in, the lessee having at that time a quantity of hay in the barn. March 18th the lessee and litigants met at the barn, measured off a quantity of hay which the lessee should leave to perform his contract, and afterwards the lessee drew away the remainder.

The question is: Who, then, acquired title to the hay,-the plaintiff, under his bill of sale from Dixon, or the defendant, under his deed from Dixon? When Dixon conveyed this farm to the defendant, the former had no title to any portion of the hay. All of it could have been taken on execution against the lessee, or his vendee would have acquired a perfect title. The right of Dixon to be paid in kind for the hay which he, in 1890, sold to or left for the lessee, was not an incident to the lease. This right did not arise out of the future occupation of the farm, nor was it to be returned as part of the rent for the premises. The covenant was merely an executory right of action, which was to be satisfied by the delivery of a like quantity of hay at the end of the term, which right did not pass to the grantee, the defendant under the deed, but did pass under the bill of sale to the plaintiff; and when the hay left in payment was agreed upon and set apart, by consent of all parties, it became the property of the plaintiff, who thereupon acquired the legal title to, and became entitled to the immediate possession of, the hay, just as Dixon would have acquired title by its being set apart had he not made the bill of sale or deed. This title and the right of possession were disputed by the defendant, and the plaintiff was entitled to maintain this action to recover the hay. There was no question of fact for the jury, except as to the value of the hay; and the learned court committed no error in its rulings on the admission or rejection of evidence, or in its instructions to the jury bearing upon this question. The judgment and order should be affirmed, with costs. Judgment and order affirmed, with costs. All concur.

(4 App. Div. 503.)

COHEN v. SILVERMAN.

(Supreme Court, Appellate Division, Fourth Department. April, 1896.) 1. CONTRACTS-INTERPRETATION.

Defendant, who was engaged in the business of lending money on chattel mortgages and pledges, and selling jewelry and merchandise on installment contracts, sold the business to plaintiff, under a written contract guarantying the title to all pledges and the collection of all mortgages, but requiring plaintiff to signify her dissatisfaction with any mortgage or the title to any property within three months from the date of the contract, and, if dissatisfied with any such title, to foreclose the mortgage "at once." Held, that the contract did not require plaintiff to foreclose a mortgage within three mouths from the date of the contract.

2. WORDS AND PHRASES.

The term "at once" does not mean instantaneously, but within a reasonable time.

Appeal from judgment on report of referee.

Action by Elizabeth Cohen against Rebecca Silverman. The complaint was dismissed, and plaintiff appeals. Reversed.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD, and GREEN, JJ.

E. N. Wilson, for appellant.
Frank Hopkins, for respondent.

FOLLETT, J. On March 15, 1890, the defendant was, and for some years before had been, engaged, at the city of Syracuse, in the business of loaning money on chattel mortgages, pledges, and notes, and in selling jewelry and merchandise on installment contracts. On the date mentioned, the litigants entered into a written contract, by which the defendant agreed to sell and the plaintiff to purchase the aforesaid business upon terms specified. The contract contains the following provisions:

"Said first party [defendant] further agrees that she will guaranty the title to all pledges now in her possession, and which she will hereafter by bill of sale transfer to said second party [plaintiff]. Said first party [defendant] further agrees that she will guaranty unto said second party [plaintiff] the collection of all mortgages turned over by her, and now owned by her, if the second party [plaintiff] shall be dissatisfied with her security, or with the title to the property covered by such mortgages, within three months from the time when the bill of sale hereinbefore referred to shall be executed by said first party [defendant] to said second party [plaintiff). If said second party [plaintiff] becomes dissatisfied with any such title she shall foreclose the same at once, if the same can be foreclosed by its terms; and if there be any deficiency or any mistake of title in the said goods, then the said first party [defendant] agrees to make the second party [plaintiff] whole by paying whatever deficiency shall occur, and interest at the rate of six per cent. from the time said second party [plaintiff] advances said money to the time when it shall be demanded of said first party [defendant]. Said parties further agree that, should there be any chattel mortgages upon which there is due more than one commission, and should the same be foreclosed by said second party [plaintiff), and the deficiency be found, she, the said second party [plaintiff), agrees to claim only what she has paid for said chattel mortgage from said first party [defendant], allowing said commission to be deducted. And the said first party [defendant] further agrees to guaranty the payment to said second party [plaintiff] of all notes and orders or bills of sale, which she will transfer to said second party [plaintiff], which are not otherwise secured, and also the payment of all goods which have been sold upon contract and not otherwise secured."

Afterwards an inventory of the property, described in general terms in the foregoing contract, was made, and on the 1st day of April, 1890, the defendant executed and delivered a bill of sale of the property, a schedule of which was annexed. The bill of sale contains the following provisions:

"Said first party [defendant] further guaranties unto the said second party plaintiff] the collection of all mortgages turned over by her and now owned by her; but said second party [plaintiff] must signify her dissatisfaction with such mortgage, or the title to the property covered by such mortgage, within three months from the date hereof, and when second party [plaintiff] signities such dissatisfaction, said first party [defendant] agrees to make such title good; but if the same is not done within three months, said second party [plaintiff] is bound to keep the same. If said second party [plaintiff] becomes dissatisfied with any such title she shall foreclose the same at once, if the same can be foreclosed by its terms; and if there be any deficiency or any mistake of title in the said goods, then the said first party [defendant] agrees to make the said second party [plaintiff] whole by paying whatever deficiency shall occur, and interest at the rate of six per cent. from the time said second

party [plaintiff] advances said money to the time when it shall be demanded by the said first party [defendant]. Said second party [plaintiff] further agrees that, should there be any chattel mortgage upon which there is due more than one commission, and should the same be foreclosed by the second party [plaintiff), and a deficiency be found, then said second party [plaintiff] agrees to claim only what she has paid for said chattel mortgage to said first party [defendant], allowing said commissions to be deducted. And the said first party [defendant] hereby guaranties the payment to the said second party [plaintiff] of all notes, orders, and goods sold upon installment plan, which said notes, orders, and goods are hereby transferred to said second party [plaintiff]."

On the 13th of June, 1890, the plaintiff personally served upon the defendant a written notice expressing her dissatisfaction with certain chattel mortgages, bills of sale, notes, pledges, and installment contracts which were mentioned and described in a schedule annexed. The reasons for her dissatisfaction were set forth. The defendant refusing to make good her guaranty in respect to any of the securities, this action was begun on the 16th of September, 1890. The learned referee finds that the chattel mortgages were not foreclosed until after July 1, 1890, and held, as a conclusion of law, that, by the terms of the bill of sale, the plaintiff was bound to foreclose them before that date. In this construction of the contract we think the learned referee erred. The contract and the bill of sale required the plaintiff to express her dissatisfaction with any of the securities before the 1st of July, 1890, but we fail to find any provision which required the plaintiff to foreclose the mortgages on or before that date. The plaintiff had until the very last day of June to express her dissatisfaction, and she could not have availed herself of the provisions of the contract and foreclosed the mortgages before July 1st. By the contract and the bill of sale, the plaintiff, upon becoming dissatisfied with any of the mortgages, was required to foreclose them "at once," but, as we read the contract, not until after she had become dissatisfied with them. The term "at once," like the words "forthwith" and "immediately," does not mean instantaneously, but requires action to be taken within a reasonable time (Bennett v. Insurance Co., 67 N. Y. 274; Bamforth v. Raddin, 14 Allen, 66; Roberts v. Brett, 11 H. L. Cas. 337; Oldershaw v. King, 2 Hurl. & N. 399, 517), which, under the circumstances of this case, was a question of fact, to be determined by the referee; and the conclusion of law of the learned referee that, because the mortgages were not foreclosed before July 1, 1890, the plaintiff lost her remedy, cannot be sustained. Of course, the plaintiff was bound to exercise due diligence to attempt to foreclose the mortgages, and to collect the obligations; but in cases where neither the mortgagors nor the mortgaged property could be found by the exercise of diligence, a foreclosure was not required in order to perfect the plaintiff's right of action. The judgment should be reversed, and a new trial granted, with costs to abide the event. Judgment reversed, and a new trial ordered, with costs to abide the event. All concur.

(4 App. Div. 511.)

AYRES v. DELAWARE, L. & W. R. CO.

(Supreme Court, Appellate Division, Fourth Department. April, 1896.) CARRIERS-INJURIES TO PASSENGERS-MAIL BAG THROWN FROM TRAIN.

In an action for injuries to a passenger caused by stumbling over a mail bag lying on the station platform, between the waiting room and the passenger car, several witnesses for plaintiff testified that they had seen mail bags thrown on the platform many times during the preceding two years. Defendant's station agent testified that sometimes mail was thrown out of the mail car, but that he never knew it to be thrown at the place where plaintiff was injured. The conductor of the train, a trainman, and the person who carried the mail between the post office and the train testified that they never knew of mail bags being thrown off on that side of the station. Held sufficient to sustain a finding that defendant knew of the practice of throwing mail bags from the train on the platform.

Appeal from circuit court, Oneida county.

Action by Emma F. M. Ayres against the Delaware, Lackawanna & Western Railroad Company for personal injuries. From an order entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals. Affirmed.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD, and GREEN, JJ.

William Kernan, for appellant.

William Townsend, for respondent.

FOLLETT, J. This action was begun November 12, 1891, to recover damages for a personal injury caused, it is alleged, by the negligence of the defendant. October 24, 1891, the plaintiff purchased of defendant a ticket at North Brookfield for Utica, for the purpose of taking passage on train No. 3, due at North Brookfield at 5:33 p. m. On this date the train arrived at North Brookfield at 9 minutes past 6 and left at 10 minutes past 6, it being 36 minutes late. This train carried the United States mail, and had for 12 or 13 years. The mail was in the charge of a postal clerk, who, on the occasion in question, threw a mail bag from the mail car to the station platform about the time that the train came to a stop. The bag fell upon the platform about 30 feet south of the waitingroom door and between it and the passenger car. The plaintiff, in going from the waiting room to the passenger car, fell over the bag, and was injured. She was assisted to the car, and rode to Utica, there took a New York Central train to Albany, at which place she took a Delaware & Hudson train for Saratoga, her home, arriving there at about 3 o'clock on the morning of October 25th. It is asserted that the accident caused severe and permanent injuries, from which the plaintiff has not recovered. October 24th the sun set at 5:05, and the accident occurred 1 hour and 5 minutes after sunset. It is alleged that the defendant was negligent (1) in permitting the mail bag to be thrown upon the platform between the waiting room and the passenger car, and (2) in not light

ing the platform so as to enable passengers to see and avoid obstructions.

There is no dispute in the evidence that the mail bag was thrown upon the platform, and lay between the door of the waiting room and the passenger car. There was no gas nor electricity at this station, and the only means of lighting it was by lamps. There was a lamp, with a reflector, affixed to the exterior wall of the station, for the purpose of lighting the platform, which, at the time of the accident, was not burning. Two or three hanging lamps in the waiting room, one of which hung in a bay window, and a hand lamp in the ticket office, were lighted, and the lamps in the cars were burning. It is contended by the defendant that the light from these lamps, shining through the doors and windows of the depot opening upon the platform, with the lamps in the train, sufficiently lighted the platform to have enabled the plaintiff, by the exercise of due diligence, to have avoided the mail bag, and escaped injury. On the other hand, the plaintiff gave evidence that the platform was not sufficiently lighted to have enabled her, by the exercise of diligence, to have avoided the mail bag which lay in her path. On the trial much evidence was given on each side of this issue, and so much and of such a character that it became a question of fact for the jury, and its finding on this issue cannot be disturbed. When this action was first before this court (28 N. Y. Supp. 789) it was held, following Carpenter v. Railroad Co., 97 N. Y. 494, Muster v. Railroad Co., 61 Wis. 325, 21 N. W. 223, and Snow v. Railroad Co., 136 Mass. 552, that the defendant was liable for the injury, the plaintiff being free from negligence, in case the platform, on the occasion of the accident, was insufficiently lighted, and in case the defendant knew, or ought to have known, that the postal clerk was accustomed to throw mail bags on the platform at this station. The rule there laid down must be regarded by this court as the law of this case. On this trial the plaintiff called three witnesses who testified to the practice of the postal clerk. One swore that he had seen mail bags thrown onto the platform from this train by the postal clerk more than 100 times within two years preceding the accident. Another witness testified:

"Prior to the 24th of October, 1891, the mail clerks generally throwed the mail bag right off on the platform south of the depot. It usually struck right close by the cars as they passed along. They used to sometimes kick it out with their foot. It would strike anywhere from ten to thirty feet south of the depot. That custom had continued ever since I kept the hotel,-since 1884,-from 1884 to 1892."

This witness kept a hotel from 1884 to 1892 near this station, from which he could see the station and platform. Another witness testified that, within two years prior to the accident, he had seen mail bags lying on the platform about the time this train passed, on 15 or 20 occasions. Upon this issue the defendant called the agent at this station, who testified that sometimes the mail bag was kicked out of the mail car north of the bay window as the train passed, but that he did not remember ever having seen it thrown off south of the waiting-room door before the night of the