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and 140 New York State Reporter mind that this part of the section refers to those cases where the stockholder, without his certificate of stock, is transferring or selling his right in the corporation to another party, where the only evidence of such transfer appears upon the books of the company.

Judgment should therefore be entered in favor of the defendant, with costs.

Judgment directed in favor of defendant, with costs. All concur.

HAMNSTROWN V. NEW YORK CONTRACTING CO., PENNSYLVANIA

TERMINAL, et al. (Supreme Court, Appellate Division, First Department. November 22, 1907.) PLEADING-COMPLAINT-SEPARATELY STATING AND NUMBERING CAUSES OF AC

TION.

A complaint in an action for the negligent death of an employé, brought against the employer and a third person, which alleges that the injuries were caused by the concurrent negligence of defendants, in that the employés of the third person negligently permitted a bucket to strike and kill the employé, and that the employer failed to furnish a reasonably safe place to work, states separate causes of action, within the rule requiring separate causes of action to be separately stated and numbered.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, $ 113.1 Appeal from Special Term.

Action by Windla Hamnstrown, administratrix of Anselmn Hamnstrown, deceased, against the New York Contracting Company, Pennsylvania Terminal, and another. From an order denying a motion to require plaintiff to serve an amended complaint, separately stating the causes of action (102 N. Y. Supp. 835), defendants appeal. Reversed.

Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, HOUGHTON, and SCOTT, JJ.

J. C. Toole, for appellants.
Thomas J. O'Neill, for respondent.

INGRAHAM, J. The complaint alleges that on the 25th September, 1906, the plaintiff's intestate, while in the employ of the defendant Brown & Fleming Contracting Company, was struck by a bucket owned and maintained by the New York Contracting Company, Pennsylvania Terminal, and sustained injuries which resulted in his death; that the said injuries were caused by the concurrent negligence and wrongful acts of the defendants, in that the employés of the New York Contracting Company permitted a bucket to strike and kill the plaintiff's intestate, and that the said New York Contracting Company caused and permitted the said bucket and the apparatus thereof to be unsafe, dangerous, insecure, and out of repair; and also that the Brown & Fleming Contracting Company, as the intestate's master, failed to furnish him with a reasonably safe place to work and to reasonably safeguard, inspect, and maintain reasonably safe the appliances and place in connection with which the deceased was obliged to work, failed to properly light said place, employed and retained incompetent foremen and fellow workmen, and failed to formulate, promulgate, and enforce proper rules for the deceased's safety.

Although these acts of negligence are stated in the complaint to be concurring acts of negligence, it is apparent that they were entirely distinct negligent acts, which gave separate causes of action against the two defendants. If the Brown & Fleming Contracting Company, the deceased's employer, was negligent in the performance of its duty in providing the deceased with a safe place to work, it would have been liable, whether the New York Contracting Company was or was not negligent. If, on the other hand, the New York Contracting Company was negligent in allowing this bucket to fall, it was liable, irrespective of any negligence of the Brown & Fleming Contracting Company. In other words, the parties did not concur in the same negligent act which caused the injury. There are, therefore, two causes of action alleged against two separate defendants, based upon distinct acts of negligence; the Brown & Fleming Company not being responsible for the acts charged against the New York Contracting Company as negligent, and the New York Contracting Company not being responsible for those charged as negligent acts of the Brown & Fleming Company. There were not, therefore, concurring acts of negligence, which could impose a liability upon the two defendants, upon which they could be held liable in one cause of action, but two causes of action, based upon distinct acts of negligence of different parties. The plaintiff should be required to separately state and number them.

It follows that the order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

HOHL V. HEWITT MOTOR CO.

(Supreme Court, Appellate Division, First Department. November 22, 1907.) MASTER AND SERVANT-INJURIES TO SERVANT-FELLOW SERVANTS - NEGLI

GENCE.

The operator of a lathe in a machine shop and a blacksmith employed in the shop to temper the steel portions of lathes are fellow servants, and in the absence of evidence of the incompetency of the blacksmith, or of his negligence in tempering the steel in the lathe, or of defects in the quality of the steel itself or the appliances for tempering it, the employer is not liable for injuries sustained by the operator in consequence of the steel in the lathe bursting shortly after the same had been tempered by the blacksmith.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, $$ 486-489.]

Appeal from Appellate Term.

Action by Max P. Hohl against the Hewitt Motor Company. From a determination of the Appellate Term (103 N. Y. Supp. 755), reversing an order of the Municipal Court setting aside a verdict in favor of plaintiff and granting a new trial, defendant appeals. Reversed.

Argued before PATTERSON. P. J. and INGRAHAM, McLAUGHLIN, HOUGHTON, and SCOTT, JJ.

106 N.Y.S.-56

and 140 New York State Reporter Winter & Winter, for appellant. Charles La Rue, for respondent.

SCOTT, J. The defendant appeals from an order of the Appellate Term, reversing an order of a justice of the Municipal Court setting aside the verdict and directing a new trial.

Plaintiff, a machinist in defendant's employ, was engaged in operating a lathe, when a part called the "back center," broke and a splinter of steel pierced the plaintiff's eye. This back center had recently been tempered by a blacksmith, also in defendant's employ, and the evidence was to the effect that the breakage occurred because of the high temper to which the steel had been brought, although there was nothing in the appearance of the steel before the fracture from which any one could have detected the fact that the steel had been so highly tempered as to have become brittle. Neither the complaint nor the notice of the accident which was served upon defendant specifies the particular negligence with which the defendant is charged, and it is quite certain that the evidence fails to establish any common-law lia' ility. It appears that the tempering of this piece of steel was a not unusual incident of the general work of the shop. The back center which broke was a part of the machine which should be kept true, and which at times got out of true. When this happened, it was the duty of the machinist operating the lathe to true it up, which necessitated taking out the temper and then retempering. This retempering was sometimes done by the machinist himself, or he might, as did this plaintiff, give the piece of metal to the blacksmith employed in the shop to be retempered.

The blacksmith was certainly a fellow employé, and there is not the slightest evidence that he was not entirely competent for the work he was employed to do, or that he was careless or negligent in the performance of the particular work involved in tempering the piece of steel, or that the steel itself and the appliances for tempering it were not of proper quality.' We are unable to find in the evidence any ground upon which a verdict in favor of the plaintiff could have been justified, and the trial justice was right in setting it aside.

It follows that the determination of the Appellate Term must be reversed, and the order of the trial justice affirmed, with costs to the appellant in this court and at the Appellate Term to abide the event. All concur.

MORGAN et al. y. WATERS.

(Supreme Court, Appellate Division, Third Department. November 13, 1907.) 1. TRESPASS-CUTTING AND REMOVAL OF TIMBER_IMPAIRMENT OF MORTGAGE

SECURITY-RIGHT OF ACTION OF MORTGAGEE.

Defendant, with knowledge that certain land was subject to a mortgage, and that the land without the timber upon it would be insufficient to pay the mortgage debt, and that the mortgagors were insolvent, entered upon the land and cut and removed the timber. Subsequently the mortgage was foreclosed, and on the sale a deficiency resulted less than the value of the timber. Held, that the mortgagees could recover the amount of such deficiency from defendant for his malicious impairment of the mortgage security.

2. SAME-NATURE OF REMEDY—TRESPASS ON THE CASE-WASTE.

Such an action is not strictly an action of waste, but is in the nature

of an action of trespass on the case. 3. JUDGMENT-RES JUDICATA-BAR OF SUBSEQUENT ACTION-JOINDER OF AC

TIONS-LEGAL AND EQUITABLE.

Where defendant, knowing of plaintiffs' mortgage on certain land, unlawfully impaired the security by cutting and removing timber from the land, and plaintiffs thereafter foreclosed the mortgage, making defendant a party to the suit, without asserting a claim for defendant's tres pass, plaintiffs are not thereby precluded from suing defendant for the unsatisfied portion of the mortgage loan, since a plaintiff is never re quired to join actions in tort and contract upon penalty of forfeiture of either right of action. Appeal from Trial Term, Warren County. Action by Julia G. Morgan and another, executrices of the last will and testament of Mary W. Griffin, deceased, against George Waters, to recover for defendant's malicious impairment of the testator's mortgage security. From a judgment dismissing the complaint, plaintiffs appeal. Reversed, and new trial granted.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

Charles R. Patterson, for appellants.
W.E. Young (F. A. Bratt, of counsel), for respondent.

SMITH, P. J. Plaintiffs' complaint was dismissed at the opening of the trial upon the ground that a cause of action was not therein alleged. The sole question, then, for our determination, is as to the correctness of this holding. In the complaint it is alleged that about the 5th day of May, 1890, for the purpose of securing the sum of $500, loaned to them by Mary W. Griffin, plaintiffs' testator, Starling Waters and Elizabeth Waters, the father and mother of the defendant, executed and delivered to the said Mary W. Griffin a bond whereby they bound themselves to pay the said sum three years from the date thereof, with interest payable annually, and as security for the payment of said indebtedness the said Starling Waters and Elizabeth Waters executed a mortgage upon certain property described in the complaint; that said mortgage became due, was foreclosed, the property sold, and a deficiency arose upon the sale thereof of $317.45; that Starling Waters died intestate without property, and that Elizabeth Waters was insolvent, so that it was impossible to collect the said deficiency judgment from the mortgagors. It is further alleged that during the fall of 1903, and the winter and spring following, while this mortgage was a lien upon the said land, the defendant George Waters unlawfully and fraudulently entered upon the above premises and cut and removed standing timber, of the value of over $100; that thereby, the mortgage security of the said Mary W. Griffin was impaired to the extent oi $317.45, the amount of the deficiency judgment. It is further alleged that the said defendant well knew of the existence of the mortgage of Mary W. Griffin, and the amount thereof, and that the same was wholly unpaid, and that he well knew that by committing said waste he was impairing and injuring the plaintiff's security and depreciating the value of said premises to such

and 140 New York State Reporter

an extent that the same would be insufficient to secure the plaintiff against loss of a large portion of the mortgage debt. It is further alleged that defendant knew that the mortgagors were insolvent, and intended by the commission of said acts to deprive Mary W. Griffin of a large portion of her security and appropriate the same to his

Own use.

case.

That these facts state a cause of action would seem to be held by the following authorities: Van Pelt v. McGraw, 4 N. Y. 110; E. H. Ogden Lumber Co. v. Busse, 92 App. Div. 143, 86 N. Y. Supp. 1098; Carpenter v. Manhattan Life Insurance Co., 93 N. Y. 552; Yates v. Joyce, 11 Johns. 136.

Respondents argue that an action of waste cannot be maintained against a stranger; but this is not strictly an action of waste. Under the old forms of action, it would be called an action of trespass on the

In Livingston v. Haywood, 11 Johns. 429, the action of waste is recognized against the tenant, but it is held that a reversioner may have an action of trespass against a stranger. The limitations of the Code, therefore, applicable to an action of waste brought thereunder, do not in any way limit plaintiff's right of action here.

It is further contended that this defendant was a party defendant in the action to foreclose the plaintiff's mortgage, this claim should have been there asserted, and that by failure to assert the same in that action the claim has been waived.

We are of opinion, however, that the plaintiff was not bound there to assert this claim. He might wait and see, first, whether the property would not sell for sufficient to satisfy the mortgage lien, before he brought this action in tort against the defendant for maliciously impairing the security. A plaintiff is never required to join actions in tort and contract, upon penalty of forfeiture of either right of action.

The judgment should therefore be reversed, and a new trial granted, with costs to the appellant to abide the event.

Judgment reversed, and new trial granted, with costs to appellant to abide event. All concur.

CHILD et al. v. O'ROURKE.

(Supreme Court, Appellate Division, Third Department. November 27, 1907.) 1. PARTNERSHIP-ACCOUNTING-GROUNDS OF ACTION.

One who admits that a partnership existed between himself and a copartner, that the business had been sold, that he received the price and had not accounted for the same, and that he had handled the receipts of the firm and had kept the books thereof, admits the right of the copartner

to a partnership accounting. 2. SAME-COMPLAINT-ALLEGATIONS-SURPLUSAGE.

The averments of the complaint, in a suit by a partner for a partner. ship accounting, that defendant unlawfully took partnership property and used the same for his own purposes, and used money in payment of ficti. tious notes, without accounting for the same, do not stamp the action as one in tort, nor affect the partner beneficially or the copartner prejudicially, and are mere surplusage, where the partner can prove the facts

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