and 129 New York State Reporter appellant to abide the event. Held, that the record presents questions of fact which should have been submitted to the jury. WHITEHOUSE, Respondent, v. STATEN ISLAND WATER SUPPLY CO., Appellant. (Supreme Court, Appellate Division. Second Department. November 24, 1905.) Action by George M. Whitehouse against the Staten Island Water Supply Company. No opinion. Judgment of the Municipal Court affirmed, with costs. WILKINSON, Respondent, v. KRANTZ, Appellant. (Supreme Court, Appellate Division, Fourth Department. July 6, 1905.) Action by Emerett Wilkinson against Charles Krantz. No opinion. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. In re WILLIAMS. (Supreme Court, Appellate Division, Second Department. September 29. 1905.) In the matter of the application of William D. Williams for admission to the bar. No opinion. Application granted. WILLIAMS, Appellant, v. BUCKLEY et al., Respondents. (Supreme Court. Appellate Division. First Department. July 7. 1905.) Action by William Williams against Charles Ramsay Buckley and others. F. J. Moissen, for appellant. R. K. Prentice, for respondents. No opinion. Order affirmed, with $10 costs and dis bursements. WILLIAMS, Respondent, v. HATCH, Appellant (two cases). (Supreme Court, Appellate Division, Fourth Department. October 18, 1905.) Action by Elizabeth Bird Williams against Albert G. Hatch. No opinion. Order affirmed, with $10 costs and disbursements. WILLIAMS et al., Respondents, v. HATCH, Appellant. (Supreme Court, Appellate Division. Fourth Department. November 22, 1905.) Action by Elizabeth Bird Williams, and others against Albert G. Hatch. No opinion. Motion for reargument denied, with $10 costs and disbursements. dall L. Wilson against the New York Milk Pro ducts Company. No opinion. Motion for leave to file notice of appeal with county derk granted, upon payment of $10 costs of this me tion to the respondent. WILSON & McNEAL CO. v. STANDARD OIL CO. OF NEW YORK. (Supreme Court Appellate Division, First Department. Onte ber 13, 1905.) Action by the Wilson & MeNeal Company against the Standard Oil Company of New York. No opinion. Motion denied. WOODILL, Appellant. v. MADDEN et al. Respondents. (Supreme Court, Appellate Divi sion, Second Department. July 27, 1905.) Ae tion by William L. Woodill against Alice H. Madden and Margaret E. Madden, as exectrices, etc. No opinion. Judgment affirmed. with costs. W. P. DAVIS MACH. CO., Respondeat, T. ROBINSON et al.. Appellants. (Supreme Court, Appellate Division. Fourth Department. November 15, 1905.) Action by the W. P. Davis Machine Company against Harry Robinson, individually, etc., and another. No opinies. Order affirmed, with $10 costs and disbursements. In re WOOD et al. (Supreme Court. Appellate Division, Third Department. November 21, 1905. In the matter of the application of Jesse M. Wood and others to alter a highway in the town of Gilboa. No opinion. Motion for reargument granted. See 95 N. Y. Supp 260. WOOD, Appellant, v. NEW JERSEY SILK CO.. Respondent. (Supreme Court, Appellate Division, First Department. July 7, 1903) Action by Joseph Wood against the New Jersey Silk Company. D. A. Spellissy, for appellant S. Kohn. for respondent. PER CURIAM. Judgment affirmed, with costs. PATTERSON, J., dissenting. WOOD, Respondent, v. STUART, Appellant. (Supreme Court, Appellate Division, Second Department. October 12, 1905.) Action by George R. Wood against Edmund A. Stuart. PER CURIAM. We do not think the state ment of items contained in the plaintiff's bill of particulars constitutes an account of such a character as to justify a compulsory order of reference in this case. Order reversed, with $10 costs and disbursements, and motion de nied. WOOLSEY, Respondent, v. LONG ISLAND R. CO.. Appellant. (Supreme Court, Appe late Division, Second Department. October 20, 1905.) Action by George M. Woolsey against the Long Island Railroad Company. No opinion. Motion denied. WUCHERER, Appellant, v. OCEAN VIEW CEMETERY, Respondent. (Supreme Court, Appellate Division, Second Department. August 1905.) Action by Robert Wucherer against | indorser by putting his name on the back of a Ocean View Cemetery. R CURIAM. Judgment affirmed, with IRSCHBERG, P. J., dissents. ULFF, Respondent, v. FIFTH AVE. CH CO., Appellant (two cases). (Sue Court, Appellate Division, Second DepartJune 23, 1905.) Actions by Robert W. ff, an infant, by Adolph Wulff, his guardian item, and by Adolph Wulff, individually, nst the Fifth Avenue Coach Company. ER CURIAM. We cannot assume or deterthe existence of a disputed oral stipulation. existing stay is ineffective. The motion to inue it until 10 days after the determinaof the appeal is granted. YOMING COUNTY NAT. BANK OF RSAW, Appellant, v. MILLER et al., Redents. (Supreme Court, Appellate DiviFourth Department. November 22, 1905.) on by the Wyoming County National Bank arsaw against George M. Miller and anothNo opinion. Judgment affirmed, with costs. DAMANS, Appellant, v. LIEBLER et al., ondents. (Supreme Court, Appellate DiviFirst Department. July 7, 1905.) Action Annie Yeamans against Theodore A. Liebler another. M. Meyer, for appellant. G. B. nsend, for respondents. No opinion. Judg: affirmed, with costs. DUNGS et al. v. YOUNGS et al. (Sue Court, Appellate Division, Second DepartJune 16, 1905.) Action by Fanny Hena Youngs, as sole surviving executrix, etc., others, against Ada C. Youngs, individually as executrix, etc., and others. CR CURIAM. We do not think there is inconsistency in the referee's findings on natter in question. Motion to resettle order ed. note before its delivery to the drawee, who in part consideration thereof was to assign a lease. The note was delivered to the drawee, the lease was assigned, and Max went into possession of the premises. Then Gassian took the note according to prior promise to have it discounted. Instead he returned it a couple of days later with his name crossed out. Evidence quite sufficient was given of presentment of the note, nonpayment, and notice of dishonor to justify the finding of the learned trial justice against the defendant. Judgment affirmed, with costs. All concur. In re ZIEGLER. (Supreme Court, Appellate Division, First Department. July 7, 1905.) In the matter of Sarah Ziegler. G. M. Mackellar, for appellant. S. W. Stern, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. ZIEGLER et al., Respondents, v. GOLDBERG, Appellant. (Supreme Court, Appellate Division, Second Department. October 6, 1905.) Action by Samuel Ziegler and Julius Sing against Hyman Goldberg. No opinion. Judgment of the Municipal Court affirmed by default, with costs. ER TELEPHONE CO., Appellant. (Supreme VOORHEES, Respondent, v. HUDSON RIVCourt, Appellate Division, Third Department. November 15, 1905.) Dissenting opinion. For majority opinion see 95 N. Y. Supp. 703, 109 App. Div. 468. CHESTER, J. (dissenting). There was sufficient evidence of the defendant's negligence to justify the submission of that question to the jury. Its manager knew that the old pole had fallen and had been reset. It was not sufficient under such circumstances to tell the deceased that the pole was an old one and to be careful and not take any chances. The mere fact that the deceased was sent to replace the wires from one pole to the other would be sufficient notice to him that one was an old pole, without the manager telling him that fact; but the manager knew that the pole had rotted off and had fallen and had been reset. He should have stated those facts to the deceased, so as to put him on his guard and to excite greater care on his part. There is no proof that the deceased had any knowledge that the pole had fallen and had been reset. The defendant's manager having this knowledge, and the deceased not having it, common prudence required that the latter should have been informed of it. There was, therefore, enough on this branch of the case to justify the submission of the question to the jury. I think, too, that enough was shown by the plaintiff to satisfy the rule of law requiring him to establish affirmatively by a preponderance of evidence that the decedent was free from any fault which contributed to the accident. In cases where, as here, there was no eyewitness to the accident, the rule in this respect has been somewhat relaxed. It has been permitted in such cases to and 129 New York State Reporter show the absence of contributory negligence by circumstantial evidence. While the evidence is somewhat meager, I think there is sufficient in the circumstances to show such absence. Besides this, there was direct evidence that the deceased was a careful man; that he climbed the new pole, instead of the old pole, to prosecute his work; and that he took the precaution to tie the old pole to the new one. It is manifest, however, because of the length of the arms, that he could not have removed the wire from the arms of the old pole without getting upon that pole. When he was found injured, he was lying on the ground under one of the arms of the old pole, which had fallen. His getting on the old pole is not evidence of contributory negligence; for there was no visible danger, as the place where the pole was broken was concealed beneath the ground, and the pole at the ground appeared to be sound. This case is one brought under the employers' liability act (Laws 1902, p. 1748, c. 600). It is provided in section 3 of that act as follows: 'An employee by entering upon or continuing in the service of the employer shall be presumed to have assented to the necessary risks of the occupation or employment and no others. The necessary risks of the occupation or employment shall be considered as including those risks, and those only, inherent in the nature of the business which remain after the employer has exercised due care in providing for the safety of his employees." The jury having found the defendant negligent in not providing for the safety of the decedent upon * sufficient evidence, the falling of the pole was not, under the statute, one of the necessary risks assumed by him. The defendant's manger knew of the defect in the pole, and due care for the safety of the employé should have prompted the manager to have told the decedent of the defect in the pole before setting him to work thereon. The same section provides that "the question whether the employee understood and assumed the risk of such injury or wES guilty of contributory negligence by his ectinuance in the same place and course of en ployment with knowledgment of the risk ef injury shall be one of fact, subject to the ust powers of the court in a proper case to s aside a verdict rendered contrary to the ev dence." That being the law where the employe has knowledge of the risk, it could not be proerly claimed that it was any the less a question of fact where, as here, he had no such know)edge. The defect in the pole not having ben an obvious one, and the risk not a necessary one under the statute, the question of the nezligence of the deceased was, under the circum stances shown here, properly left to the jury and I think there was sufficient evidence t support the verdict. The principles involved in the case are very much like those discussed in Irish v. Union Bag & Paper Co., 103 App. Div. 45, 92 N. Y. Supp. 695; affirmed 183 N. Y. -, 76 N. E. If, as I think, the verdict here is not against the weight of evidence, the conclusion reached in that case is an authority for sustaining the judgment appealed from, and it should be affirmed, with costs. END OF CASES IN VOL. 95. INDEX. ABANDONMENT. of wife, see "Husband and Wife," § 3. ABATEMENT AND REVIVAL. Election of remedy, see "Election of Reme- Of contempt proceedings, see "Contempt," § 2. Substitution of parties, see "Parties," § 1. 1. Death of party and revival of ac- Code Civ. Proc. § 452, relative to additional Under Code Civ. Proc. § 760, an order of ABUTTING OWNERS. Assessments for expenses of public improve- Rights in streets in cities, see "Municipal Cor- ACCEPTANCE. Of offer to sell goods, see "Sales," § 1. ACCIDENT. Accident insurance, see "Insurance," § 6. ACCOMMODATION PAPER. ACCORD AND SATISFACTION. See "Payment." A receipt in full under protest for an amount ACCOUNT. Accounting between partners, see "Partner- Accounting between pledgor and pledgee, see Accounting by executor or administrator, see Construction of judgment for, see "Judgment," Copies of accounts alleged or annexed in plead- Reference of, see "Reference," § 1. ACCOUNT, ACTION ON. Copies of accounts alleged or annexed in plead- ACCUMULATIONS. Effect of partial invalidity of trust resulting Of trust income as violation of law against ACKNOWLEDGMENT. Operation and effect of admissions as ground ACTION. Abatement, see "Abatement and Revival." Election of remedy, see "Election of Reme- Mortgage as security for, see "Mortgages," § 1. Jurisdiction of courts, see "Courts." and 129 New York State Reporter Limitation by statute, see "Limitation of Actions." Pendency of action, see "Lis Pendens." Co-tenants, see "Partition," § 1. Actions by or against particular classes of parties. See "Brokers," §§ 4, 5; "Carriers," §§ 2-4; "Cor- Corporate officers, see "Corporations," § 4. Insurance company, see "Insurance," § 1. Trustees in bankruptcy, see "Bankruptcy," § 1. Particular causes or grounds of action. See "Bills and Notes," § 3; "Collision," § 1; "Death," § 1; "False Imprisonment." § 1; "Fraud," § 2; "Guaranty," § 2; "Indemnity"; "Insurance," $8; "Libel and Slander," § 3; "Money Lent"; "Money Received"; "Negligence," § 2; "Trover and Conversion," § 1; "Work and Labor." Breach of contract, see "Contracts," §§ 2, 6; Enforcement of stockholder's liability, see Fire caused by operation of railroad, see "Railroads," $ 1. Fraudulent conveyance by bankrupt, see "Bankruptcy," § 1. Injuries to animals caused by operation of railroad, see "Railroads." § 1. Judgment against railroad receivers, for negligence in operation, see "Railroads," § 1. Penalties for depriving persons of color of civil rights, see "Civil Rights." Penalty against insurance company, see "Insurance," 1. Personal injuries, see "Carriers," § 4; "Landlord and Tenant," § 5; "Master and Servant," $$ 5-7; "Municipal Corporations,' 86; "Railroads," § 1. Price of goods, see "Sales," § 4. Recovery of tax paid, see "Taxation," § 5. Rent, see "Landlord and Tenant," § 6. Services, see "Master and Servant," § 2; "Work and Labor." Wages, see "Master and Servant," § 2. Wrongful death caused by electricity, see "Electricity." Wrongful death caused by operation of street railroad, see "Street Railroads," § 2. Particular forms of action. See "Ejectment"; "Replevin"; "Trover and Conversion." Particular forms of special relief. See "Creditors' Suit"; "Divorce"; "Injunction": "Interpleader"; "Partition," § 1; "Specific Performance." Alimony, see "Divorce," § 2. Cancellation of written instrument, see "Cancellation of Instruments." Enforcement of re-exchange of property, see "Exchange of Property." Enforcement or foreclosure of lien, see "Ye chanics' Liens," § 4. Establishment of will, see "Wills." § 4. Foreclosure of mortgage, see "Mortgages." 12 Prevention of waste by officers, see "Officers" § 1. Reformation of written instrument, see "RefRestraining illegal use of firm name, see "Partormation of Instruments." nership," § 6. Setting aside municipal assessment, see "Monicipal Corporations," § 4. Setting aside will, see "Wills,” § 4. Particular proceedings in actions. See "Continuance"; "Costs"; “Damages"; "Depositions"; "Dismissal and Nonsuit"; "Evidence"; "Execution"; "Judgment": "Jury": "Limitation of Actions"; "Motions"; "Parties"; "Pleading"; "Process"; "Reference"; "Trial"; "Venue.' Bill of particulars, see "Pleading," § 6. Notice of action, see "Process," § 2. Particular remedies in or incident to actions. See "Attachment"; "Injunction"; "Receivers"; "Tender." Notice of pendency of action, see "Lis Pendens." Stay of proceedings, see "Appeal," § 4. Proceedings in exercise of special jurisdictions. Courts of limited jurisdiction in general, see "Courts," § 2. Criminal prosecutions, see "Criminal Law." Suits in equity, see "Equity." Review of proceedings. See "Appeal"; "Judgment," § 4; "Justices of the Peace," § 1; "New Trial." § 1. Nature and form. Complaint for money received by the defendant of the plaintiff "as his agent" held one on *Point annotated. See syllabus. |