
    Pucci v. Barney.
    (New York Common Pleas
    General Term,
    February, 1893.)
    Where in an action for work done, a party’s right to payment depends on the presentation of the certificate of a third party, and it is produced upon the trial in plaintiff’s behalf, and defendant alleges that it is untrue and incorrect, with him lies the burden of proof.
    The court permitted plaintiff to prove the custom of surveyors in making allowance to excavators where they are required to excavate below the depth mentioned in the contract, in order to reach a level. Held, no error.
    The appellate court will not as a rule review mere offers of evidence.
    Appeal from a judgment of the G-eneral Term of the City Court affirming a judgment entered on the verdict of a jury and affirming an order denying a motion for a new trial.
    
      Arnold <& Green, for defendant (appellant).
    
      EzeTdel Fixmcm, for plaintiff (respondent).
   Bookstaver, J.

This action was brought to recover the sum of $1,245.20 and interest which the plaintiff claimed was the balance due to him from the defendant for excavating rock and earth from twelve lots belonging to the defendant, which was done under a written contract providing among other things that the “ Measurements shall be made by Robert A. Serrell, city surveyor, and the payments shall be on his written certificate,” and that the defendant would pay for said work at said prices on the certificate of said surveyor. The answer denied that the plaintiff excavated the amount claimed, and alleged that the amount of rock excavated under the contract did not exceed 9,091 cubic yards, and that the earth excavated did not exceed 5,037 cubic yards, and that the defendant had overpaid the plaintiff for this amount of work for which he counterclaimed, alleging that the overpayments had been made by reason of the incorrect statements of tiie surveyor. The plaintiff on his part introduced in evidence the certificates of Mr. Serrell, the surveyor named in the contract. As was well stated in the opinion of the court below, “ the serious objections of the appellant on this appeal are based upon the ground that the admission on behalf of plaintiff of the foregoing certificate of the surveyor made as provided for in the contract did not throw upon defendant the burden of proving that this certificate was untrue and incorrect, as he had alleged in his answer.” In the case of Wyckoff v. Meyers, 44 N. Y. 145, the court says: “ Where a building contract provides that the last installment shall be paid by the defendant when all the work is completely finished and a certificate to that effect by the architects under whose direction the work shall be done, the production of the certificate of the architects is conclusive upon the defendant unless obtained through fraud or mistake.” And in Anderson v. Meislahn, 12 Daly, 149, it was held that the parties having selected their own umpire who was to ascertain and determine that the contract had in these respects been complied with, his certificate should be regarded as conclusive and binding upon defendant unless defendant could show that it was obtained by fraud or mistake, or it appears that the contract had not as a whole been substantially complied with. See, also, People ex rel. Ready v. Mayor, etc., of Syracuse, 65 Hun, 321. In Dr. Abbott’s valuable paper on “ The Burden of Proof ” (Harvard Law Review, vol. 6, No. 3) it is said: “In a number of cases the judges (using general language, though speaking in view of the particular case before them) have said that the burden of proof is always on the plaintiff throughout. It ought to be observed, however, that the "burden of proof is on the plamvbiff only when he has invited the issue; if the only issue to be tried is one which the defendant has invited, the burden of proof is on the defendant. Thus, if the only defense is a denial, the burden of proof is on the plaintiff. If there is no denial, but an admission, express or implied, of the plaintiff’s allega^ tions, and the defense is an affirmative statement of new matter in excuse or discharge, the burden of proof is on the defendant.” And these propositions he fully illustrates.and supports in that article.

The trial judge, therefore, was fully justified in refusing to charge upon this question as requested by the defendant.

Appellant also contends that the court erred in permitting the plaintiff to prove the custom of surveyors in making allowances to excavators where the excavator is required to excavate below the depth mentioned in the contract to reach a level. This custom was clearly proved and must have been known to both parties at the time of entering into the contract, and they are presumed to contract in reference to uniform, continuous and well-settled usage pertaining to the matters as to which they entered into an agreement, where such usage is not in opposition to well-settled principles of law and is not unreasonable. Walls v. Bailey, 49 N. Y. 464; Sims v. U. S. Trust Co., 35 Hun, 533; Ford v. Tirrell, 9 Gray, 401; Barlow v. McKelway, 22 N. J. L. 165; Atkinson v. Truesdell, 121 N. Y. 230 ; Smith v. Clews, 114 id. 190. Everyone knows that in excavating soil, it cannot be done to the exact line and nothing more, but that some slope must be allowed for or there would be danger of the superincumbent earth falling upon and injuring those doing the work in the excavation. And it is equally clear that in blasting rock in order to obtain a uniform level, there must be some allowance made for excavations beyond the level desired; and where the rock is hard and runs in seams, some must be loosened beyond the exact line of the property to be excavated and must be removed, or its loose condition would be a constant menace to those engaged in the work.

The court did not err in refusing to allow the defendant’s offer to prove that he had paid the surveyor Serrell $100. As stated in Gerard v. Cowperthwait, handed down herewith, the court will not, as a rule, review mere offers. The offer, even if we would review it, is not broad enough. It does not appear from it that the amount paid was more than the defendant was bound to pay the surveyor as his share of the latter’s charges. It was not pleaded.

Hor was it error for the court to refuse the defendant’s offer to prove that plaintiff took the material of an old house on the premises and agreed to allow defendant $150 for the Same. It was a mere offer; it was not alleged in the pleadings and was not within the issues framed thereby.

The judgment should be affirmed, with costs.

Bisohoff and Pbyob, JJ., concur.

Judgment affirmed. 
      
      The court was requested to charge: Mrst. That the burden of proving the cause of action is on the plaintiff, and that he must, in order tO' recover a judgment, prove his case by a preponderance of evidence. This was declined and duly excepted to. Second. That unless the plaintiff has proved his case by a preponderance of evidence, the verdict should be for the defendant. This was also declined and duly excepted to.— [Rep.
     
      
      
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