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The contention of the board of water commissioners cannot be maintained. It is provided by statute (section 64 of the charter of the city of Olean) that in the event the entire annual receipts for water rates, after deducting the expense for repairs, etc., in any year, shall not be sufficient to pay the interest or principal of the water debt then falling due, or the amount to be added to the sinking fund, then it shall be the duty of the common council of the city to cause such deficiency to be assessed, levied, and collected from the taxable property of said city. It is also provided by statute that funds used by the board of park commissioners must be provided by general taxation. It is evident that the amount of $30.16 must be paid by the city of Olean by general tax, either as a deficit in the board of water commissioner's accounts or as an account of the board of park commissioners. If this amount of $30.16 is to be raised by general tax, it is quite immaterial whether it be paid by the city treasurer to the board of park commissioners and by the board of park commissioners to the board of water commissioners, or whether it be paid by the city treasurer direct to the board of water commissioners, and the manner of its liquidation is simply a matter of bookkeeping.

I have been referred to no statute that authorizes the board of water commissioners to shut off the water supply from the city park for the failure of the city of Olean to pay this account. There is no statute authorizing the board of water commissioners to shut off the water supply used by the city of Olean for public purposes upon the failure of the city authorities to raise by a general tax sufficient funds to pay any deficit in the board of water commissioners' accounts. The conclusion is necessarily reached that the act of the board of water commissioners in shutting off the water supply for public use in the Olean city park for the nonpayment of the account of $30.16 was unauthorized.

Let a peremptory writ of mandamus issue, directing the respondents to forthwith turn on the water in the pipe lines extending into the public park of the city of Olean, and permitting the board of park commissioners to use such water for the city's park.

In re ROUSOS.

(Supreme Court, Special Term, Monroe County. September 28, 1909.)

1. ALIENS (§ 60*)-NATURALIZATION-STATUTES.

Naturalization is a matter of statute, which is of uniform application, and should receive uniform construction throughout all the states.

[Ed. Note.-For other cases, see Aliens, Cent. Dig. §§ 117, 118; Dec. Dig. § 60.*]

2. INFANTS (8 78*) — ACTIONS - NECESSITY OF GUARDIAN AD LITEM OR NEXT FRIEND.

An infant may sue or be sued; but he cannot prosecute or defend his suit alone, and a guardian ad litem or next friend must be appointed. [Ed. Note. For other cases, see Infants, Cent. Dig. § 195; Dec. Dig. § 78.*]

3. INFANTS (§ 68*)-CRIMINAL RESPONSIBILITY-INTERVENTION OF GUARDIAN. An infant is amenable for crime, and he must plead without intervention of a guardian, and must suffer the penalty when found guilty.

[Ed. Note. For other cases, see Infants, Cent. Dig. § 174; Dec. Dig. 68.*]

4. INFANTS (§ 88*)-ATTAINMENT OF MAJORITY PENDING ACTION-GUARDIAN AD LITEM-APPOINTMENT.

Where a suit is instituted against an infant without the appointment of a guardian ad litem, it is error to appoint one after he becomes of age, as he may then control and manage his defense, and the case stands as if he had been of age at its commencement.

[Ed. Note. For other cases, see Infants, Cent. Dig. § 253; Dec. Dig. § 88.*]

5. CITIZENS (§ 2*)-ELECTIONS (§ 68*)-WHO ARE "CITIZENS"-"ELECTORS." Acitizen" is one who owes allegiance to the state, and he has a right to reciprocal protection from it; but "citizen" and "elector" are not synonymous, for the qualifications of a voter are prescribed by the laws of the different states.

[Ed. Note. For other cases, see Citizens, Cent. Dig. § 1; Dec. Dig. § 2;* Elections, Cent. Dig. § 63; Dec. Dig. § 68.*

For other definitions, see Words and Phrases, vol. 2, pp. 1164-1174; vol. 8, pp. 7602, 7603; vol. 3, pp. 2341, 2342.]

6. ALIENS (§ 63*)-NATURALIZATION-MINOR RESIDENTS.

The naturalization act, giving an infant 18 years old the right to declare his intention to become a citizen, invests an infant of that age with discretion sufficient to adequately understand his right; and where he declares his intention to become a citizen he may during his minority institute a proceeding for admission to full citizenship.

[Ed. Note.-For other cases, see Aliens, Cent. Dig. §§ 126, 127; Dec. Dig. § 63.*]

In the matter of the petition of Spiro Rousos to be admitted a citizen of the United States. Application granted.

Upon objections made by the government to the petition of Spiro Rousos for admission to citizenship in the United States, upon the ground that the petitioner had not attained the age of 21 years at the time his petition was filed, although he had attained such age at the time of the hearing.

BENTON, J. Naturalization is a matter of statute. The petitioner has complied with all the statutory provisions relative thereto. There is no contention as to his intelligence and character. He is now 21 years and over. At the time he filed his petition he was not 21. Objection is made that he is ineligible to be admitted on that account. The statute does not say so. He has complied with all its provisions.

After reaching the age of 18 years, he declared on oath his intention of becoming a citizen in due form. Not less than 2 nor more than 7 years after he made such declaration he filed his petition in writing, literally and absolutely within the language of the statute. For the court to now say that he cannot do what the statute says he may nullifies the terms of the act. This statute is of uniform application. Whatever may be the different rules and usages of the state statutes, this should have uniform construction throughout all the states.

It is claimed that an infant may not institute a proceeding in court, being unable or disqualified so to do until he reaches majority. This

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

disqualification, however, is not uniform. By statute in this state, an infant over 14 years may petition, in person and without the intervention of a special guardian, the court for the appointment of a general guardian. It seems to me that this statute must be construed to say that an infant over 20 years of age may petition the court for citizenship. To hold otherwise would be in effect, by judicial legislation, to interpose a proviso in the statute which Congress did not put there. The terms of the act are plain. Why not hold they mean what they say? The construction claimed would necessarily mean that it must be construed as if it read not less than 2 years, provided he be not less than 21 years of age after he made such declaration, etc.

It is not true that an infant is not capable of suing or being sued. He is capable of both; but he is not considered to have sufficient discretion to adequately enforce or protect his rights, and hence he is not allowed to prosecute or defend his suit alone. In order that full justice may be done him, it is necessary that a guardian ad litem or a next friend be appointed to safeguard his interests. 22 Cyc. p. 634. In Louisiana an infant may be emancipated, so that he may sue without guardian ad litem or next friend. Beauchamp v. Whittington, 10 La. Ann. 646. He is amenable for crime, and pleads without intervention, and must suffer the penalty when found guilty.

If a suit is instituted against a minor without the appointment of a guardian ad litem, who ought then to be appointed, it is error to appoint one after he becomes of age. He is then entitled to the control and management of his defense, and the case stands as if he had been of age at the commencement of the proceedings. Patton v Furthmier, 16 Kan. 29, 30. It is also held that a seaman over 14 years of age may sue for his wages without the appointment of a guardian ad litem. 22 Cyc. 636, citing Brown v. The Henry Pratt, 4 Fed. Cas. p. 384, No. 2,010. In some jurisdictions, the disability of infancy may be removed by judicial emancipation. 22 Cyc. 518.

"Citizen" and "voter" and "elector" are not synonymous. Women and minors are eligible to citizenship; but they cannot vote. The qualifications of a voter are prescribed by the laws of the different states. A citizen may be defined to be one who owes allegiance to the state and has the right of reciprocal protection from it. In terms, the naturalization act gives the minor after he reaches the age of 18 years the right to choose his citizenship, and it thereby invests him with discretion sufficient to adequately understand his right; and if at 18, without the intervention of a guardian or next friend, he may determine under what government he will become a citizen, at 20 why is he not equally entitled to take the final step in becoming a citizen? The rule fails where the reason thereof fails.

Therefore I conclude that, having done all the statute required of him, this applicant is entitled to be sworn as a citizen of the United States of America.

So ordered.

(134 App. Div. 363.)

STOKES V. BARBER ASPHALT PAVING CO.

(Supreme Court, Appellate Division, First Department. October 22, 1909.) 1. Master and Servant (§ 221*)—INJURIES TO SERVANT-Unguarded EleVATOR -ASSUMED RISK-PROMISE TO REPAIR.

While the doctrine of assumed risk on the part of a servant, who knows the existence of the defect by which he is injured, extends to a known violation of statute, requiring the guarding of elevator shafts, etc., a servant did not assume the risk of injury resulting from an unguarded shaft in violation of statute, where he had complained of the danger, and the master had promised to remedy the defect, without specifying any time within which it would do so, and a reasonable time had not expired.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 638647; Dec. Dig. § 221.*]

2. MASTER AND Servant (§ 221*)—INJURIES TO SERVANT-ASSUMED RISK-PROMISE TO REPAIR.

A master, by promising to repair a defect complained of as an inducement to his servant to continue, forthwith takes from the servant the risk of injury, and thereafter during the period for repair assumes the risk; and, if no time is fixed, the master's undertaking runs for a reasonable time.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 638647; Dec. Dig. § 221.*]

3. MASTER AND SERVANT (§ 221*)-DEFECTIVE APPLIANCES PROMISE TO REPAIR. A master's promise to repair a defect in the ways and works can be made by one standing in the master's stead or having authority to make the repairs; express delegation of authority not being required.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 640; Dec. Dig. § 221.*]

4. MASTER AND SERVANT (§ 221*)—INJURIES TO SERVANT-UNGUARDED ELEVATOR-PROMISE TO REPAIR.

Where defendant's superintendent had power to stop, start, and repair the machinery, and to hire and discharge employés, it might be fairly inferred that he was authorized to promise an employé on defendant's be half to guard the elevator well.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 640; Dec. Dig. § 221.*]

5. MASTER AND SERVANT (§ 286*)-INJURIES TO SERVANT-NEGLIGENCE-QUESTION FOR JURY.

In an action for injuries to a servant, resulting from an alleged unguarded elevator well, whether defendant was negligent in failing to place guards about the elevator, or in not placing one man in charge of its operation, or in failing to install some signal, which would warn workmen about it that it was about to be moved, was for the jury.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1010, 1025; Dec. Dig. § 286.*]

6. MASTER AND SERVANT (§§ 288, 289*)-INJURIES TO SERVANT-ASSUMED RISK -CONTRIBUTORY NEGLIGENCE.

Where plaintiff, a few days prior to his injury, resulting from defendant's unguarded elevator well, called the attention of defendant's superintendent thereto, and he promised to remedy the defect, and did erect guards on the second floor, but nothing had been done to protect employés working around the elevator on the first floor at the time plaintiff was injured, whether plaintiff was negligent, and whether he assumed the risk, notwithstanding defendant's promise to repair, was for the jury.

[Ed. Note.--For other cases, see Master and Servant, Cent. Dig. §§ 1084, 1097; Dec. Dig. §§ 288, 289.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from Trial Term, New York County.

Action by Eugene E. Stokes against the Barber Asphalt Paving Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial granted.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGH. LIN, CLARKE, and HOUGHTON, JJ.

Arthur C. Train, for appellant.

Frederick W. Catlin, for respondent.

HOUGHTON, J. The defendant conducts a manufacturing estab lishment for the manufacture of asphalt paving blocks in the state of New Jersey. The plaintiff was in its employ as boss of a gang of men. Immediately outside its press house and in the open yard the defendant maintained an elevator, supported by upright posts, used for hoisting and lowering material to and from the second story. The elevator pit was only a few inches in depth, and only sufficient to permit the floor of the elevator to sink to the level of the ground, so that material might be wheeled upon it. The elevator shaft was open on all sides, both at the ground and at the second story, and was operated, not by an elevator man, but by any one who had occasion to use it.

At the time of the accident there was a law of the state of New Jersey, enacted for the purpose of regulating the age, employment, safety, help, and work hours of persons, employés, and operatives in factories, workshops, mills, and all places where the manufacture of goods of any kind was carried on, providing that the openings of all hoistways hatchways, elevators, and well holes upon every floor of any place coming within the provisions of the act should be protected by good and sufficient trapdoors of self-closing hatches and safety catches, or strong guard rails, at least three feet high, and should be kept closed and protected at all times except when in actual use.

On the ground floor of the press house there were very large outside doors so close to the elevator that it interfered with their being opened. The superintendent of defendant directed the plaintiff to remove the hinges upon them, and for the purpose of so doing the plaintiff procured a block and tackle, and lifted one of the doors from its hinges, and held it suspended for the purpose of unscrewing the nuts and driving out the bolts which held the hinges in place. While the door was thus suspended it formed an angle with the elevator shaft. The defendant's superintendent was present, assisting and directing the plaintiff, and in the course of the work of unscrewing the nuts it became necessary for the plaintiff to go into the angle formed by the door and the elevator shaft, in order to unscrew the nut of a particular bolt, and while he was engaged in that work, his body partially projecting over the elevator shaft, some one lowered the elevator, and it caught him on the hip and crushed him underneath, tearing off one of his legs at the knee joint.

A few days before the accident the plaintiff had called the attention of the superintendent of defendant to the unguarded condition of the elevator, and told him that he had seen a man several days before

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