occurred, the plaintiff was down on the dock. Immediately upon the crossback being pulled out, the foreman, Hundley, was summoned, and set the men to work preparing to remove the hatch cover. The tarpaulin had first to be removed. [1] The plaintiff asserts that the foreman, Hundley, came to the rail of the ship, which was about 20 feet above the dock, and said to the plaintiff : "Allen, come up here, and get up on the hatches, and give Mr. Watts a hand to pull the tarpaulin off." Thereupon the plaintiff, after putting away his hand truck, walked back about 50 feet, and came up over the rail of the ship to the deck, at a point about 20 feet from the hatch. He passed one of the winchmen, and went to where Watts was standing on the hatch, with one foot on the coaming and the other on the covers, engaged in pulling the tarpaulin. Watts had his back toward the plaintiff. The plaintiff also observed the foreman, Hundley, on the opposite side of the hatch, standing on the deck, also with his back toward him, bending over and working at something. The plaintiff, without waiting for any instruction, and without even making his presence known, stepped up on the hatch cover for the purpose, as he stated, of assisting Watts in rolling back the tarpaulin. As he stepped on the cover, it tipped, and he fell and was injured. The plaintiff seeks to hold the defendant liable for the injuries thus received. In Kreigh v. Westinghouse, Church, Kerr & Co., 214 U. S. 249, at page 255, 29 S. Ct. 619, 621 (53 L. Ed. 984), the United States Supreme Court said: "The duty of the master to use reasonable diligence in providing a safe place for the men in his employ to work in and to carry on the business of the master for which they are engaged has been so frequently applied in this court, and is now so thoroughly settled, as to require but little reference to the cases in which the doctrine has been declared. But while this duty is imposed upon the master, and he cannot delegate it to another and escape liability on his part, nevertheless the master is not held responsible for injuries resulting from the place becoming unsafe through the negligence of the workmen in the manner of carrying on the work, where he, the master, has discharged his primary duty of providing a reasonably safe appliance and place for his employees to carry on the work, nor is he obliged to keep the place safe at every moment, so far as such safety depends on the due performance of the work by the servant and his fellow workmen. Armour v. Hahn, 111 U. S. 313 [4 S. Ct. 433, 28 L. Ed. 440], and Perry v. Rogers, 157 N. Y. 251 [51 N. E. 1021]. If the negligence of the master in failing to provide and maintain a safe place to work contributed to the injury received by the plaintiff, the master would be liable, notwithstanding the concurring negligence of those performing the work." (211 N.Y.S.) The cases of Grand Trunk R. R. Co. v. Cummings, 106 U. S. 700, 1 S. Ct. 493, 27 L. Ed. 266, and Deserant v. Cerillos Coal Railroad Co., 178 U. S. 409, 20 S. Ct. 967, 44 L. Ed. 1127, are cited as authority for this latter proposition. In the case of Perry v. Rogers, 157 N. Y. 251, at page 253, 51 N. E. 1021, 1022, Parker, C. J., writing for the Court of Appeals, said: "We think this judgment must be reversed, because it does not appear that the injury sustained by the plaintiff was due in any degree whatever to the omission of the defendant to perform any duty which, as master, he owed to his servant, this plaintiff. The learned trial judge submitted the case to the jury upon the theory that there was some evidence tending to show that the defendant omitted to perform the duty the law charges upon all masters of furnishing a reasonably safe place in which the servant may work." [2] It appears to be the law that if a safe place was furnished, and, during the performance of the work, it has become momentarily unsafe, through acts of fellow servants or employees, through no fault of the master, he is not liable for a resulting accident. We believe this to be such a case, and that the master is not liable for the negligence of the employees in permitting the place to become unsafe during the performance of the work. The judgment and order should be reversed, with costs, and the complaint dismissed, with costs. Order filed. CLARKE, P. J., and BURR, J., concur. FINCH, J. (dissenting). I dissent. The verdict of the jury established the truth of the contention of the plaintiff that the foreman, Hundley, came over to the rail of the ship, which was about 20 feet above the dock, and said to the plaintiff : "Allen, come up here, and get up on the hatches, and give Mr. Watts a hand to pull the tarpaulin off." Thereupon the plaintiff did just as he was told to do. The plaintiff did not need to wait for further instructions. Those he had were complete. He came over the rail of the ship, and stepped up on the hatch cover for the purpose of rolling back the tarpaulin. There had been a change in the hatch cover since the plaintiff had stood by the hatch in the morning and given signals, so that the place had become what amounted to a concealed trap, so far as the plaintiff was concerned. Whether when Hundley, the foreman, gave the directions to the plaintiff to step upon the hatch cover and remove the tarpaulin, Hundley was a fellow servant with the plaintiff, depends upon whether it can be said that the risk which the plaintiff took was such as was incident to his employment, or 'such as was as open and obvious to the plaintiff as to the defendant. In Kennedy v. Cunard Steamship Co., Ltd., 197 App. Div. 459, 461, 189 N. Y. S. 402, 405, affirmed 235 N. Y. 604, 139 N. E. 752, where a hatch cover was closed before the plaintiff had come up from the hold, it was held that the foreman, in closing down the hatch cover upon the plaintiff, was the alter ego of the defendant, and was not a fellow servant. This court, through Page, J., said: "It was a duty that the master owed to the employees to take reasonable precautions to see that all the men had come up from the hold, and not to close down the hatches until all the men had a reasonable opportunity to reach the upper deck. This was a duty that the master could discharge through another; but it was the master's duty that the other was performing, and for a failure to discharge it the master was liable. Corcoran v. Holbrook, 59 N. Y. 517 [17 Am. Rep. 369]; McGovern v. Central Vermont R. R. Co., 123 N. Y. 280, 288 [25 N. E. 373]; Eastland v. Clarke, 165 N. Y. 420, 429 [59 N. E. 202, 70 L. R. A. 751]. The foreman in this case directed the work in the three aft hatches; the men took their orders from him, and applied to him for tackle and other appliances used in their work; it was he who gave the orders to close the hatches. He was not a fellow servant, but was the alter ego of the defendant. The plaintiff made a prima facie case. Whether the plaintiff, placed in the situation that he was by the closing of the hatch, and failing to get any response to his outcries, was chargeable with contributory negligence in going forward in the manner he did, was clearly a question of fact for the jury. The plaintiff did not assume the risk. 'It is now the settled law of this state that the risks which a servant assumes are either such as are incident to his employment, after the master has discharged his duty of reasonable care to prevent them, or such as are quite as open and obvious to the servant as the master.' Eastland v. Clarke, supra, 427 [59 N. E. 202]. The plaintiff was not employed to work in the ship in the darkness. The risk of falling into the open hatch in the daytime, when engaged in the work, he assumed. But the risk of falling into the hatch, when all light had been cut off by the master's negligent act, he did not assume. In McGovern v. Central Vermont R. Co., 123 N. Y. 280, 25 N. E. 373, the decedent was directed by the superintendent to enter a grain bin from a trapdoor in the bottom. The court there held that the danger did not arise out of the ordinary prosecution of the work, and that, in ordering the decedent to occupy a place of danger, the superintendent was the alter ego of the master. So, in the case at bar, it cannot be said that the risk of being directed to work upon a hatch cover, known to the foreman to be so unsafe as to precipitate into the hold any one stepping upon it, was an incident of the employment or a detail of the work of the 'plaintiff, or that the danger was as open and obvious to the plaintiff as it was to the foreman, as the representative of the master. It was the duty of the defendant to furnish safe hatch covers for the men to walk on and work on, and when the hatch cover became unsafe, to the knowl (211 N.Y.S.) edge of the foreman, the knowledge of the foreman was the knowledge of the master, and the master was bound to prevent the men from going upon the unsafe hatch cover until the dangerous condition had been corrected and the place restored to a condition of safety. It thus became a question of fact for the jury whether, under all the circumstances, the defendant had discharged its duty. When the plaintiff disclaimed on the trial any liability because of the negligence of Hundley, the foreman, this obviously had reference. to the acts of Hundley, not as the representative of the master, but to Hundley as a fellow servant. The objection referred to is the only one relied on by this court for a reversal and dismissal of the complaint. The remaining objections urged were not sufficient to require the setting aside of the judgment. Kennedy v. Cunard Steamship Co., Limited, 235 N. Y. 604, 139 N. E. 752. (213 App. Div. 677) PEOPLE ex rel. BRODERICK v. GOLDFOGLE et al., Commissioners of Taxes and Assessments. (Supreme Court, Appellate Division, First Department. July 6, 1925.) 1. Constitutional law 63 (1)—Statutes 47, 49-Taxation 42(2)— Statute taxing moneyed capital coming into competition with national banks, held valid. Laws 1923, c. 897, taxing moneyed capital competing with business of national banks, with certain exceptions, as authorized by Rev. St. U. S. § 5219, as amended in March, 1923, in view of decisions of federal courts defining terms, held not invalid because of indefiniteness, impracticability, lack of uniformity, or delegation of legislative power, in that Legislature adopted moneyed capital clause of federal act, without defining class of subjects of taxation. 2. Constitutional law 63(1)-No illegal delegation of legislative power to boards required to perform solely ministerial duties. Where duties to be performed by local boards are solely ministerial, there is no illegal delegation of legislative power, notwithstanding exercise of such duties may require consideration of changing conditions. 3. Constitutional law 229(1), 283-Statute taxing moneyed capital competing with national banks, held not denial of due process or equal protection of laws. Laws 1923, c. 897, taxing moneyed capital competing with business of national banks, as authorized by Rev. St. U. S. § 5219, as amended in March, 1923, held not violative of Const. U. S. Amend. 14, prohibiting denying of equal protection of laws or of due process of law. For other cases see same topic & KEY-NUMBER 10 all Key-Numbered Digests & Indexes 4. Constitutional law 283-Statute taxing moneyed capital competing with national banks, held not invalid because depending on action of Congress, in violation of due process clause. Laws 1923, c. 897, taxing moneyed capital competing with business. of national banks, as authorized by Rev. St. U, S. § 5219, as amended in March, 1923, and providing, under Tax Law, §§ 25, 25-a, 25-d, 25-f, 36, 37, 39, for hearings by assessors and review by certiorari, held not invalid because property subject to tax depends on action of Congress, in violation of Const. N. Y. art. 1, § 6, and Const. U. S. Amend. 14, prohibiting taking of property without due process of law. 5. Statutes 51-Taxation 37-Statute taxing moneyed capital competing with national banks held not invalid because depending on federal statute. Laws 1923, c. 897, taxing moneyed capital competing with business of national banks, as authorized by Rev. St. U. S. § 5219, as amended in March, 1923, being amendment of tax law, held 'not violative of Const. art. 3, § 24, requiring tax laws to definitely state tax and object to which it applies, and providing that reference to other laws is insufficient, because property subject to tax depends on act of Congress. 6. Statutes 64 (8)-Invalid provisions of statute taxing moneyed capital competing with national banks held severable. Even if section 27, Laws 1923, c. 897, taxing moneyed capital competing with national banks, is invalid for failing to comply with Const. art. 3, § 21, and in violating article 8, § 9, it is severable from remainder of statute. 7. Taxation 58-Statute taxing moneyed capital competing with national banks applies to year 1923. Laws 1923, c. 897, taxing moneyed capital competing with national banks, held to apply to year 1923. 8. Taxation 73-Money invested in stock brokerage firm held not subject to tax under statute taxing moneyed capital competing with national banks. Money invested in stock brokerage firm, which loaned customers difference between purchase price of stock and amount paid on price, or on margin, for which it charged interest, was not subject to Laws 1923, c. 897, taxing moneyed capital competing with national banks, where brokers, in order to effect such loans, borrowed all or as much as they could from banks. 9. Taxation 73-Money invested in membership in Stock Exchange held not subject to statute taxing moneyed capital competing with national banks. Money invested in membership in New York Exchange held not taxable under Laws 1923, c. 897, as moneyed capital competing with national banks. Appeal from Supreme Court, New York County. Certiorari by the People, on the relation of Arthur F. Broderick, against Henry M. Goldfogle and others, as Commissioners of Taxes For other cases see same topic & KEY NUMBER in all Key-Numbered Digests & Indexes |