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dcor to the well of the elevator on the first or upper floor. The evidence also shows that he was warned by defendant's foreman of his duty to put the bar in place after entering, and before descending upon the elevator. The jury have expressly found, from the evidence, that if the bar had been in place the barrel would not have fallen down the elevator well, and there is evidence from which the jury could well find that the last time the elevator went down before the accident, where it remained until after the accident, the intestate was the last man to enter it; that neither he, ncr those with him, put the bar in its proper place upon descending. So that I think the jury could fairly find that the intestate contributed to the accident which produced his death. If the failure of plaintiff's intestate to obey the rules of the defendant, or the direction of its foreman, caused or contributed to the accident, the plaintiff cannot recover. La Croy y. Railroad Co., 132 N. Y. 570, 30 N. E. Rep. 391.
The appellant strenuously insists that the judgment should be reversed, and a new trial granted, by reason of an alleged error of the court, in its charge to the jury, as to the fact of the nonobservance of section 8, c. 462, of the Laws of 1887, which provides, in substance, that the owners, agents, or lessees of buildings having elevators must provide trap or automatic doors to such elevators, so constructed as to open and close by the action of the elevator in ascending and descending. In relation to that statute the court charged as follows:
"This statute itself has no sort of bearing upon the case, if you come to the conclusion-and I charge you, as matter of law, that you must come to the conclusion-that plaintiff's intestate did know that this elevator was not provided with automatic doors. So that, I apprehend, when you come to the discussion of the case, you will lay aside that provision of law, because it has no bearing, and cannot lead you to any proper conclusion, and ought not to have any weight in the jury box or jury room. It is not an element in this case. It is an undisputed fact in the case that deceased did know the manner in which the elevator was constructed. He knew what protection there was, and he accepted the situation-accepted the employmentand did what he was doing on the day he was killed with the full knowledge of those things, so far as the protection against danger, which defendant had made to the elevator, is concerned.”
I do not think this charge constitutes reversible error. In substance, it states the rule applicable to this case correctly. The statute was enacted for the benefit of employes. Any one injured in consequence of it not being complied with has, undoubtedly, a right of action therefor. City of Rochester v. Campbell, 123 N. Y. 405-414, 25 N. E. Rep. 937; Willy v. Mulledy, 78 N. Y. 310. The action is not brought upon the statute, but is founded upon defendant's alleged negligence. The violation of the statute, by not furnishing doors to the well hole, is undoubtedly evidence of the negligence charged, but it does not follow from that that the charge was erroneous. The duty prescribed by this statute is not more or greater than the common-law duty of an employer to his employes, to provide a safe place in which, and proper machinery with which, to work; and the defendant's liability to the person in
jured by means of the statute not being complied with is not an absolute one, but is subject to the same limitaticns and restrictions as is the common-law liability for not furnishing a safe place and proper machinery. The defendant's noncompliance with the statute would not relieve the plaintiff from the burden of showing a lack of contributory negligence on the part of the intestate. McRickard v. Flint, 114 N. Y. 222--227, 21 N. E. Rep. 153. The duty imposed by the statute was for the benefit, among others, of plaintiff's intestate. It was one that could be waived by him, so far as he was concerned, in accepting employment of the defendant. Willy v. Mulledy, 78 N. Y. 310-315. The absence of a door from the well was apparent, and must have been well known by plaintiff's intestate. He worked there for weeks before the happening of the accident; used the elevator daily, and several times a day. He knew of, and was instructed what to do with, the device that took the place of a door. It must be held that it was satisfactory to him, and that he waived the full and complete performance of the duty which defendant owed to him, and that he voluntarily assumed the risks incident to the absence of the door. Gibson v. Railway Co., 63 N. Y. 449; De Forest v. Jewett, 88 N. Y. 264; Anthony v. Leeret, 105 N. Y. 591-600, 12 N. E. Kep. 561; Hickey v. Taaffe, 105 N. Y. 26-35, 12 N. E. Rep. 286; Shaw v. Sheldon, 103 N. Y. 667, 9 N. E. Rep. 183; Appel v. Railway Co., 111 N. Y. 550, 19 N. E. Rep. 93; Fredenburg v. Railway Co., 114 N. Y. 582, 584, 21 N. E. Rep. 1049; Williams v. Railroad Co., 116 N. Y. 628, 22 N. E. Rep. 1117; Odell v. Railroad Co., 120 N. Y. 323, 24 N. E. Rep. 478; Davidson v. Cornell, 132 N. Y. 228--234, 30 N. E. Rep. 573. And in taking that risk he waived the benefit intended by the statute, and, as to him, its provisions are not to be considered.
The court was correct, also, in charging the jury that they must come to the conclusion that plaintiff's intestate did know that the elevator was not provided with automatic doors. That it was not so provided was perfectly obvious and apparent, uncontradicted and undisputed. It was a matter the plaintiff's intestate could not help knowing, and a specific finding to the contrary by the jury would have been properly set aside by the court as one not only contrary to the evidence, but wholly without evidence to support it. The findings of the jury were sustained by the evidence, and the case was properly submitted by the court, and the judgment should therefore be affirmed, with costs. All concur.
(70 Hun, 152.)
(Supreme Court, General Term, First Department. June 30, 1893.) WAREHOUSE COMPANIES-FRAUDULENT RECEIPTS-Bona FIDE HOLDERS.
One loaning money on a warehouse receipt signed by the president of the warehouse company, and acknowledging receipt of certain goods from such president, is put on inquiry, and cannot rely on the representations of such otficer, they being in such case only tho-e of an individual.
Exceptions from circuit court, New York county.
Action by the Bank of New York, National Banking Association, against the American Dock & Trust Company, for damages for issuing a spurious warehouse receipt. Judgment for defendant. Plaintiff moves for new trial on exceptions ordered to be heard in the first instance at general term. Motion denied.
Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.
Gibson & Whiting, (John B. Whiting, of counsel,) for appellant.
Kenneson, Crain & Alling, (Thaddeus D. Kenneson, of counsel,) for respondent.
BARRETT, J. The main question here is whether the plaintiff is to be treated as a bona fide holder of the warehouse receipt upon the faith of which it advanced money to the defendant's president, Stone. This warehouse receipt was signed, “M. W. Stone, Prest.," and it acknowledged the receipt on storage at the American docks, for account of M. W. Stone, of 162 bales of cotton. This acknowledgment was false. The company had received no such cotton. Stone had simply prepared and signed the paper to raise money thereon for his own private purposes.
There is no question here of general authority. Both the president and the treasurer were expressly authorized by the board of directors to sign warehouse receipts. If, in the present case, therefore, this particular receipt had been made out in the name of some one disconnected with the company, and the plaintiff had innocently and in good faith advanced money to such person thereon upon the strength of official representation, a recovery could doubtless have been had. There is ample support for this proposition in the case of Fifth Ave. Bank v. Forty-Second St. & G. St. Ferry R. Co., decided by the court of appeals, and reported in 33 N. E. Rep. 378. But here the receipt was made out in the name of the president, and was signed by him. The plaintiff knew that the Stone named in the receipt was the same person who, as president, had signed it. The implication was that the defendant's president had attempted to contract with himself as an individual. The instrument not only acknowledged the receipt of the goods, but specified the terms and conditions of the pretended bailment. Upon the presentation of such a document, to be used for Stone's personal benefit, the plaintiff was at once put upon inquiry, and was bound to verify its genuineness in a proper way. It certainly could not rely upon the representation of the officer, whose very appearance in the transaction was what called for the inquiry. Any representation that he made would necessarily have been individual, and not official. The law does not recognize his acting in the dual capacity. He cannot at the same moment borrow the money as an individual and as an officer represent the genuineness of the security. The case on this head is directly within the principle enunciated in Manhattan Life Ins. Co. v. Forty-Second St. & G. St. Ferry R. Co., 19 N. Y. Supp. 90, and in Moores v. Bank, 111 U. S. 164, 4 Sup. Ct. Rep. 345. There is a plain distinction between the present case and those cases where the instrument simply acknowledged the officer's interest in the company. This distinction was pointed out in Titus v. President, etc., 5 Lans. 250, 61 N. Y. 237; and the rule laid down in Claflin v. Bank, 25 N. Y. 295, was not questioned. That rule, in substance, is that, when what purports to be the company's contract shows upon its face the officer's use of his official position for his own benefit, every one to whom the contract comes is put upon inquiry. See, also, Neuendorff v. Insurance Co., 69 Y. Y. 389; Pratt v. Insurance Co., 53 Hun, 101, 6 N. Y. Supp. 78; Farrington v. Railroad Co., 150 Mass. 406, 23 N. E. Rep. 109. The plaintiff was permitted to show the actual transaction between it and Stone; that is, the loan of the money relying upon the warehouse receipt, and in ignorance of its character. What was excluded was Stone's representations. But these representations, as we have seen, were not official. The representations were made at the bank, when Stone applied for the loan, and were simply his individual statements with regard to his own private business. Even if admitted, they would not have helped the plaintiff, for nothing that Stone could have said at the time and under the circumstances would have absolved it from the duty of further inquiry; and no other inquiry was made. The exceptions should be overruled, and judgment ordered dismissing the complaint, with costs of this application and of the trial. All concur.
(70 Hün, 135.) DUFFY V. DUFFY et al.
(Supreme Court, General Term, First Department. June 30, 1893.) 1. DEVISE IN LIEU OF DoWER-ELECTION TO REJECT—WHAT CONSTITUTES,
In a suit for partition, where a widow, under a wrong construction of her husband's will, sets up an answer claiming all the land sought to be partitioned, she does not thereby reject a right under the will to a part
of the land in lieu of dower. 2. SAME-CONSTRUCTION OF DECREE.
A decree provided that unless a widow file in writing within a certain time a refusal to accept under her husband's will, and an election to take dower, she would be deemed to have accepted the provisions of the will. Held, where the widow died without filing a writing, that the decree did not justify a recital in an order of distribution that she died without having accepted the provisions of the will.
Appeal from special term, New York county.
Suit for partition by Mary Duffy (Mary Ann McGahy, substituted as plaintiff) against Catherine Duffy (John McArdle, individually and as administrator of Catherine Duffy, deceased, substituted as defendant) and others. From an order dated May 31, 1892, confirming a referee's report of sale, and decreeing distribution of the proceeds; from an order dated June 22, 1892, denying a motion to resettle the previous order; and from an order dated March 23, 1893, denying a motion to amend the interlocutory decree of partition and sale and other papers, -John McArdle, individually and as administrator, appeals. Order dated May 31st modified. Order dated June 22d reversed. Appeal from order of March 230 dismissed.
For prior reports, see 3 N. Y. Supp. 23, 26 N. E. Rep. 759, mem., and 29 N. E. Rep. 1033, mem.
Argued before VAN BRUNT, P. J., and FOLLETT and BAR RETT, JJ.
Rufus H. Williams, for appellant.
Dcherty, Durnin & Hendrick, for respondents Francis Duffy and others.
BARRETT, J. There are here three appeals: First, an appeal from what is called an order made by Mr. Justice Lawrence at special term on the 31st day of May, 1892, confirming a referee's report of sale in partition, and decreeing distribution of the proceeds of sale; second, an appeal from an order made by the same justice, at special term, on the 22d day of June, 1892, denying a motion to resettle the previous order by varying the direction therein as to the distribution of a certain part of the proceeds of sale; third, an appeal from an order made by Mr. Justice Ingraham, at special term, denying a motion to amend the interlocutory judgment in the particulars as to which relief had been sought by the motion last referred to.
The substantial question brought up by these appeals is whether Catherine Duffy, the widow of Philip Duffy, did or did not elect in her lifetime to accept the provision made for her in her husband's will in lieu of dower. That provision was a devise of the undivided half of the property sold under the decree of partition herein, "or one-half of the net proceeds thereof, to her or her heirs or devisees forever.” Philip Duffy died on the 3d day of June, 1886. Catherine made no claim to dower within one year thereafter. Under the statute, then her election to accept the provisions of the will became fixed and settled. She could not thereafter reject such provision, and claim her dower. 1 Rev. St. 742, § 14; Akin v. Kellogg, 119 N. Y. 447, 448, 23 N. E. Rep. 1046.
It is contended, however, that there was an express repudiation of the provision of the will; not in the manner contemplated by the statute,-for Mrs. Duffy neither entered upon the lands individually nor did she commence proceedings for the recovery or assignment of dower,—but by the assertion in her answer in this acticn of a greater right than that conferred by the provision of the will. We say that Mrs. Duffy never entered upon the lands individually, because it is claimed that her acts in collecting rents emphasized her refusal to accept the provisions of the will; but she collected these rents as executrix, and her acts in that regard had no bearing upon the question of her individual election. In her answer, Mrs. Duffy denies the tenancy in common set up in the complaint; alleged that by the will her husband devised all his real.