
    Cara R. Bleakley, Respondent, v. Theresa A. S. Sheridan, Appellant.
    Second Department,
    June 7, 1907.
    Contract — charter party — evidence—restrictive agreement—proof of' damage caused by the plaintiff’s- captain.
    Evidence in an action for damages fór breach of contract examined and held not to establish an agreement by the defendant not to use a chartered scow at a certain locality where it was blown ashore and injured.
    Assuming, however, that such contract was proved it is error to exclude evidence to show that the damages were caused in whole or in part by the negligence of the plaintiff’s captain, who, in spite of the breach of the contract, was required to use reasonable care in preventing the scow from going ashore.
    In such action the negligence of. the plaintiff’s servant need not be pleaded, being relevant on the amount of damage caused by the defendant’s* breach.
    Hooker, J.-, dissented:
    Appeal by the defendant, Theresa A. S. Sheridan, from a judgment of -the Supreme Court,in favor of the plaintiff,.entered in the office of the- clerk of the county of Westchester on the 14th day of July, 1906, upon the verdict . of a jury, and also from an order entered in said clerk’s office on the 22d day of June, 1906, denying the defendant’s motion for a new trial made upon,the minutes.
    This action is for damages for breach of contract. The complaint is that the plaintiff chartered a scow to the defendant to carry cellar dirt to fills, a part of the -agreement being that the scow should not ■ be taken to Greenville, IST. J., where there was a fill; that the defendant took the scow there, and in a storm she was, blown ashore and injured.'
    The contract was made by the agent of the plaintiff with the agent of the defendant over the telephone. The. former testifies that he told the latter (Driscoll) that “ we objected" to sending it down to Greenville ”, because she was new, and because the anchorage was about three-quarters of a mile from the fill, and if a n-orth- ' easter came- up the scows at the anchorage were endangered. He then says: “ My recollection is that Mr. Driscoll said he wouldn’t send her down to Greenville” ; and then follows this question and answer as the last on the subject: i6Q. .Did you tell him you wouldn’t let him go to-Greenville? A; We objected to its going to Greenville,” He entered the terms of the hiring in. the plaintiff’s scow book, but omitted any, restriction as to where the scow might go. • The agent for the defendant (Driscoll) testifies positively that there was no restriction as to the movements of the scow in ; the leasing. Before, during the time of and after, the use of the scow by the defendant other scows of the defendant went continuously to'-the Greenville fill.. There was no other evidence on the subject. i-
    
      Henry Wetherhorn, for the appellant.
    
      Mark Ash [William Ash and David W Travis with him on the brief], for the respondent.
   Gaynor, J.:

.The contract that the scow should not be taken to Greenville was not proven. The evidence for the plaintiff left it a matter of uncer1 taint-y at best. And if such a contract could be eked out therefrom, to find it woul.d be against the weight of evidence.

Assuming that the contract was proved, it was error to exclude evidence to show that the damages were caused or suffered in whole or in part by the neglect of the plaintiff’s captain who was aboard and in charge, of her to take proper care of her in the storm. Although the contract were broken by the defendant, it would be for the captain, to dp what he reasonably-could in the care of the scow to prevent her from going ashore. That he did not do so was not a defense to be pleaded; on the contrary, the question was what damage the breach of the defendant caused, and that would be in issue even on an assessment on failure to answer. The amount of damage-is always in issue, even without a denial thereof (Milton v. Hudson River Steamboat Co., 37 N. Y. 210).

The judgment should be reversed.

Hirsohberg, P. J., Rich and.Miller, JJ., concurred; Hooker, J., dissented. ' -

Judgment and order reversed and new trial granted, costs to abide the event.  