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and 118 New York State Reporter and inserting in lieu thereof the following conclusion of law, to be numbered "Sixth,” viz. :

"Sixth. That by reason of said wrongful conversion and misappropriation of said property by the plaintiffs, and the damage sustained by him thereby, and by reason of plaintiffs' violation of the said agreement and understanding with defendant, and the terms thereof, under which they retained said twenty-two $1,000 bonds of the Denver & Southwestern Railway Company on deposit, this defendant became entitled, and is now entitled, to recover of the plaintiffs, Godfrey Dunscomb and Frank E. Jennison, and each of them, the value of said bonds, $980 each, back from plaintiffs, together with all interest accrued thereon, collected and retained by plaintiffs, free, clear, and discharged of and from any claim or lien of plaintiffs therein and thereon, upon payment to plaintiffs of the amount of defendant's indebtedness to plaintiffs of $6,631.86, less $2,437.50 damages sustained by defendant through the said conversion of his 500 shares of stock, together with an extra allowance of $250, and the costs and disbursements of this action, to be taxed by the clerk of the county of New York."

Second. Why the judgment entered herein on June 20, 1902, should not be amended by striking out the paragraphs of said judgment numbered “First” and “Second," and each and every part thereof, and by inserting in lieu and in place thereof, nunc pro tunc as of June 20, 1902, after the words "ordered, adjudged, and decreed as follows," the following:

"That the plaintiffs pay to the defendant, and the defendant, John H. Poole, have and recover of the plaintiffs, Godfrey Dunscomb and Frank E. Jennison, and each of them, the sum of $16,942.71, with the sum of $1,080.57, interest on such sum from May 28, 1901, amounting together to the sum of $18,023.28, and also the further sum of $378.80, defendant's costs and disbursements as taxed, including an extra allowance, making in all the sum of $18,402.08, and that defendant have execution therefor."

Third. In case the amendments above referred to be not granted by the court, why the said decision and judgment herein should not be vacated and set aside, and this action be sent back to the Special Term of this court, and restored to the calendar thereof for trial, so that the defendant may obtain a money judgment herein.

It appears from the record that on June 20, 1902, the following judgment was, on motion of defendant's attorneys, entered on the decision of the trial court:

"First. That the defendant recover and the plaintiffs deliver and surrender up to the defendant the twenty-two (22) gold coupon five per cent. bonds of the Denver & Southwestern Railway Company, of the par value of one thousand dollars ($1,000) each, mentioned in the said decision, and all interest accrued thereon, collected and retained by plaintiffs subsequent to May 28, 1901, the date of the commencement of this action, together with the sum of $378.80 costs as taxed, including an extra allowance upon payment to plaintiffs by defendant of the sum of four thousand six hundred and seventeen and 29/100 dollars ($4,617.29); or,

"Second. In lieu and place of such surrender of said bonds, and each of them, and the payment of said interest, and in case same be not made, that the plaintiffs pay to the defendant, and the said defendant, John H. Poole, have and recover of the plaintiffs, Godfrey Dunscomb and Frank E. Jennison, and each of them, the sum of $16,942.71, with the sum of $1,080.57, interest on such sum from May 28, 1901, amounting together to the sum of $18,023.28, and also the further sum of $378.80, defendant's costs and disbursements as taxed, including an extra allowance, making in all the sum of $18,402.08, and that defendant have execution therefor."

Plaintiffs appealed to the Appellate Division from the foregoing judgment, which was affirmed May 15, 1903. After the affirmance of the judgment by the Appellate Division (83 App. Div. 642, 82 N. Y. Supp. 1099), plaintiffs offered to deliver the 22 Denver & Southwestern Railway Company bonds to the defendant on the payment of defendant's indebtedness to plaintiffs. Defendant, by his attorneys, refused to consider this offer. It is clear that, if this amendment is granted, it will affect the substantial rights of the plaintiffs. The rule is well settled that, after an entry of judgment in an equity action based on findings of fact and conclusions of law, the judge at Special Term who tried the action has no power, on motion for resettlement of the findings, conclusions, and judgment, to make amendments therein altering the decision on the merits, and changing the substantial rights of the parties. The authority given to the court by Code Civ. Proc. § 723, to make amendments, is confined to such as do not affect the merits. The spirit and meaning of this section of the Code is that the courts, in furtherance of justice, may disregard immaterial errors, defects, and mistakes in the pleadings and proceedings of an action, but they are not permitted to make corrections that will affect the substantial rights of the adverse party. Heath v. N. Y. B. L. B. Co., 146 N. Y. 260, 40 N. E. 770; Bohlen v. M. E. R. Co., 121 N. Y. 551, 24 N. E. 932. The judgment in this case was entered in accordance with the findings and conclusions of law, and there is no ambiguity in the language; and it would be an unusual adjudication for this court, after an appeal from the judgment has been taken, and the judgment affirmed, to amend the findings, conclusions, and judgment to conform to the views of the defendant, or to meet some supposed equity subsequently discovered. The proposed amendments in this case are clearly not the correction of a clerical error. There was no mistake in the findings, conclusions, and judgment. The judgment rendered was what the defendant, in his counterclaim, asked for, and what the trial judge meant to give. The motion, therefore, must be denied, with $10 costs to the plaintiffs.

Motion denied, with $10 costs.

HACKETT V. MASTERSON. (Supreme Court, Appellate Division, Second Department. November 20, 1903.) 1. MASTER AND SERVANT-NEGLIGENCE--COMPLAINT -- ALLEGATIONS - ADMISSIONS.

Where, in an action by a servant against the master for injuries, the complaint alleged that defendant "owned or had control of the rolling stock, equipments, and appliances used in the work," the allegation being preliminary and general, its admission by the answer cannot be construed as an admission by defendant that he owned and controlled an implement which he had never furnished for the work, nor permitted to be

used therein. 2. SAME-LIABILITY OF MASTER-APPLIANCES-USE OF APPLIANCE NOT FUR

NISHED.

Where the master furnishes adequate appliances for the work, he is not liable for injuries to a servant resulting from a part of the apparatus and 118 New York State Reporter furnished by him being used in conjunction with an implement not fur nished by him, but substituted without his notice, even though his fore

man was instrumental in the use of such implement. 8. SAME-TRIAL-JUDGMENT-DETERMINATION OF MERITS.

Where a judgment is set aside because plaintiff failed to make out a case, a judgment dismissing the complaint should not record that the dismissal was "on the merits."

Appeal from Trial Term, Nassau County.

Action by Peter B. Hackett against William H. Masterson. From an order setting aside the verdict of a jury, and from a judgment in favor of defendant, plaintiff appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.

George Wallace, for appellant.
H. Snowden Marshall (George H. Abbott, on brief), for respondent.

JENKS, J. This is an action for negligence by servant against master. The servant was at work laying a pipe line. A pipe was raised by a derrick, and a rope sling was attached by a hook to a railroad rail, which had been put through the pipe to be laid extending into the pipe then in place. After the pipe was raised, something gave way, and the plaintiff was struck and injured by the end of the rail over which he was standing in the inside of the pipe, then in position. The plaintiff complains that the hook was improper, and therefore slipped and gave way, and that such hoisting apparatus, with such hook, was an unsafe appliance for the work. The plaintiff testifies that the ordinary method was to use a derrick and a rope sling, and that, although he had worked at laying pipe for two or three months, this was the first time that a rail had been thus used. His witness Abrams, a fellow servant, testifies that he had never theretofore seen a pipe thus moved. His witness Malloy, the foreman, testified that he had never thus used this rail on this work before, and that, so far as he knew, none of the workmen had ever seen such use. The defendant's witness Cooper, who was in charge of the derrick at the time of the accident, testified that he had operated the hoisting engine and derrick for four months before the accident, and that he had never seen the rail used in that way. The plaintiff testified that the rail was one of the Long Island Railroad rails, but that he could not state whether it belonged to the railroad, or where it belonged. Cooper testified that he did not know where the rail was obtained, but that he had nothing to do with its placing. Plaintiff's witness Monds testified that the work was doing alongside of the track of the Long Island Railroad; that he had seen numerous rails lying alongside of the track; that the rail in question was smaller than the Long Island Railroad rails; that, however, there are two sizes, and that the ones they are “throwing out" are smaller than the ones they are putting in. On the other hand, there was no evidence that the railroad iron was an appliance owned, controlled, furnished, or authorized by the master. True, the witness Monds does say that it was “the same rail that was used for months there,” but he does not say that it was ever used as part of the

hoisting apparatus. And his testimony may be reconciled with the other testimony by noting that the plaintiff testified that they generally "shove it home with bars or by hand."

The learned counsel for the appellant argues that the plaintiff was not bound to bring the use of the rail home to the master, for the reason that he pleaded that the defendant "owned or had control of the rolling stock, equipments, and appliances used in said work," and that the defendant admitted this by the answer. The allegation is preliminary and general, and cannot be construed to an admission that the defendant owned and controlled that which he had never furnished nor permitted to be used in place of a complete apparatus. So far as this record reads, then, it appears that for this occasion only the foreman and the servants employed in place of the complete and apparently adequate tackle theretofore in use an iron rail which was neither furnished nor authorized by the master. The hook complained of was furnished by the master for adjustment with a rope sling, and had theretofore been thus solely used. There is not the slightest evidence that, even in the misuse of the hook with the iron rail the hook was inadequate, or was bent or broken, or was not in its normal condition after the accident. If there were at hand, and furnished by the master, complete and adequate appliances for the work, he cannot be held liable because a part of the apparatus furnished by him was joined with a thing not furnished by him, but substituted without his notice or authority (even though the foreman of the job chose it or consented to its use), with the consequence that the part furnished by him in connection with the foreign appliance did not work safely. Flet v. Hunter Arms Co., 74 App. Div. 572, 77 N. Y. Supp. 752, citing Mahoney v.Vacuum Oil Co., 76 Hun, 579, 28 N. Y. Supp. 196; O'Connall v. Thompson-Starrett Co., 72 App. Div. 47, 52, 76 N. Y. Supp. 296; Hussey v. Coger, 112 N. Y. 614, 20 N. E. 556, 3 L. R. A. 559, 8 Am. St. Rep. 787. I think that Garretson, J., made a correct disposition of the case. He simply granted a nonsuit, and the judgment should not record that the dismissal was on the merits. Peggo v. Dinan, 72 App. Div. 434, 76 N. Y. Supp. 565.

The judgment should be amended, and, as amended, affirmed, and the order should be affirmed, with costs. All concur.

(41 Misc. Rep. 313.)

NELLIS V. ROWLES et al. (Supreme Court, Special Term, Fulton County. August, 1903.) 1. PLEADING-ANSWER-OBJECTIONS TO COMPLAINT.

Objections to the sufficiency of an amended complaint, taken under

Code Civ. Proc. $ 498, by answer, are subject to demurrer. 2. SAME.

Under Code Civ. Proc. 88 488, 499, the facts supporting objections to the sufficiency of an amended complaint, and the particular grounds of

each objection, must be specified. B. SAME-OBJECTIONS TO SUMMONS.

An objection to the form or sufficiency of a summons cannot be taken by answer.

13. See Process, vol. 40, Cent. Dig. $ 210.

84 N.Y.S.-48

and 118 New York State Reporter Action by Elizabeth Nellis against Agnes Rowles and others. Demurrer to amended answer. Sustained.

M. D. Murray (A. J. Nellis, of counsel), for plaintiff.
Keck & Rogers, for defendant Rowles.

SPENCER, J. The defendant Rowles was brought into this action by supplemental summons. She appeared and answered. Subsequently the plaintiff served an amended complaint, to which the defendant has made what she designates as an amended answer. The plaintiff having demurred thereto, the issue raised by such demurrer is here for trial.

Defendant's counsel contend that the amended answer consists solely of objections taken to the sufficiency of the amended complaint under section 498 of the Code of Civil Procedure, and is not subject to demurrer (section 494), but that, if plaintiff deems them insufficient, her remedy is by motion for judgment (section 537), or to strike out (section 538). I cannot see my way clear to support this construction of the Code provisions. If the paper served must be regarded as an answer in the case, and defendant so contends, it must consist either of a denial, a counterclaim, or a defense. Code Civ. Proc. § 500. A defense may be any new matter that constitutes a reason why the plaintiff should not maintain the action, or which will tend to mitigate or reduce the amount of his damages. Id. § 508. I think, therefore, that an objection taken under section 498 must be regarded as a defense. The facts supporting such an objection must be demurred to by the defendant in case they appear upor the face of the complaint, or any objection as to their sufficiency is waived (Id. SS 488, 499); and I see no reason why the same remedy, viz., demurrer, should not be applicable in case such facts are set up as an objection in the answer. In both instances they would be tested in the same manner, viz., by section 488. There does not, however, seem to be any provision to this effect in the Code as to objections taken by answer. Nevertheless, I think it is the system of pleading intended by the sections bearing generally upon the subject.

The demurrer therefore brings up the question as to the sufficiency of the facts alleged in the amended answer. They are as follows: (1) That the supplemental summons was not so designated on its face; (2) that the supplemental summons contained the names of the original defendant, as well as those brought in; and (3) that the original complaint contained defendant's name as a party to the action.

I am of the opinion that objections taken by answer under section 498 should not only specify the facts, but also the particular grounds of the objection, as required by section 490; and this each of these objections fails to do, and should be held insufficient for that reason. Furthermore, I know of no practice authorizing objection by answer to the form or sufficiency of the summons, and the objection so taken is of no avail. The presence of the defendant's name in the original complaint is inconsequential, as that pleading has been superseded by the amended complaint. I am of the opinion that the amended

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