author: Pryor, J.

text:
    The W. D. Wilson Printing Ink Co., Respt. v. Richard R. Bowker, Impleaded, App’lt.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Partnership—Participation in profits. ,
    One who lets to another a machine under an agreement by which he is to receive a part of the net profits on the same as part of the rent thereof, is not liable as a partner upon a note given by the other party.
    Appear from judgment of the general term of the city court of New York, affirming judgment entered on verdict directed in favor of plaintiff.
    Action upon a promissory note made by the “ Hoffman Press ” to plaintiff in payment for ink furnished by it. The business of the “ Hoffman Press ” was run by Louis J. Hoffman as manager, and his wife owned it Defendant entered into an agreement to furnish Hoffman with two presses, as follows :
    “It is my intention to provide, as soon after May 1st as practicable, two cylinder presses, which are to be let to you at the rate of six per cent interest on actual cost, with ten per cent on same for wear and tear, actual insurance and half profit on same, after deducting rent, labor, ink and other necessary expenses.”
    It is claimed that by reason of this agreement defendant became liable as partner because he shared in the profits of the business.
    The opinion of the general term of the city court is as follows :
    Ehrlich, Ch. J.—It is not essential that the parties defendant should have intended a partnership, nor is it material that they did not intend one. The agreement executed by them made them partners as to creditors, Hackett v. Stanley, 115 N. Y., 625 ; 26 N. Y. State Rep., 693; Leggett v. Hyde, 58 N. Y., 272, and this is the only question presented for determination here. Sharing in the profit was sufficient to constitute a partnership as to third persons. Hackett v. Stanley, supra; Manhattan Brass Co. v. Sears, 45 N. Y., 797. It follows that the verdict was properly directed in favor of the plaintiff, and that the judgment entered upon it must be affirmed, with costs.

      Edward M. Shepard and John M. Perry, for app’lt; Philip Carpenter, for resp’t.
   Pryor, J.

—In the absence of an estoppel, no man can be charged with liability on a contract to which he is not a party, either immediately or mediately, either personally or by act of a duly authorized representative. It is not pretended that the appellant has precluded himself from disputing his responsibility on the note by assuming the relation of an ostensible partner, but his liability is inferred from the postulate that he was an actual partner in the business of the Hoffman Press. Was he such partner? The learned trial judge directed a verdict for the plaintiff on the ground that “ sharing in the profits was sufficient to constitute a partnership as to third persons,” and for the same reason the judgment was affirmed on appeal to the general term of the court below. In Grace v. Smith, 2 W. Bl., 998, and in Waugh v. Carver, 2 H. Bl., 235, it was held that participation in the profits of a partnership raises an irrebuttable presumption of liability for the debts of the partnership; for the reason that, by taking a part of the profits, the defendant diminishes the fund to which the creditors of the firm must have recourse for satisfaction of their demands. The argument involves an obvious fallacy; for, first, it assumes that the portion of profits which the defendant takes by so much reduces the resources of the business, whereas the presumption is that the loan, service or other consideration in requital of which he is paid, augumented those resources to the extent of his share in the dividend; and, secondly, if every payment by which the funds of the firm are diminished makes the payee a partner, then every servant and agent of the partnership is responsible for its obligation; a palpable reductio ad absurdum. From the principle that one who receives a part of the profits is a partner as to third persons, the inference was deduced that so, also, is one who merely stipulates for such participation, although this extension of the rule has not for support the reason assigned for the original proposition, namely, an actual diminution of the firm assets. Unsatisfactory as was the argument for the conclusion, nevertheless it was long the law of England that an interest in the profits of a partnership imposed a liability for the partnership obligations, and the principle was generally prevalent in the courts of this country. But in 1860 the rule and the reason of it underwent a searching scrutiny in the house of lords, under the criticism of Lord Chancellor Campbell, and the Ex-Chancellors Brougham, Cranworth and Wensleydale, with the result that the doctrine was utterly exploded as a principle of English jurisprudence. Cox v. Hickman, 8 H. L. Cas., 268, The question on the present appeal is, does the principle prevail as a rule of law in the state of New York? The appellant was held liable on a note to which he was not in fact a party, either directly or indirectly, because, and merely because, in return for the hire of a chattel to the maker, he had stipulated for a part of the profits that might be earned by the use of the chattel in the bailee’s business. It is the law of this state, as declared by the court of appeals, that a right to a share of the profits in compensation of services rendered to the partnership does not involve a liability for the partnership engagements. Cassidy v. Hall, 97 N.Y., 159,168; Leggett v. Hyde, 58 id., 272. And so of a loan of money to the partnership for a part of the profits. Curry v. Fowler, 87 N. Y., 33 ; Richardson v. Hughitt, 76 id., 55; Keogh v. Minrath, 30 N.Y. State Rep., 131; Eager v. Crawford, 76 N. Y., 97. And see Smelting Co. v. Smith, 13 R. I., 27; Ford v. Smith, 27 Wis., 261; Ruddick v. Olis, 33 Iowa, 402; Beckwith v. Talbot, 2 Colo., 639; Dale v. Pierce, 85 Pa. St., 474; Sangston v. Hack, 52 Md., 173; Slade v. Paschal, 67 Ga., 541; Flints v. Marble Works, 53 Vt., 669; Austin v. Thomson, 45 N. H., 113; Oliver v. Gray, 4 Ark., 425; Smith v. Knight, 71 Ill., 148; Bradleys v. White, 10 Metc. (Mass), 303; Culley v. Edwards, 44 Ark., 423. The rule, therefore, upon which the court below decided the case against the appellant, namely, that a share of profits constitutes partnership as to third persons, is not the law of New York or of other states. The question then is, does the fact that profits are to be paid for the hire of a chattel for the partnership business modify the principle ? Is it possible to distinguish between the letting of a chattel and the loan of money or the hire of services ? Equally with the chattel, the money and the services are employed in the business of the partnership ; and if the taking of profits for the use of the latter does not impose a partnership liability, why should the taking of profits for the use of the former ? A difference between the cases is inconceivable. “An indefinite compensation out of the profits for the use of property, real or personal, and dependent on the success of the business, is in lieu of rent, and does not constitute the owner a partner inter se. Nor liable as partner to third persons because of sharing the profits, for exactly the same reason that protects an employee when so paid.” 1 Bates Partn., 61; Newspaper Co. v. Farrell, 88 Mo., 594; McDonnell v. Battle House Co., 67 Ala., 90; Holmes v. Railroad Corp., 5 Gray, 58; Thayer v. Augustine, 55 Mich., 187. For affirmance of the judgment, the respondent relies on Bank v. Gallaudet, 122 N. Y., 655 ; 34 N. Y. State Rep., 228; Hackett v. Stanley, 115 N. Y., 625; 26 N. Y. State Rep., 693 ; Leggett v. Hyde, 58 N. Y., 272 ; and Brass etc., Co. v. Sears, 45 id., 797. But it is obvious, upon examination, that each of those cases is essentially distinguishable from the one under review. In Bank v. Gallaudet, there was not only a participation of profits, but a joint interest in the patent, the subject matter of the partnership ; and the court said: “ The evidence warranted the inference of a partnership. Such relation arises from a business jointly carried on by persons pursuant to an .arrangement that they are to share in the profits as such. The fact, however, that a person is to receive a portion of the profits may be dependent upon a right so qualified by the arrangement, or controlled by the circumstances under which they are to be received, as to furnish no evidence ■of partnership.” In the case at bar there was no joint interest in the presses let to hire, nor any stipulation for profits as such, but as rent for the use of the presses. The citation plainly sustains the appellant’s contention. In Hackett v. Stanley, the court placed the liability of the defendant upon the grounds: First, that the contract contemplated that he was to bear a proportionate share of the losses of the business; and, secondly, that, even after the repayment of his loan, he was still to receive one half the profits of the business; facts clearly implying a partnership, but not apparent in the case at bar. In Legged v. Hyde, the defendant was not only entitled to demand one-third of the profits every half year, but those profits were designated specifically as profits of “ capital in the business; ” a fact distinguished by the court as the ratio decidendi. In Brass, etc., Co. v. Sears, as in Bank v. Gallaudet, the parties were “joint owners” of the patent right, and the profits were to be paid as such, and not as mere compensation for the advance, whereas here the defendant was the sole owner of the presses; they were merely “ let,” and the share of profits was to be received as payment for their hire: The question presented

is not free from doubt, and the learned court below are not without argument and authority for their position; still, upon a critical consideration of the cases, we are of opinion that the preponderance of reason and precedent is with the appellant, and that he is not liable as a partner.

Judgment reversed and new trial granted, costs to abide event.

Allen and Bischoff, JJ., concur.


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    Aaron Longstreet, Pl’ff, v. Cyrus M. Sawyer et al., Def’ts.

      (Supreme Court, Special Term, Niagara County,

      Filed June 29, 1891.)

    Security for costs—Code Civ. Pro., § 3373.
    A county judge lias not authority to grant an order in an action in the supreme court, requiring a non-resident plaintiff to file security for costs.

      The summons and complaint in this action were served upon the defendant, Michael Hearey; he answered, and on the 8th day of June, 1891, upon an affidavit showing that plaintiff was not a resident of the state of New York, obtained an ex parte order of the county judge of Niagara county, requiring plaintiff to file security for costs. The plaintiff moved at the special term for an order vacating the order of the county judge.

      Henry M. Davis, for motion; Burrall & Parker, opposed.
   Daniels, J.

—The same reason seems to support the conclusion that a county-judge is unauthorized.to make the order requiring security for costs to be filed as there was for holding that he could not, by order, shorten the time for making a motion. The language is very much the same in this instance. In the latter it is that the order may be made by the court or a judge thereof, which has been held to exclude the county judge. Larkin v. Steele 25 Hun, 254; People v. Supervisors, 3 How., N. S., 242, 248.

And in the case of security the order by § 3272 of the Code of Civil Procedure is to be made by the court in which the action is pending, “or * * * a judge thereof.” The reason which was deemed sufficient to restrict this language to a judge of the court in which the action should be pending when the time in which the motion was to be regulated will impose the same restrictions on the more important order directing the filing of security for the costs. And it must accordingly be held that the order of the county judge, in this case, was not authorized by § 241 of the Code of Civil Procedure, and the motion must be granted, but as the point has been newly presented, it will be without costs.


author: Learned, P. J.

text:
    Thomas F. Morgan, Resp’t, v. The Hudson River Ore & Iron Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Master and servant—Negligence.
    Defendant operates ten kilns for roasting ore with a railroad in front of them inclined so that the cars will run down of their own weight. When ore in loading the cars fell so as to block them the employes were instructed to remove it by the use of shovels and rakes. While so removing ore which had fallen around a car plaintiff was obliged to reach under it with a rake and called to those at the kiln above not to let the car there .come down on him. The car, however, collided with the one he was under and he was injured. It was not distinctly shown that this was caused by the negligence of the other employes. Held, that the question whether the defendant was negligent in not providing and promulgating rules and regulations for the guidance of its workmen for their protection was properly left to the jury.
    Appeal from judgment in favor, of plaintiff, entered upon the verdict of a jury.

      Matthews & Smith (Frank Smith, of counsel), for app’lt; L. F. Longley (R. E. Andrews, of counsel), for resp’t.
   Learned, P. J.

—This is an action to recover for injuries alleged „ to have been received by plaintiff, an employe of the defendant,when engaged in work for it, which injuries it is alleged were caused by the negligence of defendant. Several grounds of alleged negligence are stated in the complaint. All were withdrawn by plaintiff at the close of the case, except one, viz., that defendant negligently omitted to provide and promulgate rules and regulations for the guidance and government of its workmen for their protection. We have, therefore, to consider only this single subject.

The defendant has ten kilns for roasting ore, each about twenty-five feet in diameter, standing in a row about ten feet apart, and numbered from one to ten. They stand on a slight decline, number one being the uppermost Along the kilns is a narrow-guage railroad, on which run cars, which are loaded with ore from the kilns and then taken to the point of shipment, some five hundred feet distant. At that part of the railroad by the kilns the cars will usually run down of their own weight, being, however, sometimes started or drawn by a horse. Beyond kiln number ten an engine draws them.

In loading these cars from the kilns, it often happens that ore falls on the tracks and obstructs the movement of the cars. It is necessary to remove it. There are shovels, rakes and pickaxes there, with which the workmen remove the ore that has thus fallen on the rails, so that the cars may move.

On the day of the accident plaintiff was at work opposite kiln number three. The ore ran over the car on the side next the kiln, so that it blocked the wheels about a foot and one-half from the track. Some fell in front of the wheels; some on the centre of the track. There were two wheels on each side of the car. The ore was between and in front of the wheels. There was a loaded car opposite kiln number two. Two workmen, one called Smith, the other the Hungarian, were at the car opposite number two. Plaintiff spoke to them and told them to look out for his safety, when he was clearing out the car; not to move the cars or let them run down on him until he got through. They said they would. The car at which plaintiff was working opposite number three was blocked with a block of wood. The plaintiff’s testimony conflicts with itself. He sometimes says he blocked the car himself, and sometimes he says he did not know who blocked it. The plaintiff raked out between the wheels with the rake; then he lay down to clean out what he could not reach with the rake. As he reached over, a car above came down and pushed the car where he was working. His fingers were caught under the wheel of the car and were injured. The plaintiff says the block of his car was not there at the time of the accident, but he does not know who took it out. There is evidently some confusion in his mind, which is not strange.

It was in evidence that the superintendent had given oral instruction that the men in removing the ore from the track should use, and had directed them to use, the rakes. The foreman also states that he had given instructions that, if there was a large quantity of ore, they should take the shovel, if not, that they should put their backs to the car and try to shove it over. It is evident that unless the amount of ore were too great, the car might thus he pushed along, crushing or forcing aside in its progress the ore which was in the way.

It is not distinctly shown that the negligence of Smith and the Hungarian caused the accident. What started the car which was higher up the grade does not appear. The workmen may have started it, or it may have moved of its own weight. We cannot determine which was the fact Therefore it cannot be said that the accident was caused by the negligence of a fellow servant. The court properly charged that if it was so caused, the plaintiff could not recover. True, the plaintiff said that he requested Smith and the other workman to look out for his safety when he was under the car, and not to let their cars move while he was-under the car at number three. But this only serves to show that they knew where he was. It does not show that they neglected any duty or were negligent For it is not shown that any duty was imposed on them by the regulations of defendant; or that the neglect of such regulations caused the car to move.

On the subject of the liability of a master for not making proper rules and regulations we refer to McGovern v. Central Vermont R. R. Co., 123 N. Y., at page 289; 33 N. Y. State Rep., 416. In that case the deceased entered a large bin of the defendant. He entered it though a trap door in the bottom, for the purpose of shoveling the com and cleaning out the bin, the corn having ceased to run out at the spout While in the bin, some corn which had become piled up therein, probably owing to its heating, fell on him and he was killed. In regard to this the court of appeals said: “ The question might also have been left to the jury to determine whether the omission to make rules and regulations prescribing the conditions under which servants should be required or permitted to enter the bins at the bottom was or was not a neglect of such reasonable care,” etc. It will be seen in that case that the rules and regulations suggested by the court referred to the person who was entering the bin and not to some other person. It will also be seen that there was nothing “ complex ” in the business in which deceased was engaged. He was-merely required to climb through a hole into a bin and shovel loose corn and clean out the bottom of the bin. It will further be seen that no special rule or regulation were shown to have existed in similar elevators; but that the court of appeals said that the jury might determine whether the defendant ought- not to have made some rule on that subject.

It had been previously stated in the opinion that the defendant might have been found to be negligent in not making a proper inspection of the bin before permitting the servants to enter. The sentence we have above quoted therefore has no reference to such inspection, but suggests another ground of negligence, that of the insufficiency of rules or regulations. What these rules or regulations should be was to be left to the jury. Of course it is evident that to permit a jury to predicate negligence on the omission to make a rule which, after the event, the jury can say might, if it had been made, have prevented the accident, gives a great opportunity to hold.corporations liable. This was shown by the result of the new trial in that case. And in the case of Abel v. D. & H. C. Co., 31 N. Y. State Rep., 356, this court was of the opinion that an expression in the charge, allowing the jury to conjecture that some rule, before unknown, would be a better rule, that such an expression, standing alone, would be erroneous.

Following, however the language of the opinion in the McGovern case we do not see why the learned justice did not properly leave the question to the jury. He left it to them to say whether defendant’s business was complex, difficult or complicated, in which case it was its duty to establish rules. Certainly it was as complex as that carried on by the defendant in the McGovern case; in which the court of appeals held that the jury might find it was -the defendant’s duty to establish rules. He left it to the jury to say whether the rules proved were sufficiently explicit to guard the life and limb of the employes.

It is true that the Abel case, 103 N. Y., 581; 4 N. Y. State Rep., 269, is not quite analogous. There the alleged neglect was a failure to give sufficient notice-that the testator was under the car where he was injured. In this, the persons controlling the car which came down and struck plaintiff’s car had actual notice that he was under it And actual notice was better than the notice implied by a flag, red or blue. But the language quoted from the McGovern case speaks of rules prescribing the condition under which servants should be permitted to put themselves in places of danger. It therefore justifies the submission to the jury of the question whether some reasonable rule might not have been made which might have prevented the accident

In the McGovern case the court said that the case was not free from doubt, and the same remark might be made here. But, of course, there will be no doubt of the result when a jury is to decide whether the master ought not to have promulgated rules, under the circumstances of the case, “ as a reasonable care and precaution.”

The defendant urges that the accident was caused by the negligent or wrongful act of co-employes. We have already considered this point The judge properly charged in respect to it, and we cannot hold that the cars necessarily started by their neglect or by their act. If the defendant was held liable for permitting that car to start and come down on the plaintiff’s car, then cases like Searles v. Manhattan R. R., 101 N. Y., 661, cited by defendant, might apply, but defendant is held liable only for neglect to promulgate rules.

The defendant further insists that plaintiff knew the risk and took it as incident to his employment If, however, it was proper, as held in the McGovern case, to submit to the jury the question of negligence in respect to making proper rules and regulations, then it could not be held that he assumed a risk from which proper rules would have saved him. Heavey v. Hudson River Paper Co., 57 Hun, 339; 32 N. Y. State Rep., 565; Stringham v. Stewart, 100 N. Y., 516; Benzing v. Steinway, 101 id., 547.

We are, therefore, of the opinion that the judgment and order should be affirmed, with costs.

Land on, J., concurs in result; Mayham, J., not acting.


text:
    In the Matter of the Probate of the Will of Matthew Smith, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891

    1. Will—Execution—Knowledge of contents.
    The deceased was unable to read or write, but was in full possession of his faculties. The will was drawn by a lawyer of high character, at his request and at his house. One of the witnesses was also a lawyer. The lawyer who drew the will read the attestation clause to the witnesses, but did not read the body of the will. Held, that it sufficiently appeared that the testator knew the contents of the will.
    3. Same—Proof of mark.
    The testator made his signature by a mark. One of the witnesses died and his signature was proved. Held, that proof by one not a subscribing witness that testator made his mark was a sufficient proof of his handwriting to entitle the will to probate.
    8. Same—Proof of contents of revoked will.
    Evidence of the contents of a will which has been revoked cannot be received until its loss has been shown.
    4. Same—Evidence—Privileged communications.
    Evidence of an attorney who drew a will as to declarations of the testator in the presence of the witnesses at the time of its execution in relation to the will and his satisfaction with its contents, is not objectionable under § 885 of the Code.
    Appeal from the decree of the surrogate of Saratoga county denying probate to the alleged last will, etc., of Matthew Smith.

      J. W. Houghton, for app’lt; C. H. Sturges, for resp’t.
   Learned, P. J.

—This is an appeal by proponents from the refusal of the surrogate to admit the will to probate.

The reasons of the surrogate were that the deceased could not read or write and the contents of the will were not made known to him; that he was of unsound mind and memory, and that the will was made under undue influences.

The deceased had accumulated by industry about $6,000. He had a wife with whom he had lived on good terms for thirty years. He had never had any children. He had kept a hotel, patronized by workingmen, for some twenty-five years; and was-himself accustomed to drink. His wife was a hard-working woman.

The deceased made this will about a month before his death, and by it he gave $200 to his nephew, James Smith, and everything else to his wife; making her executrix and Judge Crane, of Saratoga Springs, executor., He had three brothers surviving, and several nephews and nieces, and he had had also a sister who was not known to be living.

The will was dated September 17, 1882. Proceedings for probate were commenced March, 1883; and after some delay the will was admitted to probate March 20, 1889. This probate wasafterwards set aside on the ground of want of jurisdiction, apparently because certain infants had not lawfully appeared.

In January, 1890, the present proceedings were commenced by the executor. The will is witnessed by James M. Andrews and TTiram H. Martin, and is signed" by the mark of the testator. Andrews had died before the hearing. His signature was proved.

We are unable to see sufficient evidence to establish undue influence. It was proved (assuming the testimony to be admissible) that he had previously made another will, by which he gave his property to his wife for life. But this change of testamentary disposition is not enough evidence of undue influence, and we find little else.

Nor do we think that the evidence sustains the finding that the deceased was of unsound mind and memory. It is plain that he was accustomed to drink too much spirituous liquor, and that he showed the effects of this habit. But an examination of the evidence does not show that unsoundness of mind which disqualifies one from making his will. We do not think it necessary to go over the details of the evidence, since there are some other points which we must examine.

The contestants urge that as the deceased could not read or write, there was not sufficient evidence that he knew the contents of the will. The facts are that the will was drawn by Judge Crane, a lawyer of long practice, who had been for some time judge of the county court. It was drawn at the request of deceased, and at his house. Mr. Andrews, one of the witnesses, was a lawyer, a man of large business, and at the time over sixty years old, evidently acquainted with the deceased, as appears from the conversation stated by Martin. Judge Crane and the deceased were together in the room when the two witnesses came in. Judge Crane read aloud the attestation clause in their presence, but did not, in their presence, read aloud the will. The decision in Rollwagen v. Rollwagen, 63 N. Y., 504, is that when a testator cannot read, write or speak, there must be, not only the ordinary proof of subscription and execution, but also proof that the testator understood the contents of the will. The same rule was applied in Matter of Bull, 20 N. Y. State Rep., 522, to the case of a testator who was nearly blind. Now, the application of this general rule must vary with the circumstances. For instance, in the Rollwagen case the testator had been paralyzed and could not utter an intelligible sound, and there were many circumstances which made it doubtful whether the will expressed his wishes.

In the present case, although the testator could not read, yet he was in full possession of his faculties. His brother, not mentioned in the will, came for the witnesses. A lawyer of high character, who had held judicial position, drew the will at the request of deceased. It was drawn at the house of deceased. ■Judge Crane, the lawyer who drew it, was in the room with deceased when the witnesses came and read the attestation clause in their presence and in the presence of the testator. One of the witnesses, as we have seen, was also a lawyer of experience. Add to these circumstances the fact that the will was simple in its terms and eminently just, and there is enough to satisfy the judicial mind that the testator knew the contents of the will. A strong presumption in favor of the will arises when it has been executed under the supervision of experienced persons familiar with the law. Matter of Cottrell, 95 N. Y., 339.

We have, then, in this case more than the mere fact of the formal execution of the will. We have circumstances from which any one might reasonably infer that the deceased knew the contents, as it was distinctly proved that he knew the nature, of the instrument.

The contestants claim that as one of the subscribing witnesses was dead, and as the testator signed by a mark, the will could not. be proved. Code Civ. Pro., §§ 2618, 2620. It is enough to say that Judge Crane, not a subscribing witness, proved that the testator made his mark. This is sufficient proof of handwriting. But we do not decide, as intimated in some cases, that a subscribing witness may not in such a case prove the handwriting by a. mark of the testator. It is not necessary to pass on that question.

Mr. Brackett was called as a witness by contestants. He testified, under objection, to instructions given him, as counsel, by Smith in respect to drawing a previous will in which he was a witness. He then testified, under objection, that Mr. Andrews, the deceased subscribing witness to the will in question, came to his office and said that the will of Mrs. Smith (referring to that drawn by Mr. Brackett) was unjust to Mr. Smith, and that he (Andrews) was going down to have another drawn. It is quite doubtful whether this evidence was admissible. It in no way affected the question of the execution of the will in question, nor was it an impeachment of a witness who had testified at the trial. If even we assume that Andrews stood in the same position as if he had been alive and had testified, this evidence did not contradict anything he could be supposed to have said. Matter of Hesdra, 119 N. Y., 615; 28 N. Y. State Rep., 810.

If Mr. Brackett, being a witness to the former will, Matter of Coleman, 111 N. Y., 227; 19 N. Y. State Rep., 501, were competent to testify to statements of deceased, still he could not properly testify as to the contents of such will until its loss was. shown.

Judge Crane was asked: “When the will was about to be executed what did Smith say in the presence of Martin and Andrews, the witnesses, in respect to that will and his satisfaction with its provisions ? This was objected to under § 835 and excluded on the ground that this was a communication in the course of professional employment. There is no doubt that this section applies to counsel employed by a client to draw a will. Loder v. Whelpley, 111 N. Y., 239 ; 19 N. Y. State Rep., 631, and the Coleman case, ut supra. But in the latter case the decision referred to conversations with the attorneys at the time of giving instructions to draw the will. The case here is entirely different. Judge Crane was asked simply as to a statement made by Smith in the presence of the subscribing witnesses and Judge Crane just before the execution of the will.

It was held in Matter of McCarthy, 55 Hun, 7; 28 N. Y. State Rep., 342, that such a statement was not within the prohibition. It was a remark addressed equally to the subscribing witnesses. It might tend to show the knowledge had by the deceased of the contents of the will. It seems to us not to come within either the word of the section or the evil intended to be prevented.

The decree of the surrogate should be reversed and issues should be sent to the Saratoga circuit, costs to abide final event; order and issues to be settled by Learned, P. J.

Landon and Mayham, JJ., concur.


author: Landon, J.

text:
    The Merchants’ National Bank of Whitehall, Resp’t, v. S. Edward Chapin et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Fraudulent conveyance.
    Defendant H., with her son S., were engaged in business which was unsuccessful. She then conveyed to her son G., who was a clerk in the store of the firm, for the consideration of one dollar, real estate of the value of $7,500, which he afterwards conveyed to his infant sister for one dollar. H. then sold property worth $6,000 for $4,500, and sold out her interest in the firm to S. for his share in certain property worth $20,000, which, with her dower therein, she sold to Gr. for $1,000. S. shortly afterwards failed and made an assignment. Held, that a finding that the conveyances made by H. were made with intent to hinder and delay creditors of the firm was justified by the evidence.
    Appeal from a judgment entered in Washington county upon, the report of a referee.
    The action was in the nature of a creditor’s bill to set aside conveyances of real estate as fraudulent against creditors.

      C. A. Dennis, for app’lts; J. S. Potter, for resp’t.
   Landon, J.

—The referee found that the conveyances by Harriet Chapin of March 2, 1889, and May 2, 1889, were each made-with intent to hinder and delay her creditors. The conveyances of March 2, 1889, were to her son George for the expressed consideration of one dollar, and were of the homestead in Whitehall, worth $4,500, and of the Manville house in the same village, worth $3,000. At that date she had a dower interest in the Chapin block in Whitehall, the block being valued at $20,000 over incumbrances. She had real estate in Burlington,Yt., worth $6,000.

At that date she and her son S. Edward Chapin were partners as dry goods merchants, and had been since April 1, 1887. They had succeeded to the business of Richard Chapin, the husband of Harriet and father of S. Edward, and assumed his business liabilities amounting to about $3,000, the assets not being shown. The business of S. E. Chapin & Co., the new firm, had not been prosperous. December 1,1887, the bills payable were $3,600. March 1, 1889, the bills payable were $13,493, and the nominal assets as entered upon their books were $17,634.14, of which $3,741.06 were outstanding accounts, a large part of which were desperate.

April 13,1889, there being no material change in the situation of the firm affairs, Harriet, by a bill of sale, transferred all her interest in the firm business to S. Edward for the expressed consideration of $7,000, S. Edward agreeing to pay the firm liabilities. S. Edward as one of the heirs of Richard Chapin, who had died intestate in September, 1887, owned an undivided one-third of the Chapin block, subject to his mother’s right of dower therein. At the date of the bill of sale he conveyed to his mother his interest in the Chapin block for $7,000, and thus paid the consideration, expressed in the bill of sale from his mother.

On April 1, 1889, Harriet Chapin sold her real estate in Burlington for $4,500, and in April and May, after her withdrawal from the firm of S. E. Chapin & Co., she loaned $3,800 of the proceeds to S. Edward and took his notes therefor. May 3,1889, Harriet conveyed to her son George H. all her interest in the Chapin block, including that conveyed to her by S. Edward. The consideration expressed in the deed was $1,000, which George H. paid. S. Edward struggled along with the dry goods business in his own name until June 8, 1889, when he made an assignment for the benefit of his creditors. The assignee disposed of his stock of goods, and realized from the entire assigned property $6,946. The stock was sold at some sacrifice of wholesale prices, but the referee finds that the assignee disposed of it properly. Between the date of S. Edward’s purchase of his mother’s interest in the firm property, and the date of his assignment, he decreased the debts of the firm and increased his own, so that on June 8, 1889, he owed as a member of the firm of S. E. Chapin & Co., with interest to December 1, 1889, $8,376.12, and debts which he contracted upon his individual account, $9,514.20. The assignee, pursuant to the direction of the court, distributed the net proceeds of the assigned property pro rata, among both classes of creditors. George H. Chapin had been employed as a clerk in the business of S. E. Chapin & Co. September 24, 1889, he conveyed the homestead and Manville real estate to his sister, the infant defendant Mary Chapin, for the consideration of one dollar. S. Edward, George H. and Mary Chapin, are the only children of Richard and Harriet E. Chapin, and only heirs of Richard.

The plaintiff had loaned money to the amount of $8,000 to the firm of S. E. Chapin & Co., and held the notes of the firm for the amount at the date of the assignment They obtained judgment against S. Edward and Harriet E. upon the same, received some dividend from the assignee; issued execution which was returned unsatisfied. Other creditors have recovered judgments and received their dividends.

It appears from the foregoing recital that the referee was authorized to draw the inference that Harriet and George H. Chapin, foreseeing the calamity that must befall the firm, concluded that it would be prudent for Harriet to transfer the homestead and Manville house to George H This was done March 2, 1889, for the consideration of one dollar. It may be that Harriet did not fully appreciate the situation at that time, but George obviously did. .The next step was Harriet’s sale of the Burlington property, worth $6,000, sold April 1, 1889, for $4,500, an apparent sacrifice of $1,500, the motive of which the referee, was to infer from all the circumstances.

Next is Harriet’s withdrawal from the firm for a consideration agreed upon of $7,000, payable in S. Edward’s interest in the Chapin block, which enables her to take S. Edward’s interest in the Chapin block at the same agreed price, and transfer the same with her own dower interest in it to George for the consideration of $1,000. All her real estate has now passed into George’s hands, including also that of S. Edward. Of course all this may have been done by Harriet without actual knowledge of the desperate condition of the firm or of S. Edward as its successor. But it was for the referee to draw the proper inferences, and he could not avoid perceiving that if it had been the purpose of the parties to withdraw all the real estate held by S. Edward and Harriet from the reach of creditors, the course actually taken was probably as ingenious and as likely to be effective as any that could be devised. If devised and executed for that purpose, that is the end of the matter. We see no valid ground upon which to reverse the finding.

The conveyance to Mary was purely voluntary, and must fall with the others.

The defendants object that the action ought to have been brought by the assignee for the benefit of all the creditors, and not by the plaintiffs for their own benefit. But there is no general assignee of Harriet, and it is her conveyances that the judgment sets aside.

S. Edward cannot object to the validity of his conveyance to Harriet. Besides, the plaintiff brings the action for the benefit of the other judgment creditors as well as for its own.

The defendants insists that the referee erred in the statement of the amount due upon the plaintiff’s judgments, and that it is too large by $1,224.67. The plaintiff admits some error. The statement will be corrected in the order to be settled as claimed by defendants upon notice of three days unless the plaintiff then shows cause to the contrary.

The order to be settled by Landon, J., and error if any in the statement to be corrected and as thus settled judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.


text:
    The Consumers’ Gas & Electric Light Co., App’lt, v. The Congress Spring Co. and Hiram W. Hays, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    1. Municipal cobpobations—Obdinances.
    The acts of municipal bodies in passing ordinances or administrative regulations cannot be impeached collaterally.
    3. Same—Pleading.
    In an action to restrain defendants from cutting down an electric light pole erected in pursuance of permission granted by the village authorities, the answer alleged that the grant, if any was made, was unauthorized and illegal, and was obtained from the trustees through fraud and by means of fraudulent and illegal inducements and wrongfully, and the same was not a legal or valid consent, and did not authorize any poles or wires to be placed in the streets. Held, that the validity of the grant of the privilege could not be thus assailed, and this part of the answer was invalid as a defense.
    3, Same—Streets—Electric liqht poles.
    The taking of land for public use as a street includes also the right to use it for electric lighting.
    Appeal from an order of the special term overruling plaintiff’s demurrer to defendants’ answer and from the judgment entered thereon.
    The complaint alleges the incorporation of plaintiff for the purpose of supplying electric light in the village of Saratoga Springs for public and private uses ; that the board of trustees of the village prior to the acts complained of duly granted to the plaintiff the right and franchise to set its poles and string its wires in and along the streets of the village, the said board being clothed with all- the authority of commissioners of highways over the said streets; that the defendant, the Congress Spring Company, consented that the plaintiff erect a pole on Putnam street at the place described, opposite and in front of its premises, upon which to string its wires for the purpose of supplying light, as aforesaid, at a point on said street; that plaintiff thereafter erected a pole at such place and strung wires thereon for such purpose as a part of its system of lighting, and that the defendants cut down the pole and threaten to cut down any other pole which plaintiff may erect at the said point, and plaintiff demands judgment awarding an injunction and damages.
    The defendants by their answer, among other things, set up this separate defense:
    “ Allege upon information and belief that any consent, grant, right or franchise by the board of trustees of said village to plaintiff to set poles or string wires in and along the streets or alleys of said village, if any was granted or conferred as alleged, was unauthorized and illegal, and was obtained from said board of trustees and the individuals, or some of them, composing said board of trustees, through fraud and by means of fraudulent and illegal inducements and wrongfully; and the same was not a legal or valid consent, grant, right or franchise, and did not ■authorize any poles or wires to" be placed in said streets or alleys, and any person assuming to act in relation to the premises thereunder, by placing poles or wires in or through Putnam street, wrongfully entered upon and trespassed upon defendants’ said property and was a wrongdoer, violating defendants’ rights in its property aforesáid.”
    The demurrer is upon the ground that such defense is insufficient in law upon the face thereof. The trial court overruled the demurrer, and from the order and judgment thereon this appeal is taken.

      W. P. Butler, for app’lt; D. E. Wing, for resp’ts.
   Landon, J.

—We think the demurrer well taken. The answer does not deny that the board of trustees of the village granted plaintiff consent to erect its poles and string its wires, or allege any fact tending to invalidate such grant of consent, except the allegation that the same was obtained “ through fraud and by means of fraudulent and illegal inducements, and wrongfully.’ Passing the question whether this is a sufficient allegation of fact, public policy forbids that the acts of municipal bodies in passing ordinances or administrative regulations should be impeached collaterally. Porter v. Purdy, 29 N. Y., 106.

The ordinance of the board of trustees is a legislative act Duryee v. Mayor, 96 N. Y., 477; Mayor v. Third Ave. R. R. Co., 16 N. Y. State Rep., 122. The authority to pass it exists in pursuance of the delegation by the legislature to the board of trustees of the village of such local legislative powers as may be suitable to their proper organization, for which the legislature is required to provide, Const, art 8, § 9, and is therefore an exercise of the sovereign power of the state. Whatever powers may exist in the judiciary to vacate such action for fraud and corruption in its exercise, it would, as said by Oh. J. Marshall in Fletcher v. Peck, 6 Cranch, 87, “ be indecent in the extreme, in a private action between two individuals, to enter into an inquiry respecting the corruption of the sovereign power of the state” See Baird v. Mayor, 96 N. Y., 567, 581. The validity of the grant of the privilege cannot thus be assailed, and this part of the answer is invalid as a •defense. Every other part of the answer demurred to is so dependent upon this part that it falls with it

The defendants contend that because the license given by the trustees operates to permit the plaintiff to invade their lands and thus prejudice their property rights, the defendants should be permitted to allege anything which avoids the license. The contention is based upon a false assumption. The license in question comes from the .sovereign power. Sovereign power is limited by constitutional restraints, and the defendants’ protection against the invasion by the sovereign of private rights exists only in such restraints. Private property shall not be taken for public use without compensation. But the property in question has been taken for public use, and presumably compensation was long since made, or waived. The legislature may authorize the use of the streets for other purposes than travel, and electric lighting is one of such purposes. Electric Construction Co. v. Heffernan, 34 N.Y. State Rep., 436.

It thus enlarges the usefulness of the public right; it does not invade any right reserved by the defendant When the street was first acquired for public use this particular right was acquired, though long unexercised. The license given by the trustees is thus within the public right, and this is merely the first time that it has thus been exercised. Of course if the exercise of this right, owing to peculiar and special circumstances, should injuriously affect the lot of the defendants and thus injure property which the public have no right to invade, or should be solely for private purposes, defendants might have a right to protection or compensation which the present pleadings do not present

The judgment and order should be reversed; with costs, and the demurrer sustained, with costs.

Learned. P. J., and Mayham, J., concur.


text:
    James Donohue, Resp’t, v. Hiram Whitney, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Boundaries—Evidence.
    In an action which involves the location of the boundary between the parties, where their deeds bound them by a specified line, but contain no data by which to locate it, a map thirty years old made upon a survey of the premises for plaintiff’s grantor at the time of his conveyance, evidence of the acts and declarations of the surveyor, since deceased, in pointing out to plaintiff the corners of his lot according to the survey, certified copies of older maps of the patent showing such line and recorded with the secretary of state, and a county map, widely distributed through the county, a copy of which was in defendant’s possession, are admissible as. the best obtainable evidence and as indicating the general diffusion of the reputation of the location of the line and defendant’s knowledge thereof.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict upon the trial at the Ulster circuit.

      John E. Van Etten, for app’lt; Wm. Lounsbery, for resp’t.
   Landon, J.

—The plaintiff recovered a verdict against the defendant for wood and timber which the defendant cut upon the land in dispute in this action. Both parties claimed to own it. Their lands adjoin, the “Livingston line” being the boundary between them. The land is wild, rugged and unfenced, and situate upon a mountain side in the town of 'Shandaken, Ulster county, being part of Great Lot No. 8 of the Hardenbergh patent, granted in 1708, and subdivided in 1749, Great Lot No. 8 being again subdivided in 1779 and partitioned among the heirs of Robert R. Livingston. No deed, however, earlier than 1817 was read in evidence. It seems that prior to that date the more southerly part of Great Lot No. 8, on the southwesterly side of the “Livingston line,” was acquired by Lucas Elmendorf, and the more northerly part on the same side of the line by John Duer, and that the land upon the northeasterly side was acquired, the more southerly part by Peter R. Livingston and the more northerly part by Alida Livingston. The plaintiff’s land is part of the Elmendorf tract and the defendant’s part of the Peter R. Livingston tract The deeds of neither party contain sufficient data to enable a surveyor to go upon the land and locate the Livingston line. He must have recourse to other sources of information in order to do this. The plaintiff read in evidence the deed of his grantor, Russell, to the Wey Brothers, made in July, 1856, of another parcel of land in the Elmendorf tract adjoining the plaintiff’s lot on the north and the Livingston line on the east Russell gave to plaintiff on the same date a contract for plaintiff’s parcel, and gave him the deed thereof in 1858. In 1856 Russell procured Brodhead, a surveyor of experience in that region, now dead, to make a survey and map of the two parcels of land sold, or about to be sold; one to the plaintiff and the other to the Wey Brothers. Brodhead made the survey and map and went around the plaintiff’s parcel and pointed out the corners to him as he had established or identified them. This map has since been in the possession of the surviving Wey brother, who has ever since claimed to own the land described in his deed and delineated upon the map. The Wcy tract thus deeded and mapped extends for at least two miles and a half along the Livingston line, and the plaintiff’s adjoining land is represented upon the map as extending along the line half a mile further. By the aid of this map and the deed of Bussell to Wey Brothers, and the deed of Bussell to the plaintiff, the plaintiff’s surveyor testified that he located the Livingston line and identified it by some of the monuments which he found on the ground as indicated on the map. The defendant objected severally to the deed and map upon the trial and now urges here, as he. did there, that they were inadmissible.

"Undoubtedly they are res inter alios so far as he is concerned, and they cannot be used to contradict or disparage his title. Such is not their function here. They are used because they seem to afford the best obtainable description of the location of the Livingston line, and thus enable us to understand what the deeds of the parties mean when they employ that line to bound the respective parcels. The map was made before any contention arose; was made by an expert; was intended to delineate the line for three miles of its length; was made thirty years ago, and itself affords the data to test to a considerable degree its own accuracy. So far as the defendant; is concerned, it is in the nature of hearsay ; but hearsay, in the absence of better evidence, is often used to determine boundaries.

The theory is that what common fame or reputation declares to be the boundary at the time a deed is made referring to such boundary, defines the boundary as the deed speaks of it, in the absence of any terms in the deed or chain of title indicating any other meaning. Brandt v. Ogden, 1 Johns., 156; S. C., 3 Caines, 6; Boardman v. Lessees of Reed, 6 Peters, 328; Sparhawk v. Bullard, 1 Metc., 95; Morris v. Callanan, 105 Mass., 129; 1 Phillips Ev., Cowen, Hill & Edwards’ notes, 219, 230. The acts and declarations of the surveyor Brodhead, now deceased, pointing out to the plaintiff his corners described in his deed and indicated on the map, were for the like reason, in the absence of any ground of suspicion, admissible, and also because part of the res gestee of his possession. Partridge v. Russell, 18 N. Y. State Rep., 685. The English cases, which are more strict than our own in this particular, admit hearsay to determine a private boundary when it is identical with a public boundary, as of a hamlet, parish or manor. Thomas v. Jenkins, 6 Ad. & Ellis, 525. The Livingston line, six miles long, was of a quasi public nature.

Duly certified copies of a map of the patent made in 1815, and of another made in 1835, on file in the office of the secretary of state, upon which this line was drawn, were properly received in evidence for the same reason. A published county map made in 1874, widely distributed throughout the county, a copy of which was in the defendant’s possession, upon which the same line was drawn and the -lands of the parties indicated, was hardly admissible as evidence of ancient reputation, but we think was admissible as confirmatory of that reputation as otherwise established, and as indicating its general diffusion, and as bringing it home to the knowledge of the defendant

The maps read in evidence by the plaintiff and other testimony tended to show that there was a set off in the Livingston line at. the northeast corner of the plaintiff’s lot. If so it probably resulted from establishing the Livingston line along the Elmendorf tract by beginning at the southerly side of great lot No. 8 and running northerly as far as the Elmendorf tract extended, and by beginning at the northerly side of the great lot, and running southerly as far as the Duer tract extended; the two lines, which in theory ought to unite in the middle of the tract and form one straight line across it, separated and thus formed a set off. If this were so, then a line in the plaintiff’s deed described as running from one point to another along the Livingston line, would turn the corner made by the set off supposed, and would run on two courses. The court instructed the jury that if they were satisfied the facts were as indicated it would be proper for them to run between the two points mentioned as the beginning and end of the course, by following the line to the corner, turning the corner and" proceeding to the terminal point of the course. The instruction was clearly right

The plaintiff in testifying to his occupation of his land, and to-the facts respecting it, testified that one Patchin had several years ago encroached upon the locus in quo and cut some trees and that he had compelled him to desist. He had the right to show how far he occupied under his deed, and to do this to show what were the facts of his occupation.

The defendant on the argument offered to hand up the record of a deed which was not put in evidence upon the trial. This-we cannot receive. Although a record, it is new evidence, and to-introduce it now would be to present a different case from that tried below. We sometimes receive a record on the argument with like effect as if given upon the trial, but only to remove some objection based upon the non-production of the record, in a case where its absence on the trial or in the appeal book is a mere informality.

On the merits we see no ground to set aside the verdict.

Judgment affirmed, with costs.

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


text:
    Alexander R. Kerr, Commissioner of Highways, Resp’t, v. Mary Hammer, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    1. Highways—Encroachments.
    A certificate in proceedings to remove an encroachment on a highway stated that at a specified point the encroachment was thirty-six feet, “ which amount of encroachment continues for the distance of about one chain, when it gradually diminishes to twenty-three feet at the angle in said road,” the survey attached to the order of the commissioners ascertaining the road as used showed that the encroachment at the township corner was twenty-seven feet and twenty-three feet at the angle of the road, and that the line to which the fence would have to he removed was a straight one extending from a point twenty-seven feet north of where it then stood nearest the corner to a point twenty-three feet north of where it stood nearest the angle. Held, that the particulars of the encroachment were sufficiently stated.

      2. Same.
    A statement in the certificate that the encroachment was made by fences on defendant’s land is a substantial compliance with the requirement that it must state by whom the encroachment was made. After notice to remove an encroachment, its maintenance is equivalent to making it-.
    Appeal from the judgment of the St Lawrence county court, affirming the judgment of a justice’s court of the town of Edwards, entered upon the verdict of a jury of freeholders, adjudging the fence upon the south side of lands occupied by the defendant to be an encroachment upon the highway. The proceeding is instituted pursuant to 1 R S., m. p. 521, §§ 103, etc. (8th ed., 1388).

      Karl Bancroft, for app’lt; Wm. Neary, for resp’t.
   Landon, J.

—A highway upon the site of the present one, or within a rod or' two, appears to have existed for a longer time than any of the witnesses had knowledge. One witness, seventy-five years old, had lived within three-fourths of a mile of it' for sixty-five years. In June, 1859, the commissioners of highways of the town of Edwards, presumably in pursuance of § 1, tit. 1. chap. 16, of the first part of the Revised Statutes, 1 R S., m. p, 501 (8th ed., 1347), caused a survey thereof to be made and entered of record in the town clerk’s office. The section says that it shall be the duty of the commissionérs of highways “to cause such of the roads used as highways as shall have been laid out but not sufficiently described, and such as shall have been used for twenty years but not recorded, to be ascertained, described and entered of record in the town clerk’s office.” The survey thus made and entered of record describes the center line of the highway in question, and the commissioners added the following thereto over their signatures as commissioners:

“ We, the undersigned commissioners of highways of the town of Edwards, do hereby order that the considered distance of each of the lines described in the above survey of the road be the center line, and that the road be three rods in width.” It did not appear that this road had been originally “ laid out but not sufficiently described,” but did appear that it had been “ used for twenty years, but not recorded.”

The appellant is right in asserting that the power of the highway commissioners was limited to ascertaining the boundaries of the road according to its actual use for twenty years; that they had no right to alter or enlarge its boundaries. Ivory v. Town of Deerpark, 116 N. Y., 476; 27 N. Y. State Rep., 643. But whether the commissioners in 1859 altered or enlarged the boundaries of the road as it had been used for the twenty preceding years was a disputable Question of fact upon the trial, and the jury, we must . assume, found against the appellant.

The road in question was described in the survey as beginning. at the corner of four townships. There was formerly a post marking the corner, but it has disappeared, and the evidence was conflicting as to the exact location. The jury found the corner to be as located by the commissioner. We see no ground to reverse this finding.

Objection is made that the certificate made by the jury does not state the particulars of the encroachment, nor by whom made. The statute requires both statements. Sec. 107, 1 R. S., 522 (8th ed., 1389). The certificate adopts the particulars of the encroachment as stated in the order of the commissioner upon which defendant joined the issue which was tried by the jury.

The particulars of the encroachment are exactly given except in the following: thirty-two chains west from the corner of the four townships the encroachment is thirty-six feet, “ which amount of encroachment continues for the distance of about one chain, when it gradually diminishes to twenty-three feet at the angle in said road at the distance of thirty-six chains twenty-five links west from said township corner.”

By referring to the survey which is included in the order of the commissioner attached to the jurors’ verdict, it appears that the encroachment is twenty-seven feet at the township corner, and twenty-three feet at the angle in the road, and that the line to which the defendant’s fence is to be removed is straight, extending from a point twenty-seven feet north of where defendant’s fence stands nearest the corner to twenty-three feet north of where it stands nearest the angle in the road. Such being the case the particulars of the encroachment are so stated as to enable the defendant to proceed to remove it without danger of mistake. ■

The requirement of the statute that the jury must state in- their certificate by whom the encroachmen t was made must be reasonably construed. The certificate states it is made by the fences on la-nds owned and occupied by defendant. A rigid construction of the statute might defeat its purpose. The certificate shows by whom the encroachment is maintained. Its maintenance is in the nature of a nuisance, and after notice to remove, its maintenance is equivalent to making it. We think it is a substantial compliance with the statute.

While the jury were in consultation the justice stepped to the door of their room and asked the constable in charge for a paper belonging to the justice. The foreman then asked him if they could see the evidence, and the justice answered: Ro. Two or three questions were put to him by jurors, to which he replied that he could answer no questions unless the parties were present and agreed. He then withdrew. Ro harm was done or intended. This affirmatively appears, and the verdict should not be disturbed because of the harmless irregularity.

The judgment is affirmed, with costs. .

Learned, P. J., and Mayham, J., concur;


author: Learned, P. J. LANDON, J.

text:
    Patrick E. Walsh, Resp’t, v. The Mutual Life Ins. Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Insurance (Life)—Policy in favor of wife and children.
    Where a policy on the life of a husband provides for payment to the wife if living, and if not to the children or their guardian, and the wife dies before the husband, the proceeds do not go entirely to the children who survive the mother, but the share to which one who died before the mother would have been entitled to if living is payable to the representatives of such child.
    Appeal from interlocutory judgment overruling the defendant’s demurrer to the complaint and from the final judgment thereon.
    Davies, Short & Townsend (Julien T. Davies, of counsel), for app’lt; Franklin M. Danaher, for resp’t.
   Learned, P. J.

—The defendant issued, March 23, 1864, a policy on the life of Veis Traub in favor of Rica Traub, his wife, agreeing to pay the amount to her, “ for her sole use if living, in conformity with the statute; and if not living, to her children, or their guardian, for their use.” There were three children of Veis Traub and Rica Traub, viz. : Bessie Gross, Solomon Traub, Carrie Van Schaick.

Bessie Cross died intestate, April, 1886, leaving surviving her husband and two children.

Rica Traub died April, 1887.

Solomon Traub died intestate June, 1887, leaving his widow, Henrietta (now Heinzel), and two children; and Henrietta (now Heinzel) was appointed his administratrix Veis Traub died intestate July 2, 1890.

Carrie Van Schaick, his daughter, is living.

Henrietta Heinzel, administratrix as aforesaid, and Carrie Van Schaick, have assigned their claims to plaintiff.

One-third part of the amount payable on the policy has already been paid to Carrie Van Schaick, and one-third part to Henrietta Heinzel, administratrix. The plaintiff, as their assignee, now claims the remaining one-third.

The defendant admits on the argument that the two children of Bessie Gross, being grandchildren of Veis Traub and Rica Traub, are not owners of this third; but contends that either the executor of Bessie Gross, if she made a will, or the administrator, if she died intestate, takes their third as part of the estate of Bessie Gross, deceased.

The question arises on a demurrer to the complaint which states all the facts. And the defendant appeals from the judgment and order overruling the demurrer. It will be seen that the question is, under such a policy, what is the interest, if any, of the personal representative of a child who does before the mother. Does that part of the proceeds of the policy which would have gone to the child, if living, go to the representatives of such child; or do the proceeds go entirely to the children surviving the mother?

In U. S. Trust Co. v. Mut Ben. L. I. Co.,115 N.Y., 152; 24 N.Y. State Rep., 1, a policy was construed which was closely similar in language to this one now in question. The court said that, when the wife died before the husband, the only persons interested in the policy were her children then surviving, and the whole policy as a chose in action belonged to them. They held vested interests therein as they could in any other chose in action, payable at a future time. The court said, as the defendant here admits, that the grandchildren could not take. Row it is to be noticed that, while the court in that case spoke of the policy, upon the death of the wife, as belonging to children then living, yet in that instance all the children were living at the death of the wife. There was, therefore, no special meaning in the words “ then living.” It was true in that case that on the death of the wife the interest passed to the children then living, because there were noné who had died. The attention of the court was not directed to the question whether or not the representatives of a deceased child, if any, would have an interest.

The present policy contains a condition in respect to the wife, that the money is to be paid to her if living. Ro such condition is contained therein in respect to the children. It says that, if she is not living, the money is to be paid to her children ; but it does not.add “if living.” It, therefore, is a promise to pay to them, on the sole condition that the wife is not living at the death of the father. Suppose, then, that all the children had died before the wife, would it be said that there was no one to whom the money should be paid ? It has been decided, as above stated, that- tile money would not in that case be payable to the grandchildren. But would it not belong to the estates of the children, and thus beneficially, in many cases, come to the grandchildren ? Or would it be necessary to hold,.as must result from the plaintiff’s position, that the insurance company must in such a case retain the money for want of a payee ?

The decision that no interest went to the grandchildren was on the very ground that the contract was with the children. And the court expressly held that, if made with the children alone, it went to their representatives.

This is the case of a contract, not of a legacy. The company, for a good consideration, agrees that when A. dies it will pay a certain sum of money to B., if living, and if B. is not living, then that it will pay the money to 0. and D. and E., designating them not by name, but as the children of B. It is not disputed on either side that O., D. and E. take separate portions, and do not take jointly. What is there in such an agreement which makes the right of C., D. or E. dependent on their surviving B ?

A promise to pay a sum of money to a person on a certain contingency does not cease to be binding because the person dies before the contingency happens. The debt on the happening of the contingency is payable to his representatives.

The case of Whitehead v. N. Y. L. Ins. Co., 102 N. Y., 143 ; 1 N. Y. State Rep., 344, was on a question as to the power of the husband to surrender- policies of this kind. The matter of the respective rights of the wife and children was not before the court But the court, in speaking of the policies, says : “ They created a vested interest in the wife and also one in the children by force of the clause providing for payment to them if the wife should die before'the maturity of the policy.” Row, few things are more unsafe in legal discussions than to take up a sentence in an opinion and consider it as a decision, without reference to other parts of the opinion. And we only quote that sentence because a previous sentence in the same opinion has been cited to show that the wife “ had a vested interest in the policies,” and therefore the children could have no interest Again, that opinion says: “ These policies, therefore, at the moment of their execution, vested in the wife and children as the assured.” So that the opinion speaks as freely of the rights of the children as vested, as it does of those of the wife. There is nothing, therefore, in the opinion and in the decision in that case which determines the respective rights of the wife and of the children. Both are called vested, and as to neither was it necessary to decide what they precisely were.

Some argument has been made from decisions in respect to legacies. But a legacy is a different thing from a contract, such as this policy is. A legacy is the mere gift of the testator. If ineffectual, or if lapsed, the testator’s property goes to others entitled to take under rules of distribution. The whole question is one of dividing up the estate of the deceased.

But here we are to construe a contract. The claimants must take by virtue of the contract or not at all. And if, under any construction, there is no one to take, then the company keeps the money. The plaintiff insists that no one can take, unless he be living at the death of Veis Traub. This construction, as above suggested, results in holding that, if Rica Traub and the three daughters should have all been dead at the death of Veis Traub, then the company would not be required to pay anyone. A construction which leads to this result is certainly incorrect

It is true that in the opinion in U. S. Trust Co. v. Mut. Ben. L. I. Co., ut supra, the court, after giving a construction to the policy, says: “ If, however, we assume that we are wrong in this construction, then on the death of Mrs.' Finn the policy was payable to her children as a class,” etc. We do not, however, feel at liberty to assume that the construction given by the court was wrong. FTor do we think that the court intended to assert that the policy was payable only to those children who survived Mrs. Finn. The remark was intended to show that, even if the plaintiff in that case should urge such a view, still, “in no event could grandchildren be intended in that class.” Such was the view taken of that decision by Mr. Justice Patterson in Finn v. Mut. Ben. L. I. Co., M. S., Nov., 1890.

We do not think that the court intended to say that even a legacy to a class, where there are no words of survivorship, is always payable to those only who are living at the time of payment. Without discussing that question we refer to 2 Jarman on Wills, m. p. 76; Thebald on Wills, 383; Everitt v. Everitt, 29 N. Y., at 75, where Judge Denio says: “If futurity is annexed to the substance of the gift the vesting is suspended, but if it appear to relate to the time of payment only, the legacy vests instanter.” See Goebel v. Wolf, 113 N. Y., 405; 23 N. Y. State Rep., 176.

And even if we endeavor to apply that language of Judge Denio to such a contract as the present, we shall see that futurity is not annexed, to the substance of the contract, but relates to the time of payment only. The contract takes present effect, giving immediate rights to all the parties beneficially interested. As the court said in the Whitehead case: “ They (i. e., the wife and the children) had the right, if the husband failed to pay the premiums, to pay them themselves and so continue the policy in force.” If a child then had the right to pay the premiums, it had a present interest in the policy; a vested interest, although payment was future and contingent.

The right of the wife to payment of the amount secured is quite as contingent as that of the children. She certainly gets nothing if she does not survive the husband. Yet the courts speak of her rights as vested before his death. And there is no harm in the word, if it be properly understood. Certainly it is not inconsistent with a contingency as to payment. That is the case also as to the children.

The plaintiff cites the case of Lane v. De Mets, 13 N. Y. Supp., 347; 36 N. Y. State Rep., 798. But in that case there was a clause.that “if there be no such children surviving” the money should be paid to the personal representatives of the person whose life was insured. And the decision of the court was ■on this clause, holding that this indicated that the avails should go only to surviving children, and should form a part of the estate of the person whose life was insured, in case neither wife nor children survived. Ho such clause is in the present policy, and that case does not apply here.

And from that case we may readily see that if the parties to " this contract had desired to make the right of each child dependent on its surviving the father they would have said in the policy “to her children then surviving,” or would have used similar language.

In Hull v. Hull, 62 How., 100, the special term held that if a child died before the mother, the children of that child would take under such a policy in case the mother did not survive the father. Such seems to be the doctrine in Connecticut Continental Life Lns. Co. v. Palmer, 42 Conn., 60. How in the case of the U. S. Trust Co. v. Mut. Ben. L. I. Co., above cited, it was held that this was incorrect; and that as the grandchildren were not named in the policy, their names could not be put in. But in that case the court explains that the insurance could be made to a child, “ in which case, upon the death of the father, it would be payable to the personal representatives of the child, if dead.” And it was also said in that case that on the death of the wife the policy might be construed, and is payable precisely as if the children alone were mentioned therein. Therefore we may now construe this policy as if the children alone were mentioned in it Hence, as the court said, if this insurance were made to these children alone, it would be payable to their personal representatives, if they were dead. And if made to these three children it cannot be held that the death of one before the father would deprive the representatives of that child of its share. To hold that would be to ignore the object of such insurance.

So, too, in that same case the court said that if for the benefit of the wife alone, it would, if she died before the husband, be payable to her personal representatives. Thus we see that the court recognized the doctrine that the insurance was, in all these cases, payable to the personal representatives of the parties to the policy, if they died before the husband. Turning then to the Whitehead case, we find it distinctly stated that, in such a policy, the children have a vested interest, and that they and the wife are the assured with whom the contract was made. It follows, then, that the rights which the assured acquired by the policy passed to their personal representatives ; and the money would be payable to them unless by express language such payment depended on their surviving the party whose life is insured, and that contingency did not occur.

In Anderson v. Goldsmidt, 103 N. Y., 617; 4 N. Y. State Rep., 286, it was held that under chap. 248, Laws of 1879, a wife, with the consent of her husband, might assign such a pqlicy as the present. And the plaintiff argues that this shows that the interest of the children is merely contingent. But that decision was only a construction of the statute as it then existed. And the court remarked that the wife, in fact, survived the time when the policy matured, and therefore the contingency did not arise on which the money would be payable to the children. But the court recognized that the children would have had rights if the wife had not survived the time when the policy matured.

The case does not decide whether such rights belong to all the children, or to those only who survive the father. That question could not have been before the court. Whether, even under that statute, the wife can, by assignment, take away the rights of the children, we need not inquire. It is probably sufficient to say that she may assign her own rights, whatever they may prove to be.

Considering, then, the language of this contract, and also the object of such insurance, we are of opinion that Bessie Gross had, in her lifetime, an interest in the contract to the extent of one-third (subject, probably, to be diminished in extent by the birth of other children) ; that such interest would pass to personal representatives ; that such interest was, of course, subject to be defeated if Rica Traub survived Veis Traub, and that the plaintiff, as assignee of Carrie Van Schaick and Henrietta Heinzel, administratrix, is not the holder of the said one-third interest.

Judgment reversed, with costs, and judgment for defendant rendered, with costs.

LANDON, J.

—I am not without doubt as to the conclusion reached by the presiding justice. The propositions that when the wife died her children were, by the terms of the policy, substituted in her place; that no substitution could precede that event; that no right to substitution attached until the wife died, and, therefore, the dead child could not be substituted, nor her children or representatives, since neither were named in the policy, strike my mind with force.

Nevertheless, all the children might die first, the wife next, and the husband last, in which case there would, if the rule of* the special term prevail, be no payee; and because a construction ought to be given the policy, which would in the contingency supposed avoid such a result, I concur, not without hesitation.

Mayham, J., not acting.


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    The People ex rel. Orville Crouse, App’lt, v. John E. Leavitt, Sheriff, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    1. Bastardy—Order op filiation.
    In a bastardy proceeding brought in a county in which the poor are a town charge, the order of filiation required the defendant to pay a certain sum to the overseer of the poor “so long as said child shall continue chargeable to said county." Held, that the use of the word county instead of town was not prejudicial to the defendant, since the undertaking required of him was prescribed by § 851 of the Code, and the commitment recited that he was committed until he was discharged or gave an undertaking as prescribed by said section.
    2. Same.
    The order need not state to whom the sum for the support of the mother shall be paid, but such sum is to be included in the undertaking and is properly payable to the-overseer of the poor.
    Appeal from an order made by the county judge of Fulton county, dismissing a writ of habeas corpus and remanding the relator to the custody of the sheriff.

      Frank B. Townan, for app’lt; Philip Keck, for resp’t.
   Landon, J.

—The relator was committed to the jail of Frutón county by two justices of the peace, sitting in a bastardy proceeding instituted against him. The relator asked to be discharged because of alleged jurisdictional errors and defects in the order of the magistrates upon which the commitment was based.

Sections 850, 851, 852 of the Code of Criminal Procedure prescribe the practice and duty of the magistrates so far as the question presented is involved. Section 850.provides that: “If they determine that he is the father, they must make an order of filiation, spepifying therein the sum to be paid weekly or otherwise by the defendant for the support of the bastard; and if the mother be indigent, the sum to be paid by the defendant for her support during her confinement and recovery.”

The order herein is challenged as erroneous in two particulars.

Under the statute applicable to the support of the poor in Fulton county, each town is chargeable with the support of its own poor. Chap. 155, Laws 1886.

The order in question requires “ That the said defendant pay to the said overseer of the poor, for the support of the said bastard, the weekly sum of $1.50 so long as the said child shall continue chargeable to said county.” The use of the word “ county ” instead of “ town ” was in no way prejudicial to the relator, since the undertaking required of the relator is prescribed by § 851, and it appears by the commitment that the relator was committed until he should be discharged by the court of sessions “ or deliver an undertaking required by said justices as prescribed by § 851 of the Code of Criminal Procedure.” The addition, “so long as the said child shall continue chargeable to the said county,” was not required by the order to be inserted in the undertaking; no such provision is required by § 850 of the Code; it imposed no burden or penalty upon the relator, and subjected him to no illegal requirement It was, therefore, harmless surplusage.

The order of the magistrates further stated: “We finding the said mother is in indigent circumstances, we determine and order that the said defendant pay to the said -for the support of the said mother during her confinement and recovery therefrom the sum of fifteen dollars.” It is not stated in the order to whom the sum is to be paid. Section 850 does not require that it shall be so stated in the order. It was, however, properly payable to the overseer of the poor of the town. Section 851 requires that the undertaking to be given shall embrace this sum, in addition to the weekly allowance. The relator was thus instructed that it should be included in the undertaking which the order required to be given to the overseer of the poor, and the commitment recites in substance that such was the requirement of the order. The order is simply defective in appearance, but not in legal substance. It certainly imposed no illegal burden upon the relator, nor left him in ignorance of the means by which he could escape commitment.

The magistrates in their order certified the costs of arresting the •defendant and of the order of filiation as $43.20 and required the relator to pay them. The commitment recites that he refused to pay them, but the commitment does not require their payment as the condition of relator’s discharga In this respect less was required than ought to have been exacted.

Hothing has been required of the relator in excess of the jurisdiction of the magistrates to impose, and he has been favored by the omission of an exaction which ought not to have been waived. The order of the magistrates is not invalid because it •contains inoperative and unnecessary words, or omits what the law implies but does not require to be expressed.

Order affirmed.

Learned, P. J., and Mayham, J., concur.


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    Delia Crate, Resp’t, v. Jarvis Decora, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    1. Slander—Verdict.
    In the absence of anything to show that the jury were actuated by passion or prejudice, a verdict for §1,500 in a slander case will not be set aside as excessive on the ground of the humble position and fortune of the parties, where the jury were instructed to consider their standing and circumstances.
    8. Same—Appeal.
    The exclusion of a paper on the ground that it did not appear to refer to the time to which the evidence was directed cannot be taken advantage of on appeal where counsel did not show on the trial, or ofEer to show, facts tending to connect such paper with the matters in evidence.

      Appeal from, a judgment entered for plaintiff upon the verdict of a jury upon the trial at the Clinton circuit.

      S. L. Wheeler, for app’lt; Palmer, Weed & Kellogg, for resp’t.
   Landon, J.

—The defendant repeatedly spoke the slanderous words imputing unchastity to the plaintiff. The court charged the jury that the only question was one of damages, and the jury rendered a verdict of $1,500. The defendant says this is excessive, and founds his claim largely upon the humble position and fortune of the parties. The court instructed the jury to consider the standing and circumstances of the parties. The jury of the county, no doubt, gave to these matters much better consideration than we can, and as we see nothing to indicate that the jury were actuated by passion, prejudice or unfairness, we do not feel at liberty to interfere.

The defendant offered in evidence a book in which the plaintiff had written to the effect that she had said enough to the plaintiff, “ it was a satisfaction to me to tell him the truth; that he was a whore house runner. ” This was excluded, upon the ground that it did not appear to refer to the time to which the evidence was directed. If, ás the defendant now insists, the court was mistaken, the counsel should have called his attention to the facts tending to connect this writing with the matters in evidence. If the paper referred to matters subsequent to the slanders uttered by defendant, it did not provoke them; if prior to or contemporaneous with them, the defendant should have supplied the proof or asked leave to do so. The paper was treated by the court as if it did not speak of the res gestee of the matters in issue, and the defendant did not show, or offer to show, that the court was mistaken.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.


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    James H. Chadwick, Resp’t, v. William Brewsher, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    MASTEB AND SEBVANT—NEGLIGENCE.
    Plaintiff, while in the employ of defendant, was injured by the fall of a " painter’s scaffold” on which he was at work. It appeared that the roof from which it was suspended was a valley roof; that when first put up, plaintiff fastened the planks on which it hung, and was told by defendant that it was not necessary; that it was subsequently removed by defendant, who did not tie it. He Id, that, although plaintiff knew as much about how the planks were placed as the defendant did, he had a right to rely on the latter’s superior knowledge as to the latent dangers attending their arrangement, and, in view of the assurance given, was not guilty of contributory negligence in continuing to work on the scaffold.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict upon a trial at the Albany circuit
    The plaintiff was a journeyman house painter in the employ of the defendant, who was a master house painter. Plaintiff brought this action to recover damages because of injuries sustained by him in consequence of the fall of a scaffold upon which he stood while engaged in the defendant’s service. The defendant with his workmen, of whom plaintiff was one, on the 1st day of July, 1889, was painting the exterior walls of a brick building in the city of Albany, 65 feet front, 165 feet deep and 24 feet high, having a valley roof descending from the outer edges of the cornice at the top of the exterior walls toward the center. The plaintiff and another workman were supported by a “ painter’s scaffold,” suspended by two ropes, each attached to the end of a separate plank lying flat upon the roof, with the end projecting beyond the cornice eight inches. Bach plank was about sixteen feet long, two inches thick and fourteen inches wide. The plank was not fastened to the roof except by its weight, and its declining position down the slope of the valley roof. One of these planks came off the roof, causing the scaffold upon which •the plaintiff rested to fall, and plaintiff was injured. The scaffold was such as is commonly used by painters. When the roof is flat, or, if a valley roof, the decline towards the middle is slight, it is customary to fasten the planks either by putting weights upon their inner extremity, or by tying them. The plaintiff had been engaged upon this building six days; the defendant was also personally engaged in the work; he had worked from this scaffold. When the scaffold was first hung it was on the south side of the building; both plaintiff and defendant then hung it, and plaintiff tied the planks to a chimney or brick ventilator, the defendant remarking that it was not necessary ; the roof declined less upon this side of the building than upon the side where the scaffold fell; the defendant subsequently shifted the scaffold several times and did not tie the planks or otherwise fasten them. The plaintiff was upon the roof several times when the platform was shifted and he testified that all the while he was working upon it he1 knew it was not tied. The plaintiff had been a painter about fifty years; the defendant about thirty-eight years.

      Wm. P. Rudd, for app’lt; D. C. Herrick, for resp’t.
   Landon, J.

The evidence shows that the defendant, the master, adjusted the planks from which the scaffold was hung and did not fasten them to the roof, and that in consequence one of the planks came off the roof, causing one end of the scaffold to fall, with injury to the plaintiff as the result The verdict is to the effect that the plaintiff was injured in consequence of the negligence of his master. This verdict must stand unless the plaintiff is chargeable with contributory negligence. The plaintiff knew how his master had left the planks which supported the scaffold, and made no complaint or comment. But when the scaffold was adjusted several days before, the plaintiff, in the presence of the defendant, tied the planks. The defendant then said it was unnecessary to tie them; that they would hold without tying all that could be placed upon the scaffold. They were not thereafter tied. We think the verdict may be upheld upon the ground that though the plaintiff had full knowledge of the facts, he did not know, as fully as his master was chargeable with knowing, the danger indicated ; that he was put off his guard by his master’s assurance of safety, and that he relied and had the right to rely, in view of his lack of any knowledge of danger, upon what he supposed to be the better opinion of his master. The law assumes that the master knows, or ought to know, more than the servant about the risks peculiar to the place where he assigns him to labor and to the appliances used in performing it, and in any event owes him the duty to use reasonable care to guard him against danger from either. The fact may be shown in exculpation of the master, that the servant had the superior knowledge and. was therefore employed, or that he had ample knowledge of the risks, and without any urging on the part of the master volununtarily assumed them, knowing that the master, from motives of economy or in reliance upon the extra care and ample knowledge of the servant, declined to use any further safeguards or postponed their introduction. Marsh v. Chickering, 101 N. Y., 396, and Sweeney v. Berlin, etc., Co., 101 N. Y., 520, cited by the defendant, illustrate these rules.

In the first case the servant was employed to light lamps in front of his employer's building. He used a ladder to mount up to the lamps. He had asked his employer for a ladder hooked and spiked. He was told to get such a ladder. He got a new ladder, and his employer promised to have hooks and spikes put on it, but did not do it, and the servant used it as it was until it slipped on the snow and injured him. The court assert the rule of the better knowledge of the master, but hold that in the case stated the servant's knowledge was, with respect to the ladder and its safety, equal to that of the master, as it obviously was. Suppose that when the servant asked to have hooks and spikes placed upon the ladder, the master had answered, “ It does not need them; it is safe as it is." The case would have been different, and more nearly like the one before us.

Sweeney v. Berlin, etc., Co., 101 N.Y., 520, was a case in which the servant knew as much about the risks of the machine as his master did, but nevertheless assumed them without being urged and without being put off his guard. He was not allowed to recover. Suppose the master, when the servant pointed out the danger, had said there was none, and thus put the servant at ease respecting it The result would have been different.

Here we may assume that the plaintiff knew as much about how the planks were placed as his master did, but that he did not know as well as his master did the danger which was latent in such an adjustment of them. It is one thing to know the visible conditions, and may be quite another to know what they indicate. In the present case the master assumed to know, and by virtue of his assumed superiority of knowledge he dispelled his servant’s apprehensions.

McGovern v. Railroad, 123 N. Y., 280; 33 N. Y. State Rep., 416, is a recent application of ■ the rule. There the servant from his long employment must have known, if his intelligence was normal, fully as much about the danger as his master did. But the court held that he had the right to assume that his master in directing him to enter the bin, which proved to be a. death trap, knew more about it than he did. His master in that case did not, as in this, tell him it was safe, but the court held he had the right to infer that his master thought it safe because he gave the order. In the present case the jury had the right to find that if the master had not interposed his assumed superior knowledge the plaintiff would not have taken the risk.

The judgment should be affirmed, with costs.

Learned, P. J., and Mayham, J., concur.