ray Hill Bank, where the defendant kept his account for years, who had thousands of his checks pass through his hands, was familiar with his signature, and therefore a competent witness, testified to his belief that the signature to the bond was the signature of the defendant. There were admittedly genuine signatures of defendant in evidence for the jury to compare with the bond, and, although an expert in handwriting called for defendant pointed out many dif ferences between the disputed and the genuine signatures, some of the most important differences were discernible among the genuine. The most important evidence, however, on plaintiff's behalf, was elicited upon the cross-examination of defendant, who testified that he agreed to and did sign a bond or contract, as surety for Lynch, in regard to a contract "in relation to a portion of the Audubon matter with which Kranichfelt [the plaintiff] had to do," and that this was about May, 1892 (the bond in suit was dated April 6, 1892, and this testimony was given in January, 1894); "but it was not exactly for Kranichfelt. It was for a man who owned adjoining property. It was about getting rock off the adjoining property. There was something about getting rock off the adjoining property." It thus appeared that defendant had signed some paper, -a bond or contract, as surety for Lynch, with reference to one of the matters mentioned in the bond in suit; also, that he was quite friendly with Lynch, who was inspector of sewers, and was inspecting work which defendant was doing, and had more or less to do with that work,-facts which the jury might weigh in deciding what credit to give defendant's testimony that the bond in suit was not the bond which he then signed, and that he was not the person introduced by Lynch to the notary, and who acknowledged the bond. The defendant also admitted the receipt from the plaintiff's attorney, in June or July, 1892, two or three months after he executed the paper which he admits, of a written notification of the failure of Lynch to carry out and complete two contracts respecting Audubon avenue; and that the notice referred to him as surety; and that a bill of expenses, amounting to $770, was inclosed with the notice; and that he was required by it to carry out the contract of Lynch, or the plaintiff would look to him for any damage he might sustain. Defendant admitted that he paid no attention to this written notice. The plaintiff's evidence was that it was personally served upon him, and that after reading it he said it was all right. Defendant denied this,

and swore that he received the communication by mail. It was for the jury to find the fact, and whether an admission on defendant's part was indicated by his words. The motion to dismiss the complaint was therefore properly denied. The other exceptions show no error. Objection to the admission of the bond in evidence, on the ground of want of proof of delivery, was untenable. sion by the obligee was prima facie evidence of delivery. 2 Am. & Eng. Enc. Law, 459. The judgment and order must be affirmed, with costs. All concur.

(12 Misc. Rep. 44.)

RICHARDS v. HAYES.

(Common Pleas of New York City and County, General Term. April 1, 1895.) MASTER AND SERVANT-NEGLIGENCE OF MASTER-INSTRUCTIONS.

A statement, in the conclusion of a charge as to the duty of a master towards his servant, that such duty "is to the result that the servant shall be under no risks from imperfect or inadequate machinery, or other material, means, and appliances, or from unskillful or incompetent fellow servants of any grade. It is for the master to do by himself or some other," is erroneous, as stating that a master undertakes to insure his servant from all risks from the perils named.

Appeal from trial term.

Action by James Joseph Richards against George A. Hayes to recover for personal injuries caused by the alleged insecure, improper, and unskillful construction of a scaffolding on which plaintiff was working. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

JJ.

Argued before DALY, C. J., and BOOKSTAVER and BISCHOFF,

Alexander T. Goodwin, for appellant.

Dwight S. Mason, for respondent.

DALY, C. J. It is not necessary to inquire what difference, if any, there is between the facts in this case and in that of a fellow workman of the plaintiff who was injured at the same time and from the same cause, and whose judgment against the defendant for damages we reversed upon appeal, upon the ground that no negligence on the employer's part was established, but that plaintiff's injury was the result of his own or his fellow workman's choice of the implement which he used. Oellerich v. Hayes, 28 N. Y. Supp. 579, 8 Misc. Rep. 211. This judgment will have to be reversed for error in charging, at plaintiff's request, a proposition which cannot be defended upon reason or authority. The court had already instructed the jury, at plaintiff's request, that:

"The rule is unqualified that a master is bound to use all reasonable care, diligence, and caution in providing for the safety of those in his employ, and furnishing, for their use in his work, safe, sound, and suitable tools, implements, appliances, and machinery in the prosecution thereof, and keeping the same in repair. This is the master's duty, and he cannot exempt himself from liability for this omission by delegating its performance to another, or, having required work to be done, by omitting precautions and inquiries as to the manner of its performance."

-And had also charged, in continuation, at plaintiff's request, seven other propositions, enlarging upon the principle in every conceivable particular. Finally, at plaintiff's request, the court charged the next proposition, as follows:

"The duty of the master to the servant is to the result that the servant shall be under no risks from imperfect or inadequate machinery or other material. means, and appliances, or from unskillful or incompetent fellow servants of any grade. It is for the master to do by himself or by some other."

To this instruction the defendant duly excepted.

This last instruction, following those that preceded it, summed up the whole duty of the master as undertaking to insure the servant from all risks from the perils named; and whatever impression the jury received from the prior instructions as to the master's duty being confined to reasonable care, diligence, and caution was thus explained to be that he was, by himself or another, to save the servant harmless from imperfect or inadequate machinery, means, and appliances, and from unskillful or incompetent fellow servants of any grade. That is not the master's duty. He is liable only for negligence. 14 Am. & Eng. Enc. Law, 873, and following. His negligence is the omission of reasonable care in the business in which his servants are employed. Slater v. Jewett, 85 N. Y. 61. The test of his liability is not whether he neglected something he could have done, but whether he is reasonably prudent and careful. Leonard v. Collins, 70 N. Y. 90. Judg ment reversed; new trial ordered, with costs to appellant, to abide event. All concur.

(12 Misc. Rep. 7.)

ROBERTSON et al. v. HAY.

(Common Pleas of New York City and County, General Term. April 1, 1895.) 1. RESETTLEMENT OF ORDER-INHERENT POWER OF COURT.

A court has inherent power to resettle its own order so as to conform it to the actual adjudication.

2. SUPPLEMENTARY PROCEEDINGS

MENT.

FAILURE OF RECORD TO SHOW ADJOURN

From an omission in the record to show a regular adjournment, a loss of jurisdiction in a supplementary proceeding will not be presumed. 3. SAME-WAIVER OF OBJECTIONS.

A voluntary attendance and submission to examination, without objection, by the judgment debtor, operates a waiver of an irregularity in the adjournment of the proceeding; so that, on appeal from an order adjudging him in contempt, he may not be heard to say that the court had not jurisdiction to make the order.

4. APPEAL-ATTACKING VERITY OF RECORD.

Objection cannot be raised in an appellate court that the record does not present the true state of fact.

(Syllabus by the Court.)

Appeal from city court, general term.

Action by Henry M. Robertson and George T. Sinclair against Peter Hay. From an order of the city court affirming an order resettling an order, and from an order affirming an order imposing a penalty for violating an order in supplementary proceedings, defendant appeals. Affirmed.

Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ. Moses H. Grossman, for appellant.

Adolph Cohen, for respondents.

PRYOR, J. The resettlement of its own order was within the unquestionable jurisdiction of the court below, and is not open to challenge before a tribunal which is competent only to the review of legal error. Neither can we entertain the objection that defend

ant's examination is incorrectly exhibited, but are bound to adjudicate upon the record before us. Whether, upon the proofs submitted to our revision, the order adjudging the defendant in contempt, and imposing the penalty for his misconduct, be without authority of law, is the sole question in controversy. The contempt imputed to the defendant consists in a disposition of his property contrary to the prohibition in a supplementary proceeding; and the specific act of misconduct charged is the assignment of a lease. The defendant impugns the validity of the order upon two grounds -First, that the lease was not his property; and, secondly, that, being of no value, its transfer was not of prejudice to creditors.

1. By the instrument of demise, the premises were let to the defendant alone; he occupied the premises for the conduct of his business; it was against him, and him alone, that the summary proceeding was instituted; he stated to the assignee that the lease "belonged to him"; he assigned the lease, and received the price of its transfer; out of the money so received, he paid the rent; until this proceeding, he never pretended that the lease was the property of his wife; no writing or witness evidences the assignment to his wife; and even she shrinks from swearing that she was owner of the lease. To what other conclusion could the court below come than that the lease was the property of the defendant?

2. It is undoubted law that, to authorize the conviction and penalty of which the defendant complains, there must be proof of prejudice and damage to the creditor (Fischer v. Raab, 81 N. Y. 235; Moffat v. Herman, 116 N. Y. 131, 22 N. E. 287); and the defendant contends that there was no such prejudice or damage, because the lease was assigned after the end of term, and after his default in a proceeding for dispossession. But he was in occupation of the premises; he was in occupation under a renewal for a year; he received $275 for the assignment of the lease; and out of this money he discharged a debt for rent due from him as tenant. Who can say that the lease was not a subsisting demise, and that a transfer of property worth $275 away from creditors was of no prejudice or damage to them? As to the cancellation of the lease by the summary proceeding, he himself swears that he paid the rent to prevent dispossession; and he indorsed on the assignment that the term was unexpired. The only and the inevitable inference from his own testimony and admissions is that the lease was not canceled, but was assigned, and that he abandoned the possession to the assignee for the consideration paid him. Indeed, if the lease were expired or canceled, what had he to assign? and, if he had nothing to assign, why should the assignee pay him $275? True, the assignee, moved no doubt by a benevolent compassion for the distressed condition of the defendant, now says that the $275 was a contribution of charity to the necessities of the defendant's family. But in his former affidavit he swears that "the defendant executed an assignment of the lease to me for the sum of $300” ($25 of which was paid to the agent); and indorsed on the assignment to him are the words, "In consideration of the sum of $300, duly paid by Robert Schinzel, I do hereby sell, assign,

transfer, and set over unto Robert Schinzel, his heirs, assigns, administrators, &c., the within lease for the unexpired term therein." Still, defendant insists that the court lost jurisdiction of the proceeding by irregularity in the adjournments. But the entry in the record is, "Further examination adjourned by several adjournments to June 6th, 1894"; and why not by the court or referee? Code, § 2444. Nothing appears to the contrary; and loss of jurisdiction will not be presumed. Wright v. Nostrand, 94 N. Y. 33. At all events, by attending on the days to which the proceeding was adjourned, and submitting without objection to the examination, the defendant may not now be heard to say that the jurisdiction of the court had lapsed. Voluntary appearance is the equivalent of regular process. The condition of the defendant's family is doubt. less deplorable, but we cannot relieve him in disregard of the plain and imperative mandate of the law. Order affirmed, with costs. All concur.

(12 Misc. Rep. 40.)

GILLESPIE v. MULHOLLAND.

(Common Pleas of New York City and County, General Term. April 1, 1895.) 1. ATTORNEY AND CLIENT-SUMMARY APPLICATION AGAINST ATTORNEY.

On a summary application to compel an attorney to pay over money collected by him, the objection that the relation of attorney and client did not exist between him and petitioner cannot be sustained where the original owner of the claim, who employed the attorney, agreed to transfer it to petitioner pending the action for its collection, but was advised by the attorney not to do so at that time, and the assignment was therefore not executed until judgment was recovered.

2 SAME ASSERTION OF LIEN BY ATTORNEY.

The assertion of a lien by the attorney is not in answer to a summary application against him, but it is discretionary with the court to proceed in the matter.

8. SAME-REFERENCE.

The city court of New York may direct a reference to hear and report on the questions arising on summary application to compel an attorney to pay over money collected. 28 N. Y. Supp. 754, affirmed.

Appeal from city court, general term.

Application by Michael H. Gillespie to compel John Mulholland to pay over money collected by him. From an order of the city court (28 N. Y. Supp. 754) affirming an order directing a reference, defendant appeals. Affirmed.

Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ. James Kearney, for appellant.

Jeroloman & Arrowsmith, for respondent.

DALY, C. J. This is an appeal from an order of the general term of the city court, affirming an order of the special term directing a reference upon an application to require an attorney to pay over moneys collected by him. The moneys were collected in an action brought by one Peck against Deering and others, and are claimed by the petitioner, Gillespie, by virtue of an assignment from Peck of his claim and judgment in the action. The attorney, Mulholland, who collected the judgment from the defendant, and v.33N.Y.s.no.1-3