First Department, December, 1916.

[Vol. 175. faithfully performed the original contract of performance. If, as defendant alleges, no such contract of cancellation was made, plaintiff must fail in this action.

Even if the action could be considered, as it cannot, as one for damages for a wrongful discharge, still the plaintiff would not be entitled to the particulars demanded. (Spitz v. Heinze, 77 App. Div. 317; Stern v. Bellas, Hess & Co., 166 id. 806.) The order appealed from is reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

CLARKE, P. J., SMITH, PAGE and DAVIS, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

MORRIS G. SAMUELS, Plaintiff, v. AUSTIN FIRE INSURANCE COMPANY OF DALLAS, TEXAS, Respondent.

MORRIS JASPER, Appellant.

First Department, December 1, 1916.

Costs — action on insurance policy assigned as security — when assignee not liable for costs section 3247, Code of Civil Procedure, construed.

Where a fire insurance policy was assigned solely as collateral security for the payment of loans, the assignee cannot under section 3247 of the Code of Civil Procedure be compelled to pay the costs of an action on the policy brought by the assignor, for said section does not apply to such assignment.

APPEAL by Morris Jasper from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of October, 1916, directing him as the person beneficially interested in the recovery in this action, to pay the costs awarded to the defendant pursuant to section 3247 of the Code of Civil Procedure.

Alexander S. Marcuson, for the appellant.

Sidney J. Loeb, for the respondent.

App. Div.]

PAGE, J.:

First Department, December, 1916.

The action was brought by the plaintiff, Morris G. Samuels, to recover upon a policy of fire insurance. After the action was commenced notice was served upon the defendant that the policy had been assigned to Morris Jasper.

Judgment for costs was awarded in favor of the defendant for $176.36. This motion was made to compel Morris Jasper, the assignee, to pay the costs and the order appealed from entered to that effect.

In opposition to the motion the appellant submitted affidavits of himself and of the plaintiff stating that the assignment of the policy, together with a number of other policies, was merely as collateral security for the payment of certain notes given by the plaintiff to Jasper in payment of an indebtedness to Jasper. The assignments are annexed to the affidavits and recite: "This assignment is made for the purpose of securing the payment to Morris Jasper of four notes given by the said Samuels to the said Morris Jasper." At the bottom of one of them is the statement: "I hereby agree to return this assignment if each of the notes above mentioned shall hereafter be endorsed by both of the present endorsers jointly, namely: Julius Krulewitch and Chas. Whitcup."

Another of the assignments contains a provision permitting the assignee to settle the claims with the insurance companies "unless within six months from the date hereof, the said M. G. Samuels & Company reduces its indebtedness to the said Morris Jasper in at least the sum of $12,800."

This is enough to show that on the face of the papers the assignments were merely as collateral security for the payment of loans. It is held that section 3247 of the Code does not apply to such an assignment. (Peck v. Yorks, 75 N. Y. 421; Thorn v. Beard, 71 Hun, 112; affd., 139 N. Y. 482.)

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

CLARKE, P. J., SCOTT, SMITH and DAVIS, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

First Department, December, 1916.

[Vol. 175.

LEONELLO VALENTI, an Infant, by ANTONIO VALENTI, His Guardian ad Litem, Appellant, v. HENRY MESINGER and FREDERICK MESINGER, Respondents.

ANTONIO VALENTI, Appellant, v. HENRY MESINGER and FREDERICK MESINGER, Respondents.

First Department, December 1, 1916.

Master and servant-negligence — trial—contradicting witness by written statement - charge - knowledge of foreman that plaintiff was performing certain duties- erroneous charge as to negligence of fellow-servant-proper ruling impaired by subsequent erroneous charge parent and child—father's action for loss of services — liability of employer to parent governed by Employers' Liability Act – stare decisis — construction of foreign statutes.

Where, in an action to recover for personal injuries brought under the Employers' Liability Act, the plaintiff's attorney called as a witness an employee of the defendants and merely proved by him that he had been subpoenaed by the defendants and was at the place of the accident and made a written statement respecting the accident to the defendants and to the plaintiff's counsel as well, so as not to make the witness a witness for the plaintiff in any other respect, and the defendants, in examining said witness, elicited testimony to the effect that after the accident the witness found the elevator which caused the accident to be in good condition, it was error for the court to exclude a written statement made to the plaintiff's counsel by the witness wherein it appeared that the handle of an electric switch on the elevator was not in place, offered for the purpose of contradicting the witness.

Where it appeared that although the plaintiff's usual duties consisted in putting springs in bicycle saddles, he had on a great many occasions been called upon by another employee to assist him in removing rubbish from the factory by means of the elevator which caused the injury, and it further appeared that the defendants' foreman was present on occasions when the plaintiff was doing said work, it was error to refuse to charge that if the plaintiff had been engaged in removing rubbish for the length of time testified to by him and the foreman had knowledge of it, that he was performing said work “within the authority of the defendant," for the circumstances were equivalent to a direction from the foreman to do the work.

As such action was brought under section 200 of the Labor Law, as amended by chapter 352 of the Laws of 1910, which made the defendants liable for any negligence of any person in their employ intrusted with any superintendence or with authority to direct, control or command an employee in the performance of his duties, it was error to

App. Div.]

First Department, December, 1916.

charge, under the old rule, to the effect that if there were no act of direction and supervision over the plaintiff's performance of his work the negligence of a fellow-servant would be a defense.

Where the aforesaid erroneous charge was the last instruction given to the jury at their own request, the error was not harmless because in a previous charge the court had stated the proper rule of law, for the jury had a right to consider that the court, by the last instruction, intended to change the ruling.

The liability of an employer to the father of an infant employee, who is injured through negligence, based on the parent's loss of services, is founded, like the action of the infant himself, on the Employers' Liability Act and the parent is not restricted to a recovery under the former rules of the common law.

Decisions construing the statutes of other States which are similar to our own, while entitled to great weight, are not binding upon the courts of this jurisdiction with respect to the construction of our own statutes.

APPEALS by the plaintiff in each case, Leonello Valenti and Antonio Valenti, from judgments of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 11th day of February, 1915, upon the verdicts of a jury, and also from orders entered in said clerk's office on the 8th day of February, 1915, denying the plaintiffs' motions for new trials made upon the minutes.

Meyer D. Siegel, for the appellants.

E. Clyde Sherwood, for the respondents.

LAUGHLIN, J.:

The actions are brought by the infant plaintiff to recover damages for injuries alleged to have been sustained through the negligence of his employers, and by his father to recover for the loss of the services of his son. In the month of March, 1913, the infant, who for brevity will be referred to as the plaintiff, came to this country from Italy, and in April entered the employ of the defendants, who were engaged in manufacturing bicycles at East One Hundred and Forty-fourth street and Austin place, in the borough of The Bronx, New York. The principal work to which he was assigned and which he customarily performed was putting springs in the saddles of bicycles. On the 11th day of August, 1913, he was sixteen years and nine months of age, and on that day while in the employ of the defendants at their factory he sustained the injuries to recover for which

First Department, December, 1916.

[Vol. 175.

these actions were brought. There were some sixty or sixtyfive men and boys employed in the factory under the supervision of a general foreman with a sub-foreman on each floor. The plaintiff worked on the ground floor, and Charles Patto was his foreman. One Stanislau, called "Sister" by the witnesses, was also employed under the same foreman. On Saturdays, for some time before the accident, the plaintiff had been assigned by his foreman to the duty of sweeping up the rubbish and putting it in cans. It was the duty of Stanislau to remove the cans of rubbish from the various floors on Mondays, using the freight elevator for that purpose. The freight elevator had two inclosed sides and the other two sides were open with gates at each floor. These gates were held in place in grooves— one at each end- and when lifted up they were designed to be held in place by cams or catches; but according to the evidence adduced in behalf of the plaintiff the cams or catches on the ground floor were broken so that in loading or unloading the elevator it was necessary for some one to hold the gate up. On the morning of the accident, which was a Monday, Stanislau called the plaintiff to assist him in loading a can of rubbish onto the elevator, and directed plaintiff to raise and hold the gate to enable him to put the can onto the elevator. The plaintiff raised the gate and while in the act of holding it, with one foot on the platform of the elevator and one on the floor, according to the evidence presented in his behalf, the elevator started up lifting him out of position and the gate came down and he was injured. The evidence is conflicting with respect to the use of the elevator. That given in behalf of the plaintiffs tends to show that any one was at liberty to use it who had occasion so to do; and on the part of the defendants evidence was given tending to show that certain employees on each floor only were authorized to use it. The elevator was operated by electric power, applied and controlled by means of a switch which was inside the elevator and was designed to be operated by a handle which, when in a vertical position, left the current on, and when in a horizontal position cut the current off. This switch, however, was merely used to turn on and to cut off the power; and to operate the elevator it was necessary to have the power on and to reach through an opening made in