FOURTH DEPARTMENT, NOVEMBER TERM, 1901. [Vol. 66. the provision for preference for employment provided by section 20 of the act. This was the view evidently taken by the trial court, and we think the case was correctly decided and that the judgment appealed from should be affirmed, with costs. All concurred. Judgment affirmed, with costs. 66 r172 NY 547 312 In the Matter of the Estate of MARY KILLAN, Late of Rochester, N. Y., Deceased. MARTIN KILLAN, Appellant; MILES T. O'REILLY, as Administrator, etc., of MARY KILLAN, Deceased, Respondent. Surrogate's decree settling an intestate's estate - - a brother of the intestate, not notified of the proceeding, is not entitled to a new accounting but may have the decree opened - costs. Where the estate of an intestate has been divided among her cousins, in pursuance of a decree made upon the judicial settlement of the accounts of the administrator adjudging them to be the sole heirs at law and next of kin of the intestate, a brother of the intestate, who was not cited to appear on the accounting, is not entitled to maintain a proceeding to require the administra tor to account de noro, but his remedy is to make a motion to have the original accounting and decree reopened. If he mistakes his remedy and institutes a proceeding to compel the administrator to account de novo, the surrogate may properly impose costs upon him personally. APPEAL by the petitioner, Martin Killan, from a decree and order of the Surrogate's Court of the county of Monroe, entered in said Surrogate's Court on the 17th day of April, 1901, denying his motion for the issuance of a commission to examine witnesses and dismissing a proceeding to compel a judicial settlement of the accounts of Miles T. O'Reilly, as administrator, etc., of Mary Killan, deceased. Myron D. Short and George D. Peck, for the appellant. App. Div.] FOURTH DEPARTMENT, NOVEMBER TERM, 1901. The decree and order appealed from should be affirmed, with costs. The death of the intestate occurred August 24, 1898. O'Reilly, a creditor of the intestate, was appointed administrator of the estate October 21, 1898. The estate consisted of personal property of the value of $1,514.22. A citation for a final settlement on petition of the administrator was issued returnable December 30, 1899. It was directed to the next of kin, heirs at law, creditors and persons interested in the estate, and was served by publication by order of the surrogate upon Patrick Killan, one of the next of kin. On the return day of the citation five persons claiming to be cousins of the intestate appeared personally and by counsel, and claimed the estate. Their names were, Martin Callon, John Callon, Margaret Dunn, Michael C. Callon and Mary Ford. The administrator declined to recognize these persons as heirs or next of kin. Thereupon issue was joined on the question of relationship, and on December 30, 1899, these persons appeared and were examined in Surrogate's Court, and were decreed to be cousins of the intestate, and the only heirs and next of kin living and entitled to share in the estate, and February 7, 1900, a decree was made in the Surrogate's Court directing the administrator to distribute and pay to these persons the balance of the estate after the payment of debts and funeral expenses. And thereafter the administrator made payments accordingly, and filed his receipts in the Surrogate's Court. Thereafter, and on January 9, 1901, the petitioner in this proceeding, claiming to be a brother of the intestate, and to live in Ireland, filed his petition, claiming that no accounting as to him had been made, and asked that citation be issued to the administrator to so account. The citation was issued returnable January 23, 1901. On the return day the administrator answered, setting up the facts hereinbefore stated as to the former accounting, and that he had been discharged as administrator upon such accounting. All these matters appeared to be true from proceedings and records in the office of the Surrogate's Court, and were undisputed. And the court, upon motion of the administrator, refused to issue a commission to examine witnesses, and dismissed the proceeding for a new accounting de novo, holding that the court, by the filing of 66 76 FOURTH DEPARTMENT, NovEMBER TERM, 1901. [Vol. 66. the petition for the original accounting, acquired jurisdiction of the subject-matter, and that the petitioner's remedy was by motion to reopen the original accounting and decree made therein, upon notice to the parties who appeared thereon. The surrogate was correct in the determination made by him. The court acquired no jurisdiction of the person of the present petitioner in the proceeding for the original accounting, and if the petitioner is really a brother of the intestate the original accounting and decree made thereon was not binding upon him, and he is entitled to have such accounting and decree reopened, and to have his day in court; but the court acquired jurisdiction of the subjectmatter of the accounting from the time of the filing of the original petition; that proceeding is still in court and this petitioner's remedy must be had in that proceeding. The surrogate had power to impose costs upon the petitioner personally, on the ground that he mistook his remedy, and made the administrator costs unnecessarily, and should, therefore, be required to pay the same. The decree and order appealed from should be affirmed, with costs. All concurred, except RUMSEY, J., not sitting. Decree and order affirmed, with costs. 3478 314 WILLIAM WALLACE MANNING, an Infant, by WILLIAM H. MANNING, his Guardian ad Litem, Respondent, v. GENESEE RIVER AND LAKE ONTARIO STEAMBOAT COMPANY, Appellant. Extent of the duty of a master to repair machinery — injury from the bursting of a water gauge on a steamboat boiler — the engineer acts in his capacity as a servant in directing a fireman to replace it. The rule that the duty to repair machinery is one incumbent upon the master, does not apply to such defects in machinery as may arise in the daily use thereof, and which are not of a permanent character and do not require the help of skilled machinists to repair them, but may be and are usua..y remedied by the workmen with materials supplied by the master. Where a water gauge attached to a steamboat boiler is fitted with a glass which is liable to break at any time, and the operation of replacing the broken glass App. Div.] FOURTH DEPARTMENT, NOVEMBER TERM, 1901. can be readily performed by turning off the valves at either end of the gauge and thus shutting off the water, and then taking out the defective glass and putting in a new one from a supply kept on hand, the duty of replacing the defective glass is incumbent upon the engineer in his character as a servant. The act of the engineer, upon discovering a crack in the glass, in directing the fireman to turn the valves at either end of the gauge and shut off the water, is that of a fellow-servant, and if the fireman while complying with such direc tions is injured by the explosion of the glass, he cannot maintain an action against the owner of the steamboat therefor. The engineer, although he had power to discharge the fireman for disobedience of orders, cannot be said to represent the owner of the steamboat where it appears that both he and the fireman are under the general direction of the master of the boat. APPEAL by the defendant, the Genesee River and Lake Ontario Steamboat Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 2d day of March, 1901, upon the verdict of a jury for $9,000, and also from an order entered in said clerk's office on the 4th day of March, 1901, denying the defendant's motion for a new trial made upon the minutes. Wilbur F. Osborn, for the appellant. George D. Reed, for the respondent. WILLIAMS, J.: The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide event. The action was brought to recover damages for injuries to the plaintiff, alleged to have been caused by the negligence of the defendant. The plaintiff was a fireman upon one of the defendant's steamboats, and was injured by the explosion of the water glass or gauge attached to the boiler of the boat. The glass or gauge cracked. The engineer discovered the crack and that the steam was escaping therefrom, and thereupon directed the plaintiff to turn the valves and shut off the water. The plaintiff followed the engineer's directions, and while he was turning the lower valve the glass or gauge exploded, some particles of glass flew in plaintiff's eye, and caused the injuries complained of. The engine, boiler and water glass or gauge were not shown to have been defective in any way prior to the immediate time of the occurrence of the accident. FOURTH DEPARTMENT, NOVEMBER TERM, 1901. [Vol. 66. The defect in the glass or gauge, if any, was not apparent until it cracked, just before the explosion. The negligence of the defendant, which was made the basis of the recovery in the case, was the direction given by the engineer to the plaintiff to turn the valves and shut the water off from the glass or gauge, and the failure to inform him of the danger in following such directions. The jury were instructed that the engineer stood in the place of the defendant, and that his negligence was the negligence of the defendant. An examination of the body of the charge, and of the remarks of the court, in response to requests to charge and the exceptions to the charge as made, clearly indicates that the theory upon which the case was submitted to the jury, and the controlling consideration, was that the engineer represented the defendant, and that his negligence was the negligence of the defendant. The court was in error in taking this view of the case, and in submitting it to the jury upon this theory. The steamboat was not in charge of the engineer, but of the plaintiff's father, as master. The engineer and plaintiff, as fireman, were under the general direction of the master. The engineer had sole charge of the engine, boiler and motive power, with the duty of making any necessary repairs thereon. The plaintiff, as fireman, was under the immediate direction of the engineer, who had power to discharge him for disobedience of orders. There was no reason for saying that, in any general sense, the engineer stood in the place of and represented the defendant in the control of the steamboat. He was a co-employee, merely, with the plaintiff. The court seems to have confounded this case with the cases where the duty to repair machinery is imposed upon the master, and in which it is held that this duty cannot be delegated to a servant so as to relieve the master from liability. The neglect of the servant would be the negligence of the master. This is the general rule, but it does not apply to such defects in machinery as may arise in the daily use thereof, and which are not of a permanent character and which do not require the help of skilled machinists to repair, but may be and are usually remedied by the workmen, the materials being supplied by the master. (Cregan v. Marston, 126 N. Y. 568, and cases therein cited.) This case and the cases cited illustrate the exceptions to the |