protect persons working under standing cars or engines against such cars or engines being moved or run into while engaged in their work, do not apply.

It is manifest that the risk to brakemen upon freight trains arising from the jerking of a car is the same, whether engaged in switching in a yard or running on the road; that, if a rule is proper or necessary on that subject in respect to switching cars in the yard, it would be equally necessary elsewhere. Such a rule, to be effective, must be one to prevent the too sudden stopping or starting of cars. Whether the defendant or any other railroad company has a rule to prevent the jerking of cars does not appear. It is also manifest that whether the sudden stopping of an engine will produce a jerk of more or less violence upon the cars to which it is attached depends upon the rate of speed at which they are moving, and a rule in reference to the safety of brakemen, as to whether it shall be a stop signal or a slow-up signal, must take into account the rate of speed. But occasions must be frequent when it is necessary to stop a train as quickly as possible, both going forward and backward; and how is it possible to form a workable rule that when a freight train is moving faster than a given rate of speed no stop order shall be given to the engineer until after he has received a slow-up order, and then to formulate the necessary exceptions to such rule?

In the present case it did not appear that the jerk which threw the plaintiff's intestate off the car was greater than the usual or ordinary jerk connected with the starting and stopping of cars. The nature of the business is such that it cannot be transacted without some jerking of the cars, and in the absence of evidence that the jerking involved in this switching process was greater or more dangerous than in other places I think the plaintiff was not entitled to go to the jury on the question whether there should not have been a special rule applicable to this particular branch of the work. Moreover, the conductor, or whoever is to raise the lever, must run along with the cars holding up the lever until the necessary slack has been produced to release the pin. In the nighttime, in the winter, as was the case here, this would be done with considerable risk of stumbling and falling under the cars, and in case of such an accident it might well be claimed that the company should have anticipated such an accident and should not have made a rule against a stop signal, which, if used in place of a slow-up signal, would have required the conductor to run a shorter distance, and this would have lessened the danger to him.

I assume that the action is under the employer's liability act, and that the plaintiff's notice under the act was sufficient; but the act does not affect this question. The rule must be the same as if it were a common-law action.

Attention is called in the plaintiff's brief to a ruling excluding proof of the custom in another yard, and plaintiff cites the case of Freemont v. Boston & Maine R. R. Co., 111 App. Div. 831, 98 N. Y. Supp. 179, affirmed 187 N. Y. 571, 80 N. E. 1109, to show that the ruling was erroneous. Assuming the ruling to have been erroneous, I think it is or a ground for granting a new trial. It is not claimed that any

rule existed in the yard in question, but the proof offered was to show that it was the practice in that yard to give the slow-up signal, rather than the stop signal, when kicking cars. The witness was allowed to state how he performed that work, but was not allowed to state the practice of others in that yard. I think, within the authorities above cited, the case would have been the same had this evidence been received, and that the plaintiff would not have been entitled to go to the jury on the question as to whether such a rule as plaintiff contends for should have been adopted by the defendant. There was, therefore, no evidence of defendant's negligence sufficient to submit to the jury.

It is proper to note that, while this cause was tried in December, 1907, the briefs on this motion were not submitted until the present month.

Plaintiff's motion to set aside the nonsuit and for a new trial must be denied.

MADISON PAPER STOCK CO. v. MAURICE O'MEARA CO.

(Supreme Court, Appellate Term. May 7, 1909.)

COSTS (§ 146*)—Grounds-AMOUNT OF RECOVERY.

A defendant, who pleads a counterclaim which exceeds plaintiff's ad mitted demand and recovers judgment for the excess, is not entitled to costs calculated on the amount of his counterclaim, under Municipal Court Act (Laws 1902, p. 1586, c. 580) § 332, subd. 7, requiring costs to be based on the amount of defendant's recovery.

[Ed. Note. For other cases, see Costs, Dec. Dig. § 146.*]

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

Action by the Madison Paper Stock Company against the Maurice O'Meara Company. From a judgment for defendant, plaintiff appeals. Modified and affirmed.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

H. A. Rosenberg, for appellant.

Howard Campbell, Jr., for respondent.

PER CURIAM. The plaintiff sued for $208. His claim was admitted by defendant, who interposed, however, a counterclaim for $240.76. The trial established the counterclaim, and defendant was given judgment for the balance, $38.56, and $20 costs. This was incorrect. Subdivision 7 of section 332 of the Municipal Court act (Laws 1902, p. 1586, c. 580) provides that the costs are based upon the sums for which the defendant "recovers judgment," not the amount of his counterclaim. The defendant here "recovered judgment" for $36.58,

and thus was not entitled to costs.

The judgment must be modified, to exclude the $20 costs, and, as so modified, affirmed, with $10 costs on this appeal to the plaintiff.

TOUBE v. RUBIN-BLANKFORT CO.

(Supreme Court, Appellate Term. May 7, 1909.)

1. EVIDENCE (§ 90*)—MEANING OF "BURDEN OF PROOF."

The phrase "burden of proof" properly signifies the duty to establish the entire case by a preponderance of evidence, in which sense the burden never shifts, and also indicates the duty of proceeding to adduce the evidence, in which sense the burden shifts whenever a prima facie case is made by either party.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 112; Dec. Dig. § 90.*

For other definitions, see Words and Phrases, vol. 1, pp. 904-907.] 2. MASTER AND SERVANT (§ 40*)—ACTION FOR WRONGFUL DISCHARGE-Burden OF PROOF.

A servant, suing for a wrongful discharge, need not specifically prove his discharge without cause, as a discharge before determination of the stipulated period prima facie violates the agreement, and the burden is cast on defendant to prove justification.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 47; Dec. Dig. § 40.*]

3. MASTER AND SERVANT (§ 44*)—ACTION for Wrongful Discharge-INSTRUCTION AS TO BURDEN OF PROOF.

In an action for a wrongful discharge, the main charge declared that the burden was at all times on plaintiff, who was bound to satisfy the jury by a preponderance of evidence that each proposition he advanced was right, and unless he convinced them by such evidence, they were bound to find for defendant. At defendant's request they were instructed that the burden was on plaintiff to prove full performance of his contract, and not on defendant to prove plaintiff's violation thereof. Held that, given in this unqualified form, the instruction was misleading, and reversible error.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 44.*] Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by Ira Toube against the Rubin-Blankfort Company. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Reuben M. Cohen, for appellant.

I. S. Lambert, for respondent.

PER CURIAM. This is an action to recover damages for the wrongful discharge of plaintiff. Plaintiff proved the contract and his discharge, whereupon, under the allegations of his answer, the defendant offered proof that the discharge had been for cause. The jury found for the defendant. In his main charge the trial justice instructed the jury:

"The law is not in doubt in this case. It is purely a question of fact. You want to remember at all times that the burden of proof is on the plaintiff. That means that the plaintiff is bound to satisfy you by a fair preponderance of evidence that each proposition he advanced is right. The burden of proof' is, as I say, on the plaintiff, and, unless he convinces you by a fair preponderance of evidence, you are bound to find in favor of the defendant."

"For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 116 N.Y.S.-43

And later, at the request of the defendant's attorney, the justice instructed the jury:

The burden is on the plaintiff to prove full performance of his contract, and not upon the defendant to prove plaintiff's violation of any of the terms or conditions of the contract."

Given in that unqualified form, it constitutes reversible error. The phrase "burden of proof" is commonly used in a dual capacity. In its first and proper sense it signifies the duty of establishing the entire case by a preponderance of evidence, and as such the burden is never shifted, but rests at all times upon the plaintiff. The same phrase is used, however, to indicate the duty of proceeding to adduce the evidence, and that burden does shift to the opposing party each time a prima facie case is made by the other. The fact that the same words are used to express two entirely distinct ideas often leads to much confusion of thought, as in the case at bar. From the wording of defendant's request it is evident that even the learned trial justice overlooked this distinction at the moment. The rule which applies to the pressent case may be deduced from the language of Mr. Justice Vann in the case of Linton v. Unexcelled Fireworks Co., 124 N. Y. 533, 536, 27 N. E. 406, although that case was concerned with the pleadings. We read:

"It was necessary for him to aver and prove that he was discharged before his term of service, as provided by the contract, had expired; but it was not necessary that he should, specifically or in express terms, aver or prove that he was discharged without cause, as a discharge before the determination of the stipulated period was prima facie a violation of the agreement. • The burden is cast upon the employer of proving, and hence of alleging, facts in justification of the dismissal. Such a defense confesses the contract, and the discharge, but avoids the cause of action by showing new matter, which, by the command of the statute, must be pleaded."

Although it was incumbent upon the plaintiff to show due performance of the contract, the charge of the trial justice tended to mislead the jury as to the respective obligations resting upon the parties.

The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.

DAYTON, J., concurs in result.

GILLMORE v. INTERBOROUGH RAPID TRANSIT CO.

(Supreme Court, Appellate Term. May 7, 1909.)

CARRIERS (8 318*)-INJURIES TO PASSENGERS-DEFECTIVE DOOR-NEGLIGENCEEVIDENCE.

In an action for injuries to a passenger by the car door slamming on his finger, evidence held insufficient to establish defendant's negligence charged, consisting of a defect in the door.

[Ed. Note. For other cases, see Carriers, Dec. Dig. § 318.*]

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

Action by Eugene F. Gillmore, by Harry Gillmore, his guardian ad litem, against the Interborough Rapid Transit Company. From a Municipal Court judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

James L. Quackenbush (Joseph H. Adams, of counsel), for appel

lant.

Nathan Friedman, for respondent.

PER CURIAM. Plaintiff was a passenger upon a north-bouna Sixth Avenue elevated train. At Fourteenth street he went to the door of the car, which he testifies was already open. He did not see who opened it. He testified:

"I was just about going out, when the car stopped suddenly, and I had to grab on the jamb of the door. As I grabbed the jamb, the door loosened its fastening from underneath, and the door slammed, and I had my finger there, and the finger was jammed."

The plaintiff was uncorroborated, and this is the only evidence of negligence on the part of defendant in the case. Such testimony has already been held inadequate by this court. Muller v. Man. Ry. Co., 48 Misc. Rep. 524, 96 N. Y. Supp. 270; Needham v. Int. R. T. Co., 48 Misc. Rep. 522, 95 N. Y. Supp. 561. On the contrary, it was testified by an uninterested witness that he saw plaintiff walk to the door and open it himself. As there is no evidence to support the judgment, it must be reversed, and a new trial ordered.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

EARLE V. PARDINGTON.

(Supreme Court, Appellate Term. May 7, 1909.)

HIGHWAYS (184*)-USE FOR TRAVEL-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.

Where plaintiff's automobile ran into the rear of defendant's automobile, which had stopped suddenly without warning only six feet ahead of plaintiff's, it was a question for the jury whether plaintiff was guilty of contributory negligence.

[Ed. Note. For other cases, see Highways, Dec. Dig. § 184.*]

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

Action by Henry M. Earle against Arthur R. Pardington. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

John Ingle, Jr. (George W. Olvany, of counsel), for appellant. Bertrand L. Pettigrew, for respondent.

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