original by-law, the certificate of stock issued to Clausen on its face contained a provision to the effect that it was only transferable on the books of the company on the surrender of the certificate, "upon the condition, however, that, if the registered holder of this certificate shall be or become indebted to the company, the directors may refuse to consent to a transfer of the stock appearing in his name, until such indebtedness is satisfied, and, so long as he be so indebted, the stock represented by this certificate shall not be transferable." The certificate contained this provision at the time it was acquired by the plaintiff, although prior to the time the stock was pledged to the Hudson Trust Company by Clausen the requirement that this be printed on the certificate had been repealed; but since the purpose of such repeal has not been discussed in the points, and no claim is based thereon, we do not deem it necessary to consider it.

It is conceded by the learned counsel for the defendant that, in the absence of a statute authorizing such restriction, it was not competent for the bank to restrict the transfer of its stock by a stockholder, who was indebted to it; and it has been so adjudicated by controlling precedents. Bank of Attica v. M. & T. Bank, 20 N. Y. 501; Driscoll v. West Bradley & Cary Mfg. Co., 59 N. Y. 96; Buffalo German Insurance Co. v. Third National Bank, 162 N. Y. 163, 56 N. E. 521, 48 L. R. A. 107, affirmed 193 U. S. 581, 24 Sup. Ct. 524, 48 L. Ed. 801. At the time the original by-law was enacted, and when this certificate of stock was issued, it was provided in section 26 of the stock corporation law (chapter 564 of the Laws of 1890), now section 51 of the stock corporation law (chapter 59 of the Consolidated Laws), as follows:

"If a stockholder shall be indebted to the corporation, the directors may refuse to consent to a transfer of his stock until such indebtedness is paid, provided a copy of this section is written or printed upon the certificate of stock."

It is contended on the part of the defendant that this provision of the stock corporation law was applicable to banking corporations, and that, although a copy of the section was not written or printed upon the certificate, the substance thereof was printed on the face of the certificate pursuant to the requirement of the by-law, and that this was a substantial compliance with the statute. The learned counsel for the plaintiff contends that this statutory provision was not applicable to a banking corporation, and that, if it were, it was not complied with. The theory upon which it is claimed that it is not applicable is that subdivision 5 of section 25 of the banking law (chapter 689 of the Laws of 1892, as added by chapter 452 of the Laws of 1896), now with some changes in phraseology, subdivision 8 of section 27 of the banking law (chapter 2 of the Consolidated Laws) was in conflict therewith, and that by virtue of the provisions of section 33 of the general corporation law (chapter 563 of the Laws of 1890, as added by chapter 687 of the Laws of 1892), now section 321 of the general corporation law (chapter 23 of the Consolidated Laws), said subdivision 5 of section 25 of the banking law must prevail. Said section 33 of the general corporation law provided as follows:

"If in any corporate law there is or shall be any provision in conflict with any provisions of this chapter or of the stock corporation law, the provisions so conflicting shall prevail, and the provisions of this chapter or of the stock corporation law with which it conflicts shall not apply in such a case. If in any such law there is or shall be a provision relating to a matter embraced in this chapter or in the stock corporation law, but not in conflict with it, such provision in such other law shall be deemed to be in addition to the provision in this chapter or in the stock corporation law relating to the same subject matter, and both provisions shall, in such case, be applicable."

Said subdivision 5 of section 25 of the banking law, so far as material, provided as follows:

"No such corporation shall make any loan or discount on the security of the shares of its own capital stock nor be the purchaser or holder of any such shares unless such security or purchase shall be necessary to prevent loss upon debt previously contracted in good faith; and stock purchased or acquired shall, within six months from the time of its purchase, be sold or disposed of at public or private sale."

We are of opinion that the discount of Clausen's paper by the bank upon which it made the loan to him which was unpaid, as already stated, did not constitute a loan or discount on the security of the shares of its capital stock then owned by him within the intent and meaning of the provisions of said subdivision 5 of section 25 of the banking law, herein quoted. It does not appear whether or not the discount and loan were made on collateral security nor does it appear that the transaction contained any reference to his ownership of capital stock in the defendant. Clausen's stock was never redelivered to defendant, since it was issued to him, and it does not appear that there was any agreement to redeliver it. The statute, we think, plainly relates to security taken and held, upon which the bank obtains a lien, which it may enforce in the event of a default in the payment of the indebtedness. If there were a conflict between the provisions of the banking law and the stock corporation law, it is quite clear that the provisions of the former would prevail; but, in the absence of such conflict, the provisions of the stock corporation law are applicable. The provision of the stock corporation law in question does not give, or purport to give, to the corporation issuing the stock a lien on the shares of the capital stock owned by a stockholder who is indebted to it, but merely provides that the directors may refuse to consent to a transfer of his stock until the indebtedness is paid. It is a provision. for the coercion of the payment of an indebtedness by a stockholder to the corporation as a condition of his being able to effect a sale of the stock which will be recognized by the corporation and transferred on its books. It was therefore competent for the defendant to claim the benefit of said section 26, now section 51, of the stock corporation. law. The remaining question to be decided is whether it has effectively done so.

[2] The question as to whether the provisions printed on the face of this certificate if authorized by defendant at the time would constitute a substantial compliance with the requirements of said section 26 of the stock corporation law is not free from doubt; but we are of opinion that the purpose of the statute was to give notice to the

purchaser of stock that the directors might refuse to consent to a transfer thereof until the indebtedness owing by the stockholder to the corporation was paid, and in that view the provisions printed on the face of this certificate gave the purchaser such notice quite as effectively as if a copy of the statute had been written or printed upon the certificate instead.

It follows, therefore, that the defendant should have judgment to the effect that it is not obliged to transfer the stock upon its books until the indebtedness of Clausen to it is paid.

MCLAUGHLIN, CLARKE, and MILLER, JJ., concur.

INGRAHAM, P. J. I concur with Mr. Justice LAUGHLIN, except in so far as he holds that by printing on the certificate of stock pursuant to a requirement of a by-law of the defendant bank was a compliance with section 26 of the stock corporation law, now re-enacted as section 51 of the stock corporation law, chapter 59 of the Consolidated Laws. That section authorizes the directors of a banking corporation to refuse to transfer a stockholder's stock until any indebtedness of the stockholder to the corporation is paid, "provided a copy of this section is written or printed upon the certificate of stock." I think the object of the provision is to require a copy of the section itself in reference to the law of which it was a part to be printed upon the certificate of stock and a mere statement on the face of the certificate that the bank assumed power to refuse to transfer the stock until the indebtedness was paid was not a compliance with this provision of the statute.

I therefore dissent.

WESEL v. W. F. POWERS CO.

(Supreme Court, Appellate Division, Second Department. November 28, 1911.) 1. MASTER AND SERVANT (§ 182*)-INJURIES TO SERVANT-FELLOW SERVANTSTATUTORY PROVISIONS.

The employer's liability act (Laws 1902, c. 600), which by section 1, subd. 2, imposed a liability on the employer for an injury to a servant caused by the negligence of any employé exercising superintendence, whose principal duty was that of superintendence, or, in the absence of such superintendent, of any person acting as such by consent of the employer, did not define the whole measure of an employer's duty, but simply supplemented by specific provisions the rules of liability at common law.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 182.*] 2. MASTER AND SERVANT (§ 168*)-INJURIES TO SERVANT-NEGLIGENCE OF SU

PERINTENDENT.

Under Labor Law (Consol. Laws 1909, c. 31), § 200, subd. 2, as amended by Laws 1910, c. 352, an employer is not liable for injuries to an employé while adjusting a printing press to overcome a temporary defect, by the act of another employé under his direction in turning on too much electric power, on the theory of negligence of a superintendent in furnishing an incompetent assistant, where, though the assistant was not experi*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

enced in the use of the particular kind of machine in question, he had been employed in that printing shop for several years, and there was no evidence of incompetency.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. 168.*]

Appeal from Trial Term, Rockland County.

Action by Ernest E. Wesel against the W. F. Powers Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and new trial granted.

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

Frederick W. Catlin, for appellant.

Frank Comesky, for respondent.

CARR, J. The defendant appeals from a judgment against it for the sum of $880.47, entered on the verdict of a jury. The parties are servant and master, and the action was brought to recover damages for personal injuries arising from the alleged negligence of the defendant. At the trial the defendant offered no evidence, and the only question arising upon this appeal is purely one of law.

The plaintiff was in the employment of the defendant in its printing plant in the city of New York. He was a pressman, in charge of a large Whitlock press, which was operated by electrical power. While at work at the machine, on October 6, 1910, he was required to make some adjustments in the mechanism of the press, to overcome some temporary defect which appeared in the process of operation. To make these adjustments, he was obliged to enter within parts of the machinery of the press. He was assisted by one Freund, a fellow servant, as a helper in the operation of the press. While the plaintiff was so at work, he ordered Freund to put on the electrical power to move forward a portion of the press. This was done several times, as required in making the adjustments. Finally, under directions from the plaintiff, Freund again put on the electrical power, but so unskillfully that the moving part of the machine was advanced too far, thus striking the plaintiff and injuring him quite severely. The immediate cause of this accident was the act of Freund, a fellow servant. The complaint set forth two separate causes of action, each of which was based upon the provisions of the labor law of 1909, as amended by chapter 352 of the Laws of 1910. The plaintiff asserts liability against the defendant on the ground that Freund was assigned to do the work of helping at the press by one Vogel, a superintendent of the defendant, and that Freund was incompetent for such work, and that Vogel knew, or should have known, of such unfitness. Freund's incompetency is claimed to have arisen from the fact that he had not had sufficient experience with a press of the particular character of the one involved in the accident. Vogel's act in assigning Freund to assist in the work is charged as negligence, and the defendant is sought to be held under section 200, subd. 2, of the labor law, as amended in 1910. This provision of the statute imposes li

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

ability on the employer for an accident causing injury to an employé when it arises

"by reason of the negligence of any person in the service of the employer intrusted with any superintendence or by reason of the negligence of any person intrusted with authority to direct, control or command any employé in the performance of the duty of such employé."

The case at bar was submitted to the jury on the theory that the provision of the statute just quoted applied to the facts proved by the plaintiff. The defendant attacks the judgment on the claim that no cause of action was shown under this statute or at common law.

[1] This provision of the labor law is a development and enlargement of subdivision 2 of section 1 of chapter 600 of the Laws of 1902, commonly known as the "Employer's Liability Act." The former statute imposed liability upon the employer when the accident was caused

"by reason of the negligence of any person in the service of the employer intrusted with and exercising superintendence, whose sole or principal duty is that of superintendence, or, in the absence of such superintendent, of any person acting as superintendent with the authority or consent of such employer."

In this respect, at least, the statute was not merely declaratory of a common-law rule, but was intended to create a liability under certain circumstances where no measure of liability existed at common law. The statute did not attempt to define the whole measure of an employer's duty to the employés, but simply supplemented by specific provisions thereof the rules of liability existing at common law. Gmaehle v. Rosenberg, 178 N. Y. 147, 70 N. E. 411. Subdivision 2 of section 1 of the act of 1902 was the subject of continuous interpretation by the courts. It was held uniformly that the negligence of the superintendent, or person exercising superintendence, which imposed liability upon the employer, did not cover a case of personal negligence on the part of the superintendent in the performance of a "mere detail" of the general work, which in itself was not an act of superintendence, or on the part of a person whose principal duty was that of a fellow servant, and who but temporarily and incidentally performed an act in the nature of quasi superintendence.

When the act of 1902 was re-enacted in 1909 in the Consolidated Laws as a part of the labor law, no substantial change was made in the wording of subdivision 2 of section 1 of the original statute. In 1910, however, a substantial change was made in the wording of this subdivision. As it now stands, liability arises

"by reason of the negligence of any person in the service of the employer intrusted with any superintendence or by reason of the negligence of any person intrusted with authority to direct, control or command any employé in the performance of the duty of such employé."

The language so used is quite general, and the question whether it was intended to apply to an act of any of the persons whom it describes, which was not itself an act of superintendence, may be disposed of when it arises. The defendant claims, however, that the Statute did not originally, and does not now, apply to a case where the