
    The M. McGirr Sons Company, Respondent, v. B. T. Babbitt, Appellant.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Evidence — Documentary evidence — In general — Photographs.
    In an action to recover the price of a scow load of filling material, where defendant claims the material was not according to the contract but rubbish unfit for filling, and it appears that it was dumped in a certain place, it is error to exclude photographs that were shown to have been taken a month or two before the trial that were photographs of the material taken from the scow and that were shown to truly represent the place where it had been dumped as it, was right after the load had been discharged there.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, third district, borough of Manhattan, rendered in favor of the plaintiff, after a trial had before the court without a jury.
    Baldwin, Wadhams, Bacon & Fisher (William H. Wadhams, of counsel), for appellant.
    Daniel J. Early (James F. Higgins, of counsel), for respondent.
   Giegericii, J.

The action is to recover the price of a scow load of filling material consisting of ashes, which the plaintiff claimed to have delivered by scow upon the lands of the defendant at'Babbitt, H. J., in the course of the performance of a contract for filling in around its buildings, and for the value of certain work, done in grading such lands after they were filled in, and claimed to have been performed after and in addition to the grading called for by the contract, and for which the plaintiff claims the defendant promised and agreed to pay.

Both claims were disputed, the defendant asserting that it refused to accept the contents of said scow, because it was not filling material “ clean and free from rubbish and garbage,” as required by the contract, and that it had, therefore, been rejected, and denying that it promised to pay for such grading, and claiming, furthermore, that it was not extra work, for the reason that the contract provided the plaintiff should “ grade and fill from said buildings in accordance with the grade stakes set by you” (defendant).

It appears from the evidence that, on August 31, 1906, the scow in question landed at the defendant’s dock at Babbitt, IST. J., but there was a sharp conflict of evidence upon the trial as to what its contents were. According to the testimony adduced for the plaintiff, such scow contained 653 cubic yards of ashes, and on top of it there was firewood, consisting of barrels and boxes; while the defendant’s witnesses, on the other hand, gave testimony to the effect that the scow was piled up with all kinds of old furniture, barrels, rubbish, old mattresses, old bedsteads — “ all kinds of stuff ” —'with nothing else except dust, on such rubbish, which, it is claimed, extended down to the deck of the scow, and that there was no filling whatever of any kind in the load.

In support of the ground taken by the plaintiff, as above stated, it called witnesses who testified that the capacity of scows varied; that the one in question held a thousand cubic yards, while some held four hundred and others held twelve or thirteen hundred cubic yards, and that there were 653 cubic yards of ashes upon the scow in question by actual measurement; that no objection was made to the material on the scow except that dust was in it; that no permission was asked of the defendant by the plaintiff’s employees to land the material from the scow, and that the defendant’s employees never refused to let the plaintiff’s men unload the scow, but merely asked what they were going to do with the wood;” furthermore, that the contents of the scow were dumped along the railroad track to put a shoulder on one side of the railroad.”

The evidence adduced on the part of the defendant, on the other hand, tended to show that the scow was piled up with nothing but the sundry wooden material referred to, which reached down to the deck of the scow, which deck formed the surface on which the load rested; that there was not any dirt visible; that there was no filling, cinders or ashes of any kind, as called for by the contract, all of which, it is claimed, clearly appears from a photograph which was taken before the scow was unloaded, and was admitted in evidence, and was testified to as being a correct representation of the scow and its contents at the time referred to.

There was further testimony given for the defendant to the effect that the defendant’s engineer told the plaintiff’s superintendent that he would not, under any conditions, accept the contents of the scow, because it contained nothing but rubbish; that he did not measure the contents of the scow, because he would not accept it on account of its not conforming to the requirements of the contract; that, after being told that it was more expensive to tow the scow back to New York than to unload it, he finally permitted the plaintiff to unload its contents along the railroad track, not on the parts of the defendant’s ground specified in the contract, but at least one thousand feet from any of the defendant’s buildings.

The defendant’s engineer in charge of the work testified that there was no rubbish along the railroad track in the way of boxes, bedsteads and furniture, before they unloaded the scow; that he saw the material lying on the ground afterward, and that certain photographs offered in evidence were correct representations of the ground with the material lying on it; that the premises had not changed in appearance since the material referred to had been placed there, except the change of time, rain and weather; that the photographs so offered were a correct representation of the appearance of the premises immediately after said material was removed from such scow in September, 190 6; that the witness was there nearly every day as an engineer in charge; that he knew everything that was- put on the premises, knew of his own knowledge that the pictures were a correct representation of the condition as existing in the month of September, 1906.

The photographs were excluded, upon the plaintiff’s objection, on the grounds, firstly, that it did not appear when they were taken; secondly, that it did not appear that it was all material from the scow in suit, and, thirdly, the witness said that he did not take the photographs.

It is conceded by the plaintiff’s counsel that the first objection was met by testimony that the photographs were taken a month or two before the trial; but it is -still urged that the second objection has never been met and that it does not appear anywhere in the testimony that the material and stuff that the defendant photographed was the material and stuff taken from the scow, and that the nearest approach is in answer to the question “ And did you see the material after it was unloaded from the scow and placed along the track? A. I saw the scow when it was partly unloaded,” and in answer to the further question “ Did you see the material lying on the ground ? A. Yes, sir, I did.”

But a reading of the stenographer’s minutes shows that the plaintiff’s counsel is in error, there being, as already' noted above, other testimony of the engineer to which he has failed to call attention. Moreover, the testimony of the engineer is corroborated by that of the defendant’s night watchman, who testified that he saw the scow unloaded; that the material taken from it was old furniture, barrels and boxes, and that it was put on both sides of the railroad track; that he stood there from two o’clock in the afternoon until six o’clock on one day, and again, on the following day, from four until six o’clock; and on cross-examination he testified: They began to unload in the morning and throwed it on both sides of the track. Q. All of it ? A. All of it.” He further testified that on the next day he saw them unload from four o’clock until six o’clock, and that he saw the scow empty.

The third ground of objection was not discussed in the briefs nor urged upon this appeal by the defendant; but, even if it had been, such objection would not have been well taken. Nies v. Broadhead, 75 Hun, 255.

From what has been stated, it is evident that the photographs so excluded should have been admitted, although they were not taken until within a month or two of. the trial (People v. Buddenseick, 103 N. Y. 487-500), because they had a very important bearing upon the question arising as" to the contents of the scow, in regard to which, as seen, there was a sharp conflict of evidence.

As already stated, the plaintiff’s theory is that there was some firewood on top of the load of filling in the scow and that it was filled to within more than three-fifths of its carrying capacity with a load of ashes underneath; which ashes, according to measurements furnished by the plaintiff, were 89 feet long, 24 feet and 9 inches wide and 8 feet deep or high.

Testimony was further given for the plaintiff that the filling material went from side to side of the scow and was across the rail, but the defendant claims that the photograph of the scow shows that this is untrue. The defendant further claims that the model of the scow which was also marked in evidence shows that the deck is flush with the rail; so that the eight feet must be from the rail up, which, its counsel insists, is impossible. This is explained by the following testimony of the plaintiff’s president: Q. Did any of it (load) come out of the edges ? A. Game out of the — as a rule it seldom does if it is above the box. The box is a little rail that runs along. It seldom goes out from that — from the top of that box. If it did, if they got into any kind of sea, it would wash off, but this particular scow had lots of free board and it would not wash off. Q. There wasn’t any kind of hole there built inside? A. This rail here is what I speak of. The material was across the rail, the good material. Any boxes or barrels that fell off, of course, that might occur.”

The presence of old wooden material on top of what the plaintiff claims was a load of ashes is thus explained by the plaintiff’s president who, on cross-examination, testified: When she left Hew York she had some wood on that I sent down there for making fires under the machinery, building fires. The material was on top, the barrels and boxes. When I got to burn it — Q. How did you happen to do that ? A. What’s that ? Q. How did you happen to send down wood for making fires? You were filling in, weren’t you? A. It was necessary to send down wood for making fires unless we bought it somewhere, and there was no place to buy it that I know of. We had to have wood to start the fires. There was a little sent down at one other time on the bow of one of the boats.”

It may be fairly concluded from the testimony just quoted, as well as from that of the defendant’s engineer hereinbefore noted, that there was no wood for burning upon the defendant’s lands when the scow in suit arrived there on August '31, 1906.

The quantity of so-called fire wood upon the defendant’s premises, at the point indicated by the witness, immediately after the contents of the scow were unloaded in September, 1906, was, therefore, an important element to- be considered in determining whether or not the photographs so excluded should have been admitted.

As above stated, such photographs were shown to truly represent the place as it was right after the load had been discharged there; and if, as is claimed, they showed the presence upon the defendant’s land along the railroad track of rubbish of the character described by the defendant’s witnesses in quantities in excess of that claimed to have been carried by the plaintiff upon the scow, then it was clearly error to exclude them.

The plaintiff’s superintendent testified, in answer to the following questions, as follows: “ Q. ¡Now, what did you do with those boxes and barrels ? A. Removed them on the dock, off the scow, on to the dock.” •

The record does not contain any evidence on the plaintiff’s part showing definitely what became of such barrels and boxes, unless it may be inferred from the testimony of the plaintiff’s president, that the “ material ” was put. along the railroad track.

Moreover, there was no testimony introduced by the plaintiff to show whether such barrels and boxes were used for the purpose of building a fire under the machinery, which, as shown, was claimed to have been the plaintiff’s purpose in sending them to the defendant’s premises; and, if we may infer from the said testimony of the plaintiff’s president that such old wooden material was dumped along the railroad track, which fact clearly appears from the testimony given in behalf of the defendant, then, if barrels and boxes could be clearly distinguished upon such photographs, such exhibit would have probative value in showing that the plaintiffs explanation was a pretext and that the wood was brought, not to burn, but to be counted as filling, and that, when it failed of that use, it was thrown away.

The photographs so excluded do not appear to have been marked for identification and are not among the papers and exhibits constituting the return; but, since it is not denied by the plaintiff that they do show the presence of material of the character claimed, I have assumed such to be the fact in disposing of the question. Furthermore, evidence that such was the fact is found in the above testimony of the defendant’s engineer as to what he saw upon the defendant’s lands after the contents of the scow were unloaded, and in his further testimony that the photographs were correct representations of the ground and the material lying upon it, and that he could go down and pick out some of the things that are lying there new.”

After carefully considering the evidence, I am also of the opinion that the judgment, so far at least as it is based upon the alleged cause of action for a scow load of filling material, is contrary to the weight of evidence; and, in view of this and of the conclusion already reached that the trial justice committed error in excluding the photographs above referred to, it will not be necessary to discuss the other grounds relied upon to reverse the judgment.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Hendrick and Ford, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  