Third Department, July, 1913. [Vol. 158. James Eaton, Respondent, v. Peter Ebb, Appellant.- Judgment and order unanimously affirmed, with costs. John A. Eldred, Respondent, v. Iron Steamboat Company of New Jersey, Appellant.- Judgment unanimously affirmed, with costs. Harriet T. Hadden, Respondent, v. United Traction Company, Appellant.- Judgment and order unanimously affirmed, with costs. Mary K. Hoar, as Administratrix, etc., of Eliza D. Kerr, Deceased, Plaintiff, v. The Union Mutual Life Insurance Company, Defendant.— Judgment unanimously affirmed, with costs. James Lumber Company, Appellant, v. Claremont E. Smith and George Dana Sessions, Respondents.- Judgment unanimously affirmed, with costs. Joseph W. Klee, Respondent, v. The City of Troy, Appellant.— Judgment and order unanimously affirmed, with costs. In the Matter of the Application of Harvey Steele, an Imprisoned Debtor, Respondent, to Be Discharged from Imprisonment. Marion Ross and Nancy Shea, Appellants.- Order unanimously affirmed, with costs. All concurred. Edward McCabe, Appellant, v. Mary G. McCabe, as Executrix, etc., of Peter McCabe, Deceased, Respondent.-Judgment unanimously affirmed, with costs. Sarah L. Mitchell, as Administratrix, etc., of Elias Mitchell, Deceased, Respondent, v. Pierce M. Many, Defendant, Impleaded with Myra G. Radeker, Appellant.-Order and judgment affirmed, with costs, without prejudice to the right of the defendant to make such application to the Special Term as to amending her answer as she may be advised. concurred, except Smith, P. J., dissenting. All In the Matter of the Estate of William W. Utting, Deceased. Fred W. Utting, Respondent, v. George F. Tuttle, as Executor, etc., of William W. Utting, Deceased, and Others, Appellants.- Decree unanimously affirmed, with costs. In the Matter of the Probate of the Last Will and Testament of Elizabeth T. Evans, Deceased. Charles P. Evans, Appellant; Robert Trimble, as Executor, etc., and Others, Respondents.- Decree unanimously affirmed, with costs. Henry J. Ordway, Respondent, v. Milton S. Kistler, Appellant, Impleaded with Others.- Interlocutory judgment affirmed, with costs, with usual leave to appellant to withdraw demurrer and answer upon payment of costs in this court and in the court below. All concurred. The People of the State of New York, Respondent, v. Edward Stewart, Appellant.- Judgment of conviction affirmed. All concurred. The People of the State of New York ex rel. The New York Central and Hudson River Railroad Company, Appellant, v. Egburt E. Woodbury and Others, Constituting the State Board of Tax Commissioners, Respondents. The City of Buffalo, Intervenor, Respondent.- Order modified by excluding Austin street from the assessment, and as modified affirmed, without costs. All concurred. The People of the State of New York ex rel. Charles Ingersoll, Relator, App. Div.] Third Department, July, 1913. v. Isaac E. Smith, as President, and Others, as Trustees of the Village of St. Johnsville, etc., and Union Mills.- Determination confirmed, with fifty dollars costs and disbursements. All concurred, except Howard, J., dissenting. Harmon G. Peters, Respondent, v. Samuel Graubart, Appellant.-Judgment and order unanimously affirmed, with costs. The People of the State of New York, Respondent, v. John Markel, Appellant.-Judgment of conviction of County Court of Sullivan county affirmed. All concurred. Cora Gaylord Ryon, as Administratrix, etc., of Henderson Gaylord, Deceased, Respondent, v. Hannah P. Gibson, Individually and as Executrix, etc., of Judson A. Gibson, Deceased, Appellant.-Judgment affirmed, with costs. All concurred, except Smith, P. J., not voting. Max Roth, Respondent, v. H. Jay Spencer and Luela H. Siver, Appellants. Order affirmed, with ten dollars costs and disbursements. All concurred. Charles W. Spencer, Respondent, v. Postal Telegraph-Cable Company, Appellant.- Judgment and order unanimously affirmed, with costs. Katharine Gertrude Spoor, Respondent, v. William Woolford, Appellant.- Judgment and order unanimously affirmed, with costs. Fritz G. Schmidt, Respondent, v. Porter Screen Manufacturing Company, Appellant.- Judgment and order unanimously affirmed, with costs. Howard, J., not sitting. Pasquale Valentino and Francesco Valentino, Respondents, v. Philip Schantz and Lorin Schantz, Appellants.- Judgment appealed from modified by striking out the provision for extra allowance and the words " or thing whatsoever" in the 5th provision of the judgment, and as modified affirmed, with costs. All concurred; Howard, J., not sitting. Francis D. West, Appellant, v. The Delaware and Hudson Company and Others, Respondents. (No. 1.)- Interlocutory judgment affirmed, with costs, with usual leave to plaintiff to amend complaint on payment of costs in this court and at Special Term. All concurred. Francis D. West, Appellant, v. The Delaware and Hudson Company and Others, Respondents. (No. 2.) — Interlocutory judgment affirmed, with costs, with usual leave to plaintiff to amend complaint on payment of costs in this court and at Special Term. All concurred. Stephen Whitbeck, Respondent, v. William H. Smith, Appellant.Order affirmed, with ten dollars costs and disbursements. All concurred. In the Matter of the Application of Orren B. La Pelle, Appellant, v. Benedict Lahey, Town Clerk, Town of Long Lake, Hamilton County, N. Y., Respondent.- Order affirmed, with costs, upon the opinion of Smith, P. J., in case of People ex rel. Fluckiger v. Huftalen, decided herewith (ante, p. 44). All concurred. Second Department, July, 1913. [Vol. 158. SECOND DEPARTMENT, JULY, 1913. NATIONAL SURETY COMPANY, Respondent, v. JOSEPH ROSENBERG and ROSALIE ROSENFELD, Appellants. Practice - pleading — amendment—jurisdiction—County Court of Kings county. Appeal from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 4th day of April, 1913. PER CURIAM: As the County Court acquired jurisdiction over the defendant Rosenfeld by substituted service of a summons, it had power to permit the amendment of the complaint herein by striking out the claim for interest. (Van Clief v. Van Vechten, 130 N. Y. 571.) It does not sufficiently appear whether the summons and the complaint were served at the same time, and together, upon the defendant Rosenberg. If so served, then as the demand in the complaint was greater than the jurisdiction of the County Court, no jurisdiction was acquired over said defendant. The judgment against said defendant Rosenberg should be reversed and a new trial ordered, in order that proof may be given as to the exact manner of the service of the summons and the complaint herein, costs to abide the event. As to the defendant Rosenfeld, the judgment should be affirmed, with costs. Jenks, P. J., Burr, Thomas, Carr and Putnam, JJ., concurred. Judgment of the County Court of Kings county reversed as to defendant Rosenberg and new trial ordered, costs to abide the event, and affirmed as to defendant Rosenfeld, with costs. HENRY COPANS, Appellant, v. ARTHUR T. DOUGAN and CATHERINE L. DOUGAN, Respondents, Impleaded with Another. Bills and notes - counterclaim. Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Orange on the 17th day of February, 1913, dismissing his complaint, and also from an order, entered in said clerk's office on the same day, denying a motion for a new trial. Judgment and order affirmed, with costs. No opinion. Jenks, P. J., Carr and Putnam, JJ., concurred; Burr, J., read for reversal, with whom Thomas, J., concurred. the answer But, if this BURR, J. (dissenting): I dissent. It seems to me that admits the absolute making and delivery of the note in suit. could be considered doubtful, the evidence tends to establish, not that the note had no valid inception, but, on the contrary, that it had. Defendant pleaded, and attempted to prove by parol testimony, that the note was not to be paid in cash at the time named, in accordance with the express terms of the written instrument, but that, if at the date of its maturity the payee was indebted to the maker upon an entirely separate and distinct contract, the amount of such indebtedness should be offset App. Div.] Second Department, July, 1913. (Jamestown against the amount of the note. This may not be done. Business College Assn. v. Allen, 172 N. Y. 291.) If the action had been brought by the payee of the note, within the authority above cited, the evidence tending to establish the defense would have been incompetent. If we concede that the plaintiff stands in no better position than the payee of the note, his position, at least, is equally good. Thomas, J., concurred. VICTOR KEMPCZINSKI, Appellant, v. CHELSEA FIBRE MILLS, Respondent. Master and servant negligence - promulgation of rules - foreign employees. Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 17th day of March, 1913, dismissing his complaint. Judgment affirmed, with costs. No opinion. Jenks, P. J., Burr and Thomas, JJ., concurred; Carr, J., read for reversal, with whom Rich, J., concurred. CARR, J. (dissenting): This is an appeal from a judgment of the Trial Term in Kings county dismissing plaintiff's complaint at the close of his proofs. The action was brought by a servant against a master to recover for the alleged negligence of the master. The defendant is a corporation which has a large fibre mill, in which there are many persons employed and many machines used. Plaintiff was in the employment of this company about eight years before the accident, and for a period of about six years of this time he was a rigger employed in splicing ropes used in the fibre machines. On the day of the accident he was sent by his foreman to splice and adjust a rope which formed a part of a machine, a picture of which will be found at page 39 of the record. With him went a helper, who assisted him in the manipulation of the adjustment of the rope. While he was inside the machine adjusting the rope the machine started and went fast, and a portion of the rope which was wound around a sheath came off and got in contact with a cogwheel and caught plaintiff's feet in such a manner that he was seriously injured. At the trial the question narrowed itself down practically to the alleged negligence of the master in failing to promulgate sufficient rules for the protection of its servants from the negligence of their coservants. The plaintiff showed that defendant had placed about in various parts of the building in question printed rules in apparently three languages, English, Italian and Polish. None of these rules covered the subject of any duty on the part of operators of the machines, if said machines had been stopped, to make an investigation to see whether any of the employees whose duty it was to repair the machines were in and about the machine, in such a position that the starting of the machine without giving them warning might cause them great injury. This failure to promulgate such a rule as this is what the plaintiff relies upon on this appeal practically. I think that within the settled cases applying to the promulgation of rules where APP. DIV.-VOL. CLVIII. 57 Second Department, July, 1913. [Vol. 158. large numbers of employees are at work, it was negligence on the part of a master, such as this defendant, not to promulgate such a rule as this. The respondent relies upon three cases cited in its brief, each of which is distinguishable from the case at bar. In Durkos v. Chelsea Jute Mills (120 App. Div. 561) this court reversed a judgment which had been obtained against a defendant manufacturing company in favor of the plaintiff, for alleged negligence, on the ground of failure to promulgate suitable rules for the guidance of employees. This court, through Gaynor, J., found fault with the judgment below because the trial court had neglected to instruct the jury as to what rules should have been promulgated, and left the question to the jury to speculate upon, in their judgment, as to the kind of a rule the master should have promulgated and enforced. It was further stated in the opinion that there was no proof in the record that the master had not promulgated rules on the subject. Of course the situation is different here, for this case was dismissed at the end of plaintiff's proofs. In Ramsay v. Arbuckle (147 App. Div. 685) an operator had stopped his machine for the adjustment of some part that had become temporarily out of order, and while the machine was stopped and he was at work on it a girl, who had nothing whatever to do with the machine as a part of her duties, came forward and in pure meddlesomeness started the machine and caused an injury to the operator. It was claimed by the plaintiff that some rule should have been promulgated by the masters which would have forbidden such an act. This court said, however, through Thomas, J., that the act of starting this machine was that of an erratic, undutiful and forward girl, who had no right to start the machine, and whose action could not have been anticipated in any way by the masters, and, therefore, their failure to promulgate a rule to meet such a situation was not negligence. In Kirkover v. Lackawanna Steel Co. (134 App. Div. 792) the defendant had promulgated a rule which forbade employees to set in motion any machinery without first assuring themselves, by personal investigation, that there were no persons in or about such machinery whose safety would be endangered by so doing; and providing likewise that any employee disregarding this rule would be discharged from the service of the company. In spite of this rule, however, a fellow-employee negligently set in motion some machinery, which caused injury to the plaintiff, and it was held that defendant was not liable for the act of the fellow-employee, as it had taken proper care, by promulgation of the rule in question, to provide against such contingencies. Now it is just such a rule as was involved in the last-cited case that plaintiff claims should have been promulgated by the defendant in its large factory. The respondent urges, however, that there is no proof that, in addition to the printed rules set up in defendant's factory, it had not given oral instructions and rules to the operators of just this tenor. Now, of course, there is no proof that there were no oral instructions on this point. I think, however, that where it is shown that a set of printed rules has been promulgated for the guidance of employees, and which set is posted throughout defendant's mill, this printed set will be presumed to have embraced all the rules promulgated, and that if there were any |