it also appears, as we have seen, that the money was deposited to the credit of the firm, and to the individual credit of Leroy Riddell; while, on the other hand, it also appears that the money was again checked out by checks drawn by George Riddell, so that it becomes important to inquire as to whether the money was again used in the business of the firm, or whether it was used in the individual businses of George Riddell. Leroy Riddell has testified that it was taken by George and used by him in his individual business, under an agreement that he would repay the same upon demand, and would allow him interest thereon. George Riddell had constructed an hotel in the city of Bradford, Pa., which was known as the "Riddell House." He was engaged in running this hotel, and this constituted the Bradford business, so called; and the question is raised as to whether or not they were copartners in this business. Several witnesses testified to conversations in which Leroy had declared himself as interested in the Bradford business. He, however, denies that he was interested, or that he made such statements, and declares that he was not interested in that business. It appears that the title to the property was in George Riddell; that it was conducted in his name; that the register was entitled in his name; that the property was insured in his name; and that produce and provisions for use in the hotel were shipped to George in his individual name. Upon this evidence the trial court found, and we think properly, that the Bradford business was the individual business of George Riddell. This being the case, it follows that the money belonging to Leroy Riddell received by George Riddell upon the sale of the western lands is traced into the hands and business of George Riddell, and no claim is made that it has ever been repaid to Leroy Riddell. It is contended further, however, that the transfers were made with the intent to hinder and delay creditors. George, however, had the right to pay his brother Leroy any debt that was actually due and owing to him, and Leroy Riddell had the right in good faith to collect and receive pay for that which was justly and truly his due. He tells us that he first learned of his brother's indorsing for Vorhis in July; that he became alarmed, and insisted on his brother's paying him the amount due and owing to him at that time, and had frequent interviews thereafter until the conveyances and transfers in question were made; that he had no other motive in the matter than to get his pay, etc. The trial court has believed the testimony in this regard, and, inasmuch as there is nothing to contradict it, we must regard the conclusions of the trial court as conclusive upon this question. As to the transfer of the copartnership property for the payment of the debts of the copartnership, there is nothing before us from which we can determine that there will be any surplus left after the payment of such debts. There is consequently no fraud established in reference to this part of the transaction, and our conclusions are that the findings of the trial court should be sustained. The evidence taken upon the trial, together with the exhibits, is very voluminous. Many questions are raised in reference to the admission and rejection, of evidence. We have examined them all with some care, and are of the opinion that no sufficient reason exists for the granting of a new trial. The judgment should consequently be affirmed, with costs. So ordered.

BARKER, P. J., and BRADLEY and DWIGHT, JJ., concurred.

HARRINGTON v. CITY OF Buffalo.

(Supreme Court, General Term, Fifth Department. October 19, 1888.)

1. MUNICIPAL CORPORATIONS-DEFECTIVE SIDEWALKS-ICE.

In an action against a city for injuries sustained by a fall on an icy sidewalk, evidence that there was, at the time of the accident, an oval ridge of ice, six inches high, in the middle, sloping to the edges of the walk; that it had snowed three times

within the eleven days preceding, aggregating twenty inches of snow, the last fall being five days before the accident,-justifies the jury in finding that the ice resulted from the fall of snow referred to, and that the city had notice of its existence.1 2. SAME-INSTRUCTIONS.

In such case it is not error to refuse to instruct that, if the accident was caused by ice formed by the freezing of the rain that fell the day before, the city was not liable; as such instruction disregards the rule of a city's liability where injury results from a combination of two causes for only one of which it is responsible. 3. TRIAL OBJECTIONS TO EVIDENCE.

Striking out testimony subsequently appearing irrelevant, as being an opinion of the witness, is discretionary with the court. The proper remedy in such case is to request an instruction to disregard the testimony.

Appeal from special term, Erie county.

From an order de

Action by Ellen Harrington against the city of Buffalo for injuries resulting from a fall on the sidewalk. Verdict for plaintiff. nying a motion for a new trial defendant appeals.

Before BARKER, P. J., and BRADLEY, DWIGHT, and HAIGHT, JJ. William F. Worthington and Frank C. Laughlin, for appellant. Adelbert Moot, for respondent.

HAIGHT, J. This action was brought to recover damages for a personal injury sustained by the plaintiff by falling upon a sidewalk in the city of Buffalo, on the 26th day of February, 1886. The accident occurred on the sidewalk on the southerly side of Fulton street, near the corner of Alabama, opposite of premises occupied by a man by the name of Ford. The evidence tends to show that at the place where the plaintiff fell there was a ridge of snow and ice in the center of the walk some six inches thick, and sloping to the outer edges of the walk; that on the 15th of the month there was a fall of seven and three-tenths inches of snow, on the 20th nine inches, and on the 21st four and five-tenths inches: that Ford was away from home, and the walk in front of his premises had not been cleaned.

The fact that on the 26th there was a ridge of snow and ice six inches thick in the center of the walk, we think justifies the inference that it had been formed from the accumulations of snow which had previously fallen on the occasions referred to; and that sufficient length of time had elapsed to justify the finding that the defendant or its officers had notice of the condition of the walk; and that it became a question of fact for the determination of the jury. It is contended that the court erred in denying the defendant's motion to strike out the testimony of Mrs. Harrington, the plaintiff's daughter-in-law, to the effect that the sidewalk had been in an icy condition for a long time prior to the accident. It subsequently turned out, upon the cross-examination, that she was but giving her opinion, and was not speaking from personal knowledge. The motion to strike out, under such circumstances, was discretionary with the trial court. The remedy of the defendant was to ask the court to instruct the jury to disregard her evidence in that particular. Marks v. King, 64 N. Y. 628; Platner v. Platner, 78 N. Y. 90-101. exception, therefore, taken upon the refusal of the court to strike out the evidence, is not available upon this appeal.

The

At the conclusion of the charge of the court, the defendant's attorney requested the court to charge that, if the jury should find that the accident was caused by ice formed from the freezing of the rain that fell the day before, then the city is not liable. The court replied that, “if it was caused solely

1On the general subject of the liability of a municipal corporation for injuries caused by icy streets and sidewalks, see Adams v. Town of Chicopee, (Mass.) 18 N. E. Rep. and note; Tobey v. City of Hudson, ante, 180, and note.

As to what is sufficient notice to a municipality of defects in its streets and sidewalks to render it liable therefor, see Weber v. City of Creston, (Iowa,) 39 N. W. Rep. 126, and note; Klein v. City of Dallas, (Tex.) 8 S. W. Rep. 90, and note.

by the ice, and the elevation of the sidewalk had nothing to do with it, that the defendant's counsel was correct." The defendant, however, excepted to the refusal of the court to charge as requested. It appeared, from the evidence, that the day before the accident it rained during the forepart of the day, and in the afternoon the temperature fell, and it commenced freezing; that there was a heavy gale of wind continuing through that day and the day following. The rule is, when two causes combine to produce an injury to a traveler upon the highway, both of which are in their nature proximate, one being a culpable defect in the highway, and the other some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for such defect. Ring v. City of Cohoes, 77 N. Y. 83-88; Taylor v. City of Yonkers, 105 N. Y. 202-208, 11 N. E. Rep. 642. The city would not be liable for the injury occasioned by the ice that formed the night before the accident. It was only liable in case the injury occurred from the ridge of snow and ice that had previously formed, and in case the injury would not have been sustained but for such ridge. The case was tried upon the theory that the ridge of snow and ice caused the fall, and this question was submitted to the jury in the charge that was made. It is possible that new ice had formed upon the ridge the night before, and that it may have added to the slippery condition of the walk, and in some measure contributed to the injury; that, if it did, it was necessary for the jury to determine, in order to sustain a recovery, that the injury would not have been sustained had it not been for the previous existence of the ridge of snow and ice. The attention of the trial court does not appear to have been called to this precise point. Had it been, the jury would doubtless have been more fully instructed upon it. The request to charge, as made, did not embrace it; and, under the evidence, the court could not well disregard the previous existence of the ridge of ice and snow testified to by the witnesses. We consequently are of the opinion that the exception, taken to the refusal to charge as requested, presents no error which calls for a reversal of the order. The order appealed from should be affirmed. So ordered.

BARKER, P. J., BRADLEY and DWIGHT, JJ., concurred.

PAGET et al. v. PEASE et al.

(Supreme Court, Special Term, New York County. October, 1888.)

WRITS SERVICE BY PUBLICATION-Death of a PLAINTIFF-TRUSTS-ACTION BY TRUS

TEE.

On the death of the trustee of a married woman, pending the publication of the summons in an action in which they are joined as plaintiffs, the action is suspended until his successor is appointed, when the publication must be commenced de novo, and a motion or order to suppress the publication is unnecessary.

At chambers.

O'BRIEN, J. This is a motion to suppress the order of publication on the ground that, by the death of Alfred Paget, one of the plaintiffs, the proceeding has abated. The action is one in equity to set aside certain judgments and agreements, and for other relief. The plaintiff Mary Fiske Paget is a daughter of the late Paran Stevens, and one of the residuary legatees under his will. A co-plaintiff, Alfred Henry Paget, was the sole surviving trustee under an antenuptial settlement executed by Mrs. Paget, and was vested with the legal title to all of Mrs. Paget's interest. An order of publication was obtained, and on July 28th publication was begun, and would have been completed on the 8th day of September. On the 24th of August the plaintiff, Alfred H. Paget, died.

Code Civil Proc. § 755, provides that, where a cause of action survives, the action shall not abate by any event. It is evident, therefore, that the cause of action survives, and that Mary Fiske Paget, the cestui que trust, has the right to have a new trustee appointed, and to prosecute the action in his name jointly with her as before, or to make him defendant. The distinction, however, must be made in construing the sections of the Code between the abatement of an action and an abatement as to a party to the suit. Section 755 in the Code refers to the former, and the remaining sections (757, 758, and 759) refer to abatement as to a party. And while these sections provide for cases where one of several plaintiffs dies, and the cause of action survives in favor of the others, and 757 has to do only with the death of a sole party, and 759 to a case where a part of the action survives to the remaining party, I am of opinion that none of these sections provide for a case like the present; and, in the absence of such a provision in the Code, if necessary, resort should be had to the practice of the court of chancery in like cases. It is clear that the court has no jurisdiction of a defendant until the summons has been served, either personally or in the alternative methods sanctioned by the Code. The summons is not served by publication until six full weeks have expired from the first day of publication. This is not a case where the right of action, as in the cases of joint tenancy, survives in favor of the remaining plaintiff, but it is necessary for a complete determination of the rights of the parties that a new trustee should be brought in. The present, therefore, seems to me to be analogous to a case where the summons had been delivered to a sheriff for service, and, before the personal service thereof, one of the co-plaintiffs died in an action where his rights did not survive in favor of the remaining coplaintiff. It is evident in the case mentioned that service by the sheriff, after such death, would be futile. For, even though it were held that the action might still survive, or be pending, the death before service would abate it as to him, and the interest that he represented, so that it would have to be begun over again. I do not see, therefore, in this case, how any motion was necessary. The action survives, and the practi al effect of the death of the trustee would be to suspend the action until his successor should be appointed, when the publication would have to be commenced de novo. While, therefore, the action survives, it can be said that there is an abatement as to one of the parties plaintiff who died. I therefore regard it as clear that, until his successor is appointed, the action is suspended; and when appointed will require, in order to give the court jurisdiction, a publication anew of the summons. I do not see, therefore, that any motion or order is necessary, as it would be simply declaratory of what the law itself provides.

GOLDMAN v. MASON et al.

(City Court of Brooklyn, General Term. October 22, 1888.)

1. MASTER AND SERVANT-NEGLIGENCE OF MASTER-INDEPENDENT CONTRACTOR. In an action for injuries, there was evidence that plaintiff was hired by one who was a contractor with defendants, and not their servant; and also evidence that he was employed by defendants' superintendent. Plaintiff applied to the latter for work, and was taken by him to the former, and defendants paid him, but allege that they paid him as the contractor's agents. Defendants furnished the alleged contractor with a room, machinery and stock, and he did no work except for them, and was employed for no fixed time. Held, that the questions whether the alleged contractor was a contractor or a servant of defendants, and whether plaintiff was employed by defendants, are for the jury, under proper instructions.

2. SAME.

One who renders a service for another in the course of an independent occupation, representing the will of his employer in the result of his work only, and not as to the means, is a contractor, and not a servant; but if the employer retains the right to control the work, even if he does not do so, the employe is a servant. 3. SAME-NEGLIGENCE OF MASTER-PROVINCE OF JURY.

Plaintiff testified that he was directed by the alleged contractor to put some bundles of wood through a rotary bed planer of complicated construction, driven by steam, and having a knife which made 4,000 revolutions per minute; that he had never worked on the machine, and had received no instructions in its use, except to start and stop it; that he was injured in putting through a piece, one end of which was too large to fit the gauge of the machine, so that it caught and drew in his hand. Held, that the questions of negligence of defendants, and contributory negligence of plaintiff, were for the jury.

Appeal from trial term.

Action for injuries alleged to have been received by plaintiff while in defendants' employ. Plaintiff was taken to one Swain by defendants' superintendent, McDowell, and Swain gave him work. Plaintiff testified that he was engaged at the sandpapering machine, (a machine not at all dangerous to work upon,) when he was directed by Swain to work on the planing machine. This machine was a complicated rotary bed planer, driven by steam, and having a knife making about 4,000 revolutions per minute, and requiring a skilled and experienced workman to operate it. Plaintiff had never worked upon it, and had never received any instructions in its use. Swain gave him no instructions as to its use, except to tell him how to start and stop it, but told him to put certain bundles of wood through the machine. Plaintiff, being wholly ignorant of the use of the planer, started to put through a piece which at one end was too thick for the gauge as then set. It caught in the machine, and his right hand was drawn into the rollers and permanently disabled. Defendants claimed that plaintiff was not employed by them, but by Swain, who, they claimed, was an independent contractor. Swain testified that he had not directed the plaintiff to work at the planing machine at all. The defendants' testimony tended to show that there prevailed in their factory a socalled "contract" system, and Swain was one of the contractors employed by them. He worked under agreements with the defendants to make seat-frames at an agreed price per piece. The work was done by him in defendants' factory. The defendants furnished him with the stock in the rough, with the machinery, the power, and the room to work in, and kept the machinery in repair. He worked for no one but the defendants, and there was no fixed term to his employment, and it was liable to be ended at any time, at the instance of the defendants. A motion for nonsuit was granted, and plaintiff appeals.

Argued before CLEMENT, C. J., and VAN WYCK, J.

Louis S. Phillips and L. A. Wray, for appellant. Benjamin F. Tracy and Charles A. Flammer, for respondents.

CLEMENT, C. J., (after stating the facts.) The plaintiff brought this action to recover damages for injuries sustained on November 26, 1886, while V.2N.Y.s.no.14-22