text:
    Almira M. Dana, Adm’rx, App’lt, v. The Crown Point Iron Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Master and servant — Negligence—Appliances.
    Plaintiff's intestate was killed while cleaning an “ oven ” for heating the blast at defendant’s blast furnace. The blast had been cut off from the oven by means of a cock operated by a lever, which was additionally secured by a strong copper wire. The hot blast from the furnace found its way into the oven and caused the death of intestate. The furnace with its appliances was similar to those used in seventeen other places, and suitable for its purpose, and no accident of the kind had ever happened before with any of the furnaces. There was nothing to show what caused the moving of the lever. Held, that the complaint was properly dismissed.
    Appeal from judgment dismissing the complaint.'

      Wallace T. Foote, Jr. (Charles S. Foote, of counsel), for app’lt; Weeds, Smith & Conway (Richard L. Hand, of counsel), for resp’t.
   Herrick, J.

The defendant is a corporation, owning and operating a blast furnace; as a part of this furnace, used for the purpose of heating the draft of air forced into it, called the blast, is a stove or oven so called. This stove or’ oven is a large stack or chimney of iron, some seventy feet high, and sixteen feet in diameter, divided into four apartments; the largest apartment is occupied from top to bottom with a large number of small fire brick flues or chimneys, without lateral connections. It is operated by conducting gas into the oven, the gas is ignited, passes up through the apartments not occupied by the fire brick flues to the top of the flues, passes over and is drawn through the fire .brick chimneys or flues, and is drawn out or escapes by a chimney valve; by this process the fire bricks are heated to 900 or 1,000 degrees Fahrenheit; when they have been so heated the gas is shut off, what is called a blast valve opened, and air forced by powerful engines through these heated passages in the oven, and is heated by the fire brick to a temperature of from 900 to 1,000 degrees; then it is conducted through an opened blast valve into the furnace, furnishing what is called a hot blast This blast valve is located at the bottom of the stove or oven on its front; it works vertically across a horizontal pipe, and is raised by means of compressed air admitted into a cylinder underneath a piston directly above the blast valve, and connected with it by the piston rod and a valve stem, which are joined together by a toggle-joint

The admission of air to the piston is controlled by what is called a four way cock, that is, a cock with openings ninety degrees apart

The four way cock is operated by a lever some fourteen inches long.

When the lever is horizontal no pressure/can enter above or below the piston. When the lever is depressed about forty-five degrees, air is admitted under the piston, and the blast valve is raised ; when the lever is raised forty-five degrees, air is admitted above the piston and a downward pressure is obtained, which tends to keep the blast valve closed.

There is a nut on the four way cock which may be tightened or loosened; tightening the nut increases the friction or difficulty in moving the lever, and is intended to be used for that purpose. The men in charge of the furnace control the ease or difficulty of moving the lever by the use of this nut

This nut would naturally tend to work loose. The evidence shows that a month or six weeks before the accident this nut was tightened up, complaint was made that it was too tight, but no change was made. I cannot find anything in the evidence as to its condition at the time of the accident

At the time of the accident there was a small copper wire fastened by one end above the lever to what is called a pressure pipe, it was then conducted around the lever by a single turn and left hanging free; it had a tendency to hold the lever up in its horizontal position.

This wire seems to have been placed there by some of the men in charge of the furnace; it was not a part of the original construction of the machina The nut, when properly tightened, would keep the lever in a horizontal position, unless some force-was applied to it to move it either up or down.

There is a pathway in front of the oven, and three or four feet distant from it; there is nothing to prevent a person using the path from using or meddling with the lever. The pathway is used by the workmen to go around the ovens, and to go to- and from the different buildings of the defendant. Dust settles in the oven, and it has to be cleaned at periods of from two to-three months, and for that purpose there is a man hole opening into the oven by means of which a person may enter and clean it The furnace in question,with its appliances,was put up in 1881; it is similar in construction to those used in some seventeen other places, and, so far as appears, is reasonably safe in construction and suitable for the purpose for which it is constructed.

Ho accident of the kind in question appears ever to have happened before with any of the furnaces.

The oven of defendant’s furnace had not been cleaned out for about three months, when, on the 12th day of October, 1889, the plaintiff’s intestate, Herbert Dana, entered the oven through the manhole to clean it out; he had been in there but a very short time when the attention of other workmen was called to the sound of wind, and dirt blowing out of the oven, and the cries of Dana to help him out; he was dragged out of the oven, his clothes burned off him, and his body a charred and blackened mass.

It was noticed half or three-quarters of an hour afterwards that the lever, instead of being horizontal, was down, so that the hot blast had been turned on ; the wire was still around the lever, but had apparently slipped along it. There is nothing in the case to indicate what caused the moving of the lever and the consequent turning on of the hot air blast; whether fellow workmen or strangers tampered with it, or how it occurred.

There are only the naked facts, that the man went into the oven, the hot air blast was turned on, and shortly afterward it was discovered that the lever was down. Everything else is guesswork and surmise.

No positive act of negligence on the part of the defendant is shown. Neither do I see that there is anything that it omitted to do that the law required it to do. It furnished a good machine reasonably safe to operate.

The manner of operating it, the turning on and off of the blast, the cleaning of the oven, the handling of the lever, were all matters of detail, which must necessarily be looked after by its employes, and rested upon their care, intelligence and fidelity. Cullen v. Norton, 126 N. Y., 1; 36 St. Rep., 359; Filbert v. D. & H. C. Co., 121 N. Y., 207; 30 St. Rep., 494.

There is no claim here, as I understand it, that the fellow workmen of the deceased were not fit and competent men.

It is said, however, that all danger of the lever going down could have been avoided by taking it off, by providing a lock for it, or a catch, or hasp.

True, but the defendant is not bound to provide the best known or conceivable appliances. Burke v. Witherbee, 98 N. Y., 562. But even the appliances suggested would not insure the safety of the men employed ; human agency would still have to be used to remove the lever, to lock or unlock the lock, to arrange the catch or hasp; carelessness or negligence of fellow workmen or the interference of strangers would render useless such appliances. In this case it appears that the proper tightening of the nut provided for that purpose would prevent the movement of the lever, unless it was tampered or interfered with ; the same causes that render the suggested precautions ineffectual would, and possibly have, rendered the one provided by the defendant useless.

I can see no error committed upon the trial sufficient to call for a new trial.

The judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


source: Caselaw Access Project

author: Herrick, J. Putnam, J. (dissenting).

license: Public Domain

text:
    James Walsh, an infant, by guardian, App’lt, v. The Fitchburg Railroad Company, Resp’t.

      (Supreme Court, General Term, Third, Department,

      Filed February 15, 1893.)

    Negligence.
    Defendant, a railroad company, for the purpose of turning its engines around, constructed a suitable turntable, but without a lock, upon a large vacant piece of property belonging to it. One side of the lot was open and unfenced, the other sides partially fenced, and people were accustomed to go through the premises from one street to another; it was also frequented by children as a play ground. Plaintiff, a boy of five, while playing upon the table with other children, had his leg caught between the table rail and the fixed rail of the road bed, and the flesh badly torn. Held, that the case should have been submitted to the jury to determine whether defendant had invited, allured or enticed plaintiff upon its premises and whether the turntable was left in such condition as to charge it with the resulting injury, and that a nonsuit was error.
    (Putnam, J., dissents.)

      Appeal from judgment of nonsuit.

      Townsend, Roche & Nason (Henry T. Nason, of counsel), for app’lt; T. F. Hamilton, for resp’t.
   Herrick, J.

The defendant, for the purpose of turning its

engines around, constructed a turntable upon a large, vacant piece of property belonging to it, a block of ground surrounded by streets, one side of the lot within which the turntable was located was open and unfenced for a distance of over 500 feet, the other sides were fenced or partially so, but the fences had openings in them through which people could pass and re-pass, and people had, for some time prior to the accident in question, been accustomed to go through the premises, using it as a short cut from one street to another; it wa& a place also frequented by children, and, to a considerable extent, overgrown with grass and weeds.

The turntable was a suitable one for the purpose for which it was constructed, but had no lock, catch, bolt, bar, fastening or appliance to hold it fast when not in use or to stop it when in motion, or to prevent strangers from using it. It moved easily. Children from the vicinity had played with it and upon it, from time to time, before the occurrence of the accident which is the foundation of this action, some turning it, others riding upon it.

The flagman’s house was in sight of the turntable, it could be seen by the flagman and other employes of the defendant. The plaintiff resided in a house about 300 feet distant from the turntable.

The plaintiff, a boy, about five years and nine months old, was, at the time of the accident, playing with and upon the table in company with several other children, one, a lad about fifteen years of age, was turning the table, some other boys were upon the table riding, among them the plaintiff. It seems that, by the revolving of the turntable the plaintiff’s leg was caught between the fixed rail of the road bed and the rail upon the turntable, and the flesh badly mangled and torn.

I think the case should have been submitted to the jury.

In an action for an injury founded upon negligence contributory personal negligence cannot be attributed to a child of very tender years, there must also be concurring negligence on the part of the parents or guardians; and it is not per se negligence to allow children to play in the street; it may or may not be negligence, depending upon circumstances. It is for the jury to determine. Kunz v. City of Troy, 104 N. Y., 344; 5 St. Rep., 642.

As to the liability of the defendant it appears to me that the case of Lynch v. Nurdin, 1 Adol. & Ellis, N. S., 29, is in principle applicable to this case, although there are some points of difference. In that case the defendant’s servant left his horse and cart in the open street at the door of a house within which the servant remained for about half an hour. After the servant had been in the house about a quarter of an hour, the plaintiff, a child between six and seven years of age, with several other children came along and began to play with the horse and to climb into the cart and out of it; while the plaintiff was getting down from the cart another boy made the horse move, in consequence of which the plaintiff fell down from the cart, one of its wheels passing over his leg and he was seriously injured.

The court in that case among other things said: “ It is urged that the mischief was not produced by the mere negligence of the servant, as asserted in the declaration, but at most by that negligence in combination with two other active causes, the advance of the horse in consequence of his being excited by the other boy, and the plaintiff’s improper conduct in mounting the cart and so committing a trespass on the defendant’s chattel. On the former of these two causes no great stress was laid, and I do not apprehend that it can be necessary to dwell at any length. For if I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first.

The court, in discussing the distinction between the willful act done by a person who deliberately plants a dangerous weapon in his grounds with the design of deterring trespassers, and the mere negligence of a servant in leaving his cart in the open street, says: “But between willful mischief and gross negligence the boundary line is hard to trace; I should rather say impossible. The law runs them into each other, considering such a degree of negligence as some proof of malice. It is then a matter strictly within the province of a jury deciding on the circumstances of each case.

“ They would naturally inquire whether the horse was vicious or steady, whether the occasion required the servant to be so long absent from his charge, and whether in that case no assistance could have been procured to watch the horse, whether the street was at that hour likely to be clear or thronged with a noisy multitude ; (6) especially whether large parties of young children might be reasonably expected to resort to the spot. If this last mentioned fact were probable, it would be hard to say that a case of gross negligence was not fully established.”

So far as I know, the principle of that case has never been overruled.

While in the case referred to the cart was left in the public street, and in the case at bar the turn table was upon the private property of the defendant, yet the defendant had permitted the public to use it as a thoroughfare; people passed and repassed through it; teams went upon it; children played in it In Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y., 289, where the public had for a long time been in the habit of crossing the tracks of the defendant to reach points beyond such tracks, the court said: “ There can be no doubt that the acquiescence of the defendant for so long a time in the crossing of the tracks by pedestrians amounted to a license and permission by the defendant to all persons to cross the tracks at this point These circumstances imposed a duty upon the defendant in respect to persons using the crossing to exercise reasonable care in the movement of its trains.”

The mere fact that the turntable was on private property does not, it seems to me, determine the question. Private property may be so situated as to invite people upon it; it may have that in or upon it that will allure or entice people to enter it, and if so, the owner must see to it that by no negligence of his are the people he invites or entices upon his premises injured.

I think there are no cases where the owner of property has placed it so as to invite or entice people to enter or use it, and has not been held liable for injuries resulting from a want of care on his part in the management, control or efficient guarding anything thereon calculated to produce injury.

McAlpin v. Powell, 70 N. Y., 126, was a case where a child went out of a window upon the platform of a fire-escape, and the trap-door in the platform being insecurely fastened, gave way, the child was precipitated below and killed.

The court said the deceased had no right to go upon the platform, and was there for no legitimate purpose. The proof showed that children were not accustomed to go there. It bore no indication that it was designed for general use, and furnished no invitation or attraction to young children any more than the roof of a stoop or piazza, which projects under the window of a dwelling-house, and is easy of access to persons in the vicinity.

The court, speaking of the case of Lynch v. Nurdin, says: “But there is a clear distinction between such a case where the infant was lawfully in the highway, which it has the right to travel and use, and when the blameable carelessness of the defendant tempted the child to amuse himself with an empty cart and a deserted horse, and a case where he is palpably invading the premises of another, and is a mere trespasser.”

The case of Larmore v. Crown Point I. Co., 101 N. Y., 391; 1 St. Rep., 43, turned upon the principle that a person owes no legal duty to one who comes upon his premises without authority or invitation which requires him to keep machinery in repair. Miller v. Woodhead, 104 N. Y., 471; 5 St. Rep., 797, where a child who was with its mother visiting at the time, crawled out of a window and fell through a skylight and was injured. The court said the roof or skylight was not a dangerous structure, and the defendant had given no invitation and issued no license, express or implied, to the plaintiff to go upon the roof. Splittdorf v. State, 108 N. Y., 205; 13 St. Rep., 472. The state had erected a bridge upon its own lands for the use of persons navigating the canal.

It was not dangerous in itself. It was sufficient and safe for the purpose for which it was intended. ITo enticement or allurement to people generally to pass over the bridge was held out

The statute made it a misdemeanor for citizens not navigating the canal to use the bridge.

In all these cases it will be observed that the question of invitation, enticement or allurement was absent.

The question of how one can use his own property, what he can place upon it, and whether adequate precautions have been taken to protect people from injury always depends upon circumstances, what may be lawful, what may be safe, what may be adequate care in one case may not be in another.

In'This case while the tunitable was on the defendant’s own land, yet it allowed the public to use that land for many of the purposes of a highway; while situated in a populated neighborhood it was, so far as ease of access was concerned, substantially unenclosed; it was to an extent overgrown with grass and weeds, a place where children of the neighborhood might naturally go for amusement; the turntable was easily handled, and, as demonstrated by this case and others, was when in motion liable to inflict injury; children came there from time to time to play with it; under such circumstances it seems to me that it was a question for the jury to say whether, under all the circumstances, the defendant had invited, allured or enticed the plaintiff upon its premises, or to play with the turntable, and if it had, whether such turntable was left in such a condition as to charge it with any resulting injury.

For these reasons the judgment should be reversed, and a new trial granted, costs to abide the event

Mayham, P. J., concurs in result

Putnam, J. (dissenting).

I am inclined to concur in the views advanced by Justice Fursman in granting defendant’s motion for a nonsuit, believing that these views are sustained by the authorities cited bv him. See also Nicholson v. The Erie Railway Co., 41 N. Y., 525.

In the latter case, a party on defendant’s premises by its license was injured by cars not properly secured being started by a heavy wind, and running over him.

In the opinion of Chief Justice Bari, pp. 532, 533, occurs the following language: “ The cars were lawfully upon the branch track, and the defendant had the right to have them there. The defendant owed the intestate no active duty. It owed him no duty whatever, except such as every citizen owes another. It had no right to intentionally injure him, and would be liable if it heedlessly or carelessly injured him while performing his business. It owed him a duty to abstain from injuring him either intentionally or carelessly, but it did not owe him the duty of active vigilance to see that he was not injured while upon its land merely by permission for his own convenience. ' If the point where the intestate was killed had been a public highway, * * * or if in any other way he had been not only lawfully, but in the exercise of a right at that point the defendant would have owed him a duty to see that the cars upon the branch track were properly secured, but as it was they owed him no duty and cannot be charged, as to him, with negligence in not blocking or fastening the cars."

The above quotations show, I think, the distinction between the case under consideration and that of Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y., 289, referred to in Justice Herrick’s opinion, where deceased was injured by active negligence on the part of the defendant The above quotations also show the distinction between this case and that of Lynch v. Nurdin, 1 Adolph. & Ellis, N. S., 28-30. In the latter case the negligent act was committed by the defendant on the highway. The plaintiff, at the time of the injury, was where he had a right to be on a public street Here the plaintiff was injured where he had no right to be, on defendant’s premises. He was there merely by its license. The defendant could not injure him by a careless act, although on its premises without right, but owed him no active duty. I think as to plaintiff it was not bound to lock up its turntable.

I am, therefore, unable to concur in the views stated in Judge Herrick’s opinion.

Judgment reversed and new trial granted, costs to abide event


author: Herrick, J.

text:
    Conrad Hoffman, Resp’t, v. The Fitchburg Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Railroad — Signals.
    In order to rebut the affirmative evidence of credible xvitnesses of the ringing of railroad engine bell, there must be something more than the testimony of persons who did not hear the bell, and it must appear that their attention was directed to the fact at the time.
    2. Same — Credibility op witnesses.
    The fact that witnesses are employes of defendant, and engaged on the engine which injured plaintiff at the time of the accident, is not sufficient to discredit their testimony.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion to set aside the verdict, and for a new trial. ■

      T. F. Hamilton, for app’lt; Smith & Parmenter (R. A. Parmenter, of counsel), for resp’t.
   Herrick, J.

The plaintiff was the driver of a for the delivery of beer; on the day of the accident he was out with a load of beer, consisting of some fifteen kegs, for the purpose of delivering the same to the customers of his employer; he drove down an alley or street called Green street alley, which was crossed diagonally by the tracks of the defendant; Green street alley is about twenty feet in width, the front line of the house on' one corner of the alley facing defendant’s tracks is about nine feet from the nearest track, and the front line of the house on the other corner of the alley, and facing defendant’s tracks, is about thirteen feet from the nearest track.

As the plaintiff was driving down the alley, an engine of the defendant was backing down the track towards the alley, pulling after it several cars; the engine was moving at a slow rate of speed.

There is some conflict of evidence as to the speed at which the plaintiff was driving, but both he and the person upon the wagon with him testify that his horses were upon a walk.

The plaintiff testifies that he did not hear or see the engine until his horses were upon the track, that then the cars were so near that he could not get back; he says when he first saw the engine it was about two rods from the crossing; he turned or swung his horses to the right, the tender of the engine, the engine being backed down, struck the rear end of his wagon, threw the plaintiff out of the wagon, broke his leg in three places and otherwise bruised and injured him.

The only negligence claimed, as I understand it, is that the trainman having the train in charge did not give reasonable warning of its approach to the crossing over Green street. Upon that question the evidence is as follows, plaintiff’s own evidence on direct examination:

Q. Did you hear any bell ? A. No, sir.

Q. Or any warning whatever ? A No, sir.

Upon the cross-examination.

Q. You didn’t hear the bell ring? A. No, sir.

Q. You didn’t hear the whistle blow ? A. No, sir.

On the re-direct,

Q. Do you know whether or not there was any bell ringing ? A. I know there was none ringing. I didn’t hear it ring.

Q. Had it been ringing on the engine you could have heard it ?

Objected to as incompetent.

The Court You may state the surroundings and then whether you did hear it or not.

Q. You didn’t hear it? A. No, sir; I didn’t hear it.

Thomas Cushing, a witness for the plaintiff, gave the following testimony on the same point ;

On his direct examination,

Q. Did you hear any bell from the locomotive ? A. No, sir.

Q. Were you where you could have heard it if had been ringing ? A. I was close enough to hear it if it was rung.

Cross-examination.

Q. You don’t remember hearing a bell? A No, sir, I couldn’t swear I heard a bell.

Q. There was no particular reason why you should listen to a bell? A. No, sir.

Q. The fact of it is you don’t know whether one was ringing or not ? A. I would not swear whether it was or not.

Q. You wouldn’t swear one way or the other? A. No, sir.

Re-direct

Q. You know you didn’t hear a bell? A. I wouldn’t swear positively I didn’t To the best of my knowledge I didn’t hear any bell.

Henry Fletcher, a witness for the plaintiff, and who was upon the wagon with him at the time of the accident, swears upon his direct examination:

Q. Did you hear any warning of any kind ? A. No, sir.

Q. Did you hear any bell ? A. No, sir.

Nothing upon this point on his cross-examination.

On the part of the defendant the engineer, after testifying that he had received a warning from a switchman not to cross Fifth avenue, a street that appears to be beyond Green street, and that in consequence he slowed up his train, testified:

Q. You approached the Green street crossing? A. Yes, sir.

Q. As you approached it you were going about two and a half miles an hour? A. Yes, sir, or three miles.

Q. State whether the bell was ringing. A. Yes, sir, it was.

Q. Who rang it ? A. John Goeway, the fireman.

Q. Are you sure of that? A. Yes, sir, positive of it •

Q. State whether the bell was rung continuously up to the time this wagon was struck? A. Yes, sir.

The witness was not cross-examined upon this point

John A, Hogan, switchman of the defendant, and the same one who warned the engineer about not crossing Fifth avenue, says that he signalled the engineer and that he slowed up ; his switch shanty is 150 to 200 feet from the Green street crossing.

Q. State whether you heard the bell on the engine ringing as it approached the crossing. A. Yes, sir.

Q. Ringing all the time ? A. Yes.

No cross-examination as to ringing of bell.

Gilbert Denniker, a brakeman on the train, after testifying to the slowing up of the train, and that it was going about two and one-half miles an hour, said:

Q. State whether you heard the bell ring until they got to the crossing. A. I heard the bell ringing until he blew for brakes, and I couldn’t say whether it rang after that or not.

He was not cross-examined on that question.

William H. Sliter, a witness for defendant, who was driving a team upon Green street, approached the track from the opposite direction from which plaintiff did, and who hearing the train approach stopped his team about 200 feet away, upon his cross-examination answered as follows:

Q. You didn’t hear any bell? A. I couldn’t say positively I did.

Q. Do you remember hearing any bell? A. No sir, I don’t remember hearing no bell.

This is all the evidence I can find in the case relative to any signals or warnings given or not given by the defendant of the approach of the train.

It will be observed that the evidence on the part of the plaintiff to show that no bell was rung “ that the witnesses did not hear it; none of them pretend to say “ ihat they listened or gave heed to the presence or absence of that signal.”

They were not “looking, watching or listening for it; their attention was not directed to the fact.”

In the absence of any affirmative evidence of the fact, it would be going a great ways to hold that such evidence was sufficient to prove that no signal was given ; but here we have the affirmative testimony of three witnesses swearing positively to the ringing of the bell. There is nothing against their credibility, except that one was the engineer in charge and the others employes of the defendant, facts that are not of themselves sufficient to discredit their testimony, but nevertheless facts for the jury to take into consideration where there is any real conflict in the testimony; but here I cannot see that there is any real conflict worthy of the name. It seems to me to come squarely within the principle that as against affirmative evidence of credible witnesses of the ringing of a bell there must be something more than the testimony of those who did not hear, and it must appear that their attention was directed to the fact at the time. Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y., 133; Dyer v. Erie R. Co., 71 id., 228; McKeever v. N. Y. C. & H. R. R. R. Co., 88 id., 667.

I doubt very much whether the plaintiff showed affirmatively a lack of contributory negligence on his part.

He was traveling over a street with which he was familiar.

A narrow street, the buildings upon its corners within a few feet of the railway tracks, where his horses would come upon the tracks almost as soon as the wagon would reach the corner.

He knew he was approaching a place of peril, how perilous, from his own testimony, he could not determine by his eye sight until he was almost upon the tracks. Those who approach a place of peril must be on the alert and vigilant in the use of their eyes and ears, and display that prudence of conduct which the situation dictates. Heaney v. Long Island R. R. Co., 112 N. Y., 122; 20 St. Rep., 296.

The accident took place in broad daylight, and the circumstances detailed by the plaintiff and his witnesses do not, it seems to me, show that alertness and prudence of conduct on his part which, when we consider the locality, establish affirmatively the Mck of contributory negligence.

For these reasons, the judgment should be reversed and a new trial ordered, costs to abide the event.

Mayham, P. J., and Pütnam, J., concur.


author: Putnam, J.

text:
    Daniel J. Gorman, Resp’t, v. Patrick J. McArdle, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Master and servant — Negligence—Fire escapes.
    In an action for damages for injuries received by plaintiff from jumping from the fourth story window of defendant’s manufacturing establishment, where he was employed, during a fire, the allegation being that defendant negligently omitted to provide a proper fire escape, it appeared that defendant had failed to provide a fire escape as prescribed by statute, but there was testimony tending to show that employes on the fourth story were told of a way of escape in case of fire over the adjoining buildings, but plaintiff denied receiving such information. Held, that it was for the jury to say, if they found that plaintiff had been told of the escape, whether it was as safe and convenient as the statutory fire escape.
    2. Same.
    In such case, if the jury find that the escape provided was as safe and convenient as the statutory one, then defendant has performed his statutory duty.
    3. Same.
    Whether plaintiff was guilty of contributory negligence in omitting to use the escape provided was a question for the jury.

      Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      Walsh & Kelly (Edward Countryman, of counsel), for app’lt; Eugene Burlingame, for resp’t.
   Putnam, J.

This action was brought on account of injuries received by plaintiff on September 9, 1889, in jumping from a fourth story window of defendant’s manufacturing establishment, where he was employed, during a fire which consumed the building, defendant having negligently omitted to provide a proper fire escape. In fact there was no fire escape as prescribed by statute; but a window in the room where plaintiff was employed opened on to the flat- roof of defendant’s adjoining building, and from this roof through a scuttle there was, as defendant claimed, a proper and safe access to the street for his employes, and a proper escape from fire.

It is not seriously denied that defendant was carrying on a manufacturing establishment within the meaning of chap. 560, Laws of 1889, amending chap. 409 of the Laws of 1886, as amended by chap. 462, Laws of 1887, or that the provisions of that statute applies to him, although a lessee and not the owner of the building in question.

Appellant having neglected to provide a fire escape as prescribed by the aforesaid act, if plaintiff received the injury complained of in consequence of such neglect he was entitled to recover, unless defendant provided some safe way of escape for his operatives, in case of fire, in place of the statutory fire escape.

The case of Pauley, as Adm’r, v. Steam Guage & Lantern Co., 131 N. Y., 90; 42 St. Rep., 636, holds that the act, above referred to, imposed a duty on the owners or occupants of the prescribed class of factories, and for an omission to perform which operatives injured because thereof may recover damages. In the case cited, the owners of the factory had provided a proper, fire escape under the statute to the floor on which plaintiff’s intestate was at work, but instead of - providing statutory stairs or a ladder on the inside, from the upper story of the building to the roof, as provided by the act, they conducted the fire escape on the outside up to the roof by stairs, thus affording, as the court held, as safe and convenient an access to the roof as a ladder or stairs on the inside. The outside stairs to the roof, although not a literal compliance with the statute, was held by the court of appeals sufficient. The effect of this decision, therefore, is to determine that only a substantial compliance with the statute is necessary. Hence, in the case before us, although defendant failed to place a fire escape on the outside of the building, according to the terms of the statute, if he in fact provided for the operatives working in the room on the fourth floor, where plaintiff was employed, an equally safe and convenient escape, in case of fire, over the roof of the adjoining building, he is not negligent and not liable in this action.

This view was taken by the trial judge, and, on examining his charge carefully, I am unable to discover any error in his presentation of the ease to the jury. There was testimony tending to show that operatives on the fourth story were told of the way of escape, in case of a fire, over the roof of the adjoining building; plaintiff and same others, however, testifying that they never received such information. Whether they did or not was a question of fact. If they were told of this way of leaving the building in case of fire, it was then a question of fact whether it was as safe and convenient as the statutory fire escape; a copy of the statute in reference to fire escapes being also posted in the room, as the law provides.

The judge fairly submitted these questions to the jury. He said: “ If the defendant did, through that window in the south end of the building, provide a suitable and safe fire escape, if he rendered reasonably safe exit to the people engaged in that room, in his employment, to escape through that window and the scuttle on the roof, to the floor below, then he was performing the full measure of his statutory duty.” And then again he was requested to charge by counsel for defendant, and did charge, “ That if the jury believe the escape through the window onto the adjoining roof of the Parsons building, and thus through the scuttle holes, was easily accessible, unobstructed and safe for that purpose to the employes on the fourth floor, then that is a sufficient compliance with the statute.”

It will thus be seen that the court submitted the question to the jury in the language and as requested by counsel for defendant. I am unable to see any error in the submission of these questions of fact to the jury.

There was some evidence that at the time of the fire the only door leading to the room on the fourth floor where plaintiff was employed was locked, and that plaintiff and others were unable to escape through it. There was a conflict of evidence in this regard which was properly submitted to the jury. The court remarked that it was the “ statutory ” duty of the defendant to keep the door unlocked at all times during business hours. Perhaps the use of the word “ statutory ” was not correct But clearly it was defendant’s duty while his employes were at work in the room on the fourth story to keep the door unlocked, and I fail to see how the use of the word “ statutory ” in the charge could have injured defendant. However, the judge afterwards fully explained the matter to the jury, that to make defendant liable in consequence of the door being locked, if they should determine it was locked, they must find that if unlocked at the time of the fire, plaintiff could have escaped through that way. Hence, no error was committed to the injury of the defendant

It is urged by the appellant that plaintiff, having a mode of escape provided for him onto the roof of the adjoining building, easy to be seen and over which almost all the operatives employed in the room at the time of the fire escaped, was guilty of contributory negligence in omitting to use that way of escape, and, hence, cannot recover. I do not regard this as one of those exceptional cases where the question as to plaintiff’s contributoiy negligence could be taken from the jury and passed upon by the court as a question of law. Plaintiff and others testified that they did not know of the way of escape over the roof of the adjoining building. It was shown that after the first alarm of fire the room rapidly filled with dense smoke. There was much confusion. It was for the jury to say whether or not the plaintiff knewof the mode of escape through the window and roof of the adjoining building. Also if he did know and failed to find and use the window in the dense smoke and confusion, and under all the circumstances, whether or not this was contributory negligence on his part. The plaintiff being called on to act suddenly should not be held to a most rigid accountability in passing on the question as to his contributory negligence. Bucher v. N. Y. C. & H. R. R. R. Co., 98 N. Y., 132, 133.

It is claimed that plaintiff, knowing that no fire escapes were provided, voluntarily and with knowledge of that fact continued at work, and hence assumed the risk of an accident by fire as incident to the employment This position does.not appear to have been taken upon the trial and hence it is questionable whether it should be considered on this appeal.

The burden was on the appellant on the trial to show that the risk of working in the room not provided with fire escapes was voluntarily assumed by plaintiff as incident to his employment, Mayes v. Chicago R. I. & Pacific R. R. Co., 63 Ia., 566.

My attention has not been called to any evidence showing certainly that plaintiff knew there was no fire escape, or that his attention was ever called to that subject. The risks that an employe assumes as incident to his employment are such as he knows of or as are apparént. Plaintiff’s employment was within the defendant’s room, on the fourth story. The fire escape should have been on the outside of the building. Plaintiff’s employment did not call him on the outside, and while it is not unlikely that he might have examined to see whether fire escapes were provided outside, it is not certain that he did so. He was not bound to so examine, and could properly rely upon the defendant performing his statutory duty. Willy v. Mulledy, 78 N. Y., 315.

Therefore, although plaintiff had been employed by defendant for a year, it was not certain that his attention had been called to the absence of fire escapes, and hence whether as incident to his employment he assumed the risk of injury from a fire, caused by such absence, was a question of fact. The case would have been different had an accident occurred on account of some danger in plaintiff’s employment on a machine used by him in the business, or some apparent danger in the room where plaintiff worked incident to his employment There is, I think, a distinction between cases referred toby appellant and this case. Gibson v. Erie Railway Co., 63 N. Y., 449, was an action to recover damages for the death of a brakeman, who, riding on the top of a car, was struck and killed by the projecting roof of defendant’s depot building. There, the employment of the deceased was on the top of freight cars, drawn from day to day by the projection in question. The deceased brakeman’s attention was necessarily called to the projection on the building as a risk incident to the business he was carrying on. It was the same as if he had been called on to work in a room where a dangerous piece of machinery, as, for instance, a circular saw, was placed. Bach of the other authorities commented upon by counsel for the appellants in his brief are similar to the case last cited, and cases where the risk the injured party was held to have assumed was one immediately connected with the business in which he was engaged; a risk that was plainly apparent and necessarily assumed.

_ In this case, however, plaintiff was engaged in the business of picking and assorting rags in the defendant’s building on the fourth floor. His business was on the inside, and he had no connection with the fire escape. He was not called upon to examine the outside of the walls. It is not proved that his attention was ever called prior to the fire to the question of the fire escape.

I will not attempt to discuss the many authorities that might be considered on the subject of the risk assumed by an employe as incidental to his business. It has been held that the risk so assumed does not include risks caused by the negligence of his master in failing to furnish him a safe place to work in. I think the principle stated in McGovern v. C. V. R. R. Co., 123 N. Y., 280; 33 St. Rep., 416, applies to this case. It is there held that “Those dangers, however, which are known and can be mitigated or avoided by the exercise of reasonable care and precaution on the part of the master are not incident to the business, and it is the duty of the master to protect his servants therefrom in all cases in which it may be done by reasonable care. When, therefore, the master directs the performance of work by his servant at a place which may become dangerous, and such danger may be foreseen and guarded against by the exercise of reasonable care, it is the master’s duty to exercise such care and adopt such precautions as will protect the servant.” And see Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y., 376; Buckley v. Port Henry Iron Ore Co., 17 St. Rep., 436; Benzing v. Steinway & Sons, 101 N. Y., 551, 552; Freeman v. Glens Falls Paper Mill Co., 61 Hun, 132; 39 St. Rep., 621; Cullen v. Norton, 52 Hun, 12; 22 St. Rep., 221.

I think the position of appellant, that the repeal by chapter 398, Laws of 1890, of the statute requiring fire escapes, prevents plaintiff from maintaining the action, is not sound. It is true that when a statute gives a penalty, or expressly creates a cause of action, a repeal of such statute may extinguish any right of action existing thereunder. But § 10 of the act requiring fire escapes created no right of action and prescribed no penalty to be recovered in an action. It made it the duty of the proprietor of a manufacturing establishment to maintain fire escapes, and a failure to perform this statutory duty has been held by courts to be a negligent act, and that an employe injured by such negligent act may maintain an action for damages. The repeal of the statute does not extinguish plaintiff’s right of action for an injury caused by defendant’s negligent omission to provide fire escapes as prescribed by the statute. The authorities cited by defendant are where a penalty is given or a cause of action expressly created by statute, in which cases it is held that a repeal of the statute extinguishes a right of action thereunder. Plaintiff, in this case, did not claim a penalty or sue for a cause of action created by a statute, but for a negligent act of the defendant under the law as it stood when he was injured, and the repeal of that law does not affect his vested right of action. Vanderkar v. Rens. & Sar. R. R. Co., 13 Barb., 393; Steamship Company v. Joliffe, 2 Wall., 450; Butler v. Palmer, 1 Hill, 325.

The judgment should be affirmed, with costs.

Mayham, P. J., concurs; Herrick, J., not acting.


author: Kellogg, J. Putnam, J.

text:
    William B. Griffin, App’lt, v. J. Hyler White, Survivor, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Contract — Construction op.
    K. owned a patent lor the improvement of buckboard buggies. J. and W. owned a similar patent. To combine their patents the latter were given, by written agreement, exclusive authority over both patents, with full power to grant licenses, sell rights, and all things incident, in no way restricted as to price, they to continue to manufacture wagons and pay $1.25 per wagon to K., and he to receive one-fourth of all sums obtained on licenses. J. and W. made the ‘-gear,” which included all of the wagons to which the invention attached, and sold to the trade. Held, that the parties, in fixing the price $1.25, only contemplated that such sum should be paid upon “ each wagon in a complete state," and that J. and W. should pay to K. only one-fourth of the profit received from the sale of “ gear.”
    Appeal by plaintiff from a judgment in his favor for $100.
    The action was brought to recover the sum of $1,392 and interest under a certain contract made with defendant’s firm.
   The following is the opinion of the court below:

Kellogg, J.

The disposition of this case must depend upon the construction to be given to the contract of March 9, 1881, made between Rensselaer Knapp and Joubert & White.

It would appear by that contract or agreement that Knapp owned at that time some patent for the improvement of buckboard buggies, and that Joubert & White also owned a similar patent, and to combine their patents, and save conflict, Joubert & White are given exclusive authority over both patents, with full power to grant licenses, sell rights and territory, and all things incident, in no way restricted as to price, but possessing all the powers of owners of the patents.

It appears by the evidence that at the time of making the contract Joubert & White were manufacturers of wagons for sale, having their place of business at Glens Falls, FT. Y., and had manufactured and sold the buckboard wagon under their patent, and sold the same prior to the agreement, and were so manufacturing and selling at the date of the agreement

As to all licenses granted, and rights and territory sold, Joubert & White being interested in getting the best prices obtainable, no limitation as to price appears in the contract, but it is contemplated by the agreement that Joubert & White might continue the manufacture of wagons, and as to those wagons manufactored and sold by them the price to be paid to Knapp is agreed upon.

As to wagons manufactured and sold by Joubert & White, they were to pay to Knapp $1.25 each. As to licenses granted on rights and territory sold to others, Knapp was to receive one-fourth of all sums obtained.

At the time the agreement was made, Joubert & White made and sold nothing but complete wagons.

Subsequently, to exhibit and to advertise the advantages or good qualities of these inventions as applied to the buckboard wagon, and to increase the sale of wagons and the invention, they made, as samples, a number of gear, which included all of the wagon to which the invention attached, viz. : the springs and the board in part sustained by the springs. These samples being shown to other wagon makers, brought proposals to buy this gear from Joubert & White, and to this demand Joubert & White gave attention, and thereafter made and sold the “ gear ” to the trade.

No doubt under the contract they had the right to do this. They had the right to use their judgment as to the best way and the course most profitable to adopt to preserve the reputation of their invention wholly embraced in this “ gear,” and instead of selling “ territory ” or the right to make and use the patented parts, the gear, they might with good reason conclude that the best interest of all concerned would be best promoted by retaining control of the construction, and not take the risk of a bad repute following the imperfect construction by others.

It is apparent from the evidence that while Joubert & White continued to manufacture and sell wagons with this patent attachment, they have built up a considerable business in the manufacture and sale of the “ gear ” also..

It is now contended by plaintiff that this “gear” should be counted a “ wagon " and plaintiff should be paid, as the successor of Knapp, the $1.25 stipulated to be paid by Joubert & White for each wagon manufactured and sold by them.

And it is contended that this method adopted by him is one of the methods which he had a right to adopt in the granting of licenses, and that they should only pay one-fourth of the sum received for such licenses.

It seems to me that the parties to the contract, in fixing the price, $1.25, to be paid by Joubert & White, only contemplated that such sum should be paid upon each wagon in complete state, or so far complete as to be properly termed a wagon, made and sold by them ; and this clause of the contract should not be further extended. It seems to me also that the method adopted by defendant to secure a profit from the sale of the patented part of this wagon cannot be taken as an attempt at an evasion of this clause of the contract, but was a reasonable and proper mode of disposing of licenses to use the patent in the construction of wagons by others, having a reasonable regard for the maintenance of the reputation of the invention. This is not an action for infringement In such an action it would be properly held that the manufacture and sale of the gear for the purpose of being used in the construction of a wagon and in combination with other parts of a wagon, which is the essence of this patent, would be an infringement under the holding in Wallace v. Holmes, 9 Blatchford, 65; but the principle declared there finds no room for application here., Here the only question is whether payment should be made at one-fourth of the sum actually realized for sales of such licenses or at $1.25 for each gear.

The theory advanced by plaintiff that the basis of one-fourth affords an opportunity to Joubert & White to defraud plaintiff ; that the interests of Joubert & White through this method might induce them to reduce the price of the royalty or license and increase the price of the material and labor in the “ gear,” and so-produce a small sum to divide and at the same time large profits-to them, is hardly tenable. This might be so if Joubert & White had the arbitrary right to determine for themselves the division to be made, how much for the license and how much for the labor and material; but obviously such is not the case. Without doubt Joubert & White are interested in selling the “ gear ” at the highest possible price. That necessarily includes the right to use the gear in the construction of a wagon.

So far their interests and the interest of Knapp or his successor are identical; and there the power of Joubert & White to bind Knapp or his successor ceases. Under the contract they are to pay one-fourth of the sums realized for the license, and that is to-be determined, not by Joubert & White, but must be based upon the actual cost of the construction of the gear itself. It is .not difficult to determine on such basis what sums are realized for the patent. That actual cost with a reasonable profit usual in the trade upon such material and labor, taken from the sum realized upon the sale of the gear, would fix with certainty the sum realized for the patent or licenses. This mode of adjustment is consonant with the spirit and terms of thé contract, and by it the rights of all are preserved, and a reasonable latitude is given to Joubert & White to exercise their discretion as to the manner of disposing of rights to use the invention with a prudent regard for its repute.

It only remains in this case to determine what has been realized by defendants on sale of such rights or licenses, upon the basis indicated.

Too little regard was apparently given upon the trial to evidence which might enlighten the court as to the actual cost of construction of the gear, or as to what is a reasonable trade profit, the patent not being considered. No evidence was offered but that of interested parties, and no full and accurate details given. Counsel, it would seem, did not regard this as of the utmost importance.

The plaintiff rested his case without offering any testimony on that point.

The defendant, White, testified that the actual cost of construction, including material and labor, of all £‘ gear ” by him sold was at least eight dollars each, and that he sold them for nine dollars each. He gives the only detail testimony on this subject given by any witness.

Charles H. Griffin, for app’lt; A. J. Cherritree, for resp’t.

Knapp, the person with whom the contract was originally made, was produced by plaintiff to contradict White, and he testifies that “ he could furnish them and make a fair profit on it for four dollars for the whole thing;but this testimony lacks exact detail, and is too loose to carry much weight. Besides, he testifies that he has had nothing to do as wagon maker for fourteen years.

Mr. Griffin, the plaintiff, is then produced in contradiction of White, and he says they “could be made for five dollars.” No details are given; and whether he had in mind superior facilities for making is not apparent They “ could be made ” is hardly the standard by which to measure the actual cost or reasonable cost of making gear sold by defendant It is to be regretted that better data was not supplied to the court, but it was the plaintiff’s duty, having the affirmative, to make this reasonably clear. We are forced to accept the evidence of defendant White on this subject as most convincing and reliable.

' From the evidence, we conclude that the actual cost of construction was eight dollars,- and the actual sum on each gear realized for the invention or license was one dollar ; and under the terms of the contract, one-fourth of this, or twenty-five cents on each gear sold, must be paid to plaintiff.

Putnam, J.

I think there should be an affirmance of the judgment on the opinion of the court below, with costs to respondent

Mayham, P. J., and Herrick, J., concur.


text:
    Charles Bouck, App’lt, v. Charles M. Wolston, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Sale — Joint owners — Payment.
    Defendant bought of B., who was working plaintiff's farm on shares, a quantity of straw, and was informed by him of ’’plaintiff’s interest therein; plaintiff, on being informed of the sale, requested defendant to pay P. but one-half the price and the other half to him, and defendant said he “ would protect his interest.” After the straw had been delivered, defendant, upon demand of P., paid him in full for all the straw. Held, that such payment was not a defense to an action by plaintiff to recover from defendant for his half of the straw.
    Appeal from judgment dismissing the complaint.

      Engle & Getter (Russell M. Johnston, of counsel), for app’lt; L. W. Baxter, for resp’t.
   Putnam, J.

This action was brought to recover for straw sold in the fall of 1889. Defendant, on November 20, 1889, through his agent, Harvey Borst, bought of John Prell & Son, who were working plaintiff’s farm upon shares, a quantity of rye straw at ten dollars a ton. Prell informed Borst that plaintiff had a half interest therein. The latter upon being informed of said sale, consented hereto and the straw was subsequently delivered. It weighed 16 tons and 224 pounds, and, at the contract price, amounted to $162.69. Before such delivery plaintiff informed defendant by letter that one-half of the straw was his, and requested the defendant to pay Prell but one-half of the purchase price, and the other half to him, said plaintiff. Defendant answered plaintiff that he would protect his interest in said straw. A short time prior to the sale of said straw, the Prells advanced for the plaintiff about sixty-one dollars, the amount due from him to certain hop-pickers, plaintiff agreeing that if they would pay said hop-pickers they could take their pay out of his share of the straw money. Of the sixty-one dollars advanced by the Prells, thirty dollars had been paid back at the time of the delivery of the straw. In the baling of the straw the Prells incurred a necessary expense of $18.60, of which plaintiff was to pay half. Five dollars of this had been paid at the time of the delivery of the straw. After the straw had all been delivered, the defendant, upon demand of said John Prell, paid him in full for all the straw, plaintiff's share, as well as that of the Prells.

The evidence justified the conclusion of the referee that Mr. Bouck assented to the sale of his interest in the straw made by John and Wilson Prell to Mr. Wolston. The Prells assumed to act as agents of the plaintiff in the transaction, and he, being informed of their act, ratified the sale they made.

The plaintiff, then, through his agents, had sold and delivered to the defendant his undivided one-half interest in a quantity of rye straw at the agreed price of $81.35. It is not denied that Bouck notified Wolston on February 10, 1890, by letter that he, Bouck, was the owner of said straw and that said Wolston was not to pay the Prells therefor; or that said defendant, on February 11, 1890, in answer to said letter or notice, wrote that he would protect plaintiff’s interest in the straw; or that afterwards and on March 6, 1890, the defendant paid the whole amount due plaintiff to Mr. Prell.

It requires no argument to show that such a payment is not a defense to the action. The defendant was indebted in the sum of $81.35 to plaintiff and had been notified by the latter not to pay the debt to Mr. Prell. If the Prells as plaintiff’s agents had ever been authorized to collect or receive this money, it was competent for plaintiff at anytime to revoke such authority, and the letter which it is conceded that plaintiff wrote and defendant received was such a revocation.

It is not necessary to determine whether the conversation between Bouck and Prell in reference to the money to be advanced bjr the latter to the hop-pickers, and the subsequent advance of said money, effected an equitable assignment or a transfer of an amount due plaintiff for the straw equal to the sum advanced or not. The sum so advanced by the Prells was $31 and there was due them also $4.30 for baling the straw, in all $35.30. If defendant’s contention is correct there was due plaintiff from defendant for his interest in said straw, after deducting the amount so advanced by the Prells the sum of $46.05. I am unable to see why plaintiff was not entitled to a judgment at least for that sum. The agreement between plaintiff and Prell could at the most only-effect an assignment of $35.30 of the money in the hands. of defendant so due plaintiff. Wolston, being notified by Bouck not to pay Prell for his undivided one-half of the straw, could not, after such notice, make such payment to Prell as plaintiff’s agent. He could" only pay it to him because he, Prell, was the owner or legally entitled to the money. The Prells could only, under the agreement with plaintiff claimed by them, be entitled to such sum as the plaintiff owed them, viz. ; $35.30.

Without considering the other questions involved, it is clear that plaintiff was entitled to a judgment for at least $46.05, and hence the referee erred in dismissing the complaint and directing judgment for the defendant.

• The judgment should be reversed and a new trial granted, with costs to abide event

Mayham, P. J,, and Herrick, J., concur.


author: Mayham, P. J.

text:
    Ida O. Winner, Resp’t, v. George H. Lathrop, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Malpractice — Examination of plaintiff in court.
    On the trial of an action against a physician for damages alleged to have been sustained by reason of his unskillfulness or negligence in reducing a fracture of plaintiff’s wrist, the latter bared her wrist and exhibited it to the jury, and assumed to move it for the purpose of showing its defects; and thereafter the court refused to allow the defendant to examine the wrist in the jury’s presence. Held, error; the member having been put in evidence as a part of the direct examination, it was for the purposes of the trial made the property of the court and opposite party for the purpose of a cross-examination.
    2. Same.
    The fact that defendant ordered the wrist bathed with a decoction of wormwood and vinegar, which expert testimony condemned, but did not say would injure, is not of itself such a departure from approved medical treatment as would justify a recovery against defendant.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      J. M. Maybee (T. F. Bush, of counsel), for app’lt; W. J. Groo, for resp’t.
   Mayham, P. J.

This is an appeal from a judgment of the Sullivan county court, entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes of the judge.

. The action was for damages claimed to have been sustained by the plaintiff by reason of the alleged unskillfulness or negligence of the defendant as a surgeon in reducing a fracture of the plaintiff’s arm or wrist

The plaintiff fractured the radius or upper bone in her forearm, and several hours after the injury called on the defendant to reduce'the fracture. At that time the arm was much swollen, but the defendant undertook to, and as he claimed did, adjust the fractured bone, and applied splints and bandages. The defendant, by bis testimony on the trial, described his method of treatment and instructions to the plaintiff, and testifies that the same was the approved method known to the profession, and in this he was sustained by the expert testimony in the case.

He was, however, disputed as to the method of treatment by the plaintiff, who testified that he advised bathing the parts with a decoction of wormwood and vinegar, which the expert testimony condemned; but he denied that he gave any such direction. He was not employed to visit the patient, but she visited him at his office on three occasions, at intervals of about two weeks. The medical testimony characterizes this fracture as one of the most difficult to treat, and that in a large percentage of the cases a perfect cure cannot be effected with the most skillful surgical treatment.

The plaintiff’s arm was not perfectly restored to its former usefulness, the wrist remaining to some extent stiff; the rotary motion of the arm obstructed, and the usefulness of the hand was permanently impaired.

The defendant was shown to be a regularly graduated surgeon from a duly organized medical and surgical college, and there is no evidence of neglect on his part to exercise his best skill and attention in treating this fracture at the times the same was submitted to him for treatment

While there is, to some extent, a disputed question of fact as to the directions of the defendant to apply wormwood and vinegar which, if important to the result, was for the jury, yet it does not seem to us to be such a departure from approved medical treatment, even if the jury found with the plaintiff on the question, as to justify a recovery against the defendant

There is no evidence that the limb was not properly adjusted and bandaged, and the evidence does not disclose that the application of the decoction of vinegar and wormwood if appp6¿ could have injuriously affected the desired cure.

The law exacts of the medical and surgical profession the possession of a reasonable degree of learning and skill, such as is ordinarily possessed by the profession, and such as is ordinarily regarded by the profession as necessary to qualify him to engage in the profession, and that he will use reasonable and ordinary care and diligence in the exercise of his skill and the application of his knowledge, to accomplish the purpose for which he is employed; and that he will use his best judgment in the application of his skill.

But it does not always require the highest order of talent and skill to be found in the profession ; nor does it make the practitioner insurer as to the results, or hold him responsible for not restoring a fractured limb, in all cases, to its normal condition or usefulness. Carpenter v. Blake, 10 Hun, 358; Wells v. World's Dispensary Medical Association, 9 St. Rep., 459.

The burden of establishing, affirmatively, either want of ordinary skill, or a failure to use his best skill, or some negligence in the care or attention of the plaintiff’s case which resulted to her injury, must be met before she can recover.

This the evidence in this case does not disclose. The defendant also insists that the trial judge erred in refusing to allow the defendant to examine the plaintiff’s wrist on the trial in the presence of the jury, after she had bared the same, and exhibited it to the jury, and assumed to move it for the purpose of showing its defects. It is quite true, as contended by the learned counsel for the respondent, that the court has no power to compel an injured party, in a case like this, to exhibit her injury to the defendant before trial for inspection for the purpose of furnishing evidence for the defendant.

In McQuigan v. The Del. & Lackawanna R. R. Co., 129 N. Y., 50; 41 St. Rep., 382, the court of appeals held that the court had no power to compel a party in advance of a trial for physical injury to submit to a surgical examination on the application of the adverse party.

But Judge Andrews in his opinion states that “ The sole question presented by this record is whether the supreme court has power in advance of a trial of an action for personal and physical injury, to compel the plaintiff, on application made in behalf of the defendant, to submit to a surgical examination.” Any discussion beyond the examination of that precise question in that case would be irrelevant and obiter, and would not, therefore, be authority in a case where on the trial the injured party had voluntarily exhibited the injured part, etc., to the jury.

The same doctrine was held by the general term in Robert v. Ogdensburgh & L. C. R. R. Co., 29 Hun, 158, where an order of a special term granting such examination before trial was reversed. In this case, as in the case of McQuigan v. R. R. Co., supra, all that the court was called upon to decide was as to the power of the court to compel an examination before trial.

In McSwyny v. Broadway & S. Ave., 27 St. Rep., 363, it was held that a plaintiff might properly refuse to submit to a personal inspection of the alleged injury on the application of the defendant at the trial. But the plaintiff had not in that case voluntarily exhibited the injured part to the jury, as done in this. I have been referred to no case, nor have I been able to find any, in which a party claiming a physical injury has first voluntarily submitted the injured part to the inspection of the jury as evidence, and has refused to permit the adverse party to follow up that examination in the presence of the jury by a personal, or professional inspection of such injured part.

Such an examination seems to me to stand upon a different principle from that of a compulsory examination, by the adverse party, before or at the trial, when the injured party has not made profert of the injured part.

It seems to me that it would be unfair and might result in gross injustice to the party against whom such evidence was used. In such a case, it would be in the power of the party by muscular distortion of the injured part, especially an arm or hand, to impose upon the jury and court, as well as the adverse party, and produce upon the mind of the jury a false impression as to the extent of the injury.

The member having been put in evidence as a part of the direct examination, it is, for the purposes of the trial, made the property of the court and opposite party, for the purpose of a cross-examination. It is difficult to conceive of a species of evidence that is offered by one party in support of his ease which may not, in the presence of the same tribunal, be examined and criticised by the party against whom it is offered. We think, therefore, that the inspection and examination of this limb should have been ordered and permitted by the court, and in case of refusal to submit to such inspection by the plaintiff, her evidence, so far as that exhibit and explanation of the same by the plaintiff was concerned, should have been stricken out on defendant’s motion.

The plaintiff had a right to exhibit this injured limb to the jury, and the defendant had no power to exclude it. Hiller v. The Village of Sharon Springs, 28 Hun, 344. In this case, Learned, P. J., says : “ But if plaintiff’s leg was injured, there was no more certain and unquestionable way of proving the fact to the jury than by showing them the leg itself.”

In Mulhado v. Brooklyn City R. R. Co., 30 N. Y., 370, the court, speaking upon this subject, say: “ Such exhibition certainly tended to make the description of the injury more intelligible.”'

If the party injured can offer this evidence, most certainly the adverse party should be permitted to cross-examine and criticize such evidence.

For both the grounds above discussed we think that this judgment and order should be reversed.

Judgment and order reversed and a new trial granted, costs to abide the event

Putnam and Herrick, JJ., concur.


text:
    Walter J. Eaton, Resp’t, v. Ephraim D. Waldron et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Sale — When not by sample.
    Where the purchaser examined the lumber purchased, in piles before the sale, removed and personally inspected a portion of the same, and the whole bulk was open to his examination if he had been disposed to make it, and in the absence of any proof of fraud or concealment on the part of the vendor, the purchaser must be deemed to have made the purchase upon his personal inspection of the commodity in bulk and not by sample.
    2. Same.
    A sale of personal property, in the absence of an express warranty, or fraud, when the buyer has an opportunity to inspect the commodity, and the vendor is_ neither the manufacturer of or grower of the article he sells, the maxim caveat emptor applies.
    Appeal from a judgment.entered upon the report of a referee.

      Lansing & Cantwell (William P. Cantwell, Jr., of counsel), for app’lts; Wadhams & Lawyer (George Lawyer, of counsel), for resp’t.
   Mayham, P. J.

The complaint in this action alleges that the defendants purchased of one Hill a quantity of lumber at the agreed price of $339.55, and at the time of the sale and delivery of the same Hill agreed to deduct from the price the sum of five dollars for the transportation of the lumber.

The complaint also alleges a transfer of the claim from Hill to the plaintiff before the commencement of this action. The answer puts in issue the plaintiff’s title to the claim, and, among other things, charges that at the time of negotiating the sale of the lumber by Hill to the defendants he falsely and fraudulently warranted and recommended that the timber was of a particular ' quality, and alleges that it was not of the quality recommended.

The proof discloses that at the time of negotiating the sale of this lumber one of the defendants examined the lumber in the pile, and took off a number of pieces of the lumber, and there is a conflict in the evidence as to whether the lumber examined by the defendants was a fair sample of the-average of the entire pile or quantity claimed by the plaintiff to have been sold to the defendants.

The lumber was carried to the defendant’s mill, or the mill designated by them, and was there, by their direction, in part planed, when the defendants determined to rescind the contract and caused the lumber to be piled and gave notice to the vendor Hill that the same was subject to his order.

There was no evidence in the case that Hill committed any fraud upon the defendants and the referee refused to find that he at the time of the sale recommended the lumber not examined to correspond with that examined by the defendants.

The defendants having taken possession of this lumber, changed its character, not returning the same to the plaintiff or his assignor, were not under the circumstances of this case in a condition to rescind the contract in toto.

The most that they could do under the circumstances, if that' was a breach of warranty as to the quality of the lumber, was to set up such breach and abate from the plaintiff’s claim the amount of damage sustained by reason of the breach of warranty.

But we think the circumstances of this case establish that this was not a sale by sample. One of the defendants’ firm examined the lumber in the piles before the sale, removed and personally inspected a portion of the same and the whole bulk of the lumber was open to his examination and inspection, if he had been disposed to make such examination ; and in the absence of any proof of fraud or concealment on the part of the vendor, the purchaser must be deemed to have made the purchase upon his personal inspection of the commodity, in bulk and not by sample.

To constitute a sale by sample there must be an agreement to sell by sample, or such an understanding that the sale is by sample as to excuse the purchaser from examining the bulk of the commodity. Beirne v. Dord, 5 N. Y., 95; Ames v. Jones, 77 id., 614.

Nor do we think that the agreement between the parties was an express warranty as to the quality of this lumber, and the rule seems well settled that a sale of personal property, in the absence of an express warranty, or fraud, when the buyer has an opportunity to inspect the commodity, and the vendor is neither the manufacturer or grower of the article he sells, the maxim caveat emptor applies.

The rights and liabilities of vendor and vendee, when there is no express warranty or fraud, and when the vendee has an opportunity to examine the article sold and does examine a portion of the same, are fully discussed in the United States supreme court, by Davis, J., in Barnard v. Kellogg, 10 Wall., 383. In that case, i a broker, having the plaintiff’s wool for sale, sent samples to the’ defendant, with a statement of the price, and the defendant sent an offer for the same, if the wool all around equaled the sample, and the plaintiff’s broker gave notice of the acceptance of the offer, provided the defendant examined the wool on a day proposed.

On the appointed day the defendant examined a portion of the wool, and had a full and fair opportunity of examining the whole of it, although the same was in bales. Some time after, on opening the bales, they were found to be damaged and rotten internally.

The court held that it was not a sale by sample; that there was no express warranty; and that the plaintiff, under the circumstances of that case, was not liable upon an implied warranty; and that the defendant, having had a full opportunity to examine the wool, and having done so in part, was presumed to have relied upon his examination and judgment of the quality of the commodity in bulk, and the learned judge relates the well settled rule as follows: “ Ho principle of the common law has been better established or more often affirmed, both in this country and in England, than that, in a sale of personal property, in the absence of express warranty, when the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is neither a manufacturer nor grower of the article he sells, the maxim caveat emptor applies. Such a rule, requiring the purchaser to take care of his own interests, has been found best adapted to the wants of trade in the business transactions of life.

“ And he cannot relieve himself, and charge the vendor on the ground that an examination will occupy time, and is attended with labor and inconvenience.

“If it is practicable, no matter how inconvenient, the rule applies. * * *

“ Of such universal application is the doctrine of caveat emptor in this country, that the courts of all the states of the Union where the common law prevails, with one exception, sanction it.”

The same rule obtains in this state. In Gaylord Manufacturing Co. v. Allen, 53 N. Y., 515, it was held that, upon an executory contract for the sale of a chattel, fraud or latent defect not having been alleged, acceptance after an opportunity to examine is conclusive upon the question of the quality of the goodswhether the agreement as to quality is express or implied.

In Oneida Manufacturing Society v. Lawrence, 4 Cow., 440, it was held that in ordinary sale, when the vendee has an opportunity to examine the commodity, the vendor is not answerable for latent defects without fraud or an express warranty,, or such an affirmation or representation as is tantamount to a warranty, and not the mere expression of an opinion.

The law .upon this subject is clearly stated in 2 Kent’s Corn., Sd ed., 484 and 485, as follows: “There is no breach of implied confidence that one party will not profit by his superior knowledge as to facts and circumstances open to the observation of both parties, or equally within the reach of their ordinary diligence; because neither party reposes in any such confidence, unless it is especially tendered or required. Bach one, in ordinary cases, judges for himself, and relies confidently, and perhaps presumptively, upon the sufficiency of his own knowledge, skill and diligence.

“ The common law affords to every one reasonable protection against fraud in dealing, but it does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or a careless indifference to the ordinary and accessible means of information.

“ It reconciles claims of convenience with the duties of good faith to every extent compatible with the interest of commerce.

“ This it does by requiring the purchaser to apply his attention to those particulars which may be supposed within the reach of his observation and judgment, and the vendor to communicate those particulars and defects which cannot be supposed to be within the reach of such attention. If the purchaser is wanting in attention to these points when attention would have sufficed to protect him from surprise, or imposition, the maxim caveat emptor ought to apply.”

Applying the rules as above laid down, both upon principle and authority, to the case át bar, we do not see how the judgment in this case can be reversed.

The case shows that the vendor invited the attention of the defendants to the examination and inspection of this lumber, and the defendants made such examination and inspection as far as desired by them before the purchase; the referee finds that there was no express warranty, and as the evidence upon that point is somewhat in conflict, we think, upon the whole evidence upon that subject, his report cannot be disturbed by this court; as the-sale was not by sample, there was no warranty, either expressed or implied, that the bulk of the lumber was as good as the portions examined especially by the defendants. Nor does the referee-find or the proof establish that the bulk differed from the part so examined.

We have examined the various exceptions taken by the learned counsel for the defendants to the findings and refusals to find by the referee, and the other exceptions taken by the defendants on the trial, and see no error for which the judgment should be reversed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.


author: Adlington, S.

text:
    In the Matter of the Estate of William Corning, Deceased.

      (Surrogate’s Court, Monroe County,

      Filed March 28, 1893.)

    Collateral inheritance tax — Personal property out op state.
    A large part of testator’s estate consisted of bonds and mortgages on lands in Michigan, and notes, all held by his agent in that state. Held, that such property, although actually out of the state at the time of testator’s death, nevertheless was in his possession and passed under his will, and hence was subject to tax under the collateral inheritance tax law.
    Collateral inheritance tax proceeding.

      Edward Harris, for app’lts; Raines Brothers and Abraham Benedict, for county treasurer.
   Adlington, S.

This is an appeal from an order fixing the amount of the succession tax upon certain personal property of William Corning, deceased, which passed under his will to his three children as residuary legatees.

Mr. Corning died in September, 1891. The residuary personal estate -was of the value of $180,000, of which $87,000 consisted of promissory notes, and bonds and mortgages, which, at the time of the testator’s death, were in the hands of his agent at Saginaw, Michigan ; the mortgages were upon lands in the last mentioned state.

The appellants’ claim is that all of this personal property which, at testator’s death, was actually beyond the boundaries of this state, is exempt from the succession tax simply by reason of its. situation out of the state.

The position of the appellants appears to me to be opposed both to the statutes of the state and the decisions of the courts. Omitting such parts as are immaterial to this discussion, the statute relating to this subject in force at Mr. Coming’s death is as follows, viz.: “ All property which shall pass by will * * * from any person who may die * * * possessed of the same while a resident of this state * * * to any person or persons * * * shall be and is subject to a tax at the rate hereinafter specified. * * * When the beneficial interest to any personal property * * * shall pass to * * * any * * * child * * * the rate of such tax shall be one dollar on every hundred dollars of the clear market value of such property * * * provided that an estate which may be valued at a less sum than ten thousand dollars shall not be subject to such tax.” Chapter 483, Laws of 1885, as amended by chapter 215, Laws of 1891.

It must be presumed that the legislature, in the corresponding sections of the various acts touching this subject, has used the same words in the same sense; and in § 22 of chapter 399 of the Laws of 1892, which is the latest deliverance on the taxation of legacies and inheritances, the word " property ” as therein used is declared to mean “ the property * * * of the testator * * * passing or transferred to those not specifically exempted from the provisions of the act, * * * and shall include all property or interest therein, whether situate within or without this state, over which this state has any jurisdiction for the purposes of taxation.”

The state, many years ago, expressly asserted its jurisdiction to tax property of the kind here in question, in chapter 392, Laws of 1883, in the following language, viz:

“All debts and obligations for the payment of money due or owing to persons residing within this state, however secured or wherever such securities shall be held, shall be deemed for the purposes of taxation, personal estate within the state, and shall be assessed as such to the owner or owners thereof in the town, village or ward in which such owner or owners shall reside at the time such assessment shall be made.”

Now, Mr. Corning was a resident of this state at the time of his death. He died possessed of these securities; that, is he owned them. The property in question passed by his will to these appellants, and it would seem, therefore, that the tax in controversy was properly imposed. The same conclusion is reached by an examination of the decisions of the courts upon the point in question.

It is an established doctrine, not only of international law but of the municipal law of this country, that personal property has no locality. It is subject to the law which governs the person of its owner, as well in respect to the disposition of it by act inter vivos, as to its transmission by last will and testament, and by succession upon its owner dying intestate. Parsons v. Lyman, 20 N. Y., 112; Cross v. U. S. Trust Co., 131 id., 339; 43 St. Rep., 254.

This principle of law has been quite generally recognized in the different states of the Union, and in many of them statutes have been passed providing, either through ancillary administration or otherwise, for the transmission of the personal property •of a non-resident decedent to the state of his domicil for distribution according to the laws of that state.

In our own- courts it is held that such property passes to the legatees or next of kin, not under the laws of this state, but according to the laws of the owner’s domicil. Matter of Tulane, 51 Hun, 213; 21 St. Rep., 191; Matter of Enston, 113 N. Y., 181; 22 St. Rep., 569.

. In the last mentioned case the testator was a resident of Pennsylvania, and a large part of her estate consisted of stocks and bonds of foreign corporations. The court of appeals held that they were not taxable under chapter 483, Laws of 1885, because of the non-residence of the testator. The court says, however, in its opinion, that taxation under that act would have been proper if the testator had been a resident of this state at the time of her death. ' Id. 176.

In the Matter of Swift, 50 St. Rep., 81-87, the court of appeals has recently decided the question in issue here adversely to the appellants, holding that the personal property of a resident decedent wherever situate, whether within or without the state, is subject to the tax imposed by the act for taxation of gifts, legacies and inheritances.

This decision overrules, in respect to personal property, that of the surrogate of New York in the same matter. 2 Connoly, 644, affirmed at general term, 47 St. Rep., 47, and 64 Hun, 689.

In England, where statutes have long been in force for taxing legacies, etc., it was held in Forbes v. Stevens, L. R., 10 Equity Cases, 178, that an interest in partnership property situate in India, passing by the will of a testator domiciled in England, which will was proved in the last named country, was subject to the English legacy tax.

To like effect are In re Ewin, 1 Cromp. & Jerv., 151; Thomson v. Advocate General, 12 Clark & Fin., 1—18.

In considering a statute for taxing legacies and inheritances quite similar to ours, the supreme court of Pennsylvania says, In re Bittinger's Estate, 129 Pa. St., 338-345: “ All property of the citizen within the state may be taxed, and also all such property outside the state as is drawn to or follows in law the person or domicil of the ’owner, such as bonds and mortgages, money at interest, etc., no matter where situate."

The order must be affirmed, with ten dollars costs against each appellant.


author: Maynard, J.

text:
    William Kirk et al., Resp'ts, v. John Kirk et al., App’lts.

      (Court of Appeals,

      Filed March 21, 1893.)

      1. Partition — Parties.
    Where, by the will, of a testator, an express trust was created in one-seventh of his real property for the benefit of his daughter, the appointment of a trustee, and his presence as a party, is not essential to give the court complete jurisdiction of an action to partition said property and to invest it with authority to effectually dispose of the interests of all parties in the lands which are the subject of the common tenancy.

      2. Same — Aftbhbobn descendants.
    By the provisions of the will at the death of the daughter, the trustee was directed to pay over the share of the daughter to her issue then living, including the issue of any deceased issue per stirpes, and if there was no issue living at her death, then to her brothers and sisters, and to the issue of any deceased brother or sister, per stirpes. The daughter and her children and grandchildren, comprising all her descendants now living, as well as all her brothers and sisters, and the descendants in being both of the living and deceased brothers and sisters, were made parties. Held, that any afterborn children of the daughter, or of her issue, or of her brothers and sisters, or their issue, are concluded by the judgment and cannot successfully assail the title of a purchaser under it.
    3. Same.
    Where the referee has made report of sale, which has been confirmed but final judgment has not been entered, a purchaser at the sale has no concern with the subsequent proceedings and cannot refuse to complete his purchase until the entry of such final judgment.
    Appeal from an order of the supreme court, general term, third department, affirming an order of special term directing appellants’ purchasers at partition sale, to complete the purchase.

      John Whalen, for appl’ts; Louis W. Pratt and W. Frothingham, for resp’ts.
   Maynard, J.

We fail to find any defects in the title which the purchaser will acquire upon the partition sale sufficient to reHeve him from his obligation to complete the purchase and pay the amount of his bid. It may be assumed that the will of Andrew Kirk created a valid express trust in one-seventh of his real property for the benefit of his daughter, Mrs. Pruyn, and her heirs; but the appointment of a trustee, and his presence as a party in the partition suit, was not essential to give the court complete jurisdiction of the action, and invest it with authority to render a judgment, effectually disposing of the interests of all parties in the lands which were the subject of the common tenancy. The supreme court has inherent power to execute a trust, and in the absence of a trustee it may, and will take upon itself its execution. Rogers v. Rogers, 111 N. Y., 228; 19 St. Rep., 94; Greenland v. Waddell, 116 N. Y., 242; 26 St. Rep., 667. It appears from the record that it has undertaken the discharge of this duty in the present case. The property is in the possession of a receiver, who is an officer of the court. It has directed the trust fund to be brought into court and to be held for the precise objects for which the trust was created. The trustee, when appointed, will be the successor of the court in the administration of the trust, and will be bound by its judgments and directions now given with respect to the trust estate, to the same extent as if he had been a party to the action. The further objection is made that persons not in esse may have an interest in the trust estate, and that they will not be concluded by the judgment under which this sale is made. By the provisions of the will, Mrs. Pruyn was entitled to the income of the trust estate during life, and at her death the trustee was directed to pay over the share, so held in trust, to her issue then living, including the issue of any deceased issue, who were to take per stirpes and not per capita, and if there was no issue of the daughter living at her death, the trustee was directed to pay over such share to her brothers and sisters, and to the lawful issue of any deceased brother or sister, per stirpes and not per capita. Mrs. Pruyn is a party defendant, and her children and grandchildren, comprising all her descendants now living, have also been made parties, as well as all her brothers and sisters, and the descendants in being both of the living and the deceased brothers and sisters.

It thus appears that every living person who has any interest, either vested or contingent, in this share, is a party to the action, and the interlocutory judgment provides that the net proceeds of the sale shall be brought into court and deposited in a savings bank, and there remain during Mrs. Pruyn’s lifetime, or until the appointment of a trustee. It is true that there is the contingency that afterborn children of Mrs. Pruyn, or of her issue, or of her brothers and sisters, or their issue, may have an interest in this part of the property, but it is now the settled law in this state, that under the circumstances here shown to exist they are concluded by this judgment, and cannot successfully assail the title of a purchaser under it. Whatever doubt there may have been upon this point has been put to rest, and the further discussion of the question closed by the recent decision of this court in Kent v. Church of St. Michael, 136 N. Y., 10; 49 St. Rep., 19, where the authorities are reviewed and the correct rule very clearly enunciated in the opinion of Ch. J. Earl.

The referee has made report of sale, which has been confirmed, but final judgment has not been entered, and the purchaser contends that he cannot be compelled to complete his purchase until this has been done. By the interlocutory judgment the referee is authorized to execute the deed upon the confirmation of his report of sale, upon compliance by the purchaser with the terms of sale, and it is provided that the sale shall then be valid and effectual forever. The purchaser is not concerned in the subsequent proceedings in the action. Upon the delivery of the deed his title becomes perfect, and rests upon the interlocutory judgment and the order confirming the referee’s report. As to him, the order of confirmation has all the force and effect of a final judgment under § 1577. Woodhull v. Little et al., 102 N. Y., 165; 1 St. Rep., 342.

In the present case actual partition has been directed of a large portion of the real property which is the subject of the action, and the proceedings cannot be finally terminated as to that part of the cause of action until the report of the commissioners has been made, but the entry of judgment upon such report will not and cannot disturb the rights which have been acquired and have become vested under the sale and the proceedings specially relating thereto.

The order must be affirmed, with costs.

All concur.