
    CHADWICK v. PRESS PUB. CO.
    (Supreme Court, Appellate Division, Second Department.
    January 12, 1912.)
    1. Master and Servant (§ SO) — Contract of Employment — Actions — Burden of Proof.
    Where, in an action against a publisher for the price of certain articles written for publication, plaintiff claimed that the contract provided for payment of $35 for each article, while defendant claimed that the rate was $25, the burden was not on defendant to establish that the arrangement contemplated a payment of only $25.
    [Ed. Note. — For other cases, see Master and Servant, Gent. Dig. § 115: Dec. Dig. § 80.]
    2. Appeal and Eebob (§ 662) — Record — Conclusiveness.
    The form of a charge objected to as stated in the record, and not the form stated in appellant’s brief, is conclusive on the appellate court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2850-2852; Dec. Dig. § 662.]
    Appeal from Municipal Court, Borough of Brooklyn, Third District.
    Action by Charles Chadwick against the Press Publishing Company. Prom a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed.
    Argued before JENKS, P. J., and BURR, THOMAS, CARR, and WOODWARD, JJ.
    E. C. Crowley, for appellant.
    Arthur Watson, for respondent.
    
      
      For other cases see same topic & I number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

It was incumbent upon the plaintiff to establish that his work was done under a contract with the defendant that provided for a payment of $35 for each article. The burden was not upon the defendant to establish that the arrangement between the parties contemplated a payment of but $25 therefor. Rose v. Wells, 36 App. Div. 593, 55 N. Y. Supp. 874. We think that the preponderance of evidence upon that issue is against the plaintiff, not only in view of the testimony of the defendant’s witnesses, but also upon consideration of the plaintiff’s testimony, which indicates performance at the rate of $25 with the hope, but not upon the reliance, that the larger sum would ultimately be paid. His testimony also tends to indicate a waiver of the agreement which he testifies he made originally with McLaughlin.

The exception which is made the subject of point 5 of appellant’s brief was well taken, and would be fatal if the quotation therein from the charge was exact; but in the record, which is binding upon us, the word “must,” quoted by the learned counsel for the appellant, appears as “may.” There is not the slightest idea of imputing to counsel an intentional misquotation, for there is no ground for it whatever; quite the contrary.

We do not decide that the case presented was not for the jury, but from dissatisfaction with the verdict upon this record we reverse the judgment and order, and order a new trial; costs to abide the event.

JENKS, P. J-, and CARR and WOODWARD, JJ.,. concur. THOMAS, J., concurs in result. BURR, J., votes to reverse for errors in the charge.  