App. Div.] First Department, December, 1916. such servant or employe' if he survives the injury, otherwise, to his personal representative," the court construed the statute as conferring the cause of action and held that it should be strictly construed and that it did not authorize an action by the parent for damages sustained by an infant son. That case is, however, I think, distinguishable upon the ground that here the cause of action is not conferred by the statute which merely imposes additional duties and indirectly wipes out the negligence of a coservant as a defense by providing that the employee shall have the same right of action as if he were not an employee. In Gibson v. Kansas City Packing Box Co. (supra) it was held that the parent of an infant employee who was injured could not recover of the employer for a failure to comply with an act requiring safeguards for the protection of employees. The court applied the rule of strict construction, and held that the benefits of the statute were confined to the infant and in case of death to his personal representative, although the court recognized the rule that at common law the employer of an infant owes the same duty to the parent to exercise ordinary care for the safety of the infant that he owes to the infant himself. A recent decision of the same court in Henry v. Missouri, K. & T. Ry. Co. (supra) supplied a more liberal construction to a statute (Kan. Gen. Stat. 1909, § 4992) giving a right of action "to the party injured for the direct damage sustained "in consequence of any violation of or willful failure to comply with the provisions of a mining law by the owner, lessee or operator of a coal mine. In that case the court, in construing these provisions of the Coal Mining Act, which was entitled "An act to provide for the health and safety of persons employed in and about the coal mines of Kansas,” held that a parent could maintain an action for the loss of services of his minor son, resulting from the defendant's failure to comply with the statute, which provided for the safety of the persons employed in the mines. And evidently to meet the objection that the damages sustained by the parent were not "direct" damages within the purview of the statute the court, expressed the opinion that the purpose of the Legislature in including the words “for the direct damage sustained" was not clear, and instead of giving them an effect which would limit the statute the court declared them surplus First Department, December, 1916. [Vol. 175. age. In Dobra v. Lehigh Valley Coal Co. (supra) the Anthracite Coal Mine Act (Penn. Laws of 1891, p. 176, No. 177) in express terms (p. 207, art. 17, § 8) gave the right of action "to the party injured" against the owner or operator of a mine " for any direct damages he may have sustained thereby," and it was held that the damages sustained by the parent of an infant injured by a violation of the statute were not direct damages within the purview of the statute. It might well be held, adopting the view of the court in Henry v. Missouri, K. & T. Ry. Co. (supra), that the provisions of our statute to the effect that the employee, or, in case of his death, his personal representative, shall have the same remedies as if he were not an employee, are merely surplusage as applied to this case where the recovery is sought, not by virtue of those provisions of the statute, but by virtue of the provisions rendering the master liable for defects in the ways, works, machinery and plant, and for the negligence of any one in his employ intrusted with superintendence or with authority to direct or command any employee. Those provisions would preclude the defense of the negligence of a coservant. Decisions construing statutes of other States, which are similar to ours, while entitled to great weight, are not, even if they were in harmony, binding upon the courts of this jurisdiction with respect to the construction of our own statutes; but the later Kansas decision tends to support the construction which I have given. It follows, therefore, that the judgment and order appealed from in each case should be reversed and a new trial granted, with costs to appellants to abide the event. CLARKE, P. J., DOWLING, SMITH and DAVIS, JJ., concurred. Judgment and order in each case reversed and new trials ordered, with costs to appellants to abide event. Order to be settled on notice. App. Div.] First Department, December, 1916. ADOLF GOLDSTEIN, Respondent, v. ELLEN V. DOLLARD, Costs Appellant. First Department, December 1, 1916. - recovery of less than fifty dollars in action in Supreme Court -when defendant entitled to trial fee although judgment rendered on default. Where a plaintiff brings an action in the Supreme Court and recovers less than fifty dollars expended for the defendant's account, the defendant, being entitled to costs, may include therein thirty dollars, the trial fee for the trial of an issue of fact, although the defendant defaulted and did not appear at trial. APPEAL by the defendant, Ellen V. Dollard, 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 26th day of July, 1916, granting plaintiff's motion for a retaxation of costs and striking from the bill of costs an item of thirty dollars allowed to the defendant as a trial fee for the trial of an issue of fact. The action was brought to recover twenty-four dollars and fifty-six cents alleged to have been expended by the plaintiff for the defendant's account. Issue was joined by the defendant's answer, and the case came on for trial in its regular order upon the calendar. The defendant defaulted upon the trial and judgment was rendered for the plaintiff in the sum of twenty-four dollars and fifty-six cents. The defendant then taxed a bill of costs for fifty-seven dollars and sixty cents, including an item of thirty dollars for the trial of an issue of fact; after deducting twenty-four dollars and fifty-six cents adjudged to be due the plaintiff, judgment was entered in favor of the defendant for the sum of thirty-three dollars and four cents. The learned justice at Special Term granted the First Department, December, 1916. [Vol. 175. motion to strike from the bill of costs the item of thirty dollars for trial fee for the trial of an issue of fact, upon the ground that the defendant did not appear upon the trial and, therefore, was not entitled to tax this item. Section 3228 of the Code of Civil Procedure provides in subdivision 4 thereof: "But the plaintiff is not entitled to costs, under this subdivision, unless he recovers the sum of fifty dollars or more." Section 3229 of the Code of Civil Procedure provides: "The defendant is entitled to costs, of course, upon the rendering of final judgment, in an action specified in the last section, unless the plaintiff is entitled to costs, as therein prescribed." There can be no doubt under these sections that though the defendant defaulted upon the trial he was, nevertheless, entitled to tax costs. Section 3251 of the Code of Civil Procedure provides in subdivision 3 thereof that costs shall be awarded "to either party * * * for the trial of an issue of fact* ** thirty dollars." It has been frequently held that this provision applies, even though the trial was merely an inquest, and had the plaintiff recovered more than fifty dollars he would have been entitled to tax as a part of his costs thirty dollars for the trial of an issue of fact. The question is, does the fact that the defendant failed to appear on the trial deprive him of this right? There is no express provision of the Code which limits the right to a case where the party taxing the costs has appeared at the trial, and I am unable to find a reported case in which the question has been determined. While there seems to be some injustice in allowing a party who has defaulted and failed to appear at the trial to tax costs for a trial, nevertheless, this provision of the Code is in the nature of a penalty imposed upon the plaintiff for bringing an action in the Supreme Court which could just as well have been brought in a Municipal or Justice's Court, and the costs imposed in favor of the defendant are not supposed to be commensurate with the burden imposed upon him. The plaintiff or his attorney must have known when the action was brought that under the law the defendant would be entitled to costs and that the costs would amount to more than the judgment. Any hardship imposed upon this particular plaintiff would seem, therefore, to have been self-imposed. There was a trial within the meaning of the Code, and App. Div.] First Department, December, 1916. whether the defendant attended it or not, he is entitled under its strict language to tax the trial fee. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, and the bill of costs as taxed reinstated. CLARKE, P. J., LAUGHLIN, SCOTT and DOWLING, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and bill of costs as taxed reinstated. NIAGARA LIFE INSURANCE COMPANY, Respondent, v. LINCOLN MORTGAGE COMPANY, Appellant, Impleaded with MITCHELL SMOLEROFF and Others, Defendants. First Department, December 1, 1916. Receiver-suit of foreclosure-duty of receiver to care for property personally-employment of real estate agent and counsel by receiver without leave of court. The receiver of rents and profits appointed in an action to foreclose a mortgage on real property is required to earn his commissions by real and substantial services personally rendered to the estate. He should not turn over the duty of collecting rents to a real estate agent, or employ counsel to advise him without first obtaining permission of the court. If he makes expenditures for such services without permission, the court, in its discretion, may surcharge his accounts with the amount thereof. APPEAL by the defendant, Lincoln Mortgage Company, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 13th day of September, 1916, confirming the account of William Moores, as receiver of rents and profits in a foreclosure action. Henry A. Blumenthal [David C. Cohen of counsel], for the appellant. Arnold O. Schramm [Charles W. Dayton of counsel] for the respondent. |