ticultural labor, or in household domestic service. In the light of the evidence we construed the finding that Ohlsson was employed as a house and garden laborer, as referring to household domestic service mentioned in section 14, and the caring for the flowers, grass, trees, and shrubbery growing upon the two lots. In other words, the service performed by Ohlsson as a house laborer consisted of household domestic service, while that performed by him in the capacity of a garden laborer consisted in horticultural labor. Clearly, the labor of caring for grass lawns, trees, shrubbery, and flowers is horticultural in character. (See definitions of horticulture in Standard Dictionary and American Encyclopedia.) Ohlsson was thus employed for the performance of services in two capacities; one that of janitor, falling within the terms of the act; the other as a house and garden laborer, employees engaged therein being excluded from its operation. Hence, if the injury sustained by Ohlsson was due to an accident while he was engaged in labor as and under his employment as a gardener, he would not be entitled to the benefits of the act, unless the service was incidental to the work of janitor. The pruning of this fig tree without specific instructions so to do might well be regarded as within the scope of his employment as gardener, since the proper care thereof required such work to be done. It did not, however, interfere with the use of the driveway, and the pruning thereof had no connection with the work of janitor which by any stretch of the imagination could render it incidental thereto. Therefore, the conclusion of law as found by the commission, that at the time of the injury "the applicant employee was not engaged in any of the occupations or employments excepted by section 14 of the Workmen's Compensation, Insurance and Safety Act from the provisions of said act," is without support in the facts found. (Southern Pacific Co. v. Pillsbury et al., 170 Cal. 782, [151 Pac. 277].) The New York compensation act does not apply to all employees, but to those only engaged in certain occupations there designated as extrahazardous, while the California act applies to all except those designated as being excluded when engaged in certain work. This being true, the decisions of the New York courts in like cases furnish a rule which we think should be followed in the case at bar. In the case of Gleisner v. Gross, 170 App. Div. 37, [155 N. Y. Supp. 946], a part of the duties

of an employee was to operate boilers and elevators, designated as extrahazardous. He had other duties to perform, however, which were not within those so classed by the legislature, and was injured while performing some of the latter duties. In holding that he was not entitled to recover, the court said: "Regardless of the contractual or colloquial designation of the duties or position of an injured employee, the question remains in every instance as to the work which he was in fact doing and the extent to which his work came within the category of the enumerated employments. The actuality, rather than the appellation, is the sound basis for the commission's action in determining whether an employee met with mishap in the course of an enumerated employment." In the case of In re Sickles, 156 N. Y. Supp. 864, the defendant was engaged as warehouseman in storing fruit, and also engaged in buying and selling fruits. An employee of the defendant was engaged part of the time in connection with defendant's business as a warehouseman, designated as extrahazardous, and part of the time as a salesman in buying and selling fruit, which latter calling was not within the operation of the statute. He was injured while engaged in the latter business, and it was held that he was not entitled to recover compensation therefor. The court there said: "The difficulty is that the employer was engaged in two entirely distinct kinds of business, one of which was not within the protection of the statute, and that the claimant was injured in performance of his duties, which at the time of the injury solely had reference to that kind of business not thus protected." So, too, where an employee of a common carrier engaged in both intra and inter state transportation is injured, his right to recover under the federal statute will depend upon the character of his service at the time of his injury; that is, if at the time of the injury he was engaged in interstate work, he may recover under federal statute; otherwise, his rights are measured by the state law. (Illinois C. R. Co. v. Behrens, 233 U. S. 473, [Ann. Cas. 1914C, 163, 10 N. C. C. A. 153, 58 L. Ed. 1051, 34 Sup. Ct. Rep. 646]; Colasurdo v. Central R. R. Co. of N. J., 180 Fed. 832; Erie R. Co. v. Jacobus, 221 Fed. 335, [137 C. C. A. 151].) Our conclusion is that the injury sustained by Ohlsson arose out of and was in the course of his employment, not as a janitor, but while

engaged in garden labor, which is in the nature of and included within the term "horticultural labor," for which he is not entitled to the benefit of the act.

The award is, therefore, set aside and annulled.

Conrey, P. J., and James, J., concurred.

[Civ. No. 2005. Second Appellate District.-October 12, 1916.] PATRICK J. HARTNETT, Respondent, v. JOHN C. WILSON et al., Copartners, etc., Appellants.

CONTRACT FOR PURCHASE OF STOCKS ON MARGIN-PLEDGE TO SECURE BROKERS ACTION TO RECOVER PLEDGED PROPERTY - -PLEADING SUFFICIENCY OF COMPLAINT.-In an action in replevin to recover certain certificates of stock and a certain bond deposited with a firm of stockbrokers engaged in the business of buying and selling stocks and bonds on margin, and otherwise, as collateral security for any debt that might accrue from the plaintiff to the defendants on account of any loss caused by reason of any contract that plaintiff might make with defendants whereby defendants might purchase of or for, or sell to or for, plaintiff, on margin, shares of the capital stock of various corporations, the complaint states a cause of action where it is alleged that in none of the various contracts entered into was there any intention on the part of either party that there should be delivery of the shares of stock bought or sold, but that only the difference between the contract price and the market price of said shares should be paid, and only such difference was ever paid.

ID. EVIDENCE · - UNLAWFUL CHARACTER OF TRANSACTIONS - GENERAL QUESTIONS-LACK OF PREJUDICE.-In an action to recover the possession of such certificates and bond, the defendants are not prejudiced by the rulings of the court in permitting the plaintiff to show the character of many of the transactions in a general way, where previous thereto a great deal of evidence had been received covering particular details of many of the transactions, showing their unlawful character.

ID. RULES OF NEW YORK STOCK EXCHANGE-PROOF PROPERLY EXCLUDED. The rules of the New York Stock Exchange in regard to buying and selling stock are properly excluded in such an action, where there was no evidence that the defendants were members of such exchange, or transacted any of the plaintiff's business through it.

ID.-VALUE OF PROPERTY-TIME OF DEMAND FOR DELIVERY.-The value of the property involved in such an action is to be computed according to its value at the time when demand for delivery was made, and not as of the date of the original deposit.

ID.-TRIAL REFUSAL OF CONTINUANCE-DISCRETION NOT ABUSED.—It is not an abuse of discretion to refuse a continuance of the trial at the close of the plaintiff's evidence in order to permit the defendants to obtain evidence to meet the amendment made to the plaintiff's complaint on the day of trial, which showed that the dealings were to include cotton, as well as corporate stock, in the absence of any showing that the witness whose attendance was required would or could testify as to the lawful character of the cotton transactions.

ID.-APPEAL-BANKRUPTCY OF APPELLANTS PENDING DETERMINATIONRIGHTS OF RESPONDENT.-Upon an appeal taken from the judgment and order denying a new trial in such action, the right of the respondent to have the appeal determined is not affected by the bankruptcy of the defendants pending the appeal, and if the appeal be affirmed, the plaintiff is entitled to recover the property or to assert his rights under the appeal bond.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Charles Wellborn, Judge.

The facts are stated in the opinion of the court.

Hartley Shaw, for Appellants.

Arthur Wright, for Respondent.

CONREY, P. J.-This is an action of replevin brought by the plaintiff to recover certain certificates of stock and a certain bond, alleged to be his property, in possession of the defendants and unlawfully detained by them. The defendants were partners doing business under a firm name as stockbrokers engaged in the business of buying and selling stocks and bonds on margin and otherwise. The complaint shows that on July 30, 1912, a series of transactions began between the plaintiff and the defendants wherein, as it is alleged, contracts were made between the parties, whereby the plaintiff employed the defendants to purchase for him shares of the capital stock of corporations on margin, without any intention on the part of either of the parties for delivery of the shares. sold or bought, and without any actual delivery of such shares

or any agreement for such delivery. It is alleged that each of said contracts provided that only the difference between the contract price and the market price of said shares on divers days should be paid, and only such difference was ever paid. On the day of trial of this action the complaint was amended so as to show that the transactions included purchases and sales by the defendants as principals, and included bales of cotton as well as corporation stock.

On several dates, beginning on August 8th, the plaintiff deposited with defendants the certificates and the bond, one at a time, until all of them had passed to the possession of defendants. It was alleged that the property was deposited as collateral security for any debt that might accrue from the plaintiff to defendants on account of any loss caused by reason of any contract that plaintiff might make with defendants whereby defendants might purchase of or for, or sell to or for, plaintiff, on margin without intention to deliver, shares of the capital stock of divers corporations, or bales of cotton; that since said delivery of the certificates and bond plaintiff has entered into divers verbal contracts with defendants whereby the plaintiff sold to or for defendants, and divers other verbal contracts whereby the plaintiff purchased of defendants shares of the capital stock of corporations or bales of cotton on margin; that in each instance and in every case and as agreed to in each of said contracts, there was no intention either on the part of the plaintiff or on the part of the defendants to deliver by the party selling or to receive by the party purchasing any of said shares or bales of cotton, and no shares of capital stock or bales of cotton were ever delivered by plaintiff to defendants or by defendants to plaintiff, as the case might be, and no agreement was ever made for such delivery or receipt; that each of said contracts provided that only the difference between the contract price and the market price of said shares or bales of cotton on divers days should be paid and only such difference was ever paid; that said certificates and bond were deposited with the defendants for no other purpose than as so stated. By their answer the defendants raised issues upon the material allegations of the complaint, both as to the ultimate facts and the evidentiary facts thus pleaded, other than as to plaintiff's ownership and deposit of the certificates and bond. The case was tried upon those issues with resulting findings and judgment in favor of