be inferred. The defense was that, by custom, the license was in fact exclusive; but defendant's evidence to prove such custom was excluded, and the competence of such evidence is the sole question raised on this appeal. The respondent claims that in a contract such as the present there is no presumption of exclusiveness (Warne v. Routleage, 18 Eq. Cas. 497; Willis v. Tibbals, 33 N. Y. Super. Ct. 220), and that custom may *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes not be proved to create doubt where otherwise none exists; and this principle was applied to the contract in question by the Appellate Term on a previous appeal to that court, where a judgment in plaintiff's favor was reversed and a new trial granted (83 Misc. Rep. 44, 144 N. Y. Supp. 627). [1] Although the rules governing the proof of custom as bearing on the interpretation of contracts are in the main well settled, in their application the cases are in many respects conflicting, if not irreconcilable. That custom may not be shown to contradict the express terms of a contract is conceded. Is it competent to contradict those terms which attach to it by implication of law? I think, both on principle and authority, this question must be answered in the negative. It has been held that the test of repugnancy is whether or not the custom, if written into the contract, will make it insensible or inconsistent. Per Campbell, C. J., Humphrey v. Dale, 7 E. & B. 266, 275. In Hopper v. Sage, 112 N. Y. 530, 20 Ñ. E. 350, 8 Am. St. Rep. 771, there was a contract for the sale in futuro of shares of corporate stock, on which a dividend had been declared prior to the date of the contract, but which dividend was not payable and was not paid until after such date. The contract provided that the defendant (purchaser) "is entitled to all dividends or extra dividends declared" between the date of the contract and the day when the stock was to be delivered, but was silent as to dividends declared before the contract was made. Defendant laid claim to the dividend in question, and in support of such claim offered evidence of a custom of the Stock Exchange; but the court held that the contract "was not made under such circumstances that those rules * * * could have any legal effect. * * * So far as the case shows, he [the vendor] was not a member" of the Exchange. Perhaps the decision of the case might well have been put solely on this ground, but it was not. After referring to the rule of law which gives to the owner of shares all dividends declared during the period of such ownership, the court, per Peckham, J., said: "Usage and custom cannot be proved to contravene a rule of law, or to alter or contradict the express or implied terms of a contract, free from ambiguity, or to make the legal rights or liabilities of the parties to a contract other than they are by the terms thereof. When the terms of a contract are clear, unambiguous, and valid, they must prevail, and no evidence of custom or usage can be permitted to change them." In the earlier case of Higgins v. Moore, 34 N. Y. 417, the same learned judge who wrote for the court in Hopper v. Sage, in an opinion reviewing many cases, clearly expressed and unmistakably applied the principle upheld in the latter case. That custom may not be invoked to alter or impeach the "implied terms of a contract, or to make the * of the parties * * legal rights or liabilities other than they are by the common law," was expressly said by Earl, C., writing for the court, in Bradley v. Wheeler, 44 N. Y. 495, 504, which is among the cases cited and relied on in Hopper v. Sage. In Lawrence v. Maxwell, 53 N. Y. 19, 21, the court, per Allen, J., said: * * * "The counsel for the appellant does not controvert the elementary principle that custom or usage cannot avail to vary or alter the terms of an agreement as made, or its legal effect. Evidence may be given of a custom or usage |