in the employ, as he claimed, of defendants; which allegation was denied, and testimony was given by the defendants tending to show that he was in the employ of Enoch Swain, and that said Swain was a contractor with defendants, and not their servant. The complaint was dismissed by the learned trial judge, and from the judgment of dismissal this appeal is taken. The counsel for plaintiff asked to have submitted to the jury the questions whether or not the relation of master and servant existed between plaintiff and defendants, and whether or not the same relation existed between the defendants and Enoch Swain. Counsel also asked that it be left to the jury to decide if the defendants were guilty of negligence in not instructing the plaintiff how to use the machine on which he was working when he sustained his injuries; also that the question of contributory negligence be left to the jury. The requests were denied, and exception duly taken. We are of opinion that the question whether Enoch Swain was a servant of or a contractor with the defendants should have been submitted to the jury. There was testimony on the part of plaintiff tending to show that he was employed by McDowell, the superintendent of defendants' factory, and not by Swain. While it is true the testimony of plaintiff was contradicted by McDowell and Enoch Swain, yet there is no dispute that he sought work of McDowell, and was taken by him to Swain; and the defendants concede that he received his pay from them, though they claim to have paid him as the agents of Swain. The plaintiff sought employment of defendants, and was set to work in their factory by their foreman, and was paid by them; and, if his testimony is true, thought, from the acts of defendants, that he was in their employ; and if from their acts he might so infer, it seems to us that the same acts should be passed upon by the jury for them to draw their inference. While we do not say or mean to intimate that the defendants and their witnesses did not tell the truth, yet to some minds the suspicion might arise that they attempted to contract out all their work on dangerous machinery, to avoid liability for injuries sustained by employes. They certainly had a right to contract as to all their work, but whether they did or not in the present case was a question for the jury.

Whether Enoch Swain was a contractor or employe of the defendants is to be determined by a rule laid down in a recent case in the court of appeals. Judge MILLER, in the case of Hexamer v. Webb, 101 N. Y. 385, 4 N. E. Rep. 755, says: "The test to determine whether one who renders service to another does so as a contractor or not is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as the result of his work, and not as to the means by which it is accomplished." The defendants admit that they furnished Swain with a room in their factory to work in; also with machinery and stock; and, if the testimony of plaintiff was true, with labor. And it appears that Swain did no work except for defendants, and was employed for no fixed time. There is also the fact that plaintiff received his pay from the defendants. Although the jury should find that Enoch Swain agreed with plaintiff as to his wages, we think there was other testimony in the case to require the submission of the question to the jury whether Swain was a contractor or employe. While defendants might not have exercised power of control over the work of Swain, yet if they retained the right to exercise such power during the progress of the work, then, within the authorities, he was their servant, and not their contractor.

The question of the negligence of the defendants was also one for the jury to decide. If Swain was their employe, then he was their foreman in charge of the work; and it was a question of fact whether or not it was in the line of his employment to set plaintiff at work on the machine on which he was injured. If the jury should decide that he represented the defendants in what he did, then, of course, they would be liable for his acts. The question of contributory negligence was also one of fact. It is unnecessary to review the

testimony on this point. In reviewing the case we have taken the testimony of plaintiff as true, as is the rule in the case of a nonsuit, and disclaim any intention to express any opinion as to the facts, except to hold that as to certain facts the testimony was conflicting, and that different inferences could be drawn from many of the facts which were not in dispute. Judgment reversed, and a new trial granted. Costs to abide the event.

VAN WYCK, J., concurred.

FURSMAN v. FANNACI.

(City Court of New York, Trial Term. October, 1888.) LANDLORD AND TENANT-RENT-CIVIL ACTION-DISPOSSESSION-APPORTIONMENT. Code Civil Proc. N. Y. § 2253, providing that a warrant for removing a tenant does not prevent a landlord from recovering by action the reasonable value of the use of the premises for any period, with respect to which the agreement makes no provision, authorizes a landlord, in an action on the lease, to include a portion of rent not due at the time of dispossession; the rent being due at stated periods, and the dispossession being between two such periods.

Action on a lease. Trial by court without a jury.

Miller & Savage, for plaintiff. W. J. Lippman, for defendant.

MCADAM, C. J. The action is on a lease, executed by the plaintiff as landlord to the defendant as tenant, for the term of 2 years, 6 months, and 21 days, from October 11, 1887. The rent was payable monthly, at the end of each month; the payments to commence November 1, 1887. The rent is conceded to be due for May, June, and July, 1888, and for default in the payment thereof the defendant was dispossessed under a warrant issued in summary proceedings, August 21, 1888. The plaintiff sues, not only to recover the three months' rent conceded to be due, but also rent from August 1st till August 21st, the day on which the defendant was dispossessed; and the question presented is whether rent as such is recoverable for those 21 days, or whether the plaintiff should not have brought an independent action against the defendant in form for trespass in wrongfully holding over after the default for which he was dispossessed; the rent for that as well as the preceding months being payable at the end of the month, and not, therefore, capable of apportionment. In plainer language, the rent for the 21 days was not due at the time of the dispossession. In Hinsdale v. White, 6 Hill, 507, a similar question arose, and the court said: "The rent for the last quarter not being due when the warrant to deliver possession was issued, this could not be recovered by action on the lease. * ** ** The tenant may and should be considered a trespasser from that time, so that a sum proportionate to the rent may be recovered as damages in a proper action for the wrongful detainer." This is upon the theory that the summary proceeding was to enforce a forfeiture founded on the tenant's failure to pay rent in arrears, and that the warrant and proceedings related back to the time of the default for which the dispossession was awarded, and that the tenant was by operation of law made a trespasser from that time. Under the rule declared in this and kindred cases, the landlord's appropriate remedy for compensation, after the default for which the dispossession was allowed, was, in trespass, to recover as damages a sum proportionate to the rent during the period of such tortious occupation; the means of recovery, whether the action was on the lease or for trespass, being the same, the form of the action or nature of the remedy only different. The statute in force at the time these decisions were made provided "that, whenever a warrant shall be issued as aforesaid for the removal of any tenant from any demised premises, the contract or agreement for the use of the premises, if any such exists, and the relation of landlord and tenant between the parties, shall be deemed to be canceled and annulled." 3 Rev. St. (6th Ed.) p. 827, §

43. Section 2253 of the Code contains further provisions on the subject, which essentially change the rule laid down in Hinsdale v. White, supra, and kindred cases. See Throop's notes. This section provides: "The issuing of a warrant for the removal of a tenant from demised premises cancels the agreement for the use of the premises, if any, under which the person removed held them, and annuls the relation of landlord and tenant, except that it does not prevent a landlord from recovering, by action, any sum of money which was, at the time the precept was issued, payable by the terms of the agreement as rent for the premises, or the reasonable value of the use and occupation thereof to the time when the warrant was issued, for any period of time with respect to which the agreement does not make any special provision for payment of the rent." The agreement sued upon makes no special provision for the 21 days' rent claimed, and the action may be regarded as “for use and occupation" during this period, at the rate fixed by the lease, or the section may be construed in connection with the agreement in such manner that the cancellation of the lease, by the issuing of the warrant on August 21st, founded on the tenant's default, terminated the lease on that day, and, as a legal consequence, made the rent for the 21 days payable then. The eviction of the tenant was not unlawful, like the common one, treated as a bar to the recovery of rent, but it is made lawful by the tenant himself, and he cannot claim any benefit or exemption as a consequence of his own default. The Code provision is practical, and does even and exact justice between landlord and tenant,holding the latter liable for rent while he retains possession, and discharging him from liability thereafter, without reference to the fact whether the rent was payable in advance or otherwise. The section referred to preserves to the landlord his right of action for "any sum of money," payable at the time of issuing the precept, as well as for the reasonable value of the “ use and occupation" to the time when the warrant issued, where the agreement, as in this case, is silent, and makes "no special provision" for that contingency. The right to recover for "use and occupation" is founded on the relation of landlord and tenant, which, for this purpose, is, by the Code provision aforesaid, preserved, and hence the necessity which formerly required the landlord to sue in trespass for damages accruing after the default for which the tenant was dispossessed was clearly abrogated, and no longer exists. It follows that the plaintiff is entitled to judgment for the amount claimed, with interest and costs.

BOSWELL v. PETTIT.

(City Court of New York, General Term. September 29, 1888.)

1. CONTRACTS-ACTIONS ON-EVIDENCE-SUFFICIENCY.

Evidence that plaintiff did work to a certain value upon a building at the order of defendant's son, then in his employ; that defendant stated that he had orders to repair the building, and would send his son to attend to it; and that, when the bill was presented, defendant said it was right, and promised to pay it, makes out a prima facie case in an action for its value, and the ownership of the building is immaterial.

2. SAME-EVIDENCE-DECLARATIONS-PRINCIPAL AND AGENT.

Evidence of what the son said when he ordered the work, it being subsequently connected by defendant's admission, should have been admitted.

Appeal from trial term; before Justice PITSHE.

The complaint alleges, in substance, that the plaintiff, during the months of June and July, 1887, did certain plumbing work, and furnished certain plumbing materials, at the request of the defendant, in doing certain work in a building on the Boulevard in this city, the aggregate value of such work and materials being the sum of $399.18, and that no part thereof has been paid, and filed a bill of particulars of such work and materials; that, after the per

formance of the work and furnishing of the materials, a statement thereof was rendered to the defendant, who admitted the correctness thereof, and promised and agreed to pay the said sum of $399.18. The answer of the defendant denies "each and every allegation in the said complaint contained." It appears from the testimony of the plaintiff that he is a plumber and gasfitter, and that he did work and furnished materials to the amount and value of $399.18 on the building in question, and that he did no more than was necessary to put the house in a sanitary condition. Robert Graff, in the employ of plaintiff, testified that he received an order to do such work from James C. Pettit, a son of the defendant. That defendant is a carpenter, and had a place of business at the corner of Lawrence street and Tenth avenue; and that James C. Pettit, the son, was at that time in the employ of the defendant. That he presented a bill of the work, etc., amounting to $399.18, to the defendant, that defendant "looked it over, said it was right, and that he would pay it, and to call in in two or three days later, and that he would give me a check for the full amount. I went to see him two or three days after, and he then refused to pay the full amount, and said that he would pay one-half of it; that Dr. Trip was responsible for one-half of it." William J. Trip testified on the part of the plaintiff as follows: "I asked Mr. Pettit if he had any orders to do repairs to this house. He said he had, but that he had been sick, and was not able to go there, but that he would send his son to attend to it. One morning afterwards his son called at the house, and asked what was to De done; and I told him that his father knew all about it. He asked me if I didn't know about it, and I told him, 'No;' that it was out of my line of business." That, after the work was done, defendant's son called upon him with plaintiff's bill for the work done. No evidence was offered on the part of the defendant: but defendant's counsel, after plaintiff had rested his case, moved for a dismissal of the complaint, on the ground that it had not been shown that the defendant authorized the work, and therefore was under no obligation to pay the bill, and that the work was done for the benefit of the estate of Edward J. King. Plaintiff's counsel then requested the trial justice to submit the question to the jury as to the amount due the plaintiff from the defendant; and also to submit the issue generally. The trial justice thereupon dismissed the complaint, on the ground that no cause of action for any amount had been shown against the defendant; whereupon plaintiff appealed. Thos. C. Eunever, for appellant. Thos. A. Rogers, for respondent.

MCGOWN, J., (after stating the facts as above.) The testimony introduced herein on the part of the plaintiff (wholly uncontradicted) made out a prima facie case, and sufficient to go to the jury. It shows that the plaintiff did work and furnished materials upon the building in question of the value of $399.18, the amount claimed. That a bill for such work was presented to the defendant, who said it was right, and promised to pay it. The work was ordered by defendant's son while in his employ. That defendant told the witness Trip that he had orders to repair the house, and that he would send his son to attend to it. That the son called, and asked him (Trip) what was to be done. That defendant looked over the bill presented for the work, and said it was all right; thus recognizing the authority, and ratifying the action of his son in ordering the work. There was evidence of authority on the part of the defendant to his son to order the work done, and of the agency of the son, which should have been submitted to the jury; and the testimony as to what was said to the son at the time he ordered the work, if subsequently connected, as it was, by defendant's admission, should have been admitted, and it was error to exclude it. The question as to the ownership of the building upon which the work was done was entirely immaterial. If the defendant ordered plaintiff to do the work, he became liable therefor; and this question should have been submitted to the jury, and the dismissal of the complaint

was error, and plaintiff's exception taken thereto was well taken. The judgment dismissing the complaint must be reversed, with costs, and a new trial ordered.

(Surrogate's Court, New York County. October 20, 1888.) EXECUTORS AND ADMINISTRATORS-REMOVAL-COSTS.

Findings of the referee that the executrix had practically exclusive control of the estate, and that she used the funds without making any pretense of securing the estate until two years afterwards, and then only when threatened with proceedings in the probate court, justify the conclusions of law that the executrix carelessly and wastefully managed the estate; that she was not a fit person to be executrix; and that she should be personally charged with the costs of the proceeding to remove her.

On application for removal of executrix.

RANSOM, Surr. This is a proceeding to remove an executrix of deceased on grounds stated in the petition, to which an answering affidavit was filed, and the matter sent to a referee. His report and exceptions thereto have been filed. The testator died on the 22d day of October, 1882, and by his will appointed Jemima Stanton, Robert Clark, and William J. Stanton the executrix and executors and trustees of his will. His estate was inventoried at $43,660, as appears from the inventory. Robert Clark, one of the executors and trustees, was duly discharged on his own petition, and the assets were delivered by him to said Jemima and William J. Stanton, the former being entitled to a life-interest in the entire estate; and the four children of testator, one of whom is the petitioner herein, had a vested estate in remainder in the whole of said estate. The above statement is included in the first seven findings of fact of the referee, which are not excepted to, and stand confirmed.

The eighth finding, that Robert Clark turned over the sum of $41,551.25, is excepted to; the executrix claiming the referee should have found the sum to have been $40,950. The account filed in 1884 by Robert Clark, the decree entered thereon, and the two receipts, one for $601.25 and one for $40,950, signed by Jemima Stanton and W. J. Stanton, show that Robert Clark turned over to the executrix and executor the amount found by the referee. The exception is overruled.

The next exception is to the ninth finding, that said Jemima Stanton took possession of the estate, and has ever since had and retained the sole and exclusive use, care, custody, and management of the said estate and the assets thereof, and of the property turned over by said Clark. It appears from the testimony of William J. Stanton that only on one occasion did he exercise his functions as executor, i. e., when his mother was sick; and that on several occasions he signed papers, but did not know what they were. He testifies positively that, with the above exceptions, he had had nothing to do with the estate since Clark was discharged. I have no doubt but that the executrix, with the assistance of her counsel, had sole control and management of the estate. The exception is overruled.

The third exception is to the tenth finding, that W. J. Stanton has not had nor taken charge of the assets of said estate, etc., nor had the management thereof, nor made any investments of funds of said estate. Stanton testifies, in reference to the deposit of $6,000 that he made during his mother's illness and of which he immediately drew out $4,000, that he did not remember exactly what Mr. Crane, the attorney, said, but thinks he said he was going to give it to Mrs. Stanton; that he (Crane) had a mortgage or something; that he (Crane) was going to loan it, as Stanton understood, on a mortgage in Brooklyn. He testifies further that he has signed but two checks since June, 1884, and those related to the above deposit and mortgage testified to. The executrix testi