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Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.

David Tice, of Lockport, and Lexow, MacKellar & Wells, of New York City, for appellant.

S. Wallace Dempsey, of Lockport, and Stacy D. Behe, of Lockport, for respondent.

PER CURIAM. Defendant was duly appointed the trustee in bankruptcy of the United Engineering & Contracting Company, a corpora.tion. At the time it was declared a bankrupt it had a construction plant in the county of Niagara, and was then and prior thereto had been engaged in construction work on the Erie Canal under a contract it had with the state. As a part of its plant used in the construction work, to the title to which defendant succeeded on his appointment as trustee, were certain horses and mules. After defendant's appointment he during a period of some 14 months continued the business of the corporation in completing the contract, using its plant, including the animals above referred to, for that purpose. At various times during the period in which these animals were so used they were by defendant's employés, or agents, voluntarily or negligently permitted to escape upon plaintiff's premises and graze thereon. For these trespasses plaintiff has recovered his verdict in this action.

It does not appear that the defendant was authorized by any order of the bankruptcy court, as provided by section 2, subd. 5, of the Bankruptcy Act, to continue the business of the bankrupt. In the absence of proof of that fact, we think the defendant's liability, if any, for the damages so caused, was personal, and not in his representative capacity as trustee. Decillis v. Mascelli, as executrix, etc., 152 App. Div. 304, 136 N. Y. Supp. 573.

The judgment and order should be reversed, and a new trial granted, with costs to appellant to abide event.

(SS Misc. Rep. 473)

DRYDEN v. LATTIMER. (Supreme Court, Special Term, Erie County. December, 1914.) DISCOVERY (8 36*)— EZAMINATION OF DEFENDANT BEFORE TRIAL-RIGHT ro.

Where it was apparent that plaintiff did not honestly intend to use defendant's testimony to prove his cause of action, he should not be granted leave, in a suit for the alienation of his wife's affections, to examine defendant before trial, for by such examination he would cast upon defendant, who had denied under oath each circumstance charged as constituting plaintiff's grievance, the burden of proving his defense before any case had been made against him, and commit defendant to a position from which he could not change.

[Ed. Note.- For other cases, see Discovery, Cent. Dig. § 49; Dec. Dig. § 36.*] Action by John Dryden against George E. Lattimer. On motion to vacate an order to examine defendant before trial. Motion granted. *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

John M. Hull, of Buffalo, for the motion.
Harford T. Marshall, of New York City, opposed.

BROWN, J. It does not appear that the plaintiff honestly intends, in good faith, to use defendant's testimony to prove his cause of action. The plaintiff charges defendant with alienating the affections, etc., of plaintiff's wife. The defendant denies, under oath, each circumstance charged as constituting plaintiff's grievance. For the plaintiff to be permitted to examine defendant before trial, at length, and in general, thus committing defendant to a certain version of every detail in advance of the trial, with no knowledge of plaintiff's claim thereto, thus enabling plaintiff to fashion, shape, and stage his testimony, etc., on the trial to suit his notion as to how defendant's version should be combatted, is, in effect, placing a burden on the defendant of establishing his defense before there has been any case proved against him. The law casts no burden on the defendant until there shall be proved against him a. cause of action.

The plaintiff's contemplated procedure is so unfair, and gives him such an advantage, that it is believed it ought not, in furtherance of justice, to be granted in such an action as is here presented. It has been denied in actions for seduction (Wessel v. Schwarzler, 144 App. Div. 587, 129 N. Y. Supp. 521), and in an action for breach of promise of marriage (Id., 144 App. Div. 589, 129 N. Y. Supp. 522). While the plaintiff does state that he, in good faith, desires to examine the defendant to establish his cause of action, and intends to use the evidence thus obtained upon the trial for such purpose, yet, from the very nature of the case, it is apparent that the examination is sought for the purpose of cross-examining defendant before trial, and obtaining the advantage of knowing what defendant will testify to in defending himself upon the charge, without disclosing what plaintiff will claim the facts to be.

The motion to vacate order for defendant's examination is granted, with $10 costs.

SILVEY V. LEHIGH VALLEY R. CO.

(Supreme Court, Special Term, Erie County. November, 1914.) TRIAL (§ 210*)-INSTRUCTIONS/INTERESTED WITNESS.

Where plaintiff alone testified to his injuries, and many witnesses testified that he was not hurt, the refusal of an instruction that plaintiff's testimony could be disregarded, because of his interest, is prejudicial error.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 490-494, 501; Dec. Dig. $ 210.*]

Appeal from City Court of Buffalo.

Action by Raymond Silvey against the Lehigh Valley Railroad Company. From a judgment for plaintiff for $254.95, defendant appeals. Reversed and remanded.

*For other caseis see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Thomas R. Wheeler, of Buffalo, for appellant.
Lawrence J. Collins, of Buffalo, for respondent.

BROWN, J. The only witness who testified to any injury of plaintiff's person by the defendant was the plaintiff himself. Many witnesses testified that the plaintiff was not injured. A sharp queso tion of fact was thus raised. The defendant requested the trial court to charge the jury that the "plaintiff is an interested witness; that they may disregard his testimony entirely on account of such interest." This request was denied, and an exception taken by defendant. The question being so close, the interest of the plaintiff being so clear, the weight of his testimony being so vital, it was prejudicial error to virtually instruct the jury, just as they were about to consider this case, that they could not disregard plaintiff's testimony entirely on account of such interest. It was in effect saying that the interest of the plaintiff could not be a ground for disregarding his testimony; that, no matter how great the interest of the plaintiff might be, his testimony could not legally be disregarded solely because of such interest.' This error is fatal to plaintiff's judgment. Dean v. M. E. R. Co., 119 N. Y. 549, 23 N. E. 1054.

Judgment reversed, and new trial ordered in City Court November 30, 1914, 10 a. m. Costs to abide event.

(165 App. Div. 513)

KELLY V. ELMIRA REALTY CO. (Supreme Court, Appellate Division, Third Department. January 6, 1915.) MASTER AND SERVANT (8 252*)--ACTION FOR INJURY—NOTICE OF INJURY-SUF.

FICIENCY.

Under the Employers' Liability Act (Consol. Laws, c. 31, 88 200–204), a notice that plaintiff sustained personal injury, while in defendant's employ, from a defect in the ways, works, and machinery, which arose from, and had not been discovered and remedied owing to, the negligence of defendant, or persons in his service intrusted with the duty of seeing that they were in proper condition, and to the negligence of defendant or its servant intrusted with superintendence over its building, which injury was caused by a defective and dangerous structure around the top of an elevator shaft, upon and under which plaintiff was obliged to work while oiling the machinery, and that while working there and exercising due care the elevator moved and caused the injury, was sufficient to entitle plaintiff to the benefit of the act.

(Ed. Note.--For other cases, see Master and Servant, Cent. Dig. $ 806 ; Dec. Dig. § 252.*] Appeal from Trial Term, Chemung County.

Action by James Kelly against the Elmira Realty Company. From a judgment dismissing his complaint, plaintiff appeals. Reversed, and new trial granted.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

John F. Murtaugh, of Elmira, for appellant.

Richard H. Thurston, of Elmira, for respondent. *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

1

SMITH, P. J. The plaintiff was an employé of defendant. One of his duties was to oil the pulleys and machinery on an elevator which was run in connection with the defendant's office building. The upper gearing of this elevator was in a cupola, which was so small that the plaintiff was compelled to squeeze himself into it and to oil part of the machinery while having his hand between two pulley spokes. While he was thus oiling this part of the machine the elevator started and cut off the plaintiff's arm near the elbow. At the close of the plaintiff's case the court dismissed the complaint, holding that the notice served under the Employers' Liability Act was insufficient, and that at common law the plaintiff assumed the risk of the construction at the top of the elevator, of which he had knowledge, and that his injury was caused by the neglect of a coemployé. Upon the argument counsel admitted that if the notice under the Employers' Liability Act were insufficient to obtain for the plaintiff the benefit of that act the judgment was right. If, however, the notice was sufficient, so that the question of the assumption of risk could not be ruled as a matter of law, the jury might have found that the plaintiff's accident was caused by the negligence of the defendant in failing to provide a proper place in which the plaintiff was required to work in concurrence with the negligence of a fellow servant, the elevator boy, in running the elevator. In such case a nonsuit was erroneous. The notice of injury, as far as material, reads as follows:

I sustained personal injuries while in your employ, and in the exercise of due care and diligence, by reason of a defect in the ways, works, and machinery connected with and used in your business, which arose from, and had not been discovered or remedied owing to, the negligence of yourself, or of a person or persons in your service, intrusted by you with the duty of seeing that the ways, works, and machinery were in proper condition, and by reason of your negligence, or that of some person or persons in your service, intrusted with and exercising control and superintendence over said building with your authority or consent.

“Said injuries were caused by the defective, unsafe, and dangerous scaffolding and roof and structure around and over the cables and wheels at the top of the shaft of said elevator, around, upon, and under which I was ol·liged to work while oiling the machinery at the top of said shaft. While in such defective, unsafe, and dangerous place, and without any negligence on my part, the elevator was moved, and my arm cut off near the elbow."

We are of opinion that this notice is sufficient, both within the statute and within the decisions, to secure to the plaintiff the benefits of the act. Not only is there an alleged defect in the ways, works, and machinery, but the charged defect is more specifically pointed out by charging a defective structure around and over the cables and wheels at the top of the shaft of the elevator, and around which he was required to work in oiling the machinery at the top of said shaft, and that while in such defective structure plaintiff was injured by the moving of the elevator. It is this very place, thus claimed to have been defectively constructed, so as not to permit the plaintiff to do his work without putting his arm through the pulley wheel, of which the plaintiff complains, and which he makes the ground of his cause of action. There is no case in which the notice has been condemned by the courts where the notice has been as explicit as in the case at bar, and, moreover, it can hardly be suggested how the defendant. could in any way

have been misled by the notice, or have failed to glean therefrom both the place of the injury and its cause.

With this view of the sufficiency of the notice, it follows that the judgment should be reversed, and a new trial granted, with costs to appellant to abide the event.

Judgment reversed and new trial granted, with costs to appellant to abide event. All concur.

(165 App. Div. 546)

PEOPLE v. HAMILTON et al.

(Supreme Court, Appellate Division, Third Department. January 6, 1915.) 1. CONSPIRACY ($ 47*)-CIRCUMSTANTIAL EVIDENCE-SUFFICIENCY.

In a prosecution on Penal Law (Consol. Laws, C. 40) $ 580, for conspirary to procure a young girl to swear that she had had illicit relations with certain named men and that she was under 16 years of age, circumstantial evidence would warrant the finding that one of the defendants conspired with the other defendant.

[Ed. Note.-For other cases, see Conspiracy, Cent. Dig. $$ 105-107; Dec. Dig. $ 47.*] 2. CoxSPIRACY (823*)-PROSECUTION-CONVICTION.

One of two parties indicted for a conspiracy cannot be convicted, unless the other party was also guilty, so that it is necessary to prove the guilt of both to sustain an indictment.

[Ed. Yote.-For other cases, see Conspiracy, Cent. Dig. $$ 30–39; Dec.

Dig. 23.*) 3 CRIMISAL LAW (f 1172*)-INSTRUCTIONS-PROVINCE OF JURY-CIRCUMSTAN

TIAL EVIDENCE.

In a criminal prosecution, where the evidence was circumstantial only, an instruction, that if the testimony was true defendant would be guilty, was reversible error, since the inference of guilt from circumstantial evidence must always be drawn by the jury.

(Ed. Note.- For other cases, see Criminal Law, Cent. Dig. 88 3128, 315431:57, 3159–3163, 3169 ; Dec. Dig. $ 1172.* ]

Appeal from Warren County Court.

Frederick L. Hamilton and another were convicted of conspiracy, and they appeal. Reversed, and remitted for new trial.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Charles P. Coyle, of Glens Falls, for appellants.
James S. Kiley, Dist. Atty., of Glens Falls, for respondent.

SMITH, P. J. The defendants have been convicted of the crime of conspiracy under section 580 of the Penal Law of the state. The conspiracy charged was to procure a young girl to swear that she had had illicit relations with one Dr. James L. Fuller and William R. Waddell, and to swear that she was under 16 years of age. This conspiracy is charged to have been formed with a criminal intent to cheat and defraud the said Fuller and Waddell out of money and property; and it is further charged in pursuance of said conspiracy that they asked and endeavored to persuade one Ellen Dyer falsely to give such testimony. *For other cases see same topic & $ NUMEER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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