Second Department, May, 1908.

[Vol. 126.

gation to the completion of his purchase, and under the facts and circumstances disclosed in this action a court of equity was clearly justified in refusing relief.

We are of opinion that the defendants were prepared to deliver the title contemplated by the parties at the time of making the contract, or were prepared to obviate the objections raised within a reasonable time after their attention was called to the matters, and that under all the circumstances it would be an abuse of the discretion vested in a court of equity to grant the plaintiff relief. The judgment appealed from should be affirmed, with costs. HOOKER, GAYNOR, RICH and MILLER, JJ., concurred. Judgment affirmed, with costs.

CHARLES BAUSERT, Appellant, v. THOMPSON-STARRETT COMPANY, Respondent.

Second Department, May 1, 1908.

Master and servant — injury in unlighted building under construction -— obligations of master.

A master engaged in the construction of a large building is under a duty to his employees to light the place so that they may be able, by the careful exercise of their senses, to observe dangers.

Where, in an action against a master to recover for injuries received by an employee who on reporting for work fell into a pit, the evidence is conflicting as to whether the place was lighted, the negligence of the master and the contributory negligence of the servant are for the jury.

Although a workman, when entering a building under construction in response to a notice to report with his tools for work, is not yet under employment, the person summoning him is under a duty to have the place so lighted that the dangers may be seen.

APPEAL by the plaintiff, Charles Bausert, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of June, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff's case upon a trial at the Kings County Trial Term, and also from an order entered in said clerk's office on the

App. Div.]

Second Department, May, 1908.

17th day of June, 1907, denying the plaintiff's motion for a new trial made upon the minutes.

Clifford C. Roberts, for the appellant.

John C. Robinson [Frank V. Johnson with him on the brief], for the respondent.

HOOKER, J.:

In this action for negligence, servant against master, the complaint was dismissed at the close of the plaintiff's case. The plaintiff has appealed. The defendant was constructing a large building, which was at the time of the accident uncompleted. One of its foremen sent to the plaintiff, who was an electrician, a postal card, as follows:

66

'Report at once with tools Ferry & Cliff St. N. Y. "Yours in a rush

"Rush

"GEO. SCHLEICHER.

"T. S. Co.

"Will hold as long as possible

"GEO."

The plaintiff went to the building and asked for the electrical foreman and was directed into the basement. He went down the stairway and testifies that it was unlighted and dark; that he called out to the foreman and was answered and told to come across to where the foreman was; that he started slowly and carefully and when five or six feet away from the foot of the stairs he fell into a large pit five feet square, prepared to receive the elevator shaft, which was full of water at the time; he says that he did not see this. The learned court took the correct view that under all the circumstances, the building being in the process of construction and the floor and apparatus disposed according to the defendant's convenience for construction, the only obligation the master owed the servant was to light the place sufficiently so that the servant, in the careful exercise of his senses, would observe where danger lay. The learned trial court, however, held as matter of law that the place was sufficiently lighted. It seems to me that this was a question of fact for the jury under all the evidence. The plaintiff says

Second Department, May, 1908.

[Vol. 126. that it was not lighted; some of his witnesses say there were lights and they describe the location of the lights and how much light they shed. Although the court held that when he answered the postal card calling him to bring his tools there he was not in the employ of the defendant, yet I think there can be no question, irrespective of whether he was actually in the employ at that time, that the defendant owed to this plaintiff the same duty it would have owed him ten minutes later, supposing that within that ten minutes he had been formally employed and sent about some particular business.

It was correctly held on the trial that the defendant's duty was to light the basement sufficiently. The evidence on this branch of the case, however, and that which was offered to show the plaintiff's freedom from contributory negligence, should have been submitted to the jury.

The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.

WOODWARD, GAYNOR, RICH and MILLER, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

JAMES V. CAMARDELLA, Plaintiff, v. JOSEPH M. SCHWARTZ, Defendant.

A widow's right of election between dower and a testamentary provision in lieu thereof is wholly personal, and where she is insane at the time of the testator's death and continues so, her silence or failure to enter or to commence action for dower is not an election to accept the testamentary provision under section 181 of the Real Property Law.

Even though a committee has been appointed and the widow is confined in an asylum, the State Commission in Lunacy has no authority to elect on her behalf.

Hence, the grantee of the husband's executors takes subject to the dower rights of the insane widow, and his title is not unincumbered.

App. Div.]

Second Department, May, 1908.

SUBMISSION of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.

George B. Class, for the plaintiff.

Joseph M. Schwartz, for the defendant.

HOOKER, J.:

The parties have entered into a contract, the plaintiff to sell and the defendant to buy certain real property. Before the time for closing the title the defendant urged objections to the title, and this submission is the result. The plaintiff took title by the usual executor's deed from the administrators with the will annexed of Charles Fahr, deceased. Fahr's will made what appears to have been an exceedingly fair and equitable provision in lieu of dower for his wife, who was at the time of making the will, and had been for a number of years prior thereto and still is hopelessly insane, confined in an asylum, and for whom a committee had been appointed prior to the making of the will. Within one year after the death of the husband the widow made no election whether she would take the legacy or be endowed of the lands of her husband, nor did she herself make any attempt to do so.

Section 180 of the Real Property Law (Laws of 1896, chap. 547) provides that "If real property is devised to a woman, or a pecuniary or other provision is made for her by will in lieu of her dower, she must make her election whether she will take the property so devised or the provision so made, or be endowed of the lands of her husband; but she is not entitled to both." Section 181 provides that "Where a woman is entitled to an election, as prescribed in either of the last two sections, she is deemed to have elected to take the jointure, devise or pecuniary provision, unless within one year after the death of her husband she enters upon the lands assigned to her for her dower, or commences an action for her dower."

The Commission in Lunacy of the State of New York, for and on behalf of the widow, undertook by a formal declaration to elect in her behalf that she take in lieu of dower the testamentary provisions in her favor of the will of her deceased husband.

The question for determination, then, is whether the plaintiff under the circumstances can convey to the defendant a good and

Second Department, May, 1908.

[Vol. 126.

marketable title to the premises, free of any dower right which might be asserted on behalf of the incompetent widow.

We are cited to no decision in this State passing directly upon this question. The widow, being insane, had no legal power personally to elect or waive, and on the other hand, of course, could not enter upon the lands assigned to her or commence an action for her dower in such manner that the act itself would bind her. It is inferentially held in Pinkerton v. Sargent (102 Mass. 568) that the insanity of the widow suspends the operation of the statute, and nothing comes of her failure to elect by reason of her insanity until the restoration of her mental faculties or until her death. The decision proceeds upon the proposition that the privilege of waiver is a purely personal right and its exercise rests in the personal dis cretion of the widow alone. This proposition is the law in this State. (Flynn v. McDermott, 183 N. Y. 62.) In that case it is said: "It has been frequently held in other States that this privilege of election is purely personal so far as the widow is concerned and does not pass to her legal representatives. (Sherman v. Newton, 72 Mass. [6 Gray] 307; Crozier's Appeal, 90 Penn. St. [9 Norris] 384; Boone's Representatives v. Boone, 3 Har. & McH. [Md.] 95; Welch v. Anderson, 28 Mo. 293; Eltzroth v. Binford, 71 Ind. 455; Donald, Adm'r., v. Portis, Adm'r., 42 Ala. 29.) We agree that this is a proper construction of the statute."

There is nothing in either the language or tenor of the provisions of the Real Property Law which indicates an intention on the part of the Legislature to deprive an insane widow of the right given to her to elect whether she will take her dower or the legacy. Her silence or her failure to enter or to commence an action to obtain her dower cannot be construed against her or as a waiver of her personal privilege. This may not be done in the absence of clear legislative intent to deprive the insane of rights which are, under the law, reserved to them assiduously by the courts.

The act of the Commission in Lunacy in formally filing an election on her behalf to take the testamentary provision in lieu of dower can have no valid effect upon the title which is here the subject of controversy. "It is not to be inferred, without express provision, that when, through loss of reason, the waiver can no longer be intelligently made by the widow, a stranger, who may be appointed