CALIFORNIS THE New York Supplement VOLUME 67, AND New York State Reporter, VOLUME 101. (54 App. Div. 564.) FLINN v. WORLD'S DISPENSARY MEDICAL ASS'N et al. (Supreme Court, Appellate Division, Second Department. November 23, 1900.) MASTER AND SERVANT-INJURY TO THIRD PERSON-NEGLIGENCE OF SERVANTINSTRUCTIONS. An instruction that, if defendants' servant did not use such care as was commensurate with the danger which might result from his act, then plaintiff should recover, imposes too strict a degree of liability, since the servant was bound to exercise only the degree of care that a person of reasonable care and prudence would have exercised under the conditions which, with such care, he saw or ought to have seen, and the instruction, in effect, compelled the jury to find that, if danger existed, defendants were liable for any accident which resulted. Appeal from trial term, Kings county. Action by Henry M. Flinn against the World's Dispensary Medical Association and another. From a judgment in favor of plaintiff, the defendants appeal. Reversed. Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, and JENKS, JJ. Frederic A. Ward, for appellants. PER CURIAM. The plaintiff, while in the employ of the New York Times, was injured by the sudden and unexpected starting of a printing press, caused by an electrical current, his hand being caught and crushed between the rollers. The defendants had contracted for the erection of certain electrical appliances connected with the press, and the plaintiff claimed that the defendants' agent 67 N.Y.S.-1 and 101 New York State Reporter was negligent in the performance of the work for which the defendants had contracted. It is not necessary to state the facts more specifically, as the judgment must be reversed for an error in the charge. The court had fully and properly instructed the jury in the principal charge, and also in answer to requests of the defendants, upon the question of the care which the defendants were bound to use; but just at the close of the case the plaintiff's counsel, not content with the correct statement of the measure of the defendants' liability, requested the court to charge "that if Porter is found to be a servant of defendants, and did not use such care as was commensurate with the danger which might result from his act in dealing with electricity, then plaintiff should recover." The court so charged, and the defendants' counsel excepted. It is manifest that the instruction imposed too strict a liability on the defendants. The care which the servant was bound to exercise was not necessarily commensurate with the actual danger, as that would make the defendants' liability consequent upon the accident. He was bound to exercise only that degree of care which a person of reasonable care and prudence would have exercised under the conditions which, with such care, he saw or ought to have seen. Obedience to the charge compelled the jury to find that if there was danger, even though it was unknown to Porter, or by the use of reasonable caution and prudence could not have been known by him, the defendants were still liable for any accident which resulted. This error requires a reversal of the judgment. Judgment and order reversed, and new trial granted, costs to abide the event. (32 Misc. Rep. 736.) WESTERN UNION SEWING-MACH. CO. v. SACHS et al. (Supreme Court, Appellate Term. November 9, 1900.) REPLEVIN-CONDITIONAL SALE-DEFAULT-MODIFICATION-BURDEN OF PROOF. Plaintiff brought replevin for goods sold to defendant under a conditional contract, alleging default in the payments, the whole agreement not being in writing. Payments had been made on an unexplained account, which, if on account of purchase price, would indicate a modification of such agreement, and place defendant in default. Held, that the burden of proof was on plaintiff, and hence, in the absence of a showing wherein there was a modification, he could not recover. Appeal from municipal court, borough of Manhattan. Action by the Western Union Sewing-Machine Company against Annie Sachs and another to recover certain goods. From a judgment in favor of the defendants, plaintiff appeals. Affirmed. Argued before TRUAX, P. J., and SCOTT and DUGRO, JJ. C. B. Plante, for appellant. A. Oberstein, for respondents. PER CURIAM. The burden of proof was upon the plaintiff, and was not sustained. It appears that the whole agreement between the parties was not evidenced by the writing. There was a payment of $2 and one of $10 on an unexplained account. If it was an account of rental, as indicated on Exhibit 6, there was no default shown. If it was on account of purchase price, there must have been a modification of the agreement suggested by Exhibit 6, and, as it does not appear in what respect there was a modification, it cannot be said that the plaintiff was entitled to the property. In addition, it may be said that there was no evidence of a refusal to deliver. Judgment affirmed, with costs. CLARK v. CLIFF PAPER CO. (Supreme Court, Appellate Division, Second Department. November 23, 1900.) SALES-ACTION BY PURCHASER-BREACH OF WARRANTY. A contract provided that plaintiff should purchase paper of defendant, and receive the paper, though inferior to the agreed quality, and that the vendor should repay any losses sustained by reason of such defects. Plaintiff refused to receive certain paper, and sued defendant, who counterclaimed for the price of the paper refused. The complaint sought to recover a fixed sum paid for the paper, together with expenses for cartage and storage, and a certain sum as damages, to the amount of profits which he would have realized on the sale of the paper had it been of the quality called for by the contract. A bill of particulars exhibited the transactions between the parties, leaving as due the precise sum included in the amount for which judgment was asked, exclusive of the claim for loss of profits. Held, evidence of damages, on the theory of a breach of warranty, to the extent of the difference between the value of the property as it was to be and as it was, was inadmissible under the plea. Appeal from trial term. Action by Charles S. Clark against the Cliff Paper Company. From a judgment in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed. Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, and JENKS, JJ. Frederic A. Ward, for appellant. Morris Cohn, Jr., for respondent. HIRSCHBERG, J. When this case was before the court on a former appeal, it was held that on the evidence the trial court should have dismissed the complaint on the motion made at the close of the evidence, and submitted to the jury only the question of the defendant's counterclaim. Clark v. Paper Co., 21 App. Div. 623, 47 N. Y. Supp. 251. This conclusion was reached because the claim of the plaintiff appeared to be based upon the alleged rejection of shipments of paper which were concededly ordered, and which were therefore to be retained by the plaintiff and paid for under the contract set up in the complaint, irrespective of quality, but subject to repayment by the defendant to the plaintiff of any loss sustained by reason of the inferiority. In the opinion attention was called to the fact that there was an inconsistency between the plaintiff's and 101 New York State Reporter claim that he was to accept and receive the paper and pay for it, trusting to the defendant's promise to afterwards rectify the account, and repay and make good the loss arising from inferiority, and the plaintiff's further claim that he had rejected paper because of its inferior quality, but which he had received pursuant to such agreement. The last shipment was excepted from this criticism, because in excess of what had been ordered by the plaintiff. It was nowhere suggested, however, that a claim for the damages resulting from a breach of warranty would not be within the terms of the contract alleged in the complaint, or that there would be any inconsistency between such a claim and the contract. On the contrary, Mr. Justice Cullen said: "We need not discuss the question of whether the evidence established a warranty on the part of the defendant as to the character of the paper, nor whether such warranty would survive the acceptance of the goods, or a failure to comply with its terms justify a refusal to accept them." It is quite apparent, therefore, that no consideration was given to the question of what would be the legal basis of the plaintiff's claim for "loss sustained" by reason of the inferiority of the paper, and which the defendant, according to the contract asserted in the complaint, agreed to make good to him. The plaintiff sued to recover the sum of $741.40, which he alleged to be due him under the terms and conditions of the contract. Of this sum, $591.40 is stated in the complaint to be the amount which the plaintiff had advanced and paid to the defendant for the paper, together with expenses incurred for cartage, storage, etc., and the balance, viz. $150, is stated in the complaint to be plaintiff's damages, in the amount of profits which he would have realized upon the sale of the said paper had the same been of the quality called for by the contract. The plaintiff bought the paper to sell again, and the claim for damages which he asserted in the complaint was thus expressly limited to the loss of prospective profits. Moreover, a bill of particulars was served by the plaintiff, purporting to show "the dates and amounts of the separate items of the sales and deliveries of the paper referred to in the complaint in this action, and the dates and amounts of the separate payments or credits, and the separate items of expenses for cartage, storage, etc., therein." This bill of particulars exhibits the transactions between the parties in great detail, and leaves as due the plaintiff the precise balance of $591.40 included in the amount for which judgment is demanded in the complaint, and exclusive of the claim for loss of profits. It includes an allowance to the plaintiff of $163.71, being 35 cents a hundredweight upon 46,775 pounds of the paper in question. Evidence was given upon the trial tending to establish this allowance as agreed upon between the parties, and evidence was also given tending to establish the shipment of about $245 worth of paper which the plaintiff claims he did not order, and which was referred to as overplus. No evidence whatever was given of loss of profits. The counterclaim set up by the defendant was the sum of $615.66, the balance which would be due the defendant on the theory that the paper was all ordered and not inferior, and, if not ordered, was ac |