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Third Department, March, 1922.

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that plaintiff repeatedly thereafter requested the defendant to deliver the deed, and that she took possession under an agreement signed by her husband to occupy the premises as tenant until the title could be closed and, after being in possession for a short time, abandoned the premises.

Held, that it cannot be said as a matter of law that the attorney who drew the contract had authority from the plaintiff to extend the time of closing the title. While the plaintiff, by going into possession of the property as tenant, waived performance of the contract on the day fixed therefor, the defendant is not in a position to contend that the time of closing was indefinitely extended by mutual consent and that he should not be placed in default until the plaintiff had fixed a definite and reasonable time in the future for such performance, as he did not allege said mutual extension as an affirmative defense and the question is not otherwise raised by the pleadings.

The only question to be tried was the alleged default on the day originally fixed for closing and that question was one for the consideration of the jury, whose verdict thereon in favor of the plaintiff is conclusive.

It was error to permit a recovery by the plaintiff of her expenses in moving into the defendant's house, for the reason that no facts are alleged in the complaint as the basis of such recovery.

APPEAL by the defendant, Thomas M. Johnston, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 14th day of February, 1921, upon the verdict of a jury, and also from an order entered in said clerk's office on the 18th day of February, 1921, denying defendant's motion for a new trial made upon the minutes.

Reevs, Scrugham & Arbuckle [John J. Hanrahan of counsel], for the appellant.

John C. Dardess, for the respondent.

COCHRANE, P. J.:

On July 7, 1920, the parties made a contract whereby the defendant agreed to convey to the plaintiff certain real estate in the city of Yonkers. The contract provided that a deed with full covenants was to be delivered and the sale consummated on July 26, 1920, at the office of Mr. Baird, an attorney of Yonkers. At the time of the contract plaintiff paid on account thereof to the defendant $150 and agreed to make a further payment, assume a mortgage then on the property, and execute another mortgage for the unpaid purchase price at the time of the closing of the title. Mr. Baird drew the contract. A few days before July 26, 1920, the day fixed for closing the title, his firm wrote a letter to both parties stating that they had not completed their search of the title and that it would, therefore, be impossible to close the same on the day fixed but that they hoped to be able to do so the latter part of the following week and would inform the parties when ready. Notwithstanding this letter the plaintiff with her husband attended at the office of Mr. Baird on July twenty-sixth prepared to carry out her contract. The defendant did not have his deed ready for delivery and has App. Div. 185] Third Department, March, 1922. never executed the deed. Repeatedly thereafter plaintiff requested its delivery. In August, 1920, she took possession of the property under an agreement signed by her husband stating that he had agreed to occupy the premises as tenant until "such time as title to same has been properly closed." After being in possession for about a month and after repeated requests to the defendant for the deed the plaintiff abandoned the premises and brought this action for breach of contract by the defendant. The judgment herein awards her $150 for the money paid by her on account of the purchase price and $50 paid to a truckman for moving into the defendant's premises. The jury has found on conflicting evidence that the plaintiff did not employ Mr. Baird to search the title. He as a witness for the defendant did not so testify. The evidence suggests that the purpose of the search may have been to ascertain whether the defendant could safely give the required deed. It does not conclusively appear that the plaintiff authorized Mr. Baird to represent her in any particular except that he was to draw for her the bond and mortgage. It cannot be said, therefore, as matter of law that Mr. Baird had authority to extend the time of the closing of title and as a matter of fact the jury has found to the contrary.

By going into the property as tenant the plaintiff waived performance of the contract on the day fixed therefor. The defendant relies on the principle that when the time fixed for the performance of a contract has been indefinitely extended by mutual consent neither party may thereafter place the other in default without fixing a definite and reasonable time in the future for such performance. (Darrow v. Cornell, 12 App. Div. 604; Scudder v. Lehman, 142 id. 631.) The difficulty in the application of that principle is that no such issue is tendered by the pleadings. The complaint alleges attendance by the plaintiff at the time and place fixed by the contract for its fulfillment and her readiness and willingness to fulfill at such time and place and thereafter and her demand on the defendant for the performance of his contract and the continual neglect and refusal by the defendant to perform the same. Except for a counterclaim the answer contains denials only. The defendant did not allege as an affirmative defense the mutual extension of time for the performance of the contract nor any other excuse for his failure to perform. Therefore, the only question to be tried was the alleged default of the defendant on July 26, 1920. That question was one for the consideration of the jury and their verdict in favor of the plaintiff is conclusive thereon.

It was error, however, to permit a recovery by the plaintiff of the sum of fifty dollars for her expenses in moving into the defend

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Third Department, March, 1922. ant's house for the reason that no facts are alleged in the complaint as the basis of such recovery. This objection was promptly taken at the trial and should have been sustained.

The judgment should, therefore, be modified by deducting therefrom fifty dollars, and the judgment as so modified and order should be affirmed, without costs.

Judgment modified by deducting therefrom fifty dollars, and as so modified judgment and order unanimously affirmed, without costs.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of CHARLES MCNAMARA, Respondent, for Compensation under the Workmen's Compensation Law, v. MCHARG, BARTON COMPANY, Employer, and THE TRAVELERS INSURANCE COMPANY, Insurance Carrier, Appellants.

Third Department, March 8, 1922.

Workmen's Compensation Law - admiralty and maritime employment employee injured while repairing compressor boat in East river, used by employer in construction of pier, was engaged in maritime employment - defective vision which can be corrected by glasses no basis for award depreciated earnings due to defective vision might in proper case warrant award.

An employee, who was injured while repairing a boiler on a compressor boat used by his employer in the construction of a pier in the East river at Brooklyn, was at the time engaged in work of a maritime nature and within admiralty jurisdiction, and, therefore, is not entitled to an award under the Workmen's Compensation Law.

Defective vision which can be corrected to normal by glasses cannot form the basis of an award.

It seems, that if because of the nature of his employment, the claimant cannot wear glasses at all times, he might be entitled to an award based on depreciated earnings.

APPEAL by the defendants, McHarg, Barton Company and another, from three awards made by the State Industrial Commission and entered in the office of said Commission on the 25th day of September, 1919, the 2d day of January, 1920, and the 7th day of July, 1920, respectively.

Benjamin C. Loder [E. C. Sherwood and William B. Davis of counsel], for the appellants.

Charles D. Newton, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], for the respondents.

COCHRANE, P. J.:

The accident occurred on a compressor boat stationed in the East river at Brooklyn. It was there being utilized in the construc

App. Div. 188]

Third Department, March, 1922.

tion of a concrete pier by the employer whose business was that of a contractor. The claimant was a master mechanic and superintendent of the work of construction. He was cutting a bead off a boiler tube on the boat when a piece of the bead struck him in the left eye impairing his vision on account of which the awards in question have been made for a loss of one-third of the use of the eye.

First. The work in which claimant was engaged at the time of his injury was maritime in its nature and within admiralty jurisdiction. Claimant described the compressor boat as follows: "Just a small scow, 10 x 20 - have a boiler and compressor supplying the compression, going from one place to another." It was the boiler thus mentioned which he was repairing at the time of the accident. He described the accident and the work he was at the time doing as follows: "I was taking a tube out of a boiler. Q. What happened? A. Cutting off the bead off the top, a piece of the bead flew and hit the side cheek and my eye." The compressor boat was a vessel in navigable waters and as such within admiralty jurisdiction. (Matter of Reinhardt v. Newport Flying Service Corporation, 232 N. Y. 115, and cases there cited; Matter of Newham v. Chile Exploration Co., Id. 37.) Although the general nature of the claimant's work may have had reference to the construction of the pier, he was at the time of the accident repairing or readjusting this navigable craft. This circumstance distinguishes the case from those where awards have been sustained for injuries arising out of work in constructing or repairing docks or piers but without reference to any change or modification of a vessel although such vessel at the time may have been utilized in the work of such dock construction or repair. We think for the reasons stated this case falls within the authority of Matter of Doey v. Howland Co. (224 N. Y. 30) and North Pacific Steamship Co. v. Hall Brothers Co. (249 U. S. 119). In the case last cited it was said: "There is no difference in character as to repairs made upon the hull of a vessel dependent upon whether they are made while she is afloat, while in dry dock, or while hauled up by ways upon land."

Second. The Commission found that "the defective vision of the claimant can be corrected to normal with glasses." This court has repeatedly held that where the loss of vision may be corrected or supplied by the use of glasses no award can be made therefor. (Valentine v. Sherwood Metal Working Co., 189 App. Div. 410; Frings v. Pierce Arrow Motor Car Co., 182 id. 445; Cortina v. Lathrop & Shea Co., 191 id. 928; Smith v. F. & B. Construction Co., 185 id. 51.) The Commission has sought to obviate the effect of those cases by finding that "inasmuch as there are

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Third Department, March, 1922. times that the claimant cannot wear glasses while engaged in the regular course of his employment due to the nature of the employment, the claimant has sustained a loss of one-third of the use of the left eye." There is no evidence to support this finding. The claimant stated that it was very inconvenient for him to wear glasses. That is always true. No one wears glasses because of their convenience. He further stated in answer to a question as to why he did not wear goggles when doing such work as occasioned his injury, that it was very dark in the boiler and he required all the light possible and that if he covered his eyes with goggles he could not see. The question is not, however, as to the use of goggles but as to the use of glasses. Furthermore we think this latter finding is within the condemnation of Matter of Grammici v. Zinn (219 N. Y. 322) where it was held that it was not the legislative intent that an injury incapacitating an employee for a particular employment established his right to an award if the injured member could fulfill in any reasonable degree its normal functions in any employment for which the claimant was fitted. Amendments to the statute since the decision in the Grammici case do not affect the principle above stated. If because of the nature of his employment claimant cannot at all times wear glasses he might be entitled to an award based on depreciated earnings but the evidence shows that he has not suffered any depreciation in his earning capacity. There is, therefore, no basis for an award because of the injury to the eye.

For the foregoing reasons the awards should be reversed and the 'claim dismissed, with costs.

All concur.

Awards reversed and claim dismissed, with costs.

Before STATE INDUSTRIAL BOARD, Respondent.

In the Matter of the Claim of Louis GOLDBERGER, Respondent, for Compensation under the Workmen's Compensation Law, v. B. M. GOLDBERGER, Employer, Defendant, Impleaded with ÆTNA LIFE INSURANCE COMPANY, Insurance Carrier, Appellant.

Third Department, March 8, 1922.

Workmen's Compensation Law - claimant injured while working for his father in repairing building not entitled to award where work not shown to have been done by father for pecuniary gain when work not done for pecuniary gain.

Where the claimant, a son of the employer, was injured by an automobile truck while on his way to procure some painting materials to be used about a building

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