Second Department, May, 1909. [Vol. 132. ment, and that the danger to be anticipated from some one grabbing this rope was not of such a character as to call upon the defendant to anticipate it by rules or precautions such as are now suggested. Conyes and the plaintiff had been performing this act for some time under the same circumstances, and it does not appear that it had ever occurred to either of them that there was any danger to be anticipated from the source from which this accident arose, or that it was one which had ever occurred before, or that it was one which must naturally result if any one should happen to lay hold of the rope. So far as we can gather from the record, this rope was carried by Conyes to the fifth-story window, there fastened to a hook and the other end permitted to fall to the floor below, the "fireman" taking the plaintiff on his shoulder and sliding down the rope. It does not appear that the lower end of the rope was expected to fall within the net, or that in any of the previous performances any one had ever touched the rope, or that any fact had ever occurred to show that it was not a reasonably safe way to carry on this spectacular show. We are of the opinion, therefore, that this being a common-law action, the plaintiff must be deemed to have accepted the risks of the employment, which were as open and obvious to her as to the defendant, and that the danger was not one to be reasonably anticipated, and that it was not, therefore, the duty of the defendant to have provided the safeguards which, since the accident, are suggested. The test of actionable negligence is not what might have prevented the particular accident, but what reasonably prudent and careful men would have done in the discharge of their duties under the circumstances as they existed at the time of the accident, and tried by this test the plaintiff failed to establish her cause of action. The judgment and order appealed from should be reversed. JENKS, J., concurred; HIRSCHBERG, P. J., and BURR, J., concurred in result; GAYNOR, J., concurred, except that he did not concur that the defendant was obliged to formulate rules or give directions not to touch the rope; that the rope should not be touched was obvious to any one without any rule. Judgment and order reversed and new trial granted, costs to abide the event. App. Div.] Second Department, May, 1909. THE MCCALL COMPANY, Appellant, v. FREDERICK UNSER, Respondent. Second Department, May 7, 1909. Court-appeal from judgment of justice of peace taken by defaultCounty Court cannot reverse its own order — new trial before justice. Where a justice of the peace refused the defendant's application for time to amend a defective verification to his answer, and the defendant appealed from a judgment for the plaintiff demanding a new trial in the County Court, and the plaintiff's motion to dismiss the appeal in so far as it demanded a new trial was granted without objection by the defendant, who claimed only that he should be permitted to amend his verification nunc pro tunc, the County Court cannot thereafter reverse the judgment and order a new trial before the justice if there is no showing that a manifest injustice has been done. This, because the County Court in effect reversed or modified its own order, and because the defendant, by acquiescing in the dismissal of his appeal in so far as it sought a new trial, conceded that his answer was a nullity. Although section 3064 of the Code of Civil Procedure authorizes the County Court in its discretion to reverse the judgment taken by default before a justice of the peace and grant a new trial, it can only do so where defendant shows that the judgment has worked a manifest injustice and has also excused his default. APPEAL by the plaintiff, The McCall Company, from an order of the County Court of Nassau county, entered in the office of the clerk of said county on the 22d day of January, 1909, reversing a judgment of a Justice's Court of the town of Hempstead in favor of the plaintiff and directing a new trial. Lincoln B. Haskin, for the appellant. George H. Savage [Reno R. Billington with him on the brief], for the respondent. WOODWARD, J.: The plaintiff in this action, by a verified complaint, set out a cause of action for the value of certain goods sold and delivered to the defendant. This action was brought in Justice's Court, and the defendant, it appears from the affidavits, put in an answer, the nature of which is nowhere disclosed. The verification of this answer was defective, in that the venue was laid in New York Second Department, May, 1909. [Vol. 132. county, while the oath was administered by a notary public of Nassau county. This, it would appear, was merely an inadvertence, and upon the return day defendant appeared by an attorney and offered this answer. Upon his attention being called to the defective verification, the attorney offered to have the same corrected, and asked to have the case held for this purpose, but the learned justice refused to grant any time and gave judgment for the plaintiff for the amount claimed. The defendant served a notice of appeal, demanding a new trial. The plaintiff moved to dismiss the appeal, in so far as it demanded a new trial, and asked to have the case placed on the law calendar for argument. This motion was granted, and an order was duly entered and served, the defendant not appealing from such order. The learned County Court, in the order now under consideration, recites the fact of this modified order, and it appears that the defendant upon the argument of the appeal merely contended that he should be permitted to amend the original verification nunc pro tune, but in spite of this situation and without a single fact, so far as appears from the record before us, to show that any kind of injustice had been done the defendant, the judgment was reversed and a new trial ordered before the same justice. This is in effect, permitting the County Court to reverse or modify its own order in a case, a practice which this court has recently held not within the province of the Surrogate's Court, and we are of the opinion that it should not be sanctioned here. The defendant, by acquiescing in the order dismissing his appeal in so far as it sought a new trial, conceded that his answer was a nullity, whatever we might think upon that subject if it were now before us, and he was, therefore, in default at the trial. Section 3064 of the Code of Civil Procedure provides for such a case; he may, by affidavit or otherwise, show that "manifest injustice has been done," and render "a satisfactory excuse for his default," whereupon the court may, in its discretion, set aside the judgment and grant a new trial. How can it be said that "manifest injustice" has been done the plaintiff in this action simply because an answer, the nature of which is not disclosed, has been rejected because of a technical defect? The claim set forth is for goods sold and delivered to the defendant for an agreed and reasonable value, and so far as we are informed, the answer may not have App. Div.] Second Department, May, 1909. raised any issue whatever. The answer should not only appear (Schumpp v. Interurban St. R. Co., 81 App. Div. 576), but it should be made to appear from facts and circumstances that the judgment has worked a manifest injustice, and that, in conjunction therewith, there was a proper excuse for the default. These conditions are required by the statute, and without them there is no jurisdiction in the County Court to exercise its discretionary powers. The order appealed from should be reversed. JENKS, GAYNOR, BURR and MILLER, JJ., concurred. Order of the County Court of Nassau county reversed, with ten dollars costs and disbursements. LUCY PACKTOR, as Administratrix, etc., of JACOB PACKTOR, Deceased, Appellant, v. THE CITY OF NEW YORK and HENRY E. KORDES, Respondents. Second Department, May 7, 1909. Master and servant-negligence -- injury to employee by sudden starting of draught horse facts not justifying recovery. One employed by the city of New York as a snow shoveler who while unloading snow from a wagon fell therefrom owing to the fact that a team of steadygoing draught horses attached thereto started up about three feet cannot base a recovery upon the fact that the defendant did not detach the horses from the wagon while the snow was being unloaded or employ a driver to hold the reins. Neither the city nor the owner of the team is liable for such injury. APPEAL by the plaintiff, Lucy Packtor, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 8th day of June, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term. Henry M. Earle [Peter Flint with him on the brief], for the appellant. Second Department, May, 1909. [Vol. 132. James D. Bell [Francis K. Pendleton with him on the brief], for the respondent City of New York. Louis Cohn [Frank V. Johnson with him on the brief], for the respondent Kordes. WOODWARD, J.: The complaint, which sets forth a cause of action for damages for personal injuries resulting in the death of plaintiff's intestate, was dismissed as to both defendants at the close of plaintiff's case. On the 2d day of February, 1905, the plaintiff's intestate was employed by the city of New York as a snow shoveler. He, with others, was on the day of the accident engaged in unloading snow and ice from carts as they were brought into a dumping yard. One Donohue, the foreman of the work, who appears to have had authority to direct the placing of the trucks and the work of the shovelers, ordered plaintiff's intestate and another to get upon a dump wagon and to shovel the snow and ice from the same. Plaintiff's intestate and his fellow-workman climbed upon the wagon and while engaged in throwing off the snow the team, a heavy, steady-going team of draught horses, started up about three feet, and the intestate fell over the rear end of the wagon, receiving injuries from which he subsequently died. The negligence alleged against the defendant, the City of New York, was that the accident was due to the order of Donohue, the superintendent of the defendant, directing the plaintiff's intestate to go upon this wagon without detaching the team or directing the driver to hold the reins, so as to control them. We are of the opinion that no such precautions were demanded of the defendant, assuming the foreman to have been engaged as a superintendent, within the meaning of the Employers' Liability Act (Laws of 1902, chap. 600), as now suggested. An employer is not bound to anticipate every possible contingency and to provide against it; he is bound only to use reasonable care, as that term is understood in law, and certainly no one would ever suggest that it was the duty of a master, employing competent drivers, horses properly broken and adapted to the heavy class of work here in progress, to take a team from the wagon while it was being unloaded, or to personally see to it that the driver was actually present at every moment with his hands upon the reins. Hundreds of years |