that the lines and grades for such work be given by the engineer, and that the work must be made to conform to them; that by motion duly made and carried at a meeting of the board of trustees of the village the contract for paving pursuant to such specifications was awarded to said T. F. Grattan Company; that Charles E. Hicks was the engineer who drew and prepared the plans for the paving of Leonard street, and who established the lines and grades for paving to guide the contractor, and that he was the village engineer of said village at the time such work was performed; that said Charles E. Hicks, as such engineer, gave the contractor the grade for the pavement; that the contractor, the T. F. Grattan Company, conformed the work of paving to the lines and grades given by said engineer; that said Charles E. Hicks was paid by the village of Mechanicville for his services in furnishing the lines and grades for the pavement of said Leonard street; that the village of Mechanicville accepted the work done by T. F. Grattan Company; and that the change of grade injuriously affected the premises of petitioners. The foregoing facts, all of which were found by the referee, abundantly establish the liability of the village for whatever damages were occasioned to the petitioners' property by reason of the change of grade.

It

It is true that the referee also found that no resolution or ordinance was passed by the board of trustees directing the change, and that such change was not made by the village. These findings are clearly inconsistent with the other findings above mentioned. was apparently considered by the referee that, because no formal resolution or ordinance was adopted by the board of trustees, the village could not be made responsible. But the trustees at a meeting thereof by resolution awarded the contract for changing and grading the street pursuant to certain specifications, which expressly provided that the village engineer should give the lines and grades for the work and that the work must conform thereto. What was done by the trustees at their meeting in awarding the contract was equivalent to a formal resolution or ordinance directing the grade to be changed, and what was done by the engineer was pursuant to authority expressly conferred upon him by the Board of Trustees. The change of grade was clearly authorized by the village..

The judgment should be reversed, with costs, the report of the referee set aside, and the proceeding remitted to the Special Term. All concur.

(97 Misc. Rep. 660)

BLOOMINGDALE et al. v. McKEE.

(Supreme Court, Appellate Term, First Department. December 29, 1916.) ALTERATION OF INSTRUMENTS 7, 12-EVIDENCE-EFFECT.

Where a chattel mortgage was delivered to plaintiff, to take effect when a piano had been selected and delivered to defendant, in which the number of the piano was necessarily left vacant, as the parties did not know what particular piano would be covered by the mortgage, the filling in of the number by the plaintiff after delivery merely made the instruFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

ment conform to the intention of the parties, and completed the description of the article covered by the mortgage, and was either an authorized or an immaterial alteration, not invalidating the mortgage.

[Ed. Note.-For other cases, see Alteration of Instruments, Cent. Dig. $$ 34-39, 77-92; Dec. Dig. 7, 12.]

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

Action by Samuel J. Bloomingdale and others against John McKee. From a judgment dismissing the complaint at the close of the plaintiffs' case, plaintiffs appeal. Judgment reversed, and new trial ordered.

Argued November term, 1916, before LEHMAN, WHITAKER, and FINCH, JJ.

C. Bertram Plante, of New York City, for appellants.

Cravath & Henderson, of New York City (Henry E. Chapin and Robert E. McMath, both of New York City, of counsel), for respond

ent.

· LEHMAN, J. The plaintiffs sue upon a chattel mortgage, which they claim was made and delivered by the defendant. The plaintiffs produced testimony to show that the defendant agreed to buy a piano from them at an agreed price. Before he had selected the particular piano which was to be delivered to him, he signed the chattel mortgage and handed it to the plaintiff's representative. The chattel mortgage naturally could not take effect until a piano had been actually delivered to the defendant and title passed to him. The mortgage described the piano which the defendant agreed to buy, but left blank the number of the piano, since no particular piano had been selected or delivered. The defendant thereafter selected a piano, and it was delivered to him. The plaintiffs then filled in the blank left in the chattel mortgage with the number of the piano so selected and delivered. At the close of the plaintiffs' case the trial justice dismissed the complaint, on the ground that the plaintiffs had materially altered the mortgage after delivery.

So far as the plaintiffs' testimony shows, there is no question but that the mortgage was delivered to take effect after a piano had been selected and delivered, and this contingency has now occurred. The number of the piano was necessarily left blank when the mortgage was signed, because the parties did not know what particular piano would eventually be covered by the mortgage. In leaving the number blank, the parties must have contemplated either that the plaintiffs should have power to fill in the blank and thus complete the instrument, or that the blank was immaterial, and that parol testimony could be given to show the number of the piano actually selected and delivered thereafter. No other hypothesis for the signing and conditional delivery of the mortgage in blank is possible.

The plaintiffs, according to their testimony, filled in the number of the piano actually selected and delivered. In so doing they merely made the instrument conform to the intention of the parties and completed the description of the article covered by the chattel mortgage.

They did not, in the slightest degree, alter the obligation which the defendant had assumed under the instrument as signed by him. Their act constituted an alteration of the physical instrument, but it was either an authorized or immaterial alteration. An alteration invalidates an instrument only when it is unauthorized and material.

It follows that the judgment should be reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All concur.

PROKOPIAK v. BUFFALO GAS CO.

In re TRAVELERS' INS. CO.

(Supreme Court, Appellate Division, Third Department. December 28, 1916.) 1. MASTER AND SERVANT 417(7)—WORKMEN'S COMPENSATION LAW-FINDINGS OF INDUSTRIAL COMMISSION-REVIEW.

Under the Workmen's Compensation Law (Consol. Laws, c. 67; Laws 1914, c. 41), the Appellate Division of the Supreme Court cannot upset findings of fact made by the State Industrial Commission, if there is any evidence to support them.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. 417(7).]

2. MASTER AND SERVANT 398-WORKMEN'S COMPENSATION LAW-NOTICE OF INJURY.

Workmen's Compensation Law, § 18, requiring notice to the employer to give him opportunity to investigate the circumstances of the claim, cannot be nullified by any practice of the Industrial Commission in excusing failures to give notice, irrespective of the merits, as a matter of

course.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 398.]

Kellogg, P. J., dissenting.

Appeal from State Industrial Commission.

Proceeding under the Workmen's Compensation Law by Frank Prokopiak for compensation for personal injuries, opposed by the Buffalo Gas Company, the employer, and the Travelers' Insurance Company, the insurer. From an award by the State Industrial Commission, the employer and insurer appeal. Award reversed, and claim remitted to the Commission for further consideration.

Argued before KELLOGG, P. J., and LYON, HOWARD, WOODWARD, and COCHRANE, JJ.

Amos H. Stephens, of New York City (E. Clyde Sherwood and William B. Davis, both of New York City, of counsel), for appellants. Frank S. Burzynsky, of Buffalo, for claimant.

E. E. Woodbury, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., and Robert W. Bonynge, of New York City, of counsel), for respondent.

HOWARD, J. The claimant has been awarded compensation by the State Industrial Commission, and the only question for our consideration is the failure of the injured employé to give the statutory notice.

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

The accident occurred July 15 or 16, 1914. A lump of coal fell from a buggy, which is a vehicle for conveying coal, and struck the claimant on the leg. This occasioned the injury. The claimant did not work any more that day, nor for four or five days, but returned to work after this short interim, and continued, with one interruption, until August 9, 1915. In October following he was taken to a hospital and his right leg was amputated. Previous to the injury the claimant had been suffering from sarcoma of the bone in the injured leg. The Commission has found that the hurt from the falling piece of coal aggravated the cancerous condition of the leg and rendered amputation necessary.

No written notice, as required by section 18 of the Compensation Law, was given until July 8, 1915, nearly a year after the accident; and no verbal notice, in any wise complying with the requirements of section 18, was ever given. The Commission has, however, found that at the time of the accident the claimant told the appellant's foreman that he had been hurt and did not want to work any more—although he did, in fact, after a few days, work more. The Commission has found as a conclusion of fact that the employer was not prejudiced by the failure of the claimant to give the statutory notice.

[1] We have repeatedly stated that we will not attempt to upset findings of fact made by the Commission, if there be any evidence to support them. The Compensation Law does not permit us to do so. We reiterate that position here. It would be quite possible, however, in this case, for us to point out that there is no evidence to support the finding that the employer was not prejudiced. The injury was not severe at first; a mere trifling hurt, which did not even break the skin, but only left a red spot. After the lapse of three months the leg was amputated, and the bone was found to be diseased-cancerous; and this condition is shown to have existed before the accident. Therefore the amputation was at most only the remote result of the injury. If the employer had been given prompt notice of the accident, it would have been afforded an opportunity to investigate, and perhaps it might have been able to produce medical evidence to the effect that the cancer, which was the disease directly responsible for the amputation, was in no degree produced, aggravated, or accelerated by the apparently insignificant hurt.

[2] But we have concluded to reverse the award, not because this finding is unsupported by the evidence, but because we feel that the Commission has fallen into the habit of excusing these failures to give notice, irrespective of the merits of the case, as a matter of In Matter of Bloomfield v. November, 114 N. E. 805, just handed down by the Court of Appeals, it was said:

"This requirement ought not to be treated as a mere formality, or be dispensed with as a matter of course, whenever there has been a failure to serve such notice."

The notice which the law requires has a substantial, definite purpose, not, as the Attorney General argues, "mainly for the purpose of starting a proceeding," but, as the Court of Appeals in the Bloomfield Case has stated, "so as to give an employer the opportunity to

162 N.Y.S.-19

investigate the circumstances of the claim." This being the clear purpose of the notice required by section 18, the court cannot permit the requirements of that section to be nullified and thrown into disuse by the Commission.

In view of the attitude of the Court of Appeals so recently assumed in the Bloomfield Case, to which we have just referred, and from which we have quoted, we consider it unnecessary to indulge in further comment.

The award should be reversed, and the claim remitted to the Commission for further consideration. All concur, except KELLOGG. P. J., who dissents.

ISAACSON v. CREAN.

(Supreme Court, Appellate Term, First Department.

JUDGMENT 250-CONFORMITY TO PLEADINGS.

December 29, 1916.)

The complaint being on the theory of the contract sued on being, as by its terms it was, a contract of sale by defendant to plaintiff, at 111⁄21⁄2 cents per pound, of goods to be delivered to a third person at 122 cents per pound, defendant to pay to plaintiff 1 cent per pound on receipt of the 122 cents per pound from the third person, which defendant never received, because he did not deliver the goods, and general damages alone being alleged, and none proved, the market value of the goods not being shown, judgment for plaintiff as for commissions, on the theory that he acted as broker in a sale to the third person by defendant, cannot be sustained.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. 250.]

Appeal from City Court of New York, Trial Term.

Action by Louis Isaacson against Thomas F. Crean. From a judgment on a verdict directed for plaintiff, and from an order denying motion for new trial, defendant appeals. Reversed, and new trial ordered.

Argued November term, 1916, before LEHMAN, WHITAKER, and FINCH, JJ.

Alfred F. Upson, of Brooklyn, for appellant.

Edward Cahn, of New York City, for respondent.

FINCH, J. Action on a written contract (copy annexed to the complaint). The contract itself is somewhat ambiguous, but provides for the sale by the defendant to the plaintiff of 25 tons of logwood chips at 112 cents a pound; delivery to be made to a third party (the Ideal Cooney Dressing & Dyeing Company) at 122 cents a pound. It further provides that defendant would pay plaintiff 1 cent a pound, plus 2 per cent. on 112 cents a pound as his "commission," as soon as the defendant received the 122 cents a pound from the Ideal Cooney Dressing & Dyeing Company. The complaint is drawn on the theory that this was a contract of sale to the plaintiff, and not one for the payment of a commission to him as agent. Plaintiff also treated the contract as one of sale to him before the beginning of the action,

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