masters to exercise due diligence | sister, Mrs. S., for a consideration to furnish suitable appliances and keep them in a proper state of repair applies to the premises where the employee is required to perform services as well as to the machinery with which the business is carried on. 24 N. Y., 410; 60 id., 607, Wood on Master and Servant; 31 Hun, 392. Also held, That the charge was as favorable to defendant as the law of the case required. Judgment and order affirmed. Opinion by Hardin, P. J.; Boardman and Follett, JJ., con N. Y. SUPREME COURT. GENERAL TERM. FOURTHI DEPT. Edwin B. Bush, respt., v. Medina Preston et al., applts. Decided Oct., 1884. An answer given by a party in supplementary proceedings prior to September 1, 1880, may be used as evidence against him. An order for judgment setting aside conveyances as fraudulent as to plaintiff and declaring his judgment the prior and superior lien does not authorize the insertion of a clause in the judgment declaring that plain tiff is entitled to execution. Appeal from judgment in favor of plaintiff, entered on a trial before the Special Term. Action by plaintiff, as a judgment creditor of defendant P., to set aside two conveyances, a mortgage and a judgment by confession as fraudulent. P. contracted the debt to plaintiff in 1877, while solvent. On the 24th of December he conveyed his homestead to his expressed of $2,000, and also conveyed to S., her husband, a farm of fifty acres for the expressed consideration of $1,500, subject to a mortgage of $1,000, and S. thereupon executed a mortgage on said premises for $1,500, payable in ten years, which, with a debt due him from P., formed the consideration for the conveyance. P. was insolvent, and Mr. and Mrs. S. knew this fact. The court found, on conflicting evidence, that at the time of the conveyances the homestead was worth $2,500 and the farm $4,000. At this time Plaintiff brought suit against P., on his claim, December 29, 1879, and on January 7, 1880, Mrs. S. recovered judgment, by confession, against P., for $1,372.70, on an alleged accounting between them, as heirs at law of their father, on May 12, 1877. Evidence was given on the trial of this action tending to show that shortly before these conveyances were made P. declared his intention to put his property out of his hands to avoid payment of his debts, and that it was done in the above manner with the active co-operation of his sister and her husband. The court held that the judg ment was without any legal consideration and that the conveyance of the farm and the mortgage were given and received by the respective parties with intent to hinder, delay and defraud the creditors of P. A. Coburn, for applts. Held, That the judgment is the use to be made of evidence right on the merits. taken in supplementary proceed Supplementary proceedings were instituted on plaintiff's judgment in March, 1880, and ended in July, 1880. The several defendants were examined in those proceedings. The testimony given by each of them in those proceedings were, under objection, admitted in evidence against each respectively, but not against the others. It is claimed that this evidence was inadmissible under 2460 of the Code before it was amended in 1881; that such amendment, which prohibited the use of such evidence only in a criminal action or proceeding, contained the saving clause that it should not invalidate any proceeding theretofore taken pursuant to either of the sections thereby amended. Held, It seems to be well settled that the Legislature has power to change the rules of evidence and to apply the changes thus made to existing causes of action. 64 N. Y., 262; 12 id., 541. But it is unnecessary to consider the effect of the amendment in question, as the argument of the learned counsel for defendants is based upon a misapprehension. It was provided by 3350, Code Civ. Pro., that Chaps. 14 to 21 inclusive, or §§ 1496 to 3356, should go into effect September 1, 1880. Therefore, as the examination of defendants was had prior to August, 1880, the Code Civ. Pro. has no application. The examination was controlled by the Code of Procedure, which placed no such restriction upon ings. Old Code, $$ 292 to 302. The position that this evidence was inadmissible because the referee was not sworn and the testimony never filed is untenable, because the admission of a party, whether verbal or written, or made with or without the sanction of an oath, is competent against the party making it. The direction for judgment was that the deed, mortgage and judg ment be set aside, so far as the lien of plaintiff's judgment is concerned, and that his judgment be declared the prior and superior lien, with costs. The judgment entered contained the following clause, "and that the plaintiff is entitled to execution against defendants to the amount of plaintiff's said judgment * * with interest." Held, That this part of the judgment was irregular and was not authorized by the trial court, but there was a simple, speedy and inexpensive remedy by motion at Special Term to correct the error. While it can be corrected on an appeal, such correction should be made without affecting the costs of the appeal where no other error is found by the appellate court. If the mortgage in question has been assigned to a person not a party to the action the judgment can have no effect upon his rights. Judgment modified by striking out the clause as to execution and as modified affirmed, with costs. Opinion by Vann, J.; Hardin. P. J., and Follett, J., concur. MASTER AND SERVANT. fifteen feet to the bed of the creek, N. Y SUPREME COURT. GENERAL striking so as to fracture his leg. TERM. FOURTH DEPT. John Kesley, respt., v. The Sanderson Bros. Steel Co., applt. Decided Oct., 1884. Plaintiff, who was employed by defendant, started on a dark night with a lantern to go to a privy which projected over a stream and which he was required to and was for a long time accustomed to use. The lantern went out and in the darkness he missed the door and fell over the wall, breaking his leg. Held, That he could not recover without proof that he had no knowledge of the dangers and risks attending the use of the privy. Appeal from judgment in favor of plaintiff, entered on verdict and from order denying motion on the minutes for a new trial. Plaintiff testified that "he understood that the door of the privy was at the margin of the wall; he knew the privy was standing over the creek; knew those things when I fell down there." Wm P. Goodell, for applt. Held, That the verdict is not supported by the evidence. It has been held that a servant who has accepted service with knowledge of the character and position of structures from which he may be liable to injuries, in cases of injuries resulting therefrom, cannot maintain an action against his em ployer and that the servant assumes the apparent risks. 63 N. Y., 449; 12 Hun, 289; 19 id., 512; 88 N. Y., 268. The principle laid down in those cases applies to the case in hand. We think plaintiff had no right to call upon or expect defendant to make alterations in the premises in respect to the location and surroundings of the privy. Plaintiff, by continuing in the employ of defendant after he had become familiar with the ap Action to recover for injuries received by plaintiff while in the employ of plaintiff. About half past nine in the evening of October 31, 1878, plaintiff started with a lantern to go to the privy situated about 125 feet from the room where he was working. This privy the employees were required to use and it was built over a creek. Plaintiff had been accustomed to use this privy day and night dur-proaches to the privy, consented ing the eleven months he had worked for defendant, knew its location and had made no complaint about it. No change had been made in its surroundings nor had any promise to do so been made by defendant. The lantern went out and he passed along in the dark, and instead of entering the door of the privy, went two or three feet to the right and ran off the edge of the wall and fell about to take upon himself the risks and dangers incident to its use. See 13 W. Dig., 445; 1 Lans., 108. Ryan v. Fowler, 24 N. Y., 416, distinguished. We think the evidence gave rise to the presumption that plaintiff knew of the existence of the creek, the wall along it and of the situation of the approaches to the privy. The situation of the creek and wall was patent and an employee who had been in and about the premises to the extent plaintiff had for eleven months must be presumed to understand the dangers and risks incident to the use of the privy. That he did not have such knowledge should be made clearly to appear before he can claim to enforce a right of action against the owner of the premises upon which he has consented to serve. We think the trial judge did not instruct the jury that it was to be presumed that plaintiff knew of the situation of the premises and that the burden was upon plaintiff to establish that he had no such knowledge. Besides, we are not satisfied that the evidence would warrant a finding that plaintiff did not know of the dangers incident. to an attempt to approach the privy on a dark night without a lantern; nor that plaintiff did not knowingly and intentionally assume such risks. 19 Hun, 512. Judgment and order reversed, and new trial ordered, costs to abide event. Opinion by Hardin, P. J.; Merwin, J., concurs; Follett, J., not sitting. HUSBAND AND WIFE. TERM. FIRST DEPT. Wright Robins, applt., v. John S. McClure, in person and as exr., respt. Decided Oct. 8, 1884. The common law right of the husband to take the entire personal estate of the wife Vol. 0.-No.. dying intestate and without descendants extends to the partial intestacy created by the lapse of a legacy bequeathed by her in her will although the husband has taken property by virtue of such will and has taken out letters testamentary thereunder and has never taken out letters of administration upon the wife's estate. Appeal from judgment of Special Term. In December, 1882, Caroline McClure, wife of defendant, died, leaving a will by which she devised and bequeathed the major part of her estate, both real and personal, to her husband and appointed him her executor. She also bequeathed a legacy to her brother, Wright Robins. Said will was admitted to probate and letters testamentary were issued to defendant, who duly qualified thereunder. The testatrix' brother died previous to her death, and the legacy to him consequently lapsed, and the personal property thus remaining undisposed of defendant claimed under the common law by virtue of his marital rights, while an interest in it was also claimed by plaintiff, a nephew of testatrix, as one of her next of kin. It was argued on behalf of the plaintiff that the husband could not avail himself of the provisions of the will which were in his favor, and yet claim to be entitled as the husband to that portion of the estate which would have gone to the testatrix' brother in case he had survived his sister, and that therefore her next of kin were entitled to the same; and also that, since the property of the testatrix, including that embraced in the lapsed legacy, came into the hands of the defendant as the executor of the will of his deceased wife, there could be acquired by him no right therein as her administrator, and that therefore he had taken the property as trustee for her next of kin who were entitled to receive it under the statute of distributions. Edward C. James, for applt. Held, That, since the legacy to the brother of the testatrix was wholly personal property, and being, by the lapsing of the legacy by reason of the death of the legatee prior to the death of the testatrix, wholly undisposed of by the will, it passed as in a case of entire intestacy. 37 N. Y., 549; 59 id., 434; 79 id., 327. That the acts of 1848 and 1849. known as the married women's acts, have not changed the common law in respect to the title of a husband to the personal property and choses in action of a wife who dies without making any disposition thereof and without leaving either ancestor or descendant. That he is entitled in such a case to reduce the same to possession after her demise as well as by virtue of his marital rights as by fight of administration in cases of intestacy. 22 N. Y., 110; 24 id., 110; 47 id., 351; 12 Abb. N. C., 414. That it is not, therefore, necessary that there shall be actual administration to consummate title in the surviving husband, though where such administration exists he may establish his title by virtue of his administrative rights. 47 N. Y., 351. That the common law right of the husband to take the entire personal estate of the wife dying intestate and without descendants extends to the partial intestacy created by the lapse of a legacy bequeathed by her in her will, although the husband has taken letters testamentary under such will and has never taken out letters of administration upon the wife's estate. 10 Abb. N. C., 224. 10 id., 274, distinguished. Judgment affirmed. Opinion by Davis, P. J.; adopting that of Lawrence, J., at Special Term; Brady and Daniels, JJ., concur. RAILROADS. EMINENT DOMAIN. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. In re application of The N. Y., L. & W. RR. Co., respt., to acquire lands of Solomon Scheu et al., applts. Decided May, 1884. A general land agent having charge of the subject of purchasing lands for all the purposes of a railroad corporation must be regarded as an officer of the corporation having the right to verify petitions in proceedings to acquire title to lands. Notice of the proposed route need not be given to owners of land required for other purposes than the construction of the embankment and the laying of the rails. Where the Common Council of a city in authorizing the construction of a railroad through its streets required the company to construct a swing bridge across a canal, to do which it became necessary to obtain land over which to swing the bridge when open, Held, That the company could acquire |