
    John Cannon, Respondent, v. James C. Fargo, as President of the American Express Company, Appellant.
    Under the principle declared in previous reversals (188 App. Div. 20; 147 id. 51 and 158 id. 290) the present verdict for plaintiff cannot stand. In helping unload this express box plaintiff was not aware that such assistance was any part of his duties, as he had sworn himself. Without exception on either side, the court on this trial charged “that unless he [plaintiff] did it as a part of his duty, knowing that it was a part of his duty, he cannot recover.” But plaintiff’s own testimony as to his knowledge and purpose required the court to reject a verdict for him on this issue. The judgment and order are, therefore, reversed on the law and on the facts, and as further trials cannot overcome plaintiff’s original testimony as to his own knowledge and purpose, final-judgment is directed dismissing the complaint, with costs.
   Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.  