time later the horse, still untied, was dis- | determine. A finding that he was free from covered standing at one corner of this plat- negligence while the defendant's servant was form. The horse was restless. Starting for- | guilty in leaving the horse untied would not ward he slipped and fell. be illogical. Their relations to the animal were of a different order.

The plaintiff's intestate was the general station master employed by the railroad company, and had charge of the station. He was at work some distance away engaged in his own duties. Seeing the situation, he and a fellow employé raised the horse, quieted him, stood him again in the corner, and returned to their work, leaving the horse untied as before. A few minutes later, frightened by an in-coming train, the horse started forward, plunged, reared, and again fell. In attempting to relieve the horse and protect in-coming passengers from possible danger, the deceased received fatal injuries. In an action to recover damages for this death the complaint was dismissed by the trial court, and the appeal resulted in an affirmance by the Appellate Division.

[4] Nor do we think that the intervention of the deceased prevents the original act of negligence being the proximate cause of the accident. We attempt no general definition of these words. In the case before us the question is whether the act of the defendant gave rise to the stream of events which culminated in the accident. Was the course of the stream deflected? Was it forced into new and unexpected channels by the act of a third person? And it should be noted that here it is immaterial whether the third person was the deceased or a stranger. It is said in Shearman & Redfield on the Law of Negligence, quoted with approval in Laidlaw v. Sage, 158 N. Y. 73-99, 52 N. E. 679, 688 (44 L. R. A. 216):

The court below did not reach this result upon the ground that there was no evidence of the negligence of the defendant's driver, or that the deceased was guilty of negligence, as a matter of law, because of his action at the time of the accident itself. It was plac-between the wrongful act and injury? ed upon the theory that the defendant's negligence, if any, was not the proximate cause of the death. That cause was:

"The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred."

**

"The act of deceased and his fellow employé in leaving the horse unattended in the position where frightened or unmanageable he would cause injury to those upon the premises. * If the employés of the railroad company wished to take charge of this horse after he had wandered from the place where he had first been left by the driver, it was their duty to have led him away and to have secured him in some place where he would not be unattended and in a position to cause injury to those having to do with the railroad company's property.' There is involved in this statement the ideas that the act of deceased was negligent as a matter of law, and also that his act was the proximate cause of the injury. We do not think that the act was necessarily negligent.

[1-3] The deceased owed no duty to the defendant. His duty was to use proper care to protect the passengers of his employer and himself from injury. He had no control over the horse except what was necessary for that purpose. Why the horse was where he was, who was its driver, when the driver would return, he did not know. He had his own duties to perform. So did his subordinates. Was it necessary for the safety of himself and of passengers for him or for them to abandon those duties and guard the horse? It was a question of judgment. Nor did the fact that he raised the horse to its feet make him liable as a matter of law for all that thereafter happened until he returned it to its master. That act did not change his responsibility. He was still bound to use reasonable care for his own safety. Whether he bad used such care was for the jury to

Here, was there an unbroken connection

cause

"Did the facts constitute a continuous succession of events, so linked together so as to make a natural whole, or was there some new and independent intervening between the *In the nature wrong and the injury? * of things, there is in every transaction a succession of events, more or less dependent upon those preceding, and it is the province of the jury to look at this succession of events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and inde pendent agencies." Milwaukee & St. P. Ry. Co. V. Kellogg, 94 U. S. 469, 475, 24 L. Ed. 256.

There is no such break as a matter of law in the causal connection in the case before us. Clearly the jury might find that the innocent act of the deceased in raising the horse to its feet did not cause such a break. What he did thereafter in leaving the horse untied was simply a failure to interfere with the sequence of events to which the defendant's act had given rise. As pointed out by the Appellate Division, this failure might have been found by the jury to be negligent in case passengers had been injured thereby. It might have rendered the railroad company liable for that injury. It would not have relieved the defendant. So the jury might find that the deceased himself was guilty of contributory negligence. Its effect as a matter of law could extend no further.

The judgments appealed from, therefore, should be reversed, and a new trial granted, with costs to abide event.

COLLIN, CARDOZO, POUND, and CRANE, JJ., concur. CHASE and CUDDEBACK, JJ., dissent.

Judgments reversed, etc.

36(2) CONSTRUCTION "LOANS"-"DISCOUNTS"-"RENEWAL." "Loans" and "discounts" in their proper legal meaning do not include renewals, a "renew-cember, 1912, between the Utica City National al" not being a loan, but an extension of the time of payment, and also not in a strict sense a "discount," which is a loan coupled with deduction of the interest, but the meaning may be broadened by circumstances so as to include renewals.

a printed form. A letter to the treasurer of business life. In the thought of business men, the Utica Pipe Foundry Company explained to renew a loan or discount is to make it the situation. The explanation was coupled over again, but none the less to make it. Eswith a statement that the notes would be pecially is that so where, as here, a new note renewed. There is evidence justifying the is given at each renewal and interest paid. inference that these things were known to The triers of the facts must fix the sense in the defendant. He was a director of the which the words were used in the contract corporation; he had knowledge of the state now before us. Kenyon v. Knights Templar of its finances; he was told that the bank & M. M. Aid Ass'n, 122 N. Y. 247, 25 N. E. required the bond of the directors; he knew 299; Lamb v. Norcross Bros. Co., 208 N. Y. that some had refused to sign; and he and 427, 102 N. E. 564; Rankin v. Fidelity Ins., the treasurer talked of their refusal. The Trust & S. D. Co., 189 U. S. 242, 253, 23 Sup. conversation is not stated fully or precisely, Ct. 553, 47 L. Ed. 792. To take the primary but the purpose of the transaction can hardly or strict meaning is to make the whole transhave been unknown. The slightest inquiry action futile. To take the secondary or loose would have revealed it. One does not com- meaning, is to give it efficacy and purpose. monly put one's hand to a bond for $115,000 In such a situation, the genesis and aim of without some appreciation of the needs of the the transaction may rightly guide our choice. occasion. The defendant does not say that 4 Wigmore on Ev. § 2470; Stephen, Digest of he was quilty of such folly. There was no Law of Ev., art. 91, subds. 5 and 6. thought of a new loan. The sole end to be attained was the safety of the old loan. This the defendant must have understood. A jury could fairly draw the inference that he had knowledge of the circumstances lead ing to the exaction of the bond.

[1-4] In the light of those circumstances, therefore, the bond must be construed. The rule of construction is not changed because the defendant is a surety. Ulster Co. Savings Inst. v. Young, 161 N. Y. 23, 55 N. E. 483; Gates v. McKee, 13 N. Y. 232, 237, 64 Am. Dec. 545. We may concede that the words, when viewed alone, apart from the setting of the occasion, give support to the defense. The promise is made "on the consideration that the party of the first part shall and does make such loans and discounts in consideration of the execution and delivery of this agreement by us and each of us." This looks to the future. It excludes the past. Unless loans or discounts have been made on the faith of the bond, the consideration for the promise fails. But loans and discounts in their proper legal meaning do not include renewals. A renewal is not a loan. It is an extension of the time of payment. Brown v. Marion Nat. Bk., 169 U. S. 416, 18 Sup. Ct. 390, 42 L. Ed. 801. The loan is made but once, and that is when the first note of the series is given. For like reasons a renewal is not in the strict sense a discount. A discount is a loan coupled with a deduction of the interest. Nat. Bank v. Johnson, 104 U. S. 271, 276, 26 L. Ed. 742. There can be no deduction of interest when no money is paid by the lender from which interest can be deducted.

[6, 7] The point is made that earlier clauses of the bond exclude the broader meaning. It is said that the parties have themselves distinguished between loans or discounts and renewals. The defendant is to pay "all loans and discounts or renewals or part renewals thereof"; in consideration of this payment, the plaintiff is to make “loans and discounts" on the faith of the bond. If renewals or part renewals were to be consideration, they should have been mentioned again. The failure to repeat them means that the only renewals which the defendant is to pay are renewals of new loans and discounts. That is the defendant's argument. Its force, we think, is not controlling. The mention of renewals and part renewals in other clauses of the bond does not of necessity exclude them from the definition of loans and discounts. On the contrary, it may indicate a purpose to include them. The words may have been added, not to point a contrast or a distinction, but to amplify and explain. They have been used for greater certainty, to show the comprehensive sense in which loans and discounts were to be taken. "Or" may then be read as equivalent to "including." that was the thought, it was unnecessary to repeat the definition. The gloss, once placed upon the words, would hold good throughout the contract. Renewals had already been stated to be included. It might be taken for granted that they would not thereafter be excluded. What weight would be given to the failure to repeat the admonition was for the triers of the facts. Kenyon v. Knights Templar & M. M. Aid Ass'n, supra; Lamb v. Norcross Bros. Co., supra. Verbal niceties might yield in their minds to the overmastering consideration that, unless related to past loans, the obligation of the bond was a vain and empty form. It is easier to give a new shade of meaning to a word than to give no meaning to a whole transaction.

If

[5] The proper legal meaning, however, is not always the meaning of the parties. Surrounding circumstances may stamp upon a contract a popular or looser meaning. The words "loans and discounts" are not so clear and certain that circumstances may not broaden them to include renewals. They of- The order of the Appellate Division should ten have that meaning in the language of be affirmed and judgment absolute ordered

against the appellant upon the stipulation, of extra work from the date of presentation of with costs in all courts.

FABER v. CITY OF NEW YORK. (Court of Appeals of New York. Jan. 8, 1918.) 1. BRIDGES 20(2) CONTRACT TO CONSTRUCT FOUNDATION FOR PIER OF Bridge PLAN AS REPRESENTATION OF POSITION OF BEDROCK.

the claim to the comptroller, where the evidence does not show that the work had an established

market value, and there is a wide discrepancy

between the claim and the amount allowed.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Leander D. Faber as receiver, etc., of Patrick H. Flynn against the City of New York. From a judgment of the Appellate Division (177 App. Div. 906, 163 N. Y. Supp. 1115), affirming a judgment of the trial court dismissing the complaint, plaintiff appeals. Reversed, and judgment for plain tiff directed.

Charles L. Craig, of New York City, for appellant. Lamar Hardy, Corp. Counsel, of New York City (John F. O'Brien, of New York City, of counsel), for respondent.

A plan furnished by the city of New York to bidders and contractor to construct the foundations of the New York tower of the new East River bridge, showing the supposed position of bedrock was a representation or warranty as to the position of the bedrock, rendering the city liable to the contractor for the great additional cost of excavating caused by mistake, the con- ANDREWS, J. On October 28, 1896, the tract being made by both parties on the under-commissioners of the new East River bridge standing that the bedrock was substantially as entered into a contract with Patrick H. Flynn indicated in the plan.

2. BRIDGES 20(2)-CONTRACT FOR FOUNDATION OF BRIDGE PROVISION OF SPECIFICATION-APPLICATION.

A paragraph of the contract between the city of New York and its contractor to construct foundations for the pier of a bridge provided that "the contractor must assume responsibility for the difficulties encountered in sinking the foundations to bedrock or into it to whatever depth should be determined upon," referred to two different conditions, whereby the contractor assumed responsibility for difficulties in performance strictly according to the plans, which contemplated excavation only to the rock, and, if further excavation was required, he assumed responsibility for any difficulties encountered therein.

3. BRIDGES 20(5)—CONTRACT FOR FOUNDATION OF BRIDGE-REFERENCE TO PROVISIONS AS TO ENGINEER'S CERTIFICATE.

Provisions of a contract between the city of New York and its contractor to construct foundations for the pier of a bridge, which made the engineer arbiter with regard to the work done under the contract and required his certificate for work so done before the contractor was entitled to payment, did not have reference to a claim for damages for breach by the city.

4. RELEASE 36-RELEASE OF CLAIMS UN-
DER CONTRACT-BREACH OF CONTRACT.
Release executed to the city of New York
by its contractor, which referred only to claims
for work done under the contract, was no de-
fense to the city against the contractor's claim
for damages for breach of contract.
5. INTEREST 68-RIGHT OF CONTRACTOR-
QUESTION OF LAW.

Whether the contractor is entitled to inter-
est on the amount found by the jury to be the
value of rock excavations from the date of the
presentation of claim to the comptroller is a
matter of law.
6. DAMAGES

for constructing the foundations of the New York tower of the bridge. The contractor agreed to complete the work in accordance with certain plans and specifications. One of the plans so mentioned was No. 63, which showed details of the piers. The contractor was to receive for the completed work described in the contract and shown by the plans and specifications the sum of $367,000, such being in full for all labor and materials in case the excavation was carried down to the depth shown by such plans. The specifications state that the detailed plans accompany them and are complement and part thereof. Similar references are made to the plans in the advertisement for proposals and in the proposals themselves.

Taking these papers together, they seem to indicate that it was the understanding, both of the commissioners and of the contractor, that the excavation was designed to be carried down substantially to bedrock. The twentieth specification, for instance, provides that each caisson must be sunk to the depth shown on the plans, or to such depth as shall be required for a firm foundation for the towers. The bedrock is to be cleaned off for the whole area of the caisson. Unsound and unsuitable rock must be removed and rock of a sound and satisfactory character laid bare. If necessary the surface of the rock shall be stepped. Concrete is not to be begun until the rock surface has been examined and approved in writing by the engi

67-INTEREST-UNLIQUIDAT- neer. The twenty-first specification provides

ED DAMAGES. If a claim for damages represents a pecuniary loss which may be ascertained with reasonable certainty as of a fixed day, interest on the claim is allowed from that day.

ES

the working chamber, and that it shall be for the mixing of the concrete used to fill placed in immediate contact with a clean sound bedrock. The sixty-fourth specifica

7. INTEREST 19(2)—UNLIQUIDATED DAMAG- tion provides that bids are based upon depth CONTRACTOR TO CONSTRUCT FOUNDA of excavation indicated on the plans. The TION OF BRIDGE-EXTRA ROCK EXCAVATION. The contractor will not be allowed interest commissioners will hereafter direct the addion the amount found by the jury to be the value tional depth of excavation to be made into

For other case; sce same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the rock. If excavation deeper than that shown on the plans is required, it is to be paid for at so much per cubic yard.

for bids upon plans showing the results of such examination, the latter can be heard to say that it is not responsible, should those plans wholly misrepresent the facts. Langley v. Rouss, 185 N. Y. 201, 77 N. E. 1168, 7

Another indication that this was the understanding is that the south caisson is represented on plan 63 as somewhat deeper than | Ann. Cas. 210. the north caisson. The only explanation of this discrepancy is that the solid bedrock lay at a lower level to the south than to the north.

More important than all, however, are the indications on plan 63 itself. There the rock surface is plainly indicated, and the caissons are sunk substantially to this surface.

Under such circumstances Mr. Flynn executed the contract in question. In the course of his work, however, it was discovered that through some error on the part of the engineers employed by the commission who had prepared plan 63, the bedrock was from 8 to 9 feet nearer the surface than represented upon the plan.

The caissons as designed by the engineer were somewhat larger than the stone foundations of the towers which rested upon them. As a result at the top there was a shoulder projecting some 5 feet. They were situated under water in the East River, and reached beyond the pierhead line. To avoid creating an obstacle to navigation, it was necessary, therefore, that the shoulder should be about 38 feet beneath the surface of mean high water. This was impossible, if, placing the bottom of the caisson on the rock | surface as it actually existed, the height was still left the same as designed on the plan. Therefore, as the height of the caisson could not be shortened after the discovery was made so as to keep its top at the appropriate depth beneath the surface of the water, the contractor was compelled by the commissioners to excavate into the rock until the bottom of the caisson was the depth beneath the surface originally contemplated. This required the excavation of 2,274 cubic yards of solid rock, and the jury has found that the reasonable value of that work was $79,590.

[1] The action was tried upon the theory that a recovery was sought for a breach of contract on the ground that this work was not covered thereby or contemplated therein, and the question is whether, under the admitted facts, plan 63 constituted such a representation or warranty as to the position of the bedrock as to bind the city and render it liable for the great additional cost caused by the mistake. We have no doubt that it is such a representation. Clearly, the references to this plan contained in all the papers before us was sufficient to show that the contract was made by both parties upon the understanding and with the supposition that the bedrock was substantially as therein indicated. It would be wholly inequitable to hold that under such circumstances, where the contractor had no reasonable opportunity of discovering the truth, and where the other party had made the examination and asked

[2] The respondent calls attention to the fourth paragraph of the specifications. That provides that:

"The contractor must assume the responsibility for the difficulties encountered in sinking the foundations to bedrock or into it to whatever depth shall be determined upon. The contractor may have access for information only to the results of borings which have been made by the commissioners at or near the locations of the piers.'

As to the second of these sentences the borings referred to show the condition of the alluvial deposits above the bedrock, and have no bearing upon the question before us. As to the first sentence it refers to two different conditions. The contractor is to assume the responsibility for difficulties encountered in reaching bedrock. This refers to the contract if performed strictly according to the plans, which, as we have seen, contemplated excavation only to the rock. If, for any reason, further excavation was required, and if they deemed best the commissioners had the right to order it, the contractor was to receive so much per cubic yard. This was extra work, and if such extra work was ordered, he was then to assume responsibility also for any difficulties he might encounter.

[3] Other provisions in the contract and specifications make the engineer arbiter with regard to the work done under the contract and require his certificate for work so done before the contractor is entitled to payment. These provisions do not have reference to such a claim as the present, which is not for work under the contract, but for damages for its breach. Borough Construction Co. v. City of New York, 200 N. Y. 149, 93 N. E. 480, 140 Am. St. Rep. 633; Gearty v. Mayor, etc., of N. Y., 171 N. Y. 61, 63 N. E. 804.

[4] For the same reasons the release executed by the contractor to the city is not a defense. Gearty v. Mayor, etc., of N. Y., supra.

[5] The appellant argues that he is entitled to interest on the amount found by the jury to be the value of the rock excavations from the date of the presentation of the claim to the comptroller, May 26, 1904. Whether this be so or not is a matter of law. Mansfield v. N. Y. C. & H. R. R. R. Co., 114 N. Y. 331, 21 N. E. 735, 1037, 4 L. R. A. 566.

It is said that the amount of work done by the contractor was easily ascertainable by the defendant, and was not in dispute. It merely involved a mathematical calculation. So too the value of such work depended on prevailing prices with which the commissioners must have been familiar. This claim was for $159,180. The jury allowed $79,590.

[6] The question of the allowance of interest on unliquidated damages has been a diff.