
    Harry Rozen, Resp’t, v. The Dry Dock, East Broadway and Battery Railroad Company, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 5, 1894.)
    
    Evidence—Contract.
    In an action by plaintiff to recover a deposit made by him to secure his contract oí employment as conductor, by the terms of which the report oí a detective as to the number of passengers carried on any trip of the car, of which he was conductor, was made final and conclusive evidence of any fact stated therein, the exclusion of such report, when offered in evidence, is error.
    Appeal from a judgment for plaintiff rendered by the district court in the city of New York for the fifth judicial district upon the verdict of a jury.
    Action to recover the sum deposited as security for plaintiff’s faithful performance of his duties at the time of entering into defendant’s service as conductor of one of its street railroad cars.
    
      James & Thomas H. Troy, of counsel, for app’lt.
   Bischoff, J.

This action was brought by plaintiff, a conductor of one of defendant’s street railroad cars, to recover the sum of fifty dollars concededly deposited by him with defendant as security for the faithful performance of his services and the payment of all moneys which should come into his hands to defendant’s use. The contract of employment was in writing, executed by plaintiff, and among other things provided “ 6. As it is understood that defalcations in the payment of moneys collected for fares can generally only be detected by means of persons from time to time employed by the company to act as detectives, and who make their report to the company of such defalcations, and because of the difficulty of ascertaining the precise amount of any embezzlement or defalcation, or of any damage occasioned by any remissness, negligence, dishonesty and incompetence on the part of the conductor, it is agreed that the report of the detective to the company, or to any party or parties by whom such detective may be employed at any and all times, and on any and all trips, as to the number of passengers carried on any trip of any car of which the conductor, is conductor, shall be final and conclusive evidence of any fact stated in the report made by said detective.” “ 7. And it is therefore mutually agreed that upon the occurrence of any such neglect, embezzlement or defalcation, evidenced by any such report, or otherwise,' whereby the company has suffered any loss or damage by reason of any neglect, carelessness, dishonesty of the conductor, said company shall forthwith be authorized without notice to the conductor, to retain the said sum of fifty dollars so deposited by the conductor,. together with the conductor’s wages for the current week, to and for its own use and benefit as its liquidated damages and not by way of penalty or otherwise."

Upon the trial, evidence was given by five detectives in the employ of defendant to the effect that upon several occasions the plaintiff had failed to register fares received. The time tickets returned by the plaintiff to the company on the days in question, showing the number of fares accounted -for, were identified by the plaintiff and received in evidence for defendant. The reports of the detectives were offered in evidence and excluded under exception, the justice holding that as matter of law they were not conclusive upon the plaintiff, and the jury was instructed that it was for them to determine upon the evidence whether the plaintiff had actually failed to register and account for the fares as alleged, thereby incurring the forfeiture herein before referred to.

In this the justice erred. Under the contract of employment the reports of the detectives were conclusivé upon plaintiff. Gallagher v. Christopher & Tenth Sts. Railway Co. 14 Daly, 366 ; 13 St. Rep. 80. The evidence shows that the plaintiff was able to read and write, and no claim is made that he was prevented by any act or representation of the defendant from acquainting himself with the terms of the contract which he signed. No defence against its provisions is thus presented by his failure to read it. Hill v. S, B. & N. Y. R. R. Co., 73 N. Y. 353, and cases cited. Schmeider v. Kingsley et al., 55 St. Rep. 689. The presumption is that he did read it before execution. Belger v. Dinsmore, 51 N. Y. 166 ; Steers v. Liverpool, N. Y. & P. S. S. Co., 57 N. Y. 1 ; Ballon v. Karl, 33 Am. St. 881, 888.

Moreover the retention by the defendant of the sum deposited, in the case at bar, was not to be regarded as a penalty. It was intended as a provision for uncertain damages. In the case of such a character the actual loss to the defendant may greatly exceed the amount of the specific peculations which could be proven. Birdsall v. Twenty-third St. R. R. Co. 8 Daly, 419 ; Schmeider v. Kingsley et al. supra.

The judgment appealed from should, for the error above referred to, be reversed and a new trial ordered, with costs to the appellant abide the event.  