rock with the bar-if the rock is loose they put the bar in the crack and hit it with a hammer and knock the stones down;" that after he had gone through this operation that morning there was no evidence to him that there was any stone loose in the roof; that he did not know or believe that there was any stone loose in the roof before the accident; that he had four men assisting him that morning before the muckers were put to work. There was other evidence as to scaling and inspection.

The plaintiff's story was that at about half past 8 a small-sized rock fell down; that he jumped away, and called the foreman, and showed him what had happened; that the foreman came and looked at it, and told plaintiff, "I will have it fixed," and to go down and work; that he went on working, and that between 9 and 10 a little rock fell on his neck; that he tried to jump away and hollered, "Look out everybody!" but a big rock fell, rolled over, caught him on his left hip, knee, and feet, and caused the injuries complained of.

There is no doubt that the plaintiff was injured by a fall of rock from the roof. But no one corroborates his testimony as to an earlier fall of a small stone at half past 8, and the foreman positively denies it, as well as any conversation with plaintiff about it, or telling him he would fix it.

The evidence in regard to scaling is conclusive. Indeed, the learned court charged:

"If the scalers failed to discover the danger of the rock falling after they had been directed to do so by the foreman, or if they omitted to properly scale, then the injury to plaintiff resulted from the negligence of the scalers, and for that negligence defendant is not liable."

He also charged:

"Risks inherent in the work, and which remain after the master has used reasonable care, are necessary risks, for which the master is not responsible."

[2] The defendant asked the court to charge that the common-law rule of the safe place to work does not apply to the facts in this case, which was denied, and exception taken. He did charge:

"The master is also chargeable by law with the duty to provide an employé with a reasonably safe place in which to work."

"Where the place was prepared for the servant, when he began work, or where he began work, with an assurance of safety, then the rule does apply." "The duty to provide a safe place is one which the master cannot delegate to relieve himself from liability."

"To summarize: By the act of the foreman, by the failure to perform or give the plaintiff a safe place, was the defendant negligent? If he was, he is liable."

The defendant excepted to that part of the charge which left to the jury as a question of fact whether or not this plaintiff was given a safe place. We think that the doctrine of safe place was not applicable to the facts of this case (Citrone v. O'Rourke Engineering Const. Co., 188 N. Y. 339, 80 N. E. 1092, 19 L. R. A. [N. S.] 340; Henry v. Hudson & Manhattan R. R. Co., 201 N. Y. 140, 94 N. E. 623), and that it is distinguishable from our recent decision in Bitolio v. Bradley Contracting Co., 166 App. Div. 836, 152 N. Y. Supp. 307.

We think the error in the charge as to safe place to work requires reversal, and that the verdict was clearly against the weight of evidence as to negligence in scaling and inspection.

[3] We cannot, however, say there was no evidence to go to the jury, because plaintiff testified that his foreman had ordered him to work at the place where he was injured after having his attention called to the prior fall of the small stone and having promised to fix it. The judgment and order denying a new trial appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. Order filed.

INGRAHAM, P. J., and LAUGHLIN, J., concur. McLAUGHLIN, J., concurs in result. SCOTT, J., dissents.

MCGUINNESS v. RODGERS & HAGERTY, Inc. (No. 7452.)

(Supreme Court, Appellate Division, First Department.

MUNICIPAL CORPORATIONS
TRIBUTORY NEGLIGENCE.

July 9, 1915.) 819-INJURIES TO PEDESTRIAN-ACTIONS-CON

In an action for injury to a pedestrian crossing a street under which a subway was being laid, and which was obstructed by flat cars loaded with curbing stone, it appeared that plaintiff attempted to pass between a flat car and the curbing line, and was struck by a curbstone that had been lifted from the flat car and was held upright by defendant's workmen. Plaintiff had full knowledge of the situation, and had ample opportunity to pass around the workmen. Held, that plaintiff was guilty of contributory negligence, and that there was no actionable negligence on the part of defendant's employés.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1739-1743; Dec. Dig. 819.]

Appeal from Trial Term, New York County.

Action by Joseph McGuinness against Rodgers & Hagerty, Incorporated. From a judgment for plaintiff for $2,500, and an order denying new trial, defendant appeals. Reversed, and complaint dismissed. Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

Frank Verner Johnson, of New York City (Edward F. Lindsay, of New York City, of counsel), for appellant.

Martin T. Manton, of New York City (Vine H. Smith, of New York City, of counsel), for respondent.

CLARKE, J. The defendant for some time had been engaged in the construction of the subway in the Bronx. At the intersection of 144th street and Mott avenue the trench which had been dug had been re-covered and Mott avenue had been paved. The sidewalk at the southwest corner of the avenue at 144th street was decked over with a wooden platform, from which three steps led down into 144th street. There was a fence running east and west near the curb line of 144th street, which ended at the building line of Mott avenue, leaving an

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 154 N.Y.S.-25

open space for pedestrians desiring to cross the street beyond the easterly end of this fence. There was a building on this southwest corner, which had a drug store on the ground floor and above it were apartments to which the entrance was the second door from the corner of Mott avenue. The passageway, therefore, along 144th street was on the decked-over portion and between the fence and the building line, so that a person going east had the fence at his left hand. The plaintiff was the proprietor of a stationery and cigar store located on the north side of 144th street two doors east of Mott avenue. He was thoroughly familar with the work which had been and was being conducted at this place. There was a railroad, called a "dinky road,' on the surface of Mott avenue, used for the transportation of building materials used in construction.

On the 24th of November, 1913, the curb on 144th street had not been set. There were three flat cars on Mott avenue loaded with curbstones. The end car was standing partly north and partly south of the end of this fence. The plaintiff locked up his store and went to the entrance of the apartment beyond the drug store on the southwest corner to deliver some cigarettes to a customer. Having done so, he came out and started back on the southerly side, between the fence and the building, going east to go back to his store; the fence being at his left. At this time some of the curbstones had been unloaded from the car by laborers and were lying on the ground. The way this was done was to slide them from the car to two men on the ground, who received them, dropped the end on the ground, and then let them fall down. He testified that when he got to 144th street and Mott avenue he could not continue the way he was going because there was a line of flat cars blocking his way. He turned around and headed north to cross 144th street. He was about on the crosswalk on the westerly side of Mott avenue walking, proceeding north, and had left the curb about 4 feet. The end of the fence to his left as he turned to go north was about 6 or 8 feet. Between him and the fence as he turned he saw two workmen holding the curbstone on end. He passed in front of the men, who were to his left about 3 feet from where he was walking. As he got opposite to them, he happened to see out of the corner of his eye the stone starting to fall, and he jumped to his right. The stone fell on him and broke his right leg, the furthest from the stone. He said the men handling the stone were about 8 feet from the car, about 17 or 18 feet away from the spot where he first noticed the car. They were 10 feet from him when he first noticed them. These men, while he was traveling 10 feet, were standing still, the stone was end up, and they were holding it in that position. "I don't know as I expected them to do anything with it. I thought I had plenty of time to cross. I did not give it any thought as to what they were going to do with it, outside of the fact that I seen them there standing, holding it." When the stone fell, it fell towards the east, towards his store and the car on the track, so that when he was hit he was going between the stone and the car on the track, a space about 6 to 8 feet, and they were away from the end of the fence 6 or 8 feet. His witness May Twiggs testified that she was standing in front of the drug store, and that looking along at the end of this fence she

could see the flat cars on the track; that they were loaded with curbstone, and she saw men unloading them; that she saw those men carrying these stones and putting them in at the curb line of the sidewalk; that McGuinness, as he came along, passed close by her, so that if he looked ahead he could see all these things that she saw. The plaintiff's other witness, Losee, also testified that the plaintiff was walking at the time of the accident; but he had signed and sworn to a written statement on December 12, 1913, in which he said:

"I saw McGuinness come running from behind the fence and start across Mott avenue diagonally in the direction of the northeast corner of Mott avenue and 144th street. He ran into the curbstone when it was falling, and came so swiftly that the accident was unavoidable."

The testimony of the defendant, given by three witnesses, is that he was running diagonally or cutting across towards his own place, which was near the northeast corner, and that there was nothing to obstruct his way if he had gone straight north, as he claimed that he did. The plaintiff swore himself that he had locked the door of his store at that time and wanted to get back there as quickly as he could.

It seems to me that, knowing the situation thoroughly, that the process of construction was going on, that the curb had not been laid, but that the stones were being unloaded for that purpose, when he undertook to pass in the narrow space between the men whom he saw holding the curbstone on end and the car, which must be the fact, for he said the stone fell towards the east, which corroborates the testimony of the defendant that he was going diagonally across, that he was guilty of contributory negligence, and that there was no actionable negligence on the part of the employés of the defendant. The weight of evidence is that he was running; but, assuming that he was walking, he either paid no attention or thrust himself into this narrow space between the stone and the car when there was plenty of room, as he himself testified, on the other side.

I think the motion to dismiss should have been granted. The finding of the want of contributory negligence and of the actionable negligence of the defendant should be reversed.

The judgment and the order appealed from should be reversed, with costs to the appellant, and the complaint dismissed, with costs. All concur.

GOTTEBERG v. PARK TERRACE CO. (No. 7217.) (Supreme Court, Appellate Division, First Department.

VENDOR AND PURCHASER

July 9, 1915.)

110-RESCISSION-FALSE REPRESENTATIONS. An ignorant servant girl was induced to enter into a contract for the purchase of real estate payable in installments. To induce the sale defendant's salesman entered into a written agreement binding himself individually to make a resale of the property at 10 per cent. profit one year from date if desired. Held, that rescission on the ground of false and fraudulent representations that defendant would resell the property

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

if plaintiff should so desire was not warranted, but any remedy of plaintiff was by action for breach of the contract.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 196, 197; Dec. Dig. 110.]

Ingraham, P. J., dissenting.

Appeal from Special Term, New York County.

Action by Jettine Gotteberg against the Park Terrace Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Argued before INGRAHAM, P. J., and MCLAUGHLIN, CLARKE, SCOTT, and HOTCHKISS, JJ.

H. Schieffelin Sayers, of New York City, for appellant.
Julian M. Wright, of New York City, for respondent.

MCLAUGHLIN, J. Action in equity to cancel two contracts for the purchase of real estate and to recover the sum of $785 paid thereon. On February 21, 1911, the plaintiff entered into a written contract with the defendant, by the terms of which she agreed to buy and defendant to sell two lots of land in the city of New York, payments therefor to be made in stipulated monthly installments, and title to remain in the vendor until the full purchase price was paid. The parties, on the 2d of November, 1911, entered into a similar contract for the purchase of another lot. At the time this action was commenced the plaintiff, pursuant to these contracts, had paid the defendant $785. The ground upon which she seeks to have the contracts set aside, as alleged in the complaint, is that defendant's duly authorized agent"falsely and fraudulently represented to plaintiff that as part of said agreement [the same allegation being made as to each contract] defendant was bound and obligated to plaintiff that, should plaintiff desire to cancel said purchase and resell the property at any time after one year from the execution of the same, then defendant would sell said parcel of property on behalf of plaintiff at a profit to plaintiff of at least 10 per cent., and that plaintiff I could not in any case lose any of the money she might pay to defendant on account of said purchase."

The defendant was represented in the transaction with the plaintiff by one Skold, who was in the employ of John W. Paris & Son, the defendant's sales agent for the lots in question. In support of her alleged claim the plaintiff introduced in evidence the following memorandum, which was given her by Skold upon the execution of the first

contract:

"John W. Paris & Sons, Inc.

"Feb. 21/11.

"It is agreed and understood that, should Miss Jettine Gotteberg, the purchaser of lots 1666 and 1667, Park Terrace property, Flushing, L. I., desire to sell the same one year from this date, the lots will be sold by me at a profit of at least 10 per cent.

"40 days' notice in such case.

"Edmund Skold,

"C/o John W. Paris & Son."

No such memorandum was given upon the execution of the second contract, but the plaintiff testified that on that occasion Skold told her

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes