While plaintiff claims (and it is not difficult to conceive, Simis v. McElroy, 160 N. Y. 156, 54 N. E. 675, 73 Am. St. Rep. 673) that title to this 16-foot portion of the lot has vested in him by adverse possession, he cannot urge such a consideration here because he has not tendered, nor does he offer here, a deed including it. The parties intended the sale of this whole property, which includes the 16-foot piece. It was all fenced in as one whole, distinct, and well-defined parcel, and so understood by the parties when the contract was signed. The term "177 feet, more or less," was meant to apply to the depth of the whole lot pending actual measurements. Defendant was not bound to know that the description of the premises in the contract did not include all the land he was to receive. He had a right to assume it would convey the premises as they appeared and were shown him, fenced, set off, and identified as they were. Beardsley v. Duntley, 69 N. Y. 577.

[3] Plaintiff does not claim inability to comply fully with his contract, but rather urges he be excused from performing what he undertook to do, though at once insisting that he has established that which makes him abundantly able to do so. If he had shown inability to perform, equity might, with the consent of the vendee, decree a specific performance so far as possible, awarding compensation to the purchaser by way of abatement from the purchase price for the deficiency. Bostwick v. Beach, 103 N. Y. 414, 9 N. E. 41.

[4] But it cannot be said, as matter of law, that a deficiency of 8.92 feet in depth of a lot on a city street sold to be 62 feet wide by 177 feet deep, "more or less," for the sum of $13,000, standing alone, is an immaterial variance (Beardmore v. Barry, 118 App. Div. 334, 103 N. Y. Supp. 353, affirmed 193 N. Y. 639, 86 N. E. 1122), or a "slight discrepancy" (Floeting v. Horowitz, 120 App. Div. 492, 104 N. Y. Supp. 1037); and, taken with the "reasonable doubt" (Chesebro v. Moers, 233 N. Y. 75, 81, 134 N. E. 842, 21 A. L. R. 1270) whether the back of the lot may be subject to use as a public alley or other unknown purpose, it cannot be held in this case (and this is the test) that, had these things been known, the contract would still have been entered into (Stokes v. Johnson, 57 N. Y. 673).

But these considerations may not be invoked by plaintiff here, he claiming no inability to perform his contract as made, and there being thus no occasion for equity to intervene. Upon the pleadings, the testimony, and the submission, there is a failure to establish facts, by any application of which reasons may be found in equity to grant plaintiff the relief he applies for. Upon the whole case he does not bring himself within the rules that obtain when one seeks the favor of the court. 10 R. C. L. 419; 27 R. C. L. 331.

The complaint is dismissed, and defendant is awarded judgment upon his counterclaim, with costs. Submit findings and judgment on consent or notice. Judgment accordingly.

(202 N.Y.S.)

ARMOUR & CO. v. WOOD & SELICK, Inc.

(Supreme Court, Appellate Term, First Department. December 18, 1923.) Sales 161-Seller held not liable for carrier's failure to divert shipment as requested by buyer.

On December 16th a buyer of raisins then in transit requested diversion of part of the shipment, and on December 19th the seller wrote and delivered to the terminal carrier a letter requesting such diversion, accompanied by the bill of lading. Held that its failure to present the request earlier, or to telegraph all of the connecting carriers, did not make it liable for the carriers' failure to make the diversion, especially where the request was in ample time, except for the railroad's oversight or mistake in changing the routing.

Appeal from Municipal Court.

Action by Armour & Co., a corporation, against Wood & Selick, Inc. From a judgment for plaintiff, after a trial by a judge without a jury, defendant appeals. Reversed, and complaint dismissed on the merits. Argued November term, 1923, before GUY, BIJUR, and DELEHANTY, JJ.

Thomas & Houghton, of New York City (Hector W. Thomas and Woolsey A. Shepard, both of New York City, of counsel), for appellant.

Louis E. Felix, of New York City (Louis Engelberg, of counsel), for respondent.

PER CURIAM. Defendant, located in New York City, had sold to plaintiff, of Chicago, Ill., a car of raisins to be shipped "f. o. b. Coast." Defendant procured the shipment to be made under a bill of lading which, over a specified route to New York, included five named connecting railways. The car left Fresno, Cal., December 12, 1919, reached Ogden, Utah, December 21, 1919, and Council Bluffs, Iowa, December 30, 1919.

On December 16, the agents of plaintiff in this city wrote defendant to the effect that part of the car should be diverted to plaintiff at Peoria, Ill., C., R. I. & P. (Chicago, Rock Island & Pacific Railroad Company) delivery. On December 19, defendant wrote to the Delaware, Lackawanna & Western Railroad Company, also in this city, the final carrier, transmitting this request, and inclosing the bill of lading as evidence of ownership, and asking that corresponding telegraphic instructions be given. This letter was delivered by hand the same day. On December 20, the Lackawanna Railroad telegraphed the appropriate agent of the Chicago, Rock Island & Pacific Railroad at Kansas City. For some reason, which is not explained, the car was delivered on December 30 to the Wabash Railroad at Council Bluffs, and ultimately reached New York, and it was then sent back by the defendant to Peoria. The change of route at Council Bluffs from the Rock Island to the Wabash was without the knowledge of the defendant.

We are unable to understand upon what theory the defendant has been held liable for the expenses incurred by plaintiff through acts over which defendant had no control whatsoever, although defendant

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has apparently complied with all its obligations in the premises. There is a general claim in respondent's brief to the effect that defendant should itself have telegraphed every one of the carriers immediately upon receiving the request for diversion. Testimony offered by the defendant, however, is to the contrary, and this is emphasized by the consideration that naturally the routing would not be changed by the railroads, except upon evidence of ownership in the party requesting it, namely, presentation of the bill of lading, which would not be feasible by telegraph. The conclusion is irresistible that defendant followed the appropriate course in presenting the request with the bill of lading to the ultimate carrier in this city.

It is also suggested that defendant should have presented this request earlier than the 19th. In view of the fact, however, that plaintiff's agents contented themselves with a mere letter on December 16, addressed to defendant, defendant's subsequent act in carrying out the request by writing the letter of December 19, and by having it delivered by hand the same day to the railroad, was not an unreasonable delay. But the determining factor against defendant's liability in the premises appears to us to be that defendant's request was as matter of fact in ample time to be entirely effective, had it not been for some oversight or mistake on the part of the railroads involved.

Since, therefore, defendant was guilty of no breach of contract, nor of negligence, and, even if it had been guilty of the latter, such negligence was wholly unrelated to the result which caused plaintiff's damage, the judgment must be reversed, with $30 costs, and the complaint dismissed on the merits, with costs.

(121 Misc. Rep. 790)

WEISMAN et al. v. BAER & HOFFMAN, Inc.

(Supreme Court, Appellate Term, First Department. December 18, 1923.) Trial 133 (6)-Counsel's remark held reversible error, though court instructed jury to disregard it.

In an action for breach of contract, a remark by plaintiffs' counsel in argument that his clients did not care for the amount involved and would give it to a charitable institution held reversible error, though the judge instructed the jury to disregard it, and no motion was made to declare a mistrial.

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by Abraham Weisman and others, copartners doing business under the firm name and style of Three Star Dress Company, against Baer & Hoffman, Inc. Judgment for plaintiffs, and defendant appeals. Reversed, and a new trial ordered.

Argued November term, 1923, before GUY, BIJUR, and DELEHANTY, JJ.

Horace G. Marks, of New York City, for appellant.

Isaac Schmal, of New York City, for respondents.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(202 N.Y.S.)

GUY, J. Appeal by defendant from judgment in favor of plaintiffs entered upon the verdict of a jury in an action for damages for breach of contract.

During the summing up plaintiffs' counsel stated: "My client doesn't care for the $270. We will take it and give it to any charitable institution"-which statement was objected to by defendant's counsel as made for the purpose of biasing the jury, and the trial judge instructed the jury to disregard the remark.

Although no motion was made to withdraw a juror and declare a mistrial, the statement of counsel was so manifestly improper, and, even after being stricken out by the trial judge, so calculated to influence the jury in rendering a verdict, that a new trial should be ordered.

Judgment reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All concur.

(Supreme Court, Appellate Division, Third Department. November 15, 1923) Master and servant 107(4)-Charge that, if place on which employee stepped was not reasonably safe, he was entitled to verdict, held error.

On evidence that when an elevator was not in use it was fastened and became a part of the second floor, and a third person used the elevator with employer's knowledge a short time before employee stepped upon it, and, it not being fastened, fell through to the first floor and injured himself, held, that it was error to charge that, if the place on which employee stepped was not reasonably safe, he was entitled to a verdict.

Hinman, J., dissenting.

Appeal from Trial Term, Washington County.

Action by John F. Clark against Joseph Brown. From an order granting plaintiff's motion for a new trial, made on the minutes, defendant appeals. Affirmed.

Argued before HENRY T. KELLOGG, VAN KIRK, HINMAN, HASBROUCK, and McCANN, JJ.

Rogers & Sawyer, of Hudson Falls (John E. Sawyer, of Hudson Falls, of counsel), for appellant.

Sheridan P. Wait, of Saratoga Springs (Edgar T. Brackett, of New York City, and Sheridan P. Wait, of Saratoga Springs, of counsel), for respondent.

HENRY T. KELLOGG, J. The plaintiff was injured by a fall in the course of his employment. His employer, the defendant, had failed to secure compensation for his injured employees, as required by the Workmen's Compensation Law (as re-enacted by Laws 1922, c. 615). Consequently the plaintiff, exercising the option made available by that law (section 11), brought this action to recover damages for the injuries he received. The sole issue in the action was the negli

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gence of the defendant. Workmen's Compensation Law, § 11. Upon this issue the jury returned a verdict in favor of the defendant. The verdict was set aside by the trial justice, and from the order setting it aside this appeal was taken.

The defendant, at the time the plaintiff was injured, had become the owner of a building previously used as a livery stable. He had. not, as yet, put the building to any business use. He was engaged in making alterations therein in order to convert it into an automobile garage. For this purpose he had employed the plaintiff with other workmen. In the floor of the second story of the building there was an opening 30 feet long by 15 feet wide. The platform of an elevating apparatus, 13 feet long by 5 feet wide, ordinarily occupied a portion of the opening. This platform was suspended by a cable running over a block, attached to a rafter, to a windlass on the second floor, by which it was operated. It had been used only at intervals when it became necessary to lift carriages or other articles to the second floor for storage, or to remove them from storage. When the platform was hoisted it became a part of the floor of the second story, and was held in place, as a part thereof, by flat iron bolts attached to the platform, which were shoved into sockets attached to the floor. When the bolts were withdrawn, the platform would yield to slight pressure and swing outward and downward. The remainder of the large opening in the second floor was at all times uncovered to permit the pitching of hay from wagons placed underneath. On the day of the accident, and within two hours previously thereto, there came to the building two men, Boyce and Pelotte, to remove certain articles stored on the second floor. These men were not employed by the defendant, but were the servants of a third person, who owned the articles. With the knowledge of the defendant they used the elevating apparatus in their work. They made two trips therewith from the second to the first floor and return. When the first trip was completed, the platform was made. secure, so that it might be loaded, by shoving in the bolts.

The evidence indicates that, when the second trip was completed, Pelotte, who was stationed on the second floor, failed to drive home the bolts, and thus left the platform unfastened and in an insecure condition. The plaintiff, with the defendant, thereafter went to the second floor to get a plank required in his work. He walked with the plank to the platform, intending to cross it and drop the plank through the opening. As he stepped upon the platform, it swung outward, leaving an opening through which the plaintiff fell to the first floor, thereby breaking his left leg. The trial justice charged the jury in part as follows:

"If you find that this place upon which plaintiff stepped in carrying this plank was not a safe place for him to be, reasonably safe within the requirements of law, then you will give him a verdict for such a sum as he is entitled to."

It is self-evident that, at the moment of the accident, the unbolted platform did not constitute a reasonably safe place upon which to step. Consequently the trial justice, in effect, directed the jury to find a verdict for the plaintiff. The trial justice was asked to charge as follows: