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given beyond an unverified statement of counsel that he knew nothing of the retraction until the day before the trial. versible error is shown by the refusal to permit the amendment on this state of the facts. The defendant knew of the retraction, and should have pleaded it in time to permit a trial under the usual modes of procedure which are designed to make an issue for the trial. The publication by defendant was proven. The paper of defendant in which it was contained was bought at defendant's office in Park Row, and the defendant's witnesses prove that it was published by the defendant. Upon the merits the verdict is sustained by the proof. The charge was exceedingly injurious, and the jury has said that it was unjustified, and not so far excused but that the plaintiff was entitled to substantial damages. No error was committed on the trial. There are several exceptions taken to rulings on collateral issues and to the judge's charge and refusal to charge. It was no defense or justification to prove that the charge was made on information obtained from others. It was proven that the article came in as news, and was published without any express malice on the part of the defendant.

The judgment should be affirmed, with costs. All concur.

(70 Hun, 239.)

In re EWER. (Supreme Court, General Term, First Department. June 30, 1893.) CONSTITUTIONAL LAW-EMPLOYMENT AND EXHIBITION OF CHILDREN.

Pen. Code, $ 292, making it a criminal offense for one who, as parent, has the care, custody, or control of a female child under the age of 16 years to procure or assent to the employment or exhibition of such child as a dancer, is not unconstitutional, as depriving the parent of the right to the custody and services of the child, and the child of the right to fol. low a lawful occupation. 19 N. Y. Supp. 933, affirmed. Appeal from special term, New York county.

Application by Charlotte Ewer for writs of habeas corpus and certiorari. From orders dismissing the writs, (19 N. Y. Supp. 933,) said Ewer appeals. Affirmed.

Charlotte Ewer, the appellant, was arrested upon a warrant, and taken before a police magistrate in the city of New York, June 16, 1892, charged with ,a misdemeanor in violating section 292 of the Penal Code, by unlawfully exhibiting, using, procuring, and consenting to the exhibition of her daughter, Mildred Ewer, aged seven, as a dancer in the Broadway Theater in said city. She demanded an examination, upon which the charge was fully sustained, and she was thereupon held to await the action of the grand jury in default of $500 bail. Immediately, writs of habeas corpus and certiorari were issued out of this court. The warden returned the body of the prisoner with the commitment, and the magistrate returned the complaint, warrant of arrest, and testimony taken on the hearing. Thereupon the appellant demurred specially to the returns, alleging that the statute was unconstitutional, and that, upon the conceded facts, no offense had been committed. After hearing argument, Justice Andrews dismissed the writs, and remanded the prisoner, upon the grounds stated in his opinion.

Argued before VAN BRUNT, P. J., and O'BRIEN and LAW. RENCE, JJ.

A. J. Dittenhoefer and David Gerber, for appellant.

De Lancey Nicoll, Dist. Atty., and Elbridge T. Gerry, for respondents.

LAWRENCE, J. As the only ground assigned for assailing the proceedings before the police magistrate is that section 292 of the Penal Code is in conflict with the provisions of the constitution, I deem it sufficient to say that, under numerous decisions of the court of appeals, the position taken by the appellant cannot be sustained. The opinion of Mr. Justice Andrews, at the special term, fully covers the case, and it is unnecessary to add anything to the reasoning therein contained. It therefore results that the orders appealed from should be affirmed. All concur.


(Supreme Court, General Term, Third Department. July 8, 1893.) 1. MASTER AND SERVANT-DEATH OF EMPLOYE CONTRIBUTORY NEGLIGENCE.

Where an employe engaged in railroad grading is killed by the falling of a timber from the third floor of a building being constructed by his employer near the railroad track, the employer is not relieved from liability on the ground that the condition of the building, and the danger arising therefrom, were open to the observation of deceased and his employer, unless deceased was chargeable with knowledge of the condition of the


Defendant was constructing a building near its railroad track, and, on a level with the third floor, some posts, 10 inches square, and about 10 feet high, intended for the support of the fourth story of the building, stood on plates 12 or 15 feet distant from each other. The evidence did not disclose how the posts were held in position. While plaintiff's intestate was working on the railroad track, in defendant's employ, one of such posts fell on him, and caused his death. Held, that the question as to whether or not defendant had reason to apprehend danger to deceased was for the jury. Appeal from circuit court, Rensselaer county.

Action by Agnes Mickee, as administratrix of the estate of Charles Mickee, deceased, against the Walter A. Wood Mowing & Reaping Machine Company, to recover damages for the death of plaintiff's intestate, caused by defendant's negligence. From a judgment of nonsuit, plaintiff appeals. Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Martin & Kelly, (Olin A. Martin, of counsel,) for appellant. Hinsdill Parsons, (George E. Greene, of counsel,) for respondent.

MAYHAM, P. J. The plaintiff's intestate was killed by the falling of a post which had been placed perpendicularly, on end, on a plate of a building of the defendant, in process of construction. The plate on which the foot of the post stood was about 35 feet from the ground, at the point when the accident occurred. This post had stood there three or four days before it fell. The foot of this post stood on a level with the third floor of the building, which was partially laid; and the post which fell, stood, with several other posts, about 12 or 15 feet distant from each other, on the beam or plate on which the third floor was laid, on a line with the outside of the building, flush out with the side of the supporting timber; and the railroad track on which the plaintiff's intestate was at work ran along that side of the building, parallel with, and close to, it. These posts were placed there to support the fourth story of the building, and the evidence does not disclose how they were secured or fastened in that position. They were of spruce timber, 10 inches square, and about 10 feet long. The building from which this timber fell was a new wood building, in process of construction, and was sided up to the timbers on which the foot of this post rested. There seems to be no dispute but that plaintiff's intestate was killed by the falling of this post, which fell upon him at the place at which he was directed to work, and while engaged in the service of the defendant; and the building and the railroad were the defendant's property, and being constructed by it. Intestate was not working on the building. The plaintiff was nonsuited on her own proof, no evidence having been given by the defendant; and the principal question raised on this appeal is as to whether or not the defendant furnished a reasonably safe place for plaintiff's intestate to work, or whether, under the evidence in this case, that question should not have been submitted to the jury, as one of fact.

It is urged on the part of the respondent, as the condition of the building in process of construction was equally open to the observation of the intestate and the defendant, he was equally negligent with the defendant in not avoiding the danger, if the place in which he worked was a dangerous one. But the difficulty with that contention is that the evidence shows that the deceased did not work on the building, and fails to show that he had any knowledge of its condition, or of any fact to put him on inquiry as to safety of the place in which he was required to work, while it was the absolute legal duty of the defendant to see to it that it was a reasonably safe place. In Lorey v. Hall, (Sup.) 8 N. Y. St. Rep. 799, cited by the respondent, it was held that it is the duty of the master to use proper care and prudence in the selection of the place and appliances used by his servants in the discharge of the duties of his employment. Such duty is imposed by law, and implied against him by the contract with the servant. The servant has a right to shape his conduct, and act in reliance upon the protection and security which the proper discharge of the legal duties and obligations of the master will afford. It is true that the servant who undertakes the performance of hazardous duties assumes the risk naturally and necessarily incident to such employment. Evans v. Railroad Co., 12 Hun, 289. But that risk must be such only as naturally arises out of the nature of

the employment, and does not relieve the master from the obligation to furnish such reasonably safe place and tools as the nature of the employment may reasonably enable the master to furnish. It is also true that, if the servant has accepted the service, with knowledge of the character and position of the structure from which he may be liable to injury, he cannot maintain an action against his employer for indemnity for such injury, if it happen. De Forest v. Jewett, 88 N. Y. 264. We have examined all the cases cited by the learned counsel for the respondent, and find none that relieves the employer from the well-settled rule that requires him to furnish a reasonably safe place, considering the nature of the employment, for the performance of the work by the employed.

But it is insisted by the counsel for the defendant that the respondent had no reason to apprehend danger of the happen. ing of the event which produced the injury to the deceased; and we are referred to the case of Haskins v. Stewart, (Sup.) 10 N. Y. Supp. 833, and several other cases of a kindred character, upon that branch of the case. We are inclined to the opinion that whether or not the place was of the character from which the employer might be presumed to assume that it was free from danger not incident to the ordinary employment of the deceased was one that should have been submitted to the jury for their determination, and that it was error to dispose of that question, under the circumstances of this case, as one of law. It needed no evidence to show that a stick set up on end, of the dimensions of the one by which the injury was inflicted, unless the same was well guyed and secured, was liable to fall. With that fact in the case, we think it was for the jury to say whether the place was such a one as was contemplated by the employment, and whether the defendant could safely rely upon the assertion that it had no reason to apprehend danger to the deceased. The risk in this case was not the ordinary risk incident to grading on a railroad, and not, therefore, the risk which the decedent naturally assumed when engaging in that employment. The hazard was increased by the proximity to the unfinished building of the defendant, which it was constructing, and we are of the opinion that the question of increased hazard was a proper question for the jury. Kranz v. Railroad Co., (N. Y. App.) 25 N. E. Rep. 206; Cullen v. Norton, (N. Y. App.) 26 N. E. Rep. 905. The case presents a different question from that of Racine v. Railroad Co., (Sup.) 24 N. Y. Supp. 388, (decided at this term.) Judgment should be reversed, and a new trial ordered; costs to abide the event. All concur.

In re BERNSEE'S WILL, (Supreme Court, General Term, Second Department. July 28, 1893.) 1. WILLS-PROOF OF EXECUTION.

The due execution of a will is sufficiently shown where the attesting clause is perfect in form, and one of the attesting witnesses testifies that the requirements of the statute were complied with, though the other wit

ness “does not remember" to have seen such compliance. 2. SAME-UNDUE INFLUENCE.

Undue influence will not be presumed from the fact that the beneficiary stood in a confidential relation to testator.

Appeal from surrogate's court, Kings county.

Proceeding by Christian D. Bernsee, one of the executors named in the will of his mother, Adeline D. Bernsee, deceased, for probate of the will. Objections were filed by Adeline O'Donohue, a daughter of testatrix, and by Rufus 0. Catlin, special guardian for John B. Catlin, a grandson. The will was admitted to probate by a decree entered April 18, 1891. On appeal this decree was reversed, (17 N. Y. Supp. 669,) and issues were framed and ordered to be tried at circuit. The jury found for proponent, and from a decree again admitting the will to probate, entered on the verdict, contestants appeal. Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
William C. Dewitt, for appellant Adeline O'Donohue.
Rufus 0. Catlin, special guardian for appellant John B. Catlin.

William R. Syme, (George G. Reynolds and Daniel Daly, of counsel) for respondents.

BARNARD, P. J. The will was fully proven by the subscribing witnesses to it. It was executed the 24th of October, 1890. One witness, Black, testifies that it was signed by the testatrix in his presence, and in the presence of the witness Bellows, and that at the time she declared the instrument to be her last will and testament, and requested the witnesses to attest it as such. The wit. ness Bellows makes no real issue with him. He signed his name as a witness. He was asked by Mr. Bernsee if he was willing to sign his mother's will. He looked at his mother, and said, "Is that your will?” holding the paper in his hands. The testatrix nodded her assent. Bellows then requested the witness Black to sign first, which he did, and then Bellows signed. Bellows testifies that he did not see the testatrix sign her name to the will. It makes no difference whether the name of testatrix was signed before she went to Bellows' office. What transpired is sufficient to prove the acknowledgment of her signature to the will, if not signed in the witnesses' presence. This is on the assumption that a real issue is maile as to the signature being in Bellows' presence. The testimony shows the fact to be otherwise. The testatrix's name is on the will. The attestation clause is full. Bellows does not remember to have seen it. He "took it for granted that everything was right.” He knew he was attesting as a witness that the

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