Second Department, November, 1913. [Vol. 159. good will of an automobile garage business carried on by the defendant, or, in lieu thereof, for damages for breach of such contract. Without objection, the action seems to have been treated by the parties as an action for damages for breach of such contract, and was brought to trial before the court and a jury. Among other defenses was that the alleged agreement was one for the sale and purchase of personal property of the value of fifty dollars and more, and that neither the said contract nor any note or memorandum thereof was in writing, and that the same was void under the statute relating to the sale of personal property. (Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 31, subd. 6; Id. § 85, added by Laws of 1911, chap. 571.) Upon the trial it appeared affirmatively by plaintiff's evidence that whatever agreement there was upon the subject was an oral one, and at the close of the plaintiff's case a motion to dismiss was made upon the grounds, among others, that there was no enforcible contract, which motion was renewed at the close of the entire case. The jury rendered a verdict for the plaintiff for a sum representing the value of the loss of the contract. This verdict and the judgment entered thereon cannot be sustained. There was evidence offered on the part of the plaintiff of performance of the contract by putting him in possession of the property which was the subject matter thereof. If we concede for the sake of the argument that such evidence was sufficient, plaintiff could not recover in this action. If such possession was interfered with, his remedy was not an action for damages for breach of a contract, but one either in replevin or conversion. Upon the pleadings plaintiff has recovered a judgment for breach of an executory contract, void under the Statute of Frauds, upon evidence that the contract has been fully performed. The notice of appeal specifies that the appeal is taken not only from the judgment, but also from an order denying a motion for a new trial. It does not appear from the record that any such motion was made, but the error referred to is App. Div.] Second Department, November, 1913. sufficiently presented by the motions to dismiss the complaint upon the grounds specified. The judgment appealed from should be reversed and, as upon the present pleadings the action cannot be maintained, the complaint should be dismissed, with costs of this action and of the appeal. JENKS, P. J., THOMAS, CARR and RICH, JJ., concurred. Judgment reversed and complaint dismissed, with costs of this action and of the appeal to the defendant. MARIA MCCABE, as Administratrix, etc., of PATRICK MCCABE, Deceased, Respondent, v. CARTER & WEEKES STEVEDORING COMPANY, Appellant. Second Department, November 28, 1913. Master and servant — negligence-death of stevedore caused by act of fellow-servant-proof not justifying recovery. Action to recover for the death of an employee of a stevedore who was engaged in loading a vessel. It appeared that a fellow-servant of the decedent, having no power of superintendence, threw a hook attached to the rope of a hoisting engine in a slanting direction, so that it caught under a heavy iron beam in the middle of the hatch, which beam was not fastened but rested in sockets, and lifted it from its position so that it fell upon the decedent, who was working in the hold below. Held, that actionable negligence on the part of the decedent's master was not established, and that a judgment for the plaintiff should be reversed. APPEAL by the defendant, Carter & Weekes Stevedoring Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of March, 1913, upon the verdict of a jury for $10,000, and also from an order entered in said clerk's office on or about the 13th day of June, 1913, denying defendant's motion for a new trial made upon the minutes. James J. Mahoney [George J. Stacy with him on the brief], for the appellant. Benjamin Reass, for the respondent. BURR, J.: Second Department, November, 1913. [Vol. 159. I think that the judgment entered in this action must be reversed for failure to establish actionable negligence upon the part of defendant. The facts in connection with the accident which resulted in the death of Patrick McCabe are stated in the concurring opinion of the presiding justice. The primary cause thereof was the carelessness of a fellow-servant of decedent in throwing the hook which was to be fastened into the sling by which the load to be lifted was bound together. Samuel Rourke, a witness called for plaintiff, thus testified: "Some man * * *threw this hook toward me, and in place of throwing it towards me, he threw it in a slanting direction, that is right, sir. * * The beam would lay right between * both of us but to one side, and there would be a space of twelve feet, running from the beam to the aft end of the hatch, and eighteen feet across, and the fellow apparently intended to throw the hook across the eighteen feet, he apparently intended to throw the hook across the eighteen feet, or a portion of it, towards me, when in fact he threw it to the side; that is right. And it caught under the upper flange, the upper flange of this beam, and the beam came out." If the hook had caught in the "cross hatch beam" in the regular, usual and ordinary prosecution of the work then being carried on, and if because of the failure to bolt down this heavy piece of iron it had been lifted out of place and dropped upon decedent, it might have been a question of fact for the jury whether the master should not have foreseen this possible happening, and taken at least the precautionary measure of thus securing it. But such was not the fact. This "beam," weighing 900 pounds, would have remained in its position forever, although unbolted, unless interfered with by some powerful extraneous force. The men had been working in that hatch for four days prior to the accident, and, so far as this "beam" is concerned, might have continued to work there with perfect safety but for the carelessness of the man who threw the hook. Standing upon one side of the opening, measuring twelve feet fore and aft by eighteen feet across, and opposite to the gangwayman, instead of throwing it directly across the eighteen feet separating them, he carelessly threw it in a diagonal direction so that, instead of App. Div.] Second Department, November, 1913. 66 reaching the hands of the gangwayman, it came in contact with the "cross hatch beam" at the limit of the twelve-foot space. Who this man was does not clearly appear, but it was not the superintendent, nor any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee." (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], $ 200, as amd. by Laws of 1910, chap. 352.) He was a fellow-workman of decedent, and for "any act or omission on the part" of such workman defendant is not responsible. With the consent of plaintiff's attorney the jury were instructed that such was the rule of law with respect to fellow-servants. The learned trial justice, applying this rule to the facts of this case, should have granted the motion to dismiss the complaint upon that ground. It may not be urged, in order to sustain the judgment, that it was negligence upon the part of Rourke, the gangwayman, to give the signal to start the winch until the hook was safely in his hands. Neither the notice served prior to the commencement of the action, nor the complaint as limited by the bill of particulars states this as a negligent act, and the case was not submitted to the jury upon any such theory. The judgment and the order denying the motion for a new trial must be reversed and a new trial granted, costs to abide the event. CARR, STAPLETON and PUTNAM, JJ., concurred; JENKS, P. J., concurred in separate memorandum. JENKS, P. J. (concurring): I concur. I think that reversal may rest, also, upon an error in the instructions. The intestate was killed when in the hold of a ship which was loading by his master, a stevedore. A boom had been attached to a cargo mast, and at the top of this boom there was a block and rope which ran down the side of the boom to a winch. At the end of the rope was a hook. The boom went around to cargo on a lighter, a load was lifted from the lighter to the deck of the ship and then lifted therefrom into the hold. When the load had been thus stored away a sling was put on the hook and one servant would swing the hook to another servant Second Department, November, 1913. called the "gangwayman." [Vol. 159. On the occasion of the accident this hook caught a beam of the between deck hatch and lifted it from its sockets so that it fell into the hold and upon the intestate. The contention of the plaintiff is that the defendant was negligent in failing to provide a safe place to work, safe and proper ways, works and machinery, in lack of superintendence and of inspection, in that it permitted the beam to remain in its sockets without being securely or properly fastened. The plaintiff's case developed as the feature of negligence that the beam was not bolted into its place, although its construction provided such security. It is my personal opinion that the learned court erred capitally in its disposition of this request for instruction of the jury: "The defendant and its agents were not bound to anticipate that the cross hatch beam would be lifted out of its position.' The learned counsel for the plaintiff objected to the request on the ground that it was "a question of fact." The court refused it under exception and without comment. This absolute refusal by the court suffered the jury to infer logically from the last words of the court on this specific subject that the defendant and its agents were bound to foresee that the cross hatch beam would be lifted out of its position. The beam was the thwartship beam, made of iron, weighed 900 pounds and rested in sockets. It may be assumed that when the vessel rode at anchor at dockside this beam could not readily be disturbed by chance from its place. This work was doing under similar conditions for four days, one-half of the time on one side of this beam and one-half on the other, for the beam exactly divided the hatch. The half hatch in use was 12 feet by 18 feet. One-half of the hatch on the top deck was covered over at the time. This indicates that the beam was on the extreme side of the half of the hatch that was in Plaintiff's witness Rourke, the gangwayman, testifies with reference to the fellow-servant whose duty it was to "throw" or to swing the hook to him, he "threw this hook toward me, and in place of throwing it towards me, he threw it in a slanting direction. *** The beam would lay right between both of us but to one side, and there would be a space of use. |