1097 nish and deliver to plaintiff in the city of New York at least one car load of live fish per week during the period covered by the contract; and the defendant contends that it was not obligated to bring into the city of New York or to deliver to the plaintiff any live fish in any week, provided it gave plaintiff three days' notice that it would not do so. The contract consists of seven paragraphs. By the first paragraph, defendant agreed to sell and deliver to the plaintiff "promptly on arrival at Fulton Market, Manhattan borough, city of New York, all live carp to be brought by the party of the first part into the city of New York for a period of one year from the date hereof," and not to sell or deliver any live fish so brought into the city of New York to any other individual or corporation, nor to permit or allow the use of its boats or cars in the transportation of live fish by any other individual or corporation during the period of one year; that being the time the contract was to run, except as stated in paragraph 6, which provided that defendant should be at liberty, in the event therein specified, to sell a certain amount of live carp to certain individuals therein named. The second and third paragraphs are as follows:

"(2) The party of the second part hereby agrees to purchase from the party of the first part all such live carp as herein stated, and to pay therefor twelve and one-half (12%) cents for each pound, for all fish delivered during the months of August, October, November, April, May, June and July, and fifteen (15) cents for each pound for all such fish delivered during the months of September, December, January, February and March, and to make payment on each Monday or Saturday fully for all such fish taken prior to such Monday or Saturday.

"(3) The party of the first part agrees to bring into the city of New York and deliver to the party of the second part, each week not more than one car load of live fish unless requested to bring in more by the party of the second part; each car load shall not contain more than from 6,000 to 6,500 pounds during the six summer months, namely, April, May, June, July, August and October, and not more than 8,000 to 8,500 pounds during the other six months, said fish to be alive and in good condition, and every carp shall not exceed three pounds in weight, except one thousand (1,000) pounds thereof in each car load; said fish to be brought and delivered on the days designated by the party of the second part, providing the party of the first part shall receive sufficient notice in case of a change in the days for delivery desired by the party of the second part, and in case the fish shall arrive later than the day designated by the party of the second part, then the party of the second part shall not be obligated to accept the same, provided always that the party of the first part shall have had sufficient notice as aforesaid."

The fourth paragraph gave plaintiff the right once in each month to request the defendant "not to bring in more than one-half car load of live carp containing not more than 4,000 pounds during one week, and in such event, upon notice to the party of the first part, the party of the second part shall not be obliged to take more than one-half car load as stated."

The fifth paragraph is as follows:

"(5) In case no shipment of live carp should be made in any week, three days' notice shall be given to the party of the second part that it may provide itself with fish from other sources."

The contents of the sixth paragraph so far as material have already been stated, and the seventh merely provides for deposit by the plain

tiff of a sum of money as liquidated damages in the event of its failure to perform. The plaintiff waived any claim for damages with respect to the nondelivery of fish during the first month covered by the contract. In the second month, namely, September, 1907, the defendant delivered three car loads of fish, and it delivered two car loads in the month of May thereafter. With respect to the other weeks covered by the contract, the evidence shows that defendant duly notified the plaintiff that it would not make deliveries of fish under the contract. The plaintiff has recovered the damages it sustained on the theory that it was the duty of the defendant to deliver at least one car load of fish each week, and that it could not relieve itself of that obligation by giving notice pursuant to the provisions of paragraph 5.

On an appeal in a former action brought by plaintiff against defendant to recover the deposit for liquidated damages, the learned Appellate Term construed this contract as obligating the defendant to deliver at least one car load of live fish each week, and that it could not relieve itself of this obligation by giving notice of its inability to deliver or that it would not deliver (Royal Fish Co. v. Central Fish Co., 123 N. Y. Supp. 213), and the learned trial justice followed this construction of the contract, which we are of opinion is erroneous. We think that the defendant by the express terms of the contract not only protected itself against its inability to obtain and deliver fish, but it obligated itself to deliver fish to plaintiff only in the event that it saw fit to bring fish into the New York market. This appears quite clearly from the provisions of the first and second paragraphs of the contract, the material parts of which have been stated. By the provisions of paragraph 5 of the contract, the defendant obligated itself to give the plaintiff three days' notice with respect to each week when it would not deliver fish to the end, as shown by the express terms of the contract, that plaintiff might provide itself with fish from other sources. Moreover, it appears that defendant was unable by ordinary means and methods which it had theretofore employed in its business to obtain the requisite quantity of fish for deliveries during the other weeks.

It follows that the judgment and order should be reversed, and a new trial granted, with costs to appellant to abide the event.

concur.

All

O'BRYAN v. STATE.

(Supreme Court, Appellate Division, Third Department. December 28, 1911.) 1. BRIDGES (§ 40*)-STATUTORY PROVISIONS-TRACTION ENGINE-NEGLIGENCE. Highway Law (Consol. Laws 1909, c. 25) § 331, effective February 17, 1909, exempts a town from liability for damages caused by the fall of a bridge while a traction engine, or any vehicle or load weighing eight tons or more, is upon it. A traction engine weighing four tons and a half, upon which plaintiff's intestate was riding, May 31, 1909, fell through a state bridge which had been built about 1896 and repaired in 1907 by a day laborer who had little experience as to bridge work, and For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

after the fall it was seen that the old sleepers were decayed and that the new ones were splintered. Defendant showed no reason why it could not have rebuilt or strengthened it subsequent to the operation of the highway law, or the giving of any notice of its weakness. Held, that, even assuming that the statutory load was applicable to a state bridge, the death of the intestate was due to the state's negligence.

[Ed. Note.-For other cases, see Bridges, Cent. Dig. § 86; Dec. Dig. § 40.*]

2. BRIDGES (8 44*)--ACTION FOR INJURIES-CONTRIBUTORY NEGLIGENCE. Where one riding upon a bridge on a traction engine the weight of which did not exceed five tons had no notice of the weakness of the bridge, and had reason to believe that the state had performed its duty and that the bridge was reasonably safe for the load, fell through the bridge and was killed, he was not guilty of contributory negligence.

[Ed. Note. For other cases, see Bridges, Cent. Dig. §§ 91-94; Dec. Dig. § 44.*]

Appeal from Court of Claims.

Action by Lina O'Bryan, administratrix of the estate of Orian O'Bryan, deceased, against the State of New York. Judgment for defendant (68 Misc. Rep. 618, 125 N. Y. Supp. 490) and plaintiff appeals. Reversed on law and fact, and new trial granted.

The traction engine upon which the plaintiff's intestate was riding fell through the bridge over the old Chenango Canal, which is a feeder of the Erie Canal, at Pecksport in the town of Eaton. The bridge was a truss bridge resting upon two abutments which were about 25 feet apart. A needle beam ran across the bridge in the center, and from it sleepers 3 or 4 inches thick and 8 inches wide extended from the needle beam to the abutment on either side. The roadway was 12 feet wide, and there were 10 or 12 of these sleepers sustaining the floor of the bridge. The bridge was originally built in 1896 or 1897, and in 1907 was repaired by a day laborer who had but little experience or knowledge with reference to bridges. He put five new sleepers on each side of the needle beam, putting them in between the old sleepers. The bridge was then planked with three-inch plank. The new sleepers were hemlock, and after the bridge fell it was found that some of them were splintered, being wide at one end and sharp at the other. The old sleepers were pine, and some were broken off in the middle and some near the ends and were found quite rotten. Some you could pull apart with your fingers. The engine weighed about 41⁄2 tons. The intestate, weighing 180 pounds. was on it at the time of the fall. The intestate with the road commissioner, was at work upon the roads, and when they came to the bridge they placed some plank lengthwise along it for the wheels of the engine to run upon to prevent their crushing into the plank and to strengthen the bridge.

Argued before SMITH, P. J., and KELLOGG, HOUGHTON, SEWELL, and BETTS, JJ.

J. A. Johnson (C. A. Hitchcock, of counsel), for appellant. The Attorney General (Wilbur W. Chambers, Deputy Atty. Gen., of counsel), for the State.

JOHN M. KELLOGG, J. [1] The evidence indicates that the death of the intestate came from the negligence of the state in not properly maintaining the bridge. It had been built for years. There was no proper inspection, and it was repaired by a common day laborer who had no practical knowledge or experience in constructing or repairing bridges. Some of the old sleepers were rotten, some of

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the new ones were cross-grained hemlock, and, unless the statutes about to be referred to relieve the state from liability, it is clearly responsible for the death of the intestate. It may be questionable whether the statutes furnish immunity to the state or any person or corporation maintaining a bridge other than the town itself. Bush v. D. L. & W. R. R. Co., 166 N. Y. 210, 59 N. E. 838. But we may assume for the purposes of this case that the statutory "load" applies to a state bridge which is used as a part of the highway system.

Chapter 210 of the Laws of 1890, which was an amendment of chapter 526 of the Laws of 1887, exempts a town from liability for damages by the fall of a bridge while a traction engine of the weight of five tons or over, exclusive of fuel and water, is upon it. Section 154 of chapter 568 of the Laws of 1890, the highway law, being chapter 19 of the General Laws, exempts a town from liability for damage by the fall of a bridge while any vehicle and load together weighing four tons or over is upon it, and this latter statute purports to repeal chapter 526 of the Laws of 1887 and the acts amendatory thereof. Chapter 1 of the General Laws (Laws 1892, c. 677), known as the statutory construction law, by section 13 provides that no provision of any chapter of the revision of the General Laws of which that chapter is a part shall supersede or repeal by implication any law passed at the same session of the Legislature at which such chapter was enacted, and that an amendatory law passed at such session shall not be deemed repealed unless specifically designated in the repealing schedule of such chapter. As chapter 210 is not specifically designated in the repealing schedule, we may infer that it survived. Therefore at the time this bridge was constructed the ordinary highway bridges of a town were expected to support a traction engine of a weight less than five tons and any other vehicle and load of a weight less than four tons. It is urged that the scraper trailing behind the engine was partly or entirely upon the bridge, and that it is not ap parent that the entire weight was not five tons or more. It is not very material for the reason that at the time of the accident the limit of the load was eight instead of five tons.

The highway law (chapter 30, Laws of 1909 [Consol. Laws 1909, c. 25]) was a consolidation of the previous laws upon the subject, and section 331 exempts a town from liability for damage caused by the fall of a bridge while a traction engine or any vehicle or load weighing eight tons or over is upon it. This section became effective February 17, 1909; the bridge fell May 31, 1909, or 104 days thereafter.

[2] It is urged that, when the state was called upon to rebuild or strengthen its numerous bridges connected with the highway system. of the state, a neglect to repair this bridge for 104 days was not a negligent act, and that the state violated no duty in allowing the bridge to remain in its former condition for that length of time. I think otherwise. While undoubtedly the state had many bridges to rebuild and strengthen, it has great resources at its command and should not be permitted to shirk its duty to the public. If for any reason (none is shown) it was unable to reconstruct this bridge within the time, it clearly was able to give to the public some reasonable notice that the bridge was not able to sustain the statutory load. The in

testate, without such notice, had reason to believe that the state had performed its duty, and that the bridge was reasonably safe for the load which he was putting upon it, which the evidence indicates did not exceed five tons. It cannot be said, under all the circumstances, that the intestate was guilty of contributory negligence which brought about or contributed to his death. The judgment, therefore, should be reversed upon the law and the facts, and a new trial granted. Judgment reversed on law and facts, and new trial granted, with costs to appellant to abide event. All concur.

COHALAN v. NEW YORK PRESS CO.

(Supreme Court, Appellate Division, First Department. December 29, 1911.) APPEAL AND ERROR (§ 1068*)-HARMLESS ERROR-ErroneouS INSTRUCTIONS. Where, in an action for libel, the error went only to the measure of damages without increasing the damages for the publication of the libel which justified the jury in awarding a şum equal to the verdict without including punitive damages, the error must be disregarded, and the judgment affirmed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 42254230; Dec. Dig. § 1068.*]

Ingraham, P. J., and Laughlin, J., dissenting.

Appeal from Trial Term, New York County.

Action by John P. Cohalan against the New York Press Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. Affirmed.

See, also, 124 App. Div. 920, 108 N. Y. Supp. 1127, 129 N. Y. Supp. 1111.

The action is brought to recover damages alleged to have been sustained by plaintiff in consequence of the publication by defendant in the New York Press, a daily newspaper printed and circulated by it in New York and elsewhere, on the 4th day of May, 1907, in its editorial columns. The article was as follows:

"Tammany at Albany.

"An indication that the peace pact in Albany was part of a corrupt deal of the Murphy crowd, the McClellan crowd and the criminal element of the Republican Party in the legislature to save Kelsey for the Insurance Ring, kill the Mayoralty Recount Bill and assassinate the Public Service measure by an unholy alliance, was furnished by the shift on Thursday night of two democrats who had announced that they were so committed to serving the interests of the public that they would support Governor Hughes. These two men were Ackroyd and Cohalan. Sneaking into the corporation lines at the last minute they gave McCarren, captain of the Raines renegades and commander-in-chief of the whole forces against the people, a solid democratic following in the Senate, with the exception of the scrupulously faithful democratic public servants, Senators Fuller and Taylor.

"In this passing glance at the mongrel combination against the welfare of the people of New York it is not untimely to remark that the earlier reports of Cohalan as a legislative pup suggested that he might develop into a fine, big, almost noble mastiff; whereas, full grown, he actually appears at the Senate Dog Show a measly little Mexican Hairless Spaniel that gives a person the creepy, crawly sensation one feels when contemplating vermin."

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes