the performance of the duties imposed upon him the defendant was liable; a ground of liability which would be inconsistent with that alleged in the complaint. Under this complaint the liability of the defendant can be predicated only upon an express contract between Jantzen and the defendant by which the defendant undertook to deliver the package. In Howard v. Ludwig, supra, it is stated in the prevailing opinion:

"If, as claimed by the defendants, the contract was that the express company was to deliver all of the goods sold by the defendants on Staten Island each week for thirty dollars, and the company was to be responsible for the goods, if lost, then unquestionably the defendants would not be liable in this action. But if, instead thereof, the arrangement was that the defendant should pay thirty dollars a week for the team, truck, and driver, and they took charge of the delivery of the goods, sending the team to Staten Island or around New York making deliveries, as the exigency of their business required, then the relation of master and servant was created between them and the driver, and they became liable for his negligent acts."

The dissent was based upon the fact that it was established that the defendants did not employ the driver, did not pay him, and could not discharge him; that the express company

-"had the right to discharge the driver at will, to send him, or some one else in his place, on any day; for the express company, and not the defendants, were responsible for losses which occurred in the delivery of the goods, just as other express companies are liable in the absence of special agreement. So the right of selection of employés necessarily rested with the express company, and was exercised by them. With such facts established by undisputed evidence given by disinterested witnesses, there was no possible basis upon which the jury could rest a finding that this driver was the servant of these defendants, and hence there was no question which the court could submit to the jury, and an attempt to submit such a question was without legal authority."

Baldwin v. Abraham, 57 App. Div. 67, 67 N. Y. Supp. 1079, affirmed on appeal, 171 N. Y. 677, 64 N. E. 1118, discusses the same question. There the defendants engaged six two-horse vans for ten days at the rate of eight dollars per day per van. The owners of the vans agreed to furnish the defendants with the six two-horse vans, driver, and helper, to be responsible for the proper collection and prompt return of all C. O. D. moneys, and for the safe delivery of all goods intrusted to their charge. Under this contract the vans thus hired were engaged in delivering goods from the defendant's store to the purchasers, and it was held that the driver of one of these vans was an employé of the defendants, who was responsible for his negligence. So that in this case it was held that the employé who caused the accident was the servant of the employer, which would be equal to holding that this telegraph boy was the servant of the defendant, and this case was affirmed by the Court of Appeals at the same term that decided the case of Howard v. Ludwig, supra; the memorandum of the court being, "Judgment affirmed, with costs, on the authority of Howard v. Ludwig: no opinion."

It might be that as to third parties this messenger boy would be the servant of both or either, but that could have no relation to the question whether, as between the general employer who furnished the servant and the person who engaged the messenger for a particular work,

and 132 New York State Reporter

the general employer was responsible for the misfeasance or malfeasance of the messenger. Nor was the case submitted to the jury upon any such theory. The question that was submitted to them was whether or not there was a special agreement by the defendant corporation to deliver this particular package to the bank at Rutherford, and the jury were especially instructed that, in the absence of such an agreement, they must find for the defendant. That instruction is the law of this case, and, as the evidence did not sustain a finding that there was such a special agreement, the verdict was not sustained by the evidence.

It follows that the determination of the Appellate Term and the judgment and order of the City Court must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

(112 App. Div. 438)

LACKNER v. AMERICAN CLOTHING CO.

(Supreme Court, Appellate Division, Second Department. April 20, 1906.) 1. TENDER-PAYMENT INTO COURT-EFFECT.

Where, in an action for rent, defendant paid a certain sum into court as a tender, defendant could not in any event have the money back or any part of it, but it immediately became the property of the plaintiff, which he was entitled to take at any time.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Tender, § 89.] 2. COSTS-EFFECT OF TENDER.

After a tender and payment of money into court, the only question to be litigated is whether plaintiff has established a cause of action for more than the amount of the tender, which, if he fails to do, judgment should be rendered in favor of defendant for costs.

[Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Costs, §§ 137-164.]

3. COURTS-MUNICIPAL COURT-PRACTICE-JUDGMENT-AMENDMENT.

Municipal Court Act, Laws 1902, p. 1563, c. 580, § 254, limits the right of the Municipal Court to amend a judgment to the exceptions taken on the trial, or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence or law, and must be exercised within five days after rendition of the judgment; and Code Civ. Proc. § 724, made applicable to the Municipal Court by Municipal Court Act, Laws 1902, p. 1496, c. 580, § 20, only authorizes the amendment of the judgment in cases arising from mistake, inadvertence, surprise, or excusable neglect of the party seeking the relief. Held that, where judgment was erroneously entered for plaintiff, notwithstanding his failure to prove a cause of action in excess of a tender, the Municipal Court, after the expiration of five days, had no power to correct the error by amending the judgment, so as to make it a judgment in favor of defendant for costs.

Appeal from Municipal Court of New York.

Action by John Lackner against American Clothing Company. From a Municipal Court order denying defendant's motion to amend a judgment, so that it should read "Judgment for defendant, with costs," defendant appeals. Affirmed.

Argued before WOODWARD, JENKS, GAYNOR, and RICH, JJ. Harry A. Gordon, for appellant.

Solon J. Liebeskind, for respondent.

:

RICH, J. The plaintiff brought this action to recover the sum of $166.64 for rent of real property, alleged to be due and owing him by the defendant. Before the commencement of the action the defendant had made a tender of $68.12. On the return day it filed an answer, admitting the allegations of the complaint, alleging a counterclaim of $100, pleading the tender, and concurrently therewith paid the $68.12 into court, where it remained and yet is, in the possession of the clerk. Upon the trial the justice before whom the case was tried without a jury, without knowledge of the fact that such tender had been made, rendered judgment for the plaintiff for $63.66 damages, to which the clerk of the court added a trial fee of $2, making a total judgment of $65.66, and taxed costs for the defendant for $15. The justice states in his opinion that he is informed by the clerk that he deducted the $15 costs from the amount of the plaintiff's judgment and paid the balance, $50.66, to the plaintiff's attorney, who on the following day returned it and took a receipt therefor. The plaintiff then obtained a transcript of the judgment, which was filed in the county of New York, and caused an execution to be issued, which was levied upon the defendant's property in that county. As soon as the levy was made the defendant called the attention of the clerk of the Municipal Court to the fact that the judgment was less than the money paid into court, and the clerk thereupon satisfied the judgment, and a transcript of such satisfaction was filed and entered in New York county. The defendant then moved at a Special Term of the Supreme Court for an order vacating and setting aside the execution and levy of the sheriff, and plaintiff concurrently moved for an order reinstating the judgment on the records of the clerks of Queens and New York counties. The Special Term denied the defendant's motion, and granted that of the plaintiff, basing its decision upon the ground that the clerk was without power on authority to satisfy the judgment or transcript such satisfaction, and that the court would not determine the question of fact presented of whether the trial court intended to render a judgment in favor of the plaintiff for $63.66, in addition to the $68.36 paid into court, or a judgment for $63.66 only, upon conflicting affidavits. The defendant then moved in the Municipal Court for an order amending the judgment rendered, so that it would read "Judgment for the defendant, with costs," upon the ground that the form of the judgment was improper, which motion was denied, the court holding that it was not within his power to grant the relief sought. The defendant asks this court to reverse such ruling and grant the motion.

The opinion of the Municipal Court Justice denying said motion clearly establishes that the judgment he intended to render was for $63.66 only, and that at the time of its rendition he did not know that the defendant had paid a larger sum into court. Upon the facts the judgment should have been for the defendant, for costs. The money paid into court immediately became the property of the plaintiff, and he was entitled to take it at any time. The defendant could not in any event have the money back, or any part of it. After such tender and payment the only question to be litigated was whether the plaintiff established a cause of action for more than the amount of the tender. If he failed to prove that he was entitled to more than the amount paid into court,

and 132 New York State Reporter

judgment should have been rendered for the defendant. It was at the plaintiff's risk of paying defendant's costs if the recovery fell short of the amount tendered, and the defendant's risk of losing the amount deposited in the event of his success upon the trial. Such payment was more than sufficient to satisfy the amount determined by the trial court to be owing the plaintiff, notwithstanding which he seeks to enforce his judgment, thus taking from the defendant money to which he has no claim or right.

We should not hesitate to reverse the order appealed from and grant the relief asked, were it within our power to do so, but are reluctantly forced to the conclusion that the appellant has mistaken his remedy and that this court is without power to aid him. The Municipal Court has no jurisdiction or powers, except such as are conferred upon it by statute. The only power to amend a judgment of that court is found in section 254 of the Municipal Court Act (Laws 1902, p. 1563, c. 580), and is limited to the exceptions taken upon the trial, or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence or contrary to law, and must be exercised within five days after the rendition of the judgment. The relief sought, and to which the defendant was entitled, had he moved within the time limited, arose from the fact that the judgment was "contrary to law," within the meaning of those words as used in the section referred to, and at the time the defendant's motion was made the Municipal Court was without power to grant such relief. Granting the contention that section 724 of the Code of Civil Procedure is by the provisions of section 20 of the Municipal Court Act, Laws 1902, p. 1496, с. 580, made applicable to municipal courts, it does not aid the appellant, as the exercise of the power therein given the court is limited to cases arising from the mistake, inadvertence, surprise, or excusable neglect of the party seeking relief. An error of the trial court in the form of the judgment rendered is not one of the grounds upon which the court may act in granting the relief authorized by its provisions. The defendant, however, is not without a remedy. A court of equity can give the appropriate relief and restrain the enforcement of the execution and judgment during the pendency of an action.

The order appealed from is affirmed, with costs. All concur.

(112 App. Div. 278)

A. BUCHANAN'S SONS v. CRANFORD CO.

(Supreme Court, Appellate Division, Second Department. April 20, 1906.) 1. HIGHWAYS-USE-CHARACTER OF VEHICLES-FRIGHTENING ANIMALS.

Under Highway Law, Laws 1890, p. 1205, с. 568, § 155, as amended, prohibiting the passage of any vehicle propelled by steam on a highway without some one being sent ahead to warn persons of its approach, where a steam roller was operated in a highway without such warning being given, and as plaintiff's horse was driven in view of the roller suddenly and unexpectedly, and a steam whistle was sounded by the engineer in charge, the horse bolted and ran away, the operator of the steam roller was guilty of negligence.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Highways, §§ 457, 459, 469.]

2. DAMAGES-INJURY TO HORSE-EVIDENCE.

In an action for injuries caused by the frightening of a horse by the operation of a steam roller on a highway, evidence of the usable value of the horse during the period its owner was deprived of its use by reason of the injuries sustained was admissible.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Damages, § 280.]

Appeal from Municipal Court of the City of New York.

Action by A. Buchanan's Sons against the Cranford Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed. Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and GAYNOR, JJ.

George A. Logan, for appellant.
Henry A. Powell, for respondent.

HIRSCHBERG, P. J. The plaintiff has recovered a judgment for damages which are chargeable to the negligence of the defendant. While a horse and wagon of the plaintiff was being driven on one of the public streets in the borough of Brooklyn, the horse became frightened by a steam roller then operated by the defendant in violation of the requirements of section 155 of the Highway Law (chapter 568, p. 1205, Laws 1890, as amended). There was evidence tending to show that there was no one in front of the roller to warn persons of its approach, as required by the statute. The plaintiff's horse was driven in view of the roller suddenly and unexpectedly, and as a steam whistle was sounded by the engineer in charge of the roller the plaintiff's horse bolted and ran away. The evidence in the case was sufficient to warrant the justice in concluding that the plaintiff's driver was free from blame, and the circumstances established negligence on the part of the defendant.

In Mullen v. Village of Glens Falls, 11 App. Div. 275, 42 N. Y. Supp. 113, a horse driven by the plaintiff approached a cross street and was frightened by a steam roller belonging to the defendant and approaching on a cross street. No warning was given of the presence of the steam roller as required by statute, and it was held that the facts were sufficient to justify a verdict in favor of the plaintiff. In Halstead v. Village of Warsaw, 43 App. Div. 39, 59 N. Y. Supp. 518, a steam roller was allowed upon the street after work was suspended for the day. A horse passing the roller shied and ran away, and in an action to recover the resultant damages it was held that a nonsuit was error. The case of Rector v. Syracuse Rapid Transit R. Co., 66 App. Div. 395, 72 N. Y. Supp. 745, relied on by the counsel for the appellant, is not in point, as there the provisions of the statute requiring some one to be sent ahead of the steam roller at a distance of at least oneeighth of a mile were complied with.

The court was not in error in admitting testimony as to the usuable value of the horse during the period the owner was deprived of its use by reason of the injuries sustained. See Allen v. Fox, 51 N. Y. 562, 10 Am. Rep. 611; and Moore v. Metropolitan St. R. Co., 84 App. Div. 613, 617, 82 N. Y. Supp. 778.

The judgment should be affirmed.

Judgment of the Municipal Court affirmed, with costs. All concur.