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subdivision 4 of section 3268 of the Code of Civil Procedure, on the theory that such an order for security was of right. The action being brought to set aside conveyances claimed to be in fraud of creditors of the bankrupt, the cause of action is not one "arising before the assignment, the appointment of the trustee, or the adjudication in bankruptcy.” Code Civ. Proc. § 3268, subd. 4; Rielly v. Rosenberg, 57 App. Div. 408, 68 N. Y. Supp. 265; Schreier v. Hogan, 70 App. Div. 2, 74 N. Y. Supp. 1051; Kronfeld v. Liebman, 78 App. Div. 437, 79 N. Y. Supp. 1083. While in Rielly v. Rosenberg, supra, the court referred to the fact that in the application then considered it did not appear that a cause of action to set aside the transfer existed in creditors before the adjudication in bankruptcy, a circumstance affirmatively appearing in these papers, still the distinction thus sought to be availed of by the defendants upon this motion has apparently not been adopted.
The true question is, as the court noted in Rielly v. Rosenberg, whether a cause of action of the character set out in the complaint in the suit brought by the trustee was one inhering in some person prior to the adjudication in bankruptcy; and since the trustee may sue to set aside the transfers without the prior return of execution unsatisfied (Thomas v. Roddy, 19 Am. Bankr. Rep. 873, 122 App. Div. 851, 107 N. Y. Supp. 443, the particular cause of action which he asserts did not accrue to creditors, and because of its peculiar character did not arise before the adjudication in bankruptcy or the appointment of the trustee. In Kronfeld v. Liebman, supra, it appears that the general rule stated in Rielly v. Rosenberg was applied, notwithstanding that creditors of the bankrupt had recovered judgments upon their claims prior to the appointment of the trustee, and in Schreier v. Hogan, supra, the proposition that subdivision 4 of section 3268 of the Code of Civil Procedure does not apply to an action by a trustee in bankruptcy to set aside conveyances was apparently affirmed as an absolute rule of construction. I must therefore hold that the ex parte order sought to be vacated was beyond the right of the defendants to obtain, and the motion is therefore granted, with $10 costs.
Motion granted. (62 Misc. Rep. 624.)
CONYOLLY V. PETERSON.
(Supreme Court, Appellate Term. April 8, 1909.) 1. MASTER AND SERVANT (8 278*)-INJURY TO SERVANT-DEFECTIVE SCAFFOLD
That an employé on a scaffold used a beam thereof for a purpose not contemplated by the parties, and was injured by its breaking, is not evidence that the platform was unsafe, under Labor Law (Laws 1897, p. 467, c. 415) $ 18, forbidding unsafe scaffolding.
[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. & 958;
Dec. Dig. $ 278.*] 2. MASTER AND SERVANT ($ 265*)-INJURY TO SERVANT-DEFECTIVE SCAFFOLD
ING-EVIDENCE-RES IPSA LOQUITUR.
An employé, injured by falling from a scaffold, who only shows the
happening of the accident by his using a beam thereof for a purpose not For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
contemplated by the parties, does not show that the scaffold was improper, under Labor Law (Laws 1897, p. 467, c. 415) $ 18, forbidding improper scaffolding.
[Ed. Note-For other cases, see Master and Servant, Cent. Dig. $ 887; Dec. Dig. & 265.*] Appeal from Municipal Court, Borough of Manhattan, Fourth District.
Action by Edward Connolly against Charles Peterson. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.
Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.
George H. Abbott, for appellant.
LEHMAN, J. The plaintiff was a laborer, whose duty it was to stand on a platform some 10 feet above the ground and hand up bundles of flooring to a man at the second-story window. In the course of his employment, one bundle opened and a strip of flooring fell out and stunned him. He fell, and, in falling, grasped a support of the scaffold, which extended from the ground to about 3 feet above the flooring. This support was a thin piece of wood, and broke when he grasped it, and he fell into the street. There was no railing upon the platform.
The action is brought under section 18 of the labor law (Laws 1897, P. 467, c. 415), forbidding the employer to furnish scaffolding which is “unsafe, unsuitable or improper.” The evidence shows that these supports were of varying height above the floor of the platform, depending upon the length of the beams used for this purpose. It would appear that they had no other purpose than to support the platform, and were allowed to extend above the floor simply because it was more convenient to build the platform in that way, and not to give greater security to the workmen. The plaintiff, in this case, used the beam for a purpose not shown to have been contemplated by the parties, and the fact that it broke under such circumstances is not evidence that the platform was unsafe.
The plaintiff, however, claims that the platform was unsafe and unsuitable by reason of there being no railing thereon, or any guard for the laborers, unless these supports were intended as guards. It seems that it is a question of fact whether a scaffolding in any particular case is sufficient to comply with the requirements of the law, and the plaintiff has not in this case presented any evidence, other than the accident itself, to show that a scaffolding without railing or guard was improper or unsuitable for this work.
The judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.
•For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
THOMPSON V. RAWLSTON.
(Supreme Court, Appellate Term. April 8, 1909.) COURTS (8 190*)—MUNICIPAL COURTS-PROCEDURE-REVIEW.
The record will be returned to the trial court for amendment, if one can be properly made, where there was an attempted substituted service of the summons and complaint, in which case Municipal Court Act (Laws 1902, p. 1501, c. 580) $ 34, provides the order and papers on which it was granted shall be filed six days before the return day of the summons, and the record, while not showing this was done, not showing it was not done.
[Ed. Note. For other cases, see Courts, Dec. Dig. $ 190.* ]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Sadie Louise Thompson against Zelma Rawlston. From a judgment for plaintiff, defendant appeals. Record returned for amendment.
Argued before GILDERSLEEVE, P. J.,, and SEABURY and LEHMAN, JJ.
William F. S. Hart, for appellant.
PER CURIAM. Service of the summons and complaint herein was attempted to be made by substituted service. The Municipal Court act provides that in such a case the order and the papers upon which the same was granted shall be filed six days before the return day of the summons. Section 34, Municipal Court Act (Laws 1902, p. 1501, c. 580); Dalton v. Mills (Sup.) 91 N. Y. Supp. 734; Stephens v. Molloy, 50 Misc. Rep. 518, 99 N. Y. Supp. 385. The return in this case fails to show this. The papers bear no indorsement showing that they were filed, but do show that the calendar fee was paid on November 7, 1908, which was three days before the return day of the summons. There is nothing, however, in the record, showing that they were not filed, and an amended return may show that they were filed within the proper time.
The record will therefore be returned to the lower court for amendment, if one can properly be made thereto.
(62 Misc. Rep. 621.)
RAUH V. WOLF et al.
(Supreme Court, Appellate Term. April 8, 1909.)
1. MASTER AND SERVANT (8 39*)—BREACH OF CONTRACT OF EMPLOYMENT-AC
TION FOR DAMAGES-COMPLAINT.
The complaint alleging that in March, 1907, defendants employed plaintiff for a period from such time to January, 1908, and agreed to pay him monthly at the rate of $2,500 per year; that plaintiff performed his obligations, but defendants failed to perform said agreement, in that they prevented him from rendering services during the months of November and December, 1907; and that there is due plaintiff under said install
*For other cases seo same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
ments the sum of $208.33 for each of said months—is sufficient to sustain a recovery for breach of the contract of employment.
[Ed. Note.--For other cases, see Master and Servant, Cent. Dig. $ 45;
Dec. Dig. $ 39.* ] 2. JUDGMENT (§ 594*)-RES JUDICATA.
Judgment rendered January, 1908, in an action commenced in November, 1907, for breach of contract of employment from March, 1907, to January, 1908, the damages therein sought having been what he would have earned during the month of October, 1907, had he not been prevented by defendants from rendering services, is a bar to further action for breach of the contract.
[Ed. Note.-For other cases, see Judgment, Cent. Dig. $ 1109; Dec. Dig. $ 591.*] Appeal from City Court of New York, Special Term.
Action by Louis Rauh against Abraham Wolf and another, partners as A. Wolf & Co. From a judgment dismissing the complaint, plaintiff appeals. Modified and affirmed.
See 59 Misc. Rep. 419, 110 N. Y. Supp. 923.
Argued before GILDERSLEEVE, P. J., and SEABURY ard LEHMAN, JJ.
White & Case, for appellant.
SEABURY, J. This action was brought to recover damages for a breach of a contract of employment. The complaint alleges that on March 23, 1907, the plaintiff and the defendants entered into an agreement whereby the defendants employed the plaintiff for a period to continue from said date to January 1, 1908, and agreed to pay the plaintiff for his services at the rate of $2,500 per annum, payable in monthly installments; that the plaintiff performed the obligations to be performed on his part, but the defendants failed to perform said agreement, in that they prevented the plaintiff from rendering services during the months of November and December, 1907; that there is due the plaintiff under said installments the sums of $208.33 for the month of November, 1907, and $208.33 for the month of December, 1907. The complaint then demands judgment for $116.66, with interest and costs.
In the court below counsel for the plaintiff conceded that the plaintiff rendered no services for the months of November and December, and the court construed the complaint as stating a cause of action for services rendered, and dismissed the complaint. The complaint, altrough inartificially drawn, is sufficient to sustain a recovery of damages for breach of the contract of employment therein stated. Murray v. O'Donohue, 109 App. Div. 696, 96 N. Y. Supp. 335; Williams v. Conners, 53 App. Div. 599, 66 N. Y. Supp. 11. If this were the only question presented by the record before us, the judgment should be reversed, and a new trial ordered.
The defendant, however, pleaded, as a bar to this action, a judgment recovered in the Municipal Court. The judgment roll in the Municipal Court action was offered and received in evidence. The parties were the same in both actions, and the plaintiff recovered
judgment in the Municipal Court action for a breach of the same contract of employment set up in this action. In the Municipal Court action the plaintiff sued to recover $208.33 for "services rendered and breach of contract of employment.” In the Municipal Court action, the plaintiff testified that he performed no work in October, having discontinued work on September 28th, and that he was suing for "salaries for October."
The Municipal Court action was started on November 13, 1907, and judgment was rendered in the plaintiff's favor for the full amount claimed on January 21, 1908. From this review it will be seen that in the Municipal Court action the plaintiff recovered for a breach of contract, and his damages were shown to be the loss of $208.33, which he would have earned during the month of October, if performance had not been prevented. The recovery in the Municipal Court was not for services actually rendered, because it is conceded that the plaintiff rendered no services in October. The plaintiff having recovered in the Municipal Court a judgment for a breach of the contract of employment, that judgment is a bar to the present action to recover for a breach of the same contract of employment. Waldron v. Hendrickson, 40 App. Div. 7, 57 N. Y. Supp. 561.
The judgment roll offered in evidence establishes a complete bar to this action, and the complaint should have been dismissed upon the merits.
The judgment is modified, and the dismissal is directed upon the merits, and, as modified, affirmed. All concur.
PFAELZER V. GASSNER. (Supreme Court, Appellate Term. March 29, 1909.) 1. EVIDENCE ($ 179*)—BEST AND SECONDARY-BOOKS OF ACCOUNT-FAILURE TO
PRODUCE-EFFECT-ADMISSIBILITY OF ABSTRACTS.
Nonproduction by defendant on notice of his books, on which plaintiff relied in part to prove his cause of action, did not relieve plaintiff of the burden of proof, nor authorize as a penalty th reception of plaintiff's summaries of the books, on his bare assertion that copies of entries offered by him were correct abstracts.
[Ed. Note.-For other cases, see Evidence, Cent. Dig. | 596 ; Dec. Dig. $
179.*] 2. EVIDENCE (8 177*)-SECONDARY EVIDENCE-GROUNDS FOR ADMISSION-Books
Books appeared to contain' but 82 accounts, and the paging, showing allowances, large and frequent, for expansions, the highest and last with 26 numbers intervening from the next prior, was but 270. Besides this, an old ledger had been continued, in which 182 pages had been used. Held, that the books were not so voluminous as to warrant the admission of abstracts therefrom.
(Ed. Note.-For other cases, see Evidence, Cent. Dig. $ 557 ; Dec. Dig. $
177.*] 3. EVIDENCE (8 354*)-Books OF ACCOUNT-SELF-SERVING DECLARATIONS.
On an issue as to the profits of a business out of which an employé was claiming a certain percentage as compensation, professed extracts from
•For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes