Swinarton v. Le Boutillier. this snapping or shooting pins by these boys was likely to inflict injury on defendant's customers, and did, in fact, inflict the injury of which the plaintiff complains; that this habit of snapping or shooting pins by these boys had existed for months, and was known or ought to have been known by the defendant; that no reasonably sufficient precaution was taken by him to suppress the dangerous practice; and that he had not exercised a reasonable degree of care and diligence to secure the plaintiff against injury from such dangerous practice. Such being the duty of the defendant and its breach to the injury of the plaintiff, and no contributory negligence being imputed to her, the right on her part to reparation in damages for the wrong, is clear and incontestable. We are further of the opinion that plaintiff's cause of action is so supported by the proof, that the court is not at liberty to set aside the verdict as against the weight of evidence (Nelson v. R. R. Co. herewith decided). Hence, the judgment must be affirmed; unless the exception to the refusal to dismiss the complaint be valid, or there be prejudicial error in the charge, or in the admission or exclusion of evidence. On the conclusion of the plaintiff's case, and again. at the close of all the evidence, the defendant moved to dismiss the complaint on the ground that the cause of action pleaded was unproved. But it is obvious, on inspection of the complaint, that it proceeds as well upon the duty of the defendant to protect the plaintiff from danger on his premises, as upon his duty to secure her against injury by his servants in the course of their employment. The court, also, put the case to the jury on the same theory. To the charge itself no exception was taken; and, indeed, it was unexceptionable. Three requests called upon the court to charge that there was no evidence to support specific propositions Swinarton v. Le Boutillier. of fact. On a motion to non-suit or dismiss, it is undoubtedly the duty of the court to determine what the evidence is; but submitting the case to the jury, it is a question whether the court may rightly instruct them. that there is no proof of a particular fact. That matter being already decided by the judge, the deliberations of the jury are conducted on the assumption of some evidence of every essential fact; and their function is only to determine the sufficiency of the evidence. However this may be, there was adequate evidence of the facts suggested by appellant; and so, his requests were properly denied. The other requests proceed on the supposition that no recovery could be had unless the injury to plaintiff was caused by a servant in the line of his employment; whereas, it is already apparent in this opinion that his liability stands well upon another and different principle of law. The vicious habit of the boys was admissible in evidence, both as a substantive fact in the cause and as affecting defendant's knowledge of the danger incurred by plaintiff on his premises. A statement of a witness to a third party not of the res gestae, and not tending to impeach his testimony in chief, is clearly incompetent even on cross-examination. If, however, there was error in the exclusion, it was harmless, because of the introduction of the statement at a subsequent stage of the trial. Similarly, the error, if any, in allowing the question to plaintiff's superintendent was innocuous, because the answer was in favor of the defendant. Besides, no ground of objection was specified. Evidence by the plaintiff explanatory of her procrastination in bringing suit we are not at liberty to condemn as immaterial, since in his brief before us appellant carefully inserts the statement that "this action was commenced three days before the day on which it Matter of Fayerweather. would have been outlawed." If the fact of the delay be deemed of effect upon us, it could hardly have been without influence with the jury. In the absence of error in the record we affirm the judgment. Judgment and order affirmed, with costs. DALY, C. J., and BISCHOFF, J., concurred. MATTER OF FAYERWEATHER. N. Y. Surrogate's Court; May, 1894. 1. Taxes; exemption of religious corporation from transfer tax.] A corporation incorporated by an act of the legislature of another State is not entitled to exemption from taxation upon a legacy under the will of a testator residing in this State, under the provisions of L. 1892, c. 399, § 2, in favor of religious corporations. That exemption applies only to corporations incorpor ated in this State. [Following Matter of Prime, 136 N. Y. 347; Vanderpoel v. Gorman, 140 N. Y. 563, 575.] 2. The same.] It seems that a corporation established as an insti tution of learning for the scientific, classical and theological education of colored youth of the male sex," is not a religious corporation within the exemption. Appeal by Lincoln University from order assessing the transfer tax upon its legacy. Howard A. Taylor, for the legatee. Emmet R. Olcott and Edgar J. Levey, for the comptroller. FITZGERALD, Surrogate.-This is an appeal from an order heretofore entered herein, assessing the transfer tax upon a legacy of $100,000, bequeathed to Lincoln. University. The appellant claims to be entitled to Matter of Fayerweather. exemption from taxation under the Transfer Tax Act as a religious corporation. The Lincoln University was incorporated by an act of the Legislature of Pennsyl vania. From its charter it appears that it was established as an "institution of learning for the scientific, classical and theological education of colored youth of the male sex," and was empowered among other things "to provide libraries, apparatus and all other needful means of imparting a full and thorough course of instruction in any or all of the departments of science, literature, the liberal arts, classics and theology." While the theological department of the university is under the supervision of the Assembly of the Presbyterian Church, the university admits "colored pupils of the male sex of all religious denominations." The controversy between counsel was very spirited as to whether the appellant answered the definition "religious." While I have grave doubt that it is included in that term, I prefer to base my decision upon another ground. A statute of a State granting privileges to corporations must, in the absence of plain indications to the contrary, be held to apply only to corporations created by the State over which it has the power of visitation and control (Matter of Prime, 136 N. Y. 347; Vanderpoel v. Gorman, 140 N. Y. 563, 575). It is the policy of society to encourage benevolence and charity. But it is not the proper function of the State to go outside of its own limits and devote its resources to support the cause of religion, education or missions for the benefit of mankind at large (Matter of Prime, supra). Assuming that Lincoln University is a "religious corporation," I am of opinion that as the act manifests no intention on the part of the Legislature to include foreign corporations within the exemption, it must be restricted to religious corporations organized under the laws of the State of New York. The order appealed from is affirmed. Knisley v. Pratt. KNISLEY v. PRATT. N. Y. Supreme Court, General Term, Fifth Department; March, 1894. 1. Master and servant.] Proof of the failure of defendant, a factory owner, to provide safeguards to machinery as directed by L. 1890, c. 398, where, as a consequence, an injury resulted to plaintiff, is evidence from which defendant's negligence can be inferred. 2. The same.] Where, in an action for personal injuries it was shown by plaintiff's evidence that she was employed by defendants to operate a machine; that it was plaintiff's duty among other things to clean the machine, which had to be done while the machine was in motion because there was no belt-shifter by which the operator could stop it; that in doing the cleaning plaintiff had to stand on tip-toes upon an uneven floor to wipe the oil from a part of the machine near unguarded cog wheels, and that while so engaged plaintiff's hand and arm were caught by the cog wheels and crushed;-held, that there was sufficient evidence to go to the jury upon the question whether defendants had fully discharged their duty in providing a suitable machine, and that it was error to direct a non-suit. 3. The same. In such a case the question whether plaintiff was guilty of contributory negligence is for the jury. 4. The same.] One employed to operate a machine not guarded as prescribed by statute (L. 1890, c. 398), cannot be held to have assumed the risk of operating such a machine, so as to prevent her from recovering for an injury resulting from defendants' omission to comply with the statute. Motion for a new trial upon plaintiff's exceptions ordered to be heard in the first instance at the General Term upon the direction of a non-suit at circuit. Sarah Knisley sued Pascal P. Pratt, Josiah Letchworth and Ogden P. Letchworth, to recover damages for personal injuries sustained by the plaintiff whilst in the employ of VOL. XXXI.-19 |