Third Department, November, 1911.

App. Div.]
obliged to continue to perform the contracts of the bankrupt,
and damages growing out of such failures are properly claims
against the bankrupt and not against the receivers or trustees
as such. A claim of this sort, even if unliquidated, may con-
stitute a proper setoff against any claim of the bankrupt set
up by the trustees, inasmuch as there is then a mutuality of
the debts and credits and they are in the same right. (See
Bankruptcy Act [30 U. S. Stat. at Large, 565], § 68,
subd. a; Loveland Bank. [3d ed.] 371; Collier Bank. [8th ed.]
792, 796.) But it is not apparent how a claim against a
bankrupt may be set up as against a claim for services or
materials supplied by the trustees, even if they in so doing
are but continuing a contract partly performed by the bank-
rupt. They then represent in general the creditors of the
bankrupt's estate rather than the bankrupt, and if they elect
to perform an outstanding contract which is prima facie
terminated by the bankruptcy their right to payment there-
for cannot be affected by any setoff not mutual and in
the same right. At page 376 Loveland lays down the rule
as follows: "A debt to or from the trustee, in bankruptcy
and arising after the bankruptcy in the management of the
estate cannot be set off against a debt due from or to the
bankrupt before the bankruptcy." Although only English
cases are cited for this doctrine it may be noted that Judge
DENMAN in the case of Alloway v. Steere (10 Q. B. D. 22), in
holding a setoff of money owed by the debtor before the
liquidation proceedings not available in an action by the trustee
growing out of matters arising since his appointment, bases
his decision upon principle as well as upon the statute. The
general principle that setoffs are allowed only when debts are
mutual and in the same right is further illustrated by the rule
forbidding setoffs against executors and administrators when
suing upon matters arising since the death of the testator or
intestate of debts owing by such testator or intestate. In 34
Cyc. 722, the text reads: "In an action on a debt payable to
an administrator, a debt due defendant from the intestate can-
not be set off, the demands being in different rights."

The respondent claims that even if this counterclaim was not
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22

[Vol. 147.

Third Department, November, 1911.

available against the trustees, for the reason that there was no mutuality of credits, still the judgment should be affirmed on account of the failure of the appellants to separate and prove the items of work and materials furnished by the bankrupt and by the trustees after bankruptcy, and that the court must assume from the evidence that all the services were rendered by the bankrupt. But inasmuch as appellants' claim was admitted as a whole upon the trial it was not incumbent upon them to itemize it. If respondent's counterclaim was in law available only against a claim for services and materials furnished by the bankrupt, and such claim was evidently a part of the appellants' entire claim, it was incumbent upon the respondent upon the trial so to have itemized appellants' total claim as to show what amount, if any, was subject to its setoff. Respondent clearly had the burden, both of affirmatively proving in general its counterclaim and also of showing as against what sum, if any, the sum claimed to be a counterclaim could be offset. To allow the present judgment to stand when the record shows presumptively that the trustees themselves furnished some part at least of the items making up their total claim, so that the counterclaim was actually allowed in part against a claim of the trustees in their own right as such, is, in my judgment, .erroneous.

The judgment should be reversed on the law and facts and a new trial granted, with costs to appellant to abide event.

All concurred, except KELLOGG and BETTS, JJ., dissenting.

Judgment reversed on law and facts and new trial granted, with costs to appellants to abide event.

App. Div.]

Third Department, November, 1911.

ELIZABETH HUBBELL, as Administratrix, etc., of WILMONT HUBBELL, Deceased, Appellant, v. PIONEER PAPER COMPANY, Respondent.

Third Department, November 15, 1911.

Master and servant - negligence - employee killed by striking an unguarded belt - when not a volunteer.

Where an employee of a paper mill had occasion to enter a pit in the floor of the mill for the purpose of examining the mill machinery, and the floor of the pit was covered with two feet of water, and extending across the pit were two steam pipes and an unguarded belt, one of the steam pipes being located about four feet from the bottom of the pit and the other about five feet from the bottom of the pit, and the belt being located about five feet six inches above the lower pipe, it cannot be said, as matter of law, that the employee was negligent in trying to keep off the pit floor by standing upon the lower steam pipe with the result that his head came in contact with the unguarded belt, or that the employer was not negligent in failing to guard the belt, pursuant to section 81 of the Labor Law.

Evidence examined, and held, not to establish, as matter of law, that the employee who went into the pit was a mere volunteer having no business there.

APPEAL by the plaintiff, Elizabeth Hubbell, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 26th day of May, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the Saratoga Trial Term.

This is an action by a personal representative to recover damages for the death of her husband. Plaintiff's intestate had worked for defendant in its paper mill for some eight years, most of this time as general helper about the mill machinery, but at the time of his death and for two weeks prior thereto as machine tender. In the process of manufacturing paper the raw material passes into beaters, where it is ground or cut up, and from thence down to what is known as the beater-room chest under the floor of the beater room. From this chest extends a box or spout to a pump which forces the stock to another beating machine called the Jordan, from which the stock finally

Third Department, November, 1911.

[Vol. 147.

reaches the particular machine which was in charge of deceased at the time of the accident. The beater-chest spout leading to the pump contains a gate about a foot square, which cannot be raised by hand, but is raised or lowered by means of an iron bar. When the gate is down the stock cannot flow to the pump. The beater-chest spout and the pump are situated in a pit, some eight or ten feet deep, under the floor of the beater room, and access to the pit is through a small hole in the floor of the beater room, which hole is always open. The workmen enter the pit by letting themselves down through the floor to a certain wall some two and one-half feet from the chest. Across the spout run two pipes horizontally, the lower one about four feet from the bottom of the pit, and the other one about a foot higher. The pit is some twelve feet wide by thirty or forty feet long. Running through or across it at one point directly over the spout gate is the main belt of the mill, twenty-four inches wide, and fastened together with plates, from which bolts or fastenings project about one-quarter inch. The belt in motion makes some noise, but this is not especially noticeable when the machinery above is running. Deceased had been in this pit prior to the accident, and others had been there on different occasions. The pump had formerly been located on the floor above, but had been placed in the pit about six months before the accident.

On February 6, 1911, the day of the accident, the pump had stopped, and one Huber, the man in charge of the beater room, had spent several hours with two helpers in the pit working over the pump. Between eight and nine o'clock that night deceased, observing that the stock for his machine was very low, came into the beater room and asked Huber what was the matter with the pump, to which Huber replied that the pump was all right, but that the spout was clogged. Deceased tried to start the pump, but could not, and then asked Huber if he was sure the gate was up. Huber assured him that it was, but deceased said, "Let's go down and be sure it is up.' Thereupon both of them went down, Huber taking a hand lamp. At this time there was about two and one-half feet of paper stock and water on the center of the floor of the pit, and the gate was twelve or eighteen inches under water. It seems

App. Div.]

Third Department, November, 1911.

that the floor of the pit was frequently or usually wet, especially in the hollow center, although it does not appear what was the usual depth of the water. Deceased was on the lower pipe mentioned, whether standing upon or leaning over it does not clearly appear from the testimony. He had just reached his arm down under the water and found out and told Huber that the gate was up, and Huber had taken up the lamp and begun to return when he heard deceased fall, and found him lying partly in the water of the pit, his skull having been fractured by coming in contact with the belt fastenings, as evidenced by blood and hair on the belt bolts, and he died the day following. Deceased was about five feet ten inches tall, and the lower pipe was about five feet six inches from the belt.

Notice was served upon defendant under the provision of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36] §201, as amd. by Laws of 1910, chap. 352).

Butler & Kilmer [W. P. Butler of counsel], for the appellant.

Rockwood, McKnight & McKelvey [Nash Rockwood and L. B. McKelvey of counsel], for the respondent.

SMITH, P. J.:

Appellant's principal contention herein is that the accident in question was the result of defendant's negligence in failing properly to guard this belt, pursuant to section 81 of the Labor Law (as amd. by Laws of 1909, chap. 299, and Laws of 1910, chap. 106). On the other hand, respondent claims that the belt was so high above the floor of the pit that it could not reasonably be expected to be a source of danger, and that, therefore, section 81 does not apply, citing Dillon v. National Coal Tar Co. (181 N. Y. 215) and Wynkoop v. Ludlow Valve Mfg. Co. (196 id. 324). We think, however, that the principles laid down in these cases do not apply to the facts of the case at bar. This pit, especially since the placing of the stock pump there, was clearly a place wherein employees at least occasionally had to be to look after the mill machinery and appliances under their charge. If the floor of the pit had been dry and convenient access thereto had been provided, a different situation would be presented. Upon such a state of facts the possibility of one