
    (7 Misc. Rep. 130.)
    ROZEN v. DRY-DOCK, E. B. & B. R. CO.
    (Common Pleas of New York City and County, General Term.
    February 5, 1894.)
    Contracts—Performance—Determination by Third Persons.
    A written contract of employment of plaintiff as conductor of defendant’s street car provided that the reports of defendant’s detectives should be conclusive evidence of any fact stated therein, and' that, because of the difficulty of ascertaining the amount of any defalcation by plaintiff, the amount of a deposit made by him as security should become the property of defendant, in case of a defalcation, as liquidated damages. H.eldf that such provisions were binding on plaintiff, where it appeared that he could read and write, and no claim was' made that defendant prevented, him from acquainting himself with the terms of the contract.
    Appeal from fifth district court.
    Action by Harry Bozen against the Dry-Dock, East Broadway &" Battery Bailroad Company to recover money deposited for plaintiff’s faithful performance of his duties at the time of entering defendant’s service as a conductor of one c-f its street cars. From a judgment in favor of plaintiff entered on the verdict of the jury, defendant appeals. Beversed.
    Argued before BISCHOFF and GIEGEBICH, JJ.
    James & Thomas H. Troy, for appellant.
   BISCHOFF, J.

This action was brought by plaintiff, a conductor of one cf defendant’s street-railroad cars, to recover the sum of $50, concededly deposited by him with defendant as security for the faithful performance of his services and the payment of all money» 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:

“(G) 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 damages 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 were 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 hereinbefore referred to. In this the justice erred. Under the contract of employment the reports of the detectives were conclusive upon plaintiff. Gallagher v. Railway Co., 14 Daly, 366. 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. Ño. defense against its provisions is thus presented'by his failure to read it. Hill v. Railroad Co., 73 N. Y. 353, and cases cited; Schmieder v. Kingsley, (Com. Pl. N. Y.) 26 N. Y. Supp. 31. The presumption is-that he did read it before execution. Belger v. Dinsmore, 51 N. Y. 166; Steers v. Steamship Co., 57 N. Y. 1; Ballou v. Earle, (R. I.) 22 Atl. 1113. 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 a 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. Railroad Co., 8 Daly, 419; Schmieder v. Kingsley, supra. The judgment appealed from should, for the error above referred to, be reversed, and a new trial ordered, with costs to the appellant to abide the event.  