and 122 New York State Reporter

HNSON, Respondent, v. ROACH, Appel- | judgment in favor of plaintiff, defendant ap(Supreme Court, Appellate Division, peals. Reversed. Henry W. Goddard and William E. Weaver, for appellant. Fleischman & Fox, for respondent.

t Department. June 10, 1904.) Action by y M. Johnson, as administratrix, against ard Roach. I. N. Tuttle, for appellant. J. Kaffe, for respondent.

PER CURIAM. There is no evidence in this case that shows or tends to show that the per

R CURIAM. Judgment and order affirm- son in charge of plaintiff's property at the time with costs.

LAUGHLIN, J., dissents.

HNSTOWN MIN. CO., Appellant, v. SE, Respondent (two cases). (Supreme t, Appellate Division, First Department. 6, 1904.) Actions by the Johnstown MinCompany against E. Rollins Morse. J. er, for appellant. J. A. Garver, for relent. No opinion. Order affirmed, with costs and disbursements.

NE et al., Appellants, v. ROSE et al., ondents. (Supreme Court, Appellate DiviSecond Department. June 3, 1904.) Acby Thomas Kane and others against C. her Rose and others. No opinion. Judg. affirmed, with costs.

of the accident was free from negligence, or that the defendant was negligent. Judgment is reversed, and new trial ordered, with costs to the appellant to abide the event.

KOMP, Respondent, v. RAYMOND, Appellant. (Supreme Court, Appellate Division, First Department. June 10, 1904.) Action by Frederick Komp against James J. Raymond. J. L. Hill, for appellant. J. S. Epstein, for respondent. No opinion. Judgment and order affirmed, with costs.

KUELLING v. RODERICK LEAN MFG. CO. (Supreme Court, Appellate Division, Fourth Department. May 17, 1904.) Action by Rinehart Kuelling against the Roderick Lean Manufacturing Company.

PER CURIAM. Plaintiff's exceptions overruled, motion for new trial denied, and judgYES, Appellant, v. SMITH et al., Re-ment ordered for defendant upon the nonsuit, on lents. (Supreme Court, Appellate Division, the authority of same case, reported 88 App. th Department. May 24, 1904.) Action by Div. 309, 84 N. Y. Supp. 622. ze F. Keyes against C. Walter Smith and er. No opinion. Judgment affirmed, with

WILLIAMS, J., dissents.

LACEY v. LACEY. (Supreme Court, Appellate Division, First Department. June 17, 1904.) Action by Harriet Lacey against Frederick F. Lacey. No opinion. Motion granted, so far as to dismiss appeal, with $10 costs.

LAING, Appellant, v. CORN et al., Respondents. (Supreme Court, Appellate Division, First Department. May 6, 1904.) Action by David Laing against Henry Corn and others. G. H. Taylor, for appellant. J. W. McElhinny, for respondents. No opinion. Judgment affirmed, with costs.

LANSING v. ECKER. (Supreme Court, Appellate Division, Third Department. May 20, 1904.) Action by Gerrit Y. Lansing against Jerome W. Ecker. No opinion. Motion granted, with $10 costs.

LAUTZ et al., Respondents, v. SHAW et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. May 24, 1904.) Action by Amalia E. Lautz and another against Charles F. Shaw and others. No opinion. Motion granted, unless within five days the appellants sign the stipulation proposed and presented upon this motion by the respondents' attorneys.

LAY et al., Respondents, v. DOYLE, Appellant. (Supreme Court, Appellate Division, Fourth Department. May 17, 1904.) Action by William Lay and others against Michael Doyle. No opinion. Judgment and order af

AEAGH, Respondent, v. INTERURBAN
Y. CO., Appellant. (Supreme Court, Ap-
e Term. May 19, 1904.) Action by Ed-
Knaeagh against the Interurban Street
ay Company. From a Municipal Court | firmed, with costs.
88 N.Y.S.-70

and 122 New York State Reporter

LEVISON, Appellant, v. UNITED TRACTION CO., Respondent. (Supreme Court, Appellate Division, Third Department. May 20, 1904.) Action by Louis Levison, an infant, by Isaac Levison, his guardian ad litem, against the United Traction Company. No opinion. Judgment and order unanimously affirmed, with costs, upon the ground that there is not sufficient evidence of the defendant's negligence to sustain a verdict.

LEVINSON v. UNITED TRACTION CO. (Supreme Court, Appellate Division, Third Department. May 25, 1904.) Action by Louis Levinson, an infant, by Isaac Levinson, his guardian ad litem, against the United Traction Company. No opinion. Motion denied.

LEWINE, Respondent, v. SHAPIRO et al., Appellants. (Supreme Court, Appellate Divi sion, Second Department. June 10, 1904.) Action by Julius Lewine against Joseph Shapiro and Max Brodsky. No opinion. Judgment of the Municipal Court affirmed by default, with

costs.

LEWIS et al. v. SNOOK. (Supreme Court, Appellate Division, Fourth Department. May 10, 1904.) Action by Ceylon H. Lewis and another against Helen J. Snook.

PER CURIAM. Order heretofore entered, allowing an appeal to the Court of Appeals, amended nunc pro tune by inserting therein the specific question of law set forth in the papers upon this motion.

the event, on the ground that the plaintif sumed the risk which resulted in the injere complained of.

HIRSCHBERG, P. J., votes for affirmance. HOOKER, J. (dissenting). The plaintif bað a verdict, in this case of servant against mas ter, for the latter's negligence. After working a day and one-half in shoveling linseed in the holds of vessels toward the feet of marine ele vator legs employed to unload the seed the plaintiff, pursuant to direction, underteck climb down into the hold of one of the vessels He went down through a hatch into which the marine leg had been projected, took hold of the combing of the hatch with one hand, and stead ied himself against the leg with the othe lowering himself until his feet touched the seed. When his chest was opposite the comb ing, he testified, he tried to step as far away from the foot of the leg as possible into the surrounding area of seed, but did not get fas enough away. The suction toward the bottom of the leg was so great that it caught him and, although a fellow workman endeavored save him harm, he was dragged into the back ets and seriously injured. The American Li seed Company appeals from the judgment en tered on the verdict and from the order deny ing its motion for a new trial. The appellant claims that the judgment is erroneous, for the reasons that there was no evidence to support the plaintiff's claim of negligence and that se matter of law it should have been held that the plaintiff assumed the risk. The elevator le consisted of a long rectangular box, in whi passed buckets up and down. These buckers upon an endless chain, turned over a suitable › LEXEN, Appellant, v. WICKES. Respond wheel, held by bars of iron projected in the ent. (Supreme Court, Appellate Division, First Department. June 10, 1904.) Action by Fred- direction of the length of the leg beyond its erica Lexen against William Wickes, M. Ken-ower mouth, so that when it was in operation there was nothing to impede the flow into the dall, for respondent. No opinion. Judgment buckets of the grain surrounding the foot of the affirmed, with costs. leg, and the mechanism at its foot was uncov ered and unprotected in any manner. The court submitted the question of negligence to the jur on the theory that there might have been some proper protection by way of ropes stretched around the foot of the leg; iron bars, incasing the lower mechanism, far enough apart so as not seriously to impede the flow of the seed; an iron railing attached near its foot to the leg itself, to afford support to those who descended into the hatch, or a handle to which a laborer might cling in case of accident; or some other similar contrivance which might render the Loperation of the machinery less dangerous. I think that under the doctrine as evidenced by the following language of the Court of Appeal the case presented a question of fact for the jury to say whether the master had guarded against probable danger, in a case in which that may be done by the exercise of reasonable caution: "We are of the opinion that the ques tions involved are those of fact, which required a submission to the jury. The measure of the duty which rests upon those who are prosecut ing a dangerous business, which is intrinsically hazardous to human life, is not made so definite and clear by the authorities that a person can always readily determine from the facts of given case whether injuries occur from the

LITTLEFIELD,

LAW

Appellant, V.
RENCE, Respondent. (Supreme Court, Appel-
late Division, First Department. May 6, 1904.)
Action by Lemuel Littlefield against John H.
Lawrence.
G. R. Westerfield, for appellant.
G. A. Steves, for respondent. No opinion.
Judgment and order affirmed, with costs.

Ac

LUBIN, Respondent, v. KLINKOWSTEIN, Appellant. (Supreme Court, Appellate Division, First Department. June 10, 1904.) tion by Isaac H. Lubin against Alexander Klinkowstein. L. Kantrowitz, for appellant. No opinion. G. Rosenblatt, for respondent. Judgment and order affirmed, with costs.

LYNCH, Respondent, v. AMERICAN LINSEED CO., Appellant, et al. (Supreme Court, Appellate Division, Second Department. June 10, 1904.) Action by Jeremiah F. Lynch against the American Linseed Company and the Deane Linseed Oil Company. Frederick Hulse (Ernest F. Eidlitz, on the brief), for appellant. Richard J. Donovan (Herbert D. Cohen, on the brief), for respondent.

PER CURIAM. Judgment and order reversed, and new trial granted, costs to abide

em on.

ion of some duty imposed upon the master | of its habitual or occasional negligence in the Im the risks which are incident to the busi prosecution of that particular work. He likeand assumed by the servant. Employ wise waived the same if, as matter of law, which are carried on by the aid of ma- it could fairly be said that the circumstances y and the use of mechanical power, or the were such that he should have known of that nent of large bodies, are generally either danger and appreciated such risk; and the rous in themselves or are made so by the same, whether the risk was obvious or simply ssuess of those who are engaged in carry-one incident to the employment. The Court of Those dangers which are Appeals has drawn a distinction between risks and can be mitigated or avoided by the incident to the business, and obvious risks, se of reasonable care and precaution on whether incident to the business or otherwise. irt of those carrying on the business, and Knisley v. Pratt, 148 N. Y. 372, 42 N. E. 986, es from which happen through neglect to 32 L. R. A. 367. But in the more recent case se such care, are not incident to the busi- of Dowd v. N. Y., O. & W. R. Co., 170 N. Y. and the master is generally liable for dam- 459, 63 N. E. 541, the court seems to obscure occurring therefrom. * In other distinction between incident and obvious risk. it is the duty of the master, having con- In the case at bar, however, we do not think the times, places, and conditions under as matter of law it could be held that the plainthe servant is required to labor, to guard tiff assumed an obvious risk. It is true that gainst probable danger in all cases in he knew he should keep away from the foot that may be done by the exercise of rea- of the elevator; but he distinctly said he did le caution." McGovern v. Central Ver- not know and could not tell how far into the R. R. Co., 123 N. Y. 280, 286, 287, 25 N. seed the foot of the leg projected. It is clear 3. See, also, Freeman v. Glens Falls that, if the whirling buckets were but covered Mill Co., 61 Hun, 125, 15 N. Y. Supp. by the seed, the movement of the latter would Walters v. Fuller Co., 74 App. Div. 388, be more rapid and the place more dangerous Y. Supp. 681; Benzing v. Steinway and than in case the buckets were buried deep in 101 N. Y. 547, 5 N. E. 449; Gottlieb v. the seed. Natural laws and ordinary human L. E. & W. R. R. Co., 100 N. Y. 462, 3 observation will show that the space immediate344. ly around the place where the elevator entered second question raised by the appellant, the seed might be temporarily entirely safe if er, presents a more difficult problem. the opening was deep enough in the substance. his testimony it is clear that, although The plaintiff said he did not know how deep aintiff had worked for the defendant in the buckets were, and the jury has said that ne of business only one day and a half, the risk was not obvious. While the plaintiff ew that the seed at the foot of the leg, might know that he should keep away from the elevator was in operation, was in the place where the leg entered the seed, I can , or, as the learned court in its charge hardly believe that such knowledge was suffijury termed it, "quick with life"; and cient to impute to him a complete understande he knew there was danger at the im- ing of the risks incident to the business. He e foot of the leg, he tried, in descending had worked but a day and a half at this kind he hold of the boat, to step as far away of business, and the jury was justified in findthe leg as possible. Yet I think that ing from the evidence that the plaintiff did not er the risk was obvious, and plaintiff know of the incidental risk. Dowd v. N. Y., ore assumed it, or whether it was a risk O. & W. R. Co., supra; Hoelter v. McDonald, it to the employment, of which plain- 82 App. Div. 423, 81 N. Y. Supp. 616; Griffin new or should have known, and there- v. Ithaca St. Ry. Co., 62 App. Div. 551, 71 ssumed, was a question under the evi- N. Y. Supp. 140; McGovern v. Central Verfairly presented for the jury's considera- mont R. R. Co., supra; Pantzar v. T. Foster That body has found in his favor. The I. M. Co., 99 N. Y. 368, 374, 2 N. E. 24; Kranz harged the jury, and as far as this prop- v. L. I. R. R. Co., 123 N. Y. 1. 25 N. E. 206, is concerned the language must be tak- 20 Am. St. Rep. 716. The question of conthe law of this case, that the plaintiff tributory negligence was properly submitted to hargeable with notice of the action of the jury, and I think the evidence was suffiain, that he knew the grain was quick cient in that particular to sustain the verdict. fe, and that when the space around the The judgment should be affirmed, with costs. was exhausted the seed would move e exhausted space; that he was chargeith knowledge of the danger and with dge of the fact that he must use reasonare in keeping away from the mouth shaft. If it can be said as matter of At the plaintiff, at the time of or before pening of the accident, actually knew e descent into the hold of this vessel he machinery was in operation was with so much danger that he was likeecome injured, even with the degree of says he was exercising, then he enoon or continued in the employ of the nt under the implied contract that he elaim upon his master for the result

LYON et al., Respondents, v. TOWNSEND et al., Appellants. (Supreme Court, Appellate Division, Second Department. June 3, 1904.) Action by J. Crawford Lyon and William A. Lyon against Edward I. Townsend and Charles G. Townsend. No opinion. Order of the County Court of Rockland county reversed on argument, with $10 costs and disbursements.

LYONS, Respondent, v. PEASE PIANO CO. et al., Appellants. (Supreme Court, Appellate Division, Second Department. June 3, 1904.) Action by Catharine C. Lyons, individually and as executrix, etc., against the Pease Piano Company and John D. Pease.

and 122 New York State Reporter

PER CURIAM. We think that the facts set forth in the plaintiff's affidavit show that she is able to prepare the complaint without an examination of the officers of the defendant Pease Piano Company, and the order appealed from, denying said defendant's motion to vacate the order for such examination is there fore reversed, with $10 costs and disbursements, and the motion granted, with costs.

MCCARTHY, Respondent, v. MEANEY_et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. May 24, 1904.) Action by William J. McCarthy against John F. Meaney and others. No opinion. Judgment affirmed, with costs.

McCHESNEY, Respondent, v. ÆTNA LIFE INS. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. May 24, 1904.) Action by Carrie V. McChesney, as administratrix, against the Etna Life Insurance Company. No opinion. Judgment and order affirmed, with costs.

MCLEAN v. INTERURBAN ST. RY. CO. (Supreme Court, Appellate Division, First Department. May 13, 1904.) Action by John C. McLean against the Interurban Street Railway Company. No opinion. Motion denied, upon payment by defendant of $10 costs. Memorandum per curiam.

MARTIN, Appellant, Y. TORREY Respondents. (Supreme Court, Appea sion, Fourth Department. May 24, 194 tion by Frederick Martin against Ec Torrey and another.

PER CURIAM. Order modified, by the amount of the fine imposed to be s of $125, and $75 costs, amounting in 2 gregate to the sum of $200, and, as sO CH affirmed, without costs of this appeal t party.

In re MARTIN'S ESTATE. (Supreme) Appellate Division, Second Departmen 10, 1904.) Proceeding for the judic ment of the estate of John Martin, dend From a surrogate's decree extending tion, William J. Riley, individually and ministrator of the estate, appeals. 24 John R. Kuhn, for appellant. Met France, for respondents.

PER CURIAM. Order of the Sal Court of Kings county affirmed, with and disbursements.

HOOKER, J. (dissenting). John Mart without a will, leaving no lineal desemna no ancestors, no widow, and no brothe ters, uncles, or aunts. There survived ba ↑ one grandnephew and four first costs. whom were removed in the fourth de Kent's Comm. 426. This is an appeal the MCLEAN v. INTERURBAN ST. RY. CO. order of the Surrogate of Kings county (Supreme Court, Appellate Division, First De-ed and set aside, and that the respondente ing that a decree, entered theretofore, be partment. June 17, 1904.) Action by John C. nis Greeley, Michael Greeley, Mary McLean against the Interurban Street Railway James Martin, and Catherine Farrel Company. No opinion. Motion denied.

of uncles and aunts of the decedent, are s to share as next of kin in the distrit the estate of John Martin, deceased, w appellant, William J. Riley, a grands deceased sister of the intestate. The which has been vacated provided that th ance in the hands of the administrator the payment of debts, be paid to the nephew, William J. Riley, the appella decree appealed from declares that the MALONE, Appellant, v. MOSS, Respond-spondents, sous and daughters of a ent. (Supreme Court, Appellate Division, First Department. May 6, 1904.) Action by Eliza Malone against Charles W. Moss. E. Weiss, for appellant. W. J. McCoy, for respondent. No opinion. Judgment affirmed, with costs.

MCSWEENEY et al., Appellants, v. ERIE R. CO.. Respondent. (Supreme Court, Appellate Division, Second Department. June 17, 1904.) Action by Patrick B. McSweeney and another, as administrators, etc., against the Erie Railroad Company. No opinion. Motion for reargument denied, with $10 costs.

MARCUS, Appellant, v. BLOOMINGDALE, Respondent. (Supreme Court, Appellate Division, First Department. June 10, 1904.) Action' by Solomon Marcus against Joseph B. Bloomingdale. S. L. Samuels, for appellant. S. Kohn, for respondent. No opinion. Judgment affirmed, with costs.

MARSHALL, Respondent, v. DE GARMO et al., Appellants. (Supreme Court, Appellate Division, Second Department. June 3, 1904.) Action by Willard A. Marshall against James M. De Garmo and John A. Munger, as executors, etc., of James E. Munger, deceased. No opinion. Judgment and order affirmed, with costs.

uncle and a deceased aunt of the intest
first cousins, are next of kin with R
are entitled to share in the distribution
of the facts are in dispute, and we st
upou to decide no question except whee
der the provisions of section 2732 of 2
of Civil Procedure, sons and daughters da
ceased uncle and a deceased aunt of the
tate are entitled to share in the distribut
his personal estate with a son of a d
daughter of a deceased sister of the e
The Code section referred to provides f
manner in which the surplus of the
property of an intestate shall be dist
its several subdivisions purporting to t
different contingencies. Subdivision 5
follows: "If there be no widow, and no cha
and no representatives of a child, the wh
plus shall be distributed to the next of
equal degree to the deceased, and the
representatives; and if all the brothers
ters of the intestate be living, the whole
shall be distributed to them; if any of 19

1