(183 N.Y.S.)

PER CURIAM. [1-3] In the interests of justice a new trial should be had. Counsel, in examining a juror, who was in the insurance business, remarked, "Then you issue policies such as this thing here," which suggested that defendants had insurance protection. Although the General Highway Traffic Law (Laws 1917, c. 655; Consol. Laws, c. 70) does not apply in the city of New York (section 3), the court charged its requirements that, in "turning a corner of intersecting streets, a vehicle shall be driven with extreme caution," which goes beyond the law applicable to this street corner. Although no exception was taken to this charge, such error affected the result.

Judgment and order reversed, and a new trial granted, with costs to abide the event.

(192 App. Div. 846)

In re PERKETT'S WILL.

(Supreme Court, Appellate Division, Third Department. July 8, 1920.) Wills 324 (4)—Credibility of interested subscribing witnesses and question of execution for jury.

Where both subscribing witnesses were pecuniarily interested in sustaining the will of an aged testator, the credibility of such witnesses on the question of due execution was for the jury.

Appeal from Surrogate's Court, Essex County.

In the matter of the probate of the will of Peter Perkett, deceased, at the instance of Enos Martin, Jr., as executor, contested by Mary Jane Perkett. From a decree admitting the will to probate, contestant appeals. Reversed, and new trial granted.

Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.

Horatio W. Thomas, of Keeseville, for appellant.

S. E. Maders, of Keeseville (J. H. Booth, of Plattsburgh, of counsel), for respondent.

COCHRANE, J. The appellant, Mary Jane Perkett, is the widow of the deceased. She filed objections to the probate of his will, alleging that the will was not executed with the statutory formalities, that he was incompetent, and that he was unduly influenced. A jury trial on the issues thus formed was duly demanded. The surrogate directed the jury to render a verdict unfavorable to the appellant on every ground specified by her in her objections. She appeals, urging on this appeal that the evidence was such as to require submission to the jury of the question as to whether the will was executed with proper formalities, and also the question as to whether it was the product of undue influence. In my view of the case it will only be necessary to consider the first question.

The will was executed April 27, 1919, and the testator died within 3 months thereafter. His age was 77 years. He could not read or write, except his name. He was childless. In the latter years of his life a serious estrangement existed between him and his wife, this

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appellant. When he died, she had an action pending against him for separation, in which he had interposed a counterclaim, demanding a divorce. The will disposes of both real and personal property, but not very much of either; the testator being a man of moderate means. As far as it was possible for him to do so, he excluded his wife from all participation in his estate. This was not unnatural, in view of the circumstances. The entire estate was given to collateral relatives. Within a year the testator made three wills, including the one in question, the provisions of which did not materially vary. The first will had been destroyed. The second was produced on the trial of this proceeding.

One of the subscribing witnesses to the will in question was the attorney who drew the will. He was, at the time of the death of the testator, also his attorney in the action pending between him and his wife, and in another action brought by the testator for the alienation of the affections of his wife. The witness had personally instituted criminal proceedings against the appellant. He was the attorney in this proceeding for the proponent of the will, the proposed executor therein named, and if the will is sustained it is a reasonable inference that he expects to perform the legal work in the settlement of the estate. The other subscribing witness was a niece of the testator, and is the mother of three of the legatees named in the will and the daughter of another legatee. The testator, at the time of his death and for some time prior thereto, resided in her family, which included herself and her husband and said four legatees. Both subscribing witnesses have claims against the estate of the deceased in substantial amounts and unliquidated in their nature, the one for legal services and the other for boarding and caring for the deceased. Quite naturally payment of those claims may be facilitated and expedited by a friendly executor, rather than by a hostile administrator. It is no reflection on either of these subscribing witnesses to say that the circumstances were such as to make the credibility of their testimony a proper subject for the consideration of a jury. We are only applying to an existing state of facts the law as it has heretofore been declared. In Matter of Kindberg, 207 N. Y. 220, 226, 100 N. E. 789, one of the subscribing witnesses was a clerk in the office of the lawyer who drew the will, by which he was largely benefited, and the other subscribing witness was the husband of a legatee under the will, and it was held that the credibility of each witness was a matter for the consideration of a jury. It is very clear that in the present case both the subscribing witnesses are pecuniarily interested in sustaining the will. Furthermore, the fact that the attorney was an active participant in the legal controversies between the testator and his wife, which had naturally resulted in considerable bitterness, and the fact that the other subscribing witness, as a relative of the testator and the person with whom he resided, not unnaturally may have possessed, perhaps unconsciously, a bias in his favor and against the appellant. accentuate the necessity of the submission to the jury of their credibility. It has been frequently held that the credibility of witnesses. must be considered by a jury in cases where the interest of the wit

(183 N.Y.S.)

nesses was not so pronounced as in this case. See authorities cited in Matter of Kindberg, supra, 207 N. Y. at page 227, 100 N. E. 790.

It is true there were two previous wills substantially the same as the one offered for probate, and it is urged that whatever interest these witnesses may have in the result of this litigation would be protected by the former wills, if the last one should be rejected. That does not necessarily follow. The execution of those wills would then be open to attack. The same attorney was a subscribing witness to all three wills. The first will has been destroyed, and he has forgotten the other subscribing witness thereto. The other subscribing witness to the second will was a witness herein, and testified as to its execution. His recollection failed on the important point of the declaration of such will by the testator. The probate of that will was not in issue in this proceeding, but, if it had been, the proponent of such will would have been obliged to rely on the testimony of the attorney to prove the declaration of the will by the testator. The most that can be said about the existence of those former wills, as bearing on this question, is that they perhaps diminish the importance of the credibility of the subscribing witnesses to the will in question, but do not destroy the importance of that question.

It follows that the decree should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

JEDRLINICH v. JAMES SHEWAN & SONS, Inc., et al.

(Supreme Court, Appellate Division, Third Department. July 8, 1920.) Master and servant 388-Compensation claimant held not dependent on her son.

A mother, receiving $5 a week for boarding her 17 year old son, who earned $9 a week and who was given money for clothes and amusements by his father, earning $30 a week, held not dependent on the boy, so as to entitle her to compensation for his death.

Appeal from State Industrial Commission.

Proceeding under the Workmen's Compensation Act (Consol. Laws, c. 67) by Minnie Jedrlinich, as dependent mother, for compensation for the death of Nicholas Jedrlinich, against James Shewan & Sons, Incorporated, employer, and the Employers' Mutual Insurance Company of New York, insurance carrier. From an award of compensation by the State Industrial Commission, the employer and insurance carrier appeal. Award reversed, and claim dismissed.

Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.

Blauvelt & Warren, of New York City (Francis J. MacIntyre, of New York City, of counsel), for appellants.

Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission.

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WOODWARD, J. The State Industrial Commission has made an award of $5.77 per week to the claimant, based upon the death of her 17 year old son, who was killed in an accident on the premises of the defendant on the 21st day of June, 1919. The boy was getting $9 a week at the time of his death, and was paying his mother $5 per week for board and lodging. The family consisted of a father and mother, a girl of 14 years of age, and another of 5 years, in addition to the son. The father was earning at least $30 per week; the evidence indicates a considerably larger amount, The father says that he gave the boy money for clothes and amusements, and it cannot be said that the mother of this boy, under these circumstances, was in any degree dependent upon the deceased son. The learned Deputy Attorney General, who is astute in discovering evidence to sustain awards by the State Industrial Commission, does not suggest the presence of any such evidence in this case, and we are unable to find any.

The award should be reversed. All concur.

(193 App. Div. 4)

HALLETZ et al. v. WISEMAN et al.

(Supreme Court, Appellate Division, Third Department. July 8, 1920.) 1. Master and servant 367-Compensation claimant held an independent contractor.

Claimant, who hauled garbage in his own automobile truck, for which he furnished gasoline, it appearing the cans were handled by others, held an independent contractor, though paid $25 for himself and truck, and so was not within the Workmen's Compensation Act.

2. Master and servant 363-Compensation claimant hauling garbage held a "farm laborer," within statute.

Claimant, who hauled garbage in an automobile to his employer's farm, where it was fed to pigs held a "farm laborer," within the Workmen's Compensation Act, just as much as if he was hauling other feed; the employer purchasing the garbage paying partly in money and partly in service of removal.

[Ea. Note. For other definitions, see Words and Phrases, Second Series, Farm Laborer.]

Kiley, J., dissenting in part.

Appeal from State Industrial Commission.

Claim by Gustave A. Halletz against Lafayette Wiseman, employer, and the New Amsterdam Casualty Company, insurance carrier, for compensation under the Workmen's Compensation Law (Consol. Laws, c. 67). From an award of the State Industrial Commission for claimant, the employer and insurance carrier appeal. Award reversed, and claim dismissed.

Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.

Frederick Mellor, of New York City, for appellants.

Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, and Bernard L. Shientag, of New York City, of counsel), for respondents.

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(183 N.Y.S.)

KILEY, J. The employer, Wiseman, was a stock farmer at Union Corners, Bronxville, N. Y. The employé, claimant, was a chauffeur on auto truck working for the employer, and on January 22, 1919, while unloading merchandise, he fell from the truck and sprained and lacerated his ankle. The employer had a contract with the United States government to take away from Pelham Bay Camp garbage in iron or tin containers; he paid something for the garbage and carted it to his farm to feed his pigs. Claimant owned a five-ton truck; he was employed by Wiseman, his employer, to drive the truck and draw the cans to his employer's farm. Claimant did not handle the cans, either loading or unloading, and had nothing to do with the disposal of the contents after they reached the farm. He received $25 a day, and furnished his truck, gasoline, etc.

[1] Appellant insurance company urges that claimant was either engaged in farming, which is not a hazardous occupation, or that he was an independent contractor, and therefore it is not liable for compensation. Passing on the last proposition first: In my opinion the claimant was not an independent contractor. McNally v. Diamond Mills Paper Co., 223 N. Y. 83, 119 N. E. 242. The majority of my Associates do not agree with me on the proposition, however.

[2] The argument that claimant was, in effect, a farm laborer presents greater difficulty. The employer was engaged in extensive and intensive farming; he ran his farm for profit, raising hogs for market; he purchased this garbage from the government to feed those hogs, paid for it, part in money and part in labor, which he hired the claimant to perform. Claimant was in no different position, performing those services, than if he had been sent to the feed store for a load of feed with which to feed the hogs on the farm. My conclusion is that claimant was engaged in farm labor. I find no similar case, but Casterline v. Gillen, 182 App. Div. 105, 169 N. Y. Supp. 345, and Brockett v. Meitz, 184 App. Div. 342, 171 N. Y. Supp. 412, are indicative of this solution.

The award should be reversed, and claim dismissed. All concur.

(192 App. Div. 621)

EDUCATIONAL FILMS CORPORATION v. LINCOLN & PARKER CO. et al. (Supreme Court, Appellate Division, First Department. July 2, 1920.) Discovery 58—Order directing examination of president of company, instead of the company, improper.

Order for examination before trial, not directing the examination of plaintiff corporation as an adverse party, but of its president, held improper, as it should have directed examination of company, and then provided that the information sought be elicited by examination of its officers.

Appeal from Special Term, New York County.

Action by the Educational Films Corporation against the Lincoln & Parker Company, Incorporated, impleaded with the Globe Indemnity Company. From an order denying a motion to vacate an order

For other cases see same topic & KEY-NUMBER in all Key. Numbered Digests & Indexes 183 N.Y.S.-8