
    The Mount Morris Electric Light Co., Respondents, v. The Horse & Cattle Show, Appellants.
    (City Court of New York—General Term,
    February, 1894.)
    Plaintiff was employed to furnish'lights for an open air exhibition given by defendant. In an action to recover for such service plaintiff’s proof showed that the agreement was first for the construction of a plant to furnish a certain number of lights at a specified price, and that it was further agreed that the number of lights should be increased at the same rate, and defendant was to pay the cost of construction of the additional plant rendered necessary thereby, and there was also evidence as to the cost of such extra plant. Hone of this evidence was controverted, but there was a conflict as to whether plaintiff guaranteed that this number of lights would be sufficient for the exhibition. The charge presented this question to the jury, and was not excepted to. Held, that a verdict in favor of plaintiff would not be disturbed.
    Appeal by defendants from judgment on verdict of jury. ’
    Forster, llotaling $ Klenke, for respondents.
    
      Jay & Candler, for appellants.
   Van Wyck, J.

The defendants were about giving an open air exhibition of their horse show at night on their uptown grounds, and employed plaintiffs to furnish the electric lights for the exhibition. Plaintiffs’ proof shows that the agreement was first, for them to construct such plant as was necessary to furnish fifty-two arc electric lights upon these grounds, and to be paid $300 for such construction, and one dollar and fifty-cents per lamp per night; that by mutual consent it was further agreed that the number of lights were to be increased to ninety-two at the same rate per lamp, and they were to be paid the cost of the construction of such additional plant as was made necessary by this increase; that the cost of constructing this additional plant was $470.G3, and that defendants were indebted to them in the sum of ¡¡¡>1,996.73, which includes these two items of construction, the price of furnishing the light and the cost of certain other changes made at defendants’ request. The defendants’ own evidence shows that these ninety-two lamps wére up and lit during the six nights of the exhibition, for their witness Iluidekoper, a director, says: “ I was there all the time, almost entirely, during the exhibition, except some time, not in the morning. I was always there afternoons and evenings. The light was the best that could be done, but not satisfactory,” and “ I suppose they were lit there during the six nights of the exhibition. They went out a great deal, probably half a dozen times or more for a minute at a time; ” and Hyde, another one of defendants’ directors and witnesses, ' says : “ I don’t think it did much more with ninety-two lights in a place (their exhibition grounds) of that size than to make darkness visible.” The defendants did not offer to prove that the ninety-two lights were not put up or kept lit during the six nights of their exhibition, or that the cost of the plant for the first fifty-two lights was not fixed at $300, or that the reasonable cost of the plant for the thirty-nine or forty additional lights was not $470.63. However, as to this last item, defendants contend that plaintiffs’ proof was not sufficient, and it must be admitted that it is quite meagre, and could and should have been made more forcible; still, tire evidence of plaintiffs’ witness Young, after being very much weakened on his cross-examination, is, “ I had charge of the construction while the work was being done there. I know, of my own knowledge, that every one of these lights were put there; I was up there three nights, and I know that all of the men were employed there that were returned on the pay-roll.” And again, “I don’t know exactly how much material was used in that thing; I figured it up afterwards; I could not swear to a foot of wire at the time of construction. I knew at that time the number of poles used there, but I cannot now recollect,” and he swore positively, on direct, that the reasonable cost of putting up the additional thirty-nine or forty lights was the $470.63. This evidence was not contradicted in any way by defendants’ proof, and, moreover, the judge in his charge, without objection or exception from defendants, instructed the jury as follows : “ There is but one question for you to determine, and that is, what was the contract between these parties. If the contract was, as is claimed by the electric light company, that they were to furnish to defendants a certain number of lights and material, and do certain work, why then your verdict must be for the plaintiff in the sum of $2,103.55,” the full amount claimed, with interest. And these instructions - are justified by the record, which clearly shows that the only really disputed question on the trial was whether or not the plaintiffs had guaranteed that this number of lights would be sufficient for the defendants to give exhibitions at night upon tlieif grounds. This question was hotly disputed, and was determined adversely to defendants by the jury, who were properly instructed in the charge as follows: “ The defendants, however, claim that the contract was not only to furnish a certain number of lights, but that the lights should be sufficient to give nightly exhibitions on their grounds.- And if you believe that to have been the contract, and that plaintiffs failed to give light sufficient for such exhibitions, why then your verdict must be for defendants.” There was no exception to the charge, and defendants only made one request, which was charged as requested. The plaintiffs certainly forced the record with much evidence which has no proq>er place in this case, but none of such evidence had any bearing or weight in the determination of the question as to what the contract between the parties was. And as all other questions upon which it might have had such bearing or weight were taken away from the jury by the judge’s charge, not excepted to, an affirmance of the judgment and order, with costs, must follow.

Ehblich, Ch. J., and Fitzsimosts,' J., concur.

Judgment and order affirmed, with costs.  