App. Div.] FIRST DEPARTMENT, MARCH TERM, 1898. the withdrawal of the moneys in question was not only fraudulent in itself, but was really the culmination of a series of acts done with the intention of defrauding the creditors of the firm. The judgment should be affirmed, with costs. VAN BRUNT, P. J., RUMSEY, INGRAHAM and MCLAUGHLIN, JJ., concurred. Judgment affirmed, with costs. MARY WYNNE, Respondent, v. CATHARINE HAIGHT, Appellant.. - Negligence-injury to a tenant from the fall of a ceiling — previous promise of a landlord to repair it — review of an exception to the sufficiency of proof, although the case does not state that it contains all the evidence. A naked promise to repair a ceiling in demised premises, made by a landlord after the term has begun, is without consideration and is not enforcible; and where, pursuant to such promise, the landlord makes repairs, he is not liable in case the work of repair is not thoroughly done, and the ceiling afterwards falls because of defects therein existing before, and not as a consequence of, such repairs. An exception to the denial of a motion made to dismiss the complaint upon the ground that the defendant has not been shown to have been negligent, enables the Appellate Division to review the question of the defendant's liability upon the proof submitted by the plaintiff as it appears in the case on appeal, although there is no certificate that the case contains all the evidence. Such an excep tion in the proposed case is notice to the plaintiff of an intention on the part of the defendant to raise the question of the sufficiency of the plaintiff's proof, and imposes upon the latter the responsibility of adding to the case by amendment. any proof which may be necessary to sustain the ruling made upon the trial. APPEAL by the defendant, Catharine Haight, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of June, 1897, upon the verdict of a jury, and also from an order entered in said clerk's office on the 13th day of July, 1897, denying the defendant's motion for a new trial made upon the minutes. De Lagnel Berier, for the appellant. Jacob Marks, for the respondent. BARRETT, J.: FIRST DEPARTMENT, MARCH TERM, 1898. [Vol. 27. In the month of January, 1895, the plaintiff's husband hired from the defendant four rooms on the second floor of No. 337 East Fiftyninth street in this city. In her complaint the plaintiff alleges that, shortly after she became the occupant of these rooms under her husband's tenancy, she found that the ceiling in the kitchen needed repairs; and that the defendant, upon her request, promised and agreed to make these repairs. It is further alleged that the defendant thereafter, to quote the language of the complaint, " made some alleged repairs to said ceiling;" but that they were carelessly and negligently made, and that by reason thereof and by reason also of the defendant's permitting and allowing the ceiling to remain in a bad condition, the "said ceiling fell upon this plaintiff" in the following June, causing her injuries, for which the action is brought. There is no certificate in the case that it contains all the evidence. We cannot, therefore, review the facts; and we are limited to a consideration of the defendant's exceptions. At the close of the plaintiff's case, the defendant moved to dismiss the complaint upon the ground that no negligence on her part had been shown; and that, as to the promise to repair the ceiling, there was no consideration therefor. These grounds were amplified in a full discussion, which gave the plaintiff abundant notice of the lack of evidence which the defendant pointed out. The motion was denied, and the defendant excepted. That exception raises the question whether the defendant was liable upon the proofs which the plaintiff put in. To obtain a review of that question it was not necessary for the defendant to procure a certificate that the case contained all the evidence. (Halpin v. Phenix Insurance Company, 118 N. Y. 165; Perkins v. Hill, 56 id. 87.) As was said in Halpin v. Phenix Insurance Company (at p. 171): "An exception appearing in the proposed case serves as a notice to the respondent of an intention to raise the question of error in the ruling excepted to, and puts on him the responsibility of adding by amendment any needed proof upon the particular question, just as a certificate that the case contains all the evidence notifies him of an intention to review the question of error in findings of fact based on the allegation of insufficient proof." We must, therefore, assume that all the evidence in support of App. Div.] FIRST DEPARTMENT, MARCH TERM, 1898. the ruling excepted to was inserted in the case. The question then is, was the ruling, upon that evidence, correct? A brief summary of the plaintiff's testimony will suffice to raise the point. The plaintiff testified that she called the attention of the defendant's housekeeper to the ceiling, and told her that she wanted it repaired; that a few days thereafter a man came in and kalsomined the ceiling, but did not take out the cracks, and that while this man was doing the kalsomining he pounded on the ceiling with the handle of his brush. Shortly after this, the plaintiff called the defendant's attention to the insufficiency of what had been done, and the latter then made this meaningless observation, "I will get a paper for you." That, however, was the end of it. Nothing more was done about the repairs, and the plaintiff and her family continued to live in the rooms until the following June, when the ceiling fell. Subsequently the defendant told the plaintiff that she had been deceived in the premises, and that they were "rotten." The rest of her testimony is unimportant upon the main question of liability. Upon this testimony we think the complaint should have been dismissed, and that the defendant's exception to the refusal to dismiss it was well taken. The defendant was under no legal obligation to repair the premises, nor was she liable for damages caused by a defect in the ceiling, even though she promised to repair it and failed to do so. This the plaintiff concedes, as indeed she was bound to, upon well-settled principles. She seeks, however, to sustain the ruling upon the doctrine that, where a landlord undertakes to and does repair, he is liable for injuries resulting from his negligent acts while so engaged. The plaintiff's difficulty here is in the application of this doctrine. There was absolutely no evidence that it was the defendant's negligence, or that of her servant, which caused the ceiling to fall. Kalsomining the ceiling certainly did not cause it to fall, nor did the man's pounding on the ceiling in January, while doing the kalsomining, cause it to fall in the following June. At all events, there is not a particle of evidence connecting this man's act with the subsequent fall. The ceiling fell because the cracks had not been taken out, and because it was not properly supported. The defendant, however, was not responsible for these omissions. Even if she had APP. DIV. VOL. XXVII. 2 FIRST DEPARTMENT, MARCH TERM, 1898. [Vol. 27. promised to make repairs, she would not have been liable for her failure to keep that promise, it being without consideration. Still less was she liable for a partial failure in that regard. Clearly she is not liable, merely because she only kalsomined what she had agreed to repair if she would not have been liable in case of complete non-action. It is not the landlord's negligence, in the sense in which that word is commonly used, which makes him liable—that is, in not fully doing what he has voluntarily promised to do, but his active and direct negligence with regard to the subject-matter of his undertaking. His negligent act must be the real cause of the injury, and it is for that alone that he is liable. The only suggestion here of negligence in this sense is, as we have seen, that the man who did the kalsomining pounded upon the ceiling with the handle of his brush. It would be absurd, however, in the absence of evidence, to indulge the supposition that this act in January caused or accelerated the fall of the ceiling in the following June. The ceiling really fell because the cracks were not taken out, and it was not properly strengthened. That is the clear import of the evidence. But for the failure in that regard, the defendant was not liable. She was really held here because, having apparently undertaken to do what was asked of her housekeeper, she did it inefficiently. Clearly that was not enough to hold her. We think, therefore, that the nonsuit should have been granted, and consequently the judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event. VAN BRUNT, P. J., RUMSEY, INGRAHAM and MCLAUGHLIN, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event. ROBERT W. SHERIDAN, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant. Negligence-incorrect charge as to the liability of a master to one servant for the negligence of a fellow servant- when not cured by a subsequent correct charge. In an action brought against a railroad corporation by one of its employees, who was injured while at work with a co-employee under one of the defendant's App. Div.] FIRST DEPARTMENT, MARCH TERM, 1898. cars, upon which the proper signal for their protection had not been placed by either of the men as required by the rules of the corporation, the court charged the jury that, if they found that the plaintiff's injuries were due solely to the negligence of the defendant's servant, and that the plaintiff himself was free from negligence, he could recover, and, subsequently, after refusing a request of the defendant to charge that, if the accident in question was in any manner caused by the neglect of a fellow-servant, the plaintiff could not recover, remarked to the jury, without restating the words of the request, that he charged them in the manner requested by the defendant, but did not modify his original charge. Held, that a new trial should be granted on the ground that the instructions to the jury involved an error and inconsistency seriously detrimental to the defendant. APPEAL by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of July, 1897, upon the verdict of a jury for $8,000, and also from an order entered in said clerk's office on the 2d day of July, 1897, denying the defendant's motion for a new trial made upon the minutes. William C. Beecher, for the appellant. Sumner B. Stiles, for the respondent. RUMSEY, J.: The action was brought to recover damages for injuries received on account of the alleged negligence of the defendant, and upon the trial the plaintiff had a verdict. A motion for a new trial, which was made upon the judges' minutes, was denied, and, after the entry of judgment upon the verdict, this appeal was taken from the judgment and order denying a new trial. The plaintiff was employed in the yards of the defendant at Long Island City, and was at work under a car when an engine ran against it and drove the car back so that a bar which he was using was pressed down upon the rail, catching his wrist between the rail and the bar and cutting off his hand. The car under which he was at work was on one of the repair tracks, and the plaintiff, with another man, was engaged in putting new wheels upon it. He bases his cause of action upon a claim that the defendant failed to make and enforce proper rules for his protection while so engaged. A rule had been made by the defendant to apply to such cases, but the plaintiff |