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so. The complaint further alleges: That the premises are situated near the North River and are subject to inundations of water from the river or other sources, especially the cellar and basement thereof; that at such times the basement and cellar were rendered wet, unsafe, and unsanitary, and any goods therein were liable to be wet and spoiled; that the plaintiff had never been in business in that vicinity, nor did he own or possess any property near there, and he had no means of knowing that the premises were subject to such inundations; that prior to making the lease the plaintiff inspected the property and found it in a safe, sanitary, and dry condition; that all of these facts were well known to the defendant, or could with reasonable diligence have been learned by her, but were unknown to the plaintiff, and could not with reasonable diligence on his part have become known to him; that prior to the making of the lease, and upon the making of the statements by the plaintiff to the defendant as aforesaid, the defendant represented and stated to the plaintiff that the premises were good, dry, sanitary, and healthy, and that the cellar and basement were good, dry, sanitary, and healthy, and wrongfully concealed from the plaintiff the facts within the defendant's knowledge as hereinbefore set forth; that the defendant knew such representations were false when they were made, and the facts concealed from the plaintiff by the defendant were concealed for the purpose of inducing the plaintiff to enter into the lease as aforesaid; that relying on these false representations, and because of such concealment of the fact that the premises were subject to inundation, plaintiff entered into the lease. The plaintiff goes on to allege: That after he had been in possession for about six weeks the cellar and basement were completely flooded with ill-smelling water cast in and upon the premises from the North River; that in consequence of such inundation his stock of beer, ale, etc., was ruined, and the stagnant water in the cellar and the hordes of mosquitoes it bred, and the vile and obnoxious odors arising from it, drove all the guests out of his hotel and drove away all his customers and otherwise damaged him, all to the extent of $5,000.
The answer, after denying various allegations of the complaint, sets up the following separate defense:
"(7) For a further defense to the plaintiff's alleged cause of action, said defendant alleges that in the written lease entered into between the plaintiff and the defendant on or about the 24th day of April, 1908, which is referred to in the fifth paragraph of the complaint, whereby the defendant demised to the plaintiff the premises described in the complaint, said plaintiff did specifically agree that this defendant should not be held liable or accountable for any damages caused by or arising from any source whatsoever in or about the said premises during the term of said lease.”
I do not think it requires any extended discussion to show that this alleged defense is insufficient. The plaintiff's cause of action is based upon the damage suffered by him on account of certain alleged fraudulent statements and concealments of material facts made by the defendant in regard to the condition of the premises. Surely this agreement that the defendant should not be liable for any damages caused or arising from any source whatsoever in or about the premises cannot be held to be a waiver of damages caused to him by the fraud of the defendant. The
defendant cannot claim that this general clause can release him from damages incurred by the plaintiff as a result of his own fraudulent acts.
The defendant' urges that the demurrer will not lie because the complaint itself is bad, and insists that the alleged ştatements that the premises were good, dry, sanitary, and healthy were mere expressions of opinion and not statements of fact. However the case may stand with respect to some of the words used, there is hardly room for serious argument with respect to the word “dry." When a landlord is told by a prospective tenant that a dry basement and cellar are especially necessary to avoid damage to goods intended to be stored there, and the landlord, knowing that the premises are subject to inundation, replies that they are dry, he is not expressing an opinion, but asserting a fact.
Demurrer sustained, with costs, with leave to the defendant to amend upon payment of costs within 20 days after service of the interlocutory judgment.
PEOPLE ex rel. SHELTER v. OWEN et al.
(Supreme Court, Equity Term, Monroe County. March 29, 1909.) 1. MANDAMUS ($ 7*)—ALTERNATIVE Writ-DISCRETION OF COURT.
The granting of an alternative writ of mandamus, where relator is not entitled to a peremptory writ, rests in the sound discretion of the court, not being a matter of strict right.
[Ed. Note.-For other cases, see Mandamus, Cent. Dig. & 5; Dec. Dig.
$ 7.*] 2. MANDAMUS (8 87*)--ACTS AND PROCEEDINGS OF PUBLIC OFFICERS-MATTERS
Where a health officer is given full discretionary power to grant or withhold licenses to milk dealers, his discretion, when not arbitrarily, unjustly, or unreasonably exercised, will not be reviewed by mandamus.
[Ed. Note.-For other cases, see Mandamus, Cent. Dig. $ 192; Dec. Dig.
§ 87.*] 3. Food ($ 2*)-MILK DEALERS-REGULATION.
A regulation of a city health department, requiring milk peddlers to provide a special room for storing milk and for cleansing utensils as a condition precedent to obtaining milk peddling licenses, is a reasonable
[Ed. Note.—For other cases, see Food, Cent. Dig. § 2; Dec. Dig. & 2.*] 4. MANDAMUS ($ 154*)-ACTS AND PROCEEDINGS OF PUBLIC OFFICERS-MATTERS
An application for a writ of mandamus to compel a health officer to issue a milk peddler's license, which charged in general terms that the refusal of a license was arbitrary and an abuse of power, but stated no facts showing it to be so, was insufficient.
[Ed. Note.--For other cases, see Mandamus, Cent. Dig. § 298; Dec. Dig. 8 154.* ]
Motion by the People, on the relation of Charles Shelter, for peremptory writ of mandamus against Charles S. Owen, Commissioner of Public Safety, etc., and another, requiring defendants to issue to relator a license to sell milk in the City of Rochester for the year 1909. Motion dismissed.
Frank M. Goff, for the motion.
FOOTE, J. The motion papers are for a peremptory writ. The affidavits read in opposition put in issue most of the material facts alleged for the writ. In view of this, in the brief submitted by the learned counsel for the relator, he concedes that he is not entitled to a peremptory writ, but asks that an alternative writ should issue. This is proper, if the case made is one fairly entitling the relator to an alternative writ. It is not a matter of strict right, but rests in the sound discretion of the court to which the application is made. The moving papers fairly show, what also appears in the answering affidavits, that the relator was denied a license as a milk peddler because he refused to provide a room in which to store his milk upon his farm in the town of Gates, and in which to wash and cleanse his milk cans and other utensils. It is charged in the moving papers that this refusal was capricious, tyrannical, arbitrary, and unreasonable, and not based upon sufficient reason, and is an abuse of the power and discretion lodged in the defendants as officers of the city of Rochester.
The grounds of the refusal, however, are stated, and if they are sufficient to justify the defendants in the exercise of a fair discretion and reasonable judgment in refusing a license, then as matter of law such refusal is not capricious, arbitrary, or unjust, and the courts are without power to so treat it, in the absence of evidence that licenses are granted to others similarly situated, or that there has been an intentional discrimination against the relator. Nothing of that kind is charged.
It is conceded that the defendants are vested with a certain discretion in determining to whom milk peddling licenses shall be granted, but the claim is: That the defendants are without authority to impose, as a condition for granting such license, that relator should provide a special room for storing his milk and cleansing his utensils; that in this respect the authority of the defendants is limited by the ordinance adopted by the common council regulating the quality of milk, the kind of vessels in which it shall be transported and delivered, and the kind of rooms in the city in which it may be stored. I am unable to adopt this view.
It appears from the motion papers that the defendant health officer has granted no licenses except to producers of milk who do maintain a separate room for its storage and the cleansing of their utensils. The requirement seems to be a reasonable one for the protection of the public health. There are some 700 producers and dealers whose milk comes to the city of Rochester, and the health officer, with the aid of only two inspectors, is required to maintain a supervision over this traffic in the interest of the public.
It is certainly reasonable that he should require the producers of inilk who wish to dispose of it in the city of Rochester to equip their places of producing and storing milk with such sanitary appliances as experience teaches to be necessary or desirable to prevent contamination of the milk. The defendant Goler has been engaged as an expert in charge of the health department for many years and has
made a special study of the subject. He has determined that a separate milk room should be maintained for such purpose. The relator does not show that such a regulation is not desirable or advantageous for securing the delivery of pure milk. His contention is that the defendant Goler is without power to adopt such a regulation.
I think the charter and the ordinances confer upon the defendant Goler full discretionary power to grant or withhold licenses to milk dealers, so long as his determination is based upon consideration reasonably affecting the character and quality of the milk to be delivered by the proposed licensee, and that his discretion in this respect, while subject to review by appeal to the commissioner of public safety, as was done in this case, is not reviewable in the courts, unless facts are alleged showing it was not honestly exercised in the interest of a pure milk supply. It is not sufficient to charge in general terms that the refusal of a license was arbitrary and an abuse of power, but facts tending to show it to be so should be stated.
The office of an alternative writ, if one were granted, would be to try out in the courts the question as to whether it is good judgment for the health department to require milk producers to maintain a separate milk room. This would substitute the opinion of the court for that of the health officer. It is not desirable or in the public interest that the discretion of the health officer should be so reviewed, and, whether the power to do so exists or not, it ought not, in my opinion, to be exercised in this case.
Relator's motion should be dismissed, with $10 costs.
BODETTE 1. FOSTER-ARMSTRONG CO. (Supreme Court, Trial Term, Monroe County. March 30, 1909.) 1. MASTER AND SERVANT ($ 219*)-INJURIES TO SERVANT-ASSUMED RISK.
Plaintiff, a stringer in a piano factory, was injured by coil wire striking him as it was being unwound from a reel. Plaintiff had been in de fendant's employ for six years, and knew that there was a tendency of the wire to fly back; he having been previously injured thereby. Held, that plaintiff assumed the risk; the dangers being obvious.
[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $8 610
624; Dec. Dig. § 219.*] 2. MASTER AND SERVANT ($ 29714*)-EMPLOYER's LIABILITY ACT-INJURIES TO
Under the employer's liability act, providing that whether an injured servant has been guilty of contributory negligence or has assumed the risk is a question of fact, subject to the powers of the court in a proper case to set aside a verdict as contrary to the evidence, where a servant assumed the risk of the danger from which he was injured, the court will set aside a verdict for plaintiff, whether his action was based on the mas. ter's common-law liability or the employer's liability act (Laws 1902, p. 1748, c. 600).
[Ed. Note. For other cases, see Master and Servant, Dec. Dig. $ 29742.*) Action by Nelson Bodette against the Foster-Armstrong Company. On motion to set aside a verdict for plaintiff and for a new trial. Granted.
Walter S. Hubbell, for the motion.
BENTON, J. Plaintiff recovered a verdict of $5,000 against the defendants. The alleged negligence consisted in furnishing a reel from which wire was unwound as used in stringing piano frames. This reel was open, and it is claimed that it should have been protected or guarded by a sheet metal or other casing, so as to prevent the free end of the coil wire striking back and hitting the plaintiff, whereby he was injured. Plaintiff was a stringer in the defendant's employ, and had been about six years in Rochester and about nine months at Despatch. His duty was to put the wires upon the frames of the pianos. These wires formerly came in pound packages, and later in five-pound packages. Formerly, when the pound package was used, it was unwound from a reel whose sides were inclosed by a sheet metal surrounding the base of the reel and extending upwards four or five inches within a short distance of the top covering of the reel. Through the space between the casing and the top, the wire was drawn as needed by the operator.
Defendant claimed the wires were so inclosed to prevent the coil spreading over the base of the reel, thereby falling and becoming entangled, thus delaying the work. Plaintiff, on the other hand, alleges that it was a protection which prevented the uncertain and elastic coil of the wire, after the portion put on the frame had been cut off, from flying back and hitting the operator. There is no doubt but that it had that effect to a greater or less extent. The sheet metal inclosure was discarded; the diameter of the reel being enlarged, so that the tendency of the wire to spread and fall over the base was prevented.
Plaintiff had extended experience with these reels of both kinds during his employment. He was thoroughly conversant with the action of the reel and of the wire. He had been hit by the wire on numerous occasions, and was once hit in the head before the accident which impaired the use of his eye. It must be found beyond dispute that he was as thoroughly familiar with the working of the reel and of all the hazards incident to its use as any one could well be. He certainly knew as much about it as his employer did or could know. It was a common thing for stringers to be hit upon the hand or arm by the irregular motion of the wire. Its elasticity and tendency to fly were matters of knowledge by those doing this work. There is no evidence of any protest or criticism of this appliance. There is a vague reference to something being said as to the covering being no longer used; but whether this was said in criticism or commendation, or otherwise, is nowhere apparent.
Counsel for the plaintiff bases his contention upon the authority of Graves v. Stickley Co., 125 App. Div. 132, 109 N. Y. Supp. 256, and contends that continuing in an employment with knowledge of the risk of injury is an assumed risk which must be submitted to the jury, if the evidence so warrants, to determine whether it was a part of the original contract of service expressed or implied, and that if the jury find in favor of the employé upon such question, however obvious the