text:
    Philip B. Veiller, Resp’t, v. Edward L. Oppenheim et al. App’lts.

      (Supreme Court, General Term, First Department,

      Filed January, 12, 1894.)

    1. Discovert and inspection—Books and papers.
    A person, who has a right to a portion of the proceeds of a common venture, is entitled to an inspection, if necessary, of the books of account containing a record thereof.
    2. Same—Abuse of privilege.
    The court, granting the order will, at all times, see that the privilege is not abused.
    Appeal from an order granting in part a motion to allow plaintiff to inspect the books of defendants for the purpose of enabling him to frame his complaint.
    The opinion of Mr, Justice Barrett, on granting the motion, is as follows:
    The plaintiff was not a partner in the defendant’s firm, but he was not an ordinary employe. He was an important, co-worker with the defendants, and his interest had a direct relation to the profits of the firm. This interest was increased by the profits, and decreased by the losses. As to the speculative account, it was expressly provided that he should have a specific interest in the profits, and be responsible for a specific percentage of losses. It is apparent, therefore, that he is entitled to an inspection of the firm books, provided he has made out aprima facie case for the re-opening of the accounts or statements furnished to him from time to time. Such a prima facie case is, I think, clearly set forth in the rebutting affidavit used upon the previous motion, and made (with other papers) the direct basis of the present motion. Several grave inaccuracies—to use the mildest expression—are pointed out, and, while the defendants seek to explain the plaintiff’s charges in some particulars, their explanations are not entirely satisfactory. They are certainly not conclusive against the application. One charge, in particular, is not met at all. I refer to the item of interest. By the agreement, the plaintiff’s percentage of profits was to be ascertained by deducting from the gross profits interest on cash capital at the rate of 5 per cent., together with interest at the same rate on the sum of $30,000 representing the approximate value of the defendant’s seats in various exchanges. It appears that after the new firm was formed, on the 1st of May, 1891, the defendants privately arranged to credit themselves with 6 per cent, of this $30,000. They also arranged to withdraw their capital, as firm capital, and to credit such capital to their individual accounts as in form of a loan to the firm, at 6 per cent. These interest charges were credited monthly, thus practically effecting compound interest. The defendants make no satisfactory explanation of this wrongful breach of their contract. Indeed they seem to have concealed their acts in this repect from the plaintiff, and when he accidentally discovered what they had done, and taxed them with it, they vouchsafed no explanation, but simply intimated. that it was no affair of his how they arranged their business interests as between themselves. Indeed, this is the position which they deliberately assume upon the present application, for Mr. Edward L. Oppenheim declares in his affidavit that “the plaintiff has no concern whatever in the interest or the capital account to which, in his affidavit he refers.” This position is quite untenable. It is true that the plaintiff has no concern with the private arrangements of the defendants, but he has every concern with their bringing their private arrangements into the accounts between him and them, and thus unjustly reducing his interest. I do not desire to comment harshly upon these acts, but I must say that, unless they were inadvertent, it is hard to see how they could have been, in intention, fair. Certainly, settlements based upon their concealment could not be permitted to stand. It is sufficient, however, for the purpose of this application, that the acts charged —those just pointed out, and others specified in the papers—justify the inspection (in part) which the plaintiff seeks. And it is no answer to such an application, founded upon facts, to say that the plaintiff has had, from time to time, an opportunity to examine the books.
    He is not an accountant, and he is not to be deprived of an expert examination merely because he has at times looked into the books. The inspection is to enable him accurately to frame his ■complaint. He might, possibly, without an inspection, frame some sort of a complaint, but not such a complaint as the courts approve of. A complaint founded, upon such an examination as he has already made, or might have made, would be a very general and imperfect statement of his case,—a statement which might well be attacked as indefinite and uncertain. He is not precluded from an inspection merely because, in general terms, he might aver certain broad facts justifying a prayer for an accounting. He has a right, and it is indeed his duty, to set forth the specific wrongs of which he complains, and to fortify his prayer by distinct allegations as to each matter which may be the subject of adjudication. The examination should however, be limited to the period commencing May 1, 1891. That was the date of the formation of the new firm, and the plaintiff, at or about that time, gave the old firm a general release except as to certain specific matters referred to in the dissolution agreement. Ho case is presented justly questioning this release, even prima facie. Whatever wrong is pointed out specifically relates to the new firm, not to the old. Hor is a case made out for the inspection of Mr. Oppenheim’s private letter book. On the contrary, it clearly appears that that book has no real relation to the subject of the present discovery. The motion should therefore be granted, so far as to permit an inspection by the plaintiff, and such expert accountant as he may select, of the defendant’s books containing the transactions of the firm between the 1st day of May, 1891, and the 15th day of April, 1893, including all the accounts which, under the dissolution agreement of the old firm, were carried over to the new, and which were excepted from the release given by the plaintiff to such old firm; costs to abide the event; order to be settled on two days notice.

      Ilorivitz & Hershfield, (Otto Horwitz, of counsel,) for app’lts; ■Smith & PerJcins, (Edward 0. Perkins, of counsel,) for resp’t.
   O’Brien, J.

Little need be added to the of the learned judge at special term, showing the reasons and necessity for the ■order appealed from. The appellant insists that the judge, though he concluded that the plaintiff was not a partner, overlooked the statement in the plaintiff’s affidavit alleging that his action was brought for an accounting, which he could not maintain, in view of his relation to the defendants as an employe, or at best a co-worker. It is hardly just, however, to seize upon one expression in an affidavit, particularly where all the facts are presented to the court showing the character in which the plaintiff sues. The agreement with the defendants, which is set forth, shows that he was employed under an arrangement which xvould give him, in lieu of salary, a certain percentage of the profits of the business, which, from' time to time, was increased.' In the leading case of Smith v. Bodine, 74 N. Y. 30, it was held that under such an agreement, which did not constitute the plaintiff a partner, he could not bring a suit in ■equity for an accounting, but was left to his action at law. This circumstance, however, instead of being an obstacle, seems to us an additional reason why the inspection should be allowed. In an action at law it will be necessary for the plaintiff to state the amount which he seeks to recover, and, unless such amount can be ascertained from an inspection of the books, plaintiff will not be in a position to know just what sum he is entitled to sue for. In such an action at law an account between the parties at some stage of the proceeding is practically taken, and this, no doubt, is what was intended to be expressed by the statement in the plaintiff’s affidavit that his action was brought for an accounting and settlement, because we cannot assume that he was to commence an action in form for an accounting, which, under the case above cited, would not lie. The suggestion that the application is made in bad faith, and is in the nature of a fishing excursion, we think is sufficiently answered by the opinion of the court below. In this connection, and upon the subject of the right to an inspection in general, we are referred to cases wherein it has been held that such motions should be granted with reluctance, and only in cases of necessity, and that it is- the practice, except in a clear case, to deny such applications. We have no fault to find with such decisions, or with the proposition of law thus appealed to; but we have had occasion frequently to say that in all these applications each must stand upon its own footing, and he determined by the merits involved in the particular application. The Code is authority for the right, in a proper case, to have an inspection, and a moment’s reflection will show that there are cases which may be divided into classes, in one of which such right is more readily granted, and in another more uniformly denied. As an instance of the former may be cited the usual action between partners for an accounting, in which an inspection is permitted almost as a matter of course. As an instance of the latter class might be cited cases wherein the person suing has no relation to the defendant or his business, and has no right growing out of any relation to an inspection of his books. In such cases, unless it clearly appears, either that the evidence sought is necessary for the purpose of framing a complaint, or is essential to the establishment of the plaintiff's cases upon the trial, and cannot be procured in any other way, such applications will be denied. We think, however, there is a third class, of which the present is a good illustration, in which, while the relation between the parties may be that of employe and employer, or co-workers, in one or more aspects it takes on the character of a co-partnership. Here the plaintiff had a direct interest in the profits and losses of business, his percentage being fixed upon the profits, which he was entitled to receive in lieu of salary. Where such relation is admitted, as in this case, whether such relation constitutes the plaintiff a partner, or a principal bringing'business to the firm, or an employe entitled to a share of the profit, or a co-worker with them in general business, we think, as argued by the respondent, that “ so long as the plaintiff, in one manner or another, under one name or another, was entitled to a portion of the proceeds of the common venture,” a prima facie case is presented, entitling those interested in that venture to an inspection, where necessary, of the books of account containing a record thereof, and to all the information that can be derived from them ; and it is only where it is apparent that the application is made in bad faith that such inspection should be denied.

It is insisted, however, that the order, if not refused, should be modified by limiting the number of assistants whom the plaintiff might employ, to the end that it might not result in an abuse of the privilege granted to him by the court, in overrunning the defendants’ office, and interfering with their business. In the order itself the alternative is given of depositing the books in court; but, as the defendants would probably prefer to retain them in their own custody, the court granting the order would at all times see to it that the privilege was not abused, and upon the facts showing any attempt to abuse it, or to make use of it for other than the purpose for which it was granted, namely, to furnish information to the plaintiff, it would be withdrawn. As we should not assume that the plaintiff intends to abuse the privilege, we do not feel warranted in modifying the order, it being within the defendants’ power, if their fears should be realized, to secure relief from the court. We think, therefore, that the order should be affirmed, with $10 costs and disbursements.

All concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Henry D. Watson, App’lt, v. Boston Woven Cordage Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    Bills and Notes—Becitals.
    The purchaser of a note has a right to rely upon the recitals therein as to the place of execution.
    Appeal from an order vacating an attachment.

      Daniel S. Remsen, for app’lt; George F. Luscomb, for resp’t.
   Per Curiam.

This court has the jurisdiction of actions against foreign corporations brought by nonresidents to recover damages for the breach of a contract made within this state, and the question involved upon this appeal is as to whether the plaintiff upon taking the note in question, had a right to rely upon the representation contained in the note that it had been made in Hew York. We think this point is not open to discussion since the decision in the case of Fifth Ave. Bank v. Forty-Second St. & G. St. Ferry R. Co., 137 N. Y. 231; 50 St. Rep. 712. The statement in the note that it was. made in Hew York, such statement being embraced in its date, was a representation, upon which all innocent holders had a right to rely, that the note had been there made. There is nothing impeaching the good faith of the plaintiff, and in the bringing of this action, as has already been suggested, he had a right to rely upon the place of contract being that named in the note. We think the law is well expressed in Daniels on negotiable Instruments, (§ 869,) as follows :

“Where the parties acquiring a bill for value, and in the usual course of business, have no knowledge that it was not issued and delivered as a subsisting instrument at the place where it bears date, it is but just that they should be entitled to regard its ostensible, as its real, character, and should at least not be permitted to suffer by reason of the after-discovered fact that it was not there delivered.”

The order appealed from should be reversed, with $10 costs and disbursements.


author: Dykman, J.

text:
    Gabriel Tuthill, Resp’t, v. Long Island Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed January 5, 1894.)
    Tenue—Change.
    The venue will not usually be changed from the country to the city of New York or Brooklyn, especially where the number of witnesses is equal and the plaintiff is unable to transport his witnesses or to endure fatigue.
    Appeal from an order denying a motion to change the place of trial from Orange to either Kings or Queens county.

      Wm. C. Beecher, for app’lt; Vanamee, Watts & Vail, for resp’t.
   Dykman, J.

This action is based upon the negligence of the defendant, which resulted in injury to the plaintiff. The venue is laid in Orange county, where the plaintiff resides, and the defendant made a motion, at a special term of this court, to change the place of trial from Orange county to either Kings or Queens county for the convenience of witnesses. The motion was denied, and the defendant has appealed from the order of denial.

The defendant swears to 20 witnesses, and the plaintiff swears to 21. Assuminfi, as we must, that all these witnesses are deemed necessary by the parties, the plaintiff makes the stronger case. It has been held that the motion must be denied where the numbers of witnesses are equal. Wood v. Bishop, 5 Cow. 414. But there are other controlling considerations. It is very unusual to change the place of trial from the country to the city, either the city of Blew York or Brooklyn. The reason is that the court calendar’s in those cities are large, and the uncertainties of a trial are so great that a litigant whose witnesses reside in the country encounters delays and expenses that would ordinarily deter him from the pursuit of his rights. On the other hand, a cause upon the calender of a country circuit can always be set down for trial for a day when it will be reached and tried. In that way the convenience of witnesses is best consulted, even though they all reside in the city to which the trial is sought to be had. In this case the distance to be traveled is the same for each set of witnesses; but that has now come to be a matter of small moment. The facilities of travel have annihilated space, and the distance is counted by hours and minutes. It is true the county of Queens is mentioned in the notice as an alternative county. The courts in that county are held at the court-house in Long Island City, and the inconveniences of 21 witnesses in attending court there would be well-nigh insurmountable. Moreover, there is a difference in the situation of the parties. The plaintiff is in poor circumstances, and unable to transport his witnesses. The reverse is the condition of the defendant. The health of the plaintiff is shattered, and he is unable to endure fatigue. No .such condition obtains with the witnesses for defendant. The plaintiff is a resident of Orange county, and his physician resides there likewise; so do all his friends who know his physical condition before the accident. In our view, this is not a case where the location of the transaction should control. The defendant’s witnesses do not all reside either in Kings or Queens county; according to the affidavit, six of them reside in New York. Under all the circumstances surrounding the case, we think it should be retained in Orange county, and that the order should be affirmed, with $10 costs and disbursements.

All concur.


author: Haight, J. Van Brunt, P. J.,

text:
    Frank J. Amsden, Resp’t, v. George W. Jacobs, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    1. Contracts—Sale on margin.
    An agreement by a broker to carry wheat until July 1, without further margin, and not to close the deal until so ordered by the purchaser, means that the deal shall not be closed before July 1, unless so ordered.
    2. Evidence—Intention.
    In an action on contract for purchase of wheat on margins, intention of defendant not to make an actual purchase is properly excluded, unless it was known to plaintiff.
    Appeal from a judgment entered upon a verdict in favor of plaintiff.

      Marsenus H. Briggs, for app’lt; Nathaniel Foote, for resp’t.
   Haight, J.

This action was brought to recover a balance due upon a contract for the purchase of wheat. The plaintiff was a • stock and grain broker, having an office in the city of Rochester. On the 29th day of April, 1891, the defendant gave him an order to purchase for him 25,000 bushels of July wheat in Chicago at $1.05 per bushel. The plaintiff immediately wired the order to Counselman & Day, his correspondents in^Chicago, who purchased the wheat for $1.044 per bushel, to be delivered during the month of July, but with the seller’s option as to the time of delivery within the month. After the purchase and communication of the fact to the defendant, he, on May 9, 1891, deposited with the plaintiff $1,562.50 as a margin or security, and took from the plaintiff the following receipt:

“Received of G. W. Jacobs one thousand five hundred sixty-two and 50-100 dollars, for margin on 25,000 bushels of Chicago wheat for month of July, 1891. I, the undersigned, agree to carry said wheat until July 1st without further margin, and the deal said G. W. Jacobs.
“Rochester, 9th, 1891. F. J. Amsden.”

On the 31st day of July, the wheat was delivered to Counsel-man & Day in the form of warehouse receipts. They notified the plaintiff, and he on the same day notified the defendant, and asked for instructions, but none were received from him. On August 4th, Counselman & Day drew a draft on the plaintiff for the balance due them on the wheat, and attached the warehouse receipt. The plaintiff notified the defendant of the fact, and asked him to make provision for it, which he neglected to do. Thereupon notice was given to him that unless he took the wheat and paid for it, or made arrangements for carrying it, the plaintiff would sell the wheat at the Chicago Board of Trade at its opening on August 11, and hold the defendant for any deficiency. The defendant made no reply, but left the city of Rochester; and thereupon, on the lltli day of August, the wheat was sold at 91-s-cents per bushel, The defense relied upon was to the effect that the plaintiff had committed a breach of contract on his part in failing to carry the wheat until it was sold by direction of the defendant, and that the contract was illegal and void under the statute, for the reason that the parties had not intended that any grain should be purchased or delivered.

The first question must be determined from the written agreement forming a part of the receipt. After acknowledging the receipt of $1,562.50, the plaintiff agrees to carry the wheat until July 1st without further margin, “and the deal is not to be closed until so ordered by said Gr. W. Jacobs.” The wheat was not only carried until July 1st, but it was carried until August 11th, without further margin. The wheat was ordered sold by the plaintiff on August 11th,.after the defendant had neglected or refused to take care of it It is claimed that the deal was not to be closed until so ordered by Jacobs. Is this a fair and reasonable construction of the language used? If so, the plaintiff could be required to carry the wheat for any time, no matter how distant. Under the margin paid, he undertook to carry the wheat until July 1st without further margin. After July 1st he had the right to call for further margin if he so desired; but it would be useless for him to call for margin, provided he was under obligation to carry the wheat until it was ordered sold by the defendant. It consequently appears to us that the construction contended for is inconsistent with the preceding clause of the agreement, and that the true meaning is that the deal was not to be closed prior to the 1st of July, unless so ordered by the defendant. Upon the trial the defendant was sworn as a witness on his own behalf, and upon the direct examination was asked the following question:

“ At the time that you gave this order to Mr. Morse to purchase for you, as he testified, did you intend to make an actual purchase of the wheat ? ”

The counsel for the plaintiff then inquired of the defendant’s counsel if he expected to prove that the defendant’s intention in that respect was known to the plaintiff or Mr. Morse, and the counsel for the defendant stated, in answer thereto, that he did not. Plaintiff’s counsel then objected to the question, and the objection was sustained. It is now claimed that this ruling was erroneous, and that the exception taken thereto requires a new trial. In Dwight v. Badgley, 60 Hun, 144; 38 St. Rep. 112; Lawrence, J., says, in reference to the admission of similar testimony :

“ While the answer to it- would not have conclusively shown what the intention of the plaintiff was in entering upon the course of dealing with the defendant referred to by the witness, it involved an answer which defendant was entitled to have presented to the jury, and which might have aided them in determining what was the real intention of the parties.”

Daniels, J., says:

If the question as to the defendant’s intention had been answered, it might have been followed by further evidence indicating the intention of the plaintiff to 'have been the same; but without an answer to this question it would be useless to offer to make such further proof.”

Van Brunt, P. J.,

dissenting, claimed that the defendant was not injured by the exclusion of the evidence, for the reason that there was no proof showing that the plaintiff had a similar intention. It thus distinctly appears, not only from the concurring opinion of Daniels, J., but by the dissenting opinion of Van Brunt, P. J. that in order to render the evidence of any value it must be shown that the intention sought to be shown was known to the plaintiff And in the case of Kenyon v. Luther, 4 N. Y. Supp. 498; 19 St. Rep. 32; Martin, J., in delivering the opinion of the court, says:

" While, in the absence of evidence to the contrary, an illegal intent will not be presumed, but an opposite presumption will arise, * * * yet we think the defendants were entitled to prove that their intention was simply to pay differences, and not purchase wheat. * * * This might not have sufficient to have sustained their defense, * * * but it was a step in that direction, which they should have permitted to take.”

Here we have a concession that the evidence would not have been sufficient to establish the defense. In the case under review, as we have seen, the defendant’s counsel, in respect to the evidence offered, says that he did not expect to prove that defendant’s intention was known to the plaintiff, thus shutting the door to that class of evidence. The evidence, if it had been received, would have constituted but a step in the direction of the defense alleged, and would have been insufficient to establish it; and, inasmuch as he had no intention or expectation of showing that the plaintiff had knowledge of such intent, it became worthless testimony, for one party cannot evade a contract, or establish its validity, by maintaining a secret intention to evade it, unknown to the person with whom he is contracting.

The judgment appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concur; Bradley, J., not sitting.


author: Haight, J.

text:
    Emma J. Chapman, Resp’t, v. Laura M. Wackerman, as Executrix, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Bill of particulars—Note.
    Where, in an action on a note payable to bearer, the complaint does not name the payee, the court may require the plaintiff to furnish a bill of particulars, stating the name and residence of such payee and the time and place of its delivery to him.
    Appeal from an order denying a motion for a bill of particulars.

      George A. Carnahan, for app’lt; Fanning <& Williams, for resp’t.
   Haight, J.

This action was brought upon a promissory note alleged to have been made by Mrs. S. E. Torkiugton, the defendant’s testatrix. The note is for the sum of $12,000, dated at Eochester, 27. Y., July 6, 1889, • and is payable on demand to bearer, at the office of George Eumble, Chicago, 111., or at Eochester, 27. Y., with interest at 6 per cent, per annum after date until paid. The defendant, in her moving affidavit, states that she did not know of the existence of the note until the same was presented to her, as executrix, after the will of her testatrix had been admitted to probate, and she asks for a bill of particulars, setting forth—First, the particular time and place where the note set forth in the complaint was delivered to the payee thereof; second, the name and place of residence of said payee; third, the particular time and place when and where said note was delivered or transferred to C. D. Bush; fourth, a particular statement of the consideration for the transfer of said note by the payee thereof to said C. D. Bush.

As we have seen, the note is payable to bearer, and does not name a payee. The complaint does not disclose the name of the payee but alleges that the note, at the time of the making thereof, was then and there duly delivered to the payee therein named, who afterwards duly transferred the same, for value, to one C. D. Bush, and that C. D. Bush, prior to the commencement of this action, duly transferred the same to the plaintiff. It appears to us that, under the facts presented, the name of the payee, or the person to whom the note was delivered upon the making thereof, should be disclosed. It is undoubtedly true that the granting or withholding of the order to furnish a bill of particulars rests in the sound discretion of the court, but that discretion is reviewable here. The maker of the note is dead. The existence of the note was unknown to the defendant until it was presented as a claim against the estate of the deceased. The amount of the note is for more than the entire value of the real and personal property left by the testatrix, and it appears to us that the defendant should be given a reasonable opportunity to investigate the circumstances under which it was made, in order to enable her to prepare her defense. She cannot well be afforded such an opportunity without knowing the name of the payee. Matthews v. Hubbard, 47 N. Y. 428; Witkowski v. Paramore, 93 N. Y. 466 ; Tilton v. Beecher, 59 N. Y. 176; Childs v. Tuttle, 48 Hun, 228 ; 17 St. Rep., 943; Ball v. Evening Post Publishing Co., 28 Hun, 11; Klock v. Brennan, 13 N. Y. Supp. 171; 35 St. Rep., 745 ; Smith v. Johnston, 5 N. Y. Supp. 128 ; 22 St. Rep., 593. The order appealed from should be reversed, with $10 costs, and disbursements; and the motion for a bill of particulars, requiring the plaintiff to disclose the name of the payee of the note, or the person to whom it was first delivered, together with the time and place of such delivery, and his place of residence, should be granted.

All concur.


text:
    Ida M. Cobb, Pl’ff, v. H. Eugene Welcher, Def’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Master and servant —Machinery.
    The duty of the factory owner is fully performed, when he furnishes-a cover or guard sufficient to protect against accidents, which may be reasonably apprehended or liable to occur.
    Motion by plaintiff for a new trial after a non-suit upon exceptions ordered to-be heard at general term in the first instance,

      Walter S. Hubbell, for pl’ff ; Myron T. Bly, for deft.
   Haight, J.

This action was brought to recover damages for a personal injury. The defendants were operating a factory in the city of Eochester. There was a long table extending through the factory, upon which sewing machines were placed. The table was 2 feet 6 inches high. Underneath the table, in the center thereof, was a line of shafting, extending the length of -the table, 20 inches above the floor, one end of which projected about 3¿ inches beyond the table. The sewing machines were operated by means of belts around the shafting. At the end of the table, where the shaft projected, a box was constructed, 3 inches wide and 3f inches deep, with a cover on the upper end. The box was toenailed to the floor, and to the top of the table, so as to enclose the projecting end of the shaft. The plaintiff had been previously in the employ of the defendants for some time as forewoman, but, at her own request, had been given a machine to operate at the table. Her machine was next to the end of the table. On the day in question she had loosened her hair, in consequence of a headache. When she was about to leave the factory, she stepped to the end of the table, and allowed her hair to fall loose, straightened it out, and then bent over, took her hair in her hand, threw it around over her head, in the act of coiling it, and, as she did so, it flew around underneath the table, back of the box covering the shaft, was caught by the shaft, and wound around it, tearing the scalp from her head.

It is claimed that she is entitled to recover, upon the ground that the defendants were chargeable with negligence in not having properly guarded the shafting at the end of the table, under Laws 1890, c. 398, § 12, which provide that “all vats, pans, saws, planers, cogs, gearing and machinery of every description therein shall be properly guarded.” This statute, and the duty of factory owners thereunder, have been considered and discussed by us in the case of Knisley v. Pratt, 58 St. Rep. 213 (at the present term of court), and we shall not attempt to repeat here what we have said in that case. The box was in position over the end of the shaft at the time the accident occurred, and we think it satisfactorily appears that it was nailed to the table. The question is, therefore, whether it was a compliance with the statute. It was surely a covering to the shafting, sufficient to prevent the clothing of the employes from coming in contact therewith. We do not understand the statute to make the factory man the insurer of the safety of his employes, or that it requires him to guard against extraordinary accidents,-which careful and prudent men could not foresee or anticipate as liable to occur. As we understand it, his duty is fully performed when he furnishes a cover or guard sufficient to protect against accidents which may be reasonably apprehended or liable to occur. Stringham v. Hilton, 111 N. Y. 188; 19 St. Rep. 621; Pauley v. Steam Gauge and Lantern Co., 131 N. Y. 90; 42 St. Rep. 636. We regard the accident to the plaintiff as extraordinary, and one that could not well have been foreseen or anticipated. It follows that the motion for a new trial should be. denied, and judgment ordered for the defendants upon the nonsuit.

All concur.


text:
    Jacob Cram, Resp’t, v. Gas Engine and Power Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Sale—Implied warranty.
    No implied warranty arises on the sale of an article manufactured for a certain purpose, unless the buyer has no knowledge of it but relies upon the judgment of the vendor.
    Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      S. D. Halliday, for app'lt ; David M. Dean, for resp’t.
   Haight, J.

This action was brought to recover damages upon a breach of warranty. It appears that in the fall of 1890 the plaintiff entered into an agreement with the defendant to construct for him a naphtha launch, with a cabin in the central part thereof, according to plans and specifications agreed upon, for the sum of $7,000, and have the same in readiness to deliver to the plaintiff in May, 1891. It further appears that the launch was constructed and delivered to him at the time agreed upon, and that the plaintiff paid therefor $1,500 in cash, and by giving his promissory notes for the balance. He then proceeded with the launch to Sheldrake, on Cayuga lake, by way of the Hudson river and the Erie canal. The day after he arrived at Sheldrake, he gave direction to his men to take the naphtha out of the tank, which they proceeded to do by means of a pump, while the launch was at anchor in the lake. After pumping out all of the naphtha that they could, they took a large sponge, tied it to the end of a stick, and with it soaked up and cleaned out the naphtha still remaining in the tank. The launch was then hauléd into shore, alongside of a dock, where three barrels of new naphtha was emptied into the" tank. A new propeller wheel was put on, and the bilge water in the bottom of the launch pumped out as fully as it could be with the pump, and the rest was cleaned out by means of the sponge which was used in cleaning out the tank. In the early evening of that day, the plaintiff gave directions to his men to get the launch in readiness for a trip to Ithaca. Thereupon his engineer started the engine and another of his employes entered the cabin, and lighted the lamps. In a few minutes thereafter an explosion occurred in the cabin, blowing it to pieces, and setting the boat on fire. It partially burned, and sank in the water. Subsequently, the hull of the launch was drawn out on shore, and inspected. The naphtha tank, pipes, and engine were found to be in perfect repair, except as damaged by the fire.

Upon the trial, the court charged the jury that, in case they found for the plaintiff,'their verdict should be for the purchase price paid, less the value o£ the remains of the launch after the explosion and fire. The jury rendered a verdict in favor of the plaintiff for $1,400, being the amount of cash paid by him, less $100, the value of the materials that remained after the explosion. The appellant now contends that a wrong measure of damages was adopted; but we think that a complete answer to this contention is that no exception was taken to the charge of the court upon this subject.

It is also claimed that the verdict is against the weight of evidence. The theory of the plaintiff, as we understand it, is that the defendant had warranted the use of naphtha in the launch to be safe. It is further claimed that in launches having cabins it is dangerous; that there is necessarily some escape of the gas generated from the fluid; that it is heavier than the air, and would consequently settle to the bottom, and that in an enclosed cabin, where the air did not circulate, it would accumulate, and that, when mixed with air, so as to form one part of gas with twenty-five parts of air, it becomes highly explosive; that gas had accumulated in the cabin on this occasion; and that, when the servant of the plaintiff entered and lighted the lamps, he stirrrd the gas up with his feet, and it became ignited by the lamps, causing the- explosion. On the part of the defendant", it was claimed that the engine was placed in the stern of the launch, which was partitioned off by a bulkhead; that the space between the bulkhead and the stern was lined with copper; that the cabin only extended to the bulkhead, and that consequently the gas settling in the bottom could not pass into the cabin; that the plaintiff or his servants were guilty of negligence in pumping the old naphtha from the tank; that they had permitted it to run up on the deck of the boat, and that a part thereof had in some manner found its way into the bilge under the cabin, and that, in cleaning out the bilge, they had improperly used the sponge with which they cleaned out the tank; that the gas that had accumulated in the cabin had generated from naphtha carelessly permitted to get into the bottom of the launch ; that the plaintiff’s servant, when he entered the cabin, discovered the presence of gas by smelling it, and was guilty of negligence in thereafter proceeding to light the lamps. The respective theories were submitted to the jury, and, as we have seen, a verdict was found for the plaintiff. Whether the theory advanced by the defendant is the more rational and probable we do not deem it advisable now to consider, for, under the view taken by us, this review must be determined upon other grounds.

As we have shown, this action was based upon a breach of warranty. It is contended on behalf of the plaintiff that, at the time he entered into the contract with the defendant to construct the launch, he had first contemplated contracting for a steam yacht, but that upon the representations of the defendant’s president that the naphtha launches were perfectly safe for pleasure yachts, and that they could be safely operated by an inexperienced man with reasonable intelligence, after proper instructions, he concluded to contract for a naphtha launch instead. The question as to whether there was or was not a warranty was controverted 'upon the trial, and became a sharply-contested question of fact. This question was properly and very fairly submitted to the jury, but, at the conclusion of the charge, the plaintiff’s counsel requested the court to charge “ that if the boat was to be made by the vendors, and was bargained for, for a particular purpose or use, and this was the understanding of the parties at the time, there arises an implied warranty that it shall be suitable for such purpose or use.” This request was not only charged, but the court went a step further, and stated that the “ law implies that it will be reasonably safe for the purpose for which it is designed;” and exception was taken by the defendant to this charge. There was no question as to the use for which the launch was designed. The plaintiff was gentleman of wealth and leisure, having a summer residence upon the shores of Cayuga lake. He desired the lannch for a pleasure yach t for the use of himself, family, and guests upon that lake, so that the question raised by the exception to the charge is squarely presented for determination. The counsel for the respondent has not given us his views upon this question, or cited any cases sustaining his request to charge. We have, however, made quite a careful search of the books, and have examined numerous cases bearing upon the question, but have been unable to find any which we think sustains the charge. There are many varieties of implied warranties growing out of the numerous transactions among men. In certain instances the seller of an article impliedly warrants that he has the title and power to dispose of it. S.o, also, in certain cases, a merchant is deemed to have warranted the thing sold by him to be merchantable, and, in some instances, fit for the use or the purpose for' which it was designed. In the case under consideration the implied warranty relates to a sale by the manufacturer of the article. We shall therefore confine our attention to the cases upon that subject, or those that are akin thereto. It is undoubtedly the rule that, in a sale o£ an article by the manufacturer, a warranty is implied that the article sold was properly and skillfully manufactured • that it was made of good material, and is free from latent defects growing out of the manufacture. But such warranty does not extend to latent defects in the material used by him of which we had no knowledge. Among the leading cases upon this question are those of Hoe v. Sanborn, 21 N. Y. 552, and Randall v. Newson, 2 Q. B. Div. 102.

It may also be stated as a rule that where a manufacturer contracts to supply an article which he manufactures, which is to be applied to a particular purpose, and, where the buyer has no knowledge of the article, but necessarily trusts to the judgment and skill of the manufacturer, there is an implied warranty that it shall be reasonably fit for the purpose to which it is to be applied. This is the extent to which the authorities go. Among the authorities bearing upon this question are Jones v. Just, L. R. 3 Q. 197; Laing v. Fidgeon, 4 Camp. 169 ; Gammell v. Gunby, 52 Ga. 504; Rice v. Forsyth, 41 Md. 389 ; Brown v. Sayles, 27 Vt. 227; Dutton v. Gerrish, 9 Cush. 89; Shepherd v. Pybus, 3 Man. & G. 868; Machine Works v. Chandler, 56 Ind. 575; Dounce v. Dow, 64 N. Y. 411; Loop v. Litchfield, 42 N. Y. 351; Bragg v. Morrill, 49 Vt. 45; 24 Amer. Rep. 102, (see Reporter’s note, page 104, and cases there cited ;) Benj. Sales, § 661, and note 16, on page 664. On referring to the request to charge, it will readily be seen that it does not embrace the essential elements of the latter rule. The chargé is limited to cases in which the article bargained for was for a particular purpose or use, and does not embrace the want of knowledge of the character and fitness of the article by the buyer, or that he trusted to the judgment and skill of the maker as to its fitness. If, therefore, the plaintiff knew all about naphtha, and its use in launches, he could not be deemed to have relied upon the judgment of the defendant’s president, and there consequently could not have been an implied warranty that its use was safe. The charge as made does not incorporate the question of the knowledge of the plaintiff, or leave that for the determination of the jury.

Is the charge as made within the first rule? As we have seen, the manufacturer is required to properly and skillfully make, and use good materials, and he is liable for latent defects growing out of the manufacture. Such is his implied warranty. Applying this rule to the launch in question, the defendant was required to construct the boat and the machinery therein properly and skillfully, of good material. It must be free from defects growing out. of its manufacture. It is not questioned but that all this was done. No complaint has been made in reference to the structure of the boat, of the engine, tank, or other machinery therein. Even after the explosion, when the hull was drawn upon the shore and examined the machinery was found to be in good order, except in so far as it was damaged by the fire, As we have seen, the plaintiff’s claim is that the launch was dangerous by reason of having a cabin, into which the gas of the naphtha might escape and become dangerous.. But the plaintiff had ordered the cabin constructed. It was built in accordance with his plans and specifications. If the defendant or its officers had known that a cabin in such a launch was dangerous, it might have been their duty to call his attention to the fact. Whether the plaintiff or the defendant’s officers or agents knew of such danger does not appear. These questions were not incorporated in the charge, or submitted to the jury. Under the charge as made, the jury was required to find that there was an implied warranty that the launch was reasonably safe if it was made for a particular use, and that use was understood by the maker. There being no question in reference to the use, or that it was understood by the maker, the charge in effect required the jury to find that there was a waranty that the launch, with a cabin in it, was safe. This, we think, was going far beyond the rule. It not only requires the maker to properly and skillfully construct, of good material, free from latent defects, but it requires him to warrant that the naphtha may be safely used therein, with a cabin on the boat, and this without regard to the character or quality of the naphtha used, and without previous knowledge that a cabin rendered it unsafe. In the defendant’s book of instruction furnished to the plaintiff, and by him put in evidence, we find in bold type, at the bottom of each page, the words, “Use 76 deg. deodorized naphtha;” and yet we are not informed, either by the charge or the evidence, as to the character and quality of the naphtha supplied to the launch before its explosion. It is conceded that some of the naphtha will necessarily escape at the engine; that no packing boxes have yet been discovered that will absolutely prevent the escape of steam or naphtha in small quantities. It is also conceded that naphtha, when brought in contact with air, will quickly evaporate; that a gas will generate therefrom, and, when mixed with air in the proportions already stated, it becomes dangerous. Its use must therefore necessarily be attended with some danger. The defendant was not the manufacturer or the seller of the naphtha. It only manufactured the launch. Its implied warranty extends to the launch, not to the naphtha. The damage complained of arose from the naphtha, or the gas that had been generated therefrom, which had escaped into the cabin, and not through any defect disclosed in the launch, its machinery, or its construction. In the case of Losee v. Clute, 51 N. Y. 494, it was held that the manufacturer and vendor of a steam boiler is only liable to the purchaser for defective materials, or for want of care and skill in its construction. We think an engine and boiler may fairly be taken for the purpose of illustration. A steam engine and boiler is usually operated by gas or coal used as a fuel, more usually coal. The manufacturer is liable to the purchaser by reason of his implied warranty for defective materials used in the manufacture, and for want of care and skill in its construction. Its use is attended with some danger. The sparks that arise from the burning fire, if brought in contact with inflammable materials may ignite the same, and cause damage. The steam that necessarily escapes may also in some instances produce damage. But can it be claimed that the maker’s implied warranty extends to injuries resulting from the escape of sparks or steam ? The use of kerosene in lamps for the purposes of light is attended with some danger, especially if the oil used is not properly refined, or is not of a standard quality; and yet it will hardly be claimed that a manufacturer of the lamps would be liable for the damages resulting from its use, where the lamps were properly constructed and of good material.

For the reasons stated, the judgment and order must be reversed, and a new trial granted, with costs to abide the event.

All concur.


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    Julia Fuller, Resp’t, v. The Jamestown Street Railway Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    1. Appeal—Exceptions.
    Exceptions to evidence upon a branch of the case, as to which the finding is in favor of the appellant, are thereby rendered unavailing.
    2. Evidence—Negligence.
    In an action for injuries received while entering a street car, the acts and conduct of the driver on the occasion are admissible as bearing upon his competency.
    3. Same—Complaints.
    Where, in an action for an injury, evidence is given that the party made no complaint in reference to the iujury, proof that complaint was made becomes pertinent in rebuttal,
    4. Trial—Withdrawal of evidence.
    A party by whom evidence is introduced, may .afterwards withdraw it with the permission of the trial court.
    5. Same—Referee.
    A referee cannot be compelled to pass upon abstract propositions of law.
    Appeal from a judgment in favor of plaintiff.

      C. B. Lockwood, for app’lt; A. 0. Pickard, for resp’t.
   Haight, J.

This action was brought to recover damages for a personal injury. The plaintiff claims that about 5 o’clock in the afternoon of the 12th day of January, 1890, she.undertook to board one of the defendant’s cars, in Windsor street, in the city of Jamestown, opposite the house of Mrs. Creer ; that her little girl accompanied her; that she had an umbrella in her left hand, with which she signaled to the driver of the car to stop ; that he stopped the car, and she thereupon lifted the little girl upon the platform, ánd then took hold of the grab handle upon the corner of the car with her left hand, in which was the umbrella, and of the grab handle upon the dash with her right hand, and placed her right foot upon the step, and was in the act of raising her body up,when the car suddenly started, with a jerk, breaking her, left hand loose from the grab handle, and causing her body to swing around, back of the dash, striking her shoulder against some obstacle and causing the injury for which this action was brought. She states that she clung to the grab handle with her right hand, and that her right foot remained upon the step, as she swung around. It further appears from her testimony that the ear stopped, and she got aboard, and as she entered the car it again started suddenly, throwing her into the seat with some force; that as she arrived at her place of destination the car was stopped, and she started to get out, and as she placed one foot upon the step the car suddenly started, and she returned into the car, rang the bell, and spoke to the driver, who then stopped again, and she alighted. On arriving home, she told Mrs. Southwick of the accident, and the next day called upon Dr. Peterson. He examined her shoulder, found a red spot, which was tender, and prescribed for her from time to time thereafter. In the course of two or three weeks an abscess formed, which he lanced two or three times ; and at the time of trial her shoulder had become deformed,—one being l-j|- or two inches higher than the other,—and the movement of her right arm, at the shoulder, was impaired.

It is claimed on behalf of the defendant that no accident of the character described by the plaintiff occurred, and that the injuries she claimed to have suffered were feigned. But these questions, we think, were properly disposed of by the referee. At least, the evidence is of such a character that, under review, we could not well say that findings of the referee were against the evidence, or the weight thereof. It is claimed that it was not possible for her to swing around against the rear of the car, in the manner described, with her right foot remaining upon the step. It is not always possible for a person when suddenly surprised by an accident to describe accurately how it occured, but we discover nothing in her detail of the circumstances that we regard as extraordinary or impossible. Her left hand had broken loose from the grab upon the corner of the car. She still clung to the grab upon the dash with her right hand. The motion of the car forward would naturally throw her body around in the rear. If her right foot, resting upon the step, turned with her body, the knee joint would bend around the end of the dash, and allow her body to swing around against the brake. Experiments were made by several of the witnesses, some of whom were women, who have testified that it could be done in the manner described. It is also claimed that after the alleged injury she was seen by a number of witnesses using her injured arm as freely, in and about her work, as she did the other, from which it is urged that she was feigning. But the indisputable facts remain that a red spot was discovered by the physician upon the shoulder the next day, which was tender and sore, and that within the usual time thereafter an abscess developed, and that a deformity in the shoulder followed. It is also contended that prior to the injury in question she, on one occasion, fell upon the step of her stoop, and was injured, and that one Dr. Loop, of North East, reduced a partial dislocation of her shoulder; but on rebuttal it was shown that the treatment of Dr. Loop was after the accident in question, and was in reference to the injuries received on that occasion.

Numerous exceptions were taken upon the trial to the admission and exclusion of evidence, -but there are few, however, that require consideration. Many exceptions- -were taken to the admission of evidence bearing upon the question of damages to the plaintiff’s separate business; but the referee found and held that the defendant was not indebted to the plaintiff for any injury receive by her to her separate business, or for labor or services outside of her own family, and he confined her recovery to the damages she had sustained by reason of the injury to her person, her suffering and pain. Upon this branch of the case the finding was in favor of the defendant, and therefore its exceptions to the evidence are rendered unavailing.

As we have seen, the plaintiff was permitted to testify as to the conduct of the driver in suddenly starting the car while she was attempting to alight therefrom. An exception was taken to the admission of this evidence. It was offered, however, specially for the purpose of showing the manner in which the driver operated the car on that occasion; in other words, his condition. It was upon the same trip on which she had received her injury. It was claimed that the injury resulted from the negligent manner in which the driver operated the car; that he was an incompetent person. And, as bearing upon his competency, we think his acts and conduct on the occasion were permissible.

An exception was also taken to the testimony of the plaintiff to the effect that on arriving home she told Mrs. Southwick of the accident. The propriety of this evidence, at the time it was taken, was perhaps, doubtful; but the theory of the defense was that the accident as described, had not occurred, and upon the plaintiff’s cross-examination she was asked 'if, after entering the car, she spoke with the driver about the accident, or as to whether'she told the woman t bat subsequently got into the car about it, or as to whether she spoke to any person in the car about it. The action, conduct, and, to some extent, the declarations, of a person, immediately after an injury, are competent, as a part of the res gestee. If the person who claims to have received an injury makes no complaint in reference thereto, that fact becomes pertinent upon the question of fact; and, where that evidence is resorted to for the purpose of showing that the accident did not occur, evidence that complaint was made becomes pertinent in rebuttal. We think, therefore, that, in view of the character of the cross-examination alluded to, error cannot be founded upon the exception.

The testimony of Dr. Peterson, as given on a former trial, was read under a stipulation, lie having died previous to this trial. It is quite possible that, under the provisions of the Code, the same should have been taken subject to any legal objection to the questions put to the witness upon the former trial. We have therefore carefnlly examined the evidence given, and the exceptions taken thereto; and, while we do not wish to be understood as sustaining the reasons given by the referee for his rulings, we have failed to discover any evidence that was improperly received. The witness was a physician in charge of the patient. He was shown to be an expert, and, as such, it was competent for him to give his opinion, in answer to the questions propounded.

In taking the testimony of Dr. ¡Loop, the defendant’s counsel drew out the fact that the plaintiff had written him a letter. Thereupon the plaintiff was allowed to read the letter in evidence. Exception was taken, however; and, after reflection, the plaintiff’s attorney, with permission of the. referee, withdrew it from the evidence. We think this was permissible.

The defendant requested the referee to find that the defendant was not bound to the exercise of greater than ordinary care and diligence, —no greater care or diligence than a man of ordinary prudence and capacity might be expected to exercise under the same circumstances. This was refused. But we regard it as an abstract proposition of law, which the referee could not be compelled to rule upon. He found the facts in the case, and upon those facts, liis conclusions of law are based. We are satisfied that the facts, as found support the referee’s conclusions, even if the rule is as stated by the appellant in his request. The judgment appealed from should be affirmed.

All concur.


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    Abram H. Garson et al., Resp’ts, v. Philip Brumberg. Dewitt Kornhauser et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Attachment—Grounds.
    An alternative statement of the grounds under subd. 2, § 636 of the Code is sufficient to sustain an attachment.
    Appeal from an order denying a motion by junior judgment creditors of defendant to vacate an attachment previously obtained by plaintiffs.

      Edward L. Jellinelc, for app’lts ; Wile & Goff, for resp’ts.
   Haight, J.

The motion to vacate the attachment was based on the papers upon which it is granted. The grounds recited in the attachment are that “the said defendant did, on or about the 20th of July, 1893, being a natural person, and resident of this state, depart from this state with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent.” While the affidavits upon which the attachment are granted are properly subject to some criticism, still we are of the opinion that the facts stated are sufficient to authorize the issuance of the same.

A more serious question arises as to the grounds stated in the attachment, the recitals being in the alternative. The warrant of attachment must now briefly recite the grounds upon which it was granted Code Civil Proc. § 641. It may be granted where “the defendant is either a foreign corporation, or not a resident of the state ; or, if he is a natural person and a resident-of the state, that he has- departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent; or, if the defendant is a natural person or a domestic corporation, that be or it has removed, or is about to remove, property from the state, with intent to defraud his or its creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete property, with the like intent.” Code Civil Proc. § 636, subd. 2. In Dintruff v. Tuthill, 17 N. Y. Supp. 556; .43 St. Rep. 704; it was held that a warrant of attachment which follows the language of the statute, and recites the facts in the alternative, is defective. In that case the recital was to the effect that the defendant “ has removed, or is about to remove, the property of the said firm from the state, with intent to defraud the creditors of the said firm, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, the property of said firm, with intent-to defraud the creditors of the said firm.” And to the same effect are Macdonald v. Kieferdorf, 18 N. Y. Supp. 763; 46 St. Rep. 176; Johnson v. Buckel, 20 N. Y. Supp. 566; 48 St. Rep. 924; First Nat. Bank v. Bushwick Chemical Works, 6 N. Y. Supp. 318; 25 St. Rep. 830. But these cases are all under the other clause of the section, and are not necessarily controlling upon the question under consideration. They charge that the defendant has removed, or is about to remove, property from the state, with the intent to defraud his creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, property with the like intent. The removal of property with the intent to defraud creditors is one ground, and the assignment of it with like intent is another; but they are based upon different facts, and both cannot well be included in or established by the same facts, while, under the other provision of the Code, the intent to defraud creditors or to avoid the service of a summons may be established from the same facts. Whether he has departed from the state or keeps himself concealed therein is immaterial where the purpose and intent is the same. It appears to us that-this subdivision of the section may properly receive a construction which allows the grounds to be stated in the attachment in the alternative; -otherwise the clause can be of but little benefit, for where the debtor has secreted himself, either by departing from the state or by hiding himself within the state, the creditor, if compelled to establish which, will in most cases be powerless to-do so, for reasons which are obvious. The distinction to which we have alluded is clearly pointed out by Drake on Attachments. At § 101 he calls attention to a rule, to the effect that as many grounds may be alleged for the attachment as are within the-terms of the law, and may be deemed expedient, but in doing so the several grounds should be stated cumulatively, and not in the disjunctive; and then following, in § 102, he says:

“Let it be observed, however, that where the disjunctive ‘or’ is used, not to connect two distinct facts of different natures, but to characterize and include two or more phases of the same fact attended with the same results, the construction just mentioned would be inapplicable. For instance, where the statute authorized an attachment when the defendant absconds or secretes himself, it was considered, from the difficulty of determining which was the fact, that the language comprised but one ground, and the disjunctive ‘or’ did not render the affidavit uncertain; ” referring to Johnson v. Hale, 3 Stew. & P. 331.

Continuing, he says:

“ It is often difficult, if not impracticable, for the creditor to ascertain whether his debtor absconds or secretes himself. He has to rely frequently upon such information as his family or friends will give him, which cannot always be confided in. Hence, to allow sufficient latitude to the creditor in making his affidavit, and to prevent failure from having mistaken the cause why the debtor' is liable to the remedy, the law has very properly provided for its issuance in the alternative; ” referring to Cannon v. Logan, 5 Port. (Ala.) 77.

Kneeland on Attachment (section 215) says:

“ Although there is a distinction in words between a concealment and an absconding, there is no difference in fact. The terms are not strictly synonymous, but the one is included in the other. Absconding is not always a concealment, but concealment for the purpose of defrauding creditors or avoiding service of summons is always an absconding. Where both of the terms are used, either' separately or conjunctively, the one refers to a concealment or absconding within, and the other without, the state; but the line of demarcation is not drawn so strictly as to affect the jurisdiction of the court It is not a fatal defect in an affidavit, therefore, to use the term ‘ absconds or conceals himself,’ as but one real ground of attachment is set forth, the terms being for that purpose equivalent. And where it is doubtful whether a debtor has departed from the state or conceals himself therein with the intent to defraud his creditors or avoid service, an attachment will be granted if the creditor charge in the disjunctive that he has done one or the other.”

In Van Alstyne v. Erwine, 11 N. Y. 331, 339,Denio, J., in considering the grounds upon which an attachment may issue, says:

“It is objected that the application is in the disjunctive,—that the debtor had departed from the state, or was concealed within it, with intent to defraud his creditors; and it is said that the creditor should have stated his case under one or the other aspect, and not in the alternative. The remedy is precisely the same whether the debtor had absconded or was concealed, no difference whatever existing in the proceedings in the two cases. A case may be so circumstanced that, although it may be conclusively shown that the debtor has left his place of residence in order to defraud his creditors by depriving them of their remedies, yet it may be impossible even to conjecture whether he has continued his flight beyond the boundaries of the state, or has resorted to some place of concealment in it. The affidavits disclose such a case in the present instance. If the objection is well founded, there could be no proceeding under this statute in a case thus circumstanced. The debtor would only have so to conduct his evasion as to make it uncertain which course he had adopted, and he would avoid this remedy. I do not think the statute requires such a construction.”

See, also, 2 Wait, Pr. 137.

It is claimed that these cases have no application, for the reason that the Code now requires the grounds to be stated in the attachment. Formerly, it is true, the grounds were not required to be so stated, but they were required to be shown from the facts set forth in the affidavits upon which .the attachment was issued ; and if the facts in the affidavit, stated in the alternative, were sufficient under the subdivision of the Code alluded to, we fail to see why they may not be so stated in the attachment. We think the order appealed from should be affirmed, with $10 costs and disbursements. All concur.


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    Mary Hogan, as Executrix, etc., Resp’t, v. Mutual Aid and Accident Association, App’lt.

      (Supreme Court, General term, Fifth Department,

      Filed January 18, 1894.)

    1. Appeal—Evidence.
    It is not error to refuse to strike out evidence admitted without objection.
    2. Same.
    Testimony, which is hut partially impaired by cross-examination, cannot be properly stricken out, even in the discretion of the court.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.

      Henry M. Hill, for app’lt; P. P. King, for resp’t.
   Haight, J.

This action was brought to recover the sum of $2,000 upon a policy of insurance issued by the defendant upon the life of Hugh O’Haire, the plaintiff’s testator. The defense was that the deceased, in his application for insurance, had falsely' represented his age to be but 47, when in fact he was much older, and that in his application he .had agreed that his representations should form the basis of his contract with the defendant. Udou the trial the plaintiff called as witnesses Patrick and John O’Haire elder brothers of the deceased, who testified that he was born in County Louth, Ireland, in the year 1838. Patrick was bom in 1830,and John in 1833; so that one was eight years and the other five years older than the deceased. On the cross-examination they conceded they could not recollect the circumstances of the birth of Hugh, or the year, independent of the statements of .their father, and the general talk in the family. But Patrick recollected him as an infant in the cradle; and John as a boy running^round, when he (the witness) was seven or eight years of age. No objection was made to the reception of this evidence. After it had been taken, the defendant moved to strike it out. The court refused, and an exception was taken. This presents the only question which we are requested to consider upon this review.

We think that the ruling of the trial court was correct. When evidence is admitted upon a trial by jury, without objection, or properly under objection, which for reasons subsequently appearing, should not be considered by the jury, its retention is discretionary with the court, and it is not error to refuse to strike it out. The remedy of the party is to ask the court to instruct the jury to disregard it. Marks v. King, 64 N. Y. 628; Platner v. Platner, 78 N. Y. 90; Holmes v. Moffat, 120 N. Y. 159-163; 30 St. Rep. 779; Pontius v. People, 82 N. Y. 339.

• But in this case the court could not properly, in its discretion, strike out the evidence, or instruct the jury to disregard it. The testimony of the witnesses was but partially impaired by their cross-examination. They were small children, and. could not, independently of the statements of their father, and what had always been talked and understood in the family, recollect the year of the birth of Hugh; but they remembered him from infancy, knew about their own ages, grew up with him, etc.,—pertinent facts bearing upon the age of Hugh, and which enabled the witnesses to know and testify nearly if not ■ to the exact year of his birth. The judgment should be affirmed.

All concur.


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    Sarah Knisley, App’lt, v. Pascal P. Pratt et al, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Failed January, 18, 1894.)

    1. Master and servant—Machinery.
    The provision, in § 12, chap. 893 oí 1890, as to guarding machinery of every description is mandatory, but that, in respect to the supplying of belt shifters, is within the discretion of the factory inspectors.
    2. Same.
    A failure on the part of the factory owner to perform a duty imposed by the statute, where, as a consequence, an injury results to another, is evidence of negligence.
    8. Same.
    Risks, incident to such failure, is not assumed by the servant.
    Motion by plaintiff for a new trial on exceptions ordered to be heard at the general term in the first instance after non-suit.

      H. G. Day, for pl’ff; John G. Milhurn, for def’ts.
   Haight, J.

This action was brought to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendants, in their factory, in the city of Buffalo. She was engaged in operating what is known as a “punching machine.” The machine was placed upon a bench 32 inches from the floor. It was 22 inches wide and 4 feet high. The machine was of iron, and was securely bolted to the bench. There were iron posts on either side, extending to the top. Hear the top was a shaftpassing through the posts, on one end of which was a drum and belt connecting with shafting in the upper portion of the building. On the other end of the shaft there was a small cogwheel, about 7 inches in diameter, running close to the frame, outside of which was a large fly wheel. Underneath this shaft was another shaft, having a cogwheel about 2 feet in diameter, which was operated from the cogwheel on the upper shaft. In the center of the lower shaft was an iron rod or arm, to which was attached the punch, arranged on an eccentric, so that the revolution of the shaft caused the punch to rise and lower. There were five of these machines standing upon the bench, similarly constructed. They had no appliance for shifting the belt from the drum so as to stop the machine, or covers for the cogwheels. Opposite each wheel, and about an inch therefrom, was a place for oiling the shafts at their bearings upon the frame. The plaintiff entered the employ of the defendants in May, 1890, and continued in their employ until the close of September 24, 1891. On that day she was operating the machine described. A few minutes before quitting time,- the whistle was sounded, and the girls operating the machines were then required to take a handful of waste provided by the superintendent, and clean the machines, wiping the oil therefrom while the same were in motion. The floor of the building was uneven. It was filled with machinery in operation, making a great noise, so that the operators sitting at the same table could not hear’ one another talk. The plaintiff was attempting to wipe the oil from the upper hearings, near the cogwheels. To do so, she had to stand upon her tiptoes; and, while so engaged, the cogwheels caught the waste in her hand, or else her hand slipped upon the oily portion between the wheels,'—she is unable to say which,— and her hand and arm were crushed.

Were the defendants chargeable with negligence ? The statute provides that:

“ It shall be the duty of the owner of any manufacturing establishm nt or his agent, superintendent or other person in charge of the same, to furnish and supply, or cause to be furnished and supplied, therein, in the discretion of the factory inspector * * * where the machinery is in use, belt shifters or other safe' mechanical contrivances for the purpose of throwing on or off belts or pulleys, and whenever possible machinery therein shall be provided with loose pulleys ; all vats, pans, saws, planers, cogs, gearing and machinery of every description therein shall be properly guarded.” Laws 1890, c. 398, § 12.

It will be observed that the provision in reference to the supplying of belt shifter is left within the discretion of the factory inspector, but that in reference to guarding “vats, pans, saws, planers, cogs, gearing and machinery of every description,” the provision is mandatory. While the - provision in reference to guarding the machinery is mandatory, it must, doubtless, receive a reasonable construction, and the guarding mentioned must have reference to that portion of the machinery which is so located as to be dangerous. The cogwheels causing the injury were about six feet above the floor, and may not, in consequence thereof, have been considered dangerous, in the ordinary operation of the machine, but may become dangerous when the operator undertakes to clean the same. There was no evidence showing that the factory inspector had required the defendants to supply belt shifters, so that they cannot be said to have violated the statute in this regard. The absence of belt shifters, however, becomes important as bearing upon the fact that the cleaning of the machines was required to be done while they were in motion. If the machines could have been stopped, the cleaning could have been done with absolute safety; but cleaning while in motion, with uncovered cogwheels, became extremely hazardous. And it appears that this fact was understood and appreciated by the defendants, for in another room in' the factory were three other machines, of similar construction, which had belt shifters, one of which had been formerly operated by this plaintiff; and when she commenced to operate the same she was instructed how to shift the belt, and directed never to attempt to clean the machine until she had shifted the belt, and stopped its motion. The statute to which we have alluded was designed to afford an additional safeguard to employes in factories. It casts upon the employer the ■duty of guarding machinery that is dangerous. A failure on the part of the owners of factories to perform a duty imposed by the statutes, where, as a consequence, an injury results to another, is evidence of negligence. McRickard v. Flint, 114 N. Y. 222, 226; 23 St. Rep. 100. While a master may. carry on his business with an old machine not provided with all the safeguards attached to new machines, unless required by the statute, he is ordinarly ■chargeable with the knowledge of the means necessary to be employed in the performing of his work, and is required to exercise proper care and precaution in guarding against the risks incident to the employment. He must, consequently, furnish his employes a safe place to work, sound and suitable tools, implements, appliances, and machinery, and must keep the same in repair. Benzing v. Steinway, 101 N. Y. 547, 552 ; McGovern v. Central Vt. Railroad Co., 123 N. Y. 280 ; 33 St. Rep. 416. Had the defendants fully discharged their duty the plaintiff in this regard ? Under the evidence, it appears to us that this question could properly be answered only by the jury.

Was the plaintiff guilty of contributory negligence? As we have seen, she was required to clean the machine while it was in motion, a portion of which was within an inch of the revolving cogwheels. In order to reach this place, she was compelled to stand upon her tiptoes on an uneven floor. There may have been some tremor to the building, owing to the machinery that was running therein. While standing in this unsteady position, her hand slipped, or the waste in her fingers suddenly caught in the cogs, drawing her hand within the wheels. We think this question should also be answered by the jury.

Did she, by her contract of employment, assume these risks? The trial court was of the opinion that she did, and for this reason ordered a nonsuit. The general rule, doubtless, is that a servant who enters the employment of a master assumes the risk incident to such employment, where the dangerous structures or implements are open and visible, and known to him. DeForest v. Jewett, 88 N. Y. 264; Sweeney v. Berlin & Jones Envelope Co. 101 N. Y. 520; Hickey v. Taaffe, 105 N. Y. 26; 6 St. Rep. 426 ; Appel v. Buffalo, N. Y. & P. Railway Co., 111 N. Y. 550; 20 St. Rep. 90. These cases were fully considered and discussed in the dissenting opinion in Eldridge v. Atlas Steamship Co., 134 N. Y. 187, 193 ; 48 St. Rep. 257; but this rule is founded upon the assumption that the master has discharged his duty to the employe, and consequently is not chargeable with negligence. In the De Forest Case there were ditches in the yard. They were open and visible,and known- to the employe; but he stepped into one, and fell under a passing train. In that case there was no statute requiring the ditches to be covered. Consequently, the railroad company was not chargeable with the omission of duty, or negligence. In the Appel Case, the plaintiff stepped into a i'rog, caught his foot, and was run over by a train. The frog was a necessary, open, visible structure in the yard, and was known to him., There was no statute requiring it to be blocked, and the company owed him no duty in that regard. In the Eldridge Case, the wheels of the winch were open and visible, and known to the • plaintiff, who had operated it on previous occasions,- but the statute did not require the wheels to be covered; and the same may be said in the Sweeney Case. Had the statutes required covers, in these cases, a different question would have been presented. In Benzing v. Steinway, supra, Euger, C. J., in delivering the opinion of the court, says :

“ It has been repeatedly held that the risks of the service which a servant assumes, in entering the employment of a master, are those, only,, which occur after the due performance by the employer of those duties which the law enjoins upon him-.”

And in McGovern v. Central Vt. Railroad Co., supra, the chief judge says:

“ It may, wé think, be laid down, as a general rule, that the dangers connected with such a business, which are unavoidable after the exercise by the master of proper care and precaution in ■guarding against them, are risks incident to the employment, and are assumed by those who consent to accept employment under such circumstances ; but those dangers which are known, and can be mitigated or avoided by the exercise of reasonable care and precaution on the part of those carrying on the business, and injuries from which happen through neglect to exercise such care, are not incident to the business, and the master is generally liable for damages occurring therefrom.”

The. trial court appears to have based its decision upon White v. Witteman Lithographic Co., 131 N. Y. 631; 43 St. Rep. 312. In that case the trial court, in its charge, said:

“ Then, again, it is also claimed, or suggested, at any rate, that the defendant failed in not guarding this machine in a particular manner, described by the same statute to which I have referred. But that point is not available against the defendant, under the evidence in this case, because the boy was aware of theyibsence of the guards, and he must be held to have assumed the risks of working on the machine without a guard.”

The judgment was affirmed on review, but we do not under- ' stand that the charge was held to be correct Earl, C. J., in delivering the opinion of the court, says, in reference to it: '

“ It is not always true that the absence of guards about the machinery, in such a case, provided the boy knew it, can have no-bearing upon the liability of the employer. The boy might unintentionally, and without fault on his part, come in contact with the machinery, or accidentally -fall or be thrown against it; and thus the absence of guards which would have protected him might constitute the negligence which would impose liability upon the employer. But here the boy not only knew that the guards were not there, but, according to his own evidence, they would have been of no service if t.hey had been there, because, having intelligence enough to take care of himself, and to understand and appreciate the machinery, and the danger to be apprehended from it, he intentionally went to the place where he was injured, and took hold of the lever with his right hand, knowing what the effect would be, and intending to produce that effect, and then, carelessly or thoughtlessly, thrust his left hand into the wheels. It is impossible to conceive how any ordinary guards would have saved him from the injury.”

As we understand the opinion, the charge was held not to be reversible error for the reason that the evidence showed that the guards, had they been there, would not have prevented the accident. We, consequently, are of the opinion that if it should be found that the defendants owed the plaintiff a duty which was not discharged, and that they were guilty of negligence in not performing it, and the injury was the result of such omission of duty, the risk was not such as was assumed by her. At follows that the exception to the non-suit was well taken, and that a new trial should be granted, with costs to abide the event.

All concur.


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    Mary A. Knope, App’lt, v. Joseph Nunn, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

      1. Reference—Compulsory.
    Where the only issues in an action are as to whether the sum claimed had become due and payable, and as to the amount of rent collected by the plaintiff and the disposition made thereof by her, no case is made for a compulsory reference. *

      2. Same—Affidavit.
    An affidavit, which simply states that the trial of the case will involve the examination of a long account, is insufficient.
    Appeal from an order appointing a referee.

      John A. Bernhard, for app’lt; Patrick McIntyre, for resp’t.
   Haight, J.

Code Civil Proc. § 1013, provides that “the court may, of its own motion, or upon the application of ether party, without the consent of the other, direct a trial of the issues of fact, by a referee, where the trial will require the examination of a long account on either side, and will not require the decision of difficult questions of law.” The question raised for review is as to whether or not the trial will require the examination of a long account.

The complaint, in substance, alleges that the plaintiff and defendant were the owners of a tract of land in the city of Rochester, and were in possession thereof as tenants in common; and that plaintiff owned an undivided one-third thereof, and the defendant the other two-thirds ; that they sold the same to one Hirschfield, for the sum of $5,000, which sum was paid to the defendant ; that he thereby became indebted to the plaintiff in the sum of $1,666.66, no part of which has been paid to the plaintiff, except the sum of $1,250; and judgment was demanded for the balance —$416.66—together with the interest which had accrued thereon. The answer denied that the defendant had received from Hirsclifield $5,000 in payment for the land sold to him, and alleged that but $1,000 thereof was paid in cash at the time of the delivery of the deed, and that the balance—$4,000—was secured by a mortgage upon the premises, payable in four years thereafter; that, at the time this action was brought, there was still due and owing upon the mortgage the sum of $3,000, and interest; and that the amount, if any, going to the plaintiff, was not yet due and payable ; and, as a counterclaim, alleged that, while the plaintiff and defendant were the owners and tenants in common of the land described in the complaint, the plaintiff collected the rents upon the premises, amounting to $1,275 ; that the defendant had paid for taxes, repairs, and insurance upon the same the sum of $116.40; and that the plaintiff was indebted to him in consequence thereof in the sum of $850. The plaintiff, in her reply to the defendant’s counterclaim, denied that she had collected rents to the amount alleged, or that she was indebted to the defendant in the sum of $850, and alleged that all of the rents collected by her 'were by the direction of the defendant, paid out for the support and maintenance of Mary A. Nunn, the mother of both the plaintiff and defendant in the action, and in the taxes levied and assessed against the premises, and she further alleged that the defendant had collected rents upon the premises to the amount of $189. _ * •

_ It is apparent that the only issue raised in reference to the matter alleged in the complaint is as to whether the sum claimed had become due and payable, and that the only account which will require examination arises under the counterclaim set up in the answer as to the amount of rent collected by the plaintiff, and the disposition made thereof by her. It is alleged that the rent was collected between July 24, 1884, and July 17, 1889. She concedes that she collected rents, but does not admit that they amounted to the sum stated, alleging that the defendant collected the sum of $189. She alleges that she paid the taxes, and expended the balance in the support of her mother, under the direction of the defendant. We do not understand that these allegations constitute a “ long account,” within the meaning of the section of the Code referred to. Randall v. Sherman, 131 N. Y. 669 ; 43 St. Rep. 923; Spence v. Simis, 137 N. Y. 616 ; 50 St. Rep. 167; Cassidy v. McFarland, 139 N. Y. 201; 54 St. Rep. 605.

It is true that the respondent, in his moving affidavit, states that “the trial of this action will involve the examination of a long account, embracing, as I verily believe, upwards of one hundred and fifty items;” but no fact is stated from which this conclusion appears to be supported. We do not understand such an affidavit to be sufficient to support an order of compulsory reference. Cornell v. U. S. Illuminating Co., 16 N. Y. Supp. 306; 41 St. Rep. 172; Thayer v. McNaughton, 117 N. Y. 111; 26 St. Rep. 843. The respondent, in his brief, states that it was agreed by the parties in open court, that the case was a proper one for reference, "but no such statement appears in the appeal book. On the contrary, the order entered contains the recital that the motion was opposed. The order appealed from should be reversed, with $10 costs and disbursements.

All concur.


text:
    Mary Moore, Resp’t, v. Citizens’ Mutual Life Insurance Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Insurance—Life—Waiver.
    Where a person, whose occupation is recited as a “yard conductor or yard master”, waives all claim under the policy in the event of death, from his occupat on as “said yard master,” no recovery can be had, if death results from his occupation as yard conductor, where he acted, at times, both as yard master and yard conductor.
    Appeal from a judgment entered on a verdict directed by the ■court in favor of plaintiff.

      L. O. Whiion, for app’lt; Walter S. liubbell, for resp’t.
   Haight, J.

This action was brought to recover the sum of $2,000 upon a policy of insurance issued by the defendant upon the life of John Moore, the husband of the plaintiff, and payable to her, as beneficiary. Moore was killed on the 20th day of March, 1892. The evidence tends td show that he was in the employ of the Buffalo, Bochester & Pittsburgh Bailroad, as a yard conductor, and was in the discharge of his duty as such; that he had been sent out by the yard master at Bochester to take some cars down to the Borne, Watertown & Ogdensburgh Bail-road, near Charlotte, and to get some cars therefrom; that as they arrived near Charlotte, he got under the tender of the engine, and was engaged in giving signals to the engineer; while so engaged, in some way, he slipped or fell therefrom, and was run over and killed. The defense was that the contract of insurance was entered into by the defendant, subject to the following:

“I, John Moore, of Bochester, Monroe county, Hew York, having applied to the Citizens’ Mutual Life Insurance Association of Hew York, under date of June 4th, 1891, for $2,000 insurance on my life, and having stated in said application that my occupation was that of a yard conductor or yard master, do hereby certify that my duties do not require me to shift or switch cars in the yard ; and I do hereby agree to waive, and do waive, all claim under policy Ho. 7,356, issued to me, in the event of my death oceuring from any cause arising from my occupation as said yard master, and that, in consideration of the statements and representations in this waiver, said policy is delivered to me.
“Bated Bochester, H. Y., this 6th day of July, 1891.
[Signed] John Moore.
“Witness: J. F. Wellington.”

In his application he had described his occupation as that of yard conductor. The evidence tends to show that he had been both yard master and yard conductor. That at the time of making the application he was yard conductor. In September following he again became yard master, and so continued until February, 1892. That-during February, 1892, he acted in a double capacity—as night yard master and yard conductor—with the title of “yard conductor” and that at the time of the accident he was yard conductor. The-yard master had charge of the yard conductors, in the shifting of cars and the making-up of trains. The yard conductor acted under the orders of the yard master, and had charge of the crew that did the work of shifting the cars and making up the trains. His duties as yard master or yard conductor were extra hazardous, and, as we have seen, he had served, and continued to serve, in both capacities, from time to time. It was under these circumstances that the company exacted the execution of the instrument in question before delivering the policy of insurance. In it, as we have seen, he refers to his occupation as that of a “yard conductor or yard master.” He then waives all claims under the policy issued to him, in the event of his death occurring from any cause-arising “ from my occupation as said yard master.” True, in this connection, he does not make use of the term “ yard conductor,” but he speaks of his occupation, and evidently refers to it, as previously described, as that of “ yard conductor or yard master.” In other word, he treats both as one occupation. It appears to us that this is the fair and reasonable interpretation of the instrument. This view is strengthened from the fact that at that time he was a yard conductor, as he described himself in his application. It is undisputed that his cause of death arose from his occupation as yard conductor. It consequently follows that, if we are correct in our view as to the proper construction of the instrument, a verdict for the plaintiff should not have been directed. The judgment appealed from should be reversed, and a new trial granted, with costs to abide the event. All concur.