FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86. APPEAL by the defendant, The City of Rome, from a judgment. of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 2d day of December, 1902, upon the verdict of a jury for $500, and also from an order entered in said clerk's office on the 22d day of December, 1902, denying the defendant's motion for a new trial made upon the minutes. Howard C. Wiggins and W. W. Byam, for the appellant.

D. F. Searle, for the respondent.

ADAMS, P. J.:

The plaintiff brings this action to recover damages for personal injuries which he claims to have received while engaged in the work of digging a water trench in and for the city of Rome.

The evidence tends to show that this trench was about seven feet deep and five feet wide at the top, the side walls sloping to about half the depth of the trench, from which point to the bottom the width thereof was only about one foot. For the purpose of protection to the plaintiff and others engaged in digging this ditch, the defendant, it appears, had caused a plank to be placed against one side of the trench near the top of the same and then had inserted braces from this plank to the other side. Notwithstanding this provision against accident the bank of the trench did cave in, in consequence of which the plaintiff received the injury of which he complains, and he seeks to recover therefor in this action upon the theory that the defendant was guilty of negligence in employing the method of bracing above referred to rather than that of sheathing the walls of the trench. In support of this contention one Andrew Wilson was called by the plaintiff as an expert witness, and during the course of his examination was asked the following question: "Q. In your judgment, would it be safe to work in the bottom of a ditch from six to seven feet deep, and of the other dimensions that I have mentioned in my question to you without having sheathing of some kind to hold the dirt back from caving in, with such soil as is there at that place?"

This question was objected to as incompetent, improper and immaterial, but the objection was overruled by the learned trial court, and the witness was permitted to answer, which he did in these words: "No, I don't think it is safe."

App. Div.]

FOURTH DEPARTMENT, JULY TERM, 1903.

We think this exception presents error which is fatal to the plaintiff's recovery, for the witness was asked and permitted to express an opinion upon the precise question which the jury were ultimately to determine. (Hoffman v. D. & II. C. Co., 16 App. Div. 572; Roby v. Am. Central Ins. Co., 11 N. Y. St. Repr. 93.) And while this circumstance of itself is perhaps no longer a valid objection to the expression of an opinion by a witness, yet evidence of this character is only allowed when from the nature of the case the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment for themselves. (Baird v. Daly, 68 N. Y. 547; Ferguson v. Hubbell, 97 id. 507; Clark v. Bruce, 12 Hun, 274, 276; Schwander v. Birge, 46 id. 66.)

This, it is hardly necessary to suggest, is not such a case. As has already been stated the claim of the plaintiff was that sheathing was a more certain means of protection against the caving in of the walls of the ditch than the method adopted by the defendant; and witnesses were called to explain and describe the difference between these two methods, and from the description thus given it was an easy matter for the jury to determine which of the two was the safer. Within the rule laid down in the cases cited this was peculiarly a question for them to determine, and we think no witness, however expert, should have been permitted to stand in their place and decide it for them.

Again, one Charles T. Hayden, who it seems was the superintendent of the defendant's water department, was called as a witness for the plaintiff and permitted over the defendant's objection to testify that his department had no rules or regulations governing its employees with reference to the sheathing or shoring of trenches of any kind. When the defendant's counsel objected to this evidence a colloquy ensued between him and the court, which terminated in the admission of the evidence, to which ruling counsel duly excepted, and when the court came to charge the jury he expressly stated to them that the question of rules on the part of the water department was a matter to be considered by them.

We have never understood that it was any part of the duty of a municipality to formulate and enforce rules respecting the performance of labor upon its public works. In this respect a city or village is very different from a railroad company, and it would be quite

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difficult, if not impossible, to formulate rules which would govern and control the action of the heads of its various departments. As in the present case, by way of illustration, the proper course to pursue for the protection of employees from possible danger of the caving in of the trench would depend in large measure upon the character of the soil and the nature and dimensions of the trench itself, and while it may be that sheathing would be not only efficient but necessary under some conditions, bracing might be equally proper and efficient in others. It follows, therefore, from the very necessity of the case that the means to be adopted in each instance is a matter of judgment upon the part of the official whose duty it is to oversee and superintend the work.

As was said by the trial justice in disposing of the defendant's motion for a nonsuit, the plaintiff's right to recover in this case at the very best is somewhat questionable, and we think that in view of this fact a verdict ought not to be permitted to stand which may in any degree have been influenced by improper and incompetent evidence. These views lead to the reversal of the judgment and order appealed from.

MCLENNAN and WILLIAMS, JJ., concurred; SPRING and HISCOCK, JJ., dissented.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.

FRANK E. FREEMAN, Appellant, v. J. IRVING FREEMAN and THOMAS H. CLERE, Respondents.

Good will of a partnership—it passes to a trustee in bankruptcy — a purchaser thereof may state that he is “the successor" of the firm.

The good will of a business conducted by a firm which has been declared bankrupt is an assignable asset, which passes to the trustee in bankruptcy, and, upon a sale by the trustee in bankruptcy of all the property of the bankrupt firm, such good will passes to the purchaser, even though it is not specifically mentioned in the bill of sale.

Such purchaser also acquires the right to use a sign stating that he is the suocessor of the bankrupt firm.

The nature of the good will of a business, discussed.

App. Div.]

FOURTH DEPARTMENT, JULY TERM, 1903.

APPEAL by the plaintiff, Frank E. Freeman, from a judgment of the Supreme Court in favor of the defendants, entered in the office: of the clerk of the county of Onondaga on the 18th day of February, 1903, upon the report of a referee, and also from an order entered in said clerk's office on the 7th day of March, 1903, vacating an injunction theretofore granted herein.

The plaintiff and the defendant J. Irving Freeman were formerly engaged as copartners in the retail clothing business at the city of Syracuse, in this State, and carried on such business under the firm name of Freeman & Freeman.

On the 27th day of August, 1901, they, as individuals and also as copartners, filed a petition in bankruptcy. Shortly thereafter they were duly adjudged bankrupts, and subsequently received their discharge. In the course of the proceedings a trustee was duly appointed, who took into his possession all the assets of every name and description, not exempt by law, of the partnership as well as of the individual members thereof, and thereafter sold the same to one George Shaffer at public sale. Notice of this sale was given in due form, in which notice it was stated that the property to be sold was the assets of said bankrupts' estate, and excepting only the debts due on open accounts or other choses in action, * being the personal property of said bankrupts, consisting of the store fixtures and furniture used by them upon the premises lately occupied by said bankrupts as a store at No. 122 South Salina street, in said city of Syracuse, and the merchandise and stock in trade, consisting of ready-made clothing, cloth, hats and gentlemen's furnishing goods."

* *

Such notice further stated that " All of said property will be sold subject to any and all incumbrances thereon, the intent being to dispose solely of whatever interest said bankrupts had in said property at the date of adjudication."

Upon the trial it was conceded that the defendants, as copartners, subsequently, by certain mesne transfers, succeeded to the ownership of all the property of the bankrupts which was sold by the trustee to Shaffer, and that upon obtaining the same they engaged in the retail and merchant tailoring business at the place formerly occupied by the firm of Freeman & Freeman, viz., No. 122 South Salina street, and that at the time this action was commenced they

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[Vol. 86.

were conducting their business under the firm name of "J. Irving Freeman & Co."

The plaintiff alleges that in the conduct of such business the defendants advertised themselves in the newspapers as successors to Freeman & Freeman, and also used the old sign of that firm, with a smaller sign placed directly over the same on which appeared the words, "J. Irving Freeman & Co., Successors to," so that the sign actually read: "J. Irving Freeman & Co., Successors to Freeman & Freeman," and it was to restrain them from such use of the old firm. name that this action was brought.

The defendants admitted the allegations above mentioned, but asserted that they had the right to advertise themselves as successors to the old firm, and the issue thus joined was duly tried before a referee who decided in favor of the defendants, and it is from the judgment entered upon his report that this appeal is brought.

Charles P. Wortman, for the appellant.

John F. Nash, for the respondents.

ADAMS, P. J.:

It was found by the learned referee upon evidence which fully sustained such finding that all the newspaper advertisements by the defendants in which the words "Successors to Freeman & Freeman" appeared had been discontinued by them before any request had been received from the plaintiff so to do; that no use of the plaintiff's individual name had been made by them or by any one in their employ, by their authority, knowledge or consent, and that "the defendants have not done any acts calculated to deceive, delude, mislead or impose upon the public to the injury of the plaintiff;" consequently the sole question to be considered upon this review pertains to the right of the defendants to, in good faith, advertise themselves by a store sign or otherwise as successors" to the firm of Freeman & Freeman.

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It was determined by the learned referee that the defendants possessed this right, and to sustain such conclusion it is now contended by the respondents that it was a right which passed to the trustee under the assignment in bankruptcy as one of the elements constituting the good will of the bankrupt concern, and that it was subse