
    James Gallagher, Resp’t, v. The Christopher and Tenth Street Railroad Company, App’lt.
    
      (New York Common Pleas,
    
    
      Filed January 3d, 1888.)
    
    1. Contract—Varidity of.
    This plaintiff entered into a contract with the defendant to act as a conductor on its road, and performed services thereunder, to recover payment for which this action was brought. The defendant set up as a counterclaim the breach of a special agreement made by them. The agreement last mentioned required a conductor to register every passenger getting upon his car, and forebode any conductor to receive a iare from a passenger either directly or indirectly, providing that for the violation of either of these a sum stated should be deducted from the wages then or thereafter due him, which should belong to the company as liquidated damages It was further provided, that a detective’s report of the violation of either of these rules should be conclusive evidence of the fact and bar the conductor of all right to recover the money retained from the wages. Held, that the contract was valid.
    2. Same—Effect of agreement as to weight to be given to evidence
    
      Held, that a detective’s report to thi effect that one of the rules had been violated by a conductor was conclusive of that fact against him.
    8. Same—Waiver of breach—What does not constitute.
    
      E- Id, that the omission on the part of the company to discharge the conductor immediately upon the discovery of the violation of the rule was not a waiver of the agreement.
    
      Appeal from a judgment rendered in the district court for the fourth judicial district, in plaintiff’s favor.
    
      Nero H. Smith, for resp’t; C. IT. Bussell, for app’lt.
   Per Curiam

This action was brought to recover wages as a driver or conductor on defendant’s road, from July 31st to August 6th, 1881", amounting to $9.38.

The defense was a special agreement with plaintiff, and a breach thereof, by him, whereby the sum of fifteen dollars became due from him to defendant.

The material portions of the contract, are as follows:

Rule 8. Conductors * * * must register every person getting upon the car.

Rule 10. No conductor will be permitted to receive a fare from a passenger; directly or indirectly.

And for a violation of either of these rules, it provides that the sum of fifteen dollars shall be deducted from the wages then or thereafter due to him; and it is mutually understood and agreed that the amount so deducted shall belong to the company, as liquidated damages, and not as a fine or penalty, or otherwise.” And it is further provided that a report of detectives of the violation of the foregoing rules, shalLbe conclusive evidence of such violation and shall bar the conductor of all right to recover the money retained from the wages.

On the trial, it was proved by two detectives that it was a fact, that on the seventh day of July, plaintiff had violated both of the foregoing rules; and had so reported. By the terms of the agreement, this report was made conclusive on the plaintiff. His denial of the fact, therefore, cannot avail him.

The validity of such a contract has been passed upon by this court, in Birdsall v. Twenty-third Street Railroad Company (8 Daly, 419). And the same case holds that the omission of the company to discharge the conductor immediately upon the discovery of the violation of the rule, was not a waiver of the agreement.

We think that this case falls within the rule thus laid down; and that the judgment should be reversed, and a new trial ordered, with costs of this appeal to the appellant.  