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risk, and however great and consprehensive his knowledge of the risk of injury, and however long his experience and active his services in and about the dangers originating the risk, still the employer is liable. An interesting question is suggested, under the authority of Johnson v. Fargo, 184 N. Y. 379, 77 N. E. 388, 7 L. R. A. (N. S.) 537, as to whether or not an employé may either expressly or impliedly contract to assume the risk.
To succeed plaintiff must either establish that the failure to guard the reel was a defect in the ways, works, and machinery of the defendant for which it was liable under the employer's liability act (Laws 1902, p. 1748, c. 600), or that defendant was negligent in not providing with reasonable care and diligence fit tools or appliances for him to work with. Plaintiff contended under the employer's liability act. Defendant denied that the phraseology of the act comprehended the appliance herein referred to. Practically it makes little difference, as at most it becomes a matter of practice only; for at common law plaintiff should have been nonsuited. This plaintiff's counsel concedes. Under the employer's liability act :
“The question whether the employé understood and assumed the risk of injury or was guilty of contributory negligence by his continuance in the same place and course of employment with knowledge of the risk of injury shall be one of fact, subject to the usual powers of court in a proper case to set aside a verdict rendered contrary to the evidence."
In either view plaintiff cannot succeed.
“A servant assumes not only the risk incident to his employment, but ob vious dangers; and so, with the voluntary continuance in the service, having knowledge of the risk or means of knowing the dangers involved, he assumes the risk.” Utess v. Erie E. R. Co. (4th Dept., March 3, 1909) 115 N. Y. Supp. 389; Rooney v. Brogan Construction Co., 194 N. Y. 33, S6 N. E. 814; Clark v. N. Y. C. & H. R. R. R. Co., 191 N. Y. 416, 84 N. E. 397.
The verdict is contrary both to the law and to the evidence, and is set aside and a new trial granted. So ordered.
JOHN HOFMAN CO. V. MURPHY et al.
(Supreme Court, Special Term, Monroe County, April 6, 1909.) 1. APPEAL AND ERROR (8 1193*)-REMAND ON REVERSAL-RETRIAL-RULE OT
In an action to replevin goods of which defendant claims possession under his appointment as receiver in bankruptcy, the decision of the federal Supreme Court holding that, if the receiver had possession of the property, his possession could not be disturbed by a state court, and that the goods could not be taken from his possession under the circumstances, was the law of the case on remand,
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 4661
4665 ; Dec. Dig. § 1195.*] 2. BANKRUPTCY ($ 20*)-CONFLICT IN JURISDICTION-POSSESSION OF RES-Pos
SESSION BY RECEIVER.
If a federal District Court has possession of property through its receiv
er, one claiming the property can only obtain relief in the federal court,
however meritorious his claim may be; the state courts having no jurisdiction.
[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. 8 23; Dec. Dig.
§ 20.*] 3. PLEADING ($ 376*)-ANSWER-ADMISSIONS—ISSUE.
Where, in replevin for goods, the answer admitted the value of the goods to be a certain sum, there was no issue as to their value, so as to require evidence on that question.
[Ed. Note. For other cases, see Pleading, Cent. Dig. && 1223–1227; Dec.
Dig. $ 376.*] 4. VENUE ($ 52*)-CHANGE-CONVENIENCES OF WITNESSES.
Where, excepting certain written evidence, most of the evidence would be given by witnesses from Renssalaer county which would involve much expense in witnesses' fees as well as inconvenience to witnesses, the case will be transferred to that county from Monroe county.
(Ed. Note.-For other cases, see Venue, Cent. Dig. 88 76, 77; Dec. Dig. $ 52.*] Action by the John Hofman Company against Edward Murphy, 2d, and another. On motion for leave to renew a motion for change of venue, Motion granted.
Edward Murphy, for the motion.
BENTON, J. The law of this case has been settled by the decision of the Supreme Court of the United States, October term, 1908, reversing the judgments of the state courts. 211 U. S. 562, 29 Sup. Ct. 154, 53 L. Ed. — Regardless of the merits of plaintiff's claim, unless the state courts have jurisdiction, it can obtain no relief therein.
Defendant Murphy claimed possession of the goods replevined under and by virtue of his appointment by the District Court of the United States as receiver in bankruptcy of the Dodge Dry Goods Company. The law of this case is settled to the effect that if such District Court, through its said receiver, had possession of this property, it is thereby withdrawn from the jurisdiction of all other courts, and the only relief possible to the plaintiff is in the United States court, for that court's possession of the property cannot be disturbed by the process of another court.
Questions which are to determine whether or not the jurisdiction of the United States court is conclusive are these: When and in what capacity did the defendant take possession of the goods claimed by plaintiff ?
The transaction and the witnesses for the most part in this branch are in Troy, N. Y. The goods consisted of 314 feet of quartered oak, plate-glass show cases, also three cases of round posts of the value of $4,000. There is no issue as to the value, for that is admitted in the answer of the defendant, so that plaintiff's suggestion of witnesses on the question of value is unsubstantiated, as that cannot be disputed. The 314 feet of show casing was contracted for with William Schwarzwaelder & Co. of New York. They turned this portion of the contract over to plaintiff. There is no dispute but that plaintiff made the show cases and shipped them, and that they were set up and in use in the *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
Dodge Dry Goods Company's store at Troy, N. Y. Plaintiff's claim of title rests upon the allegation that the Dodge Dry Goods Company did not accept the goods. The evidence of this is in writing in the form of contracts and letters.
Of the witnesses called by plaintiff upon the trial, four were from Troy, and one from Monroe county. Defendant offers to have the evidence of Mr. Pierce, the witness from Monroe county, read at the trial in Renssalaer county with the same effect as if he was present and testified.
Plaintiff's attorney says in his affidavit used upon the former motion:
"I have in my possession the letters referred to in the affidavit of Mr. John Hofman upon this motion and have examined those letters, and I verily believe that the issues of this action must be determined upon the correspondence which has taken place between the plaintiff, William Schwarzwaelder and Company and the Dodge Dry Goods Company."
This was manifestly said leaving out of view the issue of the tiine and character of the possession of the defendant Murphy. Aside from the written evidence, it is manifest that most of the witnesses must be called from Troy. This would involve a large expense in witnesses' fees as well as inconvenience to them.
As the law and fact of this case now appear, it seems to me that the motion of the defendant should be granted, and that leave be given him to renew his motion to change the place of trial from the county of Monroe to the county of Renssalaer, and that such change be ordered with $10 costs of this motion to the defendant Murphy, to abide the event.
DAVIS V. BOUTON MOTOR CO.
(Supreme Court, Appellate Division, Second Department. April 30, 1909.)
1. APPEAL AND ERROR ($ 169*)-REVIEW-QUESTIONS Not RAISED BELOW.
Matters not suggested at the trial will not be considered on appeal.
(Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $ 1018;
Dec. Dig. $ 169.*] 2. TRIAL ( 83*)-OBJECTIONS TO TESTIMONY-SUFFICIENCY.
Where a memorandum is competent to show the articles destroyed, but is incompetent to prove the values set opposite each article, a general objection of incompetency to the memorandum offered in evidence is insufficient; but the objection should specifically point out the incompetency.
(Ed. Note.-For other cases, see Trial, Cent. Dig. § 199; Dec. Dig. $
83.*) 3. APPEAL AND ERROR (8 1171*) — REVERSAL - TECHNICAL Errors-AMOUNT OF
Where in an action for the destruction of property, the undisputed eridence showed a loss of $3,200.81 to real estate, and the jury returned a verdict for $3,500, a technical error, going only to the question of damages to personal property destroyed, of the alleged value of $1,269, was not reversible.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. $ 4546; Dec. Dig. $ 1171.*]
Appeal from Trial Term, Nassau County.
Action by Julius A. Davis against the Bouton Motor Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.
Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.
Henry A. Wise, for appellant.
WOODWARD, J. Upon a prior appeal in this case we held that there was evidence entitling the plaintiff to go to the jury on the question of defendant's negligence in setting fire to certain hotel buildings in one of the towns of Nassau county (Davis v. Bouton Motor Co., 126 App. Div. 340, 110 N. Y. Supp. 359), and the evidence in the present trial is certainly as strong as upon the former appeal. Various matters are urged upon this appeal which do not appear to have been suggested at the trial, and which do not, therefore, call for consideration here. Practically the only question which may be considered here relates to the evidence in support of the plaintiff's claim for damages.
It will be recalled that defendant's motorman placed his automobile in one of the sheds of one Krug, who conducted a hotel at Mineola, Nassau county, for the purpose of making repairs, and that while at work on the machine an explosion occurred, which set fire to the building, and the flames were conveyed to other buildings, resulting in the main hotel building being scorched to some extent. The contents of the hotel appear to have been carried out and lost or destroyed, as is usual in such cases. The Krugs, immediately after the fire, made up a list of the personal property claimed to have been lost or destroyed in the fire, and upon this list the insurance company adjusted the losses, deducting a few hundred dollars. The Krugs then made and executed and delivered written assignments of their claims to the several insurance companies, subrogating them to all their rights in the premises, and the insurance companies, in turn, assigned these claims to the plaintiff, who brought this action to recover the damages growing out of the fire. Upon the trial the plaintiff offered in evidence the list of the personal property prepared by the Krugs as an exhibit; Krug being upon the stand and identifying the list, and testifying as to the values. The offer of this list of articles was objected to as being incompetent. It appears to be conceded by the appellant that the list was competent for the purpose of showing the articles lost or destroyed; but it is urged that it was not competent for the purpose of proving the values set opposite each article. But, if it was competent for any purpose, the general objection of incompetency does not present reversible error. If the party objecting to the evidence desired to limit, this should have been pointed out in the objection. The witness subsequently testified that the articles were of the fair market value which he had placed opposite the same, and his wife testified as to some of the articles in the list as being of the
fair and reasonable value which was placed upon them; it appearing that the list was prepared jointly by Mr. and Mrs. Krug.
The plaintiff, as the assignee of the insurance companies, demanded judgment for the sum of $4,550.60, the aggregate amount of the payments to the Krugs, and the jury gave a verdict for $3,500; and under the circumstances we are of the opinion that the defendant has no substantial reason to complain of anything occurring upon the trial of this action. Conceding that the evidence as to values of the personal property was open to some objection, the entire claim for personal property was $1,269.30. There is no dispute as to the amount of the loss on the real property. This was $3,281.30. If we subtract this from the amount of the verdict, we find that there was an allowance for the personal property of but $218.70 on a claim aggregating $1,269.30; and it is not disputed that the list offered was competent to show the number of articles lost, and on which the insurance companies had paid the whole amount as claimed in this action. Under such circumstances, to reverse a judgment for a mere technical error, going only to the question of damages in relation to this personal property, would be to pervert, rather than promote, the ends of justice.
The judgment and order appealed from should be affirmed, with costs. All concur.
BALDWIN v. COHEN et al.
(Supreme Court, Appellate Division, Second Department. April 30, 1909.)
1. LANDLORD AND TENANT ($ 190*)–CONSTRUCTIVE EVICTION-BUBSTED WATER
Real Property Law (Laws 1896, p. 589, c. 547) $ 197, permitting a tenant to surrender possession and release himself from rent where the building is so injured by the elements, or any other cause, as to be untenantable, has nothing to do with the law of eviction, but only changes the common-law rule by giving a tenant the right to quit, and does not relieve him from the payment of rent because of a frozen water pipe bursting, on the theory of constructive eviction.
(Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $ 765;
Dec. Dig. $ 190.*] 2. LANDLORD AND TENANT ($ 172*)—CONSTRUCTIVE EVICTION-BUBSTED WATER
The bursting of a frozen water pipe, and refusal by the landlord to repair, as required by the lease, .is not a constructive eviction, relieving the tenant from the payment of rent.
[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. #
700, 701 ; Dec. Dig. & 172.*] 3. LANDLORD AND TENANT (8 188*)-RENT-CONDITIONS PRECEDENT-COVENANT
Unless expressly made so, the keeping of a covenant by the landlord to repair is not a condition to the payment of rent.
[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $ 783; Dec. Dig. & 188.*]