p. 438daily compensation at any sum, not more than three dollars per day. To this no exception was taken.
Reid, that the failure of the defendant to except was a waiver of his right to question the finding of the jury as to the value of the services upon the ground ’that no evidence as to such value had been given. (Pratt, J., dissenting.)
Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of the justice before whom tbe action was tried.
Tbe action was brought to recover the value of tbe services' rendered by flagmen, appointed by tbe commissioners of highways of tbe town of New Lots to be stationed at places where the line of tbe defendant’s road crossed highways upon tbe grade, within said town.
Upon the trial the plaintiff was called as a witness and was aslredy among other questions, the following: “ Did anybody tell you how much a day you were to have? [Objected to by defendant as immaterial.] The Court — Q. Does not the statute fix the amount ? Counsel for the defendant said he thought it did not. Counsel for plaintiff said he was not sure whether the statute meant actually to fix three dollars per day as the amount, and it might be safe to-recover on quantum meruit. Question waived for the present.”' No proof of the value of the services was subsequently given. When the evidence was closed the defendant moved to dismiss the complaint upon the ground, among others, “ that there was no evidence of the value of the services.” The motion was denied. The court said, in its charge, “ these men are entitled to recover their wages, to use the language of the statute, not exceeding three dollars a day, that is, you cannot allow them more than three dollars a day. * * * You are to determine, as a question of fact, what were the fair wages. You can fix any sum, either the amount, named or less than that.”
E. O. Sprague, for the appellant.
W. J. Q-aynor, for the respondent.
Section 4 of chapter 609 of the Laws of 1871 reads as follows . “It shall be the duty of every railway corporation operating a
p. 439railway by steam power in the county of Kings, to station a flag-man by day, or signal-man by night, at all places where such railway crosses a public highway on the same grade thereof, whenever so reqiiired by the supervisor and highway commissioners or a majority of them, of the town where such crossing is located. And in case of the neglect or refusal of said railway corporation to station a flag-man or signal-man at any crossing within ten days after such requisition, it shall be the duty of such highway commissioners to appoint such flag-man or signal-manand the wages of such flag-man or signal-man so appointed by said commissioners, not exceeding three dollars per day, may be recovered from said railway corporation in an action brought by such supervisor, or his successor in office, or by such flag-man or signal-man, in any court of this State.”
Following this law the supervisor and commissioners of highways of the town of New Lots in Kings county served a notice in writing on the defendant requiring it to station flag-men by day and signalmen by night at all places where its railway crosses a public highway in that town, on the same grade as such highway, and designating New Jersey avenue, Yermont avenue, Schenck avenue, Smith avenue, Cypress avenue and Eldert avenue as such highways. The defendant failed to comply with the requirement and the commissioners of highways appointed the plaintiff and three others to serve as flag-men and signal-men at these crossings. ■ They all served six days each, and this action is brought to recover for such service. Two of the men assigned their claims to the plaintiff. The jury has found the value of the services, and if the law is to be executed there seems to be no other manner of doing so. The statute provides for the action in the name of the flag-man or signal-man, and as the claim is for services there is no reason why it may not be assigned. The value of the services was properly left to the jury.
The judgment should be affirmed, with costs.
A right of action carries with it the right to assign. The statute gave the right to recover for services rendered, upon the appointment of the highway commissioners, against the defendant upon its neglect to appoint. The only serious question in the case is the failure by the plaintiff to prove the value of the services. The
p. 440statute provides that it shall not exceed three dollars per day. The offer to prove a contract was overruled or withdrawn upon the objection of the defendant. The defendant moved for a nonsuit upon the ground that there was no such proof given, but when the judge charged the jury that they could fix the rate of the daily compensation at any sum, not .more than three dollars per day, no exception • was taken. This was a waiver of the question and the finding concludes the defendant.
In the case of Leeds v. The Metropolitan Gas-Light Company ( 90 N. Y., 26 ) there was an excejition to the charge which left the question to the jury to assess the value of time without proof of its value. The judgment should be affirmed, with costs.
Peatt, J., dissented on the ground that “ by some oversight there is no proof whatever of value or any contract proved.”
Judgment and order denying new trial affirmed, with costs.