I think the order appealed from should be affirmed, but as the question is new and the defendant a public officer acting undoubtedly in entire good faith, it should be without costs.

O'BRIEN, J. (dissenting.)—At the general election held in this state in the month of November, 1865, the relator was elected to the office of justice of the supreme court for a term of eight years, beginning January 1, 1866, and ending December 31, 1873. At the general election held in the month of November, 1873, he was again elected to the same office for a term of fourteen years beginning January 1, 1874, and ending December 31, 1887.

On the 15th of January, 1882, he attained the age of seventy years, and the full term for which he was last elected was abridged by the provisions of the constitution of the state, and ended December 31, 1882.

He has been paid from the state treasury during the five years, from December 31, 1882, to December 31, 1887, the sum of $6,000 per year as the salary of a justice of the supreme court, but has not been paid the $1,200 per year allowed by the statute for expenses. This sum, amounting to $6,000 for five years, the relator demanded from the defendant, the comptroller of this state, who declined to pay the same for the reason that the relator not having served ten years of his term, which was abridged, was not within the provisions of article 6, § 13, of the constitution.

The money necessary to pay the relator's claim has been duly appropriated by the legislature, and there is no ground upon which payment can properly be refused, unless it be the one above stated

The special term of the supreme court, upon the relator's application and after a hearing, granted an order directing a peremptory mandamus to issue, directed to the defendant as comptroller, commanding him to pay the relator the said sum of $6,000, and this order has been affirmed by the general term.

This court has held in a case clearly within the provisions of the constitution above referred to, that the word "compensation meant the sum of money that the judge was in receipt of from the state when his term of office was abridged, namely, the annual salary of $6,000 provided by § 9, chapter 408, of the Laws of 1870, and also the sum of $1,200 per year in lieu of expenses, provided by § 1, chapter 541, of the Laws of 1872. People ex rel. Bockes v. Wemple, 115 N. Y., 302; 26 N. Y. State Rep., 330. The only question now open for consideration is whether the relator's case comes within the provisions of the constitution. It must be admitted that if the literal reading alone of the provision is to be followed, then the case for the relator is established. A constitutional provision must be construed, and its true meaning determined by the application of the same rules that courts have sanctioned for the interpretation of statutes. These canons of construction have been so frequently explained and applied by this court in ascertaining the meaning of the provisions of the constitution and statutes that an extended reference to the cases is not necessary.

The article of the constitution which embraces the section now under review has quite frequently been the subject of construction and interpretation by this court, and in one of these cases the rule of construction by which we must be guided now is stated in very clear and comprehensive terms. "In the construction of a law, every part of it must be viewed in connection with the whole, so as to make, if possible, all its parts harmonious. The intent of the law makers is to be sought for. When it is discovered it is to prevail over the literal meaning of the words of any part of the law. And this intent is to be discovered, not alone by considering the words of any part, but by ascertaining the general purpose of the whole and by considering the evil which existed calling for the new enactment and the remedy which was sought to be applied. And when the intent of the whole is discovered, no part is to be construed so that the general purpose shall be thwarted, but all is to be made to conform to reason and good discretion." People ex rel. Jackson v. Potter, 47 N. Y., 375; approved, People ex rel. Killeen v. Angle, 109 N. Y., 564; 16 N. Y. State Rep., 647. In another case this court said, that "effect must be given to the intention of the legislature whenever it can be discovered, though such construction seem contrary to the letter of the statute." Smith v. The People, 47 N. Y., 330.

This section of the judiciary article when first adopted in 1870 treated exclusively of the manner of election of the judges of certain courts, and of their official terms, which were fixed at fourteen years, the terms until then being but eight years; and it closed with this general proviso: "But no person shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be seventy years of age." It was held in The People v. Gardner, 45 N. Y., 812, that this limitation grew out of the circumstance that the new article provided for long terms for judges, nearly double the term that had previously existed, and from the apprehension that during this long term the natural decay of the man might at times leave upon the bench an inefficient judge; and that it did not apply to a county judge in office when the article went into effect.

The provision stood unchanged until the general election of 1880, when a further clause was added, which reads as follows: "The compensation of every judge of the court of appeals, and every justice of the supreme court, whose term of office shall be abridged pursuant to this provision, and who shall have served as such judge or justice ten years or more, shall be continued during the remainder of the term for which he was elected." The benefit of this provision applies to the remainder of an abridged term, and the judge who claims the compensation must "have served as such judge or justice ten years or more." These qualifying words, in my opinion, apply to the term abridged, and the ten years of judicial service required in order to entitle the retiring judge to claim compensation for the remainder of the term cannot be made up by resort to previous official terms, during which he N. Y. STATE REP., VOL. XXXVI 4

may have served. The entire provision evidently refers to the single official term which is abridged or shortened by the limitation as to age; the "remainder of their term " is the period during which the judge is entitled to the compensation, and the ten years of previous judicial service must have been on their abridged term, and not on some other term, whether created by this section or constitutional provisions previously existing. The word "term" is used both at the beginning and close of the sentence, and reference is made in each case to the "term abridged;" and when it declares that the compensation of the judge shall continue during the "remainder of the term for which he was elected," the natural and obvious meaning of the word "remainder" is what is left of the term after deducting therefrom the ten years or more of service.

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This section of the judiciary article, as amended in 1880, should, in my opinion, be construed in the same way as if it read: "The compensation of every judge * * whose term of office shall be abridged, and who shall have served ten years or more of such term, shall be continued during the remainder of the term for which he was elected."

*

*

*

The relator served but nine years of the term which was abridged, and the ten years of service is made up by resorting to another term of eight years, commencing in 1866, and ending several years before the amendment of 1880 was proposed or adopted. If the clause requiring ten years of service is satisfied by including years of service upon previous terms, there need be no limit to the time when such service shall have been rendered. If at any period during the life time of the judge claiming to be within this provision, no matter how remote, he may have served as judge a number of years sufficient, with the fragment of the term abridged by the constitution, to make up ten years, he would be entitled to compensation for the remainder of the term for which he was elected, which might, in some cases, still have thirteen. years to run. A literal reading of the section as it now stands in the constitution would, as already observed, justify this construction. But it seems to me to be an entirely different result from that contemplated by the legislature that framed the amendment, and the people who adopted it. It is more reasonable to suppose that the end in view was to permit judges whose terms were abridged by the limitation as to age to receive the compensation for a short period, though out of office, having served at least ten years of the term so abridged. When the origin, history and purpose of this section as amended is kept in view, nothing is found to indicate that the legislators who proposed it, or the people who adopted it, had in mind, or intended it to apply to cases where ten years or more of service might occur through successive elections of the incumbent. It was intended to apply to exceptional cases which experience had shown arose under the long terms fixed by the constitution in 1870. It was found that the limitation cut short a term to which the incumbent was elected by the people and which was well nigh completed, and in a case where at least ten years of the term had been served it was thought

just to permit him to draw the salary during the four years, or less, that remained. This seems to me to have been the real intention and purpose of the framers of the provision under consideration, and the reason and intention should control the strict letter of the law.

The order of the general and special terms should therefore, be reversed

Order affirmed, without costs.

EARL, FINCH and GRAY, JJ., concur.

O'BRIEN, J., reads for

reversal; RUGER, Ch. J., and ANDREWS, J., concur.

JULIA L. V. MEAGLEY, Ex'rx, Resp't, v. JOEL S. HOYT, surviving partner, App'lt.'

(Court of Appeals, Filed February 24, 1891.)

1. CONTRACT-BREACH OF WARRANTY.

Defendants sold to plaintiff 230 barrels of tallow upon thirty different orders. The first five were inspected and found satisfactory, 125 more were used without suspicion of defects, but of the last deliveries plaintiff tested two barrels and found them to contain from ten to twenty-eight per cent. sand. In an action to recover damages for breach of warranty it was shown that the adulteration was easily discoverable and apparent to sight and touch, but the court charged the jury that they were authorized to find that all of the tallow sold except the first five barrels were adulterated and to award such damages as they should determine he had suffered between ten and thirty per cent. of the gross amount of sales. Held, error; that this was equivalent to a charge that the jury could find a verdict for damages which were wholly unproved and presumptively not suffered. 2. SAME-BURDEN OF PROOF ON PLAINTIFF.

It is an invariable rule that the burden of proof lies upon the plaintiff to establish his cause of action, and no circumstances will excuse him from the obligation and impose the duty upon the defendant of proving that the alleged cause did not exist.

APPEAL from judgment of the supreme court, general term, fourth department, affirming judgment for plaintiff entered upon a verdict.

Homer Weston, for app'lt; Edw. K. Clark, for resp't.

RUGER, Ch. J.-This was an action to recover damages for a breach of warranty alleged to have been made on sales of tallow by the defendants to plaintiff's testator. No evidence was given by the defendants on the trial, and the questions arise upon a motion to nonsuit and exceptions taken by defendants to the charge of the judge upon uncontroverted evidence. It appears therefrom that the plaintiff's testator was a manufacturer of soap, residing at Binghamton, and in prosecution of his business consumed large quantities of tallow; that the defendants were manufacturers of that article, doing business at Syracuse. The alleged breach consisted in the mixture of silica, or sand, with the tallow, and although it did not impair the quality of the tallow, it substituted to a certain extent another substance in the place of that intended to be purchased. The defendants were a newly established firm, and between November 16, 1883, and March 13, 1 Reversing 12 N. Y State Rep., 357.

1884, a period of about four months, sold the plaintiff about two hundred and thirty barrels containing about sixty-seven thousand pounds of tallow, which were duly shipped to the plaintiff and were received and accepted by him in due course of transportation. About thirty different orders were given, at irregular intervals, during this period, and they were all filled by the delivery of tallow, which was received, accepted and made use of by the plaintiff in his business, without notice to the defendants any defects therein, and without any offer to return the same, or any part thereof. The terms of the sale were cash on delivery, and the tallow was all paid for except the last three shipments of March, 11th, 12th and 13th, amounting to twenty barrels or fifty-five hundred and seventy-five pounds, and valued at $404.18.

of

On the receipt of the first five barrels ordered, the plaintiff inspected the tallow and found it to be in every way satisfactory. From this time to March 12, thereafter, the plaintiff received and accepted 122 barrels without inspecting or testing the same, and used their contents in his business without any knowledge or suspicion of defects or impurities. On March 12, the plaintiff had on hand eighty-three barrels of defendants' tallow, and subsequently received twenty more, which were used by him without inspection or objection, except as hereinafter stated, and without knowledge as to impurities therein, if any. The manner in which the alleged adulteration is claimed to have been discovered was through the character of the sediment found in the kettles in which the soap was manufactured. The soap was made in two kettles of the diameter of about eight feet each, and a depth of eight and one-half feet, with a capacity of about 20,000 pounds each. These kettles are first partially filled with lye and soap, into which tallow is shovelled until they are filled. The substance is then boiled until soap is produced, which, rising to the top, is dipped out of the kettles until a sediment is reached. This sediment is then left on the bottom of the kettle, and is and in the course of plaintiff's business was usually cleaned out every three or four months. The kettles had been cleaned out in February, long after the use of defendants' tallow had commenced, and were then found to be free from any unusual sediment or impurities. In March, however, the plaintiff's servants discovered a difficulty in getting sufficient heat on the kettles, and were induced to clean them out for the purpose of discovering the cause of the disturbance. On this occasion they discovered more than the usual quantity of sediment, and it was of a different character from that usually found, consisting, as claimed, of sand or marble dust, to the extent of nearly one-third of the refuse material. The fact that somebody's tallow was being adulterated was thus made clear, but it was still unknown who the vendors of the adulter. ated tallow were, as the plaintiff had been using indiscriminately the tallow of a number of different manufacturers.

In order to determine the fact as to whose tallow was being adulterated, the plaintiff took two barrels out of twenty-two of the lot shipped on February 18th by the defendants, and melted the