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App. Div.]

SECOND DEPARTMENT, FEBRUARY TERM, 1899.

man.

The special reason for putting this clause in the contract was that if he failed to manage the store and direct the business successfully he could take to the road and sell goods for the balance of the term, upon the same terms as to salary and compensation.

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It must have been Mr. Runyon who suggested that the occasion might arise when it would be found out that he was not satisfactory to us in charge of this department."

This testimony seems to us conclusive as to the proper interpretation of the contract and the one to which the defendants gave practical construction, and it is in accordance with our own views, independently of the verdict. It would seem by this testimony that the defendants did not in fact absolutely and solely rely, as they now claim to have done, upon the plaintiff's statements of his capacity, and that they were not entirely satisfied upon the question, but preferred to hold that question in abeyance until they could determine by the actual trial of the plaintiff's methods whether he was or was not able to fill to their satisfaction the position of manager; and if they found he was not competent, they expected to reduce him to the inferior position of salesman. This seems to negative both the allegations of the answer and the defendants' contention on this appeal.

*

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Bearing in mind the undisputed fact that the plaintiff was at the time in the employ of an established firm, which was not likely to immediately terminate his engagement, it is reasonable to suppose that he was unwilling to break that engagement in order to take another position without assurance of its permanency. The contract must be construed to mean that the plaintiff was to be engaged for the whole period at the specified salary, the defendants to have the option, if for any reason, or even without reason, they saw fit to change his duties from the "charge of the sales department" to “at the end of March, 1896, a position as salesman *". But this was to affect neither the plaintiff's length of term nor the amount of his salary and commission. The plaintiff might be, and might be considered by the defendants, incompetent "to take charge of" the defendants' business, but it was not error to refuse to charge that if such was the fact the defendants "could then discharge him without regard to the proviso in the contract," for he might be incompetent for the position of manager and yet not incompetent to

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SECOND DEPARTMENT, FEBRUARY TERM, 1899.

[Vol. 38. discharge the duties of salesman mentioned in the proviso. The request was too broad as it did not include the right of discharge for incompetency for the position of salesman.

* * *

The second request also was not specific enough. It was "that if he was incompetent for the first year the defendants had the right to discharge him." This clearly related to incompetency in the position of manager, and the court assented to the proposition and called the attention of counsel to the fact that there was no evidence in the case of incompetency, otherwise than under the reason which Mr. Wadsworth gave the plaintiff for his discharge. The testimony as to this was: "Q. Why did you discharge Mr. Runyon at the end of the year? A. I considered Mr. Runyon - Q. I don't care about what you considered. Why did you discharge him? By the Court: Q. Did you state to him the reasons of his discharge? A. Yes, sir. By Mr. Adams: I gave as reasons because he was not able to direct our business and select ideas for goods and combinations suitable for our line of goods. * * * One of the reasons why we discharged Mr. Runyon was because he was unable to instruct us as to what class of goods to make; that was the principal General incompetency to manage the store was a subsidiary reason; we did express that to him; that general incompetency was evinced or shown by the management of the help around the store — lack of good management; I can't remember just now what he did do, or omit to do, which showed a lack of ability to manage the store; the principal thing I can remember is inability to instruct us as to what class of goods to make. It is not the only thing I can remember. I remember when we would sell goods he would hand them out in a slipshod way that would impress the customer unfavorably."

reason.

It is true that if in fact the plaintiff was competent for neither of the positions named in the contract the defendants could have discharged him without assigning reasons, but the request of counsel did not cover that theory. This is emphasized by the fact that during the first year, referred to in the request, the plaintiff was continued in the position of manager, and that he was not at any time reduced to the position of salesman.

In addition to this the court, on the request of the defendants' counsel, charged that it was the implied condition of the contract

App. Div.] SECOND DEPARTMENT, FEBRUARY TERM, 1899.

that the plaintiff was competent and had the requisite skill and experience in and knowledge of the business of his employers to properly fill the position for which he was hired.

We have carefully examined the exceptions in respect to the evidence and find no error which justifies a reversal. The judgment must be affirmed.

All concurred, except BARTLETT, J., absent.
Judgment and order affirmed, with costs.

HENRY GUCKER, Respondent, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY and THE MANHATTAN RAILWAY COMPANY,

Appellants.

Eminent domain — damages to an abutting owner from an elevated railroad — when a devisee and residuary legatee of such owner is not entitled to damages accruing before the latter's death.

A devisee of property abutting upon an elevated railroad is not entitled, in his capacity as such, to recover rental damages accruing during the lifetime of his testatrix, as, upon the latter's death, the right of action for such damages passed to her executor.

The fact that the devisee is the executor of his testatrix and the residuary legatee under her will, does not alter the situation, as the right to recover such damages will not vest in the devisee personally until after he has accounted for his administration and been discharged from his trust.

APPEAL by the defendants, The Metropolitan Elevated Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of November, 1897, upon the decision of the court rendered after a trial at the New York Special Term. This appeal was transferred from the first department to the second department.

Arthur O. Townsend [Julien T. Davies with him on the brief], for the appellants.

Edwin M. Felt, for the respondent.

SECOND DEPARTMENT, FEBRUARY TERM, 1899.

[Vol. 38.

PER CURIAM:

This is the usual abutter's action for damages occasioned by the construction and operation of an elevated railroad. While we might have differed from the learned trial judge in his conclusion as to the amount of the damages inflicted on the plaintiff's property, we cannot say that his findings were so clearly against the weight of the evidence as to justify this court, under the well-settled rules, in interfering with the judgment. But there has been committed a plain error of law. The plaintiff's title accrued by devise from his mother, who died on the 28th day of March, 1889. He has been awarded damages for depreciation of the rental value of the premises from the 28th day of October, 1885, to the date of the trial of the action. The award is for a gross sum, and there is no finding of an annual depreciation or of the depreciations occurring during the several years. The plaintiff, by the devise, acquired no title to the damages to the rental value of the property during the life of his mother. This, on her death, went to her executor. The fact that the plaintiff is the executor of his mother and her residuary legatee does not vest title to the damages in the plaintiff personally until after he has accounted for his administration and been discharged from his trust. (Griswold v. The Metropolitan Elevated Ry. Co., 122 N. Y. 102.) As gross sum only is awarded for damages to the rental value, we cannot apportion those damages pro rata according to the time that the plaintiff has been the owner of the premises. We must, therefore, reverse the judgment and grant a new trial, unless the plaintiff elects to relinquish all recovery in this action for injuries to the rental value. We hardly anticipate that the plaintiff will be willing to adopt this course. However, if he should do so, we will modify our judgment accordingly.

All concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.

App. Div.]

SECOND DEPARTMENT, FEBRUARY TERM, 1899.

CAROLINE FALKE, Respondent, v. THE THIRD AVENUE RAILROAD
COMPANY, Appellant, Impleaded with THE SECOND AVENUE RAIL-
ROAD COMPANY.

Negligence-collision between two street railroad cars-presumption of negligence arising therefrom.

Where a street car passenger is injured in a collision between a car in which he is riding and the car of another company, which occurs at a point where the tracks of the two companies intersect each other at right angles, and an action is brought against both the companies to recover damages for the injuries thus sustained, a charge that the mere happening of the accident raises a presumption of negligence upon the part of each of the defendants, which it was incum. bent upon them to rebut, is erroneous as to the company in whose car the plaintiff was not riding.

A subsequent charge of the court that the mere fact that the car of the latter company struck the blow did not establish negligence on the part of that company, does not cure the error, where it appears that the court, in addition to charging the erroneous proposition referred to, refused two requests to charge embodying the correct rule.

APPEAL by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of March, 1898, upon the verdict of a jury for $9,000, as modified by an order entered in said clerk's office on the 22d day of April, 1898, and also from an order entered in said clerk's office on the 7th day of April, 1898, denying said defendant's motion for a new trial made upon the minutes.

This appeal was transferred from the first department to the second department.

Herbert R. Limburger [Alfred Lauterbach with him on the brief], for the appellant.

Edward C. James [Julius Lehmann with him on the brief], for the respondent.

CULLEN, J.:

This action was brought to recover damages for personal injuries sustained through a collision between a Second avenue horse car, on APP. DIV.-VOL. XXXVIII. 7

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38 162a 385

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