App. Div.]

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FIRST DEPARTMENT, MARCH TERM, 1898.

The contention that the relator could be discharged without any hearing whatever is based upon section 3 of chapter 275 of the Laws of 1892, which provides as follows: "Said superintendent shall have power to engage in behalf of such department buildings, and in his discretion to discharge, from time to time, such officers and employees thereof, subject to the provisions hereinafter stated, and may make from time to time rules and regulations for their government." It will be noticed that this section is not inconsistent with section 48 of the Consolidation Act, nor does it in any manner repeal or modify the provisions of that section. As will appear, there were several grades of persons in the department, divided up and designated as heads of bureaux, officers, regular clerks, employees and inspectors, and it will be seen by reference to section 43 of chapter 275 of the Laws of 1892, that the power to arbitrarily remove inspectors was given, as it is by section 3 to remove officers and employees. The rights of regular clerks or heads of bureaux were, therefore, left to be governed and controlled by section 48 of the Consolidation Act. The relator being entitled, therefore, to notice of the cause of proposed removal and to an opportunity of making an explanation, the action of the superintendent in removing him without according him his legal rights and upon a charge that was frivolous and baseless, calls for a reversal of his action.

The action of the respondent should, therefore, be annulled, and the relator reinstated, with costs.

VAN BRUNT, P. J., RUMSEY, INGRAHAM and MCLAUGHLIN, JJ., concurred.

Proceedings annulled and relator reinstated, with costs.

THOMAS RUPPRECHT, Appellant, v. BRIGHTON MILLS, Respondent. Negligence-sufficiency of a complaint not alleging knowledge by the master, or ignorance by the servant, of a dangerous condition — when the principle of obvious risks is not involved.

In an action brought by a father to recover damages alleged to have been sustained by him in the loss of the services of his minor son, a complaint which alleges that "owing to the gross carelessness and negligence of the defendant

FIRST DEPARTMENT, MARCH TERM, 1898.

[Vol. 27. and without any fault or negligence on the part of said minor or this plaintiff in any wise contributing thereto," the said minor, while performing his duties as a servant of the defendant, sustained certain injuries by "falling into and through an unguarded and improperly constructed elevator shaft on the premises of the said defendant," is not demurrable.

Where, in such an action, a party seeks to recover for injuries not alleged to have been sustained by him in connection with any machinery or appliance with which he was furnished by the employer, or in connection with the place where he was working, a complaint containing the usual allegations of the employer's negligence, and the absence of contributory negligence on the part of the servant, is sufficient.

It is not necessary to allege therein that the employer did, or that the servant did not, know of the dangerous condition resulting in the accident, as the principle of obvious risks is not directly involved, although it is possible that it may arise on the trial of the action.

APPEAL by the plaintiff, Thomas Rupprecht, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of October, 1897, upon the decision of the court rendered after a trial at the New York Special Term sustaining the defendant's demurrer to the complaint.

The action was brought to recover pecuniary damages alleged to have been sustained by the plaintiff in the loss of the services of his minor son through the negligence of the defendant. The complaint alleges that "owing to the gross carelessness and negligence of the defendant, and without any fault or negligence on the part of the said minor or this plaintiff in any wise contributing thereto," the said minor, while performing his duties as a servant of the defendant, sustained certain injuries "by falling into and through an unguarded and improperly constructed elevator shaft on the premises of the said defendant." The demurrer is on the ground that the complaint does not state facts sufficient to constitute a cause of action.

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The demurrer was sustained for the reason stated in the opinion of the court that "There is no allegation in the complaint that defendant knew of the defective condition of the shaft, or that the servant was ignorant thereof. The gist of the cause of action is the negligence of the master and absence of contributory negligence on part of the servant. The master's negligence cannot result if he was ignorant of the defects, and want of like knowledge must exist

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1898.

on part of the servant to hold him free from negligence contributing to his injury. Averments covering these foundations for liability must be contained in the complaint. If absent therefrom, no cause of action can be stated." An interlocutory judgment was accordingly directed for the defendant from which the plaintiff appeals.

Thomas C. T. Crain, for the appellant.

Austen G. Fox, for the respondent.

O'BRIEN, J.:

Were this an action of negligence for injuries to a person other than a servant, there would be no ground for questioning the sufficiency of the complaint, because in the general form which has long been sanctioned as a sufficient pleading, the plaintiff states that the damages which he seeks were due to the negligence of the defendant, and that neither the plaintiff's negligence nor that of his minor son, for the loss of whose services the action is brought, in any way contributed to the injuries; and this is followed by a statement of the cause of the injury, namely, an unguarded and improperly constructed elevator shaft on the premises of the defendant.

It is not alleged that the employee worked on the elevator shaft, or had anything to do with it. But, on the contrary, the fair inference is that he was engaged at other work in some other part of the premises, and through the negligence of the defendant, and without fault on his own part, was injured. The averment that he was employed by the defendant was proper as showing that he was not a trespasser, but was rightfully on the premises. The principle of obvious risks is not, therefore, directly involved in the complaint, though it is possible it may arise upon the trial. The confusion, therefore, between the necessary averments of a complaint and evidentiary facts led the learned judge into the error of adjudging this complaint insufficient. Where, however, a plaintiff, be he servant or third person, seeks to recover for injuries sustained, not in connection with the machinery or appliances with which he is furnished, or in connection with the place where he is working, and where the doctrine of obvious risks would be applicable, his complaint is sufficient if it has the usual allegations of the defendant's negligence and the absence of contributory negligence on the part of the plaintiff.

FIRST DEPARTMENT, MARCH TERM, 1898.

[Vol. 27. Here, although the plaintiff counts on negligence, the defendant succeeded below in his contention that he made a mistake in so doing, and that he should have alleged facts which would have sustained an action upon the doctrine of obvious risks; and that, as upon such a theory, there were absent certain necessary averments, the complaint was defective. It was the plaintiff's right to formulate his own theory, and the allegations in the complaint in support thereof being the usual and proper ones, and sufficient, it was error to sustain the demurrer thereto, and the interlocutory judgment should be reversed, with costs, but with leave to the defendant to withdraw demurrer and answer over on payment of costs.

VAN BRUNT, P. J., PATTERSON, INGRAHAM and MCLAUGHLIN, JJ., concurred.

Judgment reversed, with costs, with leave to defendant to withdraw demurrer and answer on payment of costs in this court and in the court below.

MARTIN CASSIDY, Respondent, v. FREDERICK UHLMANN, Appellant, Impleaded with JOSEPH F. BLAUT and Another.

Action by a depositor against a bank director-liability of a director who actively participates in keeping a bank open after he knows it to be hopelessly insolvent competency of proof of statements made to the director, of his belief, of the contents of the bank books, and of the withdrawals of money.

The relation of a director of a bank to its depositors is a confidential and fiduciary one; and a director who, having ascertained on August fifth by personal investigation that his bank is hopelessly insolvent, participates in keeping the bank open for the receipt of deposits until August ninth, when it is closed by the State bank examiner, in effect represents to the public during that period that it is solvent, commits a breach of his legal duty and becomes personally liable to one who during such time makes deposits therein. Statements made by the bank examiner to the director, on the day when one of the deposits was made, relative to the condition of the bank, are inadmissible where the director's liability is based upon his knowledge derived from personal investigation, nor can such director for the same reason testify to his belief, on the days of the deposits, as to whether the bank was then taking deposits, nor as to the condition of its surplus and liabilities.

The books of the bank may be introduced in evidence, and the cashier may be

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1898.

allowed to testify as to loans made on the security of the bank stock in order to show, upon the question of insolvency, the condition of the bank. Proof that large deposits were withdrawn through exchanges on the day when the bank examiner closed the bank is, as a part of the res gesta, admissible upon the question of the condition of the bank at the time of such withdrawal.

APPEAL by the defendant, Frederick Uhlmann, 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 15th day of July, 1897, upon the verdict of a jury, and also from an order entered in said clerk's office on the 6th day of July, 1897, denying the said defendant's motion for a new trial made upon the minutes.

William A. Jenner, for the appellant.

Harold Nathan, for the respondent. O'BRIEN, J.:

The action is brought by the assignee of four depositors of the Madison Square Bank against the president and two of its directors, to recover damages for the fraud perpetrated by them in connection with the receipt of deposits from said depositors for the bank, shortly before its failure, and at a time when, it is alleged, the bank was known by these defendants to be hopelessly insolvent. The deposits were made on August 7 and 8, and the bank was closed on August 9, 1893, by the bank examiner.

The rule of law, as enunciated by the court in its charge to the jury, was, in effect, that a bank director who actively participates in keeping the bank open for the receipt of deposits when he knows of the bank's insolvency, is party to a fraud upon the depositors, and renders himself liable personally for the damages sustained by persons making deposits in reliance upon the bank's supposed solvency. Although this rule has been applied with respect to the liability of directors in other States, we do not find that the precise question has been determined in this State. In Delano v. Case (17 Bradf. 531), a decision by the Illinois Appellate Court, after discussing what was the exact status of directors, and holding that they were not merely agents, but were as well trustees for the bank, the stockholders and the depositors, it was said: "If they knew that the APP. DIV.--VOL. XXVII.

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