Whatever interfered with his right to the possession thereunder or delayed him in obtaining possession after the giving of the bond does not invalidate the condition of the bond. He was entitled to the immediate possession of the goods when he gave his bond, and the fact that a receiver in bankruptcy claimed them thereafter or asserted some right to them, which right and claim was waived by the receiver, and that the claimant got the goods after the receiver released his right thereto, does not relieve the sureties from the necessity of the claimant proving his right and title thereto, when as a fact the claimant actually obtained the goods attached by the marshal. If the receiver chose to release his right to the possession of the goods in question, or, having none, delivered the goods to the claimant, then the position of the parties was the same as if the receiver never obtained possession of it, and it reverted to the claimant Salman under his claim made under section 83 and the bond given by him for possession of the same. The receiver required a bond for his protection. That is immaterial. The goods were not ordered to be delivered to the claimant by any order of the United States court. The receiver voluntarily released whatever claim he had, if any, to the goods. The bond is not conditioned upon the claimant receiving the property from the marshal and the liability of the sureties was not limited to a delivery of the goods by the marshal, but the very object of giving the bond was accomplished when it released the property from the lien of the plaintiff's attachment, and the claimant gained the right to the possession of the property. The rights and liabilities of the parties were fixed when the bond was served and the plaintiff's attorney accepted it and approved it. All claim of the plaintiff under his attachment was then abandoned, and all his rights to retain it gone, and all there was left for the claimant to do was to comply with the conditions of the bond and establish that he was the general owner of the property claimed at the time of the seizure.

The further claim is made by the defendants that the adjudication in bankruptcy on the day after the bond was given nullifies all proceedings thereunder, and that the attachment obtained in the action became void, and the bond sued on also became void and unenforceable in view of the fact that such adjudication stayed all proceedings and prevented the marshal from delivering the property to any one. The bankrupt law (Act July 1, 1898, c. 541, § 67, 30 Stat. 565 [U. S Comp. St. 1901, p. 3450]) provides that all liens, judgments, attachments, and other liens obtained in legal proceedings against a person who is insolvent at any time within four months prior to the filing of the petition in bankruptcy against him shall be deemed null and void in case he is adjudged a bankrupt and the property affected thereby shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt; but this refers to the property of the bankrupt. It does not and cannot have any reference to the property belonging to a third party. In my opinion the claimant cannot enforce the provisions of the bankrupt law, and claim that the property passes to the trustee in bankruptcy and at the same time claim the property as his, and not as

Salman at the time the marshal seized it under the attachment and when he gave the bond, it could not and did not pass to the trustee, and the marshal was not prevented from delivering the claimant's property to him. The adjudication only prevented the marshal from interfering with the bankrupt's property, and prevented him from delivering the bankrupt's property to any one but the receiver or trustee. If the marshal was satisfied that under the attachment against Rinzler he had seized the property of A., he could have safely delivered A.'s property to him notwithstanding the bankruptcy proceedings against Rinzler; and if it was subsequently proven that A. was not the owner, but that the bankrupt owned the property, then the marshal could be proceeded against as well as the claimant to whom he delivered it. But the claimant here maintained at all times it was his property. If, in fact, it was his, then the bankrupt's trustee or receiver took no title to it by reason of the adjudication in bankruptcy. That property was not under such circumstances in any way affected by the provisions of section 67 of the bankruptcy law, and it had no right to be attached by the plaintiff in this action as the bankrupt's property. The act provides that all attachments of the bankrupt's property are discharged and released by the adjudication of bankruptcy and all the bankrupt's property so attached passes to the trustee. The claimant at all times had the right to his property, regardless of the bankruptcy proceedings against Rinzler, and regardless of the attachment obtained by the plaintiff. If it was not the bankrupt's property, the receiver had no title or claim thereto, and had no claim to release, and never was entitled to the possession of it. The receiver or trustee in bankruptcy can raise the claim, under section 67, that the attaching creditor's lien upon the property involved in this suit fails by reasons of the adjudication in bankruptcy; but that applies only if it is the bankrupt's property, and not the claimant's. The trustee or receiver has not applied to have that property discharged from the lien of the attachment. He treats it substantially as no part of the bankrupt's estate, but as the claimant's, having released to the claimant whatever right he acquired by the marshal having transferred title to him. The marshal had no title to transfer if it was not the bankrupt's property, and the receiver had no right to retain it. In my opinion the claimant cannot say that the provisions of the bankruptcy law should be enforced, and say that the lien of the attachment was discharged, and that he is not liable under the bond unless he admits that the property was never received by him, or that it was the bankrupt's, and thus passed to the receiver, and that he was prevented from receiving it by the bankruptcy proceedings as being the debtor's property. In other words, he cannot claim to have been the owner, give a bond to obtain the property, still claim to be the owner, try his title to it in this case as owner, maintaining ownership, retain the property, and avoid the consequences of his bond if he fails to establish ownership. By giving the bond he gained the right to the possession of the property pending the determination of his title thereto in an action to be brought upon the undertaking. In order to make the defendant liable, I do not think I am obliged to find even that the property claimed was that of the

bankrupt. The bond is forfeited if, as it provides, the claimant fails to establish he was the general owner of the property claimed at the time of the seizure. He failed to establish he was the general owner. The fact that the evidence warrants me in finding that the property belonged to the bankrupt does not in my opinion prevent a recovery or enable the defendant to say that because it has been proven he was not the general owner, but that the bankrupt is the owner, he can escape the penalty of the bond because the property passed to the receiver or trustee. The bankrupt's estate loses nothing because the trustee can recover against the claimant and his sureties upon the bond given to the receiver for taking from him the property of the bankrupt under a false claim of ownership. But this is a question which does not enter into the determination of this case. I do not think the claimant can in this action raise the defense that under the bankruptcy law the property passed to the trustee, and at the same time insist that he, the claimant, is the owner. The trustee or receiver in bankruptcy has not asserted his right to this property, or asserted his right to have the attachment declared void, and the property released as the bankrupt's. It is not a question between the creditors of the bankrupt's estate or the receiver or trustee or between the receiver and an attaching creditor, nor need I consider what steps the trustee in bankruptcy can take if he is satisfied that the property involved in this suit is the bankrupt's. I believe that all I am called upon to decide is: Has the claimant, Salman (claiming ownership of the goods when the bond was given, who disputed the right of the receiver or trustee to them as part of the bankrupt's estate, claiming them as his, who fails to defend this action upon the ground that the property passed to the receiver as part of the bankrupt's estate, and who in this action, claiming still to be the owner, attempts to prove his ownership), proven that he was the general owner of the property claimed at the time of the seizure? Finding he was not, I think the plaintiff is entitled to judgment for the value of the property delivered to him.

The testimony as to that portion of the property attached and delivered to the claimant is somewhat conflicting; but from all the evidence I find that the fair and reasonable value of such property that was seized and was delivered finally to the claimant was the sum of $240, for which amount judgment is awarded to the plaintiff.

DAVENPORT v. OCEANIC AMUSEMENT CO.

(Supreme Court, Appellate Division, Second Department. May 7, 1909.) 1. MASTER And Servant (§ 250*) — INJURIES TO SERVANT-ACTIONS-COMMONLAW RIGHT OF ACTION-APPLICABILITY OF EMPLOYER'S LIABILITY ACT.

An action by a servant against a master for injuries from the alleged failure of the master to promulgate rules for the government of its employés is a common-law action, and plaintiff cannot gain any aid from the employer's liability act (Laws 1902, p. 1748, c. 600); it having no application to common-law actions.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 805; Dec. Dig. § 250.*]

2. MASTER and Servant (§ 219*) — ASSUMPTION OF RISKS

EMPLOYMENT.

OBVIOUS RISKS OF

Where plaintiff was employed to descend a rope from a structure representing a five-story building afire, in a spectacular performance, and had the same opportunity as the employer to discover the danger to be anticipated from some one grabbing the lower end of the rope and throwing her against the building, she assumed the danger as an obvious risk of the employment.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 622; Dec. Dig. § 219.*]

3. MASTER AND SERVANT (§ 141*) — INJURY TO SERVANT

RULES.

DUTY TO FORMULATE

Nothing having occurred prior to the accident to show that the descent by the rope as operated was not a reasonably safe act, the chance that plaintiff would be injured, as she was, was not a danger to be reasonably anticipated, so as to make it the duty of the master to formulate rules forbidding other employés from touching the rope during the descent.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 283; Dec. Dig. § 141.*]

4. NEGLIGENCE (§ 4*)—ACTIONABLE NEGLIGENCE-TEST.

The test of actionable negligence is, not what might have prevented a particular accident, but what reasonably prudent and careful men would have done in the discharge of their duties under the circumstances as they existed at the time of the accident.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 6; Dec. Dig. § 4.*]

Gaynor, J., dissenting in part.

Appeal from Trial Term, Kings County.

Action by Rose Davenport against the Oceanic Amusement Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and new trial granted.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, GAYNOR, and BURR, JJ.

Samuel S. Whitehouse, for appellant.
Frederick N. Van Zandt, for respondent.

WOODWARD, J. The plaintiff was employed to assist in the production of a spectacular performance at Coney Island, known as "Fighting the Flames." A five-story building is represented as being on fire. The plaintiff is taken from a fifth-story window by one *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 116 N.Y.S.-39

Conyes, representing a fireman, and carried down a rope. At the same time other inmates of the building are jumping from windows into a netting. On May 19, 1905, while the plaintiff was performing her act, one Annie Leonard was employed to jump from a lower window, and on landing in the netting, and in getting out of the same upon a coping or board walk erected around the same for the purpose of enabling the performers to get to the floor below, she grabbed hold of the rope on which Conyes and the plaintiff were coming down, and they were thrown against the walls of the building; the plaintiff sustaining_injuries for which the jury has awarded her substantial damages. The defendant appeals from the judgment, and from an order denying a motion for a new trial.

While the complaint alleges the giving of a notice, and the plaintiff was permitted to put in evidence a copy of a notice served upon the defendant without objection, neither the notice served nor the allegations of the complaint bring the case within the provisions of the employer's liability act, for the reason that the negligence relied upon constitutes a common-law action, and consists in a failure on the part of the defendant to promulgate rules for the government of its employés. This is the only tenable theory on which the plaintiff can stand, and she cannot gain any aid from the employer's liability act (Laws 1902, p. 1748, c. 600); for the law is well established that that act has no relation to the common-law right of action. The evidence showed that the plaintiff had been performing this same act for five days, five times each day, at the time of the accident. There was no suggestion that the rope and appliances used were defective in any way, and the only grounds of negligence seriously urged were that the defendant had failed to instruct Annie Leonard and other employés that they must not touch the rope on which the plaintiff was to descend, and that the defendant had failed to supply a man at the foot of this rope to see that it was not touched.

We are persuaded that the plaintiff, who could see the situation as clearly as the defendant, accepted the obvious risks of this employment, and that the danger to be anticipated from some one grabbing this rope were not of such a character as to call upon the defendant to anticipate it by rules or precautions, such as are now suggested. Conyes and the plaintiff had been performing this act for some time under the same circumstances, and it does not appear that it had ever occurred to either of them that there was any danger to be anticipated from the source from which this accident arose, or that it was one which had ever occurred before, or that it was one which must naturally result if any one should happen to lay hold of the rope. So far as we can gather from the record, this rope was carried by Conyes to the fifth-story window, there fastened to a hook, and the other end permitted to fall to the floor below; the "fireman" taking the plaintiff on his shoulder and sliding down the rope. It does not appear that the lower end of the rope was expected to fall within the net, or that in any of the previous performances any one had ever touched the rope, or that any fact had ever occurred to show that it was not a reasonably