so made as to import into a place of former safety an element of peril, of which the plaintiff was ignorant and could not know in the exercise of due care to avoid injury, its duty was to give reasonable warning of the danger to be encountered. The defendant could not, by employing the marble company, free itself of its own duty to its licensees, although they were servants of independent contractors. The defendant having intrusted to that company the performance of its duty to see that the marble was safely stacked for the protection of its licensees, such duty was performed by it through such company, and it is responsible for the discharge of the same. Had the obstruction created in the room been purely collateral to the work contracted to be done and entirely the result of the wrongful acts of the marble company, the defendant would not be liable. But the obstruction which occasioned the injury to defendant was the direct result of an act which the marble company was authorized to do, and the defendant, who awarded to it the contract for the marble work and authorized it to bring the marble into the building and store it there, is liable for the injury due to its negligent stacking, although the marble company may also be required to answer in damages. Robbins v. Chicago, 4 Wall. 657, 18 L. Ed. 427; Bailey, Pers. Inj. (2d. Ed.) 122. The injury was not due to the sole negligence of the marble company. It resulted from a cause which could have been prevented by the defendant, and which it ought to have foreseen and against which it ought to have guarded. That the performance of the entire marble work rested on an independent contractor did not, under the circumstances of this case, absolve the defendant from seeing that the marble was so stacked as not to inflict injury on the workmen or reasonably warning them of the added peril. Having failed to discharge its duty in these respects, and such failure having been, without plaintiff's fault, the direct and proximate cause of the injury to him as one of its licensees, the defendant was guilty of active culpable negligence, and was rightfully adjudged to respond in damages. It was the defendant's negligence of this character which fixes its liability. The liability of a person, situated as the defendant was, for active as distinguished from passive negligence, is pointed out with great clearness and force by Judge (now Mr. Justice) Lurton in the following language in Felton v. Aubrey, 74 Fed. 350, 358, 359, 20 C. C. A. 436, 444:

"It seems to us that many of the American cases which we have cited failed to draw the proper distinction between the liability of an owner of premises to persons who sustain injuries as a result of the mere condition of the premises, and those who come to harm by reason of subsequent conduct of the licensor inconsistent with the safety of persons permitted to go upon the premises, and whom he was bound to anticipate might avail themselves of his license. This distinction seems to be sharply emphasized in the case of Corby v. Hill, 4 C. B. (N. S.) 562, and is a distinction which should not be overlooked. If there be any substantial difference between the legal consequence of permitting another to use one's premises and inviting or inducing such use, the distinction lies in the difference between active and the merely passive conduct of such a proprietor. It may be entirely consistent with sound morals and proper regard for the rights of others that the owner of the premises should not be held liable to one who gets upon another's premises for his own uses, and sustains some injury by reason of the unfitness

of the premises for such uses, not subsequently brought about by the active interference of the owner. If such person goes there by mere sufferance or naked license, it would seem reasonable that he should pick his way, and accept the grace, subject to the risks which will pertain to the situation. But, on the other hand, if, with knowledge that such person will avail himself of the license, the owner actively change the situation by digging a pitfall, or opening a ditch, or obstructing dangerously the premises which he has reason to believe will be traversed by his licensee, sound morals would seem to demand that he should give reasonable warning of the danger to be encountered."

The rule so stated has been observed by this court in Ellsworth v. Metheny, supra, Tutt v. Ill. Cent. R. Co., 104 Fed. 741, 744, 44 C. C. A. 320, Wright v. Stanley, 119 Fed. 330, 332, 333, 56 C. C. A. 234, Dishon v. Cincinnati, N. O. & T. P. Ry. Co. (C. C.) 126 Fed. 194, 206, De Haven v. Hennessy Bros. & Evans Co., 137 Fed. 472, 476, 69 C. C. A. 620, and Winters v. B. & O. R. Co., 177 Fed. 44, 50, 100 C. C. A. 462. See, also, Northern Pac. Ry. Co. v. Jones, 144 Fed. 47, 75 C. C. A. 205 (C. C. A. 9), and Garner v. Trumbull, 94 Fed. 321, 36 C. C. A. 361 (C. C. A. 8).

Ellsworth v. Metheny is instructive and closely in point. There was evidence that Metheny was killed in an entry in a coal mine where the miners were accustomed to go at noon for the purpose of eating their dinners and for social intercourse. Indulgence in this practice was with the knowledge of and without objection from the owner. Although Metheny was not, during such noon hour, engaged in the course of his employment and consequently not entitled to the protection accorded an employé, he was, nevertheless, a licensee using the entry with the implied consent of his employer. Some three weeks prior to his death the mineowner had introduced into and strung along the wall of such entry a highly dangerous electric wire, with which the workmen might come in contact when passing back and forth. It was thought that the mineowner might not, without responsibility, actively change a situation of previous safety by introducing a highly dangerous device into a place thus used with his consent, and that sound morals and just treatment demanded that the licensee should have had notice of the new danger which he was likely to encounter in using the premises. It was said that if, on a rehearing of the case, the testimony should warrant the finding that the electric apparatus as actually introduced into the mine was dangerous to the life and safety of the employés and they were ignorant of that fact, or could not know it in the exercise of ordinary care to avoid injury, and the same was placed with the knowledge and consent of their employer in a part of the mine which the men were accustomed to use and occupy during the hour of rest and refreshment when not actively engaged in their duties, a duty was imposed upon the employer in thus introducing into his mine a new and dangerous element properly to guard and protect the men, or to give notice of the danger to those whom he should reasonably apprehend were likely to be brought into contact therewith.

Another and recent case in which the rule here invoked was applied and with the same result is Wilson v. Hibbert, 194 Fed. 838, 114 C. C. A. 542.

[6] That the fall of the slab was caused by a workman from another building does not operate to relieve the defendant from liability. The admission of strangers to the bank building had not been forbidden, and visitations by workmen from across the street had been frequent and with the defendant's knowledge. The conduct of the one who, in walking by the stacked marble on an established plankway in daily use, so jostled it as to cause the falling of the slab which struck the plaintiff, was not unusual, and the passage of any other person over such plankway in the course of his employment might well have produced the same result. Had the slabs been laid lengthwise on the floor, or otherwise safely placed, the accident would not have occurred. Within the rule stated in Toledo, St. L. & W. R. Co. v. Kountz, 168 Fed. 832, 94 C. C. A. 244 (C. C. A. 6), the proximate cause of the plaintiff's injury was the dangerous method in which the marble was stacked.

Other errors are assigned and argued, but they are not well taken, and are not deemed of sufficient importance to warrant extended consideration.

No error appearing on the record, the lower court is affirmed.

In re BERKELEY.

Appeal of BUSHBY.

(Circuit Court of Appeals, Second Circuit. January 13, 1913.)

No. 77.

1. BANKRUPTCY (§ 91*)-INVOLUNTARY PROCEEDINGS-SUFFICIENCY OF EVI

DENCE.

Evidence considered on the hearing of a petition in involuntary bankruptcy, and held insufficient to establish any indebtedness of the alleged bankrupt, except, perhaps, to the original sole petitioner, or to show that he was insolvent at the time the petition was filed.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. §§ 137-139; Dec. Dig. § 91.*]

2. EQUITY (§ 394*)-MASTERS-COMPENSATION.

Where the rules of court fix the per diem compensation of a master, unless an additional allowance is made, a stipulation by which the parties to a suit agree to pay him an increased amount is in violation of such rules, and will not be sanctioned.

[Ed. Note. For other cases, see Equity, Cent. Dig. §§ 857-859; Dec. Dig. § 394.*]

Appeal from the District Court of the United States for the Southern District of New York; Charles M. Hough, Judge.

In the matter of Lancelot M. Berkeley, alleged bankrupt. Appeal by James C. Bushby from a decree dismissing petition. Affirmed.

The following is the opinion of the District Court, by Hough, District Judge:

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

[1] The petition herein was filed April 21, 1910, as a one-creditor petition. Subsequently there appeared as copetitioners Daniel D. Bailey, as executor of Elbert Bailey, and Leo Levy, as assignee of Herman Scheideberg.

Quite early in the proceeding Judge Hazel required Bushby, Levy, and Bailey to file bills of particulars, setting forth what, if any, indebtedness they claimed against Berkeley. Bailey specified as his claim $400 of costs received by Berkeley as his (Bailey's) attorney. It may be that Berkeley owes Bailey some very small amount-what amount it is impossible to ascertain from the record-but it is plain that he does not owe Bailey what Bailey said he did.

Mr. Levy specified as Scheideberg's claim assigned to him $23.30 of costs, for which an execution had been issued and returned "No property." I discover nothing in the record to substantiate this claim; but, on the contrary, it is made to appear that before the execution had been issued the action out of which it grew had been totally discontinued, without costs to any party as against the other. Thus this contest should rather be entitled Bushby v. Berkeley, and requires an examination into the past relations of the parties much more thorough than is shown by the master's report.

For some considerable time before December, 1906, Messrs. Bushby and Berkeley had been copartners in the practice of the law. In the month named their partnership was dissolved by mutual consent, and it seems that most of the business of the firm was to be continued and wound up by Berkeley; he paying to Bushby a specified portion of the proceeds of each unclosed litigation. A considerable part of the business of the firm seemed to have been the promotion, on contingent fees, of suits against railway companies for injuries to abutting owners by reason especially of the erection by the New York Central Railway of the Park avenue viaduct; but they also dealt in claims (of the familiar kind) against the elevated railways of this city. Berkeley continued to perform the terms of dissolution and, as alleged by Bushby in his petition, paid him, during the year 1907, the considerable sum of $17,699.60 as his share of divers litigations.

The documents evidencing the dissolution agreement suggest, if they do not prove, a spirit of hostility between the former partners existing as early as December, 1906, but certainly by 1908 hatred arose between them.

Toward the end of that year the Appellate Division of the First Department decided, in Re Larney, 128 App. Div. 902, 927, 112 N. Y. Supp. 1134, that, under the terms of retainer given to Bushby and Berkeley by one Larney, any allowance for costs obtained by Bushby and Berkeley upon the settlement of the Larney claim belonged to the client, and not counsel. No opinion was filed by the Appellate Division, but it is evident that decision must have been founded on the terms of that particular retainer.

It is obvious from the evidence before me that this decision greatly alarmed both Bushby and Berkeley; for if Larney could obtain relief of this kind, why could not every other client whose retainer was in similar language?

It is also obvious from the record that such was the condition of hostility between the ex-partners that each believed the other was trying to avoid his share of this possible liability; and Berkeley believed that Bushby, whose partnership share of losses and profits was the greater, was seeking to avoid ultimate payment of such share by seeking out clients and inciting them to pursue Berkeley. Berkeley also charges that Bushby sought to render himself "execution proof" by conveying property to his wife.

This is all immaterial, except in so far as it shows the spirit in which this bankruptcy matter has been carried on; and it also accounts largely for the extent and quality of this record, over the accumulation of which the master seems to have exercised no authority whatever.

One result of Berkeley's view of Bushby's attitude regarding the possible claims by former clients of both of them was that Berkeley refused to continue to pay to Bushby his pro rata of completed business, alleging breaches of Bushby in respect of the dissolution agreement and the necessity of protecting himself against possible claims of former clients. Thereupon, and some time prior to April, 1909, Bushby brought an action for an accounting against Berkeley, in which an interlocutory judgment was had, and pursuant

thereto Berkeley filed an account, which is in evidence. This interlocutory judgment was reversed on appeal, and thereafter, and subsequent to the filing of this petition in bankruptcy, it was tried again, and interlocutory judgment again directed for Bushby; and thereupon another account was filed by Berkeley (in September, 1910), which is also in evidence. In these accounts Berkeley admits receiving from divers litigations sundry sums of moneys out of which he declares that Bushby would be entitled to a considerable part, had he performed his agreements. In each of these accounts Berkeley stated, not as a debt due by him, but as an offset against amounts claimed by Bushby:

"Sums collected by the firm of Bushby & Berkeley as costs in litigated cases and not paid to clients (the said firm being under the impression that they had the right to retain said costs), about $50,000, of which the share of J. C. Bushby is about $30,000."

This declaration evidently covers not only outstanding claims in process of · collection through Berkeley, but the entire business of the firm, so far as it might be affected by the decision in Re Larney.

In the spring of 1910 Bushby seems rather to have had the best of it in litigation growing out of this disgraceful professional squabble. The accounting suit had been tried for the second time before Judge Brady on March 17 and 18 and April 4, 1910; and it is inferred from this record that the intimations were quite strong that plaintiff would again get an interlocutory judgment. Bushby then seems to have noticed with alarm that in December, 1909, and January, 1910, certain deeds had been recorded in this county, which transferred title to apparently valuable pieces of real property from L. M. Berkeley to Robert C. Berkeley, and thereupon this petition in bankruptcy was filed, alleging that Berkeley had less than 12 creditors; that he was indebted to Bushby in a sum exceeding $8,000 (provable debts); and that Berkeley had conveyed, with intent to hinder, delay, and defraud his creditors, within four months of petition, and while insolvent, the real property above referred to. (The fraudulent assignment of a certain fund is also alleged, but no further attention will be paid to this allegation.)

Of this petition it is first to be noted that, if Bushby believed that he and Berkeley owed very numerous clients of their firm large sums for costs, he must have known that he was swearing to an untruth in alleging that Berkeley had less than 12 creditors.

On the other hand, the evidence warrants the inference that if he believed that Berkeley had no more than 12 creditors, then, on the evidence, Berkeley had no other creditor except Bushby himself. To this petition Berkeley filed an answer, in which he denied any indebtedness to Bushby, denied insolvency, and left undenied and unalluded to an allegation of the petition to the effect that certain moneys in which both Bushby and Berkeley were interested had been deposited with the chamberlain of this city, in order to protect the interests of both.

The effect of the pleading, therefore, is that Bushby alleges and Berkeley admits an asset in the alleged bankrupt, at the date of petition filed, of approximately $1,000.

On these issues the parties went to trial. It must be obvious that this case could have been tried in one of two ways: Either (1) Bushby could have been content with proving his asserted claim of approximately $8,000 and the apparently fraudulent nature of the transfers to R. C. Berkeley, and then left L. M. Berkeley to prove solvency, if he could; or (2) He could have shown, not only his own claim, but those of the clients of the firm, and then proceeded as before.

With respect to the second method of trial, no effort has been made to demonstrate the existence, amount, or provability of the alleged clients' claims, except to put in evidence the accounts furnished by Berkeley in the accounting proceeding above alluded to and quoted from..

No client (except Bailey, whose effort is a failure) has come forward to show his own claim, while it is made to appear that in November, 1909, an effort was made to put the claims of clients into the hands of a committee, which committee had employed Forster, Hotaling, and Klenke as attorneys