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.

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

JENKS, J., concurs. HIRSCHBERG, P. J., and BURR, J., concur in result. GAYNOR, J., concurs, except that he does not concur that the defendant was obliged to formulate rules or give directions not to touch the rope, as that the rope should not be touched was obvious to any one without any rule.

CONYES v. OCEANIC AMUSEMENT CO.

(Supreme Court, Appellate Division, Second Department. May 7, 1909.)

Appeal from Trial Term, Kings County.

Personal injury action by Alfred W. Conyes against the Oceanic Amusement Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed as to the first cause of action, and reversed and new trial granted as to the second.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

C. Walter Randall, for appellant.

Frederick N. Van Zandt, for respondent.

PER CURIAM. Judgment and order affirmed, without costs, as to the first cause of action. As to the second cause of action, judgment and order reversed, and new trial granted; costs to abide the event.

WOODWARD, J. (dissenting in part). The plaintiff has secured a judgment for $9,108.85 upon two causes of action for personal injuries. The action is brought at common law; no claim being made under the employer's liability act (Laws 1902, p. 1748, c. 600). In the first cause of action the jury awarded a verdict for $7,000. The facts alleged in this cause were in substance that the plaintiff was employed by the defendant to drive a team drawing a fire engine to be used as a part of the spectacular performance of "Fighting the Flames," at Dreamland, Coney Island; that he was subsequently, and in connection with this employment, engaged to do an act of rescue from a burning building, in which he drops down on a rope from a fifth-story window, takes a woman from a fourth-story window, and carries her to the ground; that while thus engaged, on the 8th day of June, 1904, the rope, which was supplied for his use, broke, and precipitated him, with his burden, to the ground below, producing serious bodily injuries. The negligence alleged in this instance is the failure of the defendant to provide "plaintiff with safe and proper means to perform said rescuing act, and in not providing safe and necessary apparatus, means, and appliances for plaintiff's safety while performing said rescuing act."

The plaintiff testified that at the time of his employment he was told by those who employed him, and who are described as the "chief" and the man who paid them off, that he was to be supplied with the best Manila hemp rope, such as is used by the New York fire department, and that the rope which was actually supplied and in use at the time of this accident was not hemp rope at all, but that it was an inferior grade; and it is urged by the respondent that, notwithstanding the general rule where a master has furnished proper rope to perform a particular service, the fact that the defendant had agreed upon a particular kind of rope estopped it from now claiming the benefit of the rule. It appears from the plaintiff's testimony, however, that he had used this same rope several times during the day; that he knew good rope when he saw it, and there is not the slightest suggestion that he ever made any complaint of the quality of the rope provided, though he says that the rope was inspected at short intervals, and that he was getting a new rope every four or five days. Assuming, therefore, that the defendant agreed to furnish the best grade of Manila rope (and it appears from the plaintiff's testimony that the first rope furnished was such rope), the plaintiff knew good rope when he saw it, and he must, therefore, have been able to tell whether a rope was a poor one or not, and, having permitted the defendant to change the quality of rope without calling attention to the defect, he must be deemed to have waived this particular condition. It appears from one of his own witnesses that after the accident a second piece of rope, cut from the same rope which had broken, was put up, and that this rope was a safe rope, as the witness himself had made use of it in sliding down the same. The rope had stood the test of various performances that same day, and the plaintiff does not appear to have ever thought that there was any lack of care on the part of the defendant in furnishing this rope until after the accident, while the test of reasonable care is what would have been the judgment of reasonable men before the accident occurred. It appeared from the evidence that this rope had been tested; that a test, which the plaintiff agrees was an adequate test, had been applied; that the rope, in a long piece, had been thus tested, and that it had then been cut into lengths proper for the use to which it was to be put, and the remainder placed in the storehouse for further needs. There is no dispute as to this testimony. It is furnished by the plaintiff's own witnesses, and we think the most that can be said of the case made by the plaintiff is that he has shown that a rope, standing an adequate test in the first instance, broke and resulted in his injury.

The defendant had provided plenty of rope which was proper for the work to be performed, and, if the particular piece of rope which he was called upon to use on the particular day of the accident had become worn or burned out, it was the duty of the plaintiff, or of his fellow servants, to make use of the new rope which was ready and available. It is not the duty of the master, having supplied proper materials and appliances and reasonably competent fellow servants, to personally see to it that these fellow-servants make use of the materials. Damjanovic v. Herring-Hall-Marvin Safe Co., 119 App. Div. 12, 14, 15, 103 N. Y. Supp. 932. The duty of the master is performed when he has supplied adequate and proper materials and competent fellow servants. and he is not bound to watch over the use of a rope, or other simple appliance. and determine just when there shall be a change. This is one of the details of the work which may be properly delegated to a servant, and the master is not liable for the servant's negligence or error in judgment. Cregan v. Marston 126 N. Y. 568, 27 N. E. 952, 22 Am. St. Rep. 854; Ivers v. Minnesota Dock Co., 84 App. Div. 27, 82 N. Y. Supp. 193.

We are of the opinion, therefore, that the court erred in refusing to dismiss the complaint at the close of the evidence, in so far as the first cause of action is concerned.

In the case of Davenport v. Oceanic Amusement Company (decided at this term of court) 116 N. Y. Supp. 609, which was for the damages growing out of the personal injuries of the plaintiff in that action in the same accident for which the plaintiff in this action claims damages, there is no substantial difference in the testimony, and the employer's liability act is not involved in any way in the case now under consideration. In that case we have held that the

recover. Having held this in reference to a woman, who, in the nature of the case, would not be as well prepared to judge of a situation of this character as the plaintiff in this action, who was a professional fire fighter, having appeared in exhibitions and been employed in the fire department, there is no ground for holding, a different rule in his case. The discussion in the case cited above covers all of the essential facts in the case now before us, except that in this case the plaintiff is Conyes, who was engaged at the time of the accident in carrying Rose Davenport, while in the other case the plaintiff was the one being carried, and it does not appear to be necessary to incumber the reports with more of detail.

The judgment and order appealed from should be reversed.

SONN et al. v. KENNY.

(Supreme Court, Appellate Term. May 7, 1909.)

EXECUTION (§ 418*)—SUPPLEMENTARY PROCEEDINGS-ORDER TO SHOW CAUSECOMMITMENT "WARRANT OF ATTACHMENT.”

Code Civ. Proc. § 2269, provides that the court authorized to punish for contempt may (1) order accused to show cause, or (2) issue an attachment. Section 2273 declares that an order to show cause may be made either before or after a final judgment or the final order in special proceeding, that it is equivalent to a notice of motion, and subsequent proceedings thereon are as on a motion made therein. It also defines a "warrant of attachment" as a mandate whereby a special proceeding is instituted in behalf of the people on relation of the complainant. Held that, where a debtor failed to appear in supplementary proceedings, the creditor was either entitled to an attachment or an order to show cause why he should not be punished for contempt, and that the court in either event could afford the debtor an opportunity to purge himself of contempt, and was not compelled to issue a commitment.

[Ed. Note.-For other cases, see Execution, Cent. Dig. § 1201; Dec. Dig. § 418.*

For other definitions, see Words and Phrases, vol. 8, pp. 7396, 7833.]

Appeal from City Court of New York, Special Term.

Supplementary proceedings by Samuel Sonn and another, as executors of the will of Abraham H. Sonn, against James Kenny. From an order refusing to commit defendant for a failure to appear and answer in order to show cause, the judgment creditors appeal. Affirmed.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Jacob Marx, for appellants.

Harry Eckhard, for respondent.

DAYTON, J. This is not a new question in the City Court. It has been specifically raised and decided on identical facts by that court. In re Nejez, 54 Misc. Rep. 38, 104 N. Y. Supp. 505. The fact that the judgment creditor asked for an order to show cause under section 2269, Code Civ. Proc., does not compel the court upon the return thereof, if there should be a default in appearance, to issue a commitment. The two subdivisions, 1 and 2, of section 2269, merely provide two different methods of summoning the delinquent before. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the court to answer for the alleged offense; and that is apparent from a reading of the whole of section 2269. By subdivision 1 the debtor is ordered to show cause why he should not be punished. By subdivision 2 he is brought before the court by the sheriff upon a warrant of attachment to answer for the alleged offense. In either event the case against him is not finally determined, and the section does not compel the court to commit him summarily upon failure to appear on the return of the order to show cause.

The judgment creditor might have asked for a warrant of attachment in the first place. He chose to take the other means. But, as is shown by section 2273, neither is final. The order to show cause is equivalent to a notice of motion; and the subsequent proceedings are taken as if taken in the action or special proceeding as upon a motion therein made. The warrant of attachment institutes an original special proceeding against the accused, in behalf of the people, upon the relation of the complainant. The first orders the appearance of the delinquent. The second cannot proceed until the delinquent is before the court. And that is the only difference. But if, in the second proceeding, the court still must be convinced that the offense is such that a commitment must issue—that is, if when the delinquent is actually produced he still has a chance to explain and purge himself before being sent to jail-it certainly cannot be successfully contended that upon a default on the order to show cause the court is compelled to issue a commitment.

The order should be affirmed, with costs, for these reasons, and for those given in the case of In re Nejez, supra.

Order affirmed with $10 costs and disbursements. All concur.

HOWARD & CHILDS CO. v. CONATY.

(Supreme Court, Appellate Term. May 7, 1909.)

PRINCIPAL AND AGENT (§ 23*)—EVIDENCE OF AGENCY-SUFFICIENCY.

In an action for the price of beer sold to defendant, evidence by defendant that he paid the price to another, and that such other was plaintiff's collector, was insufficient to establish the agency of the one to whom the money was paid.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. § 23.*]

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by the Howard & Childs Company against John Conaty. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Beardsley & Hemmens (Thomas H. Beardsley, of counsel), for appellant.

Charles K. Terry, for respondent.

PER CURIAM. This action is brought to recover a balance of $112 due from defendant to the plaintiff brewery for beer received by defendant. The defense is payment. The only evidence to sustain the answer is that defendant paid the amount to one Thomas Rodden. Defendant was then asked by his counsel:

"Q. Who is Thomas Rodden?

"Plaintiff's Counsel: I object, as a conclusion. "The Court: Objection overruled.

"Plaintiff's Counsel: Exception.

"The Witness: He was a collector for the brewery.

"The Court: What brewery?

"The Witness: Howard & Childs.

"Plaintiff's Counsel: I move to strike that out as his own conclusion. "The Court: Motion denied.

"Plaintiff's Counsel: Exception."

This and a similar preceding statement by defendant was the only evidence of Rodden's agency for the brewery. It was clearly insufficient, and the judgment for defendant, rendered upon the strength of it, must be reversed, and new trial ordered, with costs to appellant to abide the event.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

BERNER & FREEDMAN v. WALKER et al.

(Supreme Court, Appellate Term. May 7, 1909.)

1. COURTS (§ 189*)-MUNICIPAL COURTS-ATTACHMENT-CLAIMANTS' BONDSACTIONS.

Under Municipal Court Act (Laws 1902, pp. 1517, 1518, c. 580) §§ 85, 86, authorizing a claimant to the property attached to give a bond conditioned that in an action thereon to be commenced within three months the claimant will establish that he was the general owner of the property at the time of the seizure, or if he fails so to do that he will pay to plaintiff the value thereof, and providing that a judgment for plaintiff must award to him the value of the property delivered to the claimant, etc., an action on a claimant's bond must be brought by plaintiff in the attachment within the time specified.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 189.*]

2. LIMITATION OF ACTIONS (§ 5*)—STATUTES-CONSTRUCTION.

Code Civ. Proc. § 405, authorizing a second action after the expiration of the time limited for an action, when considered in connection with section 414, declaring that the provisions of the chapter shall not apply to a case where a different limitation is specially provided by law, does not apply to an action on a bond given by a claimant to attached property, as authorized by Municipal Court Act (Laws 1902, p. 1517, c. 580) § 85.

[Ed. Note. For other cases, see Limitation of Actions, Dec. Dig. § 5.*]

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Berner & Freedman, a corporation, against Frank Walker and another. From a judgment for plaintiff, defendants appeal. Reversed, and complaint dismissed.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes