text:
    John B. Cornell et al., Appellants, v. John Roach et al., Respondents.
    The duty imposed upon manufacturing corporations by the General Manufacturing Act (§ 12, chap. 40, Laws 1848), of making and filing an annual report is a corporate duty, to be discharged by making a report, signed by the president and a majority of the trustees ; it is not a duty cast upon the trustees as such, or in their individual capacity.
    In an action against trustees of a manufacturing corporation to recover a debt of the corporation because of a failure to make and file a report for the year 1877, four of the defendants joined in an answer, one count of which averred that said defendants failed to make a report for the year 1873, and for each year thereafter, and that more than three years had elapsed since any penalty or claim arose against them in favor of plaintiff. The number of trustees of the corporation was not alleged. On demurrer to this count, held, that it was defective, in that it did not aver that defendants were trustees in 1873, or thereafter, previous to 1877; nor did it allege any default by the corporation prior to 1877, as if it was to he assumed that defendants were trustees, still it did not appear and could not be assumed that they constituted a majority of the board, and the corporate duty might have been performed without their joining in the report.
    Where a debt against such a corporation owned by a trustee thereof is assigned by him absolutely for value, the assignee, on a default in making and filing a report subsequently occurring, may proceed against trustees to recover the debt, although the assignor continues to be a trustee up to the time of the default.
    (Argued January 21, 1886;
    decided February 9, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 25, 1883, which affirmed a judgment in favor of the defendants answering, entered upon an order overruling a demurrer to two counts of the answer, and dismissing the complaint.
    This action was brought by plaintiff as creditor of the .¿Etna Iron Works, a corporation organized under the General Manufacturing Act, to recover against defendants, as trustees of the corporation, the amount of its indebtedness to them, because of failure on its part to make and file an annual report for the year 1877.
    The indebtedness alleged was the amount of certain bonds-issued by the company. Four of the defendants joined in' the answer, two counts of which were as follows:
    “For á fifth and separate defense these defendants allege that the bonds described in the complaint herein, if valid, were issued to and held by their co-defendant, Birdsall Cornell, prior to said bonds having come into the possession of the plaintiffs; that said Birdsall Cornell had no right nor valid claim under the statute, chapter 40 of the Laws of 1848, and its amendments, nor otherwise, against these defendants, his co-trustees, founded upon said bonds or upon any indebtedness, if any, of said corporation, lo him for any failure to make or publish or file any annual report since January 1, 1877, or since any time, and that the plaintiffs never became possessed of, nor entitled to, any such claim, right or penalty founded upon said bonds, by assignment, or in any way.”
    “ For a ninth and separate defense these defendants allege that these defendants failed to file any annual report of said corporation within twenty days after the 1st day of January, 1873, and that they filed none in January, 1874, nor in 1875, and none in January, 1876, and that they have filed no report whatever since the 1st day of January, 1873, and that before this action was begun, which was on or about December 22, 1879, more than three years had elapsed from the time when any penalty or claim whatsoever, if any, had arisen in plaintiffs’ favor against the defendants herein.”
    To these two counts plaintiffs demurred.

      Tallmadge W. Foster for appellants.
    Plaintiffs upon the transfer of the bonds to them became creditors of the JEtna Iron "Works, and the assignment to them of a debt owing by the corporation carried with it all rights and remedies for its recovery and collection. (Bolen v. Crosby, 49 N. Y. 183-187.) For any default in filing the report occurring prior to the transfer of the bonds, the then trustees would not be liable if plaintiffs’ assignor were a trustee at the time of such default. (Knox v. Baldwin, 80 If. Y. 610; Briggs v. Easterly, 62 Barb. 51; Estes v. Burns, 37 Supr. Ct. 1; Bronson v. Bimock, 4 Hun, 614.) A cause of action arises "upon each default under the statute, and the statute of limitations begins to run as to each default from the time of such default. (Nemmons v". Tappom, 2 Sweeney, 652; Anderson v. Speers, 8 Abb. If. G. 382.) The general purpose of section 12 of the act of 1848 (Chap. 40) is to provide authentic information to creditors of the company and those dealing with it of its financial condition at fixed recurring periods, so as to enable them to act intelligently. (Cameron v. Seama/n, 69 If. Y. 401; Bruce v. Platt, 80 id. 386.)

      George W. Van Siclen for respondents.
    The right to sue defendants for a default under section 12 of the act of 1848 (Chap. 40) did not revive and continue upon each subsequent and successive neglect to file a report after the first, but was exhausted by a single default, and the statute commenced to run at that time. (Losee v. Bullard, 79 N. Y. 404; Trinity Church v. Vanderbilt, 98 id. 170.) As plaintiffs’ assignor was himself a trustee he had no right of action for a penalty against his co-trustees and could assign none. (Knox v. Baldwin, 80 N. Y. 610.)
   Andrews, J.

The duty imposed upon manufacturing corporations by the twelfth section of the act of 1848 (Chap. 40), to make a report, is a corporate duty, to be discharged by making a report signed by the president and a majority of the trustees. The duty is not cast upon the trustees, either as such, or in their individual capacity. The section makes it the duty of the company to make the report, and provides for the manner of performing it. The act, as amended in 1860, provides that such corporations shall have not less than three nor more than thirteen trustees. It is evident therefore that a report made by a corporation organized since the act of 1860, having the full number of trustees thereby authorized, if signed by seven trustees, is, in that respect a valid report. So also of a corporation previously organized which under the authority of the act of 1860 has increased its number of trustees to thirteen. The original act required that there should be not less than three, nor more than nine trustees. (§ 3.) A corporation previously organized, which has not availed itself of the act of 1860, if there were nine trustees, could make a report signed by five trustees. It does not appear whether the .¿Etna Iron Works was organized before or after 1860, or of what number the trustees consist. The ninth defense alleges that the defendants, comprising four persons, failed to file a report in 1873, and in each year thereafter, including 1876, and that more than three years had elapsed prior to the commencement of the action, after the penalty for not filing the report, if any, had been incurred. This defense was demurred to on the ground that it was insufficient in law. . The complaint counts upon a failure of the .¿Etna Iron Works Company to file a report in 1877. The ninth defense was intended doubtless to set up the statute of limitations. But it neither alleges that the four defendants were trustees at the time of the alleged defaults, nor that there was any default by the company in performing the corporate duty of making a report. If it coidd be held that it is impliedly averred that the defendants were trustees prior to 1873 (Marie v. Garrison, 83 N. Y. 14), the other objection taken cannot in this way be obviated. The allegation that the defendants failed to make or file a report in 1873, and the following years prior to 1877, maybe true, and yet the corporate duty of making a report may have been performed by a report'made and signed by a majority of the trustees; since if there were nine or more trustees, a report signed by the trustees other than the defendants, would have been a compliance with the statute. There being no averment as to the number of trustees, it cannot be assumed that the defendants comprised a majority of the board. We think, therefore, the demurrer 'to the' ninth defense was well taken.

The fifth defense does not allege that the title of the plaintiffs to the bonds, as assignees of Birdsall Cornell, one of the trustees, accrued subsequent to the default alleged, or that the assignment was not absolute. It is not necessary, therefore, to consider whether if the bonds were assigned as collateral security only, a default of the company to make a report occurring subsequently to the assignment, would be available to the assignee. It cannot however he doubted, that when a debt against a corporation, owned by a trustee, is assigned by Mm absolutely for value, the assignee, on a default by the company subsequently occurring to make a report, may proceed under the twelfth section although the assignor continued to be a trustee up to the time of the default. The fifth defense was defective irrespective of any other question for the omission to aver that this default occurred prior to the accrmng of the plaintiffs’ title. It results, therefore that the judgment overruling the demurrer should he reversed, and judgment entered for the plaintiffs, with liberty to the defendants to answer within twenty days on payment of costs.

All concur.

Judgment accordingly.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    Bianca Hexamer, Appellant, v. William H. Webb, Respondent.
    la order to establish the liability of one person for an injury caused by the negligence of another, it is not enough to show that the latter was at the time acting under an employment by the former ; it must be shown in addition that the employment created the relation of master and servant.
    Defendant employed oneB., who was engaged in “the roofing and cornice business,” to make some repairs to the cornice of his hotel, in the city of Hew York. The defect was pointed out, but no price or plan for doing the work was specified; the method of repair and the means to be employed being left entirely to the judgment of B., who agreed simply to remedy the defect. In doing the work the employes of B. suspended a ladder from the roof of the hotel, upon which planks were placed to serve as a scaffold. A gust of wind caused one of these planks to fall; it struck and injured plaintiff, who was passing at the time. Defendant was not in the city while the repairs were in progress,, and had no knowledge of the manner in which the work was being done. In an action to recover damages for alleged negligence causing the injury,
      held, that the complaint was properly dismissed; that the relation of master and servant did not exist between the defendant and B., but the latter was an independent contractor, and the men employed were his, not defendant’s servants; also that it was immaterial that the work was charged for by the day.
    It appeared that the hotel was separated from the sidewalk by an area fifteen feet wide. Held, that the scaffold thus suspended was not a nuisance, nor was it violative of a city ordinance prohibiting the hanging of any goods or other things in front of a building at a greater distance than one foot.

      It seems the ordinance does not apply to a temporary structure erected for the purpose of repairing a building.
    (Argued January 22, 1886;
    decided February 9, 1886.)
    Appeal from judgment of the G-eneral Term of the Court of Common Pleas in and for the city and county of Hew York, entered upon an order made January 14, 1884, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial.
    The action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence.
    It appeared that some work was being done upon the cornices of defendant’s hotel, in the city of Hew York, by men in the employ of one Burford, who carried on “the roofing and cornice business.” A ladder was suspended from the roof, upon which were two planks, fastened to the ladder by ropes; this furnished a scaffold for the workmen, which was shifted from place to place as the work progressed. The wind was blowing hard and cut the ropes by striking the scaffold against the building. As they were moving the scaffold a gust of wind raised the planks and they fell to the ground; one of them struck upon the sidewalk, bounded and hit the plaintiff, injuring her seriously. Hr. Burford was called as a witness for plaintiff. He testified that he sent the men to do the work at the request of the defendant; that the latter spoke to him two or three times about doing something to keep the pigeons away from the eaves, as they were becoming a nuisance and were injuring the building. The witness then testified, “ Finally, he told me he was going in the country, something must be done; I told him to make himself easy, I would do tlie best I could for it, and it was a very difficult place to get at, but I would do the best I could for him, do something.” This was all the contract. The witness sent in a bill after the work was finished, charging by the day for his workmen, and for the materials used.
    Further facts are stated in the opinion.

      I. T. Williams for appellant.
    The workmen, including Burford, were defendant’s servants. ' (S. & R. on Neg., §§ 70, 71, 76, 77, 98; Chicago v. Loney, 6 Ill. 383; Arc. F. Ins. Co. v. Austin, 69 N. Y. 470; Blake v. Ferris, 5 id. 48; Pack v. Mayor, etc., 8 id. 222; King v. N. Y. C. R. R. Co., 66 id. 181; Town of Piermont v. Loveless, 72 id. 211; Murray v. Curry, L. R., 6 C. P. 24; Cincinnati v. Stone, 5 Ohio St. 33; St. Paul v. Sietz, 3 Minn. 297; Blake v. Thirst, 2 Hurlst. & N. 29; Morgan v. Bowman, 22 Mo. 538; Callahan v. B., etc., R. R. Co., 23 Iowa, 562.) The ladder or staging as suspended was a nuisance. (Dygert v. Schenck, 23 Wend. 446, 447; Congreve v. Smith, 18 N. Y. 79; Clifford v. Dam, 81 id. 53; People, ex rel. Riley v. Mayor, etc., 49 How. 277; Cook v. Vincent, 4 Hun, 320; Whart. on Neg., § 187; Robbins v. Chicago, 4 Wall. 657; Storrs v. City of Utica, 17 N. Y. 104; Serg. & Rawle on Neg., §§ 83, 84; Ellis v. Sheffield Gas Co., 2 El. & Bl. 767; Congreve v. Morgan, 5 Duer, 495; Creed v. Hartmann, 29 N. Y. 591; Ordinances of N. Y. City, § 52.) The work to be done being intrinsically dangerous, defendant, having authorized it, will be regarded as the author of the mischief resulting from it. (2 Thomp. on Neg. 901; Moak’s Underhill, 277; Sulzbacker v. Dickie, 51 How. Pr. 500; Glickauf v. Manser, 75 Ill. 289; Leslie v. Pound, 4 Taunt. 649; Creed v. Hartmann, 29 N. Y. 591; Irvin v. Wood, 4 Rob. 138; 51 N. Y. 224; Wood v. Luscomb, 23 Wis. 287.) The injury complain'ed of having resulted from an act it was absolutely necessary for Burford to do in order to accomplish the desired end, it may be said to have been directed to be done by defendant, and he is, therefore, liable for the injuries resulting. (Water Co. v.
      Ware, 16 Wall. 566; McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y. 178, 183.)

      George S. Hamlin for respondent.
    There is no presumption of negligence-in this case from the falling of the plank, because the facts in regard to its falling are all proved. (Burrill on Circ. Ev. 36; Miller v. Ship Resolution, 2 Dallas, 22; Mullen v. St. John, 57 N. Y. 571.) In order to establish negligence, it must be shown that there was an absence of that care which a man of ordinary prudence would have used under the circumstances. (Shearm. & Redf. on Neg., §§ 4, 12; Thomp. on Neg. 1234; Harvey v. Dunlop, Lalor, 193; Hatfield v. Roper, 21 Wend. 615; Brown v. Kendall, 6 Cush. 392; Losee v. Buchanan, 51 N. Y. 476; Stewart v. Hawley, 22 Barb. 619; Calkins v. Barger, 44 id. 424; 55 N. Y. 572.) In order to render a person liable for the negligence of others, it must appear affirmatively that the relation of master and servant existed. The burden is upon the plaintiff to show the existence of this relation. (King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 184.) The employment of Burford was the employment of a contractor and not of an agent or servant. (Shearm. & Redf. on Neg., § 76; Blake v. Ferris, 5 N. Y. 58; King v. N. Y. C. & H. R. R. R. Co., 66 id. 182; Devlin v. Smith, 89 id. 470; Rapson v. Cubitt, 9 Mees. & Wels. 710; Earl v. Calkins, 85 Penn. St. 240.) Burford was either a contractor or the agent of the defendant to hire the men and procure the materials for the performance of the work. (5 N. Y. 58.) The fact that no specific price was fixed for the work, and that, in his bill rendered, Burford charged the defendant for the services of his men by the day is immaterial. (Shearm. & Redf. on Neg., § 77; Corbin v. Am. Mills Co., 27 Conn. 280; Sadler v. Henlock, 4 El. & Bl. 570; Harrison v. Collins, 86 Penn. St. 53.) The persons actually engaged in the performance of the work were the servants of Burford, the contractor, and not of defendant. (Quarman v. Burnett, 6 Mees. & Wels. 509; Kelly v. Mayor, etc., 11 N. Y. 436; Park v. Mayor, etc., 8 id. 226; Blake, v. Ferris, 5 id. 57; McMullen v. Hoyt, 2 Daly, 271; Laugher v. Pointer, 5 Barn. & Cres. 560; Reedie v. London & Northwestern R. R. Co., 4 Exch. 244; Hobbet v. Same, id. 257.) The principle is the same in eases where the management of real estate is involved, as in other eases of negligence. (King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 181, 184, 185; McCafferty v. S. D. & P. M. R. R. Co., 61 id. 178, 185; Milligan v. Wedge, 12 Ad. & Ell. 737; Rapson v. Cubitt, 9 Mees. & Wels. 713; Reedie v. London, etc., R. R. Co., 4 Exch. 244; Hobbit v. Same, id. 257.) This action cannot be maintained on the ground of a nuisance created, maintained or authorized by the defendant. (Dickinson v. Mayor, etc., 92 N. Y. 588; Nolan v. King, 97 id. 571; Howard v. Robbins, 1 Lans. 65; Peckham v. Henderson, 27 Barb. 207; Griffith v. McCullum, 46 id. 561; Commonwealth v. Passmore, 1 Serg. & Rawle, 219; People v. Cunningham, 1 Denio, 533; Nolan v. King, 97 N. Y. 571; Davis v. Mayor, etc., 14 id. 524; 4 Exch. 257; Stevens v. Armstrong, 6 N. Y. 435; Reedie v. London, etc., R. R. Co., 4 Exch. 244, 256-257; Hobbit v. Same, id. 254; Moore v. Gadsden, 93 N. Y. 17; Knupple v. Knickerbocker Ice Co., 84 id. 491; Massoth v. D. & H. C. Co., 64 id. 532; McGrath v. N. Y. C. & H. R. R. R. Co., 63 id. 531.) The owner is liable where the thing contracted for is, of itself, the cause of the injury; and is not liable where the injury is caused by something collateral to that contracted for. (King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 185; Storrs v. City of Utica, 17 id. 104, 107; Pack v. Mayor, etc., 4 Seld. 222; Kelly v. Mayor, etc., 1 Kern. 432; Water Co. v. Ware, 16 Wall. 566; Ferguson v. Hubbell, 97 N. Y. 511.) The court will presume, in the absence of evidence to the contrary, that the defendant contemplated the accomplishment of the objects contracted for in a lawful rather than an unlawful manner. (Butter v. Hunter, 7 Hurlst. & Norm. 825, 832; Earl v. Beadleston, 10 J. & S. 294, 301.)
   Miller, J.

This action was brought by the plaintiff to recover damages alleged to have been sustained by means of the negligence of defendant’s agents and servants in making repairs and improvements upon the hotel of the defendant, situate in the city of New York. The alleged negligence consisted in fixing and seeming the staging used in performing the work, and the proof showed that the ladder used as a scaffold was suspended from the roof over the eaves of the hotel, and that upon it were placed planks which were used as a platform upon which the work-, men employed stood to do the work. This scaffold was moved from time to time around the bay windows from place to place. A heavy wind was blowing, and while shifting the ladder, a gust came, and the working of the wind and the grating against the cornice and wall cut the rope which held the planks on the ladder, and the wind turned the planks up so that they fell, and one of them in falling to the sidewalk bounded and struck the plaintiff. One Burford, who was engaged in the roofing and cornice business, was employed by the defendant to do the work, which was intended to obviate a difficulty caused by pigeons making their nests under the eaves of the roof of the hotel.

At the close of the testimony, a motion was made to dismiss ¡the complaint upon the ground, among others, that if there was proof of negligence, it was not the negligence of the defendant, or liis agents or servants, but of an independent contractor, and the plaintiff’s counsel then asked to go to the jury upon several grounds, which were stated and refused. The motion to dismiss the complaint was granted, and the defendant’s counsel excepted to the decision of the court.

The employment of Burford was of a general character, and the contract between him and the defendant was not restricted as to time or amount, or the specific services which were to be rendered. The accident occurred while Burford and Ms men were engaged in the performance of this work} and this action was sought to be maint'aiued upon the ground that the workmen employed, including Burford, were the servants of the defendant, and that the defendant as owner of the real estate was responsible to third persons for the carelessness, negligence or want of skill in those who were carrying on or conducting the business, and this whether the persons employed were working for wages or on contract. We think that the principle laid down has no application to the facts presented in the case at bar.

As a general rule, where a person is employed to perform a certain kind of work, in the nature of repairs or improvements to a building by the owner thereof, which requires the exercise of skill and judgment as a mechanic, the execution of which is left entirely to his discretion, with no restriction as to its exercise, and no limitation as to the authority conferred inhespect to the same, and no provision is especially made as to the time in which the work is to be done, or as to the payment for the services rendered, and the compensation is dependent upon the value thereof, such person does not occupy the relation of a servant under the control of the master, but he is an independent contractor,- and the owner is not liable for Ms acts or the acts of Ms workmen who are negligent and the cause of injury to another. If the owner of a bmlding employs a mechanic to malee repairs upon the same without any specific arrangement as to terms and conditions, such employment is in the nature of an independent con-1 tract, wliich imposes upon the employe the responsibility curred by acts of negligence caused by Minself or those who are aiding him in the performance of the work. It is absolutely essential in order to establish a liability against a party for the negligence of others, that the relation of master and servant should exist. In King v. N. Y. C. & H. R. R. R. Co. (66 N. Y. 181, 184) the rule applicable to such a case is laid down by Akdbews, J., as follows: “It is not enough in order to estab-v; fish the liability of one person for the negligence of another, to show that the person whose negligence caused the injury was, at the time, acting under an employment by the person who is sought to be charged. It must be shown, in addition, that the employment created the relation of master and servant between them. Unless the relation of master and servant exists, the law will not impute to one person the negligent act of another.”/ In the case considered, we think that by the contract between the defendant and Burford, the relation of master and servant! was not created. Burford was a mechanic engaged in a particular kind of business which qualified him for the performanee of the work which he was employed to do. By the arrangement with the defendant he was an independent contractor engaged to perform the work in question. He was employed to accomplish a particular object by obviating the difficulty which he sought to remove. The mode and manner in which it was to be done and the means to be employed in its accomplishment were left entirely to his skill and judgment. Every thing connected with the work was wholly under his \direction and control. Ho right was reserved to the defendant * to interfere with Burford or the conduct of the work./ It was the result which was to be attained that ivas provided for by the contract without any particular method or means by which it was to be accomplished. So long as the contractor did the work the defendant had no right to interfere with his way of doing it. The fact that no price was fixed and no specifications made as - to the work to be done did not render the con-1 tract one of mere hire and service, or create the relation of master and servant between the parties. It cannot, we think, be said that Burford did not agree to do the work required of him, and that no. contract was made after the subject-matter and the difficulties attending the ivork had been considered and talked about. Burford said he would try and do something, and the defendant replied he didn't care how he did it. The conversation had amounted in law to an agreement that Burford would perform all the, work that was required of him according to his own judgment as to what was necessary to be done to accomplish the object intended. He was an independent contractor, and the men employed by him were his servants and had nothing to do with the defendant. Burford was not the agent of the defendant in any sense in purchasing the material or in hiring the men to do the work. That the work was charged for by the day could make no difference, and did not alter the position which Burford occupied, in reference to the defendant, as an independent contractor. It did not give the defendant control over the job, or authority to hire or discharge the men, or render him in any way liable to them instead of Burford. It is very evident that the men employed were the servants of Burford, and, therefore, the defendant cannot be made responsible for their negligence. ^The test to determine whether one who renders service to another does so as a tractor or not is to ascertain whether he renders the service in the course of an independent occupation, representing the of his employer only as to the result of his work, and not as the means by which it is accomplished. / (Shearm. & Redf. on Neg., § 76.) In Blake v. Ferris (5 N. Y. 48, 58), within the rule last stated it is held that when a man is employed in doing a job or piece of work with his own means, and his own men, and employs others to help him, or to execute the work for him, and under his control, he is the superior who is responsible for their conduct, no matter for whom he is doing the work. To attempt to make the primary principal or employer responsible in such cases would be an attempt to push the doctrine of respondeat superior beyond the reason on which it is founded. Upon these authorities there would seem to be no question as to the character of Burford’s employment.

We are referred by the learned counsel for the appellant to numerous authorities as upholding the doctrine that Burford was not engaged in an independent employment, and that the defendant was, therefore, liable. After a careful examination we are satisfied that none of them sustain this position. Those cited from this State are certainly in a contrary direction. The other cases cited are clearly distinguishable from the case at bar, and establish no rule adverse to that which is supported, as we have seen, by the authorities in this State.

The claim that the ladder or scaffold suspended under thej eaves of the hotel was a nuisance is not well founded. The proof pn the trial did not show that the building was on the line of the street. It did show that the hotel was separated from the sidewalk by an area of fifteen feet. Without further proof it is difficult to see how the ladder or staging could be regarded as such an obstruction to the street as to constitute a nuisance. The action is based upon the ground of negligence, and there is nothing in the complaint alleging that the scaffold was suspended over the sidewalk or was in any respect sn.obstruction to the street. The gist of the action is negligence and unskillfulness in the construction of the scaffolding. It may he added that the scaffold itself was suspended for a legitimate purpose connected with the reparation and improvement of the building. It was not necessarily injurious and dangerous or an obstruction on the street, and if properly used might well be employed for the purpose intended. It could only become dangerous by being improperly constructed or by some wrongful and willful act. In view of all the facts it cannot, we think, be maintained that the scaffold necessarily was a nuisance.

IThe claim that the ladder was suspended in violation of the city ordinance is not well founded. The ordinance referred to prohibits the hanging of any goods, wares, or merchandise, or any other thing, in front of any building at a greater distance than one foot. It was aimed against the obstruction of the streets. It is not apparent that the ladder overhung the street, but even if such was the case, it was a mere temporary structure, erected for the purpose of repairing the building, and not an obstruction within the meaning and spirit of the ordinance, which, it is manifest, was directed against goods, etc., which were exposed for sale, or for the purpose of attracting public attention thereto. The construction contended for would prevent the use of scaffolds in the reparation of buildings, which never could have been intended.

It is also insisted that the work in question, was intrinsically dangerous,' and hence the party authorizing it would he liable whether he did the work himself or let it out on contract. The answer to this position is, that the work itself was not necessarily injurious or dangerous. It was merely necessary repairs or improvements for the benefit of the building, which, under ordinary circumstances, could be made without any serious results. The accident was caused by a gust of wind, which might well occur in the performance of any work of a similar character, and which could not well be guarded against or provided for. The act itself could only become dangerous and cause injury by some unforeseen circumstance, and the rule stated is not applicable.

There is, we think, no force in the position that the injury! complained of was the result of an act absolutely necessary for!1 the contractor to do in order to accomplish the desired end,j and the suspending of the ladder may, therefore, be said to have been done by the defendant, and he is liable, although it was done by an independent contractor. It is apparent, from the evidence, that the injury resulted, not from any thing contracted for by the defendant, but something collateral thereto. The defendant’s contract related to the improvement of the building alone. What was necessary to be done for that purpose, and the manner in which it should be done, rested with the skill and judgment of the contractor. The defendant was absent at the time, and had no knowledge of what was done or the manner in which it was done. The doing of the work and the mode in which it was to be accomplished were matters collateral to the contract between the defendant and Burford. For these the defendant could not be held responsible.

After a careful consideration of the questions presented, it follows that no error was committed by the judge in dismissing the complaint, or in his refusal to allow the case to go to the jury, nor did he err upon the trial in striking out the testimony given as to the declaration of one of the witnesses sworn upon the trial.

The judgment should be affirmed.

All concur.

Judgment affirmed.


author: Baeeorth, J".

text:
    The Duplex Safety Boiler Co., Respondent, v. C. Henry Garden et al., Appellants.
    The parties entered into a contract by which plaintiff agreed to alter certain boilers belonging to defendants, in a manner specified, the stipulated price for the work defendants agreed to pay as soon as they “ are satisfied that the boilers as changed are a success. ” The work was completed within the time agreed upon, and defendants then began and thereafter continued the use of the boilers without objection or complaint. In an action to recover the contract-price defendants claimed that the question as to whether the work was a success was one for them alone to determine. Held untenable; and that a simple allegation of dissatisfaction, without a good reason therefor, was no defense..
    Under such a contract, that which the law will say a contracting party ought in reason to he satisfied with, that it will say he is satisfied with.
    (Argued January 25, 1886;
    decided February 9, 1886.)
    Appeal from, judgment of the General Term of tbe Supreme Court in the second judicial department, entered upon an order made February 12, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict.
    This action was upon a contract, the nature of which, .and the material facts are stated in the opinion.

      John A. Ready for appellants.
    Whether defendants were satisfied that the boilers as repaired were a success or not was, under tbe contract, for defendants alone to decide, and it was incumbent upon plaintiff to show they were so satisfied. (McCarren v. McNulty, 7 Gray, 139; Brown v. Foster, 113 Mass. 136; Taylor v. Ames, 6 Lans. 280; Gray v. Cent. R. R. Co. of N. J., 11 Hun, 70; Huggans v. Fryer, 1 Lans. 276; Chadwick v. Lamb, 29 Barb. 518; Rich v. Milk, id. 516; Hall v. Simpson, 19 How. Pr. 481; Farrell v. Hildreth, 38 Barb. 178.)

      H. 0. Place for respondent.
   Baeeorth, J".

The plaintiff sued to recover $700, the agreed price, as it alleged, for materials furnished and work done for the defendants at their request. The defense set up was that the work was done under a written contract for the alteration of certain boilers, and to be paid for only when the defendants were satisfied that the boilers as changed were a success.” Upon the trial it appeared that the agreement between the parties was contained in letters, by the first of which the defendants said to plaintiff: “ You may alter our boilers, changing all the old sections for your new pattern; changing our fire front, raising both boilers enough to give ample fire space; you doing all disconnecting and connecting, also all necessary mason work, and turning boilers over to us ready to steam up. Work to be done by tenth of May next. For above changes we are to pay you $700, as soon as we are satisfied that the boilers as changed are a success, and will not leak under a pressure of one hundred pounds of steam.”

The plaintiff answered, “ accepting the proposition,” and as the evidence tended to show, and as the jury found, completed the required work in all particulars by the 10th of May, 1881, at which time the defendants began and thereafter continued the use of the boilers.

The contention on the part of the appellants is that the plaintiff was entitled to no compensation, unless the defendants “ were satisfied that the boilers as repaired were a success, and that this question was for the defendants alone to determine,” thus making their obligation depend upon the mental condition of the defendants, which they alone could disclose. Performance must of course accord with the terms of the contract, but if the defendants are at liberty to determine for themselves when they are satisfied, there would be no obligation, and consequently no agreement which could be enforced. It cannot be presumed that the plaintiff entered upon its work with this understanding, nor that the defendants supposed they were to be the sole judge in their own cause. On the contrary, not only does the law presume that for services rendered, remuneration shall be paid, but here the parties have so agreed. The amount and manner of compensation are fixed ; time of payment is alone uncertain. The boilers were changed. Were they, as changed, satisfactory to the defendants? In Folliard v. Wallace (2 Johns. 395), W. covenanted that in case the title to a lot of land conveyed to him by F. should prove good and sufficient in law against all other claims, he would pay to F. $150, three months after he should be “ well satisfied” that the title was undisputed. Upon suit brought, the defendant set up that he was “ not satisfied/’ and the plea was held bad, the court saying, “a simple allegation of dissatisfaction, without some good reason assigned for it, might be a mere pretext and cannot be regarded.” This decision was followed in City of Brooklyn v. Brooklyn City R. R. Co. (47 N. Y. 475), and Miesell v. Globe Mut. L. Ins. Co. (76. id. 115).

In the case before us the work required was specified, and was completed; the defendants made it available and continued to use the boilers without objection or complaint. If there was full performance on the" plaintiff’s part, nothing more could be required, and the time for payment had arrived ; for according to the doctrine of the above cases, “that which the law will say a contracting party ought in reason to be satisfied with, that the law will say he is satisfied with.”

Another rule has prevailed, where the object of . a contract was to gratify taste, serve personal convenience, or satisfy individual preference. In either of these cases the person for whom the article is made, or the work done, may properly determine for himself —if the other party so agrees — whether it shall be accepted. Such instances are cited by the appellants. One who makes a suit of clothes (Brown v. Foster, 113 Mass. 136), or undertakes to fill a particular place as agent (Tyler v. Ames, 6 Lans. 280), mold a bust (Zaleski v. Clark, 44 Conn. 218), or paint a portrait (Gibson v. Cranage, 39 Mich. 49; Hoffman v. Gallaher, 6 Daly, 42), may not unreasonably be expected to be bound by the opinion of his employer, honestly entertained. A different case is before us, and in regard to it, no error has been shown.

The judgment appealed from should be affirmed.

All concur.

Judgment affirmed.


author: Andrews, J.

text:
    Dennis Larmore, Respondent, v. The Crown Point Iron Co., Appellant.
    A person who goes upon the land of another, without invitation, to secure employment from the owner of the land, is not entitled to indemnity from such owner for an injury happening from the operation of.a defective machine on the premises, not obviously dangerous, which he passes in the course of his journey. Although it may be shown that the owner might have ascertained the defect by the exercise of reasonable care, he owes no legal duty to a stranger so coming upon his premises, which requires him to keep the machinery in repair.
    The case distinguished from one where the person injured is an employe of the owner, or where the injury is caused by some dangerous thing placed by the owner upon the premises, without giving warning thereof, or where the owner, in the prosecution of his own purpose or business, invites another, either expressly or impliedly, to come upon his land, who is injured by unreasonable or concealed dangers, or where a licensee is injured by some affirmative negligence.
    (Argued January 26, 1886;
    decided February 9, 1886.)
    Appeal from judgment of the General Term of the Supreme Court'in the third judicial department, entered upon an order made the second Tuesday of September, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial.
    This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence.
    The material facts are stated in the opinion.

      M. D. Grover for appellant.
    Defendant owed plaintiff no duty; he was, when injured, a trespasser or mere licensee upon defeudant’s premises. (Severy v. Nickerson, 120 Mass. 306; 21 Am. Rep. 514; Sullivan v. Waters, 14 Ir. C. L. 466; E. & T. H. R. R. Co. v. Griffin, 100 Ind. 221; 50 Am. Rep. 783; Wright v. Rawson, 3 N. W. Rep’r, 726; Dogget v. Ill. Cent. R. R. Co., 34 Ill. 284; Balch v. Smith, 7 H. & N. 723; Nicholson v. Erie R. Co., 41 N. Y. 534; Sutton's Case, 66 id. 243; Southcote v. Stanley, 1 H. & M. 246; Victory v. Baker, 67 N. Y. 366.)

      Matthew Hale for respondent.
    Defendant was bound to use reasonable care in the construction of the whimsey. (Shearm. & Redf. on Neg., § 590; Cowley v. Sunderland, 6 H. & N. 565.) The accident could not have happened without negligence on the part of defendant. (Shearm. & Redf. on Neg., § 13; Byrne v. Boadle, 2 H. & C. 722; Miller v. St. John, 57 N. Y. 567, 570; Kearney v. London, etc., R. R. Co., 5 Q. B. 411; L. R., 6 Q. B. 759; Caldwell v. N. J. Steamb't Co., 47 N. Y. 282, 291, 293.) Plaintiff was not, under the circumstances, a trespasser or a mere licensee. (Shearm. & Redf. on Neg., § 498; Beck v. Carter, 68 N. Y. 283; Corby v. Hill, 4 C. B. [N. S.] 556; Chapman v. Rothwell, EL, Bl. & EL 168; Smith v. Docks Co., L. R., 3 C. P. 326; Indermaur v. Dames, 2 id. 311; Holmes v. N. E. R. R. Co., 4 Exch. 254; 6 id. 123; Barry v. N. Y. C. R. R. Co., 92 N. Y. 289, 293.)
   Andrews, J.

We are unable to perceive, upon the evidence, that any duty rested on the defendant to keep the whimsey in repair for the protection of the plaintiff. The defendant for its own purposes, and in the prosecution of its business, had constructed a machine for raising ore from its mines. It consisted of an upright, or mast, in which a lever was inserted by the device of a mortise and tenon, and as an additional precaution for keeping the lever in place, an iron pin was driven through the mast and tenon. The machine was worked by attaching horses to the end of the lever, by nfeans whereof, a bucket filled with ore, was raised from the mine to the surface of the ground, and when discharged, the bucket by its own weight descended, turning the lever with some rapidity in its descent. The lever on the occasion in question, while the bucket was descending, was thrown out of the socket at the mast, and flying around, hit and broke the legs of the plaintiff, who was in a path leading to one of the pits worked by the defendant. ' The machine had been in use several years without accident. It appeared on examination of the-lever, after the occurrence in question, that the pin which held it to the mast, had broken through the wood of the tenon back of the point where the pin passed through it, and the lever not being firmly held to its place by the other arrangements, came out and caused the injury. There was evidence that other and surer precautions might have been, and in other mines, had sometimes been taken, to secure the lever to the mast, than those adopted by the deféndant. But the judge excluded the question of faulty construction from the jury, and submitted to them as the sole ground of negligence, to be considered, whether the defendant had omitted to make proper inspection of the machine, to discover defects arising after its original construction, or to make proper repairs to render it safe.

The negligence of the defendant, if any, upon the case as presented, consisted in an omission to take affirmative measures to ascertain and remedy defects in a machine originally suitable, developed by use, and which might have been discovered by proper inspection. It may be assumed, and the assumption is justified by decided cases, that as to persons standing in certain relations to the defendant, a, duty rested upon the company to exercise reasonable care in the maintenance and reparation of the machine, and that a failure to perform it, would subject the defendant to liability to persons occupying such special relations, who should sustain injury from the omission. But the plaintiff stood in no such relation to the defendant, as imposed upon it the duty to keep the machine in repair. He was, at the time of the accident in every legal sense, a stranger to the defendant. , He had before that been employed by the superintendent of the company to work by the day, and had been assigned to a particular service, which, however, he had abandoned two days before the accident, and on the day of the accident he went upon the defendant’s land to seek further employment at a pit to which the path used by the workmen led on which he was standing when the accident happened. He was on the premises at most by the mere implied sufferance or license of the defendant, and not on its invitation express or implied, nor was he there in any proper sense on the business of the company. The suggestion made to him by the foreman at'pit ISTo. 5, two days before the accident, on the occasion of his refusing to work at that pit any longer on account of the supposed danger, that he could probably “ get a chance ” at some other pit was not an authority or invitation by the company to him to visit the other pits on the premises. The foreman had no authority to give the plaintiff permission to go elsewhere upon the defendant’s lands, and the suggestion was obviously a mere friendly one made by the foreman in the interest of the plaintiff. The fact that the plaintiff had on going to pit ¡No. 10, engaged to commence work there on the following Monday, did not change his relation to the defendant, or make him other than a mere licensee on the premises. He went there on his own business, and in returning he was sub-serving his own purposes only. The precise question is whether a person who goes upon the land of another without invitation to secure employment from the owner of the land, is entitled to indemnity from such owner for an injury happening from the operation of a defective machine on the premises not obviously dangerous, which he passes in the course of his journey if he can show that the owner might have ascertained the defect by the exercise of reasonable care. We know of no case which goes to this extent. There is no negligence in a legal sensé which can give a right of action, unless there is a violation of a legal duty to exercise care. The duty may exist as to some persons, and not as to others, depending upon peculiar relations and circumstances. An employer is required to take reasonable precautions and to exercise reasonable cai;e in providing safe machinery and appliances for the uSe of his servant. The duty arises out of the relation. (Fuller v. Jewett, 80 N. Y. 46.) -The owner of land in general may use it as he pleases, and leave it in such condition as he pleases. But he cannot without giving any warning, place thereon, spring-guns, or dangerous traps which may subject a person innocently going on the premises, though without actual permission or license, to injury, without liability. The value of human life, forbids measures for the protection of the possession of real property against a mere intruder, which may be attended by such ruinous consequences. The duty in this case grows out of the circumstances, independently of any question of license to enter the premises. (Bird v. Holbrook, 4 Bing. 628.) So, also, where the owner of land in the prosecution of his own purposes or business, or of a purpose or business in which there is a common interest, invites another either expressly or impliedly to come upon his premises, he cannot with impunity expose him to unreasonable or concealed dangers as for example, from an open trap in a passageway. The duty in this case is founded upon the plainest principles of justice. (Corby v. Hill, 4 C. B. [N. S.] 556; Smith v. London & St. K. Docks Co., L. R., 3 C. P. 326; Holmes v. North Eastern Railway Co., L. R., 6 Exch. 123.) The duty of keeping premises in a safe condition even as against a mere licensee may also arise where affirmative negligence in the management of the property or business of the owner would be likely to subject persons exercising the privilege theretofore permitted and enjoyed to great danger. The case of running a locomotive without warning over a path across the railroad which had been generally used by the public without objection, furnishes an example. (Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 289. See, also, Beck v. Carter, 68 id. 283.) The cases referred to proceed upon definite and intelligible grounds, the justice of which cannot reasonably be controverted. But in the case before us, there were no circumstances creating a duty on the part of the defendant to the plaintiff to keep the whimsey in repair, and consequently no obi igation to remunerate the latter for his in j ury. The machine was not intrinsically dangerous; the plaintiff was a mere licensee ; the negligence, if any, was passive and not active, of omission and not of commission. Under the circumstances, we think the motion for nonsuit should have been granted. (See Severy v. Nickerson, 120 Mass. 306; Hounsell v. Smyth, 7 C. B. [N. S.] 731.)

The judgment should therefore be reversed, and a new trial ordered.

Rapallo, Earl and Finch, JJ., concur; Danforth, J., concurs in result; Rüger, Gh. J., dissents; Miller, J., does not vote.

Judgment reversed.


author: Milleb, J.

text:
    William E. Marsh, Respondent, v. Charles F. Chickering et al., Appellants.

      It seems that where a servant, employed in the performance of ordinary labor, in which no machinery is used or materials furnished requiring great skill and care, is injured by a defective instrument or tool furnished by the master, of the defects in which the servant has full knowledge and comprehension, he cannot hold the master responsible.
    Plaintiff, a servant in the defendants' employ, was injured by the slipping of a ladder which he was using in lighting lamps in front of defendants' building. The ladder was a new one which, by defendants’ permission, plaintiff himself had ordered made, and which he had used in safety for over six weeks. After the ladder was delivered he told defendants’ superintendent that it ought to be hooked and spiked, or there would be an accident. The superintendent promised to have this done. This promise was repeated several times, but was not performed. The accident occurred upon a stormy night, sleet, snow and rain falling, and the wind blowing. Plaintiff bad lighted safely seven lamps, changing the position of the ladder each time ; when lighting the eighth the ladder slipped. In an action to recover damages, held, that these facts did not j ustii'y a recovery, as it failed to prove that defendants had not furnished a proper ladder.
    A master does not owe to his servant the duty of furnishing the best known or conceivable appliances ; he is simply required to furnish such as are reasonably safe and suitable.
    (Argued January 26, 1886;
    decided February 12, 1886.)
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 26, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial.
    The nature of the action and the material facts are stated in the opinion.

      Theodore H. Swift for appellants.
    To enable plaintiff to recover, he was bound to show that the injury was sustained through the defendants’ negligence, and that there was no contributory negligence on his part. (78 N. Y. 483; 58 id. 248; 84 id. 58; 98 id. 198, 280.) Defendants were not bound to furnish plaintiff with the best, most approved or most recent machinery or tools. (15 Weekly Dig. 103; 98 N. Y. 274, 562.) If defendants’ superintendent was negligent they were not liable, he being a co-employe with plaintiff. (Crispin v. Babbit, 81 N. Y. 516; McCosker v. L. I. C. R. R. Co., 84 id. 77; 70 id. 171, 174-176.) A knowledge of the dangerous character of a tool an employe uses is fatal to his recovery for injury from its use. (Bell v. A. & W. R. R. Co., Alb. L. J., April 10, 1883; Seymour v. Maddox, 16 Q. B. 326; Seaver v. B. & M. R. R. Co., 14 Gray, 466.) In an action like the case at bar the master must be at fault and know of it, and the servant must "be free from fault to insure a recovery. (Wright v. N. Y. C. R. R. Co., 25 N. Y. 562; 12 R. I. 112; 34 Am. Rep. 615; 113 Mass. 396; 98 N. Y. 562; 32 Alb. L. J. 134; Leonard v. Collins, 70 N. Y. 90.) Plaintiff’s continued use of the ladder was negligence. (1 New Eng. Rep’r, 124.) The court erred in allowing plaintiff to prove that the day after the accident defendants had hooks put on the ladder. (Baird v. Daly, 68 N. Y. 547; Salters v. D. & H. C. Co., 3 Hun, 338; Morrel v. Peck, 24 id. 37; 31 id. 28.) Plaintiff’s contributory negligence was a question of law. (Davis v. Third Ave. R. R. Co., 41 N. Y. Super. Ct. 31; Baulec v. N. Y. C. R. R. Co., 59 id. 356; Whart. on Neg., § 238; 8 C. B. [N. S.] 568; 98 N. Y. 280.)

      A. R. Dyett for respondent.
    The fact that plaintiff knew of the danger of using the ladder and continued to use it was not contributory negligence as matter of law, in view of defendants’ promise to repair it after notice to them of the defect. (Fuller v. Jewett, 80 N. Y. 46; Flike v. B. & A. R. R. Co., 53 id. 549, 553; Booth v. B. & A. R. R. Co., 73 id. 38; Mehan v. Syr. & B. R. R. Co., id. 585.) Acts the master is bound to perform for the safety and protection of his employes cannot be delegated so as to exonerate the master from liability to his servant. (Ford v. Fitchburg R. R. Co., 110 Mass. 240; 53 N. Y. 549, 553; 25 id. 262; 39 id. 468; Hough v. T. & P. R. R. Co., 9 Rep’r, 193, 198, 199; Cooley on Torts, 559; Laning v. N. Y. C. R. R. Co., 49 N. Y. 528, 534-537; Hawley v. No. Cent. R. R. Co., 82 id. 370.)
   Milleb, J.

The plaintiff seeks to recover in this action for injuries sustained, while in the defendants’ employ, by means of a ladder used by him in lighting the gas lamps connected with and in front of the defendants’ building.

The plaintiff had lighted seven of the eight lamps by the use of the ladder, and, when in the act of lighting the eighth one, the ladder slipped and plaintiff’s leg caught in one of the rungs, and that caused the in jury. It was a stormy night in the month of March, sleeting and raining, snowing and windy. The plaintiff, previous to this occurrence, had used a ladder of the defendants, which broke with him, and he had spoken to one of the defendants, stating the accident and saying that they ought to have a good ladder, hooked and spiked, or else there would be an accident. The defendant spoken to told him to go to the superintendent, and direct him to order a new ladder. This the plaintiff did, and he then went to a ladder-yard and ordered a new ladder himself at the request of the superintendent, and after the ladder had been delivered, he told the superintendent that it ought to be hooked and spiked, and the superintendent promised to have hooks and spikes put on-it but never did. The plaintiff used the ladder for six weeks or two months, and during that time he says he spoke to the superintendent twice about it, the second time three or four weeks before the accident, saying to him that the ladder was not hooked and spiked and there would be an accident,. The superintendent replied that he would have it fixed.

The right of the plaintiff to maintain this action is founded upon the alleged negligence of the defendants in not furnishing a proper ladder for the use of the plaintiff in the work he was engaged to perform. It rests upon the principle that it is the duty of the master to the servant, and the implied contract between them, that the master shall furnish proper, perfect and adequate machinery or other materials and appliances necessary for the proposed work. (Laning v. N. Y. C. R. R. Co., 49 N. Y. 521; Shearm. & Redf. on Neg., § 92.)

As a general rule it is to be supposed that the master who employs a servant has a better and more comprehensive knowledge as to the machinery and materials to be used than the employe who has claims upon his protection against the use of defective or improper materials or appliances while engaged in the performance of the service required of him.

The rule stated, however, is not applicable in all cases, and where the servant has equal knowledge with the master as to the machinery used or the means employed in the performance of the work devolving upon him, and a full knowledge of existing defects, it does not necessarily follow that the master is liable for injuries sustained by reason of the use thereof.

In considering the application of the rule just stated due regard must be had to the limited knowledge of the employe as to the machinery and structure on which-he is employed and to his capacity and intelligence, and to the fact that the servant has a rightVo rely upon the master to protect him from danger and injury, , ml in selecting the agent from which it may arise. (Powers v. N. Y., L. E. & W. R. R. Co., 98 N. Y. 274, 280.)

In cases?!, however, where persons are employed in the performance of ordinary labor, in which no machinery is used, and no materials furnished, the use of which requires the exercise of great skill and care, it can scarcely be claimed that a defectivo instrument or tool furnished by the master, of which the employe has full knowledge and comprehension, can be regarded as making out a case of liability within the rule laid down. . common laborer who uses agricultural implements while at work upon a farm or in a garden, or one who is employed in any service not requiring great skill and judgment and who uses the ordinary tools employed in such work, to which he is accustomed and in regard to which he has perfect knowledge. can hardly be said to have a claim against his employer for negligence, if in using a utensil, which he knows to be defective, he is accidentally injured. It does not rest with the servant to say that the master has superior knowledge and has thereby imposed upon him. He fully comprehends that the instrument which he employs is not perfect, and if he is thereby injured it is by reason of his own fault and negligence. The fact that he notified the master of the defect and asked for another instrument, and the master promised to furnish the same, in such a case, does not render the master responsible if an accident occurs.

We have been referred to no adjudicated case which upholds the liability of a party under circumstances of the same character as those presented by the evidence here. A rule imposing such a liability in the case considered would be far reaching and would extend the principle stated to many of the vocations of life for which it was never intended. It is one of a just and salutary character, designed for the benefit of employes engaged in work where machinery and materials are used of which they can have but little knowledge, and not for those engaged in ordinary labor which only requires the use/ of implements with which they are entirely familiar. Whe plaintiff was of the latter class of laborers, and the went in which he was engaged was not of a character which would entitle him to the protection of the principle referred to.

Even if it may be considered that a right of action exists in this case in favor of the plaintiff, under any circumstances, we think that the evidence would not justify a recovery for the reason that the defendants did not fail in furnishing a proper ladder for the use of the plaintiff in lighting the lamps, The rule is that the master does not owe to his servants the duty'áp furnish the best known or conceivable appliances ; he is simply^ required to furnish such as are reasonably safe and suitable, such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances. (Burke v. Witherbee, 98 N. Y. 562; Shearm. & Redf. on Neg., § 92.) The defendants had procured a ladder which ordinarily would be regarded as safe for the purpose for which it was used. The plaintiff had used it for a long time without any accident or danger, and on the very night of the accident it had been placed in position and used several times successfully. That it failed at last for any reason does not establish that it was unfit for use. It might, perhaps, have been more perfect if it had had hooks and spikes, but this improvement was not absolutely essential to relieve the defendants from liability. It was enough that it was reasonably safe and suitable within the rule cited, and under such circumstances an action will not lie.

There are other questions in the case, but m view of the conclusion arrived at their examination is not required.

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

All concur, except Etoer, Oh. J., dissenting.

Judgment reversed.


author: Earl, J.

text:
    Franklin Marsh, Respondent, v. John H. Masterton, Appellant.
    A judgment in a former suit between the same parties is a bar to a subsequent action only when the point or question in issue is the same in both ; the former j udgment has no effect upon questions not involved in it, which were not then open to inquiry or the subject of litigation.
    Plaintiff brought an action against defendant, the complaint in which alleged a partnership between them, and asked for a dissolution thereof, the appointment of a receiver, and an accounting, etc. The answer was a general denial. On the trial it was found as matter of fact that no co-partnership existed, and the complaint was dismissed. Plaintiff then brought this action to recover for labor and services alleged to have been rendered under an agreement between the parties, by which he was employed to oversee, take charge of, carry on, and labor in the business of the defendant, and the latter agreed to pay him for such service one-half the profits of the business after deducting interest on the capital invested. Plaintiff asked judgment for his share of the profits. Reid, that the former judgment was not a bar.
    The business carried on was that of mason and builder. Upon the trial defendant claimed credit for moneys paid as gratuities to the architects having charge of the work. There was no proof that the payments were beneficial to the parties, or that they were necessary or justifiable upon business principles. Meld, that the credits were properly rejected, Defendant, after plaintiff’s employment had terminated, took in payment for work done, from a person perfectly responsible, two bonds which he knew at the time to be worthless. Meld, that defendant was not entitled to any deduction for the loss thus sustained.
    (Argued January 29, 1886;
    decided February 12, 1886.)
    Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made March 4, 1884, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 18 J. & S. 187.)
    The nature of the action and the material facts are stated in the opinion.

      S. W. Rosendale for appellant.
    Assuming that plaintiff now proves a hiring for half the profits as compensation, the former judgment is a bar; evidence of plaintiff in this suit shows that if there were any such contract as he claims, it was a contract of partnership and not one of hiring, and the former judgment is then unquestionably a bar. (Coll. on Part. [5th Am. ed.], § 44, note 2; 7 Jarm. Conv. by Sweet, 11, note a; Holmes v. Old Colony R. R. Corp., 5 Gray, 58; 1 Story’s Eq., §§ 442, 459c; Fairchild v. Robinson, 7 Rob. 572; Russell v. Corne, 20 N. Y. 81; Van Rensselaer v. Jones, 2 Barb. 643; Fels v. Vestvali, 2 Keyes, 153; Lobdell v. Lobdell, 36 N. Y. 327.) If in the first suit plaintiff could have proved the very contract he now alleges, and have had an accounting thereon, then the former suit is a bar, for a former Adjudication is quite as much a bar, for all that could have been proved therein as for all that was proved therein. (Embury v. Connor, 3 N. Y. 522; Clemens v. Clemens, 37 id. 74; Bloomer v. Sturges, 58 id. 176; Jordan v. Van Epps, 85 id. 436; Smith v. Smith, 79 id. 634; Pray v. Hegeman, 98 id. 351.) In any view, the testimony of defendant relied upon by plaintiff is equally consistent with the idea of partnership or hiring, and of course, being consistent with either, can prove neither. (71 N. Y. 141.) There being no evidence, then, of a contract of hiring, the finding that there was one is error in law. (Sheldon v. Sheldon, 51 N. Y. 354; Mason v. Lord, 40 id. 477; Fellows v. Northrup, 39 id. 117.)

      William, A. Coursen for respondent.
    In order to bar a second action the circumstances must be such that the plaintiff might have recovered in the first for the saíne cause alleged in the second. (Stowell v. Chamberlain, 60 N. Y. 272, 276; Palmer v. Hussey, 87 id. 303.) Whether the matter might have been tried in the former action must appear from the record alone; whether it was tried may be proved by paroi. (Campbell v. Butts, 3 N. Y. 173; Smith v. Smith, 79 id. 634; Young v. Rummell, 2 Hill, 479, 481; Dunckle v. Wiles, 6 Barb. 515, 529.) The trial of the first action having been had before the court, without a jury, the facts found by the court are conclusive upon the parties, and will be considered as res adjudicata for all purposes. (Bissell v. Kellogg, 60 Barb. 617; Arnold v. Angell, 62 N. Y. 508.) The doctrine of res adjudicata applies only where a party has a full opportunity to assert his rights, and ask for the remedy, in an action presenting or affording the opportunity to present the claim, and where an issue is or can be legitimately framed to try it, and the court has jurisdiction, both of the parties and of the subject-matter. (Dawley v. Brown, 79 N. Y. 390, 397; Stowell v. Chamberlain, 60 id. 272; Matthews v. Duryee, 4 Keyes, 525, 538; Campbell v. Consalus, 25 N. Y. 613; Burdick v. Post, 12 Barb. 168; Baker v. Rand, 13 id. 152, 160; Vaughan v. O'Brien, 57 id. 491, 495.) It is not sufficient that the transactions involved in and giving rise to the two actions are the same. (Stowell v. Chamberlain, 60 N. Y. 272; Dawley v. Brown, 79 id. 390; Jackson v. Andrews, 98 id. 672; Derleth v. DeGraaf, 51 N. Y. Supr. Ct. [J. & S.] 369; Arnold v. Clark, 9 Daly, 259; Perry v. Dickinson, 85 N. Y. 345.) The mere fact that by the agreement between the plaintiff and the defendant, the plaintiff was to receive one-half of the profits, does not show that a partnership existed between them. (Lewis v. Greider, 51 N. Y. 231; Bonty v. Swift, id. 594; Osbrey v. Reimer, id. 630; Burckle v. Eckhart, 1 Den. 337; S. C., 3 N. Y. 132; Conklin v. Barton, 43 Barb. 435; Ogden v. Astor, 4 Sandf. 311, 321; Pattison v. Blanchard, 5 N. Y. 186;. Heimstreet v. Howland, 5 Den. 68; Legget v. Hyde, 58 N. Y. 272; Smith v. Bodine, 74 id. 33; Richardson v. Hughitt, 76 id. 55; Burnett v. Snyder, 81 id. 550; Curry v. Fowler, 87 id. 30; affirming S. C., 46 N. Y. Super. 195; Bendel v. Hettrick, 35 id. 405; Adee v. Cornell, 25 Hun, 78; 3 Kent’s Com. 33; Smith v. Bodine, 74 N. Y. 30; Merwin v. Playford, 3 Robt. 702; Cummings v. Mills, 1 Daly, 520; Lamb v. Grover, 47 Barb. 317.)
   Earl, J.

In November, 1873, the plaintiff commenced an action against the defendant, and in his complaint alleged that on the 1st day of May, 1872, at the city of New York, he entered into copartnership with the defendant for the purpose of carrying on the business of masons and builders; that by the terms of the copartnership the partners were to share equally in the profits of the business, the defendant to be allowed interest, however, on his capital; that thereafter from the 1st day of May, 1872, until the 1st day of August, 1873, the plaintiff and defendant carried on the copartnership business successfully, and that there were more than sufficient assets of the copartnership to pay all its debts; that since the 1st day of August, 1873, the defendant had taken exclusive possession of the copartnership books and property, and had prevented the plaintiff from having any control over or access to the same ; that the plaintiff and defendant were'unable to agree upon the terms and mode of the dissolution, arid the winding up of the affairs and business of the copartnership, and were unable to agree upon the person who should possess and control the partnership books and assets and settle up its affairs; and he demanded judgment that the partnership should be dissolved, that a receiver of its property should be appointed by the court with the usual powers of such receivers; that an accounting should be had, the assets converted, applied and divided, and for other relief. The defendant interposed a general denial to the complaint and demanded that it should be dismissed, with costs. .That action was subsequently brought to trial, and the referee found as matter of fact that the plaintiff and defendant did not enter into copartnership as alleged in the complaint; and as a conclusion of law, he found that the complaint should be dismissed and that the defendant should have judgment for costs. Thereafter, in October, 1875, the plaintiff commenced this action, and alleged in his complaint, that he was by trade and occupation a mason; that the defendant carried on the business of a mason and builder; that on or about the 1st day of May, 1872, at the city of New York, the plaintiff and defendant made and entered into an agreement whereby, in consideration of the plaintiff overseeing, taking charge of, carrying on and laboring in the business of the defendant, he agreed to and with the plaintiff to pay him for such services one-half of all the profits derived from the business, after deducting the interest on the capital invested by the defendant ; that afterward from the 1st day of May, 1872, until the 1st day of August, 1873, the plaintiff was continually in the employment of the defendant and performed the services, and managed, took charge of and labored for the defendant in his business under the agreement; that the business of the defendant from the 1st day of May, 1872, until the 1st day of August, 1873, was very successful and profitable, and that he made and received as profits of the business during that time, after deducting the interest on the capital invested, the sum of $21,000, and that for one-half of that amount, less a credit mentioned, the defendant was indebted to plaintiff under their agreement; and he demanded judgment for $7,862.20 with interest, besides costs. To this complaint the defendant interposed an answer in which he denied the allegations of the complaint, and alleged in bar of the action the judgment recovered by him in the former action. The cause was referred to a referee, and after hearing the evidence he found the agreement between the parties to be substantially as alleged in the complaint, and he took the account between them and found there was due the plaintiff under the agreement upwards of $7,000, for which he ordered judgment. In reference to the. former action and the recovery therein, he found as matter of fact that that action was brought in respect to the same work and for an accounting and recovery in respect to the same profits for which this, action was brought, but he found as matter of law that that action was not a bar to this.

We think the referee correctly held that the former action was not a bar to this. The causes of action in the two suits were not the same. The cause of action in the first suit sprang out of the alleged relations between the plaintiff and defendant as copartners, and was based upon the right which the plaintiff derived from that relation to an accounting and his share of the profits. Here the cause of action is based entirely upon the contract alleged, and the right of the plaintiff to compensation under that contract and according to its terms. According to the allegations of the complaint in the first action, the plaintiff was equally interested with the defendant as owner of the property and effects of the firm, and as such had an equal right with him to control and dispose of the same. According to the allegations of the complaint in this action, he did not'own any of the property or assets of the business and had no right to dispose of the same, and was only entitled to his compensation to be measured by the profits. The same evidence would not sustain the two actions. To maintain the first action it was necessary to establish the co-partnership. To maintain this action it was necessa’ry to establish the agreement employing the plaintiff and fixing his compensation.

While the court in the first action could probably have permitted the plaintiff so to amend his complaint as to. conform it to the proofs, and so as to enable him to recover a share of the profits as a compensation for his services, it was not bound to do so, and he had no absolute right to such an amendment. It cannot, therefore, be said that this cause of action could have been litigated, tried and determined in the former action. The plaintiff was there defeated because he misconceived the form of his action — not because he did not have a meritorious claim to the profits he was seeking to share in.

A few rules as to the effect to be given to former recoveries may be stated thus: One shall not be twice vexed for one and the same cause, and' an allegation of record upon which issue has been taken and found is, between the parties taking it and their privies, conclusive, according to the finding thereof, so as to estop the par-ties from again litigating the fact once so tried. But in order to bar the cecond action, the circumstances must be such that the plaintiff might have recovered in the first for the same cause alleged in the second. The estoppel of an adjudication made on grounds purely technical and where the merits could not come in question is limited to the point actually decided, and will not preclude a subsequent action brought in a way to avoid the objection which proved fatal in the first. When a suit fails in consequence of a want of jurisdiction, or because the plaintiff misconceived the remedy, or did not bring the proper parties before the court, and not from, any inherent defect, the substance of the cause is left at large, and may be made the subject of another action. To render a judgment effectual as a bar, the cause of action" must be substantially the same; that is, it must be sustained by the same evidence, although the form of the suit may be different. (2 Smith’s Lead. Cas., Hare & Wall, notes 783, 784, 786.) In Harding v. Hale (2 Gray, 399), in an action for goods sold, the defendant answered "that he had, in part payment of the price, given a special promise to pay certain debts of the plaintiff, and had performed that promise, and that he had otherwise paid the remainder of the price; and it was held that a j udgment for the defendant in that action was not a bar to a subsequent action on the special promise. The judge writing the opinion said: “ It would seem to be plain, therefore, that the judgment in the first suit constitutes no bar to the maintenance of this action. The first suit was not for the same cause of action, nor to be supported by the same evidence as the second. The judgment in the first did not negative the cause of action relied upon in the second, but affirmed its existence and pointed the way to a better writ.” In Norton v. Huxley (13 Gray, 285), it was held that a verdict and judgment for the defendant in an action of contract upon his promise to accept an order drawn upon him in favor of the plaintiff, brought by one who had assigned to the plaintiff an unfinished contract of work for the defendant, are no bar to an action of tort by the plaintiff against the defendant for inducing the plaintiff to take such assignment by false and fraudulent representations as. to the amount remaining due from the defendant to the former contractor. The judge writing the opinion said : “ The principle is well settled that a judgment in a former suit between the same parties is a bar to a subsequent action only when the point or question in issue is the same in both. The judgment is conclusive in relation to all matters in the suit which were put in issue; but has no effect upon questions not involved in it, and which were not then open to inquiry or the subject of litigation. * * * It is true that both originated in the same series of transactions, and in the conversations and communications which took place between the parties concerning them; but the result of the former suit shows that the plaintiff there wholly mistook the effect of what was said by the defendant, and so failed to establish the claim which he then attempted to enforce.” In Stowell v. Chamberlain (60 N. Y. 272), it was held that in- order to make a former action a bar, the circumstances must be such that the plaintiff might have recovered in the first action for the same cause of action alleged in the second; that it is not enough that the transactions involved in and giving rise to the two actions are the same ; and that to make a judgment for defendant, in an action for the wrongful conversion of property, a bar to a subsequent action of assumpsit to recover the value of the same property, it must appear that the question of plaintiff’s title was passed upon in the first action.

It is not sufficient to establish the identity of the two causes of action, that the plaintiff was seeking in both actions to recover the same amount of money, or even the same damages. It is well settled that one may sue to recover damages for fraudulent representations upon a sale of property, and if he falls to establish the fraud and is defeated upon that ground, that he may subsequently bring an action for breach of warranty based upon the same transaction and the same representations and to recover precisely the same damages. In one case the action is based upon tort, and in the other upon contract, and the causes of action are not identical and could not be sustained by the same evidence. So a party may sue in an action of trover to recover the value of property, and being defeated in that action on the ground that there was no wrongful conversion, he may sue to recover the value of the same property upon the theory of a sale. The damages sought to be recovered in each action, to-wit: the value of the property, would be the same, and yet that does not determine the identity of the causes of action. Proof of the compensation agreement alleged in this action would not have been sufficient to maintain the first action based upon the partnership agreement. The first action established conclusively that there was no partnership agreement between the parties, and both parties were estopped by that adjudication from again alleging that there was

The objection is now made that the proof upon the trial of this action was not sufficient to establish the compensation agreement alleged in the complaint and found by the referee. We have carefully looked into the evidence and are satisfied that there was enough to justify the findings of the referee. It is possible to hold that the former adjudication established that there was this compensation agreement. It is undisputed that these services were rendered under some agreement, and if it was not a partnership agreement, then it must have been under some agreement for compensation. " What that agreement was has been found by the referee u on sufficient evidence.

Upon the trial, the defendant claimed credit for certain sums of money paid by him as gratuities to the architects having Charge of the, work performed; and the referee held that he was not entitled to those credits. The referee did not find, and was not requested to find, the facts in reference to those items, and the evidence in reference to them is not very satisfactory or definite. He simply found, as matter of law, that no part of the payments alleged by the defendant to have been made to the architects was a proper charge against the plaintiff. We do not determine that such payments could in no case be allowed to one situated like this defendant. They may be made under such circumstances as to make it just and equitable that they should be allowed. Here there was no proof or finding that they were beneficial to these parties, or that they were necessary payments, or justifiable upon business principles. We cannot, therefore, say that the referee erred in disallowing them.

The defendant also claimed credit on account of two bonds which he took in payment for work done by him. He knew at the time he took them that they were worthless, and yet he claims credit for them as a loss, and insists that they should be deducted from his profits. The party from whom he took them was abundantly able to pay the amount, and he was under no obligation to take -them. He took them after the relations between him and the plaintiff had terminated, without any consultation with him, and without his knowledge, and we think the referee did not err in refusing to allow him a deduction on account of them. . While the defendant under his contract with the plaintiff was entitled to manage the work in his own way and as he thought was most conducive to his interests without consulting the plaintiff, yet he was bound to act in good faith. He had no right, as against the plaintiff, to throw” away profits upon some remote idea that in some way it might be for his interest to do so. The taking of these bonds in no way benefited the- plaintiff. They were taken after the contract was fully performed and after the obligation to pay on the part of the contractor had fully matured. The contractor was abundantly able to pay, and there was no evidence even that he refused to pay the money; and the taking of the bonds seems to have been a gratuitous act on the part of the defendant for the purpose of aiding and relieving the contractor from whom lie took them. His benevolence should not be visited as a loss upon the plaintiff.

Many other exceptions appear in the record, to some of which our attention has been called in the brief submitted by the learned counsel for the appellant. We have carefully considered them all and do not think they point out any error, or require any particular notice.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.