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and 118 New York State Reporter be that a loss will result to one of the parties for the default of the deceased administrator. Having knowledge of the existence of the fund, and of its disposition, in so far as it came into the sole possession and control of her co-administrator, the appellant should disclose the facts in her account in reference thereto as she claims them, without being obliged to make a voluntary admission of personal liability, or to acquiesce in a decision having equal force. The respondent, of course, is not bound by the appellant's assertion of facts tending to relieve her from liability, but is at liberty to prove possession and control of the assets on her part, or such negligence (Earle v. Earle, 93 N. Y. 104, 113) as may tend to legally charge her with liability for the fund and interest, or either, or a part of either.

The decree should therefore be modified by sustaining the appellant's exceptions to the referee's report, and by directing the accounting as herein indicated, and as so modified it should be affirmed, without costs. All concur.

(87 App. Div. 157.)

GEE v. ALVAREZ et al. (Supreme Court, Appellate Division, First Department. October 23, 1903.) 1. EXAMINATION OF DEFENDANT AS WITNESS BEFORE TRIAL.

In an action against defendant as surviving partner on a contract to pay plaintiff as salesman a commission on all sales by the firm in certain territory, whether made directly through plaintiff or not, the facts as to amount of sales being known only to defendant, an order for his examina

tion as a witness before trial is proper. 2. SAME-PRODUCTION OF Books

An order in an action against one as surviving partner for his examination as a witness before trial should not also provide for his production of the firm books to refresh his memory; Code Civ. Proc. $ 872, subd. 7, authorizing such combination in a single order, referring only to the case of the examination of an officer of a corporation. The proper course is a subpæna duces tecum, if on the examination defendant is unable to testify from his memory. Appeal from Special Term.

Action by Sanford E. Gee against Miguel Alvarez, impleaded. From an order, defendant appeals. Modified.

Argued before VAN BRUNT, P. J., and PATTERSON, O'BRIEN, HATCH, and LAUGHLIN, JJ.

Charles J. Hardy, for appellant.
Lemuel H. Arnold, for respondent.

PATTERSON, J. This is an appeal from an order denying a motion to vacate an order for the examination of the defendant Alvarez as a witness before trial. The order required the appearance of the defendant at a designated time and place to be examined as a witness, and further required that he produce all the books of the partnership of which he was a member, for the purpose of refreshing his recollection as to certain matters contained therein. The plaintiff sued to recover commissions upon sales of merchandise, under a contract entered into between him and the firm, of which the defendant Alvarez is the surviving member. According to the allegations of the com

plaint, that contract provided for the employment of the plaintiff as a salesman, under an agreement by which he was to receive 5 per cent. on all sales of goods made by the defendant's firm in the state of New Jersey, in the city of New York and Long Island, whether such sales were made directly by the plaintiff or otherwise. The agreement was afterwards extended so as to cover sales made in the city of Philadelphia. The answer admits the terms of the employment as set out in the complaint.

The plaintiff has sworn that it is necessary, in order to prove his case, that the defendant, the surviving partner, be examined as a witness; that all of the sales made by the plaintiff were entered in the books of the defendant's firm; that the plaintiff did not keep an account or memorandum of sales made by him, and is not able to testify from his own recollection, or otherwise, thereto; and that the facts in regard to the same are known only to the defendant, and can be ascertained only by an examination of such defendant, and by a reference to the books of account.

It is quite apparent that the examination of the defendant is necessary to the establishment of the plaintiff's case, and we think the order for the examination was properly granted. There is, however, a requirement in the order that the defendant Alvarez, on the examination, produce the books of the firm. This requirement, even for the limited purpose mentioned in such order, was not authorized. It is sought to support it by the case of Duffy v. Consolidated Gas Co., 59 App. Div. 580, 69 N. Y. Supp. 635, but that case relates only to the production of books of a corporation, and the order there was made upon the authority of the seventh subdivision of section 872 of the Code of Civil Procedure, which provides for the production of books and papers in specified cases, where an officer or director of a corporation is to be examined. The statute refers only to such a corporation, and the authority to combine in one order a requirement for the examination of a person and the production of books applies only to such a case. Upon the examination of the defendant in this case, if it appears that he is unable to testify from his recollection concerning the various matters to which the examination will properly extend, and that he can answer by reference to his books, the plaintiff may procure the production of the books, to aid the memory of the witness, by the service of a subpæna duces tecum. The Code authority extends only to requiring the defendant to submit to the examination. It does not authorize or allow a commandment in the same order that books and papers be produced for any purpose, and therefore the order appealed from should be modified by striking therefrom the provision that defendant produce such books and papers upon his examination.

As modified, the order will be affirmed, without costs to either party. All concur.

84 N.Y.S.-3

and 118 New York State Reporter (87 App. Div. 174.)

SHEEHAN V. STANDARD GASLIGHT CO. OF CITY OF NEW YORK.

(Supreme Court, Appellate Division, First Department. October 23, 1903.) 1. INJURY TO EMPLOYÉ-NEGLIGENCE OF EMPLOYÉ.

One who had for years been employed by defendant to remove covers from a tank, and, after examining the water, to replace them, in putting back a cover, which, when in place, was supported by cleats, stamped on it, tipping it up and throwing him into the tank. He had been warned against stamping on it, no necessity therefor appeared, and there was no danger if he avoided resting his weight on the cover, which danger was as apparent to him as defendant. Held, that his negligence caused the accident, and prevented his recovering.

Appeal from Trial Term, New York County.

Action by Margaret Sheehan, administratrix of Jeremiah Sheehan, deceased, against the Standard Gaslight Company of the City of New York. From a judgment on a verdict for plaintiff, and from an order denying a motion for new trial, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O'BRIEN, and INGRAHAM, JJ.

Frederick Hulse, for appellant.
Franklin Pierce, for respondent.

INGRAHAM, J. The plaintiff's intestate, for seven or eight years prior to November 20, 1898, had been in the employ of the defendant. As a part of its plant, the defendant had, about a year before, constructed a large wooden tank, in which water was collected before it was discharged into the river. There were four or five openings on the top of this tank, to which there were covers with an iron ring by which to remove them, and when in place these covers were supported by cleats on the inside of the tanks. It was a part of the plaintiff's intestate's duty to lift these covers and examine the condition of the water in the tanks, to see if it was in condition to be discharged into the river. This duty the deceased, with other employés, had performed since the tank had been built. The plaintiff's intestate had been in the habit of lifting up these covers with the iron rings, placing them on one side of the opening, examining the water, and then replacing the covers with his foot, stamping them down in place. There was evidence that this had been done in the presence of the assistant superintendent by the plaintiff's intestate and by other employés of the defendant. On November 20, 1898, the plaintiff's intestate, with a fellow workman, came into the building in which this tank was located. This fellow workman, called for the plaintiff, testified that the plaintiff's intestate took off the cover over one of the openings, made the examination, pushed the cover back over the opening with his foot, and stamped on it. When he did this his companion said to him, “You damned fool, didn't I tell you the other day not to stamp on a cover like that?” to which the plaintiff's intestate replied, "Oh, that is nothing; I am used to this.” He also testified that he had warned the plaintiff's intestate on a previous occasion not to stamp on the covers. After this warning the deceased

again stamped on the cover, the cover tipped up, and he fell into the tank, sustaining injuries which caused his death. One witness, who was also in the employ of the defendant, a brother of the plaintiff, testified that after the accident he noticed that the cleats which held this cover were worn, and that a day or two after the accident a carpenter in the employ of defendant had removed these cleats and replaced them by new ones. This was denied by the carpenter, the superintendent of the defendant, and others, employés, who testified that the cleats had remained in the same condition to the time of the trial. There is no evidence that this cover had ever fallen before, or that the defendant or its employés had any notice that such an accident was likely to happen, or that the situation was at all dangerous. The assistant superintendent testified that some time prior to the accident he had noticed the deceased attempting to stamp on the cover, and he had told the deceased that that was not the way to replace it, and that since such instruction he had never noticed the deceased, or any other workman, use this method of replacing the cover.

This situation was perfectly apparent: Whatever danger there was in replacing the cover by this method was as apparent to the deceased, who had been in the employ of the defendant for several years, as it was to the defendant or its superintendent; and these appliances were perfectly safe unless an employé stood upon the covering in such a way that, if it gave way, he would fall into the tank. While the employer was bound to furnish to his employés a proper and safe place to work, they were not insurers, but were bound only to furnish such appliances as, when used with ordinary care, would be safe. There was nothing in this situation that would charge the defendant with notice that this tank was unsafe, or that an accident was likely to occur, or that it was an unsafe place for the deceased to work if he used ordinary care. All that he had to do was to avoid standing on the cover in such a way that, if it gave way or slipped, he would not fall into the tank; and there was nothing in the situation to show that it was necessary for him to stamp on this cover to properly perform the work that he was required to do. I think, upon the plaintiff's testimony, the cause of the accident was the negligence of the deceased in using this unsafe method of replacing the cover, and that the accident could not be attributed to the negligence of the defendant. When the deceased adopted this method, against which he had been warned, he took upon himself the risk incident to this method of replacing the cover, and the accident resulted solely from his act of stamping on the cover in such a way that, if it slipped and fell into the tank, he would follow; and that for the result of such an act the defendant was not responsible.

It follows that the judgment and order appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

and 118 New York State Reporter (41 Misc. Rep. 252.)

STEARNS et al. V. MARR. (Supreme Court, Special Term, Onondaga County. July, 1903.) 1. CRIMINAL CONTEMPT.

Where workmen, after the granting of a preliminary injunction prohibiting acts of violence, threatened another workman with death if he went to work in a certain shop and shared in an assault on another

workman, they were guilty of criminal contempt. Action by Edward C. Stearns and others against William Marr, president of the Iron Moulders' Union No. 80. Application to punish for contempt of a preliminary injunction. Granted.

Edgar F. Brown, for the motion.
Dennis B. Keeler (T. E. Hancock, of counsel), opposed.

ANDREWS, J. As to the merits of the original dispute between the parties I have no knowledge. Certain truths, however, we all hold to be self-evident. With or without reason, alone or together, workmen may leave their employers. By argument or persuasion, by appeals to sympathy or prejudice, they may lead others not to take their vacant places. But here they must stop. Every man may work upon the terms that seem to himself best. If he cannot, his personal liberty is abridged. It is his right as a freeman. To protect him in this right governments and courts must use their full powers. If they fail to do so they fail in their duty. It was to enforce these everyday rules that the injunction in this action was granted. It permitted the use of all peaceful methods. It simply prohibited the use of terror or violence. It sought to prevent riot and disorder—acts made criminal by our Penal Code. It is claimed that this order was violated. The facts were in dispute, and the matter was referred to William G. Tracy, Esq., to take the evidence, and report it, with his opinion, to the court. He has done so. He finds that Otto Benz, John Lillis, and Kyram Powers have been guilty of the offenses charged.

It is said that the report is not sustained by the evidence. I cannot find that this is so. The referee was selected with care, and is as able, impartial, and fearless as could be named. He not only heard the evidence, but he saw the witnesses on the stand, and could judge of their appearance; and this is precisely one of those cases where that help is most needed to reach the truth. The findings of the referee also show care and thought. Were the evidence slighter than it is, I should still hesitate to set aside his conclusions. I find, therefore, that the three men named deliberately disobeyed the order of the court. This makes it a case of criminal contempt. The only question left is as to the proper punishment to be inflicted upon them for what they have done. Otto Benz engaged in no actual assault. But he did threaten death to a workman if that workman went again into the Stearns shop. This was done to so frighten the man to whom he spoke that he would leave his work. John Lillis was present when a workman named Thurston and one named Seip were set upon by seven or eight men and severely beaten, kicked, and pummeled, and

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