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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

answer demurred to is insufficient in law. It raises no issue in respect to the cause of action alleged in the amended complaint, and contains no objection authorized by section 498, within the provisions of section 488. The demurrer is, therefore, sustained, with costs, with permission for defendant to plead over within 20 days upon paynient of costs.

Ordered accordingly.

(41 Misc. Rep. 338.)

CROUSE V. JUDSON et al.

(Supreme Court, Trial Term, Onondaga County. August, 1903.)

1. GIFT- EVIDENCE.

Where a father bought shares of stock, and bad the certificate issued in his infant daughter's name, and after his death his administrators found the stock, together with other property belonging to the daughter and other members of his family, in his safe-deposit box, which stock his wife, one of the administrators, stated had been given the infant by her father, with proof of similar declarations made by him, which stock also was omitted from the inventory by the administrators, is sufficient

evidence of a gift to such daughter. 2. ADMISSIONS BY ADMINISTRATORS.

An admission by one of two administrators in regard to the estate while in the performance of his duties is admissible to charge the estate, though not conclusive.

Action by Charles E. Crouse, administrator, against Edward B. Judson, guardian of Florence Crouse Clark, and others, to recover the proceeds of certain shares of stock. Judgment for defendants.

Frank Hiscock, for plaintiff.
George Doheny, for defendant Judson.

Daniel A. Pierce and Howard W. Hayes, for defendant Florence Crouse Clark.

Charles L. Stone, for defendant George N. Crouse.

WRIGHT, J. On September 22, 1892, the deceased, George N. Crouse, wrote to Flower & Co., brokers in New York, instructing them to buy 200 shares of New York Air Brake stock, and to have the certificates of stock issued in the name of his daughter Florence B. Crouse, now Florence Crause Clark, who was an infant of 12 years of age. He inclosed a draft for $6,000 in full payment for the same, which amount was placed to his credit, and two certificates, each for 100 shares, were delivered to him, made out in his daughter's name. They were a part of the original issue of certificates, and were entered on the books of the Air Brake Company in her name. These stock certificates were found by the administrators, Charles E. Crouse and Mrs. George N. Crouse, in a box of the deceased in the Onondaga Trust & Deposit Company's vault. They delivered them to the defendant E. B. Judson, the guardian of the children of the intestate. Judson sold the stock for $19,317.05, and holds the money for the person who may be adjudged to be the rightful owner. the box in which the stock was found there were also various arti

and 118 New York State Reporter cles of property belonging to other members of the family. An opal ring, belonging to Mrs. Crouse, was found there; also a pearl pin, a watch with the initials F. B. C. on it, and a string of coral beads, all belonging to the defendant Florence Crouse Clark. The pin and the watch were turned over to her, but the mother kept the beads. The defendant Florence Crouse Clark testified on the trial that when Mr. Barnes, the secretary of the trust and deposit company, took the certificates out of the box of that company, he said, in the presence of the administrators, Mrs. Crouse and Charles E. Crouse (who were then engaged in their duties in ascertaining the property of the estate): “These don't belong to George N. Crouse. They are marked 'Florence Crouse,' and what are they?" And that she (Florence) thereupon said, “They are mine." And that her mother, Mrs. Crouse, thereupon said, “That stock was given to little Florence by her father.” Dr. Van Duyne, a close friend of the Crouse family, testified that Mr. Crouse told him that he had given to little Florence some stock. A letter was given in evidence by the plaintiff, written by the defendant Florence Crouse Clark to her father, in which she refers to the air brake exhibit at the World's Fair at Chicago as "the one I have the stock in, or at least is in my name," and stating further, “I was interested in the large air brake exhibit.”

These certificates constituted a part of the original issue of stock of the Air Brake Company, and were the only certificates of stock found by the administrators standing in the name of Florence. After the administrators found this stock in the vault of the trust and deposit company as above stated, an inventory of the property of the estate was made, containing a statement of personal property valued at over $348,000, and composed largely of stocks; no mention being made therein of this stock in question. The administrator and administratrix each verified the inventory in due form to the effect "that it contains a true statement of all the personal property of the estate of George N. Crouse, deceased, that has come to my knowledge."

The plaintiff, Charles E. Crouse, testifies, respecting the conversation between Mr. Barnes, Mrs. Crouse, and Florence, that Mrs. Crouse said: “This stock had been put in the name of her daughter by her husband to save its being assessed in the case the Air Brake stock was not good. It was put in her name for a purpose.” The witness further adds: “They were having, as I understood at the time, a suit with the Westinghouse people.” Respecting this version of the conversation given by the plaintiff, it may be remarked that it is difficult to see an adequate motive on the part of Mr. George N. Crouse to purchase this stock at all, paying the market price, if he apprehended an immediate liability to an assessment thereon, thus depreciating its value. Further, Mr. Crouse was engaged in active business, and dealt considerably in Wall street securities and stocks. That he should place this stock out of his power to dispose of it, or use it in business during the minority of his daughter solely for the purpose of avoiding an assessment thereon, as suggested, does not seem probable. In view of all the uncontradicted evidence, I am of opinion that the version of this conversation given by the defendant Florence Crouse Clark is the more probable one, and I therefore

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