Second Department, October, 1913. [Vol. 158. tion. No such condition was presented when this evidence was received. In his charge the court did not direct the attention of the jury to the evidence stricken out or instruct them that they were to disregard it. The admission of this evidence may well have given the jury the impression that insanity was hereditary and prevalent in the Rintelen family, and the learned court ought to have instructed them to disregard this evidence. The learned trial court was in error in sustaining the plaintiff's objection to the question asked Livett as to his conversations with the testatrix during the year preceding his becoming her attorney upon the ground that the witness was precluded from testifying by the provisions of section 835 of the Code of Civil Procedure. That section relates only to communications made by a client to his attorney in the course of his professional employment, and prohibits the attorney from disclosing such communications or his advice given thereon. The relation of attorney and client did not exist between the witness and the testatrix at the time to which the question was limited, and the question did not call for the disclosure of any communication by the witness. It was a question to be answered "Yes" or "No," and its object undoubtedly was to show the opportunity the witness had, by observation and conversation with testatrix, to qualify him to say whether such conversations and acts impressed him as being rational or irrational. The judgment and order should be reversed and a new trial granted, costs to abide the final award of costs. JENKS, P. J., BURR, THOMAS and STAPLETON, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the final award of costs. App. Div.] Second Department, October, 1913. MARY SMITH, as Administratrix, etc., of JOSEPH SMITH, Deceased, Appellant, v. EDGAR F. LUCKENBACH and Others, Respondents. Second Department, October 3, 1913. Pleading-withdrawal of juror in order to apply for amendment of A trial court on granting leave to a defendant to withdraw a juror in order to apply to the Special Term for leave to amend an answer alleging a new defense cannot determine the amount of costs which should be awarded by the Special Term. Under such circumstances leave to amend should only be granted upon payment of full costs. The above rules hold, although it is provided that the plaintiff may read upon any subsequent trial evidence already presented where such right is also granted to the defendant. APPEAL by the plaintiff, Mary Smith, as administratrix, etc., from part of an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 7th day of April, 1913, and also from an order entered in said clerk's office on the 20th day of May, 1913, denying the plaintiff's motion to resettle the first mentioned order. Alfred C. Cowan, for the appellant. William L. Obrion [Amos H. Stephens with him on the brief], for the respondents. RICH, J.: Upon the trial of this action at a Trial Term, and after all of the evidence of the plaintiff had been received, the defendants' motion for leave to withdraw a juror for the purpose of permitting them to apply to the Special Term for leave to amend their answer by alleging a new defense was granted "upon condition that they [defendants] pay to the plaintiff Thirty Dollars, trial fee, and the witness fees of the plaintiff on this trial, and upon the further condition that the evidence taken upon this and all the previous trials herein may be read in evidence upon any subsequent trial by either party, without Second Department, October, 1913. [Vol. 158. calling the witnesses, and with the same force and effect as if the witnesses were actually called and testified; and it is further Ordered that these terms be inclusive for leave to amend the answer." The This appeal is from the latter clause of the order, and also from an order denying plaintiff's motion to resettle this order. I think the learned trial court exceeded his power when he undertook to fix the amount of costs that should be awarded by the Special Term. But even if the learned trial court possessed the power, the order would have to be modified. rule frequently enforced in this court is that upon the facts presented leave to amend should only be granted upon payment of full costs. (Palazzo v. Degnon-McLean Contracting Co., 115 App. Div. 172; Woolsey v. Brooklyn Heights R. R. Co., 129 id. 410; Audley v. Townsend, 131 id. 79; Carpenter v. Atlas Improvement Co., 132 id. 112.) The appellant argues that this case is not within the rule cited, for the reason that the order permitted the plaintiff to read on any subsequent trial any testimony taken on former trials. The answer to this is that that right is not limited to the plaintiff but is also secured to the defendants. That part of the order of April seventh from which the appeal is taken must be reversed, with ten dollars costs and disbursements, and the order modified by striking therefrom the words "Ordered that these terms be inclusive for leave to amend the answer." The original order having been modified, the appeal from the order of May 20, 1913, should be dismissed, without costs. JENKS, P. J., CARR, STAPLETON and PUTNAM, JJ., concurred. That part of the order of April seventh from which the appeal is taken is reversed, with ten dollars costs and disbursements, and the order modified by striking therefrom the words "Ordered that these terms be inclusive for leave to amend the answer." The original order having been modified, the appeal from the order of May 20, 1913, is dismissed, without costs. App. Div.] Third Department, September, 1913. IDA SHOVAN, as Administratrix, etc., of MIDDY SHOVAN, Deceased, Respondent, v. LOZIER MOTOR COMPANY, Appellant. Master and servant-negligence-death by slipping of ladder evidence raising question for jury. Action against a master to recover for the death of a servant who, by the direction of a foreman, mounted a ladder which slipped and killed him. There was evidence that the spurs on the foot of the ladder were blunt and liable to slip. Evidence examined, and held, sufficient under section 18 of the Labor Law to make the defendant's negligence and the contributory negligence of the decedent questions for the jury. Said provisions of the Labor Law do not preclude the defendant from invoking the contributory negligence of the decedent. APPEAL by the defendant, the Lozier Motor Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 19th day of July, 1913, upon the verdict of a jury for $5,000, and also from an order entered in said clerk's office on the 18th day of July, 1913, denying the defendant's motion for a new trial made upon the minutes. John H. Booth, for the appellant. John E. Judge, for the respondent. Judgment and order unanimously affirmed, with costs, on the opinion of Mr. Justice BORST at Trial Term. The following is the opinion of Mr. Justice BORST: BORST, J.: I am of the opinion that the evidence in this case in connection with section 18 of the Labor Law,* which would seem to apply, was sufficient to make the defendant's negligence a question for the jury. (McConnell v. Morse Iron Works, 102 App. Div. 324; Cummings v. Kenny, 97 id. 114; Kelly v. National Starch Co., 142 id. 286.) *See Consol. Laws, chap. 31 (Laws of 1909, chap. 36), § 18, as amd. by Laws of 1911, chap. 693.-[REP. Third Department, September, 1913. [Vol. 158. The provision of the Labor Law referred to does not preclude the defendant, however, from invoking the contributory negligence, if any there was, of plaintiff's intestate. (Gombert v. McKay, 201 N. Y. 27.) Now as to the contributory negligence of plaintiff's intestate. The case was submitted to the jury on the theory that on this question plaintiff had the burden of proof and this must, therefore, undoubtedly be the law of the case on this motion. This burden, however, it would seem under the provisions of the Labor Law (§ 202a)* as it now stands, was on the defendant. Treating the case, therefore, on the theory on which it was tried, I think the intestate's negligence was a jury question. The jury were authorized to find that the spurs on the foot of ladders used about defendant's premises became dull by usage and were sharpened from time to time; that this was no part of the duties of the intestate. This was a duty, however, imposed by law upon the defendant and especially so by virtue of the section of the Labor Law cited. The spurs on the ladder in question were dull and the jury had the right to find from the evidence that had they not been so they would have sunk into the floor under the weight of plaintiff's intestate and not have slipped and the accident would thereby not have occurred. Evidence was given by one of defendant's employees to the effect that some weeks prior to the day of the accident ladders, including the ladder in question, had been used by plaintiff's intestate and the witness; that the witness had forced the spurs into the floor in the intestate's presence by hitting them with a hammer. The truthfulness and force of this evidence was for the jury. Plaintiff's intestate might well have assumed that the spurs on the ladder in question had been sharpened between the time that witness referred to and the day of the accident when he came to use it. It does not appear that plaintiff's intestate knew that the spurs on the ladder were dull. The direction to the intestate to perform the work in which he was engaged came from his foreman, who testifies: "I went in the powerhouse. Shovan was there. I said to * Added by Laws of 1910, chap. 352.-[REP. |