author: McAdam, J. Per Curiam.

text:
    HERMAN STUBER, et al., Administrators, etc., Appellants v. JAMES D. McENTEE, Respondent.

      Negligence, contributory—Release and settlement of damages.

    The trial judge held in this case, that the plaintiff’s intestate was guilty of contributory negligence in doing the work that he,-as the apprentice of defendant, was called upon to do in his master’s business; also that the payment of $400 by defendant to Oscar Krause, one of the plaintiffs, might he considered a bar to the action.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    Appeal by plaintiff from a judgment entered upon the dismissal of the complaint at the trial and from an order denying a motion for a new trial.

      The facts and points in the case appear fully from the following statement and opinion filed by the trial judge, upon which the judgment and order is affirmed.

      “ William Stuber, an employee of the defendant (a plumber), went down an excavation about thirteen feet deep, by four or five and a-half feet wide, to solder a pipe. The excavation, which was in 116th street, near Eighth avenue, had not been boarded up, and the sides caved in, carrying with them a large stone, completely covering the employee, and causing his death.

      “ The action is by his administrators, to recover from the defendant the statutory limit of $5,000 damages, by reason of the death, which occurred May 12, 1890. On May 18, 1890, the defendant paid to Mr. Krause (who, in conjunction with the father of the deceased took out letters of administration, June 5, 1890), the sum of $400, and took the following receipt: 6 This certifies that Mr. McEntee paid this day to me $400, being payment for all expenses whatsoever, caused by the untimely death of William Stuber, a plumber, assistant in the employ of Mr. McEntee. Further, that I shall have no further claim whatsoever against Mr. McEntee. ‘ N. Y., May 15th, 1890/
   McAdam, J.

“ Theauthorities bearing on the question of negligence, are so numerous, and the distinctions drawn so subtle, that great care is required in determining which are, and are not, applicable to the case in hand. Slight variations in the facts will be found to distinguish one from another, leaving only the underlying principles which are of an elementary character, to serve as a guide. Indeed, it is as difficult to find ready-made law to fit every case of negligence as it is to get ready-made clothes to fit every individual. There is a process of readjusting, distinguishing, limiting, and explaining going on all the while to make things suit the case at hand, without clashing with what was decided before, on facts slightly different, until it has become a study to determine with accuracy which adjudications fit new cases, and which do not.

Judge Peckham thus expresses the situation in Cullen v. Norton, 126 N. Y., 5. There is very little room for disagreement as to the principle of law in this class of cases, but the difficulty lies in their application to the facts of each special case.’

“ It may be assumed that a master is bound to furnish reasonably safe and suitable implements for the use of the servant and a reasonably safe place of employment, considering the nature of the employment itself. Cullen v. Norton, supra.But where a servant, without any express direction from the master, or any assurance of safety by him, enters an excavation, the dangers of which are obvious and apparent, and consequently as well known to the servant as they would have been to the master, had he been present, it must be held that the servant in doing the imprudent act assumed the dangers consequent upon it, whatever they were. See Hussey v. Coger, 112 N. Y., 614; Filbert v. D. & H. Canal Co., 121 Ib., 207 ; McQuigan v. D., L. & W. R. R. Co., 122 Ib., 6l8. It cannot be said in such a case that the master was negligent and the servant free from fault; and this is a fair statement of the present case. The master could not relieve himself from the duty of supplying and maintaining suitable instrumentalities for the work required, by placing the business in the hands of an agent. Fuller v. Jewett, 80 N. Y., 46 ; Crispin v. Babbit, 81 Ib., 521, approved in Cullen v. Norton, 126 Ib., 5. In other words, the negligence of a servant does not excuse the master from liability to a co-servant for any injury which would not have happened had the master performed his duty. Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y., 557. Yet the negligence of a co-servant even of a higher grade as a rule defeats a recovery. Cullen v. Norton, supra.

There was no attempt to prove that any one representing the defendant told the decedent to enter the excavation or that it was suitable or safe to enter. In Kranz v. L. I. R. R. Co., 123 N. Y., 1, the decedent was ordered to aid in cleaning certain water pipes placed underground at the defendant’s depot at Bay Ridge. A trench had been opened for that purpose by the section man and laborers under his direction some hours before the decedent commenced work upon the pipes. That was a necessary step to furnish him a proper opportunity for the performance of his duty. He entered the trench and began to disconnect the pipes, and while so engaged the earth caved in upon him, and he died of suffocation. The court held that 6 those who opened the trench were performing the master’s duty to the deceased in preparing a suitable place and opportunity for the labor of the intestate in the discharge of his duty . . . and when the master ordered the intestate to perform his work as a machinist in the trenches opened and prepared for him, he had a right to assume that the place had been made reasonably safe by the master through other and competent servants employed by him.’ There is no proof here that the defendant ever saw the trench or that it was prepared by him or his employees, as a place for the decedent to perform his work, or that he assumed or performed any duty respecting it. These facts are significant in distinguishing the present from some of the cases cited. In the absence of the express or implied direction from the master to enter the trench in its unprotected condition, or any express or implied representation as to its safety, it is difficult to understand how the legal principle carried to the border line by the Kranz case can be extended to the present contention. There was no proof of notice to the defendant of the danger as in the Pantzar v. Tilly Foster I. M. Co., 99 N. Y., 368, and nothing from which it may be inferred. In McGovern v. Central Vermont R. R. Co., 123 N. Y., 280, the master directed the servant to perform work at a place which proved dangerous, and the court held that where such danger may be foreseen and guarded against by the exercise of reasonable care, it is the master’s duty to exercise such care and adopt such precautions as will protect the servant. The work in question was performed at a distance from the master’s shop, and in an excavation about which perhaps he knew nothing. The performance of the job here was delegated to the servant who by the circumstances was put on his caution as to danger, and he cannot attribute to the master the consequence of a hazard apparent to the eye, and which he was- bound to discern, for he knew the master had no one else to represent him at the job, and that in the nature of things he was compelled to rely entirely upon his own judgment as to the safety of the undertaking. In this he erred, but it does not follow that the master became liable for his error of judgment. The master is bound to know that his appliances are reasonably safe, unless the defect be one which could not be discovered by careful inspection or by application of appropriate tests. . Probst v. Delamater, 100 N. Y., 266. If the defects are obvious and the dangers apparent the master is not liable. Hickey v. Taaffe, 105 N. Y., 26 ; Shaw v. Sheldon, 103 Ib., 667; Appel v. B. N. Y. & R. Ry. Co., 111 Ib., 550; DeForest v. Jewett, 88 Ib., 264; Williams v. D. L. & W. R. R. Co., 116 Ib., 628. It has been often said that the master is not liable for defects in such things, to a servant whose means of knowledge thereof were equal to those of the master. But this is an erroneous statement. Sher. and Redf. on Neg., 4th ed., § 217. The master has no right to assume that the servant will use such means of knowledge; because it is no part of the servant’s duty to inquire into the sufficiency of those things. The servant has no right to rely upon the master’s inquiry; because it is the master’s duty thus to inquire ; and the servant may justly assume that all these things are fit and suitable for the use, which he is directed to make of them. The servant is liable only in respect to those things, concerning which it is his duty to inquire. Ib. The distinction is clear enough, but, picking out the cases in which it is to be applied—difficult. Still, every person, sui juris, is supposed to be sensible to dangers at once apparent, and is to be deemed reasonably intelligent enough to avoid them. This natural instinct, necessary to self-preservation, is daily exercised in our large cities, and crowded thoroughfares, in crossing and re-crossing streets, and in country-towns in crossing and re-crossing railroad tracks. The care to be exercised should be commensurate with the danger to be reasonably apprehended.

“ The theory upon which Kranz v. L. I. R. R. Co., supra, and kindred cases was decided is, that the law remembers that the respective situations of the master and servant are unequal, and excuses the servant for deferring to the superior judgment of the master. If, therefore, the master orders the servant into a situation of danger, and he obeys, and is thereby injured, the law will not deny him a remedy against the master, on the ground of contributory negligence, unless the danger was so glaring that no prudent man would enter into it, even where, like the servant, he was not entirely free to choose. Thus, where a hod-carrier, engaged at work about an excavation, perceiving that it was dangerous, manifested some reluctance to descend it, but was ordered by his employer to do so, and obeyed, and the earth caved in upon him and killed him, it was held that his widow might recover damages of his employer. The order was an implied assurance that there was no danger; the laborer rightfully relied upon the superior information and judgment of the master ; and whether he was negligent under the circumstances in descending into the pit is a question for the jury. See cases collated in 2 Thompson on Neg., 975 ; Ib., 976, § 5. In these cases, it is a natural yielding to a superior who commands, and the servant, like the soldier, is supposed to obey, relying on the knowledge and ability of the commander. There are cases, however, where the master is not liable for defective machinery or improper appliances, among which are those : (1) Wherein the defects and dangers are so obvious as to become known to the servant. The maxim volenti non Jit injuria applies in such cases, for as a general proposition that no one can maintain an action for a wrong, where he has consented or contributed to the act which occasions his loss. Tihdal, C. J., 2 Scott, N. JR., 257. And the master is under no higher duty to provide for the safety of the servant, than the latter is to look for his own safety. (2) Wherein a skilled engineer is placed in charge of an engine, the master not being a skilled engineer himself. Here the master relies on the judgment of the servant as to the safety of the machine, and not the servant upon the master. Thompson on JNeg., supra, p. 980. And yet this presumption may be overcome by proof that the master knew of defects, the servant, without fault, had not discovered. (3.) Wherein an excavation is made by the servant himself in the absence of the master or an alter ego and the earth caved in, the servant must be held to have assumed that risk as incidental to his employment, for there is no possible basis for the claim that he relied upon his master’s superior judgment, or upon any express or implied assurance of safety by him.

“ In Leary v. R. R. Co., 139 Mass., 580, Mr. Justice Deveíts uses these words : ‘ But the servant assumes the dangers of the employment to which he voluntarily and intelligently consents, and while ordinarily he is to be subjected only to the hazards incident to his employment, if he knows that proper precautions have been neglected, and still knowingly consents to incur the risk to which he will he exposed thereby, his assent dispenses with the duty to take such precautions.’ The situation here plainly told the servant he must rely upon his own intelligence, and he presumably so relied, and there is no theory upon which personal negligence, the gist of the action, can be imputed to the master. Before he can he charged, knowledge of the defect or danger must be brought home to the employer, or proof given that he omitted the exercise of proper care to discover it. Devlin v. Smith, 89 N. Y., 470.

u The defendant could not be negligent unless he did something he ought not to have done or failed to do something he should have done, and this must be determined from what he knew or ought to have known from the circumstances existing at the time. The mere fact that an accident occurred which caused an injury is not generally of itself sufficient to authorize an inference of negligence. Dobbins v. Brown, 119 N. Y., 188 ; Cosulich v. Standard Oil Co., 122 Ib., 118. And this upon the principle that if the evidence would justify an inference consistent with the absence of negligence on the part of the defendant just as well as it would an inference of negligence the plaintiff cannot recover. See cases collated in 1 iSher. and Sed. on Neg., 4th • ed., p. 69, note 1. There is here no proof, as in Kranz v. L. I. R. R. Co., supra, that a separate gang of men (not including the person injured), made the trench, and that the employer ordered the decedent into it to do other work. Inferentially, the trench was dug by the decedent himself, or he went into it without the directions of the employer and in his absence, and before it was made safe by boarding up the sides. There being no evidence upon the subject, this is the inference, for the law will not infer negligence as a ground of action, where the absence of it is as consistent as its presence.

The former presumption that every person will take care of himself from regard to his own life and safety cannot take the place of proof. Cordell v. N. Y. C. & H. R. R. R. Co., 75 N Y, 330; Riordan v. S. S. Co., 36 N. Y., State R., 476. The burden is on the plaintiff to prove that there was no contributory negligence on the part of the deceased, Hart v. H. R. B. Co., 84 N. Y., 57; Hale v. Smith, 78 Ib., 480; Muhr v. The Mayor, 15 Daly, 12; Tolman v. S. B. & N. Y. R. R. Co., 98 N. Y., 198, unless the nature of the accident or the state of the proofs, show the absence of contributory negligence. It will not do to allow jurors to found verdicts on anything but facts established by evidence or inferences properly drawn from those facts, or as the Court of Appeals of Maryland, held in the Baltimore and Potomac E. R. case, January, 14, 1892. Speculations as to how or from what cause an accident occurred cannot be allowed to stand for proof, or be made the basis of a verdict in favor of the party.upon whom the burden rests. There must be evidence from which the jury may reasonably and properly conclude that the accident was produced by some negligence or wrongful act of the defendant.

“ There was no solid legal ground for holding the defendant liable for the unfortunate accident that befell the decedent, and no error in withholding the case from the jury, if a plumber, tinsmith, or carpenter sends an employee out to do a job about which the master knows nothing, the latter is not an insurer of the safety of the undertaking, and is not liable if he gives no positive direction or assurance. The duty of inquiry would clearly be cast upon the servant in such a case.

“ The second Branch of the defence relates to the payment of the $400. This sum was paid to Krause, May 15, 1890, and he immediately turned $60 over to the father of the deceased, who received it knowing that $400 had been accepted in payment.

The subsequent administration by Krause and the father, by operation of law, related back and made the payment to them, as in their representative capacity. See Priest v. Watkins, 2 Hill, 225 ; Hart v. Marine Ins. Co., 8 Johns., 126 ; 1 Williams on Exrs., 240 ; 39-76, Farrell’s Estate, 1 Tucker R., 110; Joyce v. McGuire, 2 City Ct. R., 422. The damages recoverable being unliquidated in their character (Code, § 1904 and notes), this payment amounted to an accord and satisfaction. Coon v. Knap, 8 N. Y., 402; Berrian v. The Mayor, etc., 4 Robt., 538; Danziger v. Hoyt, 120 N. Y., 190; and see Jaffray v. Davis, 124 N. Y., 164, which discharged the cause of action, if any existed.

A. Edward Woodruff, for appellants.

Thomas C. Ennever, for respondent.

“ For the reasons stated, the nonsuit was rightfully directed, and the motion for a new trial must be denied direct.”

Per Curiam.

The judgment and order should be affirmed, with costs, upon the opinion filed by the learned trial judge on the denial of the motion for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    AMOS E. WOODRUFF, Appellant v. ALEXANDER JOHNSTON, Respondent.

      Demurrer to complaint in action in equity to vacate and set aside a judgment as being founded in fraud, etc.

    To the complaint in this action a demurrer was interposed setting forth various grounds. The court below considered only the fourth ground of demurrer, namely: that the complaint does not state facts sufficient to constitute a cause of action; and sustained the demurrer.

      Held, that the judgment should he affirmed.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    Appeal by plaintiff from a judgment in favor of defendant, entered upon a decision sustaining defendant’s demurrer to the complaint, etc.
    The facts and points of the case appear fully from the following opinion of the judge at special term.
   McAdam, J.

“ Thebill demurred to is in equity to set aside, for fraud and perjury, a judgment had after a trial, in which the jury found for the defendant. The rule is that where the remedy is ample at law, chancery will not interfere, 3 Gray & Wat. on N. I., 1478. Where a party goes into equity to impeach the justice and equity of a verdict, it must be upon grounds which either could not be made available to him at law or which he was prevented from setting up by fraud, accident or the wrongful act of the other party, without any negligence or fault on his part. Vilas v. Jones, 1 N. Y., 281, 282. The jurisdiction in one court to vacate, in an independent proceeding, the judgment of another having power to render it, is in its nature so extraordinary as to demand a close adherence to principles and precedents in exercising it. Courts do not exercise it when there has been negligence on the part of the party seeking the relief. That a judgment is final and conclusive of the right or thing which is adjudicated by it, is the rule, and judgments and decrees of a competent court will not be annulled for a suspicion of fraud, or because the party complaining may in fact have been unjustly cast in judgment. Smith v. Nelson, 62 N. Y., 288. It would impair the sanctity of judgments and the faith we repose in them if they could be set aside in equity upon grounds available upon mere motion addressed to the courts which rendered them. Those courts should have the opportunity of vindicating their own honor and the integrity of their proceedings. Where' they are powerless to do it, it is time enough for equity to tender its aid. It is settled law (with few exceptions, which do apply here) that false testimony given by a party in an action at law, is not ground for equitable relief in chancery. U. S. v. Throckmorton, 98 U. S. R., 61; The Mayor v. Brady, 115 N. Y., 599; Smith v. Nelson, 62 Ib., 286; Same v. Lowery, 1 Johns. Ch., 320. There must be a conviction before even a new trial on the ground of perjury will be granted, Holtz v. Schmidt, 44 N. Y. Super. Ct., 327, and no conviction has been had here. Judgments and decrees obtained by fraud or imposition may undoubtedly be annulled in equity, but not by parties to the record who were before the court and heard respecting the matters complained of. Though the plaintiff was not actually a party to the record, his assignee, with his knowledge and approval, was. The plaintiff and the defendant were witnesses and disagreed as to the material facts, the former testifying one way and the latter the other, and for this conflict (not unusual in the trial of a cause) the plaintiff seeks a new trial of the issues by a eancellation of the judgment, on the ground that his testimony was true, and that of the defendant false. As no reported case has gone to the extent of affording a disappointed suitor relief in equity on any such ground, it is unnecessary to discuss the special cases or peculiar circumstances under which equitable relief has sometimes been awarded, for they have no application to the case presented. The frauds in those cases were extrinsic or collateral to the matter tried. The issues here have been tried at law and cannot be re-tried in equity. For these reasons, and without considering the other grounds of demurrer, it is evident the complaint does not state a cause of action, and- that the defendant is entitled to judgment on the demurrer, with costs.

A. E. Woodruff, appellant, in person.

David Leventritt, for respondent.

Per Curiam.

The judgment should be affirmed, with costs, upon the opinion of the learned judge at special term.


text:
    NELLIE POTTER, as Administratrix, etc., Respondent v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence—Action for damages‘ etc.—Contributory negligence and by fellow-servant.

    The plaintiff’s intestate, being in the employ of defendant, as a car-inspect- or, was between two cars, inspecting the coupling thereof. The cars were standing detached from an engine. While engaged in this work, an engine, with freight cars attached, backed upon the track upon which these two cars stood and caused a collision whereby the plaintiff’s intestate was killed.
    The negligence complained of was, that it being the duty of defendant to have flag-men or signal-men upon the freight cars attached to the engine and in motion, in order to signal to the operator of the engine of any obstruction being approached by the backing trainthat the defendant failed to provide such flag-men or signal-men whereby the collision occurred and plaintiff’s intestate was killed. The defendant denied negligence on its part, alleged contributory negligence, and if there was any other it was the negligence of a fellow-servant of fellow-servants in the common employment of defendant with deceased. The jury found a verdict for plaintiff for §5,000. Judgment affirmed on the opinion of the court below.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    Appeal from judgment entered upon the verdict of a jury, in favor of plaintiff, and from an order denying defendant’s motion for a new trial.
    The facts and points in the case appear from the following opinion of the trial judge upon which the judgment and order is affirmed.
   McAdam, J.

“John Potter, - a car inspector in the defendant’s employ, was inspecting certain of its cars when a train of other cars propelled by two engines suddenly switched backward on to the middle track, pushing together the cars between which he was at work, crushing him to death. He had no warning. The court sent the question of negligence to the jury, and they awarded his widow and administratrix $5,000 damages. The defendant insists it was error not to nonsuit the plaintiff, and cites Besel v. N. Y. C. & H. R. R. R. Co., 70 N. Y., 171, to sustain its claim. Whether the defendant performed its duty to its employee was, on the evidence, and the inference to be drawn from it, a question for the jury. Abel v. D. & H. C. Co., 103 N. Y., 581; S. C., 128 Ib., 662. The jury were properly instructed as to the law, and their verdict on the fact is sufficiently supported by the proofs. True, it was incumbent on the plaintiff to show affirmatively that the negligence of the defendant was the sole cause of death. But- it was unnecessary to do this by positive and direct evidence of negligence of the defendant, and of freedom from negligence of the deceased. The proofs may be indirect, and the evidence had, by showing circumstances from which the inference is fairly and logically to he drawn, that these essential facts existed. When, from the circumstances shown, inferences are to he drawn which are not certain and incontrovertible and may be differently made by different minds, the question is one for the jury. See note to 39 Am. R. at p. 513; Hays v. Miller, 70 N. Y., 112; Powell v. Powell, 71 Ib., 71; Hart v. H. R. B. Co., 80 Ib., 622; Ochsenbein v. Shapley, 85 Ib., 224. The inferences to be drawn from the evidence were sufficient to warrant the jury in finding that the defendant had not given reasonable protection to its employee while in the performance of his work, and that its breach of duty and negligence resulted in his death. The motion for a new trial must be denied. Forty days’ stay of execution after notice of entry of judgment, and a like time to make a case.”

Frank Loomis, attorney, and D. W. Tears of counsel, for appellant, argued :—

I. The court erred in refusing to dismiss the complaint or direct a verdict for the defendant. (a) The plaintiff failed to sustain the burden resting upon her of showing that the accident was due to the negligence of the defendant. In an action against a master by a servant, to recover for an injury received by the servant, in the course of his employment, the plaintiff must allege and prove that the injury was caused by the default of the master as to some duty due from the master as such to the servant. The plaintiff cannot recover if it appear that the injury was caused or contributed to by his own negligence or by the negligence of a fellow-servant, or if it appear that the injury may have been due either to the negligence of the master or of the plaintiff or of a fellow-servant. Rose v. B. A. R. R. Co., 58 N. Y., 217, 222. In this case, if in the usual course of business of the defendant, no provision was made for the protection of the car-inspector who went temporarily between the cars, and that course of business was known to the plaintiff’s intestate (and from his length of service, it must be presumed that it would be known to him), he took the risk and his representative cannot recover. A method of protection in use among railroads is referred to in Abel v. D. & H. C. Co., 103 N. Y.,581; S. C., 128 Ib., 662 (the case upon the authority of which the court denied the motion to set aside the verdict and grant a new trial), that-is to say, the putting out of some kind of signal when the car-inspector is between or under cars ; and the railroad company is considered to have discharged its duty when it has provided and promulgated suitable rules upon this subject. But the failure or omission of the railroad company in this respect must be alleged and proved; and in the absence of any allegation or proof upon the subject, it must be presumed that this defendant had provided similar rules or some method other than having a brakeman on top of the cars to guard against such an accident as happened to the plaintiff’s intestate, and that the failure to employ such rules or other method was due to the negligence of the plaintiff’s intestate or of a fellow-servant. Rose v. B. & A. R. R. Co., supra. Johnson, J., at p. 221: “ It does not appear . . . whether any regulations on. the subject, either by a prescribed time-table or otherwise, had been made by the company. But it is obvious that the company may have prescribed proper and safe rules in respect to the starting of these trains, and that those rules may have been disregarded by the persons who actually started these trains so near together.” It will be observed furthermore that in the Abel case the plaintiff alleged as the ground of negligence that the defendant had failed to make suitable rules for the protection of car-inspectors; and the cause of action was made out by showing that the defendant had failed to make a certain rule on the subject, in force on the railroad of the defendant in the case at bar. Abel v. D. & H. C. Co., supra. It may be assumed, therefore, that if, in the case at bar, the plaintiff had alleged as the negligence of the defendant giving her a right to recover, a failure to make suitable rules and regulations, the defendant would have been prepared to introduce and prove its rule which was proven by the plaintiff in the Abel case and commented upon by the court as being certainly a very efficient rule.” The plaintiff, in her complaint, charges liability upon the defendant solely for the omission to have a flagman on the top of the moving, cars, to signal the engineer to stop because of other cars upon the same track; but when it appeared on the trial, that the colliding cars were detached from the engine, this theory of liability was necessarily abandoned and the plaintiff, apparently, and properly assuming that if there had been a brakeman on top of the moving cars, he would have controlled the movement so as to prevent the contact with the stationary cars, or so that the contact would have resulted in no injury to the plaintiff’s intestate, sought to hold the defendant liable upon the allegation that there was no such brakeman on the moving cars. It is difficult to see the force of this theory, because if there were a brakeman at the west end of the moving cars, he could not have seen the deceased or known that he was between the cars. At all events, this theory of liability cannot stand, because it selects only one of various methods by which the plaintiff’s intestate might have been protected. Rose v. B. & A. R. R. Co., supra. This theory cannot stand, even if it were correct in principle, because it does not appear that it was the duty of the defendant to place a man on top of these cars for the purpose of giving warning, or that a man so stationed could have given warning to persons between cars whom he could not see, or that it was customary on the defendant’s or other railroads to do so, and because it does appear that a sufficient number of men were provided by the master for the movement and control of these cars for one of them to have been on top of the moving cars, and to have acted in the only way in which his action would be proper, that is, by applying the brakes. Besel v. N. Y. C. & H. R. R. R. Co., 70 N. Y., 171; Berrigan v. N. Y., L. E. & W. R. R. Co., 42 N. Y. St. Rep., 858. It also appears without dispute that there was a brakeman on top of the moving cars at the time they were kicked off ” from the train; and there being no allegation of impropriety on the part of the defendánt in the employment of this man or in his continuance in employment, his failure to act as the plaintiff’s testimony might be deemed to tend to show, was the negligence of a fellow-servant, the misjudgment of a fellow-servant, on account of which no recovery can be had. Besel v. N. Y. C. & H. R. R. R. Co., supra; Berrigan v. N. Y., L. E. & W. R. R. Co., supra ; (5) If from any view of the testimony it could have been found by the jury that the brakeman was not on the kicked cars at the time of the collision, or was not on them at all, yet the defendant cannot be held liable because the testimony shows without contradiction, or the possibility of a contradictory inference, that a brakeman to render the service had been employed, and was present in the yard at the time of the occurrence, with the duty of being upon, and regulating by the application of the brake, the movement of these cars. Reichel v. N. Y. C. &. H. R. R. R. Co., 130 N. Y., 682. (c) The plaintiff failed to show that the deceased himself was free from negligence contributing to his death. On the contrary, it appeared without dispute that the deceased did contribute to his death by going in between the cars. The cars were found to be defective before he went in between them; and it was undisputed that his duties did not require his going in between the cars; that this inspection should have been made from the outside, and that in the course of the defendant’s business, no notice would be given to him of approaching cars if he went between the standing cars under such circumstances. Lacroy v. N. Y., L. E. & W. R. R. Co., 43 N. Y. St. Rep., 711. If, for any reason, he deemed it necessary to go between the cars, he was negligent in not first stationing his fellow inspector, Lanigan, as a lookout, or putting out a blue flag.

II. The court erred in its refusal to charge as requested by the defendant, and in its modification of those requests.

Abram Kling, attorney and of counsel, for respondent, argued:—

I. The law imposes upon a railroad company the duty to its employees to protect them from injury, and the failure so to do is a negligence for. which they are liable. First.—It was established hy the plaintiff on the trial that the plaintiff’s intestate was in the employment of the defendant on the 20th of April, 1891, as an inspector of cars, and while thus engaged in the performance of his duties in the inspection of two cars on a side-track upon which were stored these cars which he was inspecting pursuant to the directions of his master, the defendant switched or kicked two cars upon this track, and which collided with the two cars between which the intestate was at work. Said cars so switched or kicked upon this track had no brakeman or employee upon them so as to control or stop them, and by reason of the defendant’s negligence in failing to place brakemen upon these cars they collided with the cars between which the intestate was so engaged, telescoping the cars and causing the decedent’s death. The failure of the defendant to surround the intestate with such safeguards as was necessary for his protection while in the defendant’s employment, or by placing brakemen upon these cars, or giving him notice of their intention to “ kick ” or switch these cars upon the storage track, was negligence for which the defendant was liable. In McGovern v. The Central Vermont Railroad Company, 123 N. Y., 281, the court said : It is the duty of the master having control of the times, places and conditions under which the servant is required to labor to guard him against probable danger in all cases in which that may be done by the exercise of reasonable caution. The master is required to furnish the servant adequate and suitable tools and implements for his use, a safe and proper place in which to prosecute his work, and when they are needed, the employment of skillful and competent workmen to direct his labor and the performance of his duties.”' It has been held, “ That reasonable care on the part of a servant in the performance of his work pre-supposes the performance by the master of his duty to do all that reasonably lies within his power to protect the servant while so engaged. When directing the performance of work by the servant in a place which may become dangerous arid such danger may be foreseen and guarded against by the exercise of reasonable care and prudence on the part of the master, it is his duty to exercise such care and adopt such precautions as will protect the servant from avoidable danger. ' This is the master’s duty, and however he may choose to exercise it, whether through the supervision of a superintendent or some lower grade of employment, it still continues his duty, and not until he shows that it has been properly performed can he claim exemption from liability for injuries occasioned by its non-performance.” Second.—In this case the defendant admitted that it owed a duty to the intestate to protect him by the presence of a brakeman upon the moving car; for it requested the court to charge the jury as follows : Defendant’s counsel: I ask your Honor to charge, that under the pleadings and proof in this case, the defendant was under no obligation to protect the deceased, except by the presence of a brakeman on the moving cars.” It became a question of fact under the pleadings and proof whether the defendant did protect the deceased by the presence of a brakeman upon the moving car. The jury found in favor of the plaintiff upon this issue, and their verdict is conclusive. Third.—The evidence in behalf of the defendant, that they had a brakeman upon the moving cars which collided with the two cars between which the intestate was at work, was false, for if such brakeman had been upon said moving cars, they would not have been destroyed by reason of the collision, as shown by the testimony of plaintiff’s witness; and it is most conclusively established by the fact that the brakeman alleged to have been upon these cars was never called as a witness in behalf of the defendant.

II. The defendant’s requests to charge to which exceptions were taken are untenable. First.—The request to charge that if the jury believe that the two moving cars were in charge of a brakeman on the cars, the verdict must be for the defendant, wras properly refused. The court said : “ I will charge that if this corporation entrusted the management to the charge of competent brakemen and the fault was theirs, the company is not liable. If the company failed in that duty they may be guilty of an act of negligence, and I will leave the question of negligence entirely to you.” If the master performs his full duty in the employment of competent servants, and uses every reasonable safeguard which the exigencies of the case call for, and the servant fails to perform the duty, it is a neglect of a fellow-workman for which the master is not liable. In Coppins v. The New York Central and Hudson River Railroad Company, 122 N. Y., 557, the court held: That a railroad company owes to its employees the duty of employing, so far as it can with reasonable care, only competent men in the management of its road; ” and upon the well settled rules of law, the court properly refused to charge the request, as a competent brakeman was essential to allow the defendant to escape from liability. Second. —The request to charge that if the accident was caused by the absence of a brakeman upon the moving cars, the verdict must be for the defendant, provided a brakeman was employed by the defendant and was present in the yard at the time of the accident, was properly refused for the following reasons: (1) The defendant had already requested the court to charge that under the pleadings and proof in this case the defendant was under no obligation to protect the deceased, except by the presence of a brakeman upon the moving car. And the defendant now desired the court to charge a proposition the reverse of the one already requested and inconsistent with it, so that the court should stultify itself by charging that if the accident was caused by absence of a brakeman upon the moving cars the company was not liable. No court will allow a litigant to present a request to be submitted to a jury when the same is inconsistent with a proposition already submitted for the consideration of the jury by the same party in that action. Such procedure, rf allowed, would tend to bring the administration of justice in contempt by having the court instruct a jury at a request of the party in two different ways upon the same question. (2) This request to charge was properly refused, as it was an abstract proposition unsupported by the evidence. It was the defendant’s defence, that they had a brakeman on this car which caused the death of the decedent, and whether the brakeman was in the yard or not, had nothing to do with the question before the jury. A court is not bound to submit a mere abstract proposition to a jury. Moody v. Osgood, 54 N. Y., 488; Hine v. Bowe, 114 Ib., 350. (3) The court properly refused to charge this request: That if the accident was caused by the absence of a brakeman upon the moving cars, the verdict must be for the defendant, provided a brakeman was employed by the defendant and was present in the yard at the time of the accident, for the reason that the employment of brakemen by the defendant and not connected with the train or cars which was switched or kicked upon the storage track, would not screen the defendant from liability.” It will be observed that the court stated to counsel: That if the company employed a brakeman connected with this car, and he failed in his duty, the company was not liable. But the mere employment of a brakeman without the exercise of such care and adoption of such precautions in switching these cars as would protect employees working upon the road, was negligence for which it was liable. If the defendant fails to place brakemen upon its cars which they are switching from track to track, the fact that they have employed brakemen in their yard would have no more effect in protecting them from liability than if they were employed to work in the city of Buffalo.

Per Curiam.

For the reasons set forth in the opinion of the court below, the judgment and order appealed from are affirmed, with costs.


text:
    WILLIAM P. ROOME, et al., Appellants v. FREDERICK C. JENNINGS, et al., Respondents.

      Order of attachment in an action to recover damages for injury to personal property.

    In this case the attachment was vacated on the ground that the pleadings and affidavits did not show an injury to personal property within the meaning of section 635, of the Code of Civil Procedure, and from that order of vacation plaintiffs appeal. Held, that the order is affirmed on the opinion of the court below.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    Appeal from an order of the special term vacating warrant of attachment.
    The facts and points in the case appear from the following opinion of Judge MoAdam, upon which the order was affirmed.
   McAdam, J.

The attachment was obtained on the ground of £ an injury to personal property in consequence of fraud’ {Code, § 635, subd. 3), a term which is defined to mean an act whereby £ the estate of another is lessened, other than a personal injury or breach of contract.’ Code, § 3343, subd. 10. The defendants never obtained possession of the plaintiffs’ property, as in Whitney v. Hirsch, 39 Hun, 325, did no actual injury to it, but made a contract to purchase the property, which contract the plaintiffs rescinded because they discovered that the defendants, who assumed to act as brokers, were in fact acting as principals. The market fell, and the plaintiffs insist that they lost in consequence $7,500. The defendants may be liable for breach of duty and the difference in value may be the measure of recovery, but it does not follow that they injured the plaintiffs’ property within the legal meaning of that term. See Tracy v. Leland, 2 Sandf., 730 ; 3 Code R., 37; N. Ry. of France v. Carpentier, 13 How., 222; Teaz v. Christie, 2 Abb., 259. The defendants did nothing to lessen the estate of the plaintiffs, which remains as before, and it was not affected, except as to value, a thing controlled entirely by the fluctuations of the market, which at times rises and falls. The word .injury as used in the Code is not so elastic as to yield to such a changeable construction, but upon something which takes away the property, deprives the owner of its possession or inflicts some lasting injury upon it by direct means. The motion to vacate the attachment must be granted, with $10 costs.”

F. A. Thompson, attorney, and James J. Allen of counsel, for appellants.

Putney & Bishop, attorneys, and James L. Bishop of counsel, for respondents.

Per Curiam.

The order appealed from is affirmed, with ten dollars costs and disbursements, on the opinion of the court below.


author: Gildersleeve, J. Per Curiam.

text:
    THOMAS C. SMITH, Respondent v. THE COLLEGE OF ST. FRANCIS XAVIER, et al., Appellants.
    Stay of proceedings in one action where two actions have been commenced, in both of which it is claimed the parties are the same, and the entire relief sought in the one case can be obtained in the other.

      Held, that the order of the special term, denying a stay, should be affirmed upon the opinion of the judge thereof.
    Before Freedman, P. J., and Dugro, J.

      Decided July 5, 1892.
    Appeal by defendant Mary Lavelle from an order made at special term, denying her motion to stay proceedings. The facts and points in the case appear from the following opinion of the judge at special term upon which this order was affirmed.
   Gildersleeve, J.

“ Ido not think this action and the one in the Supreme Court are identical. The papers before me do not disclose a state of facts that warrant the granting of a stay in this action preceding the determination of the Supreme Court action. It will not be denied that when two suits are commenced in different courts, and the subject of the action and the parties are the same in each, the court which first acquires jurisdiction should dispose of the whole matter. McCarthy v. Peake, 18 How., 138. But the parties to these two actions are not the same, inasmuch as John Gorman, who appears as one of the defendants in the Supreme Court case, is not mentioned in the Superior Court suit. What his interest is does not appear; but the fact remains that the parties to the two suits are not identical.

W. Tazewell Fox, for appellant Mary Lavelle, argued:—

I. Where two suits are commenced, and the subject matter of the action of both suits and the parties are the same, and the entire relief demanded and sought in the one case can be obtained in the other, the one last brought will be stayed. Baylies’ Trial Prac., 35; McCarthy v. Peake, 18 How., 138. The reasoning in the latter case is decisive of this appeal. The court must not be misled by the use of the term “ issues,” by the counsel for the respondent, as if it were synonymous with the “ subject matter ” of the action. It is not necessary for the court to know what the “ issues ” are. If the “ subject matter ” is the same as disclosed by the complaints and the parties the same, the junior action will be stayed. McCarthy v. Peake, supra. The cases of Stowell v. Chamberlain, 60 N. Y., 272, and Dawley v. Brown, 79 Ib., 398, relied upon by the learned judge at special term, are clearly distinguishable from the present case. The phrases “ property involved ” and “ subject matter ” are not convertible terms. In Stowell v. Chamberlain, the “ property involved ” was the same in both of the actions considered, but the “ subject matter,” was entirely different. In the one case, the subject matter was a contract (see the first line of Judge Allen’s opinion at page 274), and in the other, the “subject matter” was a t^rt (see top of page 276 in same case). Of course, the same evidence could not, therefore, have sustained both actions. The case of Dawley v. Brown, supra, also cited by the learned special term judge to sustain his opinion, so far from aiding the respondent, is a strong authority for the appellant. At the bottom of page 399, it distinctly decides that if the “ same title is sought to be litigated in both actions,” relief will be granted, either by granting a stay in the second action, or by sustaining a plea of former action pending. The two cases considered in Dawley v. Brown, supra, presented two distinct titles, and therefore the same evidence would not sustain both actions, which were in ejectment. This case nowhere decides that “ it is necessary that it appear that the first action is for the identical relief demanded in the second action.” All that it says is, that the “ causes of action ” must be the same. Still less does Kelsey v. Ward, 16 Abb., 102-103, sustain the respondent. It is palpable that the causes of action were entirely different. Both were for rent, but the subject matter ” of one action was a contract calling for payments quarterly, and of the other an entirely different contract calling for payments yearly.

It is true that the property involved is the same in both actions ; but that is not a sufficient reason for granting the stay. Stowell v. Chamberlain, 60 N. Y., 272 ; Dawley v. Brown, 79 Ib., 398-400. It is also true that all the relief demanded in the Superior Court case, which is the junior action, is demanded in the Supreme Court case, but the complaint in the latter case alleges additional matter, and the prayer asked for more than is sought in the Superior Court case. The same evidence would not support both actions, inasmuch as more evidence would be required in the Supreme Court case than would be necessary in the Superior Court case. See Stowell v. Chamberlain, supra. To sustain a plea of former action pending, which is governed by the same principle as a motion for a stay (Dawley v. Brown, supra,) it is necessary that it appear that the first action is for the identical relief demanded in the second action, Dawley v. Brown, supra; Kelsey v. Ward, 16 Abb., 102-103, affirmed, 38 N. Y., 83. So closely has this rule been enforced that, in the case of Kelsey v. Ward, supra, which is quoted with approval by the Court of Appeals in the case of Dawley v. Brown, supra, it was held that the pendency of actions for rent alleged to be payable quarterly was no defence to an action for the same rent under a claim that it was payable at the end of the year. Under the circumstances, the motion for stay is denied, without costs.”

II. The cause of action, or the subject matter ” of the two suits under consideration on this appeal is identical. What is the cause of action ” in these two suits as disclosed by the two complaints ? Why the partition of the identical property—and before either suit can go to judgment the title of the property must be proved. It is the same title in both actions which must be proved, and so falls strictly within the rule laid down in Dawley v. Brown, supra. The identical evidence must be given in both actions, before judgment can be had, and it matters not whether it be given upon issues raised between the defendants among themselves in the Superior Court action, as permitted by action 1543 of the Code, or upon the issues raised by the complaint and answers in the Supreme Court case. In each case the identical title, the same “ subject matter,” is to be litigated, and the same relief granted to all of the parties,viz., the sale of the identical property and the proper distribution of the proceeds among those entitled thereto. In either case the identical questions have to be passed upon and litigated, and upon the identical evidence. It matters not whether that evidence come from plaintiffs or defendants, Hornfager v. Hornfager, 6 How., 279. Prior to the adoption of the Code, questions of title could not be litigated in partition suits, but now section 1543 makes express provision for such litigation in partition actions. Knapp on Partition, p. 172; Knapp v. Burton, 7Civ. Pro. Rep., 448 ; Hulse v. Hulse, 23 State Rep., 123, and Shannon v. Pickell, 2 Ib., 160, expressly decide that questions of title may be decided in partition actions. See, also Hornfager v. Hornfager, supra. The case of Van Schuyver v. Mulford, 59 N. Y., 426, was decided prior to the adoption of the Code, and. is no longer applicable. The College of St. Francis Xavier is not in possession adversely and its alleged deed is an absolute nullity. Gridley v. College of St. Francis Xavier, Supreme Court, General Term, Second Department, decided February, 1892, and not yet reported.

George Bliss, for appellant The College of St. Francis Xavier, argued :—

I. The causes of action are not really identical. But passing that, it is clear that the Lavelle action cannot be maintained. It is an action in partition. The moving affidavit shows this, as does the complaint. But the complaint shows that the Lavelle action cannot be maintained, for it shows that the plaintiff and the defendant, the College of St. Francis Xavier, are not tenants in common. The complaint denies that the college is a tenant at all; it shows, if its statements are true, that the college is holding adversely and denying plaintiff’s title. But it is familiar law that, if the possession is adverse, partition will not lie. Code, § 1532 ; Florence v. Hopkins, 46 N. Y., 182 ; Van Schuyver v. Mulford, 59 Ib., 426. Section 1537 of the Code does not help the plaintiff in the Lavelle case. That section relieves the plaintiff from the necessity of being in possession, to maintain partition where a devise is claimed to be void, but does not do away with the rule that the possession must not be adverse; certainly not except in a case where the adverse possession is based upon the alleged void devise. It cannot have that effect where the adverse possession antedates the death of the testatrix, and was adverse to her. There are different parties to the two actions. Gorman is not a party to the Lavelle action.

II. There must be more proof in the Supreme Court action than in the action in this court. The court cannot say that the issues in the two actions are the same. Neither of the answers is in the printed case. The moving party, therefore, does not seem to consider them before the court for the purposes of this motion. An examination of the two complaints does not indicate that the issues are the same. In the Lavelle case, for instance, the validity of the alleged inquisition of idiocy is directly drawn in question. So is the validity of the devises in the will of Ann Owens, and the capacity of the devisees to take. It cannot be inferred from the identity of the defendants that their answers put in issue the same matters. For instance, in this suit, Mrs. Lavelle, as the person in occupation, is a proper, if not necessary, defendant, and her presence does not necessarily imply that she asserts her ownership, nor that her defence involves the question of the invalidity of the inquisition nor the illegality of the devises.

Alexander B. Johnson, for respondent, argued :—

I. Plaintiffs action is one of simple partition. The Lavelle action assails the validity of the deed made by Ann Eliza to the college, and asks for its cancellation. Section 1537 of the Code allows a suitor in partition to assail a devise in a will, but the Lavelle action goes far beyond that, and asks to remove this deed from record. It therefore follows that the causes of action are not the same. Mrs. Lavelle is a stranger to the title. Proof will be required to maintain the Lavelle action that will not be required in this action. The relief demanded is not the same. Mrs. Lavelle demands relief by setting aside the deed without which she could have no standing in court.

II. The two actions are not between the same parties. It is well settled that the causes of action must be identical and the parties the same. Kelsey v. Ward, 16 Abb., 98, affd., 38 N. Y., 83; Hain v. Baker, 5 Ib., 357; Stowell v. Chamberlain, 60 Ib., 272; Dawley v. Brown, 79 Ib., 398-400.

Per Curiam.

The order should be affirmed, with ten dollars costs, etc., upon the opinion filed by the learned judge of the court 'below.


author: By the Court.—McAdam, J.

text:
    JOHN DOUGLASS, Respondent v. HENRY J. MEYER, Appellant.

      Order for the examination of defendant as awitness before trial on thepart of plaintiff, under sections 870, 871, and 872 of the Code.

    The order appealed from was an order of the special term, denying a motion made by defendant to vacate an order previously made, requiring defendant to submit to an examination as a witness before the trial on the part of the plaintiff, and the questions and facts before the court in the • original proceeding are now considered on this appeal.

      Held, that the order must be affirmed, except that the examination should he limited to the defendant’s ownership of the elevator and his relations to the persons who had it in charge at the time of the injury, and the disclosure of the name and address of the physician called by the defendant to attend the plaintiff. The right to such an examination, under the provisions of the Code, is subject to the power of the court to confine the scope of the examination to the legal necessities of the party who seeks it.
    Before Freedman, P. J., and McAdam, J.

      Decided October 24, 1892.
    The plaintiff complains that while passing the defendant’s place of business, he was struck by an iron bar falling from the elevator lift in front of defendant’s store ; that the blow rendered the plaintiff unconscious, and he was carried into the defendant’s premises and there restored to consciousness by a physician procured by the defendant, and that the plaintiff was thereafter sent home in a cab. Plaintiff sues to recover $1,000 for his injuries, charging negligence on the part of the defendant and his servants in the management of the lift. The defendant in his answer denies all liability.

      Upon an affidavit complying with the requirements of the Code, the plaintiff procured an order requiring vne defendant to submit to an examination as a witness before trial on the part of the plaintiff. From an order of the special term denying a motion made by the defendant to vacate the order for examination, this appeal is taken.

      James Forrest, for appellant.

      Edward H. Kissam, for respondent.
   By the Court.—McAdam, J.

The general rules of practice provide that where an examination is required under sections 870, 871 and 872 of the Code, the affidavit shall specify the facts and circumstances which show, in conformity with subdivision 4 of section 872, that the examination of the party is material and necessary (Buie 83). In compliance with this rule, the plaintiff swears he believes that the defendant knows the name of the physician who attended the plaintiff and the names of the various witnesses who were present at the accident, whom deponent will need to prove the manner of the accident and the injury then received by him, as well as the ownership and management of the elevator lift which caused the injury, and that the plaintiff does not know the name of the physician or of said witnesses.”

While it is true the Code provisions apply to all actions, the right is qualified by the condition that the examination may be had only in cases where the same is both necessary and material ” and where the witness might be compelled to testify to the same facts at the trial. The judge to whom the application is made is to determine the materiality or necessity from the facts stated, and he is to see that the privilege is not abused because the mere circumstance that a party has been examined bef ore trial does not preclude his examination at the trial (Berdell v. Berdell, 27 Hun, 24; Misland v. Boynton, 79 N. Y., 630), and the court may, upon all the facts appearing, vacate the order and leave the party to take the examination at the trial,. Jenkins v. Putnam, 106 N. Y., 276. Where it appears that the proceeding is experimental, unnecessary, instituted to vex or harass, or for idle or frivolous purposes, the order should he vacated. Sumner v. Hosford, 12 Week. Dig., 440. If the proceeding contemplates a broader line of examination than is necessary and material, “It is for the judges now,” said the Court of Appeals, “ by rules of practice and by rulings at the examination, to keep the plaintiff within proper bounds, and to ward off from the party all inquiry which is vain or curious.” Glenney v. Stedwell, 64 N. Y., 123. In Herbage v. City of Utica, 109 N. Y., 81, an order limiting an examination was reversed, because “ the order appealed from was so limited, not according to the discretion of the court, by which it might have been restrained, but because, as appeared by the order, the court was of opinion that it had no power to order otherwise.” Indeed, section 873 of the Code as amended in 1879, expressly declares that the judge who grants the order, may in his discretion “ designate and limit the particular matters as to which the party shall be examined,” and whatever discretion the judge below had in the premises, may be exercised by the court at general term, for the appeal is nothing more or less than a continuation of the same proceeding in the same court. Phipps v. Carman, 26 Hun, 518. The power was exercised by the general term in Kinsella v. The Second Ave. R. R. Co., 46 State Rep., 251, 19 N. Y. Supplt., 188, in which the court intimates that the granting of unrestricted orders for the examination of parties in negligence cases leads to great and unnecessary consumption of time and hardship to litigants, without commensurate results, and decided to modify the order by limiting the examination within certain specified bounds.

The right to the examination, is subject, therefore, to the power of the court to confine the scope of the examination to the legal necessities of the party who seeks it. We make these observations because the plaintiff seeks to ascertain from the defendant, the names of the various witnesses who were present at the accident, and the authorities hold that where the object of the examination is to enable the moving party to look up witnesses to be used against his opponent, it will not be allowed (Beach v. Mayor, 14 Hun, 79; Chapin v. Thompson, 16 Ib., 53), nor will the examination be permitted to discover the testimony which the adverse party may be able to give in support of his defence. Fourth Nat. Bank v. Boynton, 29 Hun, 441; Schepmoes v. Bousson, 1 Abb. N. C., 481. If these liberties were allowed, every railroad company might be required by parties prosecuting them for negligence to furnish the names of all their witnesses in advance of the trial, a course not sanctioned in the conduct of civil causes.

We think the examination should be limited to the defendant’s ownership of the elevator, and his relations to the persons who had it in charge at the time of the injury, followed by the disclosure of the name and address of the physician called by the defendant to attend the plaintiff.

This information, seemingly important, is within the peculiar knowledge of the defendant, is material to the plaintiff’s case, the establishment of the facts essential to the recovery sought for, and an examination of the defendant respecting the same substantially a legal right. Carter v. Good, 57 Hun, 116; Sweeney v. Sturges, 24 Ib., 162; Goldberg v. Roberts, 12 Daly, 339 ; S. C., 67 How., 269. In Sweeney v. Sturges, supra, the injury was done by a machine the ownership of which was denied, and the court held that the plaintiff had the right to establish such ownership by the defendant’s examination before trial.

In Goldberg v. Roberts, supra, the copartnership of the defendants was denied, and the court held that the plaintiff was entitled to examine the defendants respecting the same. See also, Glenney v. Stedwell, 64 N. Y., 123. Examinations as to such matters are not experimental merely, but in the nature of the discovery formerly allowed in equity (Glenney v. Stedwell, supra,), although the Code provisions are far more than a substitute for the old bill of discovery. Hynes v. McDermott, 55 How,, 260. The disclosure here sought for is necessary to supply the links in the chain which associate the defendant with the liability charged. The right to examine an adverse party before trial, has frequently been before the courts and has called forth many adjudications upon the subject. This is owing in part to the numerous phases in which the question was presented and the difficulty of applying immutable rules to all cases in which such examinations were claimed. In view of this fact probably the Court of Appeals, in Jenkins v. Putnam, 106 N. Y., 276, said : It is one of those matters of practice which should always be left to the discretion of the court of original jurisdiction, and its decision should not be reviewed here unless it appears from its order that the decision was placed upon some ground of law not involving discretion.”

With the modifications suggested the order is right and must be affirmed, but without costs.

Freedman, P. J., concurred.