ferry, and up a flight of stairs to the elevated railroad, and died in the train. The timekeeper took the names of those there. The assistant foreman of the employer says he hired the deceased to work the day he was injured, and that he heard of his injury before he left for home. He said he did not tell anybody, because his fellow workmen said they would take it up next morning.

Superintendent Marra, of the employer corporation, testified that June 27 was the first knowledge he had of the accident, and that was acquired through a representative of the insurance carrier, appellant herein, for whom he made an affidavit. He was then asked this question:

"That is the first knowledge you had there was a claim? A. Yes; it was. Of course, the next day after the man died, they told me on the job he died on his way home. I didn't pay no attention to it."

It will be noted that the word "claim" is used, not accident. Again: "He never told you anything about an accident? No, sir."

This evidence is not satisfactory as to the absence of knowledge, but earlier in his testimony he creates a feeling that he had knowledge as soon as the next day:

"No accident whatever was reported at the time, until the next day, we got back to work, and some of the employés told me the man died on his way home on the train."

His examination was to the effect that he did not have notice, not that he did not have knowledge. It is obvious, whether consciously or not, that this evidence fitted the provisions of section 18 requiring affirmative notice, as found in said section before the sentence commencing with the words "the failure to give notice of injury or notice of death," etc. The statute (Laws 1918, c. 634, § 3) extending the time in which to give notice from 10 to 30 days took effect May 13, 1918, two days before this injury occurred. The employer had such knowledge as is contemplated by the last sentence of section 18 of the Workmen's Compensation Law (Consol. Laws, c. 67).

[2] As to whether this injury activated a previous bad condition of the heart, and thereby contributed to the sudden taking off of this man, was a question of fact for the commission. Some medical testimony given is to the effect that such injury might produce a condition that might be fatal, and of which this instance is illustrative. Appellants rely on Nestor v. Pabst Brewing Co., 191 App. Div. 312, 181 N. Y. Supp. 477. I cannot escape the conclusion that the circumstances and facts are different in the two cases. Nestor dislocated his shoulder on June 1, 1918, and lived until July 21, 1918. His injury was not in the region of the heart; a dislocated shoulder and contusions of the skin may be had without any shock; a twist of the arm may dislocate a shoulder; a seam in the trousers may abrase the skin; a ball thrown by a boy may produce a painful contusion. The death certificate indicated, nothing more, that Nestor died of heart disease ("chronic cardiac valvular"). He was under the care of a physician; he lived 51 days after the injury, and his physician swore that he never had heart disease.

(183 N. Y.S.)

In

In the case here considered, the shock must have been severe. sana slipped and fell 7 or 8 feet, striking a hard substance, either a cement sack or the floor of the platform, and was dead within an hour thereafter. His mother swore he never had any sickness; any heart disease. She did not know. The physician, Dr. Lewy, was called, and testified, from the facts as presented by the record, that in his opinion he had, and that the injury was such as might hasten death. I do not think 191 App. Div. 312, 181 N. Y. Supp. 477, supra, is controlling here. It would seem that, if sections 21 and 68 of the Compensation Law are to be accorded any vitality, they apply to the facts in this case.

The award should be affirmed. All concur.

HIGGINS v. SAMISCH et al.

(Supreme Court, Appellate Division, Second Department. June 4, 1920.) Libel and slander 82-Denial of truth of libel does not prevent plaintiff from alleging that libel was published of and concerning plaintiff.

That complaint for libel made broad denial of truth of the matters stated in the libel did not prevent plaintiff from availing herself of the statutory right (Code Civ. Proc. § 535) to allege generally that the libel was written and published of and concerning the plaintiff and that plaintiff is one of the persons therein intended to be referred to.

Action by Augusta A. Higgins against Albert Samisch and another. From an order overruling a demurrer to complaint, the named defendant appeals. Affirmed.

Argued before JENKS, P. J., and MILLS, PUTNAM, KELLY, and JAYCOX, JJ.

PER CURIAM. The broad denial in her complaint of the truth of the matters stated in the alleged libel did not prevent plaintiff, as the wife of David H. Higgins, from availing herself of the statutory right to allege generally that the libel was written and published of and concerning the plaintiff (section 535, Code Civ. Proc.); also that plaintiff is one of the persons therein intended to be referred to. The order overruling defendants' demurrer is therefore affirmed, with $10 costs and disbursements.

(Supreme Court, Appellate Division, Second Department. May 14, 1920.) Wills 277-Surrogate has discretion to grant late motion to file objections to probate of will.

Under Code Civ. Proc. § 2617, surrogate has discretion to grant motion of father to file objections to probate of will of deceased daughter, though motion was made after original citation was returned, and after objections of other contestants seemed doubtful.

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Appeal from Surrogate's Court, Westchester County.

In the matter of the application for the probate, etc., of the last will and testament of Harriett Juengst, deceased. From an order granting the motion of Robert A. Hall to file objections to probate of will, Frederick C. Sommer appeals. Affirmed.

Argued before JENKS, P. J., and MILLS, RICH, PUTNAM, and KELLY, JJ.

PER CURIAM. The surrogate has granted a motion of the sole heir at law and next of kin to file objections to probate of a will of his deceased daughter. The original citation was returned on January 6, 1920, when he did not file objections. However, after the standing of the original contestants appeared to be doubtful, and a motion was noticed to dismiss their objections, the father promptly applied for leave to come in and contest the probate, which was granted. There is nothing in the papers to show that the testimony on behalf of the proponent was closed, and in any event, under Code Civ. Proc. § 2617, the order was clearly within the surrogate's discretion. The order of the Surrogate's Court of Westchester County is therefore affirmed, with $10 costs and disbursements.

(192 App. Div. 915)

SNEDECOR v. CHAPEL.

(Supreme Court, Appellate Division, Second Department. May 7, 1920.) 1. Pleading ~350 (2)—Motion for judgment on answer after issue joined not premature.

Under Code Civ. Proc. § 547, a motion for judgment on answer was not premature, where motion was made after issue joined.

2. Pleading 350 (1)—To defeat motion for judgment on answer new answer must be served before motion is heard.

A power to amend cannot be invoked to defeat a motion for judgment on answer, unless exercised by serving a new answer before the motion is heard.

3. Appeal and error ~781 (2) —Where appeal is moot it will be dismissed. An appeal from an order granting motion for judgment on answer will be dismissed, where a new answer has been served before motion was heard and costs were waived.

Action by Minnehaha Snedecor against Edward R. Chapel. Judgment on answer, and defendant appeals. Appeal dismissed.

Argued before JENKS, P. J., and MILLS, RICH, PUTNAM, and KELLY, JJ.

PER CURIAM. [1-3] Plaintiff was not premature in moving for judgment upon the first answer, since she moved after issue joined. Code Civ. Proc. § 547. A power to amend cannot be invoked to defeat such motion, unless exercised by serving a new answer before the motion is heard. Dorf v. Corsa, 163 N. Y. Supp. 602. But service of a new answer wholly supersedes the original answer. The order

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(183 N.Y.S.)

thereon then becomes unimportant, save as to motion costs, and upon the hearing here these have been waived.

Nothing substantial being now left, the appeal is dismissed, without

costs.

(192 App. Div. 923)

MORMILLE v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. May 21, 1920.) Appeal and error 1050 (1)—Admission of photograph of mangled body of deceased in death action prejudicial error.

To admit in evidence in an action for wrongful death the photograph of the deceased lying dead in a mangled condition is error manifestly prejudicial.

Action by Raeffaelle Mormille, as administrator, etc., of Pasquale Mormille, deceased, against the Brooklyn Heights Railroad Company. Judgment for plaintiff, motion for new trial denied, and defendant appeals. Judgment and order reversed, and new trial granted.

Argued before JENKS, P. J., and MILLS, RICH, KELLY, and JAYCOX, JJ.

PER CURIAM. Judgment and order reversed, and new trial granted, with costs to abide the event, upon the ground that it was error manifestly prejudicial to the defendant to receive in evidence the photograph of the decedent lying dead in a mangled condition.

LUNDBERG et al. v. POTTER et al.

(Supreme Court, Appellate Division, Second Department. June 11, 1920.) Discovery 41-No examination of details of account until establishment of right to account.

Defendant should not be examined as to details of the account until plaintiff's right to an account has been established.

Action by Henry Lundberg and others, as executors of Theodore B. Johnson, deceased, against Ellis G. Potter and another. From the grant of an order, the named defendant appeals. Modified.

Argued before JENKS, P. J., and MILLS, PUTNAM, KELLY, and JAYCOX, JJ.

PER CURIAM. Order modified, so as to disallow questions Nos. 2, 4, 5, 6, 8, and 9, and, as so modified, affirmed, without costs, upon the ground that the appellant should not be examined as to the details of the account until plaintiff's right to an account has been first established. See Del Genovese v. Del Genovese, 149 App. Div. 266, 133 N. Y. Supp. 765.

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(193 App. Div. 6)

MARTIN et al. v. HENRY CARD & CO. et al.

(Supreme Court, Appellate Division, Third Department. July 8, 1920.) Master and servant 375 (1) -Truck driver held entitled to compensation for injury while using own car.

Factory employé, obligated on Sunday to look after fires and lights, and to see that everything was in working order for Monday, when he would drive truck of employer, injured in cranking his own car to go from the factory to a garage to get spark plugs for the truck, held entitled to compensation.

Appeal from State Industrial Commission.

Proceeding by Bert O. Martin for compensation under the Workmen's Compensation Act (Consol. Laws, c. 67), opposed by Henry Card & Co., the employer, and the Travelers' Insurance Company, the insurance carrier. From an award of compensation made by the State Industrial Commission, the employer and insurer appeal. Award

affirmed.

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

Benjamin C. Loder, of New York City (E. C. Sherwood and William B. Davis, both of New York City, of counsel), for appellants.

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

KILEY, J. Previous to June 29, 1919, the claimant, Bert O. Martin worked for Henry Card & Co., at Fredonia, N. Y. His contract was for the seven days of the week. The seventh day, Sunday, it was his business to go to factory and look after fires and lights, and I think it may be fairly inferred that he had to see that everything, so far as his part of the business was concerned, was in working order for Monday morning. He drove the truck used by his employer in the business. On the Sunday in question he had to get spark plugs for the truck before he could use it on Monday morning. He had a Ford car of his own, and it was there at the factory; the spark plugs were not kept at the factory, and, as it was Sunday, he had to go and look for them in some garage where the kind he wanted might be found. He started to crank up his Ford car, so that he could go and find the plugs. It back-fired, kicked, and broke both bones of his right wrist.

Appellants contend that this accident did not arise out of, and was not incident to, the business he was employed to help carry on; in other words, that claimant ought to have walked around from garage to garage, looking for spark plugs for them, instead of riding in his car while so doing. In the Matter of Glatzl v. Stumpp, 220 N. Y. 71, 114 N. E. 1053, while reversing the award of the Industrial Commission, we laid down this rule:

"In order to charge the employer with liability under the Workmen's Compensation Law, the court must be able to see that the hazards which accompanied the duties of the employee have turned against him, to his loss and damage."

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