.The contract that the scow should not be taken to Greenville was not proven. The evidence for the plaintiff left it a matter of uncer1 taint-y at best. And if such a contract could be eked out therefrom, to find it woul.d be against the weight of evidence.
Assuming that the contract was proved, it was error to exclude evidence to show that the damages were caused or suffered in whole or in part by the neglect of the plaintiff’s captain who was aboard and in charge, of her to take proper care of her in the storm. Although the contract were broken by the defendant, it would be for the captain, to dp what he reasonably-could in the care of the scow to prevent her from going ashore. That he did not do so was not a defense to be pleaded; on the contrary, the question was what *473damage the breach of the defendant caused, and that would be in issue even on an assessment on failure to answer. The amount of damage-is always in issue, even without a denial thereof (Milton v. Hudson River Steamboat Co., 37 N. Y. 210).
The judgment should be reversed.
Hirsohberg, P. J., Rich and.Miller, JJ., concurred; Hooker, J., dissented. ' -
Judgment and order reversed and new trial granted, costs to abide the event.