Section 231 of the Municipal Court act provides as follows:

• When a jury trial is demanded the trial of the case may be adjourned within the limitations provided in this act, until the time fixed for the return of the jury."

This section is in title 6 of the act, relating to trials by jury, in which is also found said section 238, already quoted, prohibiting adjournments after the return of the jury, excepting upon condition that another jury fee be paid by the party desiring the adjournment. When a jury trial is demanded, the court should be able to fix the day for the return of the jury and for the adjournment of the case at a time when the calendar will be reasonably clear, so that the case may be tried. This may in some instances involve a long adjournment; but there will be greater justice and less expense to litigants in adjourning the cause originally to a day when it may be tried than in adjourning it, as was done in the case at bar, 15 or more times, and in summoning 15 or more separate panels of jurors to try the issue.

It is clear to my mind that the Legislature contemplated, in granting the right to a trial by jury in the Municipal Court, that the same could be had upon payment of one fee for summoning jurors. With a view to insuring that end, an adjournment at the request of either party is forbidden, unless he pays the additional fee for summoning another jury, the taxation of jury fees is limited to the amount originally paid, and the court is given full discretion to fix the time for the return of the jury on a day when the case may be tried. This construction is borne out by the further provisions of said section 231, which direct the clerk to draw and have the jurors summoned for a time specified in the notice to them, which is to be the time fixed for the adjournment, and providing that, out of the 12 persons summoned as jurors, "six of the persons attending shall be drawn to try the cause, provided that number appear." The jurors are summoned specially in the particular action, and receive 25 cents upon being summoned, for which they are required to attend and required to sit, if selected on the jury, as long as the case may last. If a sufficient number of competent jurors do not attend, talesmen may be summoned under section 236 of the Municipal Court act, and the expense of summoning them is one of the expenses properly taxable under section 330, quoted in the prevailing opinion. If through any emergency the court should be unable to proceed with the trial on the return day for which the jurors are summoned, the jurors may be selected and the cause then adjourned, or, if the court should be unable to devote the time necessary to select the jury, it must have inherent power to continue the cause and direct the jurors to appear at a time when they may be examined and a jury to try the case may be selected from their number. It would seem, however, that if the court, instead of leaving it to the clerk to summon jurors for any day-the prevailing practice, according to statements of both counsel-would exercise proper care in adjourning the cause to a day when the calendar would be clear, or sufficiently clear to render it reasonably probable that it could be reached for trial, and would have this in mind in the enactment of rules and in handling the other business coming before the court, the necessity for further adjournment would seldom, if ever, arise.

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The majority of the court seem to be of opinion that the omission to specially provide for taxation of the fees of jurors, where the adjournment is had at the instance of the court, is a legislative oversight. I am of opinion that the omission was through legislative foresight. I think the Legislature in its wisdom intended to limit the taxation of jury fees in every case to the fee originally paid, and that it foresaw the abuse that would result by permitting adjournments either by the court or at the request of either party, after a party to an action involving a small sum has once paid the cost of summoning a jury, and that the prohibition was for the protection of both parties and to minimize the expense of trials involving small amounts.

For these reasons, therefore, I dissent from the taxation of more than the original fee for summoning the jury.

OLCOTT v. PASSAIC STEEL CO.

(Supreme Court, Appellate Division, Fourth Department. November 13, 1907.) MASTER AND SERVANT-INJURY TO EMPLOYÉ FALLING BEAM-NEGLIGENCE.

One erecting a steel frame building is not liable to an employé for injury caused by one end of a steel beam slipping from a railroad tie on which it was resting, from a jar caused in raising steel columns, where the beam was originally properly placed on the tie, and was in a safe condition 2 days before the accident, and was first noticed by a fellow servant to have slipped into an insecure position about 45 minutes before the accident, where the foreman is not shown to have known, nor to have ground for supposing, the beam was out of place, and where the injured employé was an experienced structural steel worker, and the location of the beam was as observable to him as to any one.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 574-600.]

Appeal from Trial Term, Oneida County.

Personal injury action by James H. Olcott against the Passaic Steel Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and new trial ordered.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

Frederick G. Fincke, for appellant.

P. H. Fitzgerald, for respondent.

SPRING, J. In the spring of 1906 the defendant was erecting a structural steel frame building on Genesee street, in the city of Utica, and the plaintiff, an experienced structural steel worker, was in its employ. The frame was up to the third story, and the third floor was covered with 2-inch plank, except a strip about 8 feet in width extending along the entire south side of the building. The plaintiff was working on this floor, and had been at work five days. He was under a foreman named Rice, and there were seven or eight men at work on this floor when the plaintiff was injured. I-beams, 22 feet in length, had been hoisted by derricks and piled on the southeast corner of the third floor, to be used in the building construction. One end of

these beams rested on a railroad tie. The evidence does not show how long they had been on this floor, but for two days at least.

In the forenoon of April 21st the men were raising and putting in place steel columns about 30 feet in length and 10 inches square. These connecting columns were hoisted upright by a derrick operated by a steam engine, under the direction of Rice, who was by his derrick, 40 to 45 feet from where plaintiff was at work. At the top of each column there were iron plates, called "lugs," containing holes, and there were corresponding holes in the other columns. As a column was lowered, the men steadied it so it would go into the lugs, where it was made stationary by bolts. The impact of the column with the lugs made quite a heavy jar. On this same morning a column was being raised, and the plaintiff, with a co-employé, was steadying it to be placed in the lugs. The plaintiff was standing near the end of one of the heavy I-beams resting on the railroad tie, with his feet separated in order to brace himself, and as the impact came the I-beam slipped from the tie, striking the plaintiff's leg, and fracturing it.

The notice required by the employer's liability act was duly served, and the particular negligence imputed to the defendant is in so placing the I-beams "that the same were liable and likely to tip or fall over at any time and seriously injure any one who might be struck thereby." There is no material controversy over the facts. Regis, a fellow workman of plaintiff, testified in his behalf, and described the location of the beam, which fell on the plaintiff, as follows:

"The I-beam next to where Olcott [the plaintiff] was working was just lying on the very end of the tie.. It was just lying about half off on one end. The tie was about six inches thick. It was flattened on the top and bottom. The end was sawed off square. The I-beam was lying on the end of the tle, just about half of it over the end of the tie. I put my hand on it. It was pretty shaky. It moved at the top. That was about 10 o'clock in the morning. That was about three-quarters of an hour before Olcott was injured."

On cross-examination this witness further testified:

"I saw the I-beams lying there a couple of days before he was hurt. I worked around there. I was close to them, so I could see them. I saw how they were piled. I didn't notice on that day that one of these I-beams was only half on the railroad tie. I didn't notice that the first time. It was all right that day. The first time I saw the I-beams in the southeast corner they were piled all right so far as I know."

There is no evidence in the record which tends to contradict the testimony of Regis. So far as appears, therefore, the I-beam was originally properly placed on the railroad tie, and was in a safe condition two days before the accident. The first time it was observed to have been out of place was about three-quarters of an hour before the plaintiff was injured. There is no suggestion that the foreman knew of its insecure position on the tie, and there is no circumstance appearing indicating that he should have expected it was out of place. This was a building in process of erection, and the contractor could not be expected to have every piece of material used in its erection lying with absolute regularity. Again, the plaintiff was a man of long experience in this work, and the location of the tie was as observable to him as to any one; for he was in its immediate vicinity, and the foreman

and 140 New York State Reporter

some distance away from him. We think the plaintiff failed to make out a case. The judgment and order should be reversed, and a new trial ordered, with costs to appellant to abide event.

Judgment and order reversed, with costs to appellant to abide event. All concur.

(55 Misc. Rep. 369.)

LEE v. BOWLING GREEN SAVINGS BANK.

(Supreme Court, Special Term, New York County. July, 1907.) MOTIONS-SUCCESSIVE MOTIONS ON SAME FACTS.

Real property was conveyed to a savings bank to secure its depositors, and a receiver was appointed. The grantor afterwards conveyed the same premises to a trustee to secure his indebtedness to the bank and to dispose of the surplus as therein directed. The receiver was discharged, without accounting for the surplus arising from the sale of a portion of the property, and without having enforced the claim of the bank against the remainder. The trustee died without having completed his trust, and a justice of the Supreme Court appointed a successor to the former receiver, refusing to confirm the appointment of a new trustee. Held, that another justice will not appoint a trustee on a new application on the same facts.

Action by James Lee against the Bowling Green Savings Bank. Motion to open accounts of receiver denied.

Julius H. Mayer (William J. McCormick, of counsel), for the motion.

Eugene L. Bushe, opposed.

AMEND, J. This is a motion to open the accounts of George I. Landon, as receiver of the Bowling Green Savings Bank, and to restore his receivership, and to appoint him to execute certain alleged trusts claimed to have been left unexecuted by the former trustee, and to vacate certain orders heretofore made appointing Henry B. Heylman receiver of the Bowling Green Savings Bank. Prior to November 20, 1871, James Lee brought an action against the Bowling Green Savings Bank for its dissolution, and on that day Shepherd F. Knapp was appointed temporary receiver. On January 16, 1872, final judgment for dissolution of the bank was entered, and the temporary receiver was then appointed permanent receiver. On November 20, 1871, one Reeves E. Selmes and wife conveyed to the bank certain real property, which consisted in part of a parcel of land on 121st street, near Tenth avenue, and another parcel of land on Tenth avenue, near 125th street, this city. The conveyance contained the following clause:

"The true meaning and intent of this conveyance being to transfer absolutely all the right, title, and interest of the parties of the first part in and to all the above described property to the said Bowling Green Savings Bank to assist said bank, its receiver, or legal representatives in paying the lawful demands of its depositors, and it is hereby understood that this conveyance is given and taken upon the express condition that the avails of the property shall be sacredly applied to the liquidation of the claims of said depositors."

Thereafter, and on February 28, 1872, by deed dated that day, Selmes and wife conveyed the same premises to Shepherd F. Knapp, in trust, to convert the same into cash, and out of the proceeds to pay:

First, the expenses of the execution of the trust; second, the indebtedness of Selmes to the Bowling Green Savings Bank; third, the balance to said Selmes. At the time of these conveyances the 121st street property, together with other property, was subject to three mortgages, aggregating $23,640.50, and the Tenth avenue property, together with other property, was subject to two mortgages, aggregating $3,450. Mortgages covering both the 121st street and Tenth avenue properties were afterward foreclosed; but on the foreclosure sales in July, 1872, and March and May, 1873, of the other properties covered by these mortgages, sufficient money was realized to pay all the mortgages and liens upon the properties in full, leaving a small surplus and rendering a sale of the 121st street and Tenth avenue properties unnecessary. Both the 121st street and Tenth avenue properties were, therefore, freed from the liens of all mortgages. A surplus of $58.31 on the 121st street property and of $201.31 on the Tenth avenue property was paid to Knapp as receiver. He filed two interlocutory accounts, both of which were approved by the court; the last account being in November, 1886. In neither of these accounts were the 121st street or Tenth avenue properties, or the surplus realized on said foreclosure sales, mentioned, except that in the first of said accounts a reference is made to several items of surplus money received on foreclosure of the Selmes property, amounting to $10,972.18. On December 25, 1886, Shepherd F. Knapp died, and George I. Landon was appointed to succeed him. In 1892 Landon accounted and was discharged. No reference to either the 121st street or Tenth avenue properties is made in the account of Landon.

In March, 1889, Selmes and wife executed a deed to one Lockwood, conveying their title and right of reversion in the 121st street and Tenth avenue properties. Subsequently Lockwood conveyed these lands to the wife of John Townshend. She died, leaving a will in which she devised and bequeathed to her husband, John Townshend, her residuary estate, which, it is claimed, includes her interest in these lands. On February 23, 1904, an order was made, upon the application of John Townshend, on notice to the Attorney General and creditors of the bank, appointing a trustee to execute any trust left unexecuted by Knapp as receiver or trustee. No opposition to the granting of this order was made; the Attorney General appearing upon the motion. The trustee thus appointed, discovering that certain parties entitled to notice of motion had not been notified, made an application, upon notice to such parties, to confirm his appointment. This motion was opposed and denied, and the appointment of the trustee set aside. It appearing to the court, in denying the motion and setting aside the appointment, that there were possible assets left unadministered, Henry B. Heylman was appointed receiver to succeed Knapp. Matter of Townshend, 44 Misc. Rep. 415, 89 N. Y. Supp. 1012.

As a justice of this court has heretofore refused to confirm the appointment of a trustee to execute the trusts claimed to have been left unexecuted upon practically the same state of facts as is here presented, I do not think that such an appointment should now be made. The contention of the Attorney General that the appointment of Heylman