Rensselaer County NyArchives Court.....Dean, John Vs. William Woodward Jr 1889
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Source: Reports Of Cases - New York
Written: 1889

Third Department, May Term, 1889.

JOHN DEAN, Respondent, v. WILLIAM WOODWARD, Jr., and JAMES STILLMAN, Appellants.

Broker employed to sell merchandise — presumption as to the period of his 
employment.

Where a broker, engaged in procuring sales of merchandise, enters upon such 
employment without any definite term thereof being fixed, and continues such 
service through a series of years upon substantially the same terms of 
compensation as are first agreed upon, the parties, at the end of each year, 
settling their accounts in regard to such services, and the employer paying at 
such time the compensation found to be due therefor, and at the beginning of 
each year furnishing samples of the merchandise to be sold, and the broker 
procuring purchasers thereof, a decision of the trial court that the original 
contract of hiring was for one year, and was thereafter renewed from year to 
year upon the same terms by mutual consent, will not be disturbed on appeal. 
Under such circumstances there exists no right on the part of the employer, 
should the trial court hold that there was an employment from year to year, to 
terminate the same by notice in the middle of the season of such employment; the 
same can only be terminated at the end of the year.

Appeal by the defendants from a judgment of the Supreme Court, entered, upon the 
report of a referee, in the office of the clerk of the county of Rensselaer on 
the 4th day of September, 1888, in favor of the plaintiff for $464.65.

Henry A. King, for the appellants.

James Lansing, for the respondent.

Learned, P. J.:

About September 1, 1883, the plaintiff agreed to sell cotton for defendants as a 
broker. His compensation was to be fifty cents per bale for all sales he should 
make, and twenty-five cents for all trade that he introduced where manufacturers 
should send orders direct to defendants. It does not appear that his employment 
was for any specified time; nor is it expressly stated for how long a time he 
was to have the benefit of the twenty-five cents per bale for the trade 
introduced by him. But he says that he settled "for that year" on that 
agreement; and he does not seem to claim that, on that agreement solely, his 
right to the twenty-five cents per bale lasted beyond the year.

On August 22, 1884, the defendants wrote the plaintiff a letter in which the 
terms of brokerage to be done by plaintiff are stated in substantially the way 
above set forth. The plaintiff states that on these terms he sold for defendants 
during what he calls the cotton year of 1884 and of 1885, and that he settled on 
these terms for the sales of that year. He alleges in his complaint that about 
September 1, 1886, he and they renewed the agreement for another year, and that 
he entered upon its performance. On January 15, 1887, defendants wrote him that 
they must end their arrangement and that thereafter they would allow him 
brokerage only on such sales as he should make for them. In April, July and 
August, 1887, defendants sold to certain customers, cotton amounting to 1,140 
bales. On these sales the plaintiff claims twenty-five cents per bale; and the 
referee has allowed this claim on the ground that sales had been previously made 
to those customers through the efforts of plaintiff. These customers were the 
Shenandoah Mill, Warner, De Forest & Co., The Mount Ida Company, The Vermont 
Mill and Robert Amblett.

If we look at plaintiff's own testimony, we shall find that of these customers 
he made direct sales after August 1, 1886, and before January 15, 1887, to the 
Vermont Mills and the Mount Ida Company. He does not remember any others and he 
does not claim to have sold to any others of these customers, between August 1, 
1886, and January 15, 1887. The referee therefore, in respect to the others of 
these customers, must have allowed the plaintiff to recover on the ground that, 
in years prior to August 1, 1886, the plaintiff had sold to them.

The basis of plaintiff's claim is that his employment in each instance was for 
the year, for what he calls the cotton year; and he states that he settled with 
defendants on the terms aforesaid for the services of the respective years. The 
referee finds that, about September 1, 1886, the contract was renewed for the 
year. Now there is nothing express in the contract showing for how long a time 
the plaintiff was to continue to receive twenty-five cents per bale for cotton 
sold by defendants directly to customers. It is hardly possible that the 
agreement made, for instance, in September, 1883, was that for all time to come 
the defendants should pay the plaintiff twenty-five cents on every bale which 
they should sell to a customer introduced by him. This would be, as said in 
their letter, a royalty for all time. And the plaintiff places no such 
construction on the agreement, otherwise he could not have settled at or about 
the end of the respective years for his services.

The plaintiff then must have claimed that for any sales made by defendants 
directly during the year, for which he was employed by them, to persons whom he 
had, during that year, obtained as customers, he should have his twenty-five 
cents ber bale. When, then, about the 1st of September, 1886, plaintiff applied 
for employment again, he had, as he says, settled for the sales of the year then 
past. The contract then made was a new agreement, and the plaintiff's rights 
depend on that new agreement.

The plaintiff's claim is that, under that agreement then made, he is entitled to 
more compensation than he has received for the work which he has done. He does 
not seek to recover for work which he might have done if he had not been 
discharged. But his claim is that, for the work which he did, he is entitled to 
further compensation, that is to say, for the twenty-five cents a bale for sales 
made directly by the defendants to customers whom he had procured. Plainly, this 
claim must be limited to those customers whom he had procured during that year, 
because the agreement was, as he says, renewed about September 1, 1886. The 
renewal did not imply that he was to be further compensated for customers whom 
he had previously obtained. It implied only that for work done after September 
1, 1886, he should be compensated on the old terms, viz., fifty cents per bale 
for sales made though him; twenty-five cents for sales made directly to 
customers whom he should procure, not to those whom he had previously procured. 
If the latter construction were correct, he would be entitled to the twenty-five 
cents, even though there had been no renewal of the agreement about September 1, 
1886. In this view he can recover only on the bales sold to the Vermont Mill and 
the Mount Ida Company, 200 in all.

Judgment reversed, new trial granted, referee discharged, with costs in this 
court to the defendant, unless the plaintiff shall elect, within twenty days 
after service of copy of this order, to reduce his recovery to fifty dollars, 
and interest from the commencement of this action, and the costs below, in which 
case the judgment, so reduced, is affirmed, without costs in this court.

Landon, J., concurred.

Ingalls, J.:

In August, 1883, a verbal agreement was entered into by the parties hereto, by 
which the plaintiff was employed by the defendants to sell cotton upon the 
following terms: The plaintiff was to receive as his compensation fifty cents 
for every bale of cotton the sale of which should be directly negotiated by him, 
and twenty-five cents for every bale in the sale of which he obtained the 
customer, and the defendants perfected the sale either by direct interview or 
through correspondence with the customer. The agreement did not, in express 
terms, prescribe the length of time the plaintiff's employment should continue; 
nor does it appear that the parties subseqently, by express agreement, created 
any limitation to the time of service.

The plaintiff entered upon such employment on the 1st of September, 1883, and 
was provided with samples of cotton, by the defendants, to enable him to make 
sales. The plaintiff continued in such service during the year, receiving, from 
time to time, money from the defendants as payments for his services, and at the 
expiration of such year the parties settled their accounts, and the plaintiff 
received whatever was his due for the service rendered by him. The relation 
between the parties in regard to such employment by the plaintiff, continued 
from year to year, without any material change either in the terms of their 
agreement or in regard to the manner the business was transacted between them, 
until September 1, 1886, when the plaintiff visited the defendants at their 
place of business and inquired of them in relation to his continuance in their 
service, and as the result of the interview he was furnished by the defendants 
with samples, and resumed his work. The plaintiff states the interview as 
follows:

"I reside in the city of Cohoes at present; my business is cotton and wool 
broker; have been engaged in that business about fifteen years and know 
defendants Woodward & Stillman; they do business in the city of New York; they 
are cotton merchants; I made their acquaintance on or before 1883; I visited 
their place of business about September 1, 1883; I met there Mr. Woodward; I had 
some conversation with him; at my interview with Mr. Woodward I talked with him 
in relation to selling cotton to manufacturers for their account; I said I had 
an outlet where I thought I could place considerable cotton for them, and I told 
him my terms would be fifty cents per bale for all sales of cotton I should make 
for their account; and that all trade that I introduced, when such manufacturers 
should send orders direct to the house, I was to receive twenty-five cents per 
bale; and, also, such trade as was made by Woodward and Stillman, where I had 
introduced customers to the defendants or where Mr. Woodward corresponded with 
customers afterwards; they gave me samples, and I sold through that year; I do 
not recollect the number of bales I sold; we settled for that year by that 
agreement; I visited them at the commencement of the cotton year of 1884, and 
several times during the year, and I got samples during 1884 to 1885; at the 
commencement of cotton year of 1885 I received samples to sell by the same terms 
for the sales of that year; I went there again at the commencement of the cotton 
season of 1886, first of September; I had an interview with Mr. Woodward, and I 
inquired if he had any samples ready; he hesitated for a little while; he 
inquired from one of his clerks, a bookkeeper; he inquired what amount of cotton 
I sold the year prior, and on Mr. Woodward reading the amount he came back and 
in my presence told the parties to forward samples to me; and I received the 
samples and continued the business of 1886 to 1887 upon the same terms. Q. Were 
any or different terms made? A. No, sir; the Shenandoah Cotton Company were 
customers whom I had introduced to them; the Mount Ida Manufacturing Company 
were customers that I had introduced to them, and the Vermont Mills also, and 
Robert Amblett and Warner, De Forest & Co. also, all prior to January 15, 1887.

It is admitted that the defendants were copartners and sold to the Shenandoah 
Cotton Company 500 bales of cotton August 23, 1887, and 300 bales of cotton to 
Warner, De Forest & Co., of Amsterdam, N. Y., February 7 and 8, 1887, and 120 
bales to Warner, De Forest & Co., August 24, 1887, and 180 bales to the Mount 
Ida Company, Troy, on the 3d and 4th days of April, 1887, and twenty bales to 
the Vermont Mills on the 26th day of July, 1887, and twenty bales to Robert 
Amblett, of Little Falls, on the 5th and 27th days of July, 1887. The witness 
further stated: I never received any pay for the sale to either of those 
parties; none of these sales were made direct by me. On the 15th day of January, 
1887, the defendants addressed to the plaintiff the following letter:

"New York, January 15, 1887. Mr. John Dean, Troy, N. Y.:
"Dear Sir. — The season is passing and our sales through you amount to little or 
nothing comparatively. The country which we have allowed you is large, and there 
is a large consumption of cotton therein, and we cannot afford to be longer 
excluded from the trade, and we must end our arrangement and make some other. We 
will only hereafter allow you brokerage on such sales as you may make for us. 
"Yours, very truly,
"WOODWARD & STILLMAN,
"Per B."

The plaintiff made no reply in writing to such letter, but subsequently an 
interview occurred between the parties, as to the purport of which they 
disagreed in their evidence upon the trial; and it was the province of the 
referee to determine whose version of that conversation was most reliable. The 
statement of the plaintiff in relation thereto seems consistent with the claim 
which he makes that his term of service extended to the close of the year, 
September 1, 1887. It will be perceived that the letter did not purport to 
wholly terminate the relation between the parties, but merely to modify the 
agreement, restricting the plaintiff to compensation for direct sales which he 
should subsequently make. At the trial the plaintiff disclaimed any intention of 
seeking compensation for direct sales. And so the referee has found. The 
plaintiff only claimed to recover twenty-five cents per bale upon the 1,140 
bales which the defendants admitted at the trial, as above stated, that they had 
sold as follows: Five hundred bales to the Shenandoah Cotton Company, August 23, 
1887; 300 bales to Warner, De Forest & Co., February 7 and 8, 1887; 120 bales to 
the same firm August 24, 1887; 180 bales to Mount Ida Manufacturing Company on 
the 3d and 4th days of April, 1887; twenty bales to the Vermont Mills on the 
26th day of July, 1887; twenty bales to Robert Amblett, on the 5th and 27th days 
of July, 1887. According to the evidence on the part of the plaintiff, all such 
sales were made by the defendants to parties who had been introduced as 
customers by the plaintiff to the defendants, and he states that he has received 
no compensation from the defendants, based upon such sales, which were made to 
customers whom he had introduced to defendants. The referee, as appears by his 
report, has allowed the plaintiff twenty-five cents for each bale of cotton 
embraced in such sales, and for nothing else. The following facts found by the 
referee:

"IV. That the cotton season or year in defendants' business begins about the 
first of September in one year and ends about the same time in the next.

"V. That about the month of August, 1883, the defendants entered into an 
agreement with the plaintiff, whereby it was provided that the plaintiff should 
travel and sell cotton for defendants to manufacturers from samples to be 
furnished him by defendants, and that said defendants should pay him for such 
services the sum of fifty cents for each bale of cotton, the sale of which 
should be directly negotiated by the plaintiff, and that in all cases where the 
plaintiff should obtain a customer or customers, and subsequent sales should be 
made by defendants to plaintiff's said customers, either by direct interview or 
by correspondence with them, the plaintiff should receive twenty-five cents per 
bale for each bale so sold by defendants to said customers.

VI. That said plaintiff entered upon said employment, having accepted said terms 
and sold cotton for the defendants through that year, and the defendants settled 
with and paid plaintiff for his services rendered during that year in accordance 
with said agreement.

VII. That the plaintiff thereafter continued in the employment of defendants 
from year to year, under said agreements, defendants furnishing samples and 
plaintiff receiving the stipulated compensation for sales made directly and 
indirectly by him. That at the commencement of the cotton season for the years 
1886, 1887, and about September 1, 1886, the plaintiff and defendants had an 
interview at which said contract was renewed for the ensuing cotton season or 
year, and the plaintiff entered upon his employment thereunder. That said 
employment was for and during the year commencing about September 1, 1886, and 
ending September 1, 1887.

VIII. That during the cotton year or season commencing about September 1, 1886, 
and ending September 1, 1887, the defendants sold, either through correspondence 
or personal interview with the parties, cotton, as follows: Shenandoah Cotton 
Company, 500 bales; Warner, De Forest & Co., 2 lots, one of 300 bales, and one 
of 120 bales; to the Mount Ida Manufacturing Company, 180 bales; to the Vermont 
Mills, 20 bales; and to Robert Amblett, 20 bales; aggregating 1,140 bales. That 
each and every of said bales of cotton were sold to parties to whom sales of 
cotton had previously been made by, and through the efforts and negotiations of 
plaintiff, and each of said purchasers were customers furnished or introduced to 
the defendants by the plaintiff. That, under and pursuant to the terms and 
conditions of said contract and agreement between plaintiff and defendants, the 
plaintiff thereupon became entitled to demand and receive of the defendants the 
sum of twenty-five cents for each and every bale so sold to said parties as 
aforesaid, the same amounting in the aggregate to $285. That no part of said sum 
has been paid.

Assuming, therefore, that the facts and the conclusion therefrom are correctly 
found by the referee, it remains to be determined whether his conclusion in 
regard to the law applicable thereto is defensible. The referee has found, as 
conclusions of law, the following:

I. That there was a valid and subsisting agreement between the defendants and 
the plaintiff for the employment of the plaintiff during the year commencing 
September 1, 1886, and ending September 1, 1887; that said employment was 
entered upon and was in all respects performed by the plaintiff upon his part.

II. That, under and by virtue of said contract, the defendants became bound to 
pay the plaintiff twenty-five cents for each bale of cotton which they might 
sell through their own correspondence or by personal interview during that year 
to persons who were, or theretofore had been, introduced to them as customers by 
the efforts of plaintiff.

III. That the plaintiff should have judgment against the defendants for the sale 
of said 1,140 bales of cotton, at twenty-five cents per bale, amounting to the 
sum of $285, together with interest thereon from September 1, 1887, amounting, 
at the date of this report, to seventeen dollars and ten cents, making a total 
of $302.10, besides the cost of this action.

The counsel for the plaintiff contends that, although the original agreement 
omitted to specify the length of time the plaintiff's employment was to 
continue, yet, considering the nature of the business and the manner it was 
conducted, and the situation of the parties, that the term of service should be 
considered in legal effect one year, and that the continuance from year to year, 
for a series of years, without any material change in the terms of the 
agreement, should be regarded as a contract of hiring and service from year to 
year; and that the relation thus created could only be terminated by either 
party by a notice, taking effect at the close of the current year. That as such 
year commenced on the 1st day of September, 1886, it could not be terminated by 
the letter addressed to the plaintiff January 15, 1887, so as to deprive the 
plaintiff of compensation, based upon the sales made by the defendants previous 
to September 1, 1887, to customers who had been introduced by plaintiff. Whether 
an agreement, like the one in question, which contains no express limit as to 
the duration of the term of employment, can be regarded in law as a hiring for a 
year, presents a question of no little difficulty, owing to the want of 
uniformity in the decisions upon the subject by the courts in this country and 
in England, and in the views expressed by elementary writers. In Smith's 
Mercantile Law (Am. ed.), at page 426, the author states: "If there be no 
specified agreement, but the hiring is a general one, without mentioning time, 
it is considered to be for a year certain. If the servant continue in employment 
beyond that year, a contract for a second year is implied, and so on." At page 
427 he says: "It follows, from what is above stated, that if the master dismiss 
his servant, hired generally, without cause, the latter will have a right to 
wages up to the expiration of the year." In Smith's Law of Master and Servant 
(Am. ed.), page 75, the rule is thus stated: "Where no time is limited, either 
expressly or by implication, for the duration of the contract of hiring and 
service, the hiring is considered as a general hiring, and in point of law a 
hiring for a year. This rule was applicable to all contracts of hiring and 
service, whether written or unwritten, whether express or implied, and whatever 
be the nature of the service." In Beeston v. Collyer (4 Bing., 309; 13 Eng. Com. 
Law, 518), Best, Ch. J., says: "If a master hire a servant without mention of 
time, that is a general hiring for a year, and if the parties go on four, five 
or six years, a jury would he warranted in presuming a contract for a year in 
the first instance, and so on for each succeeding year as long as it should 
please the parties; such a contract being implied from the circumstances, and 
not expressed, a writing is not necessary to authenticate it." In Williams v. 
Byrne (7 Adol. & Ell., 177; 34 Eng. Com. Law, 115) Littledale, J., remarks: "It 
appears not to be disputed that the parties were, at any rate, bound to the end 
of the first year. I think their position was the same in all the subsequent 
years. Therefore, when any year had commenced, the service was to run on to the 
end. And this way to continue as long as the parties pleased, that is, till one 
of them determined the engagement by reasonable notice expiring at the end of 
the current year." In Faucett v. Cash (5 Barn & Adol., 908; 27 Eng. Com. Law, 
382) Denmast Ch. J., says: "The general rule is that if a master hire a servant 
without mentioning the time, that is a general hiring, and in point of law a 
hiring for a year." In Chitty on Contracts (9th Am. ed.), 589, the author 
says: "With regard, however, to cases other than domestic or menial servants, 
there is no inflexible rule of law that a general or indefinite hiring is a 
hiring for one year, and the question must, therefore, be considered in 
connection with the circumstances of each particular case. But it appears that 
if there be no evidence to the contrary, the general engagement of a clerk will 
be deemed to be a yearly hiring." In Baxter v. Nurse (46 Eng. Com. Law, 934) 
Tindall, Ch. J., remarks: "Upon the first ground on which the present motion was 
made, namely, that the jury ought to have been directed, as upon a general rule 
of law, that the hiring in this case must be taken to have been by the year, it 
appears to me that the principle on which contracts of this nature, which have 
been entered into without any definite arrangement as to time, are held to be 
contracts for a year, is by no means an inflexible rule, but that is a 
presumption to be raised from contracts of the same kind; and that the judge at 
a trial is not authorized to lay down any general rule upon the subject." In 
Wood's Law of Master and Servant (page 283) the author says: "With us, the rule 
is inflexible that a general or indefinite hiring is, prima facie, a hiring at 
will; and if the servant seeks to make it out a yearly hiring, the burden is 
upon him to establish it by proof." Story on Contracts (vol. 2, § 962) contains 
the following: The author, after stating the rule as to domestic and menial 
servants in regard to terminating their employment, pursuant to custom by notice 
of thirty days, remarks: "But this condition is only applicable in cases of 
menial or domestic services, and does not apply to trade servants, servants in 
husbandry, clerks, overseers or governesses, and servants in similar stations. 
In such cases the contract cannot be determined until the end of the year." 
(Sec. 963.) "But contracts with other than domestic and menial servants, when 
the service is from year to year, notice must be given so as to expire with the 
end of the year, the contract not being determinable during the year," In Greer 
v. The People's Telegraph and Telephone Company (50 Superior Ct., 517), which 
was a hiring for one year, from September 1, 1881, and the servant remained in 
service until the close of the year, and continued on until October 31, 1882, 
when he was discharged without his consent, Sedgwick, Ch. J., remarks: "On these 
facts the law is, that the remaining in the service for any time by the consent 
of the employer, renews the first contract for one year, or, if there had been 
no hiring in the first place expressly for one year, the law implies a contract 
for service for that time; and, also, if there be a continuance of services 
after that time, a renewal for one year." It seems to be established, by the 
decisions of the courts of this State, that when, by the contract of hiring, the 
time is expressly stated to be for one year, that a holding over will be 
regarded in law as hiring for another year, and so on from year to year; and in 
such case the employment can only be determined by a proper notice to take 
effect at the end of the current year. In Wallace v. Devlin (36 Hun, 275); Vail 
v. Jersey L. F. Manufacturing Company (32 Barb., 564) Allen, J., says: "A 
continuance in the employment with the consent of the defendants, after the 
expiration of the current year, was equivalent to a new hiring upon the same 
terms." Extracting from the foregoing decisions the legal doctrine applicable to 
this case, we conclude that it may be safely and properly held that, regarding 
the nature of the service which the plaintiff undertook to render, and the terms 
of his employment, and the fact that such service was continued through a series 
of years upon substantially the same terms, and that at the end of each year the 
parties settled their accounts in regard to such hiring and service, and payment 
was made to the plaintiff of any balance which was then due him, and that the 
plaintiff was furnished samples of cotton and allowed each year to resume the 
work; and particularly that, on the 1st of September, 1886, the plaintiff 
visited the defendants, and an interview occurred between them at the 
defendants' place of business in regard to the continuance of the plaintiff in 
defendants' service, and that the plaintiff was again provided with samples of 
cotton by the defendants and allowed to enter upon the same service, we conclude 
that it became, at least, a question of fact for the referee to determine 
whether the parties did not understand and intend that the original contract of 
hiring was for one year, and that thereafter the same was renewed from year to 
year upon the same terms by mutual consent; and especially whether what occurred 
between them on the 1st of September, 1886, did not amount to a recognition of 
such a relation, and to a renewal of the contract of hiring and service upon the 
same terms for another year ending on the 1st of September, 1887. In Tatterson 
v. Suffolk Manufacturing Company (106 Mass., 56) Wells, J., at page 60, 
remarks: "They did enter into some agreement by the mere fact of continuing 
their relations of employment and service. It was a relation of contract. The 
terms of the contract, in the absence of express words, are to be ascertained, 
not alone by what occurred within the year, but also from all that had 
transpired previously. From all the evidence the jury must determine, as an 
inference of fact, what was the understanding with which the parties entered 
upon the second year of employment and service; that, when found, constitutes 
their contract." (See, also, Beeston v. Collyer, supra.) In this case the 
referee has found, as a fact, the following: "That at the commencement of the 
cotton season for the years 1886, 1887, and about September 1, 1886, the 
plaintiff and defendants had an interview at which said contract was renewed for 
the ensuing cotton season or year, and that the plaintiff entered upon his 
employment thereunder; that said employment was for and during the year 
commencing about September 1, 1886, and ending September 1, 1887. We think the 
evidence sustains such finding of fact. Upon such finding the referee based a 
legal conclusion that the letter of January 15, 1887, did not have the effect to 
cancel the contract or to terminate the plaintiff's employment. In such 
determination we think he committed no error. In regard to the amount which the 
plaintiff should recover, the evidence does not furnish a very satisfactory 
basis upon which to estimate the same. The counsel for the plaintiff insists 
that the action was tried upon a conceded theory, that in the event that the 
plaintiff established a legal cause of action, he should be entitled to recover 
twenty-five cents upon 1,140 bales of cotton which the defendants admitted that 
they sold to certain customers named, and who, as the plaintiff testified, he 
introduced to the defendants, and upon which sale he had received no 
compensation. It is quite possible that the referee may have adopted and acted 
upon such theory in determining the amount which the plaintiff was entitled to 
recover. It is unfortunate that the facts were not more fully developed at the 
trial upon that branch of the case instead of being left to be inferred, so that 
this court could discover from the evidence a satisfactory basis upon which to 
sustain the conclusion of the referee in regard to the amount which he awarded 
to the plaintiff as his damages. From all the facts disclosed and the legal 
principles which we deem applicable to them, we conclude that the plaintiff's 
recovery must be restricted to the two sales of cotton, amounting to 200 bales, 
which were made by the defendants to customers who the plaintiff testified he 
had introduced to the defendants subsequent to the letter of January 15, 1887. A 
computation at twenty-five cents per bale, made upon the 200 bales amounts to 
fifty dollars, which sum the plaintiff is entitled to recover, with the interest 
thereon, from the time of the commencement of the action. The plaintiff should 
be allowed to stipulate to accept such amounts, with costs of the action, except 
in this court, and avoid the delay and expense of another trial. But in case the 
plaintiff declines so to stipulate, a new trial should be directed before 
another referee, with costs to abide the event of the action.

Judgment reversed, new trial granted, referee discharged, with costs in this 
court to the defendants, unless plaintiff shall elect, within twenty days after 
service of a copy of this order, to reduce his recovery to fifty dollars, and 
interest from the commencement, of the action and the costs below, in which case 
the judgment so reduced is affirmed, without costs in this court.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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