to put on a new tailboard, and it would cost only $2, and said, "Fut on a new tailboard and we will save trouble. I am afraid to work on this tailboard;" and that the president of the defendant replied, "Well, it's no use talking-wait until business gets better and I will put on a new tailboard." Here, according to the testimony of the plaintiff, there was no assurance that repairs would be made at once, or even within a reasonable time, and there was no new representation that the tailboard was safe, but, on the contrary, the inference would be that the president of the defendant agreed with the plaintiff that a new tailboard should be provided. In these circumstances it is perfectly plain that under the principles of the common law, with the same knowledge on his part as was possessed by the president of the defendant, the plaintiff assumed the risk in continuing in the employ of the defendant and using the tailboard.

The Court of Appeals has not yet, so far as we are able to discover, decided whether the rule of evidence with respect to assumption of risk prescribed in section 3 of the employer's liability act applies to all actions for negligence whether predicated on a breach of a common-law or statutory duty, a question upon which there is a difference of opinion on the part of the members of this court (Ward v. Manhattan R. R. Co., 95 App. Div. 437, 88 N. Y. Supp. 758, and Curran v. Manhattan R. R. Co., 118 App. Div. 347, 103 N. Y. Supp. 351) and of the Appellate Division in the Third Department as well (O'Neil v. Karr, 110 App. Div. 571, 97 N. Y. Supp. 148; s. c., 115 App. Div. 881, 100 N. Y. Supp. 1133, affirmed 190 N. Y. 509, 83 N. E. 1128; Bushtis v. Catskill Cement Co., 128 App. Div. 780, 113 N. Y. Supp. 294, affirmed 198 N. Y. 548, 92 N. E. 1079). The affirmances in the Court of Appeals in the last two cases were without opinion, and the record shows that other points were urged upon which the affirmances may have been based. In view of the recent decision of the Court of Appeals in the Payne Case, supra, the question becomes quite important, for if that rule of evidence be limited to breaches of statutory duty, which may be submitted to the jury with breaches of duty at common law, it will require very clear instructions to enable the jury to discriminate between the different rules of evidence with respect to assumption of risk, depending on whether they find the breach to have been of a common-law or statutory duty. In this connection it may be observed that a similar important question will arise with respect to whether the change in the rule of evidence made by section. 202a (Laws 1910, c. 352) of the labor law, by which contributory negligence becomes matter of defense to be so pleaded and proved, applies to all breaches of duty under the labor law. We do not, however, deem it necessary at this time to decide that question or to express a further opinion thereon, for in either view we think the trial court was justified in setting aside the verdict.

It was doubtless more convenient for the plaintiff to step on the tailboard where it had been damaged, but this was not necessary. He could have performed his duties by avoiding stepping on the tailboard at that point. The trial court, therefore, on the assumption that the rule of evidence prescribed by the employer's liability act applied and

that the case required submission to the jury of the assumption of risk, the court was fully warranted in setting aside the verdict. That was the only question presented to the Appellate Term for review, and it is the only question brought here for decision by the appeal; but we do not wish to be understood as assuming that the notice served by the plaintiff complied with the requirements of section 2 of the employer's liability act (now section 201 of chapter 31 of the Consolidated Laws), for it is, at least, doubtful whether it states the cause of the injury, which was the giving away or breaking of the tailboard of the wagon, and not the mere fact that it was in an unsafe and dangerous condition, which without its giving way or breaking would not have harmed the plaintiff. See Logerto v. Central Building Co., 198 N. Y. 390, 91 N. E. 782.

It follows, therefore, that the order of the Appellate Term should be reversed, with costs, and the order of the Municipal Court affirmed, with costs.

DOWLING, J., concurs.

INGRAHAM, P. J. I concur in the conclusion of Mr. Justice LAUGHLIN upon the ground that in this case there was no question for the jury. Whether the action was under the employer's liability act, being article 14 of the labor law (chapter 36 of the Laws of 1909 [Consol. Laws 1909, c. 31]) or at common law. I do not think that the finding that defendant was negligent was sustained by the evidence. It does not appear that the tailboard of this wagon was provided for the purpose for which it was used. It was a simple appliance and a part of the wagon in common use. The plaintiff knew that this tailboard had been broken and repaired. He thought a new tailboard should be supplied, and so apparently did the president of the defendant. So far as appears, the tailboard was entirely safe if used as a tailboard. All the plaintiff had to do to avoid injury was not to step upon the part that had been repaired by nailing on a piece of board to enable it to be used on this particular day. The accident was directly the result of the plaintiff stepping on this portion of the board that had been injured of which he knew as much as anybody else.

I think under those circumstances that, irrespective of contributory negligence or assumption of risk, the verdict that the defendant was negligent was against the weight of evidence, and justified the court in setting it aside.

MCLAUGHLIN and MILLER, JJ., concur.

BOSSAK et al. v. SIFF et al.

(Supreme Court, Appellate Division, Second Department. November 24, 1911.) BANKRUPTCY ( 387*)-COMPOSITIONS WITH CREDITORS-TRUSTEES-PERSONAL LIABILITY.

The trustee under a composition agreement is not personally liable to a creditor for the difference between the dividend received and the greater dividend which the trustee assured the creditor he would receive; such assurance being merely an expression of opinion that the greater dividend could be realized.

[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 387.*]

Appeal from Municipal Court, Borough of Brooklyn, Fifth District. Action by David Bossak and others against Ephraim Siff and another. Judgment for plaintiffs, and defendant Siff appeals. Reversed, and new trial ordered.

Argued before JENKS, P. J., and HIRSCHBERG, CARR, WOODWARD, and RICH, JJ.

Joseph Sapinsky (Alvin T. Sapinsky, on the brief), for appellant. Isidore Weckstein, for respondents.

WOODWARD, J. One Velleman was indebted to the plaintiffs and defendant, and a procceding in bankruptcy had been instituted against him. The creditors, or a committee of the creditors, procured an inventory of Velleman's property to be taken, and negotiations were entered into looking to the discontinuance of the bankruptcy proceedings, and this was subsequently accomplished; the defendant Siff taking over the property. The plaintiffs allege in this action that the defendant took the property, under the composition agreement, and agreed to pay them 35 cents on a dollar for their claims. The business does not appear to have produced a sum sufficient for this purpose, and the plaintiffs seek to hold the defendant personally responsible for the amount, refusing to accept a dividend of 28 per cent., which the defendant appears to have been willing to distribute.

It clearly appears from the evidence that the defendant was merely the trustee of the creditors under the provisions of the composition agreement, and that the property was turned over to him for the purpose of realizing 35 per cent. for the creditors, who severally agreed to release Velleman upon receipt of this portion of their several claims. It is impossible to spell out from the testimony any reasonable ground for holding the defendant liable to the plaintiffs in this action, other than in his capacity of trustee. It is true that there is testimony that the defendant said he "would pay 35 per cent." on the claims; but it was all said in connection with the negotiations between creditors for the purpose of preventing bankruptcy and realizing the most possible. from the property of Velleman, and it amounted to no more than the expression of an opinion that the business could be carried on by the creditors, through a trustee, in such a manner as to realize 35 per cent., upon the payment of which Velleman was to be released from his

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

obligations. To take advantage of one creditor, acting as trustee for the benefit of all of the creditors, and compel him to pay to a few creditors an amount in excess of the just proportion of each of the creditors out of the fund available for the payment of debts, is so unjust on its face that it will not be permitted, in the absence of a clear and distinct obligation, and none such is shown here. The language of the defendant, as testified to for the plaintiffs, does not indicate any intention on the part of the defendant to do more than to try to get enough out of the goods of Velleman to pay 35 per cent. on the indebtedness, and the learned trial court erred in submitting the case to the jury.

The judgment of the Municipal Court should be reversed, and a new trial ordered; costs to abide the event. All concur.

LEVIN et al. v. SWEET.

(Supreme Court, Appellate Division, Second Department. November 24, 1911.) FRAUD (§ 13*)-FRAUDULENT REPRESENTATIONS-FALSITY AND KNOWLEDGE THEREOF.

Defendant, in an action for damages for fraud, though mistaken in his opinion as to the ownership of the partitions which were sold by him to the plaintiff, but who accurately stated the facts as to their purchase, was not liable for false representations as to ownership.

[Ed. Note.-For other cases, see Fraud, Cent. Dig. §§ 3-5; Dec. Dig. § 13.*]

Appeal from Municipal Court, Borough of Brooklyn, Fifth District. Action by Samuel Levin and another against Elbert W. Sweet. From a judgment of the Municipal Court in their favor, plaintiffs appeal. Affirmed.

Argued before JENKS, P. J., and BURR, THOMAS, CARR, and WOODWARD, JJ.

Max Schleimer, for appellants.
C. E. Hunter, for respondent.

PER CURIAM. The only criticism to be made upon this judgment is that the trial justice should have dismissed plaintiffs' complaint, instead of giving them judgment for the sum of $55. Plaintiffs were not prejudiced by this error, and defendant does not appeal.

The action was brought for damages by reason of the alleged fraud and deceit of defendant. The evidence wholly fails to establish any statement of fact made by the defendant with knowledge of its falsity or with intent to deceive the plaintiffs. It probably was the fact that defendant was mistaken in his opinion as to the ownership of the partitions which were sold to the plaintiffs. But he clearly and accurately stated the facts as to the purchase and installation of the partitions, and showed the attorney for the plaintiffs the lease between himself and the owners of the property. "One who neither withholds

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

nor misstates the facts cannot be adjudged guilty of fraud, simply because the courts finally decided the law to be other than he claimed it to be." Amherst College v. Ritch, 151 N. Y. 282, 322, 45 N. E. 876, 886 (37 L. R. A. 305).

The judgment of the Municipal Court should be affirmed, with costs.

HEIN v. HEIN.

(Supreme Court, Appellate Division, First Department. December 1, 1911.)

Appeal from Special Term, New York County.

Action for divorce by Edna Valentine Hein against Isa Willard Hein. From a judgment entered upon the decision of Special Term, granting plaintiff a divorce and the custody of children, defendant appeals. Affirmed.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and MILLER, JJ.

Albert M. Levy, for appellant.

Max D. Steuer, for respondent.

PER CURIAM. In this case the issues of adultery raised by the pleadings were sent to a jury for trial and determined by them in favor of the plaintiff. On the case coming on for trial at Special Term on these findings of the jury, the judgment appealed from was granted. We have examined the record, and think the judgment sustained by the finding of the jury, and that no error was committed which would justify a reversal of the judgment.

From the record it appears that, although a motion was made after the rendition of the verdict for a new trial on the judge's minutes, that motion was denied. No order was entered denying that motion, and there is no appeal on this record from an order denying a motion for a new trial. We are informed by counsel, however, and that fact also appears upon another appeal to this court, that subsequent to the filing. of this record an order was entered at Trial Term denying that motion, and upon that order this defendant has taken a separate appeal, which is still pending. In view of this statement, we have examined the case as if there was before us an appeal from an order denying a motion for a new trial on the judge's minutes.

We are satisfied from that examination that the verdict of the jury was sustained by the evidence, and that, even if we had jurisdiction to review the facts upon which the jury rendered their verdict, we would not be justified in disturbing the judgment. As the appeal from the order denying the motion for a new trial at the Trial Term is not a part of this record, and is not now before us, we cannot now affirm that order, but make this intimation to avoid the necessity of the defendant's further prosecution of the appeal from the order denying a motion for a new trial. On this appeal, however, we can do nothing more than to affirm the judgment appealed from.

The judgment is therefore affirmed, with costs.