Section 841b, above referred to, provides that:

"On the trial of any action to recover damages for causing death the contributory negligence of the person killed shall be a defense, to be pleaded and proven by the defendant.”

This subsection was added by Laws 1913, c. 228. As provided by the terms of the enactment, it went into effect September 1, 1913. (It may be noted that another subdivision of the same section, designated also as 841b, was added at the same legislative session by chapter 395 of the Laws of that year. This latter subdivision concerns a subject other than that presented in the present action, and it is not possible that the court was misled by the failure of defendant's counsel to call attention more specifically to the exact provision to which he sought to direct the court's attention by the second request to charge above referred to.) The injury to plaintiff's intestate and his death caused thereby both occurred some months before the subdivision, quoted above, became a law. Unless this law is retrospective in operation and effect, defendant was entitled to have both requests charged.

That it is not retrospective has been held in Sackheim v. Pigueron, 163 App. Div. 180, 148 N. Y. Supp. 27. That case was decided on the authority of Greif v. Buffalo, Lockport & Rochester R. R. Co., 205 N. Y. 239, 98 N. E. 462, in which case it was held that section 202a of the Labor Law (Consol. Laws, c. 31; Laws 1909, c. 36), added by Laws 1910, c. 352, by which the contributory negligence of an employé in an action brought by him or his personal representative against his employer to recover damages for negligence, arising out of and in the course of his employment, was declared to be a defense to be pleaded and proved by the defendant, was not retrospective. In the case of Clancy v. New York, N. H. & H. R. R. Co., 157 App. Div. 337, 142 N. Y. Supp. 258, the Second Department cites and follows the Greif Case. In view of the restricted application of the section, above referred to, as determined by the decisions in the cases hereinbefore cited, we must hold that the refusal of the trial court to charge defendant's requests was error; and for that reason the judgment and order should be reversed, and a new trial directed, with costs to appellant to abide event.

COMPTOGRAPH CO. v. SCHMALHOLZ.

(Supreme Court, Appellate Term, First Department. December 4, 1914.) PRINCIPAL AND AGENT (§ 123*) - LIABILITY OF PRINCIPAL CONTRACTS OF AGENT-EVIDENCE-SUFFICIENCY.

In an action for the price of an adding machine, bought by defendant's bookkeeper, evidence held insuflicient to show that the bookkeeper was authorized to make the purchase.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. § 123.*]

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

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

Action by the Comptograph Company against Edward B. Schmalholz, doing business under the name of Theodore B. Schmalholz & Son. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ.

Edward H. Hawke, Jr., of New York City (Herbert R. Limburg, of New York City, of counsel), for appellant.

Charles Kaufmann, of New York City (Joseph J. Corn, of New York City, and J. Lester Lewine, of Fleischmanns, of counsel), for respondent.

COHALAN, J. Plaintiff sues to recover the purchase price of a second hand adding machine. The alleged sale, evidenced by a written agreement, was made through one Seymour, a bookkeeper of the defendant. This employé had been discharged by the defendant, and testified on the trial of the action that the machine, concededly on trial in the defendant's place of business, was bought by the defendant. The defendant claims that the employé had no express or apparent authority to bind him to such a contract.

The weight of the evidence seems to sustain the defendant's contention. It shows that the business was not placed in Seymour's charge, but that one Smith was the business manager thereof; that the defendant was in his place of business every day, and was there at the precise time when the agreement was signed by Seymour. Moreover, the plaintiff was informed by Seymour that the express consent of the defendant would have been necessary to purchase the machine. Under these circumstances the plaintiff dealt with the bookkeeper at its peril. People v. Brooklyn Cooperage Co., 187 N. Y. 142, 79 N. E. 866; Edwards v. Dooley, 120 N. Y. 540, 24 N. E. 827. It is significant, too, that the written agreement was never shown to the defendant, and that it was not found until after the discharge of Seymour, when a prompt demand was made upon the plaintiff to remove the machine. Judgment reversed, and new trial ordered; costs to appellant to abide the event. All concur.

(164 App. Div. 711)

KNOWLES v. NEW YORK, N. H. & H. R. CO.

(Supreme Court, Appellate Division, Second Department. November 13, 1914.) 1. COMMERCE (§ 27*)--REGULATION OF RAILROADS-DEATH OF SERVANT-EMPLOYERS' LIABILITY ACT.

Where decedent, a switchman, was regularly assigned to a switch locomotive in defendant's yard, and was killed while crossing the tracks in the yard on his way to work, his administratrix, to establish liability under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]), was bound to prove that intestate, when killed, was engaged in interstate commerce, in the sense that the work which he was on his way to do was of that character, which she could do, either by proving that the switch engine on which he

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

was employed was used exclusively during that shift in interstate commerce, or that it was thus used at the very outset of the shift.

[Ed. Note. For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]

2. MASTER AND SERVANT (§ 276*)-DEATH OF SERVANT-INTERSTATE COMMERCE EVIDENCE.

In an action for death of plaintiff's intestate, regularly assigned to a switch engine in defendant's yard, by being struck at a crossing as he was going to work, evidence held insufficient to show that the engine at the very outset of the shift, or during the shift, was engaged in interstate commerce.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 950952, 954, 959, 970, 976; Dec. Dig. § 276.*]

Appeal from Trial Term, Westchester County.

Action by Grace Knowles, as administratrix of Charles E. Knowles, deceased, against the New York, New Haven & Hartford Railroad Company. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, it appeals. Reversed, and new trial granted.

Argued before JENKS, P. J., and CARR, RICH, STAPLETON, and PUTNAM, JJ.

J. W. Carpenter, of Brooklyn, for appellant.

Thomas J. O'Neill, of New York City, for respondent.

JENKS, P. J. [1] The plaintiff was bound to establish that the work done by her intestate at the time he was killed was that of interstate commerce. Ill. Cent. R. R. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163; Pedersen v. Del., Lack. & West. R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; Shanks v. Delaware, L. & W. R. Co., 163 App. Div. 565, 148 N. Y. Supp. 1034. As the intestate was killed while crossing the tracks in the defendant's yard on his way to his work, which was to begin a few minutes thereafter, the case of the plaintiff is necessarily that her intestate was engaged in interstate commerce, in the sense that the work which he was on his way to do was of that character. See Nor. Car. R. R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159. The intestate was assigned regularly to a switch locomotive engine used in the yard of the defendant. The proof shows that it was used indiscriminately in interstate and intrastate commerce within the meaning of the decisions. Hence the plaintiff was bound to establish, either that this switch locomotive was used exclusively during that shift, which began at midnight and ended at 8 a. m., in interstate commerce, or that it was thus used at the very outset of the shift.

[2] I think that she did not make out her case. The witness Regan, an employé of the defendant, called by the plaintiff, testifies without contradiction that there was no proof of any kind available that could show all of the uses of this switch engine in defendant's work. Is true that the "switching tissues," which are record calls for certain work, indicate that this locomotive engine was used in interstate comFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

It

merce during the shift, and perhaps do not indicate use for intrastate commerce during that time; but there is also proof that such switching tissues did not cover all of the ordinary uses of such an engine, but simply outside work-outside of the central yard proper. I have said already that the proof is that there is no record or proof available to show what other uses may have been made of this engine. And there is proof that the engine on such shift was used always to make up a certain regular local freight train. Even if the switching tissues indicate that this engine was used in interstate commerce during this shift, they, as I read them, do not permit the inference that such use was made at the beginning of the shift. Indeed, some of the tissue records seem to refer to a use made some hours after midnight. There is no presumption to aid the plaintiff, and as her proof, as I read it, does not warrant the conclusion that either the exclusive use or the initial use of this locomotive engine on this occasion was in interstate commerce, I think that there must be a new trial. I suggest that, when such a question as the one now discussed is presented, it would be well for the learned court, in case the proof justifies a submission to the jury of the question of the character of the work, to direct the attention of the jury specifically to that issue.

I advise that the judgment and order be reversed, and that a new trial be granted; costs to abide the event. All concur.

FISHMAN v. BAUMSTEIN.

(Supreme Court, Appellate Term, First Department. December 4, 1914.) PLEADING (237*)-AMENDMENTS TO CONFORM TO PROOF WHEN ALLOWED. The variance between the complaint, alleging that defendant agreed to endeavor to sell plaintiff's jewelry in pawn and to pay plaintiff a specified sum on a sale, and that defendant sold the jewelry, but failed to pay the sum, and the proof of a cause of action for the price of the pawn tickets on an unconditional sale, or a cause of action on a conditional sale of the jewelry, depending on defendant's satisfaction with it, was so material that it was error to permit at the close of plaintiff's case an amendment to the complaint to conform to the proof.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 603-619; Dec. Dig. § 237.*]

Seabury, J., dissenting.

Appeal from City Court of New York, Trial Term.
Action by Isaac Fishman against William Baumstein.

From a

judgment for plaintiff, rendered by the City Court of the City of New York, defendant appeals. Reversed, and new trial ordered.

Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ..

Alexander A. Mayper, of New York City, for appellant.

Bogart & Bogart, of New York City (John Bogart and Isidore Weckstein, both of New York City, of counsel), for respondent.

COHALAN, J. The action was brought on an alleged agreement for the sale of certain jewelry, the same to be consummated on the For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

happening of a certain contingency. Plaintiff's assignor, Hyman Jacknowitz, in the month of November, 1913, owned certain pawn tickets for valuable diamond jewelry, then held in pawn. The complaint alleged that the defendant agreed that he would endeavor to sell the jewelry, and in consideration of the plaintiff's assignor giving him the pawn tickets he further promised and agreed to pay the plaintiff's assignor upon the sale the sum of $750; that plaintiff's assignor delivered the pawn tickets; that the defendant sold the jewelry, but, contrary to the agreement, he failed to pay the plaintiff the $750. The answer admits that plaintiff's assignor had certain pawn tickets, and that they were delivered to the defendant. A separate defense was set up, wherein it was alleged that the pawn tickets had been sold to the defendant, for which payment had been made.

On the trial the plaintiff abandoned his cause of action as claimed in his complaint, and sought to prove two different and inconsistent causes of action. He testified, first, to a cause of action for the price of the pawn tickets, which made the transaction as unconditioned sale; and, secondly, his testimony showed that his cause of action was upon a conditional sale of the jewelry, depending upon the defendant's satisfaction with it. It was apparent from the pleadings that the sale was based upon a condition precedent, and there was no effort to prove that cause of action. At the end of the plaintiff's testimony the defendant moved that his testimony be stricken out, on the ground. that the facts testified to were not pleaded. This motion was denied, and an exception was taken thereto. There was no application made. or pending at that time to amend the complaint. At the end of the plaintiff's case the plaintiff moved to amend the complaint to conform to the proof, which motion was granted.

In my view, there was such material variance between the pleadings and the proof that this action on the part of the court constituted error. Hamilton v. Mendham, 129 N. Y. Supp. 53. In that case the court said:

"The court at Trial Term has not the power to allow an amendment, which sets up a new cause of action, or substantially changes the one pleaded. Thilemann v. Mayer, 71 App. Div. 595 [76 N. Y. Supp. 132]; Abbott v. Meinken, 48 App. Div. 109 [62 N. Y. Supp. 660]."

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

BIJUR, J., concurs. SEABURY, J., dissents.

(164 App. Div. 656)

LANDY v. GOETZ et al. (No. 278/113.)

(Supreme Court, Appellate Division, Third Department. November 25, 1914.) WITNESSES (§ 275*)-CROSS-EXAMINATION OF PARTY.

Plaintiff testified that, while tearing down a wall, he heard defendant direct other workmen to clean all the rubbish off the floor and posts, and that in obedience to that order such workmen removed the posts supporting the timbers upon which he was standing. Held that, as plaintiff

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