Volume 94 — New York Appellate Division Reports

<p>Charge against a county for the care of a deaf mute at a State institution — a change of residence of the parents to another county during the period of such ca/re does not relieve the county from which the child was sent from such expense.</p> <p>Chapter 325 of the Laws of 1863, as amended by chapter 213 of the Laws of 1875 and chapter 36 of the Laws of 1892, provides that “any parent, guardian or friend of a deaf-mute child within this State, over the age of five years and under the age of twelve years, may make application to the overseer of the poor of any town, or to any supervisor of the county, wjiere such child m'ay be, showing by satisfactory affidavit or other proof that the health, morals or comfort of such child may be endangered or not properly cared for,” and that thereupon it shall be the duty of such officer to place such child in one of the institutions named in the statute.</p> <p>The statute further provides that the children placed in said institutions “shall be maintained therein at the expense of the county from whence they came, provided that such expense shall not exceed three hundred dollars each per year, until they attain the age of twelve years.”</p> <p>In an action to recover for the care of a deaf mute child who was placed in such an institution, pursuant to the provisions of the statute cited, by a supervisor of the county of Tates, in which county the parents of the child then resided, it appeared that, prior to the time when the child became twelve years of age, her parents removed to the county of Ontario and continuously resided in that county until the child became twelve years of age.</p> <p>Held, that the change of residence of the parents did not operate to relieve the county of Yates from liability for the expense of maintaining the child in the institution, after such change of residence, until it became twelve years of age.</p>

Appeal by the defendant, The Lewiston and Youngstown Frontier Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 11th day of Hay, 1903, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 23d day of July, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, George Macey and another, as executors, etc., of Haorni Yan Bokkelen, deceased, from a judgment qf the Supreme Court ip favqr of the plaintiffs, entered in the office of the clerk of the county of Erie on the 16th day of November, 1903, upon the report of a referee.

<p>Appeal by the plaintiff, Theresa Hoehn, as administratrix, etc., of Anton Hoehn, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 20th day of November, 1903, upon a nonsuit granted by the court after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 18th day of November, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Anton J. Wiechers, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 31st day of March, 1903, and entered in the office of the clerk of ,the county of Erie, upon -the verdict of a jury convicting the said defendant of the crime of conspiracy.

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 9th day of June, 1903, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 19th day of May, 1903, denying- the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Hew York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 12th day of January, 1903, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 7th day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Edith Sitts, an infant, by Felson J. Sitts, her guardian ad litem, from a judgment of the Supreme Court' in favor of the defendant, entered in the office of the clerk of the county of Herkimer on the 14th day of April, 1903, upon the dismissal of the .complaint by direction of the court after, a trial at •the Herkimer Trial Term.

<p>Note — what services to the maker furnish a sufficient consideration therefor—when a note is given for services and, not as a gratuity —when the right to recover for services rendered, by children does not inure to the head, of the family.</p> <p>In an action brought against the administrator of George W. Todd, who died April 4, 1903, to recover upon the following instrument:</p> <p>“West Schuyler, December 34, 1878.</p> <p>“I promise to pay to Jennie Crawford (the plaintiff) five thousand § when I die and George Crawford five thousand $ I give Jennie 1.00 dollar for socks to-night.</p> <p>+</p> <p>“GEO. W. TODD.”</p> <p>+</p> <p>it appeared that Todd, although a man of property, led a vagabond life; that some days prior to the date of the instrument, Todd, whose arms, hands and feet were then badly frozen, sought shelter at the house of one Johnson, in whose family the plaintiff and her brother, who, at the time, were fourteen or fifteen years of age, were living. Objection was raised to the admission of Todd to the Johnson house, but he was finally admitted, upon the intercession of the plaintiff and her brother. Todd spent several days at the Johnson house, during which time the plaintiff tended to his wants, treated his frozen feet and otherwise administered to his comfort and recovery.</p> <p>During his stay he executed the instrument sued upon and told the plaintiff to keep the paper until his death when it would be good. Todd believed at the time he signed the paper that he would have died from exposure if he had not been admitted to the Johnson house.</p> <p>The court charged the jury that the plaintiff could not recover unless the instrument upon which she claimed was based upon a legal consideration in the way of services rendered as distinguished from a mere gift and expression of regard, and that the burden rested upon the plaintiff to show that there was a sufficient consideration for the note.</p> <p>Held, that a judgment entered upon a-verdict in favor of the plaintiff should be affirmed;</p> <p>That the evidence was sufficient to warrant a finding that the note was given in payment for services and was not a mere gratuity;</p> <p>That the consideration for the note was not so inadequate or colorable as to render it invalid for that reason;</p> <p>That Todd had the right to measure and fix for himself the value of the services rendered to him;</p> <p>That it could not be successfully maintained that the right to recover for the services rendered to Todd by the plaintiff and her brother inured to the head of the Johnson family, as the Johnson family were present when Todd executed the obligation and by their conduct then and since had acquiesced in . the payment directly to the infants.</p> <p>Semble, that simple gratitude, as a mere sentiment resting upon no material basis in the way of valuable benefits received, is not a sufficient consideration to ■ sustain an obligation. ' I</p>

Appeal by the plaintiff, the Crane Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 24th day of December, 1903, upon the decision of the court rendered after a trial at the Monroe Special Term dismissing the complaint and canceling of record a. notice of lien theretofore filed by the plaintiff for materials furnished.

<p>Negligence—death of an employ el caused Iby the pulling out of a section from, a header used for the distribution of steam — question whether a T was sufficiently screwed into the header, and whether the thread of the screw was injured by leaking steam, and water — assumption of risk—■contributory negligence.</p> <p>In an action brought to recover damages resulting from the death of the .plaintiffs intestate while in the employ of the defendant, a brewing company, it appeared that the defendant maintained an appliance known as a header for the reception and distribution of steam from its boiler plant; that the header was divided into four sections, which Were joined together by the ends of the sections being screwed' into heavy cast-iron Ts ; that on the day of the accident the intestate was sent to calk the joints of the header to prevent the leakage of steam or water, and that at the same time another employee was sent into the room in which the header was located for another purpose; .that . a, few hours later the attention of other employees of the defendant was attracted by the noise of escaping steam; that after the steam was shut off it was found that one of the sections had pulled out of the T into which it had been screwed. The intestate was found on the floor about fifteen feet away from the broken joint, and the other employee was found some distance therefrom in the opposite direction; one of the men was dead when found, and the other one was unconscious and lived only a short time.</p> <p>Evidence was given tending to show that for a period of several years there had been a leakage of steam and water at the joints of the header, and that for the purpose of preventing this leakage the joints were calked from time to time; that the leakage of steam and water at the joints would have an injurious effect upon the iron and upon the thread of the screw; that, at the broken joint, the section was screwed into the T to the extent of about eight or nine threads, whereas there were twenty-one or twenty-two threads upon the screw at the end of the section; that an examination of the broken joint after the accident disclosed that the iron was discolored, and that the edges of the thread, instead of being sharp and perfect, were rounded off and somewhat bent; that there were two tests which would have disclosed any defective condition of the iron, but that neither of them was made.</p> <p>Held, that a judgment for the defendant entered upon a verdict rendered by direction of the court should be reversed;</p> <p>That the jury would have the right to say that the breaking of the joint was due to the failure to screw the section of the header a sufficient distance into the T, increased and aggravated by the impairment and weakening of the threads from the leaking steam and water during the nine years that the header had been in use;</p> <p>That as the intestate was usually employed in another building and had never, save on one occasion, worked in the room in which the header was located prior to the occasion of the accident, and had had nothing to do with its erection, construction or maintenance, and as it did not appear that he knew the condition of the joint in question and of the frequent leakage of steam and water, it could not be said, as a matter of law, that he assumed the risk incident to the defective condition of the header;</p> <p>That while there was no direct evidence to show what the intestate and his coemployee were doing at the time the joint parted, there was sufficient evidence to enable the jury to say that the intestate was free from contributory negligence.</p> <p>Stover, J., dissented.</p>

<p>Appeal by the defendant, Stoel W. Loomis, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 17th day of January, 1903, upon the report of a referee appointed to sell the property sought to be partitioned in the above-entitled action, with notice of an intention to bring up for review upon such appeal an interlocutory judgment entered in said clerk’s office on the 5th day of April, 1902, upon the report of a referee appointed to hear and deter mine-the issues in the action.</p> <p>The action was commenced on the 19th day of September, 1900,' for the partition of certain real property situate .in the county of Jefferson, of which one Manley Loomis, who died intestate on the 9th .day of January, 1896, was the owner and in possession of at the time of his death. He left him surviving the plaintiff, Lucelia Willes, a daughter, and the defendants Rachael B. Loomis, his widow; Laura Loomis, a daughter; Stoel Loomis and Jay Loomis, his sons; said parties being his only heirs at law and next of kin. The plaintiff alleged in her complaint that the four children of Manley Loomis, deceased, were each entitled to an undivided one-fourth part of the premises described in the complaint, subject to the dower rights of the widow of tbe deceased. She also alleges that upon the death of said Manley Loomis, the defendant Stoel Loomis entered into possession of the said real property, and has ever since occupied and used the same in carrying on his business, to the total exclusion of the other parties to the action; that such use and occupation was reasonably worth $200 per year from the date of the death of said Manley Loomis. The plaintiff demanded judgment that the real property be partitioned and “ an accounting be had as to the use and occupation of the said premises by the defendant Stoel Loomis, and the value thereof fixed by the court.”</p> <p>The only defendant who answered was Stoel Loomis. He denied that he used or occupied the premises in question to the exclusion of his cotenants or of the defendant Rachael B. Loomis, and alleged that his brother, Jay Loomis, and his mother, Rachael B. Loomis, occupied a portion of said premises either personally or through tenants, from whom they received! rents ; and alleged that all of his cotenants have had the privilege to' occupy the premises in question in connection with his use thereof^</p> <p>The referee found that the plaintiff and the defendants, children of Manley Loomis, deceased, are entitled to an undivided one-fourth interest in the property described in the complaint, subject to the dower right of their mother, Rachael B. Loomis; that upon the death of Manley Loomis, the defendant Stoel Loomis entered into possession of the premises and has ever since occupied the same to the exclusion of his cotenánts, and that the value of such use and occupation was $200 a year, or $1,200 for the entire term of his occupation thereof. The referee found that the defendant Stoel Loomis had expended for taxes and necessary repairs upon the premises the sum of $197.32, for which he should be credited upon the rental value, leaving $1,002.68, for which the said Stoel Loomis should account. Of such balance the referee found that the widow, Rachael B. Loomis, is entitled to $334.22; the plaintiff, Lucelia Willes, the defendants Stoel Loomis, Jay Loomis and Laura Loomis, are each entitled to $167-11. The referee also determined that a judgment recovered by Stoel Loomis against his mother, Rachael B. Loomis,'for $436.58, is a lien upon the interest of Rachael B. Loomis</p> <p>in. and to the premises sought to be partitioned; also that a judgment recovered by Stoel' Loomis against the defendant Jay Loomis for $115.95 is a lien upon the interest and share of Jay Loomis. It was also found that the property in question is so situated that it cannot be sold in parcels without material injury to the interests of the parties.</p> <p>Judgment of partition and sale was ordered and directing that the proceeds should be distributed in accordance with the findings of the referee above referred to. From such judgment this appeal is taken.</p>

<p>Appeal by the plaintiff, Charles H. Corregan, from a judgment of the Supreme Court in favor of the defendants, entered in the office. of the clerk of the county of Onondaga on the 11th day of ‘ September, 1903^ upon the decision of the court rendered after a trial at the Onondaga Special Term dismissing the plaintiff’s complaint.</p> <p>The action was commenced on the 9th day of September, 1901, to compel the defendants to reinstate the plaintiff to full membership in Syracuse ■ Typographical Union No. 55, from which he alleged he was wrongfully expelled; to restrain and enjoin the defendants from in any manner preventing or attempting to prevent the plaintiff from obtaining employment at his trade, that of a printer, and to recover damages claimed to have been sustained by him through the alleged wrongful acts of the defendants.</p> <p>The chief defense interposed by the defendants is that the plaintiff was bound to exhaust his remedies within the organization to which he belonged before appealing to the courts for redress, and that having failed to do so he cannot maintain this action.</p>

<p>Appeal by the plaintiff, Lizzie N. Mason, from a judgment of the Supreme Court in favor of' the defendant, entered in the office of the clerk of the county of Onondaga on the 28th day of July, 1903, upon the decision of the court rendered after a trial at the Onondaga Special Term dismissing the plaintiff’s complaint.</p> <p>The action was commenced on the 25th day of April, 1903, to obtain a permanent injunction against the defendant preventing and restraining him from in any manner interfering with a hydraulic ram located upon his property and used by the plaintiff to force water to certain premises owned and occupied by her, or with the spring with which the ram was connected or the system of pipes used in connection therewith.</p>

Appeal by the defendant, Ahira I. Root, from a judgment of the County Court of Cattaraugus county in favor of the plaintiff, entered on the 22d day of October, 1903, upon the verdict of a jury, convicting the defendant of the crime of perjury, and also from an order entered in the office of the clerk of the county of Cattaraugus on the 24th day of October, 1903, denying the defendant’s motion for a new trial made upon the minutes. , The defendant was indicted by the grand…

<p>Proposal and acceptance of an offer to furnish material and work—when binding although a further formal contract is contemplated •— effect of the parties treating them as tentative and, each insisting on modifications.</p> <p>A bidder for the work of constructing a municipal improvement, while the bids were being considered by the municipal authorities, entered into negotiations with a manufacturing corporation which terminated in a written proposition' made by the corporation and accepted by the bidder, whereby the corporation agreed to furnish the materials and perform certain work in connection with the contemplated improvement at certain specified prices. The written proposition contained the provision that upon the award of the contract to the bidder a written agreement between the parties should be executed. The bidder obtained the contract.</p> <p>Held-, that the proposition and acceptance, taken by themselves, constituted a valid agreement between the parties, and that its validity was not impaired by the fact that it was to be followed by a formal contract;</p> <p>That if either party had refused to enter into the intended formal contract, the other party thereto could specifically enforce the agreement embodied in the proposition and acceptance or recover the damages resulting from such refusal;</p> <p>That, as both parties had, however, coincided in the conclusion that the proposition and acceptance were tentative and subject to substantial modifications, and had failed to agree upon such modifications, or to enter into the formal contract, the bidder could not enforce the contract contained in the proposition and acceptance.</p>

<p>Discharge in bankruptcy — a •judgment will be discharged of reced'd although the notice required by the Bankruptcy Law was addressed, to the judgment creditor, who died prior to the proceedings in bankruptcy, and her name appeared in the schedule of creditors.</p> <p>Adelaide V. Lent, who, on May 28, 1898, recovered a judgment against William H. Farnsworth, died in November, 1898, leaving a last will and testament, in which she named her mother, Sarah J. Lent, sole legatee, devisee and executrix. The will was admitted to probate in September, 1903. March 4, 1899, Farnsworth was adjudged a bankrupt and on May 9, 1899, he was discharged from his debts. In the schedule of creditors accompanying the petition in bankruptcy the name of the owner of the judgment was given as Adelaide V. Lent and her residence as Niagara Falls, N. Y., which was the place where she resided at the time of her death and where Sarah J. Lent resided. The notices required by the Bankruptcy Law were mailed to Adelaide V. Lent at that residence. Sarah J. Lent- claimed that she never received the notices sent to Adelaide Y. Lent and had no actual knowledge of the bankruptcy proceeding.</p> <p>Upon a motion made by Farnsworth, in 1903, under section 1268 of the Code of Civil Procedure, to have the judgment discharged of record, it appeared that the failure to mail the statutory notices to Sarah J. Lent was not due-to any fraudulent purpose on the part of the bankrupt and that no injury had resulted to her or to any one therefrom. Held, that, under the circumstances, the mailing of the notices addressed to Adelaide V. Lent was a sufficient compliance with the law and that the bankrupt was entitled to have the judgment discharged of record.</p> <p>McLennan, P. J., and Stovek, J., dissented.</p>

<p>. Appeal by the defendant, The Manchester Fire Assurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 1st day of June, 1903, upon the report of a referee.</p> <p>The defendant issued a policy of insurance dated April 10, 1896, insuring the dwelling house on Hazeltine avenue in the city of Buffalo in the sum of $1,600 to the owner and payable to the plaintiff as mortgagee, whose mortgage éxceeded the amount of the policy. On the 5th day of December, 1898, and during the life of the policy, the insured property was totally destroyed by fire. The policy was of the standard form and contained the following clause : “ In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage,, and, failing to agree, shall submit their differences to the umpire; and tfie aw'ayd jn -yriting of any tym sli^Jl determine the amovpit of such loss; the parties thereto, shall pay the appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire.”</p> <p>The parties disagreed as to the amount of the loss, and in- compliance with this provision two appraisers were duly appointed and they selected an umpire. The umpire and Mr. Yanderwerf, the appraiser chosen by the appellant, agreed upon and signed an award for $1,032 in which Mr. Howell, the other appraiser, declined to join. This action is commenced to set aside said appraisal and to recover the value of the property burned.</p>

Appeal by the defendants, George Maxwell and others, from, an nterlocutory judgment of the County Court of Erie county in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 6th day of April, 1903, upon the decision of the court, rendered after a trial before the court without a jury at a Trial Term of said court, directing a partition sale of certain real estate.

<p>Corporation unable to pay its debts — what transfer of its property to enable it to raise moil^ to pay its debts will not be set aside as in violation of section 48 of the Stock Corporation Law — duty to restore the amount paid for property before the property can be recovered by the receiver of the corporation — basis of the determination whether the holders of two-thirds of the capital stock consented to a mortgage — extra allowances in the Fourth Depa/rtment.</p> <p>A manufacturing corporation was indebted to one Bagg in the sum of $18,000, as security for which Bagg held a lien upon property of the corporation and an assignment of certain accounts due to it. Bagg was urging payment of his claim, and the corporation.did not have sufficient ready money to pay it, but the directors thereof believed that the corporation possessed ample property to enable it to continue business. Pursuant to this belief, and under an arrangement with Bagg, the corporation executed to Knowlton, its president and a director thereof, a chattel mortgage upon all of its tangible property and an assignment of certain accounts due to it. This mortgage and assignment were given to secure three promissory notes for $5,000 executed by the corporation and indorsed by Knowlton for its benefit. Two of the notes were turned over to Bagg in part payment of his claim, and he thereupon relinquished his lien upon the corporate property. The other note was discounted and the avails thereof placed to the credit of the corporation.</p> <p>As a part of the plan, Norman O. Stiles agreed with Knowlton that, in the event of a foreclosure of the mortgage, he would pay any deficiency which might arise thereon. Stiles was not an officer of the corporation or pecuniarily interested therein, but his son was a director of the corporation and its largest stockholder.</p> <p>Ten months later the corporation was dissolved upon the application of its directors and a receiver thereof was appointed. The chattel mortgage was foreclosed and the property was purchased at the mortgage sale by Stiles. The notes were paid from the proceeds of the sale and the balance was held subject to the order of the receiver.</p> <p>In an action brought by the receiver against Stiles to have the chattel mortgage declared void and to compel Stiles to account for the property purchased at the foreclosure sale, it was</p> <p>Reid, that as, at the time the chattel mortgage was given, the corporation had not refused to pay any of its obligations, and as it was not given with the intention of preferring Bagg, but with the honest intention of enabling the corporation to continue business, the chattel mortgage was not void under section 48 of the Stock Corporation Law, prohibiting transfers of its property by any corporation refusing to pay its debts, except for full value in cash, and prohibiting an insolvent corporation from disposing of its property with intent to give a preference to any particular creditor; That, even if the chattel mortgage was executed with the intent to prefer Bagg’s debt and the corporation was then unable to pay its debts, Stiles could not be charged with wrongdoing; and that, before the receiver could recover the property which Stiles had purchased at the mortgage foreclosure sale, he would be obliged to restore the amount which Stiles had paid for the property;</p> <p>That, in determining whether the holders ¡of two-thirds of the capital stock of the corporation had consented to the giving of the mortgage, tijl; amount of the stock actually issued and owned should alone be taken into consideration.;</p> <p>That inasmuch as Bagg, Knowlton and Stiles had fully performed their agreement, the court would not scrutinize the formal execution of the Consents of the stockholders too rigidly;</p> <p>That it is the policy of the courts in the Fourth Judicial Department to refrain from granting an extra allowance of costs except in a case which is obviously “ difficult and extraordinary,” and that the case at bar did not fall within that category.</p> <p>McLennan, P. J., dissented.</p>

<p>Appeal by the defendant, the Lehigh Valley Railroad Company, from a judgment of the Supreme; Court in favor of the plaintiff, entered in the office "of the clerk of the county of Monroe on the 18th day of May, 1903, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 18th day of May, 1903, denying the. defendant’s motion for a new trial made upon the minutes.</p>

<p>Slander— “you [are) an anarchist"' is a cha/i'ge of ofntinal anarchy.</p> <p>Tlie complaint in an action alleged that the defendant uttered concerning the plaintiff, in the presence of other persons, the following false, scandalous and defamatory words: “ ‘You’ (this plaintiff meaning) ‘ (are) an anarchist;’ ‘He’ (this plaintiff meaning) ‘ is an anarchist; ’ ‘ You ’ (this plaintiff meaning) ‘ (are) a disturber,’ thereby intending to and in fact charging that this plaintiff was an anarchist and a believer and advocate of the principles of anarchy, and that this plaintiff believed in and advocated the absence of government, and who believed in and advocated the overturn by violence of all constituted forms and institutions of society and government and all law and order, and all right-s of property with no purpose of establishing any other system of order in the place of that destroyed, and that this plaintiff was a person who advocated, promoted and excited revolt against established rule, law and custom, and that this plaintiff was a believer in.and ah advocator of a state of society in which there is no capable supreme power, social and political confusion.’5</p> <p>The complaint did not allege special damages, but did allege that the plaintiff was a minister of the gospel and- the pastor of ii church in .the city of Buffalo.</p> <p>Held, that a demurrer to such complaint was properly overruled;</p> <p>That the charge “You (are) an anarchist,” was capable of the construction placed upon it by the innuendo contained in. the complaint;</p> <p>That, as thus construed, the complaint alleged that the defendant had charged the plaintiff with being guilty Of criminal anarchy, which is made a felony by sections 468a and 468b of the Penal Code.</p>

Apjpeal-by the defendant, The Oity of Syracuse, from a judgment of the County Court of Onondaga county in favor of the plaintiff., entered in the office of the clerk of the county of Onondaga on the 24th day of December, 1903, upon'an order of said County Court entered in said clerk’s office on the 24tli day of December, 1903, affirming a judgment of the Municipal Court of the city of Syracuse in favor of the plaintiff, and also from the said order of the County Court upon…

Appeal by the defendants, Morris W. Simonson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 15th day of September, 1903,. upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of September, 1903, denying the defendants’ motion for a new trial made upon the minutes.

<p>A proceeding for the laying out of a highway is a special pn'oceeding — the costs and disbursements of the petitioner are allowable as in an action — section 152 of the Highway Law relates to costs of motions as distinguished from, the costs of the proceeding itself.</p> <p>A proceeding under the Highway Law to lay out a highway is a special proceeding within the meaning of section 3334 of the Code of Civil Procedure, and the petitioner, if successful, is entitled, in the discretion of the court, to recover costs and disbursements at the rate allowed in an action under section 3240 of such Code, which provides that costs in a special proceeding may he awarded at the rates allowed for similar services in an action.</p> <p>Section 152 of the Highway Law, providing, “ Costs of a motion to confirm, vacate or modify the report of commissioners appointed by the court to lay out, alter or discontinue a highway may he allowed in the discretion of the court hot exceeding fifty dollars. Costs of any other motion in a proceeding in a court of record, authorized by this chapter, may he allowed in the discretion of the court not exceeding ten dollars,” only relates to the costs of motions made in such a proceeding, as distinguished from costs of the proceeding itself; and does not prevent the court, in its discretion, from awarding the latter costs pursuant to section 3240 of the Code of Civil Procedure.</p>

<p>Negligence — a scaffold constructed outside of a building, between the building and a portable upright boiler, to enable a workman to remove a pipe connecting the boiler with, the building •—the boiler is not a “structure” within section 18 of the Labor Law—when the master is not responsible to his servant injured thereon—risk of the employment.</p> <p>Section 18 of the Labor Law (Laws of 1897, chap. 415) provides as follows: “ A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure, shall not furnish or erect, or cause to be furnished or erected, for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.”</p> <p>Held, that a portable upright boiler standing on the ground outside a building and temporarily connected by a pipe running through the wall of the building with a large boiler permanently located, within the building, was not a “structure” within the meaning of such. section, and that a scaffold, consisting of planks, one end of which was supported by cleats nailed upon the outside wall of the building and the other end by horses placed some twelve feet from the building, which scaffold was erected to facilitate the work of removing the pipe connecting the two boilers and of removing the upright boiler to another place, was not a scaffold such as is described in this section of the Labor Law, as the upright boiler constituted no part of the building and the disconnection and removal thereof was neither an alteration of the boiler nor pf the building;</p> <p>That the construction of the scaffold was a detail of the master’s business, and that, as the master had provided competent foremen and workmen and sufficient material for the construction of the scaffold, he was not liable for personal injuries sustained by a servant in consequence of the tipping of the planks composing the scaffold because of the action of the servant in stepping on that portion of the planks which extended beyond the horses, as the negligence, if any, in the construction of the scaffold was that of a fellow-servant for which the master was not liable.</p> <p>Qvare, whether, as the manner in which the scaffold had been constructed was open and apparent, the injured servant did not assume the risk of the employment.</p> <p>Spring, J., dissented.</p>

Appeal by the plaintiff, Thomas Toomey, from a judgment oi the Supreme Court in .favor of the defendant; entered in the office of the clerk of the county of Allegany on the 24th day of December, 1903, upon the report of a referee dismissing the plaintiff’s complaint. Action to cancel and set aside a release of interest in the estate of Nora Toomey, deceased.

Appeal by George O. Miller from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 10th day of August, 1903, denying his application to have set aside a subpoena theretofore issued requiring him to appear and testify.

Appeal by the defendant, George B. Massey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 7th day of January, 1904, upon the decision of the court, rendered after a trial at the Jefferson Trial Term, a jury having been waived.

<p>Insolvent savings and loan association—foreclosure of a mortgage by its receiver — credit for dues or premium paid by the mortgagee — it must be found in the final adjustment of the affairs of the association—what saving clause in the foreclosure judgment protects that right.</p> <p>In an action by the receiver of an insolvent savings and loan association to' foreclose a mortgage executed to the association hy a shareholder who had assigned his shares to the association as security for the performance of the conditions of the mortgage, the shareholder is not entitled to he credited upon the mortgage in the foreclosure action with the amount of dues paid hy him to the association or with the amount of the monthly premium which he paid as a bonus for the loan.</p> <p>He will, however, upon the final adjustment of the affairs of the association, be entitled to credit for such payments, the amount of such credit depending upon the amount of the net assets of the association.</p> <p>What provision in the judgment rendered in the foreclosure action fully protects the shareholder’s rights in this respect, considered.</p> <p>Spring, J., dissented.</p>

<p>Master and servant — injury to the latter from the collapse of a scaffold — when a complaint is to be construed to state a cause of action under section 18 of the Labor Law and not under the Employers’ Liability Act.</p> <p>Where the complaint in an action brought by an employed against his employer to recover damages for personal injuries sustained by the employee in consequence of the collapse of a scaffold used in the erection of a house which the employer was building sets forth facts authorizing a recovery under section 18 of the Labor Law (Laws-of 1897, chap. 415), and it appears that the pleader had that act, and not the Employers’ Liability Act (Laws of 1902, chap. 600), in mind when he prepared it, it is error for the court to dismiss the complaint because it did not allege the service of the notice required by the Employers’ Liability Act.</p> <p>Where, on the trial of the action, it appears affirmatively that the injured employee took no part in the construction of the scaffold and.did not know of the manner of its construction, and the evidence warrants a finding that the collapse of the scaffold was due to its improper and unsafe construction, a prima facie case is made out under section 18 of the Labor Law. ■</p>

Appeal by the defendants, John O’Rourke and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 8th day of December, 1903, upon the report of a referee.

Appeal by the plaintiff, Jacob Klein, from a judgment of the Supreme Court in favor of the defendant, entered in,the office of the clerk of' the county of New York on the 7th day of February, 1903, upon the dismissal of the complaint by direction of the court. after a. trial at the New York Trial Term.

Appeal by the defendants, Henry B. Kinghorn and another, as administrators, etc., of Henry G. Fisk, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of March, 1904, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term, and also from an order entered in said clerk’s office on the 8th day of March, 1904, denying the…

<p>Occupation of land under a sale for a term ofyea/rsfor non-payment of a municipal assessment — the title in fee is not disturbed thereby — the possession of the purchaser during the term of the lease and its continuance thereafter is subordinate thereto.</p> <p>A lease of premises for a term of sixty years, executed as the result of a sale for the non-payment of an assessment imposed on the premises by a municipal corporation, does not disturb the owner’s title to the lee, and, upon the termination of the sixty years, the land is relieved from the burden of the lease. During the continuance of the lease the possession of the lessee is subordinate, and not adverse, to the title of the owner of the fee.</p> <p>.The possession of the premises by the lessee after the termination of the lease will also be regarded as subordinate to the title of the owner of the fee, unless there be a disclaimer of the title of the true owner or something that may be construed as tantamount to a surrender of the original possession and a retaking under an independently asserted claim of right and title.</p>

Appeal by the plaintiff, Robert C. Pruyn, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of March, 1904, granting a motion made by the defendant The Ecuadorian Association, Limited, to require the plaintiff to serve a bill of particulars.

<p> New trial—it may be ordered by a judge who has taken the ease from the jury on the erroneous theory that no questions of foot were involved therein—appeal from the order directing the new trial after it has taken place. </p> <p>At the close of the testimony given upon-a jury trial the jury .was discharged and the case taken under advisement by the trial judge upon his suggestion that no question of fact was presented. After the trial judge had written an opinion favorable to the plaintiff, but before any further steps had been taken, his attention was called to the fact that the conclusion reached by him was based upon a consideration of the facts and upon the resolving of conflicting inferences therefrom. The trial judge thereupon granted the defendant’s motion for a new trial.</p> <p>Held, that there had been a mistrial and that the action of' the trial judge was proper.</p> <p>Quære, as to the right to appeal from an order granting a new trial after such new trial has been had.</p>

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.

Appeal by the defendant, Frederick B. Huxley, from an,order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 29th day of February, 1904, changing the place of trial of the action from the county of Hew York to the county of Westchester.

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of tlie Code of Civil Procedure.</p>

Appeal by the defendant, The Bank of New York, National Banking Association, frdm a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 22d day of June, 1903, upon the report of a referee.

<p>Appeal by the plaintiff, Nathan M. Goldberg, from a judgment of the Supreme'Court iri ‘ favor of; the defendants, entered in the office of the clerk of the county, of New Yoi-k; on the 12th day-of October, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the plaintiff, Isaac Engel, as trustee in bankruptcy of Morris Joseph and others, as copartners composing the firm of M. Joseph & Co., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of November, 1902, upon the dismissal of the complaint by direction of the court after a trial at the New Tork Trial Term, and also from an order entered in said clerk’s office on the 3d day of…

Appeal, by the defendants, The New York Central and Hudson River Railroad Company and another, from a judgment' of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of October, 1903, upon the verdict of a jury for $3,000, and also separate appeals by the said defendants from orders entered in said clerk’s office on the 21st day of October, 1903, and the 9th day of November, 1903, respectively, denying…

Appeal by the defendants, Thomas L. James and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office-of the clerk of the county of New York on the 3d day of March, 1904, denying the said defendants’ motion to require the plaintiff to make the amended complaint more definite and certain.

<p>Appeal by the plaintiff, Cosmas Yilias, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of March, 1904, upon the decision of the court rendered after a trial at the New York Special Term sustaining the defendant’s demurrer to the plaintiff’s complaint and dismissing the said complaint.</p>

Appeal by the defendant, Carlton B. Pierce, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of January, 1904, upon the decision of the court rendered after a trial at the New York. Special Term overruling the said defendant’s demurrer to the plaintiff’s complaint.,

<p>Exemption from taxation of the New York University — section % of chapter 54 of the Laws of 1893 was not repealed by the Tax Law of 1896.</p> <p>The New York University was incorporated under a special act of the Legislature passed April 13,1831, for educational, scientific and literary purposes. Between 1831 and 1835 it erected on land owned by it on University place in the city of New York a university building, Until April, 1894, it occupied this building exclusively for educational purposes.</p> <p>In the latter year the corporation removed its collegiate department from University place to another building and erected a ten-story building upon its premises in University place. Since then it has used the upper portion of . the latter building for its university law school, its school of pedagogy and the administration office of the university, and has rented the remaining portion of the building to other persons for business purposes, using the rentals, in excess of the interest upon a mortgage loan secured to defray the cost of the building, for its educational purposes.</p> <p>Previous to making the change and in contemplation thereof, the university procured the enactment of chapter 54 of the Laws of 1893, section 8 of which provides: “ Such real estate as is now and has been for over fifty years last past, occupied by the said university as a site, shall remain exempt from taxation so long as the entire university instruction in the law school, the entire instruction in the school of pedagogy and the administration office of the university shall be continued there.”</p> <p>In 1896 the Tax Law (Laws of 1896, chap. 908) was enacted. The Tax Law did not expressly repeal the statute of 1893, but subdivision 7 of section 4 thereof (as amd. by chap. 371 of the Laws of 1897 and by chap. 204 of the Laws of 1903) provided that buildings owned by such a corporation should be exempt from taxation only so far as they were exclusively used for educational purposes.</p> <p>Held, that the exemption conferred by the statute of 1893 was not repealed by the Tax Law.</p>

<p>Presentation to the Appellate Division of charges against a city magistrate of the city of New York, pursuant to section 1401a of the charter of the city of New York.,</p>

Appeal by the defendants, Gustav Scholer and others, as coroners of the borough of Manhattan, city of New York, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 15th day of January, 1904, directing the issuance of a peremptory writ of mandamus requiring the defendants to reinstate the relator as chief clerk of the coroners’ office of the borough of Manhattan, city of New York. •

Certiorari issued out of the Supreme Court and attested on the 20th day of October, 1902, directed to. John N. Partridge (the predecessor of Francis Y. Greene), as police commissioner of the , police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in relation to the dismissal of the relator from the police force of the city of New York.

<p>False representations inducing a purchase of real property—proof required of the plaintiff—measure of damages — a refusal to make the representations in writing does not put the vendee on inquiry—proof of false representations not alleged in the complaint is competent to show intent—a letter stating the rental paid addressed to the vendors’ bi'oker.</p> <p>In an action brought by a vendee of real property against his vendors to recover damages for false representations made by the latter as to the rents which the tenants of a portion of the building upon the premises were paying, the. plaintiff must prove representations, falsity, scienter, deception and injury.</p> <p>In such an action the measure of damages is the difference between the value of the property as it was in fact when the conveyance was made and the value as it would have been if the false representations as to the rentals had been true.</p> <p>The fact that when the parties met for the purpose of completing the sale, the vendors, when asked by the vendee’s attorney to sign a statement embracing the false representations made by them, refused to do so and seemingly became indignant that the vendee should question their truthfulness, does not operate to prevent a recovery by the vendee, on the theory that he was placed upon inquiry by such refusal.</p> <p>Evidence that, during the negotiations for the sale, the vendors also made a false representation as to the rent payable by another of the tenants of the building, is admissible for the purpose of showing the intent with which the vendors made the false representation upon which the action was based.</p> <p>Whenever á transaction is assailed as fraudulent, evidence is admissible of other and contemporaneous transactions of a similar fraudulent nature for the purpose of showing intent.</p> <p>Where it appears that during the negotiations which culminated in the sale, the vendee requested the vendors’ broker to furnish a statement of the rentals of the building,; that, for the purpose of having the same shown to the vendee, the vendors addressed and sent to the broker a letter containing the desired information; that such letter was shown to the vendee by the broker, and that the vendee acted in reliance thereon, such letter is admissible against the vendors.</p>

<p>Pawnbroker in New York city — he cannot apply the surplus arising on a sale under one pledge to the payment of a deficiency arising on a sale under another.</p> <p>Under chapter 339 of the Laws of 1883, governing the business of pawnbroking in the city of New York, the pawnbroker must look for reimbursement to the property pledged and not to the pledgor, and where the pawnbroker makes, to the same person at different times and upon different articles, several independent loans,- and, upon the failure of the pledgor to pay any of the loans, sells all of the property pursuant to statute, he cannot apply a surplus arising on the sale of one of the articles to deficiencies arising on the sales of the other articles, but must, under section 10 of the statute, pay over such surplus to the pledgor.</p>

Appeal by the plaintiff, Lydia F. Meeker, as executrix, etc., of Alice F. Ketcham, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of tlie county of Hew York on the 11th day of Hovember? 1903? upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of November, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Isabel H. Crombie, from an order of the Supreme Court, made at the New York Special Term and , entered in the office of the clerk of the county of New York on the 22d day of March, 1904, requiring the defendant to serve a bill of particulars of the counterclaim set forth in her answer.

Appeal by the plaintiff, Mary L. Meehan, as administratrix, etc.,of Janies Meehan,’ deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of January, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Gabriel Neuwelt, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the.-clerk of the county of New York on the 17th day of December, 1903, as directs the plaintiff to furnish a bill of particulars stating wherein the defendant was negligent as to the matters of negligence averred in the complaint.

<p>Libel — a charge that a mine had been extravagantly managed and that the mining company had become embarrassed — when it does not charge embezzlement—public scorn and ridicule — special damage to the manager’s business reputation.</p> <p>The complaint in an action alleged that the plaintiff was “ engaged in important financial and commercial enterprises in the United States involving the use and management by plaintiff of large sums of money entrusted to him by other persons residing in the United States and in foreign countries, and plaintiff’s reputation, both in the United States and elsewhere, has always been that of a competent, energetic and honorable man.of business, and one to whom the management of large enterprises requiring the exercise of economy, good judgment and integrity could be safely entrusted; ” that the defendant published in a newspaper owned by it an article stating that attachments had been placed upon the property of a certain mining corporation; that “This' is the mine in which W. H. Daily (the plaintiff) figured largely. His extravagance startled people and finally got the company into trouble. He was deposed, and is no longer in California; ” that the defendant meant and intended to charge by said article that the plaintiff caused the mining corporation “to become financially embarrassed by using its funds for his own personal extravagance, and that because thereof he was removed from his position as manager by said corporation and absconded from the State of California.”</p> <p>The complaint also alleged • that the defendant published in its newspaper another article stating that the mining corporation in question had filed schedules from which it appeared that its liabilities were double its assets: that “ the whole failure is the result of extravagant management ” and that the plaintiff was the local manager.</p> <p>The complaint further alleged “that the statements contained in each of said articles of and concerning this plaintiff were and are wholly false and untrue, and that by reason thereof plaintiff has been prevented from following his usual vocation, as set forth in paragraph ‘First’ hereof; and has been prevented from engaging in profitable enterprises, and his reputation as a capable, honorable and energetic man of business has been greatly damaged, and he has been held up to public scorn, ridicule and contempt to his great damage in the sum of” §50,000.</p> <p>Held, that the articles were not susceptible of the innuendo that the defendant intended to charge the plaintiff with embezzlement; .</p> <p>That, disregarding the innuendo and taking the language in its natural import, namely, as charging that the plaintiff as manager so extravagantly conducted the affairs of the company as to injure its credit' to such an extent that attachments in favor of creditors were allowed against it, in connection with the averments as to the plaintiff’s business or calling, the complaint stated a good cause of action, either because it was a question of fact for the jury whether the articles in question held the plaintiff up to public scorn or ridicule, or else because their tendency was to inflict special damages on the plaintiff’s business reputation;</p> <p>That words not actionable in themselves may become so when spoken of a man in' his trade where it is shown by a colloquium or special averment that they affect him therein.</p> <p>Van Brunt, P. J., dissented.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of April, 1902, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 20th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Benjamin H. Marcus, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 25th day of July, 1902, upon the report of a referee, dismissing the plaintiff’s complaint.

Appeal by the defendant, The Phenix National Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of January, 1904, upon, the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes. /

Appeal by the plaintiff, Franklin P. Roberge, from a judgment of the Supreme Court in favor of the defendants, entered in. the office of the clerk of the county of New York on the 19th day of February, 1903, upon the verdict of a jury? and also from an order entered in said clerk’s office on the 19th- day of February, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Partition sale—adjudication that a trustee under a will has the title in fee simple subject to the trust — when the pi'oceeds of sale are substituted for the land, the rights of unborn children are protected and the purchaser acquires a good title.</p> <p>A man, who died seized of an undivided one-eighth interest in certain lots, left a will, by which he created a trust estate in such one-eighth interest for the</p> <p>■■ benefit of his wife and son during their lives, the remainder, if his son died leaving issue, to be divided equally among his son’s children, and, if his son did not leave issue, three-fourths of the remainder to be divided among thrqe collateral relatives and the remaining one-fourth to be disposed of as the son or wife should direct.</p> <p>After the testator’s widow had died, the testator’s son, who was married and had three children, brought an action to partition the land in which the one-eighth interest existed, making parties thereto his three children, who were all infants, the trustee under the will, and all other persons having a vested or contingent remainder thereunder.</p> <p>The decree of sale rendered in the partition action recited that the trustee under the will “ was entitled in fee simple to the undivided one-eighth part of the premises in question and to the proceeds of the sale of such undivided one-eighth part of said premises subject only to the execution of the trust as contained in the will.’’</p> <p>Held, that the effect, of the judgment in the partition action was to substitute the fund for the land and effectually protected the rights, of unborn children or of any other persons who might become entitled to an interest in the premises;</p> <p>That the decreé was binding upon such persons and that, therefore, the purchaser at the partition sale acquired a good marketable title to the one-eighth interest.</p>

<p>Appeal by the defendant, Supreme Council, American Legion of Honor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the' county of New York on the 20th day of January, 1904, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.'</p>

<p>Appeal by the defendants, the Diamond Soda Water Manufacturing Company and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of July, 1902, upon-the decision of the court rendered after atrial at the New York Special Term.</p>

Appeal by the defendants, the Diamond Soda Water Manufacturing Company and others, from an interlocutory judgment of the Suprem'e Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 19th day of July, 1902, upon the decision of the court rendered after a trial at the New York'Special Term, among other things, annulling certain contracts between the defendant Diamond Soda Water Manufacturing Company and the American Mineral…

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of December, 1903) upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 14th day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator,-Joseph A. Farley, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of March, 1904, dismissing a writ of habeas corpus theretofore issued in behalf of the relator and remanding him to the custody of the keeper of the city prison.

Appeal by the defendant, the Half & Clark Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Few York on the 28th day of January, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Edward Lynch, from, an interlocutory judgment of the Supreme Court in favor of the defendants Thomas I. McLeod and William E. Ward, entered in the office of the clerk of the county of New York on the 12th day of March, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the respondents’ demurrer to the plaintiff’s complaint.</p>

Appeal by the defendant, the United States Mortgage and Trust Company, from a judgment of the Supreme Court,, entered in the office of the clerk of the county of New York on the 23d day of December, 1903, upon the dismissal of the complaint by direction of the court as to the defendants William Zl Greene and Louis R. Taylor, doing business under the name of Greene & Taylor, and upon the verdict of a jury in favor of the plaintiff and against the defendant,, the United States…

Appeal by the plaintiff, The Department of Health of the City of New York, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 30th day of November, 1903, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan,in favor of the defendant, entered on the 2d day of July, 1903.

, Heargtjment of an appeal by the defendants, Thomas J. Dunn and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office'of the clerk of the county of Hew York on the 14th day of December, 1903; denying -the said defendants’ motion to set aside so much of an interlocutory judgment theretofore entered in the action as appoints Henry W. Mayo referee, and to appoint a new referee to proceed under the said interlocutory judgment.

Appeal by the plaintiffs, William H. Tolhurst and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 19th day of April, 1904, vacating and setting aside a judgment in favor of the plaintiffs, entered in the Rensselaer county clerk’s office on the 3d day of February, 1904, and permitting the defendant to serve an answer to the' complaint herein.

Appeal by the plaintiff, Kate Treat Goodsell, from an order of the Supreme Court, made at the Mew York Special Term, and entered in the office of the clerk of the county of Mew York on the 10th day of September, 1903, denying the plaintiff’s motion to punish the defendant for contempt of court.

Appeal by Schmitt & Schwanenfluegel from an order oí the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New. York on the 18th day of February, 1904, denying the appellant’s motion for leave to intervene in the above-entitled proceeding and defend the same.

Appeal by the petitioner, John B. Ryer, as executor, etc., of Ellen A. Wilkinson, deceased, from a decree of the Surrogate’s Court of the county of Yew York, entered in said Surrogate’s Court on the 14th day of August, 1903, confirming the report of a referee and judicially settling the said executor’s accounts.

Appeal by the defendants, William L. Strauss and another, from a judgment of the Court of Special Sessions of the first division of the city of Hew York, entered on the 29th day of January, 1904, convicting the defendants of a violation of subdivision 4 of section 364 of the Penal Code.

<p>Separate appeals by the defendants, Gilbert W. Minor and John P. Gorman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of February, 1904, upon the decision of the court rendered after a trial at the New York Special Term, adjudging that a certain mortgage given by the defendant Minor to Mary Conlon, the original plaintiff in this action, is entitled to priority and preference over a mortgage given by the said Minor to the defendant Beatty, and afterwards assigned to the defendant Gorman, with notice of an intention by each appellant to bring up for review upon such appeal an order entered in said clerk’s office on the 9th day of February, 1904, amending the complaint by striking out certain paragraphs and inserting in lieu thereof certain other provisions mentioned in said order.</p> <p>The original plaintiff, Mary Conlon, died after the appeal was taken in this action, and Eattie F. Conlon, as her executrix, was substituted as plaintiff respondent in the place of said deceased plaintiff.</p>

*• Appeal by the relators, The Farmers’ Loan and Trust Company and others, as executors of and trustees under the last will and teslament of Eugene A. Hoffman, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of March, 1904, denying the relators’ motion to vacate a certain assessment on personal property and confirming said assessment.

Appeal by the defendants, Adolph Riesenberg and others, from an order of the Supreme Court, made at the New York Trial Term and entered in the office .of, the clerk of the county of New York on the 29th day of April, 1902, granting the .plaintiff s motion to set aside the verdict of -a jury in favor of the defendants Adolph Riesenberg and others, who were copartners. conducting business under the firm name of H. C. F. Koch & Co., and for a new trial.

Appeal by the defendant, Aaron B. Scutt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 30th day of August, 1902, upon the verdict of a jury for $500, and also from an order bearing date the 14th day of June, 1902, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the ■ minutes.

Appeal by the defendant, Albert W. Davitt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 9th day of July, 1903, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 29th day of July, 1903, denying the defendant’s motion for a new trial made upon the minutes. Plaintiff was an employee of defendant, and worked in his knitting mill.

Appeal by the defendant, Leander W. Hallock, as executor, etc., of Belzora Travis, deceased, from a judgment of the Supreme Court, in favor of the plaintiff,.entered in the office of the clerk of the county of Greene on the 24th day .of ^November, 1903, upon the verdict of a jury rendered by direction of the court after a trial-at the Greene Trial Term.

<p>Appeal, by the claimants, Richard J. Williams and another, composing the firm of Williams & Manogue, from a judgment of the Court of Claims of the State of New York, entered in the office of the clerk of said court on the 15th day of September, 1903, dismissing the claim filed by the claimants in the above-entitled action.</p> <p>On the 25th day of September, 1897, the board of managers of the Long Island State Hospital made a contract with one George Fruli in consideration of $76,900, which had been appropriated by the State for that purpose, for the heating, ventilating and hot. water supply of the cottages connected with' said hospital. The plans and specifications were prepared by the State Architect and approved by the State Commission in Lunacy. ’Shortly after and on September twenty-eighth Fruh entered into a written contract with the claimants, by the terms of which the claimants agreed to perform certain of the work and furnish certain of the materials called for by said plans and specifications for the sum of $23,300. On the same day Fruh made a written assignment to the claimants of all his right, title and interest to moneys due him and to grow due on said original contract to the extent of $23,300, “ the engineer in charge of said contract work to allow as said moneys become due such payment to the said Williams & Manogue as the work so done' by them may call for up to the time of such allowance.” This assignment was filed the same day it was executed with the treasurer of the board of managers in the office where the treasurer’s records were kept and an abstract thereof was entered in a book kept in said office, which the law provided should be kept for such purposes. The date of filing was indorsed on the assignment, which remained in the office until after the claimants had completed their work. A copy of the assignment was on the same day mailed to the State Architect and duly received by him.. A copy of the sub-contract between Fruh and the claimants was also filed with said treasurer shortly after the filing of the assignment.</p> <p>Subsequently, upon the completion of the whole work, a balance of $2,194.57 was still unpaid to the claimants, and Fruh having become insolvent and the State refusing to pay this balance, a claim for the same was presented against the State to the Court of Claims, pursuant to the provisions of chapter 755 of the Laws of 1900.. Such court rendered judgment dismissing the claim, and from that judgment this appeal is taken.</p>

Appeal by Ellsworth Carr from an order of the Supreme Court, made by a justice of said court in a summary proceeding instituted under the Election Law, which order was entered in the office of the clerk of the county of Albany on the 22d day of October, 1903, and decided that the use of the name employed in a certificate of. nomination of the said Ellsworth Carr, as a candidate for the office of assemblyman, was unauthorized and void.

Appeal by the defendant, Alice Sheldon, from an order of . the County Court of Columbia county, entered in the office of the clerk of Columbia county on the 2d day of October, 1903, directing that the costs theretofore taxed in favor of defendant in the above-entitled-action be set aside, and that costs be retaxed by said clerk in favor of plaintiff and against defendant.

Appeal by the defendant, Robert H. Reid & Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 11th day of January, 1904, upon the decision of the court, rendered after a trial at the Albany Special Term, overruling the demurrer interposed by the defendant Robert H. Reid & Company to the plaintiff’s complaint.

Appeal by the plaintiff, Suzette Jackson, from a judgment of the Supreme Court in .favor of the defendant, entered in the office of the clerk of the county of Fulton on the 5th day of February, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Fulton Trial Term.

Certiorari issued out of the Supreme Court and attested on the 26th day of December, 1903, directed to William Selkirk and others, as assessors of the town of Bethlehem, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in assessing certain real estate in the town of Bethlehem.

<p>Appeal by the petitioner, The Troy Press Company, from an order of the Supreme Court made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 19th day of February, 1904, denying the. petitioner’s motion for a peremptory writ of mandamus against the clerk of the board of supervisors of the county of Rensselaer.</p> <p>On the 4th day of N ovember, 1901, a board of supervisors was elected in the county of Rensselaer for a period of two years to-commence January 1, 1902, and end on the 31st day of December,, 1903. Included in said board so elected were twelve Democrats-On the 14th day of October, 1902, a majority of said Democratic members of said board filed with the clerk of said board of supervisors a designation of newspapers, duly signed by such majority, of which the following is a copy: “We, the Democratic members of the Board of Supervisors of the County of Rensselaer, pursuant to Chapter 400 of the Laws of 1900, do hereby designate the Troy Observer as one of the newspapers to publish the Session Laws and Concurrent Resolutions of the Legislature of the State of New York of 1903 and 1904, required by law to be published.”</p> <p>On the 21st day of November, 1902, said clerk forwarded to the Secretary of State a notice stating that the Troy Observer had been selected as the Democratic paper to publish the session laws and concurrent resolutions of the Legislature for the year 1903, and pursuant to such notice the Secretary of State transmitted to said Troy Observer the session laws and concurrent resolutions for the year 1903, and said laws and resolutions were published in said paper for that year. On or about the 14th day of November, 1903, said clerk received from the Secretary of State a communication requesting him to forward to said Secretary of State the names of the newspapers designated by the board of supervisors of Rensselaer county to publish the session laws of 1904, and on the 18th day of November, 1903, said clerk executed and filed with the said Secretary of State a certificate, of which the following is a copy: “ I hereby certify that the following named newspapers were duly designated pursuant to the provisions of Chapter 715 of the Laws of 1892 and the laws amendatory thereof, to publish the Session Laws of 1904 in the county of Rensselaer, viz.:</p> <p>“ Names of Newspapers Place of For Which Political Party</p> <p>Appointed. Publication. Appointed.</p> <p>“Troy Observer, Troy, E". Y. Democratic. -</p> <p>The Troy Times, Troy, 1ST. Y. Republican.”</p> <p>' On or about the 1st day of December, 1903, a majority of said Democratic members of said board of supervisors signed a designation of newspapers, of which the following is a copy: “ We, the undersigned Democratic members of the Board of Supervisors of the County of Rensselaer, pursuant to Chapter 400 of the Laws of 1900, and Chapter 280 of the Laws of 1845, as amended by Chapter Í15 of the Laws of 1892, do hereby designate the Troy Daily Press, a daily newspaper published in the city of Troy in said county (the said Press being a newspaper fairly representing the political party to which we belong) as one of the newspapers to publish the Session Laws and the Concurrent Resolutions of the Legislature of the State of New York of 1904 required by law to be published.”</p> <p>The last-mentioned designation was signed by five of the. same Democratic members of said board that had previously signed the designation so filed October 14, 1902. Said clerk refused to recognize the designation of the Troy Daily Press, but on or about the 16th day of December, 1903, addressed a communication to the Secretary of State and included in such communication a copy of the designation so filed with him, and at the end of his communication said: “ I contend that I have no right to determine between these papers, and having certified to the one designated at the time I received your request I cannot consistently certify to another.” The designation of December 1, 1903, was duly filed with the clerk of the board of supervisors on the 3d day of December, 1903.</p> <p>Prior to the commencement of this proceeding a formal demand in writing was made upon said clerk that he notify the Secretary of State that the Troy Daily Press had been designated by a majority of the Democratic members of said board of supervisors as the paper in which to publish the session laws and the concurrent resolutions of the Legislature for the year 1904, and to correct the certificate dated November 18, 1903, theretofore filed with said Secretary of State. Said clerk refused said requests and each of them and 'an application was then made for a writ of mandamus. The motion of the relator was denied, and from the order entered thereon this appeal is taken.</p>

Appeal by the defendants, The Common Council of the City of Binghamton and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 16th day of February, 1904, upon the decision of the court, rendered after a trial at the Broome Special Term, granting an injunction against the defendant The Common Council - of the City of Binghamton. This action has been tried three times.

Appeal by the defendant, Marion Ghesébrough, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, , entered in the office of the clerk of the county of Madison on the 21st day of October, 1903, upon the decision of the court, rendered after a trial at the Madison Special Term, overruling the defendant’s demurrer to the plaintiffs’ complaint.

<p>Appeal by the defendant, the United Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk, of the county of Rensselaer on the 24th day of October, 1903, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 24th day of October, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

Cross-appeals by the plaintiff, Martha Evans, as administratrix, etc., of Eliza J. Evans, deceased, and by the defendant, the Southern Tier Masonic Relief Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the. office of the clerk of the county of Chemung on the 20th day of October, 1903, upon the decision of the court rendered after a trial before the court without a jury at the Chemung Trial Term.

Appeal by. the defendant, The National Bank of Rondout, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 2d day of November, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of October, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles C. Lapham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 12th day of October, 1903, upon the verdict of a jury, and also from an order bearing date the 10th day of October, 1903, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Morgan Dix, from a judgment of the Supreme Court in favor of the defendant, entered in the office of ' the cleric of the county of Madison on the 5th day of January, 1904, upon the report of a referee dismissing the plaintiff’s complaint.

, Appeal by the defendant, The New York Central and- Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered] in the office of the clerk of the county of Rensselaer on the 8th day of October, 1903, upon the verdict of a jury for $7,075,'and also from an order bearing date the 8th day of October, 1903, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the-minutes.

Certiorari issued out of the Supreme Court ánd attested on the 21st day of October, 1903, directed to Hath an L. Miller, as Comp-, troller of the State of Hew York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular liis proceedings had in relation to an assessment against the relator for the year 1902.

Certiorari issued out of the Supreme Court and attested on the 2d day of Hovember, 1903, directed to Hathan L. Miller, as Comptroller of the State of Hew York, commanding him (as the writ was amended by an order bearing date the 5th day of December, 1903, and entered in the office of the clerk of the county of Suffolk) to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in assessing certain State lands in the town of…

Appeal by. the defendant Luke S. Webb and by Luke S. Webb and another, as executors,, etc., of Thomas J. Webb, deceased, from an order of the Supreme Court, made at the Franklin Special Term and entered in the office of the clerk of the county of Franklin on the 7th day of January, 1904, appointing a receiver in supplementary proceedings against the defendant Luke S. Webb in the above-entitled action.' The plaintiff obtained a judgment against the defendant in 1901, and the…

<p>Venue — not changed from Saratoga to New Toi'h county because of the congested calenda/i' in the latter county — nor to a county adjacent to New Toi'h — the convenience of the defendants, not considered — discretion of Special Term subject to review.</p> <p>In an action brought to recover damages for false representations contained in a prospectus of a corporation issued'by the defendants, in reliance upon which the plaintiff had purchased a quantity of the stock and bonds of said corporation, it appeared that the venue of the action was laid in Saratoga county; that the plaintiff resided in that county and that the prospectus was read and acted upon by him therein.</p> <p>It appeared, however, that the transactions, by which the truth or falsity of the statements concerned in the prospectus was to be determined, occurred in the county of New York, in which county the prospectus was prepared and most of the defendants resided.</p> <p>Held, that a motion by the defendants to change the place of trial to the county of New York or to an adjacent county for the convenience of witnesses should be denied;</p> <p>That the action should not be changed to the county of New York because of the congested condition of the calendars in that county;</p> <p>That the action should not be changed to a county adjacent to the county of ÍTew York, as the trial of an action will not be changed to a county in which neither of the parties nor any of the witnesses reside unless the circumstances _ are so unusual that the ends of justice positively require the change, which was not the fact in this case;</p> <p>That on a motion to change the place of trial for the convenience of witnesses, the convenience of the defendants in the action will not be considered;</p> <p>That the determination of such a motion rests in the discretion of the Special Term, but is subject to review by the Appellate Division.</p> <p>Appeal by the defendants, The Mercantile Trust Company and others, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Saratoga on the 3d day of May, 1904,. denying the defendants’ motion to change the place of trial of the action from the county of Saratoga to the county of New York or to an adjacent county. ■</p>

Appeal by the defendant, the Kingston Consolidated Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 29th day of October, 1903, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 28th day of October, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p> Tax— express freights from, points within for delivery outside or from points outside firr delivery within the State—they are “ earnings derived from business of an interstate character ” and are not taxable. </p> <p>Earnings derived by a steam surface railroad company organized under the laws of the State of New York for transportation wholly within the State of New York of express freights, either shipped from points in the State for delivery out of the State or from points out of the State for delivery within the State, aré “earnings derived from business of an interstate character,” and are,-there- • fore, not taxable under section 184 of the Tax Law.</p> <p>Where it appears that the assessment levied upon a railroad company pursuant to said section 184 of the Tax Law includes such earnings, the railroad company is entitled to a revision of the tax.</p>

<p>Appeal by the defendant, H. H-. Marlette, as commissioner of highways of the town of Laurens, Otsego county, Hew York, from a judgment of the Supreme Court in favor of the, relator, entered in the office of the clerk of the county of Otsego on the 2d day of July, 1903, upon the decision of the court, rendered after a trial at the Otsego Trial Term, the jury having been discharged, directing .the issuance of á peremptory writ of mandamus.</p> <p>The judgment appealed from awards to the relator a peremptory writ of mandamus commanding the defendant and his successors' in office to attach a certain highway, described in the alternative writ, to a road district of the town of Laurens, or to make a separate road district thereof, to appoint an overseer of highways therefor and to cause said highway to be opened for use by the public as a highway.</p> <p>For many years prior to the commencement of the proceedings the roadway in question had been a public highway passing through lands now owned and occupied by the relator. On the 2d day of May, 1900, the defendant, as commissioner of highways of the town of Laurens, made, filed and recorded in the town clerk’s office of that town a written notice describing the highway in question, and certifying that it “has been abandoned by the public and is no longer used as a public highway, and pursuant to section 99 of the Highway Law the same is discontinued.” In the return to the alternative writ of mandamus made by the defendant, he alleged that he had been commissioner of highways of the town of Laurens since the month of February, 1899; that for more than six years prior thereto the highway described in the said writ had ceased to be traveled by the public, and the same had been abandoned and was no longer used as such, the same being fenced up in many places, and that thereupon he, in pursuance of section 99 of the Highway Law, made and entered in the town clerk’s office of that town the notice or certificate above mentioned.</p> <p>The principal issue litigated upon the trial was as to whether said highway had been traveled and used as a public highway for the six years immediately preceding the year 1900. The trial was had before the court and a jury, and at the close of the evidence each party requested the court to direct a verdict in his favor. The court thereupon took the case and found, among others, the following facts: That the highway in question had been during the past forty years, and still was, one of the highways of said town and had been used and traveled by the public as such highway; that during the six years immediately preceding the year 1900, and each and every of said six years, the said highway has been traveled and used as a public highway by the public; that on "the 2d day of May, 1900, the defendant improperly claimed that said highway had not been traveled or Used as a highway for six yeárs prior to that date, and that on that day, without jurisdiction to act therein, he-Made, signed and caused to be filed and recorded in the town clerk’s office a certificate describing said highway and improperly certifying that the same had been abandoned by the public and was no longer used as a highway. Judgment was rendered upon the decision for the relief demanded in the alternative writ, and the defendant appeals.</p>

Appeal by the defendants, Allen Brothers Company and others, from an order of the Supreme Oourt, made at the Saratoga Special Term and entered in the office of the clerk of the county of Washington on the 1st day of February, 1904.

<p>Negligence—injury from the breaking of an iron band surrounding the kiln of a ■ cement mill—assumption of the risk by the employee—rule in respect thereto — question of negligence and contributory negligence for the jury.</p> <p>A complaint, in an action brought by an employee against his master to recover damages for personal injuries sustained by the servant in consequence of the alleged negligence of the master in failing to furnish him with a reasonably safe place in which to work, states a. good cause of action at common law and one which was' not created by the Employers’ Liability Act (Laws of 1902, chap. 600).</p> <p>It is, therefore, not necessary for the employee to allege in the complaint and to prove upon the trial that within 120 days he gave notice of the time, place and cause of the injury as required by the¡ provisions of that statute. . .</p> <p>In such an action it appeared that the defendant operated a cement mill, the kilns in which extended through the four stories of the building; that the plaintiff was employed on the second story tending a kiln; that at intervals between the floor and the ceiling of the second story there were four iron bands six inches in width and half an inch thick around the kiln at. which the pláintiff worked; that several months before the accident one of these bands.' broke because of the strain to which "it was subjected by the expansion of the kiln under the intense heat generated therein and in falling fractured an employee’s leg; that the plaintiff then told the defendant’s foreman that if the band.was not.loósened he would not work there, to which the foreman replied “ that he would see that it was attended to at once; ” that the matter was'also suggested to the defendant’s superintendent, who stated that he would have the hands loosened and also that he'would put up a guard; that thereafter four lateral iron guards running from the floor to- the ceiling outside and crossing the hands on four sides of the kiln were put up, for the purpose of preventing a hand from flying out from the kiln in case it should break. The bands were not, however, loosened. Subsequently one of the bands broke by reason of the expansion of the kiln and in falling struck and injured the plaintiff.. The band parted on the side of the kiln opposite the place at which the plaintiff was working and the plaintiff testified that he supposed that the -band had. been loosened.</p> <p>The court, at the close of the plaintiff’s case, dismissed the complaint on the ground that the plaintiff had assumed the risk of the accident.</p> <p>Reid, that if the plaintiff knew the cause of the danger equally with the defendant, or, in other words, if the risk was obvious, the ruling was correct;.</p> <p>That, upon the evidence, however, it could not be said, osa matter of law, that the risk was an obvious one, but that that question was one of fact for the jury to determine;</p> <p>That there was sufficient evidence to warrant the submission to the jury of the questions of the defendant’s negligence and of the plaintiff’s freedom from contributory negligence.</p> <p>While it is the rule that a servant assumes all' the risks usually incident, to his. employment, yet that rule is based on the supposition that the master has exercised reasonable care in providing the servant with a safe place in which to wprk, and it is those risks only which cannot be obviated by the exercise of such care by the master that the servant assumes. Known dangers which can be avoided by the exercise of reasonable care by the master are not such as are incident to the business. i</p>

Appeal by the' claimant, William Greeley, from a judgment of the Court of Claims in favor of the defendant, entered in the office of the clerk of said court on the 13th day of February, 1903, dismissing the plaintiffs claim.