
    Michael Rogers, Resp't, v. Peter G. Straub, Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1894.)
    
    1. Trial—Jury.
    Where the defendant goes to trial and proceeds to its close, without objection, a claim made for the first time in the requests to find, that he was entitled to a jury trial, is too late.
    8. Evidence—Parol.
    Where the parties differ as to the meaning of a term in a contract, their* statement, at its execution, is competent to show their understanding.
    Appeal from a judgment in favor of plaintiff.
    
      George W Cothran, for app’lt; Edward 0 Hart, for resp’t.
   Haight, J.

This action was brought to recover pay for a quantity of stone which the defendant had taken and carried away from the plaintiff’s premises, the-annulment of two contracts, and an injunction restraining certain alleged trespasses on the lands of the plaintiff. The judgment awards damages for the stone taken, and an injunction restraining the defendant from in any way exercising, or attempting to exercise, any of the powers or privileges granted in and by the contracts, or either of them, and from in any manner interfering with the agricultural lands of the plaintiff.

It is now claimed that the special term, sitting as a court of equity, had no jurisdiction to hear and determine this action, but that it should have been tried in a court of law before a jury. The complaint, among other things, sets forth two contracts, the latter being a modification of the former, made between the plaintiff and defendant Straub, by which the stone upon plaintiff's farm, east of Hitchin’s bridge, abutting upon the Erie canal, was sold to the defendant, and an option given to him as to the stone lying west of such bridge; that he bad taken and carried away a large quantity of stone, and had not paid therefor; that the defendant had not performed the contract on his part; that he had committed numerous trespasses, and had deposited crushed stone upon the plaintiff’s agricultural lands, permanently injuring the same. The plaintiff demanded judgment for. the stone taken, that the contracts be decreed abrogated, and that the defendant be 'enjoined from thereafter prosecuting operations thereunder. The complaint was evidently ■prepared for the purpose of obtaining equitable relief, and some of the allegations are of an equitable nature, but whether they are sufficient we do not think we are called upon to determine. The allegations of the complaint are sufficient to authorize the recovery of a judgment for the contract price of stone sold and delivered. The answer contains no allegation to the effect that the plaintiff had an adequate remedy at daw. So far as the case shows, the defendant went to trial before the special term without raising any question as to the power of that court to hear and determine the same, proceeded with the trial to its close, submitted requests to find, and then in such respects, for the first time, made the claim that he was entitled to a trial by jury. We think this was too late; that, if he had a right to such a trial, he had waived the same. Town of Mentz v. Cook, 108 N. Y. 504, 508 ; 13 St. Rep., 845 ; Ostrander v. Weber, 114 N. Y. 95, 102 ; 22 St. Rep., 979; Weaver v. Haviland, 68 Hun, 376 381; 52 St. Rep., 311.

Upon the trial the plaintiff offered to show what the words “dimension stone” meant, as they appear in the contract. The court, under objection of the defendant, premitted the witness to answer as to what was said by the parties in reference to the meaning of such term at the time the contract was made. It is claimed that this evidence tended to vary the contract,"but we do not so understand it. Under the provisions of the contract the defendant was to pay $11 per canal-boat load for dimension stone, and $6 per canal-boat load for stone suitable for concrete, west of the Hitchins bridge. A question had arisen as to whether the stones taken were dimension stones or stones for concrete. The parties differed as to the meaning of the term, and it appears to us that their statement as to such meaning at the time the contract was entered into, as showing their understanding of the term, was competent.

Upon the cross-examination of the defendant he was required to state the amount he received per cord for such stone- in the city of Buffalo, and also the amount that he received for crushed stone. This doubtless would have been incompetent had the defendant not previously shown, upon his direct examination, what the same was worth. Again, it is claimed that the court should have found that the dimension stones were stones of a suitable size and quality to be cut so as to be used as first-class building stone; but upon this question we understand the evidence to be conflicting, that of the plaintiff differing from that of the defendant. It is ■claimed that the testimony of the defendant upon that subject is corroborated. But the first contract entered into between the parties contains the expression “of the larger sizes, or dimension stone.” Here we have the term “larger sizes” used synonymously with the term “dimension stone,” one term meaning the same as the other. This supports the plaintiff’s contention, and we do not think it is weakened by the later contracts where the term “dimension stone" alone is used.

The witness Mahoney testified to his keeping an account of the stone taken by the defendant, and of reporting the same to the plaintiff; that on one occasion the defendant asked him to report but two boat loads to every three taken. This evidence was given without objection, but a motion was subsequently made to strike " it out, which was refused. If the testimony, at the time it was given, was objectionable, it was subsequently made competent when the defendant was sworn ás a witness in his own behalf.

It appears from the exhibits in the case that at the time of the trial the defendant had transferred all his interests under the contracts with the plaintiff to the Buffalo Stone Company, and that that company had transferred its interest to the German Rock, Asphalt & Cement Company, Limited, of the city of Buffalo, and that company had entered into a new agreement with the plaintiff. Perhaps, under the circumstances, the trial court might properly have withheld the injunction, but we are unable to see how it does the plaintiff any good, or the defendant any harm. We think, therefore, that the judgment should be affirmed, with costs. All concur.  