
    John D. Elwell, Resp’t, v. Cyprien Fabre, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 6, 1891.)
    
    1. Contract—Construction of.
    The defendant agreed in writing with the plaintiff to send every steamer of his “line” to plaintiff’s pier. He owned the steamer “Iberia,” and its captain and crew were under his control, although for the voyage in question the steamer was under a contract of affreightment to another person. The name of the line did not appear in the contract, but it was-not shown that defendant had more than one line. Held, that under the contract defendant was bound to send the steamer to plaintiff’s pier, and that for his failure to do so plaintiff could recover.
    3. Evidence — Counterclaim — Mitigation of damages—General denial.
    
      At a time when defendant sent steamers to the pier repairs were being made upon it which contracted the space, and, as alleged, caused defendant extra expense in piling the freight higher. For this defendant made a counterclaim. In reply to this, plaintiff was allowed to show, in mitigation of damages, that, in this state of affairs, he had offered defendant the use of another pier. Held, that this evidence was proper and might, be shown under a general denial of the counterclaim.
    Appeal from so much of the judgment for plaintiff as awards a recovery on the first cause of action alleged in the complaint, for damages for breach of an express agreement in writing entered into between the parties for the use of plaintiff’s pier by defendant’s steamers.
    
      Eustace Conway, for resp’t; Robert D. Benedict, for app’lt.
   Bischoff, J.

While it appears from the case on appeal that, at the close of the trial defendant moved for a new trial upon the grounds specified in § 999 of the Code of Civil Procedure, that, such notice was denied, and that the notice of appeal states that the appeal is from the judgment, as well as from an order denying a new trial, no such order is presented to us. Waiving that matter, however, and considering this appeal as from the judgment and order described, we can discover no sufficient ground for their reversal.

Assuming the learned trial justice to have been in error in refusing to dismiss the complaint when plaintiff rested, for insufficiency of proof, such a defect would have been sufficiently cured to render defendant’s exception of no avail if either party thereafter supplied the necessary evidence. Painton v. The Northern Central Railroad Co., 83 N. Y., 7.

When the evidence was closed it appeared from the testimony of witnesses and the documents introduced that the defendant, trading under the firm name of Cyprien Fabre & Co., entered into-a written agreement with the plaintiff whereby he promised and agreed that during the year 1888 all steamers belonging to his “ line ” at Rew York or Brooklyn should be sent to plaintiff’s pier and that for the use of such pier he would pay a specified daily rent; that the steamer “ Iberia ” arrived at New York on June 17, 1888, and remained until July 4th following, without having been sent to plaintiff’s pier; that upon her arrival she was sailing under the colors usually displayed by defendant’s steamers, was taken charge of by defendant’s agents, Messrs. James W. Elwell & Co., one of whom told plaintiff that the “Iberia ” would probably receive her outward freight at his pier.

It also appeared that the “Iberia” was the property or under the control of, the defendant; that she was under a contract of affreightment to Phelps Bros. & Co., of London, which contract had been entered into between the latter firm and the defendant, and that the captain and crew were the employes and under the direction of the defendant or his agents. Except in trivial respects these facts were wholly uncontradicted, the sole contention of the defendant having been that the “ Iberia ” did not belong to the “ line ’’ of steamers mentioned in the agreement. From the agreement, however, it did not appear that at the time it was entered into defendant was operating more than one “ line ” of steamers, or thjat only the steamers of a particular “line" belonging to him were intended to be affected thereby. We think, therefore, that the facts proved would justly sustain a finding that the “Iberia” belonged to the defendant’s “line,” and was among those for which the use of plaintiff’s pier was contemplated by the agreement

The facts were properly submitted to the jury, and being, as above stated, mainly uncontradicted, we cannot say that their finding that the “Iberia" was within the agreement was either contrary to law, or contrary to the evidence, or against the weight of evidence.

Respecting the defendant’s counterclaim, the trial judge charged the jury that the facts proved by defendant entitled him to a recovery ; that the amount of such recovery should be determined by them and that they should deduct the sum found due the defendant from the amount found due to the plaintiff. At the request of plaintiff’s counsel, the judge further charged that, in arriving at the amount to be awarded to the defendant upon the counterclaim, the jury should take into consideration the additional facilities extended to the defendant by the plaintiff for the loading and unloading of his steamers during the time that the pier was undergoing repairs. No exception was taken to this part of the charge, and the jury having specifically found that any damage which had accrued to the defendant from the lack of sufficient room and for extra labor, while the pier was being repaired, was offset by the additional facilities extended by the plaintiff, it is unavailing to urge on appeal that the offer and acceptance of these additional facilities were not pleaded as a defense or in mitigation of damages, or that there was no evidence to support the charge. The objection should have been made while an opportunity for the correction of- the supposed error still remained. Mallory v. Tioga R. R. Co., 3 Abb. Ct. App. Dec., 139 ; Osgood v. Toole, 60 N. Y., 475.

But it was not error for the trial justice to charge the jury that they should consider the benefits derived by defendant from any additional facilities afforded him by the plaintiff. In view of his liability to the defendant, it was incontestably the plaintiff’s right to seek to reduce the damage by any means acceptable to the defendant; and if, from the acceptance and use of such means, the defendant derived any advantage which tended to diminish the damage which he would otherwise have sustained, the plaintiff was entitled to be credited therewith in the computation of defendant’s loss, and such facts were admissible under plaintiff’s general denial interposed to defendant’s counterclaim. O'Brien v. McCann, 58 N. Y., 373. Plaintiff’s testimony, not objected to or struck out, shows that during the time the pier was being repaired defendant occupied without additional expense another pier, the use of which was furnished by the plaintiff, and this evidence was sufficient to support the charge.

The other exceptions to the rulings on the trial were not specially urged on the argument of this appeal and are not of sufficient merit to authorize us to disturb the proceedings in the court below.

The judgment and order appealed from should be affirmed, with costs, upon plaintiff filing a stipulation consenting to the affirmance of such judgment upon his cross appeal in this action. See Goodsell v. The Western Union Tel. Co., 109 N. Y., 147; 15 N. Y. State Rep., 73.

Allen and Pryor, JJ., concur.  