It is not suppose any such intention on the part of these two defendants ever existed. The intention of both the plaintiffs and these two defendants was that the agreement, when made and perfected at all, should be in writing; and they finally concurred in the agreement C as correctly expressing the agreement which the four parties desired should be made, executed, and delivered. It could not be said, fairly, under the evidence, that there was any understanding by any of the four parties that an agreement was to be regarded as made or perfected until all the four defendants should have concurred in signing and delivering the agreement C. quite apparent that the two defendants who negotiated and assisted in formulating the agreement C were unwilling to make any agreement by themselves which the other defendants would not concur in. These two defendants were careful not only to require the other two defendants to join in the agreement, but also to have the approval thereof of the beneficiaries under the will of their testator; and to this end application was made to the court in behalf of one of the beneficiaries, who was of unsound mind, for leave to give such approval and ratify such agreement, which the court granted. An examination of the evidence given by the several witnesses, and the correspondence relating to the matter, which appears in the record, leaves no doubt in our minds as to the correctness of the decision by the trial court that the negotiations between the two plaintiffs and the two defendants never ripened into a perfected agreement. Certainly the other two defendants never concurred in any such agreement, by parol or otherwise, and never signed the agreement C, and this agreement was concededly never delivered. Upon this branch of the case we fully concur with the decision of the trial court. We cannot, however, agree with the conclusion arrived at by the trial court, that the whole complaint should be dismissed upon the merits, upon the theory that the action was one to compel specific performance of the agreement C alone, and that, failing to establish the right to that relief, the court could not consider, investigate, or pass upon the other relief asked for by the plaintiffs, the settlement of the rights of the parties, under subdivision 15 of the original partnership agreement A, and the enforcement of the performance thereof by the defendants. This question was fairly presented on the trial, and it seems to us that the plaintiffs' position with reference to it is unanswerable. At the close of the plaintiffs' evidence the defendants asked the court to compel the plaintiffs to state whether they relied upon more than one cause of action, and, if so, that they be compelled to elect upon which one they relied, and asked for judgment upon. The plaintiffs stated that they relied upon the facts alleged in the complaint, and claimed the right to either form of relief asked for in the complaint which the court should hold that the facts proved entitled them to. They claimed the right to have specific performance of the agreement C, or, failing in that, then specific performance of subdivision 15 of the agreement A. The court, however, held that but one cause of action was stated, and that was to enforce the agreement C, and plaintiffs duly excepted. Thereupon the evidence on the part of the defendants was given, and the decision of the court was made, which dismissed the complaint on the merits, on the grounds, solely, that the agreement C was never made, executed, or delivered, and, if so made, would not be enforced in equity. The decision was excepted to by the plaintiffs as a whole, and as to each part separately. The complaint, after setting forth the agreements A and B, alleged the notice by defendants, under subdivision 14 of the agreement A, to terminate the co-partnership at the end of the first five years, and notice by plaintiffs that, under subdivision 15 of the agreement A, they claimed the right to purchase the interest of the defendants' testator in the business and assets of the firm; that thereupon an attempt was made to ascertain and agree upon the amount to be secured and paid by plaintiffs for such interest; that the plaintiffs claimed that the amount, às ascertained pursuant to subdivision 15 of the agreement A, was $609,000; and that the plaintiffs were ready and willing to pay this amount of money and give the security therein provided for, but the defendants claimed that the amount to be so secured and paid should be much larger than $609,000. It was further alleged that the defendants expressed dissatisfaction as to the terms of payment, the rate of interest, and the security provided for by subdivision 15 of the agreement A, and desired to have such terms modified, and said that if such change could be made they would consent to a reduction of the amount of the purchase price of the interest which they (defendants) claimed it really was or should otherwise be, and that thereupon the negotiations followed which the plaintiff's claimed matured into the agreement C. The complaint also alleged the refusal by defendants to carry out the terms of either the agreement C, or of subdivision 15 of the agreement A. The relief asked for was the enforcement of the agreement C, or of subdivision 15 of the agreement A. We are not called upon to determine whether, upon the evidence given at the trial, relief should have been afforded to the plaintiffs under subdivision 15 of the agreement A, because, while the case was being tried, and before all the evidence was taken, the court held that under the pleadings no such relief could be had; and the only question, therefore, is whether the court was right in giving such effect to the pleadings. If it was not, then the case should go back for a new trial, and the court should take all the evidence bearing upon this branch of the case, and pass upon the question upon the merits. Moreover, no question was raised that the proofs were insufficient to authorize the court to afford such relief. The only question raised was whether the relief could be had under the pleadings, and the dismissal of the complaint was put solely on this ground of defective pleadings. By virtue of the defendants' election to discontinue the co-partnership at the end of the first five years, and the plaintiffs' election to purchase the interest of defendants' testator, the plaintiffs were entitled to a transfer of such interest upon giving the security and paying the amount of the purchase price, to be determined under the provi sions of subdivision 15 of the agreement A. A controversy having arisen as to what amount of such purchase price should be computed and fixed at under the terms of such subdivision 15, it was competent for the parties to adjust and compromise their differences. And then, if they did not or could not perfect such agreement and compromise, and the defendants refused to carry out the provisions of subdivision 15 of the agreement A because they could not agree as to the purchase price, it was proper for plaintiffs to appeal to the court, and ask it to settle the rights of the parties, and compel a compliance with the provisions of the agree ment. Such was the position of the case when the court found the agreement C had not been made, executed, or delivered, and that no agreement by parol to the like effect had been made. Certainly the plaintiffs were entitled to have the other branch of the case considered by the court, and the merits relating thereto passed upon. It is hardly necessary to cite any authority for this proposition. The following cases may be referred to, however, as supporting the view taken by us: Bennet v. Vade, 2 Atk. 324; Colton v. Ross, 2 Paige, 396; Lloyd v. Brewster, 4 Paige, 537; New York Ice Co. v. North Western Ins. Co., 23 N. Y. 357; Barlow v. Scott, 24 N. Y. 40; Sternberger v. McGovern, 56 N. Y. 12, 21; Hall v. Hall, 38 How. Prac. 97. Our conclusion is that the judgment should be reversed, and a new trial ordered, with costs to abide event. All concur. (7 App. Div. 175.) WILSON v. DICKEL et al. (Supreme Court, Appellate Division, First Department. June 29, 1896.) TRIAL-INSTRUCTIONS-CONFUSING SEPARATE GROUNDS OF LIABILITY. In an action for personal injuries caused by the slipping of a saddle on a horse hired by plaintiff from defendants, the complaint charged defendants with negligence-First, in failing to furnish plaintiff with a properly equipped saddle and horse; and, second, in failing to place them in his hands, with the saddle properly adjusted. The evidence showed that the failure to adjust the saddle properly either had no bearing on the accldent, or that plaintiff assumed the risk; but there was evidence that the saddle was in a defective condition. The man in charge of defendants' saddle room was called as a witness, and produced a saddle which he testified was the saddle used on the occasion of the accident. Held, that a charge that if the jury "find that that is the saddle, and that that saddle is all right, and was properly adjusted and girded, then you will find for the defendants; but it might have been that saddle, and not properly girded," was improper, as confusing the two grounds of liability. Appeal from trial term, New York county. Action by John C. Wilson against Charles W. Dickel and others for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $400 damages and $193.54 costs, and from an order denying a motion for a new trial, defendants appeal. Reversed. The action is to recover damages for personal injuries suffered by plaintiff through the alleged negligence of the defendants. The defendants were copartners, conducting a riding school and letting horses for hire, and at the time the injuries were received the plaintiff was a pupil of the defendants, and had taken sufficient lessons in horseback riding so that he "felt perfectly able to go out with a well-trained horse." In company with a Mr. Stockholm on July 3, 1892, plaintiff went to defendants' riding academy, and ordered horses to be saddled and equipped, which were brought, and they started on a ride through Central Park. Plaintiff's horse was a good one, spirited, and well trained, and the plaintiff liked him. He had ridden him before. While in the park, Mr. Stockholm noticed that plaintiff's saddle was giving way, or seemed to be moving from position, and suggested to plaintiff that they get a mounted policeman, who was in sight, to fix it. Plaintiff dismounted, and the policeman, at plaintiff's request, tried to adjust the girths of the saddle. He testified that he found the straps in poor condition. There were two girths with three straps on the saddle. One girth had two buckles; the second, one buckle. On one strap the tongue of the buckle was short, and would not hold; another strap was split from hole to bole; so that there was but one buckle that held anything at all. The policeman called plaintiff's atten tion to that condition, and remarked that it was an outrage to allow anything like that to go out. He tightened the girths as well as he could, and told the plaintiff that was the best he could do, and that he guessed it would hold. The plaintiff and Mr. Stockholm then proceeded on their ride, going through the park, and on up to Claremont, where they stopped about half an hour, giving their horses to the attendants there, and then started back. On remounting at Claremont, plaintiff did not examine the girths of his saddle, nor did he ascertain whether the girths had been loosened while the horses had been in the stable. While going down Riverside Drive at a gallop, the road at this point being a little down grade, the plaintiff felt the saddle suddenly slip and turn, and he went off, and struck on his head, and was painfully injured. Up to that time no inclination of the saddle to slip had been noticed since leaving Claremont. The horse was caught by a boy, and a policeman put the saddle back on the horse, and the boy rode the horse with the saddle to defendants' stable. Mr. Stockholm testified that this policeman called his attention to the fact that the leather strap was rotten, and that he (the witness) observed that the buckle tongue had gouged the leather out, and drawn by for three or four holes, slipping from hole to hole. The man having charge of the defendants' saddles was examined, and he produced a saddle in good condition, without any tears in any of the straps between the different holes, which he testified was the same saddle that was on the horse when he came into the stable after the accident. The plaintiff paid out $375 for doctors' bills, trained nurses, etc., and the jury brought in a verdict against the defendants in the sum of $400. A motion for a new trial was made and denied, and from the order denying the motion, and from the judgment entered upon the verdict, the defendants appeal. Argued before VAN BRUNT, P. J., and WILLIAMS, PATTERSON, O'BRIEN, and INGRAHAM, JJ. Henry B. Anderson, for appellants. O'BRIEN, J. The negligence of the defendants was predicated upon the failure-First, to furnish the plaintiff with a properly equipped saddle and horse; and, second, to place them in his hands with the saddle properly adjusted. These grounds, because not consistent, should not be confused; and unless there was evidence to sustain a recovery upon either ground, and unless the distinction between the separate grounds was clearly presented for the consideration of the jury, confusion was likely to ensue and a mistrial occur. Upon the question of whether or not the defendants failed in their duty to place the plaintiff in possession of a saddle properly adjusted upon the horse, the evidence shows that, after leaving the stable, and upon reaching the park, the attention of the plaintiff was called to his saddle, and thereupon it was adjusted by a police officer, and thereafter the plaintiff continued his ride, and, after reaching Claremont, at the upper end of Riverside Drive, the horse was placed in the shed, where he remained for half an hour. While it was suggested that it was the custom to loosen the saddle while the horse was standing, and then to adjust it again when the party was ready to remount, there is no evidence directly upon that point; but we have the fact that the plaintiff, either with or without examining whether the saddle was properly adjusted, remounted, and proceeded to ride home. In this state of the record it is clear that the defendants could not be held responsible for the injuries which the plaintiff suffered if they resulted from an improper adjustment of the saddle upon the horse, because such obligation as rested in this respect upon the defendants was violated at the time the horse left the riding academy, and, it appearing that the attention of the plaintiff was called to that fact, and that the saddle was adjusted in the park, and the plaintiff thereafter continued to ride, we are necessarily brought to the conclusion, either that the failure to adjust the saddle properly in the first instance had no bearing upon the accident which culminated in the injuries, or, if we assume that the saddle left the riding academy without being properly adjusted, the plaintiff had notice of this fact, and undertook to remedy it; and if, without doing it so as to render the saddle safe, he proceeded on his ride, he was guilty of negligence which contributed to his injuries, and which would bar his recovery. In the condition of the record, therefore, as it stood at the close of the case, it became the duty of the court to dismiss from the consideration of the jury this ground of recovery, and, if the plaintiff was entitled to damages, it could only be upon the other ground, namely, that the defendants failed in their duty to furnish the plaintiff with a properly equipped saddle and horse. There was testimony unquestionably from which the jury could infer that the accident was due to this cause, the evidence pointing to the fact that the saddle was in poor condition, the buckles and leather composing the straps permitting the tongue of the buckle, when a strain was placed on the horse, as in galloping down hill, to draw through the leather, and thus, by increasing the size and length of the saddle girths, to permit the saddle itself to slip. The plaintiff could not, as matter of law, be held guilty of negli gence in assuming that the saddle was equipped with all necessary and proper appliances; and, as the question whether the officer in the park called attention to the fact that these defects rendered the saddle unsafe was placed in dispute by the testimony of the officer and that of the plaintiff, the latter stating that upon adjusting the saddle he was told by the officer that it would hold, the question of plaintiff's contributory negligence, therefore, was one of fact to be disposed of by the jury. In his charge, however, the judge neglected to present clearly the two distinct theories upon which a recovery was sought, or, as stated, to eliminate from the consideration of the jury the question of the adjustment of the saddle. The man in charge of the defendants' saddle room was called, and brought with him a saddle and girths complete, which were in a perfectly proper condi |