Third Department, January, 1906. [Vol. 111. William L. Pattisson, for the appellant. Seth S. Allen, for the respondent. CHESTER, J.: By the judgment appealed from the lands which at the time of the giving of the mortgage of August 2, 1879, belonged to the defendant Martin Dewey individually are directed to be sold. One defense interposed by him was that the cause of action upon that mortgage was barred by the Statute of Limitations as against him. By the terms of the mortgage it became due and payable August 2, 1881. There is no proof that he ever made any payment upon it or upon the bond given concurrent therewith, or authorized any one to do so. On the contrary, the proof is that he never made any such payments. More than twenty years having elapsed since the mortgage became due and before the commencement of the action, and no payments having been made thereon or authorized by him, the statute barred the action as against him. (Code Civ. Proc. §§ 380, 381; Mack v. Anderson, 165 N. Y. 529.) The fact that payments were made by Wallace Dewey and his wife, who joined with the defendant Martin Dewey in making the bond and mortgage, does not prevent the running of the statute as against Martin, who made no payments. (Shoemaker v. Benedict, 11 N. Y. 176.) It is urged, however, by the respondent's counsel that the giving of the mortgage of November 2, 1889, by Wallace Dewey and wife, when the mortgagors had no title to the property mortgaged, was a fraud on plaintiff's assignor, and as the fact that the mortgagors had no title was not discovered until June, 1897, and as the fact that there was a prior mortgage was not discovered by the plaintiff until the summer of 1904, when she commenced the action, the running of the statute was suspended during the intervening time. The answer to this suggestion is that there is no allegation of fraud in the complaint, and nothing from which it can be inferred, except the bare allegation that on November 17, 1885, the mortgagors, Wallace Dewey and wife, deeded the premises described in the mortgage of November 2, 1889, for an alleged consideration of $1,000 to Ellen Dewey. The complaint is not based on fraud or mistake, but the theory of it is that the plaintiff's assignor loaned the mortgagors, Wallace Dewey and wife and Martin Dewey, the App. Div.] Third Department, January, 1906. sum of $332 for the purpose of paying off and satisfying the bond and mortgage of August 2, 1879, and that as Wallace Dewey and his wife were not the owners of the premises covered by the mortgage of November 2, 1889, at the time they gave the mortgage, the plaintiff was in equity entitled to have the satisfaction of the mortgage of August 2, 1879, canceled and the lien of that mortgage restored, the amount due thereon ascertained and to have the same foreclosed. The plaintiff, therefore, is in no position to take advantage of the existence of any undiscovered fraud to prevent the running of the Statute of Limitations, for that question is not involved in the action under the pleadings. The judgment must be reversed on the law and on the facts and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event. ISAIAH WALKER, Respondent, v. NEWTON FALLS PAPER COMPANY, Appellant. Third Department, January 8, 1906. Negligence-injury by set screw in revolving shaft - unsafe place to work - evidence of prior accident-extra allowance improper. The plaintiff, sent to repair an clevator, in stepping over a revolving shaft was caught by a set screw projecting one and a quarter inches from the shaft and was injured. The set screw was not covered and the plaintiff had not been warned thereof. The place was dark and plaintiff was working with a hand lantern. He gave evidence of due care. It was shown that other employees were required to go to said place to make repairs, and that one of them had previously been caught by the same set screw, of which fact the defendant had notice. Held, that the question as to whether the defendant had provided a safe place to work was for the jury; That a verdict for the plaintiff was warranted by the evidence; That, under the circumstances, the risk was not obvious; That proof of said prior accident from same cause was proper; Third Department, January, 1906. [Vol. 111. APPEAL by the defendant, the Newton Falls Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 14th day of January, 1905, upon the verdict of a jury for $5,000; also from an order entered in said clerk's office on the 5th day of January, 1905, denying the defendant's motion for a new trial made upon the minutes, and also from an order entered in said clerk's office on the 14th day of January, 1905, granting the plaintiff an extra allowance of costs. Thomas Burns, for the appellant. Thomas Spratt and George E. Van Kennen, for the respondent. CHESTER, J.: This case was here on a former appeal, and as the facts are quite fully stated in the report of our decision on that appeal (99 App. Div. 47), substantially all of which are again proven in this record, it is unnecessary here to restate the facts in detail. The only fact of any importance there stated which was not proven on the trial now to be reviewed was that the set screw which caused the plaintiff's injuries had been uncovered by the defendant before the accident and the covering had not been replaced, but then, as now, the proof was that it was uncovered at the time of the accident. On the former appeal, while we held that the case presented questions of fact for the determination of a jury in the first instance, we affirmed the order of the trial justice in setting aside the verdict and granting a new trial as a matter largely resting in his discretion, although it appeared to us a serious question whether the evidence given was not sufficient to sustain the verdict. On this trial the plaintiff has again had a verdict and the defendant appeals. The charge of negligence is that the plaintiff was not furnished a safe place to work because the set screw was not properly guarded. The plaintiff's counsel does not contend that the failure to guard the set screw, as required by the provisions of section 81 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192) alone renders the defendant liable, but insists that this set screw, having been left unguarded in the place where it was, and so near App. Div.] Third Department, January, 1906. the place where the plaintiff was required to work, a question of fact was presented for the determination of the jury as to whether the defendant had provided him a safe place to work. The place was at the top of a stuff chest twelve feet above the floor, where the plaintiff was required by the defendant's superintendent to go to repair a freight elevator. The place was dark and unlighted, except by the lantern which plaintiff carried. There were numerous pipes, shafts, belts and pulleys and much gearing over the stuff chest that interfered with plaintiff's free access to the gearing that moved the elevator. In experimenting with the elevator the plaintiff concluded the trouble with it was in the cog wheel on the gearing. In order to get where he could see that, he had to step over the shaft on which the set screw, which was about one and one-quarter inches long, was revolving, and as he did so he was caught by his trousers leg and his right leg injured so it had to be amputated. He testified that there was no way he could get to where he believed the difficulty was except the way he went. McDonald, who was working with him, also testified that there was no other way for the plaintiff to get where he could examine this gearing except the way he was going. The proof shows that in the operation of the mill the employees of the defendant were daily required to go upon the top of this stuff chest to oil the machinery and to perform other duties, and were frequently required to go there to make repairs. It was also shown that in May preceding the accident another employee had been caught on the bottom of the leg of his overalls by the same set screw, and that one of defendant's bosses had been informed of this. It was a question for the jury under all these circumstances to determine whether the defendant had provided the plaintiff with a safe place to work. (Glens Falls Portland Cement Co. v. Travelers' Ins. Co., 162 N. Y. 402; Eastland v. Clarke, 165 id. 420.) There is no question as to the assumption of the risk by the plaintiff, for he had no knowledge of the existence of the set screw, and it cannot be said that the risk was an obvious one. He testified that before he put his right foot over the shaft he lowered his lantern and looked at the shaft as it was revolving, but did not see the set screw. Manifestly it would be difficult, if not impossible, to see Third Department, January, 1906. [Vol. 111. a revolving set screw of the size of this one in daylight, but in a dark place, with the aid of a hand lantern only, it is evident that the revolving screw could not be seen. The questions as to whether the defendant was negligent and the plaintiff free from contributory negligence were submitted to the jury in a fair charge, and while the questions were close ones we think there was sufficient evidence to sustain the verdict and that we ought not to disturb it. The appellant complains that the court improperly allowed the plaintiff to show that a prior accident had been caused by this same set screw, but it appeared that it happened under substantially the same circumstances as those existing at the time the plaintiff was injured, and in a similar manner. It was not error, therefore, to receive the evidence. (Lundbeck v. City of Brooklyn, 26 App. Div. 595; Wooley v. Grand St. & Newtown R. R. Co., 83 N. Y. 121.) This is an ordinary action of negligence, and is, perhaps, the most frequent or common kind of action with which the courts have to deal. While the case presented close questions for determination, it cannot fairly be regarded as a difficult one. The case being neither difficult nor extraordinary, we think the extra allowance of costs was inadvertently granted. (Standard Trust Co. v. N. Y. C. & H. R. R. R. Co., 178 N. Y. 407.) The order granting the extra allowance should be reversed, with ten dollars costs and disbursements, and the judgment and order denying a new trial should be modified by striking from the judgment the amount of the extra allowance, and as so modified should be affirmed, with costs. Order granting extra allowance reversed, with ten dollars costs and disbursements. Judgment and order denying new trial modified by striking from the judgment the amount of the extra allowance, and as so modified unanimously affirmed, with costs. KELLOGG, J., not sitting. |