App. Div.]

First Department, June, 1920.

Present

ROBERT LIVINGSTON STEDMAN, INC., v. 344 WEST 72ND STREET CORPORATION.-Application denied, with ten dollars costs. Order signed. · Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. MAX GOODMAN V. KEAN-JONES COMPANY.-Application denied, with ten dollars costs, and stay vacated. Order signed. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

CARMINE ESPOSITO V. AMERICAN RAILWAY EXPRESS COMPANY.— Application granted. Order signed. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

ANTONIO ESPOSITO V. EMPIRE STATE STEEL PRODUCTS COMPANY.Application denied, with ten dollars costs. Order signed. PresentClarke, P. J., Dowling, Smith Page and Greenbaum, JJ.

ERNEST BUFF-MERZ v. GUSTAVE RATKOWSKY, etc.-Application denied, with ten dollars costs, and stay vacated. Order signed. Present Clarke,

P. J., Dowling, Smith, Page and Greenbaum, JJ.
ABRAHAM LEICHTAG V. REALTY ASSOCIATES.-Application granted.
Order signed. Present Clarke, P. J., Dowling, Smith, Page and Green-

baum, JJ.

A. & B. EXPORT AND IMPORT CORPORATION V. FRANCO-AMERICAN CHEMICAL COMPANY, INC., and Others.- Motion for leave to appeal denied, with ten dollars costs, and motion for stay granted. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

WINTER & COMPANY V. RUDOLF PIANO COMPANY, Impleaded, etc.— Motion denied, with ten dollars costs. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

TOMMASO CARRELLI, as Administrator, etc., v. LILLIE S. STEINER.Motion for leave to appeal denied, with ten dollars costs, and motion for stay granted. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

S. FRANK WILLIAMSON, as Receiver, etc., v. THE WHITNEY COMPANY. Motion for reargument or for leave to appeal denied, with ten dollars costs. Motion for stay granted. Settle order on notice. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

BENJAMIN BEEKMAN V. MINNIE STERN and Others, Individually and as Executors, etc.- Motion denied, without costs. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

ROBERT E. J. CORCORAN V. HUBERT E. ROGERS and Others.- Motion denied, without costs. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

GEORGE P. MONTAGUE and Others, as Surviving Substituted Trustees, etc., v. CHARLES P. CURTIS, as Administrator, etc., and Others.- Motion denied, with ten dollars costs. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

MYER ROSENTHAL V. THE UNITED TRANSPORTATION COMPANY.- Motion for stay denied, with ten dollars costs, and temporary stay vacated. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. OSCAR L. GUBELMAN and Others v. PANAMA RAILROAD COMPANY and

[Vol. 192.

First Department, June, 1920.

Others. Motion granted.

Settle order on notice. Present — Clarke, P. J.,

Dowling, Smith, Page and Greenbaum, JJ.

---

-

THE PEOPLE OF THE STATE OF NEW YORK V. LEON LIEBERMAN.- Motion granted on condition stated in order. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

In the Matter of AARON J. LEVY.-Motion for leave to file supplemental petition granted. Settle order on notice. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

OMER FEIZI V. ALEXANDER C. CASTRIOTIS and Others.- Motion for stay denied, with ten dollars costs, and temporary stay vacated. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

JOSEPH F. COFFEY, as Administrator, etc., v. KATHERINE LEXOw.— Motion for stay pending appeal granted. Settle order on notice. Present- Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

HENRY STOLL V. LOUIS BUSTANOBY, INC.- Motion for stay pending appeal granted. Settle order on notice. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

HENRI M. GALLEN V. WILFRED E. FULCHER.-Motion to dismiss appeal granted, with ten dollars costs. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

NATHAN BREGSTONE V. BARNET GREENBERG and Others.- Motion denied, with ten dollars costs. Present · Clarke, P. J., Dowling, Smith,

Page and Greenbaum, JJ.

In the Matter of FREDERICK W. MATTHIESSEN, Deceased. Motion denied, with ten dollars costs. Present

Page and Greenbaum, JJ.

Clarke, P. J., Dowling, Smith,

BLANCHE GUZzı, an Infant, etc., v. New York ZoologiCAL SOCIETY.— Motion denied, with ten dollars costs. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

In the Matter of AARON J. LEVY.-Motion for leave to appeal granted; question certified. Present Clarke, P. J., Dowling, Smith, Page and

Greenbaum, JJ.

THE PEOPLE OF THE STATE OF NEW YORK V. MAIL AND EXPRESS COMPANY and Others.-Motions granted; questions certified. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

ARTHUR L. BRIGHAM V. THE CITY OF NEW YORK.-Motion denied, with ten dollars costs. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

MILLER & SONS COMPANY V. E. M. SERGEANT COMPANY.-Motion granted; question certified. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

OSCAR UNZ V. LILLIAN E. FITZGERALD.- Motion denied, with ten dollars costs. Defendant can obtain a stay upon giving an undertaking to secure the judgment. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

X. AMUSEMENT COMPANY, INC., V. HERMOS AMUSEMENT COMPANY, INC. -Motion for stay denied, with ten dollars costs, and temporary stay

App. Div.]

Second Department, May, 1920.

vacated. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

GEORGE C. MCCASKEY V. CUMBERLAND GLASS MANUFACTURING COMPANY.-Motion granted and appeal restored to calendar for the October term, 1920. Present- Clarke, P. J., Dowling, Smith, Page and Green

baum, JJ.

-

LOUIS I. SCHWARTZ & COMPANY, INC., v. LOUIS JURICK and Others.Motion for stay denied, with ten dollars costs. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

SECOND DEPARTMENT, MAY, 1920.*

CORNELIUS CASSIN, Appellant, v. STILLMAN, DELEHANTY, FERRIS COMPANY,

Respondent.

Negligence injury received by employee of sub-contractor by breaking of ladder furnished by contractor

safe condition.

- duty of contractor to keep appliances in

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 17th day of April, 1919, dismissing his complaint.

Judgment affirmed, with costs. No opinion. Jenks, P. J., Mills, Rich and Putnam, JJ., concur; Kelly, J., reads for reversal.

KELLY, J. (dissenting): My reasons, briefly stated, are, that in my opinion the question of defendant's negligence was for the jury. I think the evidence justified a finding that the ladder which broke and caused the injury was built and furnished by the defendant. It was furnished with full knowledge of the use for which it was intended, it was so used by plaintiff and his fellow-employees, servants of the sub-contractor, for some time before the accident with the knowledge and consent of defendant's foreman, and there is evidence that the defendant's foreman and defendant's employees also used the ladder as the direct and convenient means of access to the particular roof where the work was going on. The defendant concedes that it was not a proper or sufficient ladder for the use to which it was put. Upon the evidence I think there is no question as to the authority of defendant's foreman to supply the ladder. It was the usual and customary method in doing the work in which the sub-contractor was engaged. In any case it was a question for the jury whether the foreman was acting for defendant within the scope of his authority in supplying the ladder. The defendant owed to the plaintiff, lawfully engaged at work upon the premises, a duty to use reasonable care to keep the property and the ways in general use in such condition that plaintiff should not be unreasonably and unnecessarily exposed to danger. While it did not owe plaintiff the duty to provide for his absolute safety, it was obligated to exercise reasonable care to see that he was not exposed to injury from appliances in general use about the property, the dangerous qualities of which were concealed from him (3 S. & R. Neg. [6th ed.] § 704; Beck v. Carter, 68 N. Y. 283; Larmore v. Crown Point

First Department, May, 1920. [Vol. 192, App. Div.]

Iron Co., 101 id. 395; Larkin v. O'Neill, 119 id. 221, 225; Griffen v. Manice,
166 id. 196; O'Leary v. Erie Railroad Co., 169 id. 289), and this liability did
not depend necessarily upon any contractual relation between plaintiff and
defendant directly. (Thomas v. Winchester, 6 N. Y. 410; Coughtry v. Globe
Woolen Co., 56 id. 127; Devlin v. Smith, 89 id. 470; Dougherty v. Weeks &
Son, 126 App. Div. 786, 790.) It was liable for any injury which might
reasonably be anticipated in view of all the circumstances. (Cleveland v.
New Jersey Steamboat Co., 68 N. Y. 306.) The plaintiff was more than a
mere licensee; he was there upon the invitation, express or implied, and
engaged upon the work of the defendant. The distinction is pointed out by
Judge Collin in Heskell v. Auburn L., H. & P. Co. (209 N. Y. 90). I vote to
reverse the judgment and grant a new trial.

FIRST DEPARTMENT, MAY, 1920.*

ABNER GREENBERG, Appellant, v. JEROME H. REMICK & COMPANY,

Appeal

Respondent.

attorney and client - arbitrary termination of contract of employ-
ment for fixed period — appeal to Court of Appeals allowed.

-

Motion for leave to appeal to the Court of Appeals.

PER CURIAM: In this action, plaintiff, an attorney at law, entered into an
agreement with the defendant to perform legal services for the defendant for
one year at a compensation of $5,200, payable $100 weekly. This contract
was made on the 21st day of April, 1919. On the 27th day of September,
1919, the defendant discharged the plaintiff, having paid him at the rate of
$100 a week for the full time, up to the time of his discharge. The action
is brought by the attorney to recover the balance due for the year, to wit,
$2,900. The demurrer is upon the ground that the complaint does not
state facts sufficient to constitute a cause of action and that demurrer has
been sustained. This court deemed that the question of law involved had
been decided in this State by the cases of Degen v. Steinbrink (188 App. Div.
622); Johnson v. Ravitch (113 id. 810); Martin v. Camp (219 N. Y. 170);
Tenney v. Berger (93 id. 529); Matter of Dunn (205 id. 402), and Andrewes v.
Haas (214 id. 255). The plaintiff asks to be allowed to appeal to the Court
of Appeals upon the ground that in none of the cases cited was the question
involved as to the right of a client to arbitrarily terminate a contract
where the employment was for a fixed period, and not in reference to any
particular litigation. It is further urged that there are many attorneys who
are under annual retainers in similar cases and that the question is of such
general importance that the specific question arising should be determined
by the Court of Appeals. We are of opinion that the question presented
has such a general interest as to justify this application and the motion
should be granted and the question certified whether the complaint states
facts sufficient to constitute a cause of action. Present Clarke, P. J.,
Laughlin, Dowling, Page and Greenbaum, JJ. Motion for leave to appeal
to the Court of Appeals granted; question certified.

See ante, p. 909.- [REP.

INDEX.

ACCOUNT.

See EVIDENCE, 1.

ACCOUNTING.

See EXECUTORS AND ADMINISTRATORS, 1, 2; PRINCIPAL AND AGENT,
2; WILLS, 2.

ACT OF GOD.

See CONTRACTS, 2.

ADJOURNMENT OF COURT.

See COURTS.

ADOPTION.

Amendment of Domestic Relations Law allowing adoption of adults with
rights of inheritance · effect of amendment made by chapter 149 of Laws of
1917- when adopted adult does not take property devised under prior will.
Where an adult person was adopted in 1916 after section 110 of the Domestic
Relations Law was amended by chapter 352 of the Laws of 1915, so as to
allow the adoption of adults, and after section 114 of the statute was so
amended as to allow adults to inherit from the foster parent except where
it would defeat the rights of remaindermen, but the foster parent did not
die until 1918 after the statute was again amended by chapter 149 of the
Laws of 1917 providing that the right of an adopted adult to inherit from
the foster parent should not apply to any will, devise or trust made or
created before April 22, 1915, etc., the adopted adult is not entitled to
share in a residuary estate which came to her deceased foster parent under
the will of an ancestor who died in 1888, which provided that if a beneficiary
of the residuary estate died without surviving issue, which was the fact,
her share should to to "her heirs at law." Under the circumstances the
share of the deceased foster parent went to her nieces as her heirs at law
to the exclusion of the adopted adult daughter. Matter of Kingsbury, 206.
AGENCY.

See PRINCIPAL AND AGENT.

AMENDMENT OF PLEADINGS.
See PLEADINGS, 1.

ANIMALS.

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when no recovery

Injury to child by wild animal exhibited at public zoo
as for nuisance rights of institution chartered to exhibit wild animals for
educational purposes — contributory negligence. Where an infant twelve
years of age, of intelligence and education and having instruction in the
habits of wild animals, went to the Bronx Zoo and while playing ball with
her companions in the neighborhood of the bear cage, attempted to recover
a ball which rolled under said cage, and in so doing crawled under a
fence erected as a guard three feet distant from the cage and was injured
by one of the animals while reaching under the cage, there can be no recovery
on the theory that the maintenance of the bear cage constituted a nuisance,
it appearing that there is no charge of negligence on the part of the defendant
and that it did not maintain the zoo for private gain but is a chartered
zoological society existing under the authority of the Legislature for the
purpose of exhibiting wild animals for educational and entertainment

purposes.

The liability of one who exhibits wild animals for private gain differs
from that of an institution maintained as a public enterprise under legislative
authority for educational purposes and to entertain the public.

It seems, that in any event the plaintiff could not have recovered because
of her contributory negligence. Guzzi v. New York Zoological Society, 263.