VAN WICKLE 'V. MANHATTAN
(Oircuit (](J'Urt, S. D. New York. January 14. 1886.)
MASTElt AND SEltVANT-FELLOW-SEltVANTS- ENGINEElt AND TRAOK-REPAIRER.
A track-repairer and an of an elevated railroad company are fellow-servants, and for a personal injury resulting to the former, while in the courlle of hill employment, solely from the neglig-ence of the latter in run· ning his train at too high a rate of speed, the company is not liable; such negligence of the engineer being one of the natural and ordinary risks incident tQ the track-repairer's employment. 1
On motion for new trial.
Edward Gebhard, for plaintiff. Hugh L. Oole, for defendant.
COXE, J. The plaintiff, while engaged as traCk-repairer upon the structUre of the elevated railroad on Sixth avenue, New York, was injured solely by the negligence of an engineer in running his train at too high a rate of speed. Both were employes ofthe defendant. The court directed a verdict for the defendant, upon the ground that the engineer and the plaintiff were fellow-servants, and for the 'former's negligence, it being one of the natural and ordinary risks incident to the work in which plaintiff was engaged, no action could be maintained by him against the common master. The plaintiff now moves for a new trial. It cannot be denied that the rultl which exempts the master from liability in such eases is being gradually relaxed, so as to permit recoveries in many cases which would have been promptly dismissed a few years ago. Indeed, it may be said that the tendency of many recent decisions -noticeably, Garrahy v. Kansa.s R. 00., 25 Fed. Rep. 258-is to restrict it to such narrow limits that, practically, it exists in name only. Recognizing the marked'laok of unanimity among the decisions, it may still be confidently affirmed that the proposition that persons holding the relation that this plaintiff and the engineer held to each other, are fellow-servants is maintained by a great preponderance of authority. Whether the reasons which brought the rule into being require that it should be maintained, may well be doubted but it is entirely clear that so far at least as this circuit is concerned tbe rule is still recognized and enforced. The follOWing authorities, arnongothers, sustain the view taken upon the trial: Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322; Boldt v. Railroad (h., 18 N. Y. 432; (hon v. Railroad Co., 5 N. Y. 492; Vick v. Railroad Co.,95 N. Y. 267; Brick v. Railroad 00., 98 N. Y. 211; Quinn v. Lighterage Co., 23 Blatchf. 209,. 23 Fed. Rep. 363. The motion for a new trial is denied.
the point as to who are fellow-servants within the meaning of the rule ex· emptmg the master from liability for injuries resulting to an employe through the· negligence of a co-servant, see Reddon v. Railroad Co., (Utah,) 15 Pac. Rep. - , and Toote.
HALSTED V. STRAUS.
HALSTED and others v. STRAUS.
(Circuit CQurt, D. N(J'IJ) Jersey. October 5, 1887.}
ASSIGNMENT FOR BENEFIT OF CREDITORS-PREFERENCES.
Under the statute of New Jersey (Revision, p. 36,) declaring void all pref· in assignments for the benofit of creditors, an assignment for the benefit of creditors containing preferences, made in New York by a firm doing busmess in New business there, is not void agamst a firm of creditors York, one of whose members is a resident of New Jersey)
i Where 'one made an assignment for the benefit of creditors in New York, thes)Jbsequent attachment in New Jersey by a New York creditor of a debt owing to the assignor is not of itself a defense to an action by the assignee for the recovery oithe debt.
"2. SAME-ATTAOHMENT IN ANOTHER STATE.
attachment of a debt in New Jersey by a resident of New York·.after the execution in New York,. by the owner of the debt, of an assignment for the benefit 'of creditors, will not prevent the federal courts from entertaining a suit .by the assignee for the recovery of the debt. '
WiUi:amson & McCarter, for plaintiffs. R. 13yirtgtonand Edward M. Celie, for defendant.
Thilda an action of indebitatua a#umpBit, brought iby plaintiffs for the use of their assignee, J..ewis May, all citizens of New York, against Straus, a citizen of New Jersey. .The defendant in abatement that, before the bringing of this suit, debt sued for waS att!tched by writ of attachment issued out of the supreme court .-of NewJersey, at the suit of certain persons trading under the firm name .of Deering, Milliken ;&00;, (one of whom was a citizen of New Jersey, the others n<;>t,) creditors of Halsted, Haines & 00., the plaintiffs in suit; and that the attachment had gone to judgment by default .against the latter, and a scire facia8 against the defendant, to show cause why he should not pay the debt involved in this suit to the said plaintiffs in attachment. The plaintiffs replied that before the executi<:m of .said attachment Halsted, Haines & 00., who were doing business in .New York, .made a general deed of assignment of all their property and both partnership and personal, including the debt nQW in dispute, to the said Lewis May,ill trust for the creditors of said firm of Halsted, Haines & 00., and of the individual members of. said firm, in the manner and proportions set forth in said deed, which is fully set outin the replication; that May accepted said trust, and proceeded to execute the same; that the attachment referred to in the plea was issued to recover a debt incurred by Halsted, Haines & Co. in New York, where said firm of Deering, Milliken & Co. transacted business, and that they ha.ve never .()arriedon business in New Jersey. It appeared by: the deed of assign:plent set out in the, replication that the assignors made preferences in
lA voluntary general assignment for the benefit of creditors. if valid where, made, will be valid to ttansfer persolial property wherever situated, except as it conflicts with
.:the rights ofresident credi'tor.v Schuler v. Israel, 27 Fed. Rep. 851.