"Shall Front avenue and De Witt avenue, in the village of Bronxville, be graded and paved wholly at the expense of said village, at a cost not exceeding eighteen thousand four hundred dollars ($18,400); the said village of Bronxville, for the purpose of paying the cost thereof, to borrow money on its bonds, not exceeding in the aggregate eighteen thousand four hundred dollars ($18,400); a sum to be raised annually by levying a tax on all taxable property in said village sufficient to pay the interest and principal of all said bonds as the same become due?"

The defendants' claim may now be understood. They assert that the last sentence of section 5 of the municipal law means that the resolution submitted to the taxpayers shall contain a statement specifying the sum which shall thereafter be raised by tax by the village of Bronxville to pay the interest and principal of the bonds as the same shall become due, and that, because no such statement was contained in the proposition submitted to the taxpayers of the plaintiff, the proceeding was not had in conformity with law, and the bonds issued pursuant thereto were illegal and invalid.

What our view of this contention might be, were the question presented to us as an original proposition, it is not deemed necessary to state, in view of the decision of the Court of Appeals in New York & Rosendale Cement Co. v. Davis, 173 N. Y. 235, 66 N. E. 9. That was a taxpayer's action to restrain the trustees of the village of Rosendale from issuing bonds to purchase the waterworks plant in that village. The proposition which had been submitted was in the following form:

"Resolved: Shall there be raised upon the village of Rosendale the sum of $40,000 for the purchase of the waterworks system from the Rosendale Waterworks Company?"

The judgment for the defendants was affirmed, and it is clear that the effect of the affirmance was to declare in favor of the legality of the bonds. It is apparent that the proposition as submitted in the Rosendale Case was even more general than that in the case at bar, and certainly did not conform more nearly to the apparent requirement of that portion of section 5 of the general municipal law which has been noticed. The case arose, however, and the decision was made, subsequent to the enactment of that section of the general municipal law, and while it was yet in force; and it seems entirely clear that, if the bonds in the Rosendale Case were valid, they are in this.

The judgment should therefore be for the plaintiff, declaring the bonds valid and requiring the defendants to complete the purchase, without costs. All concur.

and 140 New York State Reporter

HOBBS et al. v. SCOTT.

(Supreme Court, Appellate Division, Second Department. November 22, 1907.) TAXATION-TAX SALE-NOTICE-AFFIDAVIT OF SERVICE.

Under Laws 1883, p. 104, c. 114, § 5, requiring that an affidavit of a person making service of notice of sale of lands for taxes should state deponent's knowledge as to the identity of the person served, an affidavit of service, stating that deponent knew the persons served to be the widow, children, and executor and widow of a deceased son of the deceased owner, to whom notice was addressed, was sufficient, though the facts on which the knowledge was based were not stated.

Action by John Hobbs and another, as executors of John Hobbs, deceased, against Walter M. Scott. Submission of question of law to Appellate Division of Supreme Court upon agreed statement of facts. Judgment for plaintiffs.

Argued before JENKS, HOOKER, RICH, MILLER, and GAYNOR, JJ.

Sackett & Lang, for plaintiffs.

Frederick Cobb, for defendant.

RICH, J. Acting under the requirements of section 3, c. 114, p. 103, of the Laws of 1883, the registrar of arrears of the city of Brooklyn, on March 25, 1885, sold certain real property situate therein for unpaid taxes, or assessments, to the plaintiff's testator, and issued to him a certificate of sale. The premises so sold were assessed to one James O'Brien, who, prior to such sale, died the owner in fee thereof. Hobbs caused the notice provided for by section 5 of said statute, directed to Mary O'Brien, widow, Stephen O'Brien, sole executor, and the children of said James O'Brien and the widow of a deceased son, to be served; the affidavit of such service stating that "deponent knew the persons so served aforesaid to be the same persons mentioned in and to whom such notice of sale was directed, respectively, and also knew the said Mary O'Brien so served as aforesaid to be the widow, and the said Ellen Frances O'Brien, Joseph E. O'Brien, Catharine L. O'Brien, and Walter B. O'Brien, so served as aforesaid, and the said James Joseph O'Brien, deceased, to be the children of the said James O'Brien, deceased, which said James O'Brien, deceased, died seised and possessed of an estate in the land mentioned in said notice; that deponent also knew the said Kate O'Brien to be the widow of said James Joseph O'Brien, deceased, and the said Stephen O'Brien, so served as aforesaid, to be the executor of said James O'Brien, deceased." On or about November 11, 1886, said registrar, pursuant to the provisions of said statute, executed and delivered a deed of said premises to said Hobbs, who recorded the same, entered into immediate possession of the premises, and remained in possession thereof until his death. He left a last will and testament containing a power of sale in his executors, which was duly admitted to probate by the sur rogate of Kings county, and the plaintiffs qualified thereunder and are now acting as such executors. On January 2, 1907, they contracted in writing with the defendant for the sale of said real property to him by a proper deed containing a general warranty and the usual full cov

enants for conveying and assuring to him the fee simple thereof, free from all incumbrances.

At the time and place fixed in said contract for the delivery of the deed the defendant declined and refused to accept a conveyance upon the ground that the affidavit of service of the notice hereinbefore quoted did not comply with the requirements of section 5, c. 114, p. 104, of the Laws of 1883, in that it did not state the knowledge of the server as to the identity of the persons served. We think his refusal was unwarranted. The statute does not require the person serving such notice to state in his affidavit of service the facts from which his knowledge was acquired or the source of such knowledge, differing in this respect from the requirements of rule 18 of the general rules of practice, cited by counsel for defendant, which is limited by its terms to proof of the service of a summons in an action for a divorce, and is not applicable to an affidavit of service in the proceeding under the statute under consideration, which requires a statement_of_the knowledge of the affiant as to the identity of the person served. This requirement was fully met by the statement of the server that he knew the persons served to be the widow, children, executor, and widow of a deceased son of the deceased owner, to whom the notice is in terms addressed.

The plaintiffs are entitled to judgment according to the terms of the submission, with costs. All concur.

KUJAVA v. IRVING.

(Supreme Court, Appellate Division, Second Department. November 22, 1907.) MASTER AND SERVANT-INJURIES TO SERVANT-ACTS OF SUPERINTENDENT OR FELLOW SREVANT.

Plaintiff and his superintendent were adjusting a belt. The superintendent told plaintiff to hold one end of the belt while he held the other to determine the proper length, and while plaintiff was holding the belt the superintendent jerked it so as to draw plaintiff's arm around the moving shaft, and plaintiff was injured. Held, that the superintendent's act occurred while he was acting as plaintiff's fellow servant, and hence plaintiff could not recover under Employer's Liability Act, Laws 1902, p. 1748, c. 600, which imposes a liability on the employer for the negligence of a superintendent only when the negligent act is in the course of superintendence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 489.]

Appeal from Trial Term, Queens County.

Action by Frank Kujava against Walter E. Irving. From a judgment for plaintiff, and from an order denying defendant's motion for a new trial, he appeals. Reversed, and new trial granted.

Argued before HIRSCHBERG, P. J., and WOODWARD, MILLER, JENKS, and RICH, JJ.

Eugene Lamb Richards, Jr. (Rutherford B. Meyer, on the brief), for appellant.

David Gerber (Mortimer Fishel, on the brief), for respondent.

and 140 New York State Reporter

JENKS, J. The plaintiff has recovered a judgment under Employer's Liability Act, Laws 1902, p. 1748, c. 600. His version of the casualty is as follows: He had moved a machine from one place to another on the floor in the defendant's shop. The machine was worked by a belt attached to shafting. It was necessary to join the belt, which had been cut, so as to adjust it to the machine in its changed. position. He and Hille, the defendant's superintendent, were at the work. Hille told the plaintiff to get upon a platform four feet high. The belt was then hanging loose over the shafting. Hille told the plaintiff to hold one end of the belt while he held the other, in the work of determining the proper length of the belt preparatory to joining the ends thereof. The shafting had been and was in motion throughout this work. Hille jerked the bottom of the belt so as to draw the plaintiff's arm around the shafting, and the plaintiff was thereby seriously injured.

The learned court charged the jury, under exception, "As a matter of law, under those conditions, Mr. Hille, concededly the superintendent, * * was acting as the alter ego of the defendant," and Hille's negligence charged the defendant, if he (i. e., Hille) was negligent. I think that the exception was well taken. The employer's liability act casts liability on the employer for the negligence of his superintendent only when the negligent act is in the course of superintendence. Lowery v. Huntington Light & Power Co., 121 App. Div. 245, 105 N. Y. Supp. 852, decided by this court July 23, 1907; Hope v. Scranton & Lehigh Coal Co., 120 App. Div. 593, 105 N. Y. Supp. 372, decided by this court June 28, 1907. The act of Hille was not one done in superintendence, and had no relation to his status as superintendent. Hille was engaged at the time in the work of a fellow servant, and his act which caused the casualty was in the detail of the work of readjusting the belt. Foster v. International Paper Co., 183 N. Y., at page 50, 75 N. E., at page 934; Lowery v. Huntington Light & Power Co., supra; Hope v. Scranton & Lehigh Coal Co., supra; Meeker v. Remington & Son Co., 53 App. Div. 592-598, 65 N. Y. Supp. 1116; Gall v. Beckstein, 173 Ill. 187, 50 N. E. 711; Scott v. Sweeney, 34 Hun, 292.

The judgment and order are reversed, and a new trial is granted; costs to abide the event. All concur, except HIRSCHBERG, P. J., not voting.

GITTLEMAN v. FELTMAN et al.

(Supreme Court, Appellate Division, Second Department. November 22, 1907.) PARTIES-NEW DEFENDANTS-RIGHT TO BRING IN.

Though under the common-law practice an additional defendant could not be brought in on plaintiff's motion, and that could only be done in equity suits, under Code Civ. Proc. § 723, an additional defendant may be brought in, in a common-law action, on plaintiff's motion, by amendment of the summons and complaint; and the section is not restricted by section 452, providing that a court may determine the controversy as between the parties before it, where it can do so without prejudice to others' rights, or by saving their rights, but that where a complete determination cannot be had without other parties they must be brought in, such section being only the continuance of an equity rule, and applicable to equity cases only.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Parties, & 76.]

Appeal from Special Term, Kings County.

Action by Eva Gittleman against Charles L. Feltman and another. From an order permitting the Surf Amusement Company to be brought in as a defendant by amendment of the summons and complaint, it and the original defendants appeal. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, GAYNOR, RICH, and MILLER, JJ.

Joseph M. Gazzam, Jr. (William A. Feuchs, on the brief), for appellants.

John H. Regan, for respondent.

GAYNOR, J. The complaint is for damages for negligence. On motion of the plaintiff the court at Special Term has made an order permitting another party to be brought in as a defendant by amendment of the summons and complaint on the ground that it is a joint tort-feasor. The original defendants and the new defendant appeal.

It is claimed that there is no power to bring in an additional defendant on the plaintiff's motion in a common-law action. This was so under the common-law practice; the like could be done only in equity suits. But apart from conflicting decisions it would seem plain that this is no longer the rule with us. Section 723 of the Code of Civil Procedure provides in the most comprehensive words that:

"The court may, upon the trial, or at any stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party," etc.

There is no ground for stating that the legislative intention was that this broad provision should apply to equity suits only. The words used, and also the society in which the said section is found, attest the contrary.

Section 452 in no way restricts the scope of section 723. The former provides as follows: