STATEMENT UNDER RULE 41. This action was brought to recover the damages sustained by the plaintiff, resulting from personal injuries, caused by the negligence of the defendant, while the plaintiff was in his employ, assisting in the w construction of a school house in the City of Fulton, N. Y., upon the 25th day of June, 1913. The action was commenced by the service of the summons and complaint upon the defendant upon the 21st day of August, 1913. The answer of the defendant was served on the 10th day of September, Joseph Bidwell, for plaintiff, direct. 1913. There has been no change of parties or attorneys in the action. The action was brought to trial at a Trial Term of the Supreme Court, held at the Court House, in the City of Oswego, N. Y., on the 30th day of October, 1913, before Hon. Irving G. Hubbs and a jury. At the close of the plaintiff's evidence upon motion of defendant, the Court granted a non-suit, and directed the complaint to be dismissed. Judgment to that effect with $77.26 costs was thereupon entered in the Oswego County Clerk's Office, upon the 11th day of November, 1913. From the said judgment plaintiff took an appeal to the Appellate Division of the Supreme Court. Notice of appeal was filed in Oswego County Clerk's Office and served upon the defendant's attorney upon the 29th day of November, 1913. Appearances upon the Trial: Thomson, Woods & Woods, Attorneys for plaintiff. Arthur T. Porteous and White, Cheney, Shinaman & O'Neill, Attorneys for defendant. 5 JOSEPH BIDWELL, a witness called on the part of the plaintiff, being duly sworn, testified as follows: A. Joseph Bidwell, for plaintiff, direct. Carpenter. Q. How long have you been a carpenter? 7 A. For the last 12 or 14 years off and on. Q. The plaintiff in this action is your brother? A. Yes, sir. Q. For the last 12 or 14 years you have been a carpenter? A. Yes, sir; off and on. Q. Do you know where this school house is? What street it is on? Q. Were you in the employ of the defendant in this action in June, 1913? A. Yes, sir. Q. How long had you been employed prior to the 25th day of June? A. About a little over a week or two; somewhere around there; I don't just remember. Q. Was your brother employed there at the same time? A. At the same time I were employed. Q. On the 25th day of June how far had this building progressed on the west side? West side of the building. A. You mean the brick work? Q. Yes. A. I should imagine between 6 and 7 foot; that |