App. Div.] SECOND DEPARTMENT, OCTOBER, 1904. than Gilbert either knew of the falsity of the representations charged or made them recklessly not caring whether they were true or false, the liability of such defendants must be limited to the making of compensation for the actual damages resulting from their misconduct, and cannot be extended to the liability which is enforced only in an action for actual and intentional fraud and deceit. But it is said that the decision of this court in Squiers v. Thompson (73 App. Div. 552) is decisive of the controversy in the plaintiff's favor. I do not so understand it. That action was brought upon a complaint in the form of the one at bar, and was decided upon demurrer, the fact of intentional fraud being admitted as alleged for the purposes of the demurrer. There were three grounds of demurrer which were considered in the order named: First, that the complaint could not be sustained as stating a cause of action in equity; second, that there was a defect of parties defendant in that the receivers of the association were not joined; and, third, that there was an improper joinder of causes of action. The writer of the opinion, Presiding Justice GOODRICH, concluded that the interlocutory judgment overruling the defendants' demurrer should be sustained upon all the grounds, saying (p. 558): "We are clearly of opinion that the plaintiff is entitled to equitable relief; that the receivers are not necessary parties to the action; that there has been no improper joinder of causes of action," etc. The other members of the court concurred on the first ground only, and the utmost extent of the decision, if it goes that far, is that the action as stated was good in equity. The defendants saw fit to stand on their demurrer, refusing to avail themselves of the privilege accorded of pleading to the facts, and judgment upon the demurrer admitting the facts as stated in the complaint, including the charge of an intent to defraud, was finally entered upon their default, and was affirmed by the Court of Appeals. (Squiers v. Thompson, 172 N. Y. 652.) It is true that in the opinion of this court it is stated (p. 556) that "in equity the fraudulent intent of the defendants need not be proven, while at law such an intent must be established;" but that assertion was not necessary to the decision, and while true as a general proposition cannot be applied without qualification to the plaintiff's peculiar form of action. In any event the SECOND DEPARTMENT, OCTOBER, 1904. [Vol. 97. decision in that case cannot be regarded as authorizing a recovery upon the facts as developed on the trial herein beyond the measure of success which the plaintiff has attained. The judgment should be affirmed, with costs. All concurred. Judgment affirmed, with costs. SNOWDEN J. BELT, Respondent, v. HENRY DU BOIS' SONS COMPANY, Appellant. Negligence — injury from the collision of a tugboat with a piledriver — when the captain of the tugboat and the injured person, employed on the piledriver, are fellow-servants- duty of the owner of the tugboat and piledriver in the premises – what duty may and what may not be delegated to an employee, how determined. A corporation was the owner of a piledriver, dredge and tugboat, and the crews of these vessels were in its employ. The tugboat was used in moving the piledriver and dredge from place to place and in transporting supplies and materials to them. On one occasion the captain of the tugboat, without having given any warning of its approach, propelled the tugboat against the piledriver and dredge and thereby injured an employee of the corporation, who was engaged at the time in placing a fender between the piledriver and the dredge. Held, that the captain of the tugboat and the injured employee were fellowservants, and that the corporation was consequently not liable to the injured employee; That the corporation discharged its duty toward the injured employee when it furnished a competent captain of the tugboat and supplied him with the means and appliances of safe navigation, and that it was no part of the corporation's duty to blow the whistle or to give any other warning of the approach of the tug; That persons engaged in the prosecution of a common enterprise, under the employment of a common master, are to be deemed fellow-servants with respect to all acts excepting those which the law imposes upon the master as his specific duties; That when the specific act or omission which caused the injury is not the personal act or omission of the master himself, the question whether it can be imputed to him as occurring in the discharge of his duty as master is always dependent upon a determination of its nature and character. APPEAL by the defendant, Henry Du Bois' Sons Company, from a judgment of the Supreme Court in favor of the plaintiff, entered App. Div.] SECOND DEPARTMENT, OCTOBER, 1904. in the office of the clerk of the county of Kings on the 23d day of November, 1903, upon the verdict of a jury for $500, and also from an order bearing date the 20th day of November, 1903, and entered in said clerk's office, denying the defendant's motion for a new trial made upon the minutes. Joseph Fettretch, for the appellant. Stanislaus N. Tuckman, for the respondent. HIRSCHBERG, P. J. : It would seem from the evidence that the defendant, a domestic corporation, is engaged in the dredging and piledriving business. The plaintiff was injured while working in its employ at one of the piers at Hoboken. He was engaged at the time in placing a fender between a piledriver and a dredge belonging to the defendant, and was crushed between them as he claims by a tug coming up against either the piledriver or the dredge negligently and without warning. The tug also belonged to the defendant and was a part of the dredging outfit. It was used for the purpose of towing the piledriver and dredge from place to place, and for bringing to them lumber, coal, water, food and other material as might be required in the conduct of the business. The negligence charged against the defendant is that of the captain of the tug in coming up against the other vessels on the occasion in question without giving a signal of his approach, and if he is to be regarded as a fellow-servant of the plaintiff it is manifest that the judgment cannot be sustained. The question of furnishing a safe place to work in is not presented. The place where the plaintiff was required to work was reasonably safe in itself. The dangerous condition was occasioned by the manner in which the work was being done at the time, viz., in the performance of that detail of the work which consisted in bringing necessary material and supplies to the men engaged upon the dredge and piledriver. Although the work of the captain of the tugboat was different in its nature and character from that performed by the men upon the other vessels, the labor of all united in the prosecution of a common enterprise under the employment of a common master, and they are accordingly to be deemed fellowservants with respect to all acts excepting those which the law SECOND DEPARTMENT, OCTOBER, 1904. [Vol. 97. imposes upon the master as his specific duties. It was early held by the Court of Appeals in Coon v. Syracuse & Utica Railroad Co. (5 N. Y. 492) that the rule absolving an employer from liability to one servant for the negligence of another was applicable notwithstanding the employments of the servants were separate and distinct, provided both were necessary to the prosecution of a common enterprise. The same doctrine was applied in the decision of the case of Boldt v. New York Central Railroad Company (18 N. Y. 432), a case which cannot be distinguished in principle from the one at bar. There a laborer was employed to gravel a new and unfinished railroad track upon which no train had ever been run, and while walking upon it towards the place where he was to commence his day's work he was overtaken and injured by a passenger train using the new track in consequence of a temporary obstruction upon the old one. The court said (p. 433): "The plaintiff who suf fered and the persons who caused the injury were in the service of one employer the railroad company - the plaintiff in preparing a track and the others in running trains, but both in the common enterprise of maintaining and operating the railroad." It was accordingly held that there could be no recovery. For other cases illustrating the same general principle applied where the nature of the work of the various servants or agents is distinct and separable, see Hofnagle v. N. Y. C. & H. R. R. R. Co. (55 N. Y. 608); McCosker v. Long Island Railroad Co. (84 id. 77); Slater v. Jewett (85 id. 61); Brick v. Rochester, N. Y. & P. R. R. Co. (98 id. 211); Stringham v. Hilton (111 id. 188); Ford v. Lake Shore & Michigan Southern Railway Company (117 id. 638); Arnold v. D. & H. C. Co. (125 id. 15); Corcoran v. Delaware, Lackawanna & Western Railroad Company (126 id. 673); Soderman v. Kemp (145 id. 427); Mele v. Delaware & Hudson Canal Company (39 N. Y. St. Repr. 153); Niles v. N. Y. C. & H. R. R. R. Co. (14 App. Div. 58); Corcoran v. New York, N. H. & H. R. R. Co. (46 id. 201); Kennedy v. Allentown Foundry (49 id. 78); Ward v. Naughton (74 id. 68.) The case of Tendrup v. John Stephenson Co. (51 Hun, 462), cited by the learned counsel for the respondent, is not in point. In that case it was held by a divided court that the servant who did the mischief which caused the accident occupied the place of the App. Div.] defendant at the time, and was engaged in the work of the defendant and not in that of a servant. It cannot be successfully asserted in this case that it was any part of the defendant's duty to blow the whistle or give any other warning of the approach of the tug. Its duty was discharged when it employed a competent captain and furnished him with the means and appliances of safe navigation, and when the specific act or omission which caused the injury is not the personal act or omission of the master himself, the question whether it can be imputed to him as occurring in the discharge of his duty as master is always dependent upon a determination of its nature and character. (Crispin v. Babbitt, 81 N. Y. 516; Loughlin v. State of New York, 105 id. 159.) The judgment and order should be reversed. All concurred. Judgment and order reversed and new trial granted, costs to abide the event. CHARLES LOFSTEN, Respondent, v. THE BROOKLYN HEIGHTS RAILROAD COMPANY, Appellant. Negligence-injury to a pedestrian at a street crossing from a street car-failure of the person injured to look after leaving the sidewalk. A person desiring to cross the tracks of a street railway company at a street intersection, before leaving the curbstone, which was sixteen feet four and a half inches from the center of the street railway tracks, looked both ways for approaching cars and saw one, approaching slowly, which was then fifty feet distant. He did not look again, but walked rapidly from the curbstone towards the car track, where he was struck and injured by the car which he had previously seen. He was in easy view of the motorman during the time that he was passing from the curb to the track. Held, that the failure of the injured person to look for the car after leaving the curbstone did not constitute contributory negligence as a matter of law, but that the question whether it constituted contributory negligence was a question of fact to be determined by a jury. WOODWARD and JENKS, JJ., dissented. APPEAL by the defendant, The Brooklyn Heights Railroad Company, 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 |