and 118 New York State Reporter attorneys. The plaintiff made a motion for judgment on the pleadings, which motion was granted, and from the order entered on said motion, and the judgment entered on said order, the defendants appeal to the Supreme Court. A frivolous answer is one which denies no material allegation of the complaint, sets up no defense, and is so manifestly insufficient on its face that a mere inspection, without any argument, will suffice to recognize its defects. Judgment for frivolousness cannot be given where parts of the answer are good, even if the rest be frivolous. Bank v. O'Rorke, 6 Hun, 18; Hull v. Smith, 8 How. Prac. 149; Bank v. Kroder, 13 Misc. Rep. 192, 34 N. Y. Supp. 133; Crucible Co. v. Steelworks, 9 Abb. Prac. N. S. 195. The third paragraph of the complaint alleges that "the plaintiff has duly demanded the same [$200] from said defendants, but that no part thereof has been paid." The answers deny "the third allegation of the plaintiff's complaint.' This seems to raise an issue as to the claim that no part of the $200 has been paid. The answers also deny that defendant Hyman has failed to comply with the conditions of the bond, and they deny that $200 are due and owing from defendants to plaintiff. We think the court. below fell into error in concluding that the answers denied no material allegation of the complaint, and were manifestly insufficient on their face. The judgment and order are reversed, and the motion for judgment on the pleadings denied, with costs. FREEDMAN, P. J., concurs. TRUAX, J. I concur in the result. The first paragraphs of the answers herein contain denials of a material allegation of the complaint. All concur. LIPPS et al. v. MARKOWITZ et al. (Supreme Court, Appellate Term. June 22, 1903.) 1. APPEAL STIPULATION PRECLUDING APPEAL. Where a stipulation waives all objections to the evidence, and authorizes the justice to render any judgment he sees fit, on the evidence, an appeal will not lie. Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Philip Lipps and another against Bernard Markowitz and another. From a judgment for defendants, plaintiffs appeal. Affirmed. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. Abraham Brekstone, for appellants. Louis B. Boudin, for respondents. MacLEAN, J. The plaintiffs are manufacturers of clothing, and the defendants are contract tailors. This action was for the recovery of certain vests, delivered-the plaintiffs claim-to the defendants, to be made, and which they failed to return. The defendants denied retaining the vests without cause, claiming a lien upon them for services, and for the latter set up a counterclaim. Testimony was given at the trial as to how many vests were delivered, and how many were returned, and as to whether a demand had been made. After the case was submitted, however, a stipulation was entered into between the parties, waiving any and all objections to the evidence, and giving the justice "power to decide the entitled cause on the whole evidence, and render any judgment that he saw fit," or, in effect, making the learned justice an arbiter of the whole controversy between the parties. In view of that stipulation, the appeal seems scarcely explicable. Judgment affirmed, with costs to the defendants. All concur. HUCK v. BISCHOFF. (Supreme Court, Appellate Term. June 22, 1903.) 1. APPEAL-OBJECTIONS. Where no exception was taken to any admission or exclusion of evidence, objection cannot be raised on appeal. 2. SALES-WARRANTY-BREACH-WAIVER. Where the purchaser of a warranted machine retained it after discovery of defects, and made payments on the price because the seller promised to make good the defects, which promise was not fulfilled, there was no waiver of the breach of warranty. Appeal from Municipal Court, Borough of Manhattan, Third District. Action by Francis A. Huck against Emil Bischoff. From a judgment in defendant's favor, plaintiff appeals. Affirmed. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. Gifford, Stearns & Hobbs, for appellant. GILDERSLEEVE, J. The action is on a promissory note. The defense is that the note was given to plaintiff's assignor for a gas machine, which said assignor warranted had been accepted by the Board of Fire Underwriters and was on their accepted list, and also that said assignor guarantied that said machine was safe and reliable, and made in a workmanlike manner from heavy, galvanized sheet steel. It was conceded at the trial that the machine in question was not on the accepted list of the Board of Underwriters, and defendant also presented evidence to show that the machine was unsafe, unreliable, and worthless. The justice gave judgment for defendant. On appeal, plaintiff urges improper admission of evidence, a waiver of the breach of warranty, and that the judgment was against the 11. See Appeal and Error, vol. 2, Cent. Dig. § 1503. and 118 New York State Reporter evidence. As the first point was not raised at the trial, and as no exception was taken by plaintiff to any admission or exclusion of evidence, it is unavailable on appeal. As to the alleged waiver of the breach of warranty, defendant's evidence satisfactorily shows that if he kept the machine, and paid money on account of the purchase price, after discovering the defects of the machine, it was because plaintiff's assignor promised to make good the defects. This promise, however, was not fulfilled. There was no waiver of the breach of warranty. As for the weight of evidence, we find sufficient testimony to sustain the finding of the justice. Judgment affirmed, with costs. All concur. DRUSS et al. v. ROSEN. (Supreme Court, Appellate Term. June 22, 1903.) 1. PAYMENT PRIOR TRANSACTIONS-EVIDENCE. Where defendant, to prove payment, offers checks for a larger amount than plaintiff's bill, plaintiff may show that the checks were in payment of prior transactions, over objection that the evidence was not within the pleadings. Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Henry Druss and another against Max Rosen. From a judgment for plaintiffs, defendant appeals. Affirmed. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. Jacob Rabinowitz, for appellant. MacLEAN, J. In an action for goods sold and delivered, the defendant set up two defenses-a general denial and payment. Το prove the latter, he offered in evidence checks for a larger amount than the whole bill of the plaintiffs, who, in rebuttal, showed prior transactions, and claimed that the checks of the defendant were given in payment of them. The defendant appeals upon his objections, taken with exceptions, that it was improper to receive evidence of sales not within the pleadings, to amend which accordingly no motion was made. The propriety of the testimony given as to anterior transactions is apparent upon inspection of the checks put in evidence by the defendant himself. The judgment should be affirmed. Judgment affirmed, with costs to the respondents. All concur. THYLL v. NEW YORK & L. B. R. CO. et al. (Supreme Court, Appellate Term. June 30, 1903.) 1. CARRIERS-LIMITING LIABIlity-Burden of PROOF. Where a shipping contract exempts the carrier from liability for damages by wet, the shipper must establish that the carrier negligently permitted the goods to become wet, by proving affirmatively some specific act of negligence as the proximate cause of the injury. 2. SAME-CONNECTING CARRIERS. Where a shipping contract exempts the carrier from liability for damages by wet, and limits its liability to damages occurring on its own line, evidence that within a reasonable time it delivered plaintiff's goods at the freighthouse of another company in the same condition in which they were received, and that at no time were they exposed to the weather, is sufficient to relieve the carrier from liability for damages because the goods were wet when finally delivered. 3. SAME-DAMAGE TO GOODS-EVIDENCE-SUFFICIENCY. Where goods shipped from a foreign country, and packed in a straw hamper, which afforded no protection against dampness, were found to be injured by damp when received, that they remained in the warehouse of the delivering carrier for some days, during which time it rained incessantly, and that the hamper stood near the door of the freighthouse, without any positive evidence that the goods were rained on, is not sufficient to show the goods were damaged in such carrier's possession, when met by evidence that the freighthouse did not leak, that the doors were constantly closed, and that the hamper was not rained on or leaked on while in the freighthouse. 4. SAME-CONDITION OF GOODS-RECEIPTS. A receipt by a carrier for goods "in apparent good order, except as noted (contents and condition of contents of packages unknown)," raises no presumption against the carrier as to the actual condition of the goods when received, and the burden rests on the shipper to show they were in good condition when received. 5. SAME CARRIER'S COMMUNICATION TO SHIPPER EVIDENCE. A communication from a connecting carrier to a shipper, that goods were in good condition when delivered by it to the delivering carrier, is not evidence against the latter of the condition of the goods when received by it. Appeal from City Court of New York, General Term. Action by Lillian M. Thyll against the New York & Long Branch Railroad Company and another. From a judgment for plaintiff, and an order denying defendants' motion for a new trial, they appeal. Reversed. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. Robinson, Biddle & Ward (A. Leo Everett and Henry Galbraith Ward, of counsel), for appellant Pennsylvania R. Co. De Forest Bros. (Robert Thorne, of counsel), for appellant New York & L. B. R. Co. Theo. T. Baylor, for respondent. FREEDMAN, P. J. Plaintiff sued for damages to her household goods, consisting of linens and clothing, contained in a hamper, delivered to the Pennsylvania Railroad Company for shipment from 14. See Carriers, vol. 9, Cent. Dig. §§ 159, 581. and 118 New York State Reporter New York to Elberon, N. J. The hamper was delivered to the Pennsylvania Railroad Company by Downing's Express Company, acting on behalf of the plaintiff, on July 5, 1901. The Pennsylvania Railroad Company carried the hamper in a covered car to Elberon, and delivered it there in a freighthouse, which was under the control and management of the New York & Long Branch Railroad Company, and where it was found by the plaintiff about 19 days thereafter. The hamper having been delivered to the plaintiff, the contents were found to have been damaged by wet, and the plaintiff's cause of action is founded upon the allegation that the defendants negligently permitted the goods to become wet. The shipping contract, among other things, contained a provision exempting the carrier from liability for damages by wet, and a further provision limiting the liability of the carrier to damage occurring on its own line. Notwithstanding these provisions, however, the carriers remained liable if they negligently permitted the goods to become wet. The plaintiff was therefore bound to establish such negligence by a preponderance of evidence, and this could only be done by proving affirmatively some specific act of negligence by the carrier sought to be held as the proximate cause of the injury. Whitworth v. Erie R. Co., 87 N. Y. 413; Platt v. Richmond, Y. R. & C. R. Co., 108 N. Y. 358, 15 N. E. 393; Draper v. Pres., etc., D. & H. C. Co., 118 N. Y. 118, 23 N. E. 131. As against the Pennsylvania Railroad Company there is no evidence whatever of any negligence. Although it had the right to run its trains over the tracks of the New York & Long Branch Railroad Company, the contract between the two companies expressly provides that the New York & Long Branch Railroad Company shall be held liable for any damages done by the neglect or misconduct of its own employés. There is nothing in the case upon which it can be held that the New York & Long Branch Railroad Company acted simply as the agent of the Pennsylvania Railroad Company. The latter company discharged its duty to the plaintiff when within a reasonable time it carried and delivered plaintiff's goods to and at the freighthouse of the other company in the same condition in which they were received, and the evidence affirmatively shows that at no time was plaintiff's hamper exposed to the weather while in the possession of the Pennsylvania Railroad Company. The judgment against said company cannot, therefore, be sustained. As against the New York & Long Branch Railroad Company a different case is presented. The freighthouse at Elberon was under its control and management, and plaintiff's hamper was kept there for about 19 days. The delay was not the proximate cause of the injury, if the hamper was properly protected in the meantime, especially if, as was held by the trial judge, no notice of arrival was necessary to be given to the plaintiff under the laws of New Jersey. The liability of the New York & Long Branch Railroad Company to the plaintiff was that of a warehouseman, and the case against it comes down to the question whether it negligently permitted plaintiff's hamper to become wet. The mere fact of injury creates of itself no presumption of negligence, but affirmative proof is necessary to |