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and 140 New York State Reporter for the Eastern District of New York. Pending the proceedings in bankruptcy, and on the 28th day of March, 1906, the usual restraining order was granted by the bankruptcy court, enjoining the prosecution of actions against the defendant. On the 29th day of March, 1907, on the petition of the plaintiff, an order was made by the District Court of the United States, modifying the injunction order, so as to permit it to bring and prosecute a suit against the defendant on the claim upon which this action is based, and to issue execution on any judgment recovered therein, and permitting the plaintiff to institute a suit under the stock corporation law of New York against the stockholders of the defendant, which is a domestic corporation, to enforce any claim that may exist against them thereunder. The order was granted upon conditions, among others: (1) That the plaintiff should not increase its claim in bankruptcy above the claim theretofore duly proved and allowed; (2) that plaintiff should not take any steps or proceedings upon or by virtue of the judgment which should interfere with the assets of the defendant, or with the right, title, or possession of the trustee in bankruptcy, and it is expressly recited that it was the intention of the order that the permission given should be limited to permitting the plaintiff to endeavor to enforce any liability given by statute to a creditor against the stockholders of the bankrupt; and (3) that it was without prejudice to the rights of the trustee in bankruptcy, and that, if it should thereafter appear that the remedy against the stockholders belonged to the trustee in bankruptcy, then the trustee might apply for permission to commence an action against the stockholders, or to continue the action brought by the plaintiff, or for any order that may seem just, upon such terms as the court might prescribe.

This action was brought, pursuant to such leave of the federal court, to recover the sum of $909.23, together with interest thereon, for goods, wares, and merchandise sold to the defendant, and work, labor, and services performed for it. The complaint was verified on the 30th day of April, 1907; but it appears by the statement in the record that the action was not commenced until the 22d day of May, 1907. On the 13th day of May, 1907, after the complaint was verified, but before the action was commenced, the District Court of the United States, by an order duly made, confirmed a composition offered by the bankrupt, verified and filed on the 22d day of April, 1907. The defendant, on the 17th day of June thereafter, interposed an answer herein, in which it admitted all of the allegations of the complaint and alleged as an affirmative defense the adjudication in bankruptcy, the nature of the plaintiff's claim, showing that it was a debt provable and dischargeable in bankruptcy, that plaintiff proved its claim in bankruptcy, that a composition of all claims against the bankrupt was duly offered by it, and that after notice to all creditors such composition was duly confirmed and approved by the court, and annexed to the answer a certified copy of the order confirming and approving the composition, and alleged that thereafter plaintiff received and accepted 7.8 per cent. of its claim pursuant to the provisions of said composition, and that the same constituted a release and discharge of the plaintiff's claim and a bar to the action. The summons and complaint were served at the same time, but indorsed upon the summons, under date

of May 27, 1907, is a receipt by the attorney for the plaintiff of the amount received under the composition in bankruptcy. No claim is made by the respondent that the defense setting up the confirmation of the composition in bankruptcy is not available, owing to the fact that the defendant has admitted all of the allegations of the complaint, including an allegation that the amount claimed was due and owing to the plaintiff from the defendant.

The order and judgment are sought to be sustained only upon the theory that the defense is frivolous, in view of the order of the federal court permitting the plaintiff to institute and prosecute the action to judgment. It is to be borne in mind that, at the time the order permitting the plaintiff to maintain the action was granted, the composition had neither been offered nor confirmed. Section 14, subd. “C” of the bankruptcy act July 1, 1898 (30 Stat. 550, c. 541 (U. S. Comp. St. 1901, p. 3427]), provides as follows:

“The confirmation of a composition shall discharge the bankrupt from his debts, other than those agreed to be paid by the terms of the composition and those not affected by a discharge.”

A composition in bankruptcy may be pleaded in bar of an action upon a debt discharged, and in order to be available as a defense it must be so pleaded. Loveland on Bankruptcy (5th Ed.) 724–727; Collier on Bankruptcy (5th Ed.) 159; In re Becket (U. S.) Fed. Cas. No. 1,210; Glover Grocery Co. v. Dorne, 8 Am. Bankr. Rep. 702, 116 Ga. 216, 42 S. E. 347; Broadway Trust Co. v. Manheim, 14 Am. Bankr. Rep. 122, 47 Misc. Rep. 415, 95 N. Y. Supp. 93. It would seem clear, therefore, that but, at least, for the order of the federal court, permitting the plaintiff to bring the action and prosecute it to judgment and execution the indebtedness upon which the action is based would be discharged by the order confirming the composition in bankruptcy. The merits of the defense were not presented by the motion for judgment on the answer as frivolous, as they would be by a demurrer to the answer or by a motion for judgment on the trial; the rule being that, if it requires argument to show that the pleading is frivolous, it may not be overruled. We are of opinion that it is not perfectly clear that the indebtedness upon which the action is based has not been discharged, so that the plaintiff is not entitled to recover judgment and issue execution against the bankrupt, which now, in view of the discharge and the restoration to the bankrupt of its property, might render the property turned over to it by the trustees liable on execution, and, the discharge having taken place before judgment, defendant might be unable to procure its cancellation upon a ground existing at the time of its recovery. Those questions should be left to be adjudicated in the usual manner.

It follows, therefore, that the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

The appeal from the order should be dismissed. All concur.

and 140 New York State Reporter

HENSON v. LEHIGH VALLEY R. CO.

(Supreme Court, Appellate Division, Fourth Department. November 13, 1907.)

1. MASTER AND ERVANT-D TH OF SERVANT-CONTRIBUTORY NEGLIGENCE

QUESTION FOR JURY.

In an action for intestate's death, in the course of his duty as a brakeman, evidence held to require submission of intestate's freedom from negligence to the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Sery

ant, 88 1089–1132.] 2. SAME-CONCURRING CAUSES.

Where intestate, a railroad brakeman, was killed by the derailment of a car on which he was riding, and there were two or more possible causes, for one or more of which defendant was not responsible, the brakeman's administrator, in order to recover, was required to show that the injury was wholly or partly the result of the cause for which defendant was

llable. 3. SAME-INFERENCES OF FACT.

Where a railroad brakeman was killed by the derailment of a car, his administrator, to establish negligence of the railroad company, was entitled to urge every inference wbich a jury might legitimately draw from

the facts proved. 4. SAME-PRESUMPTIONS.

Where a railroad brakeman was killed by the derailment of a car in the middle of a freight train while slowly passing over a curve, which was of reasonably safe construction and maintenance, it might reasonably be presumed that the curve was not the sole cause of the derailment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Serv

vant, 88 879, 897.] 5. SAME-EVIDENCE OF NEGLIGENCE-PRESUMPTION OF DUE CARE.

Where a railroad brakeman was killed by the derailment of a car, alleged to have resulted from the absence of a column bolt, but the only evidence that the missing bolt could have caused the accident was that it was missing from the arch bars when the wreck was cleared, and was not found in the wreckage, and that the bars were bent, but there was no evidence that the bolt was missing or defective prior to or at the time of the accident, the proof was insufficient to show negligence, in view of the presumption that the railroad company had exercised due care in pro

viding safe appliances, etc. & SAME-QUESTION FOR JURY.

In an action for death of a railroad brakeman by the derailment of a freight car, evidence held to require submission to the jury of the question whether the accident was caused by the breaking of a defective bolster, which had been weakened by the absence of burrs from the ends of the truss rods which supported it.

McLennan, P. J., and Williams, J., dissenting.

Appeal from Trial Term, Ontario County.

Action by Eva Henson, as administratrix, etc., of William S. Henson, deceased, against the Lehigh Valley Railroad Company. From a judgment dismissing plaintiff's complaint at the close of plaintiff's case, and from an order denying plaintiff's motion for a new trial, she appeals. Reversed, and new trial granted.

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

W. Smith O'Brien, for appellant.
Lyman M. Bass, for respondent.

ROBSON, J. At the close of plaintiff's evidence the court granted defendant's motion for a nonsuit, saying that:

“The causes of the accident are purely speculative, and I cannot see where there is any evidence here by which we can rightfully infer, where an inference can rightfully be drawn, either that the decedent had been free from contributory negligence, or that the defendant had been negligent in any duty that it owed to its employé; and for these reasons I deem it my duty to grant this motion for a nonsuit."

On this appeal counsel for respondent does not suggest that plaintiff's evidence was not sufficient to require the submission to the jury, as a question of fact for their determination, whether or not plaintiff's intestate was free from negligence on his part which contributed to the accident which caused his death; and we think that the facts and circumstances attending the accident, as disclosed by her evidence, clearly entitled her to the submission of that question for the jury's determination, if that were the sole question in the case to be resolved, and that the court was not justified in deciding as matter of law that freedom from contributory negligence had not been shown.

The second reason given by the learned court for granting the nonsuit, that it had not been shown that defendant's negligence caused the accident, presents a more serious question for our determination; and a brief recital of the facts which the evidence discloses will aid in arriving at an understanding of the point now presented for consideration. Plaintiff's intestate, at the time of the accident, which occurred December 23, 1905, was employed by defendant as a brakeman, and was one of the crew in charge of one of defendant's trains running on a branch of defendant's railway from Naples to Geneva. He appears to have been competent in the discharge of and familiar with the duties of his position. This train, besides the locomotive, consisted of ten freight cars and one combination passenger and baggage coach. It reached the Pre-emption street crossing, which is a short distance from the terminal of the branch at Geneva, about 6 o'clock in the evening. At this point it stopped to permit passengers to alight. The evening was dark and cold, and signals for the operation of the train were necessarily given by the use of lanterns. Decedent is variously referred to as the middle or rear brakeman, and at this time he was standing on the top of a freight car, three or four cars ahead of the rear coach, which was then his proper position. The head brakeman also stood on the top of a car nearer the engine, separated from decedent by a number of intervening cars. After the passengers had alighted the conductor gave with his lantern the signal to go ahead. Decedent passed the signal to the head brakeman, and he in turn repeated it to the engineer. The train had proceeded but a few hundred feet when the head brakeman observed a stop signal given by decedent. This he at once repeated to the engineer, and on looking again towards the place where he had last seen the light of decedent's lantern it had disappeared. The train was moving slowly, and that part of it on which the head brakeman was stop

and 140 New York State Reporter ped after moving about its length from the time the stop signal was given. Immediately after the train came to a standstill, the train crew came from either end towards the middle of the train, and found the body of the car, upon which decedent, presumably at least, had been riding, separated from its trucks, and lying on its side across the track, with its top towards the head of the train. Decedent's dead body was underneath the car, only his head and a part of his shoulders showing inside the rails and beyond the top of the car. From the evidence as to indentations on the rail and ties the jury might have determined that the trucks of the car first left the rails at a point 190 feet distant from the place where the body lay. The derailed car had separated from the cars ahead, and the forward trucks of the next car in its rear were also off the rails. The point at which the first indentation made by the wheels of the derailed car appeared was near the end of a six-degree curve in the track, around which the train passed on leaving the Pre-emption street crossing.

It is claimed by plaintiff that the jury would have been justified in determining from these facts that, as the train moved around the curve, the forward trucks of the derailed car ran off the rails, and then, after running a distance of 190 feet, was detached from the car ahead and the body of the car tipped over, throwing decedent forward on the track below, as it went over, and, falling upon him, crushed him underneath. Plaintiff further claims that the evidence establishes that the accident was solely due to the negligence of defendant, and specifies three separate grounds upon which this claim is based : First, that there were defects in defendant's track at the point where the accident occurred, of which defendant is chargeable with notice, and that the derailment of the car occurred by reason of those defects; second, that one of the column bolts, the office of which appears to be to hold together what are known as the "arch bars,” forming part of each truck of the car, and preventing them from bending under the weight of the body of the car, was missing; third, that the bolster on one of the trucks, the office of which is to sustain the weight of one end of the body of the car, broke because of its weak and defective condition.

Without referring in detail to the testimony by which it was sought to establish the defective condition of the tracks, we think it sufficient to say that an examination of all the testimony bearing upon that point satisfies us that it is not sufficient to justify a finding that such defects as were disclosed by the evidence made the track unsafe, nor that any defective condition of the track was the cause of the accident. We may therefore dismiss this specification of defendant's negligence from further consideration. It seems that the effect following the breaking, or removal, of a column bolt, and that of breaking down a bolster, are quite similar. Either difficulty would make the wheels crowd the rails on the outer, or high, side of a curve, and tend to prevent the car from turning in following the line of the curve; the result being that the wheels might be pressed with such force against the rails that they would ride it and go off the track. It follows that either difficulty might be sufficient to cause an accident precisely like the one in question.

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