SECOND DEPARTMENT, OCTOBER, 1904. [Vol. 97. William D. Gaillard, for the appellants. C. V. Nellany, for the respondent. WILLARD BARTLETT, J.: This action was brought upon the following check drawn by the chamberlain of the city of New York: "NEW YORK, Dec. 18, 1903. "Northfield Building vs. Barber. No. 172. "No. 1. "COLONIAL TRUST COMPANY. "In pursuance of an order in the above entitled cause, made by Supreme Court and bearing date the 5th day of Dec. 1903, Pay to the order of Ophelia B. Barber, as administratrix, & Edgar L. Benjamin & Theodore H. Spratt, administrators, or Thos. G. Prioleau, atty., seventy five and 14/100 dollars. "$75.14. E. R. L. GOULD, Payment of this instrument was refused by the defendant corporation upon the ground that it was not drawn in accordance with the terms of the order of the Supreme Court referred to in the instrument. An examination of that order shows such to have been the fact. The order directed the city chamberlain to make payment to "Ophelia B. Barber, as Administratrix, and Edgar L. Benjamin and Theodore H. Spratt, as Administrators of the goods, chattels and credits of Olin M. Barber, deceased, or Thomas G. Prioleau, their attorney." The check omits to characterize the first payees as administrators of Olin M. Barber, or any other particular person. It also omits to describe the second or alternate payee as their attorney. I think that these omissions justified the Colonial Trust Company in refusing to pay. Before making payment its officers were entitled to require that the check should be drawn in accordance with the order of the Supreme Court; indeed it was their duty not to pay in the absence of conformity with such order. Although it is unlikely that any harm would have been done by honoring this check in this particular instance, it might very well happen in some cases that the same person would be an administrator of different estates, and App. Div.] SECOND DEPARTMENT, OCTOBER, 1904. confusion would arise unless in checks of this character, based upon an order describing the payee as the administrator of a particular estate, that estate were indicated in the check itself. It seems to me that the defendant is deserving of praise rather than censure for insisting upon a strict compliance with the terms of the order before making payment out of a fund which it held as a depositary of court money. These views make it unnecessary to decide whether the Municipal Court was correct in holding that the check was a non-negotiable instrument, and, therefore, that the plaintiffs had failed to make out a case because they had not proved any consideration. The nonconformity of the check with the terms of the order was enough to entitle the defendant to prevail. It was error, however, to render judgment for the defendant on the merits. The defendant introduced no evidence, and the case was one in which the plaintiff had simply failed to make out a cause of action. The judgment should, therefore, be modified so as to direct the dismissal of the complaint, but not on the merits ; and as thus modified affirmed, without costs of this appeal to either party. All concurred. Judgment of the Municipal Court modified so as to direct the dismissal of the complaint, but not on the merits; and as thus modified affirmed, without costs of this appeal to either party. THOMAS PURCELL, Respondent, v. HOFFMAN HOUSE, Appellant, Impleaded with MICHAEL FOGARTY. Negligence-explosion from the use of a gasoline torch in repairing a very hot boiler the doctrine of res ipsa loquitur is inapplicable - the master is not liable if the torch be not defective, nor dangerous, but properly used — reversal upon an excep tion not argued. In an action brought to recover damages for personal injuries sustained by the plaintiff, a general utility man, employed in the defendant's hotel, in consequence of the explosion of a gasoline torch while he was at work inside a boiler making repairs thereto by direction of the defendant's chief engineer, it SECOND DEPARTMENT, OCTOBER, 1904. [Vol. 97. appeared that the temperature of the place in which the plaintiff was directed to work was 170 degrees Fahrenheit. The theory upon which the plaintiff sought to recover was that the torch was a dangerous implement to be used or handled in that particular place, and that the defendant was negligent in failing to advise the plaintiff of the danger involved in the doing of the work under the existing conditions. Held, that it was error for the court to refuse to charge the jury, at the request of the defendant, that "If they find that the torch was not defective, and was not dangerous, but properly used, they must find for the defendant." Semble, that the doctrine of res ipsa loquitur did not apply. The Appellate Division may reverse a judgment upon an exception taken at the trial but not discussed either orally or in the appellant's brief. APPEAL by the defendant, Hoffman House, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of June, 1902, upon the verdict of a jury for $2,500, and also from an order bearing date the 26th day of June, 1902, and entered in said clerk's office, denying the said defendant's motion for a new trial made upon the minutes. Pierre M. Brown, for the appellant. John F. Carew [Thomas F. Magner with him on the brief], for the respondent. WILLARD BARTLETT, J.: The plaintiff, an oiler and general utility man employed in the engine room of the defendant corporation at its hotel, the Hoffman House, in the city of New York, was injured by the explosion of a gasoline torch while at work inside a boiler, making repairs by direction of the defendant's chief engineer. The temperature of the place in which the plaintiff was thus directed to work was about 170 degrees Fahrenheit; the theory of the action is that the torch was a dangerous implement to be used or handled in that particular place, and that the defendant was negligent in failing to advise the plaintiff of the danger involved in the doing of the work under the existing conditions. In the course of the trial the learned counsel for the plaintiff stated to the court that he did not care to rest the case on the doctrine of res ipsa loquitur, and some proof was given as to the character and action of gasoline designed to show that the use of the App. Div.] SECOND DEPARTMENT, OCTOBER, 1904. torches under the circumstances was in fact dangerous. No evidence was adduced to show, however, that there had ever been similar explosions of these torches under like conditions, nor was there any expert testimony to the effect that such use was attended with danger; so that if the doctrine of res ipsa loquitur was inapplicable (and I am inclined to think it could not be invoked) it seems to me that there was hardly enough proof of the dangerous nature of the appliance or of any danger in employing it as it was employed to take the case to the jury. But whether this view be correct or not, I think there is an exception in the record which demands a reversal of this judgment. After the principal charge, counsel for the appellant asked the learned trial judge to instruct the jury as follows: "If they find that the torch was not defective, and was not dangerous, but properly used, they must find for the Hoffman House." To this request the court responded: "No; I will leave that to the jury." The exception to the refusal to give this instruction was well taken. It is impossible to see upon what ground the appellant could be held liable if there was no defect whatever in the appliance and it was in no respect a source of danger, and it was proper to use it in the place where it was used. These were the conditions assumed in the instruction requested, which the court refused to give, and I think this refusal may well have misled the jury. It is true, as pointed out in the brief of counsel for the respondent, that the exceptions taken in behalf of the Hoffman House are not discussed in the brief for the appellant, but this fact does not justify us in ignoring them. In the case of Lewis v. Long Island Railroad Co. (162 N. Y. 52) the judgments of this court and the court below were reversed in the Court of Appeals upon an exception in the record, which was never discussed or noticed, either orally or in the briefs of the counsel upon the argument here. All concurred; HIRSCHBERG, P. J., in result. Judgment and order reversed and new trial granted, costs to abide the event. SECOND DEPARTMENT, OCTOBER, 1904. [Vol. 97. JOHN GILLEN, Appellant, v. JAMES MCALLISTER and Others, Doing Business under the Firm Name of "MCALLISTER BROTHERS," Respondents. Negligence-injury from the lowering of merchandise upon a lighter · carelessness of a third person, allowed by a coemployee of the person injured to operate the engine the master is not liable — employment of one licensed to run a marine engine to operate a stationary one. In an action brought to recover damages for personal injuries, it appeared that the plaintiff was employed by the defendant upon a lighter which was being loaded with barrels of oil; that the barrels of oil were lowered from the dock to the lighter by means of a stationary engine operated by one Keifer, who was also in the employ of the defendant and who was licensed as a marine engineer; that Keifer allowed a barge captain to operate the engine and that, in consequence of the latter's negligence in lowering a load of barrels without receiving the signal to do so, and without warning, the load of barrels fell upon the plaintiff and crushed his leg. Held, that, assuming that the barge captain's negligence could be imputed to Keifer, the defendant would not be liable, in the absence of proof that Keifer was incompetent, as the plaintiff and Keifer were fellow-servants and a master is not responsible for injuries inflicted on a servant through the negligence of a coservant engaged in a common employment unless the negligent servant was incompetent and such incompetency was known or ought to have been known to the master; That the fact that Keifer was licensed only as a marine engineer did not tend to show that he was incompetent to operate a stationary engine. APPEAL by the plaintiff, John Gillen, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 10th day of December, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term. Frederick W. Sparks, for the appellant. George Gordon Battle and Frederick E. Fishel, for the respondents. WILLARD BARTLETT, J.: The complaint in this action alleges that the defendants were copartners, engaged in operating steam derricks in and about New York harbor; that on the 3d day of July, 1901, the plaintiff was |