App. Div.] SECOND DEPARTMENT, OCTOBER, 1904. recording the deeds, which clearly both parties to this suit intended and had agreed should be null and void. The mere existence of the prior deeds did not invalidate the latest one; the latter was executed as a substitute for and to take the place of the former; and I know no rule of law which prohibits such a transaction among adults in the absence of adverse rights, claims or interests. However that may be, there certainly can be no question but that upon the recording and delivery of her deed the plaintiff acquired a good equitable title to the property as against her husband. The action is in equity and the right to judgment depends only upon a determination of the equitable title. The plaintiff would have acquired such title upon the mere oral promise of the defendant to give her the property, followed by the delivery of possession and the making by her of substantial improvements such as she unquestionably did make. Her possession in such circumstances even without a deed could not be afterwards disturbed by him, and a court of equity would compel the execution and delivery to her of a promised conveyance. (Lobdell v. Lobdell, 36 N. Y. 327; Freeman v. Freeman, 43 id. 34; Young v. Overbaugh, 145 id. 158.) Her position cannot be weakened as the owner of the equitable title because of the deed which she has. Her equitable title was, in fact, acquired from the defendant notwithstanding that the deed to her was executed by another, and the circumstances of the case, unqualified and uncontradicted, require that the deeds by which he has since sought to obtain title and the right to possession should be canceled and annulled. The judgment should be reversed and a new trial granted, costs to abide the final award of costs. All concurred. Judgment reversed and new trial granted, costs to abide the final award of costs. SECOND DEPARTMENT, OCTOBER, 1904. [Vol. 97. PIETRO GANGUZZA, Appellant, v. ANCHOR LINE (HENDERSON BROTHERS, LIMITED), Respondent. Negligence-injury to a passenger, standing in a doorway opening upon a hoistway in a vessel, through the breaking of a rope used in such hoistway—the owner of the vessel is bound only to exercise reasonable, not the utmost, care. In an action brought to recover damages for personal injuries sustained by the plaintiff, a steerage passenger on one of the defendant's steamships, who, while standing in a doorway leading from the steerage quarters to a portion of the ship supplied for the exclusive use of the crew, was injured by the parting of a wire rope used in hoisting ashes from the hold of the vessel, the court may properly refuse to charge "that the defendant being a common carrier of passengers for hire, was bound to exercise the utmost human care, vigilance and foresight to protect the plaintiff, a passenger, from any injury from the machinery and appliances of the vessel, and from the management of the same." The proposition embraced in the quotation is only correct when applied to such of the machinery and appliances as constitute the operative means of transportation, wherein a defective construction or negligence in management would be likely to occasion danger to the passengers. In the case at bar the defendant was only bound to exercise reasonable care in view of the dangers to be apprehended. APPEAL by the plaintiff, Pietro Ganguzza, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 24th day of November, 1903, upon the verdict of a jury, and also from an order entered in said clerk's office on the 30th day of October, 1903, denying the plaintiff's motion for a new trial made upon the minutes. Louis 0. Van Doren, for the appellant. Henry G. Ward [Everett Masten with him on the brief], for the respondent. HIRSCHBERG, P. J.: The plaintiff, while a passenger in the steerage of one of the defendant's ocean steamships, was injured by the parting of a wire rope which was used in hoisting ashes from the hold to dump into the sea. The place where the process of hoisting the ashes was carried on is known as the stokehole fidley, supplied solely for the use of the crew, inclosed within iron walls, with two doorways left open App. Div.] SECOND DEPARTMENT, OCTOBER, 1904. in order to supply air to the firemen in the stokehole. A passageway leading past one of the doorways was accessible to the steerage passengers, and the plaintiff was standing there leaning against the doorjamb when the accident occurred, and was watching the hoisting of the ashes. The case was submitted to the jury in a charge which enjoined upon the defendant the exercise of only ordinary care as the measure of its duty, and an exception to a refusal to charge "that the defendant being a common carrier of passengers for hire, was bound to exercise the utmost human care, vigilance and foresight to protect the plaintiff, a passenger, from any injury from the machinery and appliances of the vessel, and from the management of the same," presents the only question for review. * * * The hoisting apparatus appears to have been of the kind commonly employed for the purpose and there is nothing in the case tending to indicate that injury to the passengers was to have been reasonably apprehended from its use. While the proposition which the learned trial justice refused to charge is a correct one in the abstract, it is only so when applied to such of the machinery and appliances as constitute the operative means of transportation, wherein a defective construction or negligence in management would be likely to occasion danger to the passengers. It is not easy to apply the rule in all cases with accuracy, but the question generally is, as was said by Mr. Justice JENKS in Conway v. Brooklyn Heights R. R. Co. (82 App. Div. 516, 518), "whether the accident resulted from a situation from which grave injury might have been expected, so as to impose the highest obligation short of insurance." In view of the simple nature of the work which was in progress, the secluded place in which it was carried on, and the extreme unlikelihood of injury resulting to a passenger who might chance to loiter at the doorway from anything to be naturally apprehended in the usual conduct of the work, I am of the opinion that the situation presented was such as to require only the exercise of reasonable care and not a display of the utmost human vigilance. The duty of exercising the utmost possible care in the use of machinery by a common carrier was held in Palmer v. Penn. Co. (111 N. Y. 488), as per the head note, to apply only to "such appliances as would be likely to occasion great danger and loss of life to the travelAPP. DIV.-VOL. XCVII. 23 SECOND DEPARTMENT, OCTOBER, 1904. [Vol. 97. ing public if defects existed therein." In Palmer v. D. & H. C. Co. (120 N. Y. 170) the court said (p. 176): "The same degree of care and watchfulness are not alike requisite to all of the various portions of the machinery and appliances. The apparent necessity for frequency of examination, is somewhat dependent upon the liability to impairment and the consequences which may be apprehended as the result of defective condition." Referring to the cases in which transportation companies were held only to the lesser degree of care, the ground of distinction was pointed out at page 177 as follows: "It may be observed that those so cited do not relate to the machinery or the appliances and apparatus, which constitute and sustain the operative means of conveyance and transportation, but to other structures provided by the carrier and the manner of their construction, and to which a less degree of care is applicable. Such are the cases of Hayes v. F. S. S. & G. S. F. R. R. Co. (97 N. Y. 259); Laflin v. B. & S. W. R. R. Co. (106 id. 136); Kelly v. N. Y. & S. B. R. Co. (109 id. 44); Palmer v. Penn. Co. (111 id. 488); Kelly v. M. R. Co. (112 id. 443).” The defendant in this case was bound to exercise reasonable care in view of the dangers to be apprehended, and the reason which underlies the rule of extreme care has no application to the circumstances of the accident. That reason was well explained by Judge PECKHAM in Kelly v. M. R. Co. (112 N. Y. 443, 450) as follows: The rule in relation to the liability of railroad corporations, for injuries sustained by passengers under such circumstances as this case develops, differs from that which obtains in the case of an injury to a passenger while he is being carried over the road of the corporation and where the injury occurs from a defect in the roadbed, or machinery or in the construction of the cars, or where it results from a defect in any of the appliances such as would be likely to occasion great danger and loss of life to those traveling on the road. The rule in the latter case requires from the carrier of passengers the exercise of the utmost care, so far as human skill and foresight can go, for the reason that a neglect of duty in such a case is likely to result in great bodily harm and sometimes death to those who are compelled to use that means of conveyance. As the result of the least negligence may be of so fatal a nature, the duty of vigilance, on the part of the carrier, requires the exercise of App. Div.] SECOND DEPARTMENT, OCTOBER, 1904. that amount of care and skill in order to prevent accident. (Hegeman v. Western R. R. Co., 13 N. Y. 9.) But in the approaches to the cars, such as platforms, halls, stairways and the like, a less degree of care is required, and for the reason that the consequences of a neglect of the highest skill and care which human foresight can attain to are naturally of a much less serious nature. The rule in such cases is that the carrier is bound simply to exercise ordinary care in view of the dangers to be apprehended.” The judgment and order should be affirmed. Judgment and order unanimously affirmed, with costs. CONRAD BOGENDOERFER, Plaintiff, v. MARX JACOBS, Defendant. Negligence — injury from the fall of a freight elevator in common use by several tenants-proof that the defect was in the original construction or was caused by use - duty of care and inspection imposed on the owner. In an action brought to recover damages for personal injuries, it appeared that the defendant was the owner of a building, which was provided with a freight elevator furnished for the common use of all the tenants; that while the plaintiff, a carpenter, employed by the tenant of the top floor of the building, was engaged in placing some lumber upon the elevator, it suddenly, when not overloaded nor in actual operation, fell and that one of the counterweights broke from its cable and struck the plaintiff, inflicting serious injuries upon him. The evidence negatived the idea that the accident resulted from any negligent or improper action in the actual operation of the elevator. It also appeared that during a period of about three years immediately preceding the accident, the elevator had never been inspected by any one competent to determine its condition. Held, that the evidence would warrant the inference that the fall of the elevator was occasioned by some defect which existed in the elevator as originally constructed or which was created by time and use; That if this inference was adopted by the jury it would necessarily point to neg ligence on the part of the defendant, who was chargeable with the duty of exercising such reasonable care and inspection as would tend to a timely discovery and remedy of the defect; That it was, therefore, improper for the court to dismiss the plaintiff's complaint MOTION by the plaintiff, Conrad Bogendoerfer, for a new trial upon a case containing exceptions, ordered to be heard at the |