tended those hired by him, working at his request, and under an agreement on his part to compensate them for their services; and employment by Shippey, as found by the referee, in this sense excludes the idea of employment by Cromwell."

The case above cited is a leading authority upon the question of construction, and the court say that:

In "the construction, both of statutes and contracts, the intent of the framers and parties is to be sought first of all, in the words and language employed, and if the words are free from ambiguity and doubt, and express plainly, clearly, and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, and, when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning." Tompkins v. Hunter, 149 N. Y. 117, 123, 43 N. E. 532.

The same principle is involved in the rule that words having a precise, well-settled meaning in the jurisprudence of a country have the same sense in its statutes, unless a different meaning is plainly intended (Perkins v. Smith, 116 N. Y. 441, 23 N. E. 21); and the suggestion that we may permit a jury to determine that a man who is the employé of one man may be the employé of another at the same moment, for the purpose of bringing him within the provisions of a statute in derogation of common law, cannot have my sanction, in the absence of controlling authority.

The Employers' Liability Act was enacted for the purpose of enlarging the liability of employers. It is entitled "An act to extend and regulate the liability of employers to make compensation for personal injuries suffered by employés," and it had relation to those and to those only who occupied the legal relation of employer and employé, as those words were understood and had been judicially construed by our courts. It created a new cause of action for employés (Rosin v. Lidgerwood Manufacturing Co., 89 App. Div. 245, 249, 86 N. Y. Supp. 49, approved in Gmaehle v. Rosenberg, 178 N. Y. 147, 70 N. E. 411), and we have no power or authority to extend the provisions of that act to any one who does not occupy the contractual relation of an employé.

In the case now under consideration it was conceded that the plaintiff was employed by Gates, that he was paid his wages by him, and that the defendant had no power to discharge him; but the jury was told that it might find that he was at the same time the employé of the defendant. That is, the jury were told in substance that they could create, after the accident, a relation which did not exist at the time of such accident; that they could do the impossible. This right has been denied to parties to contracts, but the new doctrine is that the jury may find a contractual relation to exist where it did not; where the parties had never consented to such a relation.

"Parties," say the court in Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13, 19, 62 N. E. 763, 764, 57 L. R. A. 318, 88 Am. St. Rep. 625, "cannot make a binding contract in violation of law or of public policy. They cannot in the same instrument agree that a thing exists and that it does not exist, or provide that one is the agent of the other and at the same time and with reference to the same subject that there is no relation of agency between them. They cannot bind themselves by agreeing that a loan, in fact void for usury,

is not usurious, or that a copartnership, which actually exists between them, does not exist. They cannot by agreement change the laws of nature, or of logic, or create relations, physical, legal, or moral, which cannot be created. In other words, they cannot accomplish the impossible by contract."

But we are asked to hold that a jury may, out of facts which clearly show that a man is an employé of Gates, make him out the employé of the defendant in this action at the same time and in connection with the same transaction, and I am not willing to do this. I am not willing to say that the defendant can, after the accident, be forced to accept the contractual relation of an employer, for the purpose of enlarging the rights of one whom he never voluntarily entered into such a contract with, and it seems to me that the cases of Vasligato v. Yellow Pine Co., 158 App. Div. 551, 143 N. Y. Supp. 817, and Hanatsek v. Wilson, 161 App. Div. 634, 146 N. Y. Supp. 1016, are conclusive upon the question of the relation of the parties to this action. Both these cases recognize that the plaintiff must be in contractual relations with the defendant in order to be an employé or servant, and I think they are controlling here.

It seems plain to me that the allegations of negligence are not such as to warrant a recovery under the Employers' Liability Act in any event. The most of the specified claims are mere common-law elements, and all of them are predicated upon the theory that a master must follow a common laborer around at all times and guard him against dangers which are open and obvious to every one, and which are incident to the very work which is undertaken. The plaintiff, with Gates' team, was employed in hauling dirt to fill up the side of a highway for the purpose of widening the traveled way, preparatory to paving. The "hole" which he alleges was merely the difference between the height of the highway and the surrounding territory, and the accident happened because he backed his team off of the compact earth which was being filled in. The common-law obligation of the defendant to furnish a reasonably safe place in which to perform the work was fulfilled in providing the highway, which was undergoing a permanent improvement, the condition of which was undergoing constant change by the very work in which the plaintiff was engaged, and the suggestion that the defendant was called upon to furnish a superintendent to look after the dumping of dirt in making this fill is absurd.

However, it is not necessary to deal with this phase of the case. The error of the learned trial court in its charge to the jury is so obvious. that this dissent may well rest upon that single proposition.

The judgment and order appealed from should be reversed.

(166 App. Div. 425)

SUMMO v. SNARE & TRIEST CO. et al.

(Supreme Court, Appellate Division, Second Department. March 5, 1915.) 1. MASTER AND SERVANT 278-ACTION FOR INJURY-SUFFICIENCY OF EVIDENCE-SCAFFOLD.

In an action for the death of a servant, brought under Labor Law (Consol. Laws, c. 31) § 18, requiring a master to furnish safe and proper scaffolding, evidence held sufficient to sustain a finding of the master's negligence in furnishing a scaffolding, the suspending rope of which was in a bad condition.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. 278.]

2. MASTER AND SERVANT 297-ACTION-VERDICT-CONFORMITY TO ISSUES. Where the complaint alleged that the rope which broke, causing injury, "was defective, and was old and worn out," and the defendant's proof was that it was not "old," but comparatively new, a verdict for plaintiff was secundum allegata, as the word "defective" sufficiently covered the situation.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1195– 1198; Dec. Dig. 297.]

3. MASTER AND SERVANT 277-ACTION FOR INJURY-SUFFICIENCY OF EVIDENCE RELATION OF PARTIES.

Evidence in an action for the death of a servant held to show that the contractor with a city, and not an alleged subcontractor for the labor, was decedent's master.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 953; Dec. Dig. 277.]

4. MASTER AND SERVANT 268-ACTION FOR INJURY-EVIDENCE-RELATION OF PARTIES.

Evidence as to the corporate organization of the subcontractor and its usual scope of business, which was exclusively confined to the jobs of the defendant contractor, who controlled its stock, was admissible upon the relation of the parties as affecting liability for injury to servant.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 910; Dec. Dig. 268.]

In an action for the death of a servant, brought by his administratrix and alleged widow, evidence held to sustain a finding that decedent and plaintiff had become lawful husband and wife by verbal agreement. [Ed. Note. For other cases, see Marriage, Cent. Dig. §§ 79-89; Dec. Dig. 50.]

Under the express provision of Laws 1895, c. 531, the previously born children of a couple, who after the removal of impediments became by agreement lawful husband and wife, were legitimatized.

[Ed. Note.-For other cases, see Bastards, Cent. Dig. §§ 14, 15; Dec. Dig. 12.]

7. TRIAL

146-MISTRIAL-WITHDRAWAL OF JUROR.

Where six of the jury remonstrated with the court as to the language used by defendant's counsel, and declared that they had been insulted thereby, counsel was entitled, on application, to a withdrawal of a juror and a mistrial.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 329; Dec. Dig. ~146.]

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

Appeal from Trial Term, Westchester County.

Action by Vitacrescenza Summo, as administratrix, etc., of Vito A. Summo, deceased, against the Snare & Triest Company and the Steel & Masonry Contracting Company. From a judgment for plaintiff, and from an order denying their motions for a new trial, defendants appeal. Judgment and order affirmed.

See, also, 154 App. Div. 888, 138 N. Y. Supp. 1145.

Argued before JENKS, P. J., and BURR, CARR, STAPLETON, and PUTNAM, JJ.

Hector M. Hitchings, of New York City, for appellants.

William F. Unger, of New York City (Leonard M. Wallstein, of New York City, on the brief), for respondent.

CARR, J. The plaintiff recovered a verdict for $5,000 for damages for the death of her decedent through the alleged negligence of both defendants. It was a "scaffold case," and the action was brought under the Labor Law.. One of the ropes sustaining a scaffold which was being hoisted into place gave way while the decedent was on the scaffold, and he fell to the ground and was killed.

There were three hotly contested issues at the trial, and this appeal is based upon all three, viz.: First, Was there actionable negligence on the part of either defendant? Second. Was the Snare & Triest Company the employer of the decedent? Third. Was the plaintiff the lawful wife of the decedent, and were her children (his also) his legitimate children?

The appeal was argued unusually well by both counsel. The briefs are exhaustive. I will discuss briefly the points of the appellants in their order:

[1] First. Was there proof of actionable negligence on the part of either defendant?

The accident happened on one of the towers of the Pelham Bay Bridge, which was erected under a contract between the city of New York and the Snare & Triest Company. A photograph of the bridge and its towers is to be found in the record. The decedent had been at work, on the day before the accident, cleaning spots of cement from the masonry surface of the tower. An ordinary painter's ladder, with boards over the rungs, was used as a scaffold. The decedent and a helper stood upon these boards. The scaffold was suspended along the side of the tower by a rope looped over its top. It was lowered to the ground at the end of the day's work. Early in the morning of the accident, the decedent and his helper took their places upon the scaffold, and other workmen began to hoist it up into place. At times one end of the scaffold would go up higher than the other during the hoisting process. But, according to the plaintiff's witnesses, the scaffold had reached its proper place and was entirely level when the accident happened.

The plaintiff produced several eyewitnesses, among them De Melia and Erdrono. These witnesses describe the whole occurrence. According to their story, the suspending rope broke, the decedent fell from the scaffold, and the scaffold in its fall struck the decedent as

he lay upon the ground. There is proof by a witness, for plaintiff, Farrara, that the rope was in bad condition on the day prior to the accident, and that notice of that fact was given to Hollan, the foreman on the job. The defendants' contention is that the rope was comparatively new and in good condition; that its break was due to the alleged fact that the decedent had accidentally cut it, on the day before the accident; that when the scaffold was being hoisted into place the men who were hoisting indulged in skylarking to frighten the decedent's helper, a young "greenhorn" Italian, by hoisting the scaffold ends irregularly; and that in so doing they allowed the rope to chafe against an iron bracket at the top of the tower, and so to sever the strands of the rope. The plaintiff's witnesses denied the skylarking. The defendant produced two eyewitnesses, Schilling and Kane. Both of these witnesses testified that there was skylarking during the raising of the scaffold. There was evidence for the jury that the rope was in a bad condition, and that the foreman, Hollan, had notice of it, which he denied. Hollan was not present at the time of the accident. There was a case for the jury under section 18 of the Labor Law, and I do not recommend any interference with the verdict.

[2] In the complaint it was alleged that the rope "was defective and was old and worn out." The appellants contend that, inasmuch as their proofs show that the rope was not "old," but comparatively new, the verdict and judgment are not secundum allegata. But I think the word "defective" covers the situation sufficiently.

[3, 4] Second. The next proposition to be examined is whether the Snare & Triest Company was shown to have been the decedent's employer.

The surface proof is that the defendant Steel & Masonry Contracting Company was the employer of the decedent. It paid him, and apparently directed him in work. The plaintiff, however, undertook to prove that the Steel & Masonry Company was but a paper corporation, organized and controlled by the Snare & Triest Company for the sole purpose of doing the laboring works on its jobs; it furnishing all materials, tools, and appliances to the Steel & Masonry Company and advancing all the moneys required by the pay rolls of the latter corporation. The Snare & Triest Company had a contract with the city of New York for the construction of this bridge. It claims to have subcontracted with the Steel & Masonry Company for the actual work of construction, so far only as to the doing of the labor was concerned. As before stated, it furnished all materials, all tools and appliances, and likewise all cash for pay rolls of the Steel & Masonry Company, and, in addition, it paid to the latter company every two months 5 per cent. of the net cost of the labor as shown by the pay rolls. The president and vice president of the Snare & Triest Company owned all the stock of the Steel & Masonry Company, except a few shares held by the officers of that corporation, apparently for the purpose of enabling them to hold their offices. There was a mass of evidence put in to show the modus operandi of both corporations, and their intimacy of business relations.

The court submitted to the jury the question whether the Steel & Masonry Company was really an independent subcontractor, or wheth