iron bar, and put in a peg; and similarly to required to exercise the care which close it he must lean over and drive down the slide with a hammer. While waiting for orders to open or close it his back must be to the shaft. The cog-wheels had been covered by a box which was not there when the accident occurred. On that day a strong wind was blowing. This wind or the draft made by the revolving cogs drew in plaintiff's coat-tail as he stood with his back to the machinery; he was thrown twice around the shaft and very seriously injured. Held, That a non-suit was error, and that the questions of negligence and of contributory negligence were for the jury. Upon the facts stated in the head note plaintiff was non-suited both upon the grounds that he was negligent and that defendants were not negligent. G. R. Adams, for applt. Held, Error. It was a proper question upon these facts for the jury to determine whether this business was a dangerous one. For by 1, Ch. 122, Laws of 1876, it is a misdemeanor to employ children under 16 in a business dangerous to life and limb. And if the business was dangerous defendants were negligent. 32 Hun, 7; 19 W. Dig., 482. It is perhaps not easy to say when a machine is danger is to be expected from a boy of his age. He could not be called upon for the prudence or caution of a man. It does not appear that he was careless or inattentive. New trial granted. Opinion by Learned, P. J.; Landon and Fish, JJ., concur. SUPERVISORS. TAXATION. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. The People ex rel. John B. Gale v. The Board of Supervisors of Rensselaer Co. Decided Nov., 1884. Defendants reported favorably on a claim of A. against the county. The report was adopted. They afterwards signed the tax books and warrants for collection of taxes, and adjourned sine die. Thereafter the money to pay said claim was raised and paid to the county treasurer. Held, That it was too late for a taxpayer to intervene and attempt to prevent payment of the claim upon the ground of its illegality; that the jurisdiction of defendants in the matter was at an end. The board of supervisors met November 13, 1883, and on December 12 a report made on a bill of one Ahern was adopted. The Supervisors signed the tax book and warrants for the collection of taxes, and adjourned sine die December 15. On April 7, 1884, the relator, upon an affidavit charging this bill to be illegal, without proof to sustain it, that it was not within the jurisdiction of the board to allow it, and that the county treasurer threatened to pay it, obtained a certiorari re quiring the Board to return their proceedings and the evidence. Warren & Paterson, for relator. B. C. Strait, for supervisors, respts. LEARNED, P. J. The respondents insist that the writ should be quashed on the ground that prior to its issue the board had issued its warrants; that the money had been collected, and was at the time in the hands of the county treasurer. We think this to be the law. 82 N. Y., 275. Writ quashed, with $50 costs and disbursements. Bockes and Landon, JJ., con cur. EVIDENCE. N.Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Susan A. Wheeler, admrx., respt., v. The D. & H. C. Co., applt. Decided Nov., 1884. Whether a man is a skillful mechanic or not is a fact as to which those who have knowledge may testify. Action for damages arising from an accident in which plaintiff's intestate was killed. He was fireman on the engine, which went off the track. The engineer of the train was asked how the deceased performed his duties, and also whether he understood the working of the engine. The answer was "he always handled her well while he was with me; that is, when I asked him to move her one way or another he done so." This evidence was objected to and admitted. Henry Smith, for applt. J. F. Crawford, for respt. Held, That the evidence was proper. Whether the fireman was skillful or not was a fact as to which testimony was proper. It would hardly be possible for a witness to describe the work which he had seen a mechanic do so that the jury could judge as to his skill. Judgment affirmed, with costs. Opinion by Learned, P. J.: Bockes and Landon, JJ., concur. Before the making of such an assessment could be claimed as a duty plaintiff must show, under § 7, that the loss exceeded the cash funds of the company. The decision of the committee of reference appointed under § 6 by the county judge is final only as to the amount of the loss and does not preclude the company from any defence it may have or take away the right to a jury trial. This action is brought to hold defendants individually for a loss by fire which plaintiff claims to have sustained. Defendants are directors of a town insurance com pany, authorized by Ch. 492, Laws of 1860, and the second section of that act says that all the provisions of Ch. 739, Laws of 1857, are made applicable to this company. This latter act is the general law relating to town insurance companies. Plaintiff is not a member of the company, but bought of one Church, a member, a mortgage upon the premises given by parties named Bush, also members. The mortgage was secured by insurance in the company. After the loss occurred proceedings were taken under § 6 of the general act; the directors were convened at the instance of plaintiff, a committee was appointed to ascertain the amount of loss, and they passed a resolution not to pay it. The Bushes appealed to the county judge, who appointed a committee which finally made an award in favor of said Bushes. This award was served on defendants with a notice that plaintiff claimed the award as assignee of the mortgage. Defendants refused to pay the award, the Bushes also claiming it. This action is brought under § 9 of the general act, declaring the directors personally liable when they wilfully neglect or refuse to perform the duties imposed upon them by the act; the refusal to pay plain whom this award belongs, whether to plaintiff or the Bushes. Again, it is provided by § 7 of the general act that an assessment shall be made when the amount of a loss shall have been ascertained which exceeds in amount the cash funds of the company. It does not appear here that the loss does exceed the cash funds. Hence the duty to make the assessment has not devolved upon the president, much less upon the directors. Another point arises under § 6. It is claimed that the action of the committee of reference appointed by the county judge is final and disposes of all the questions arising. We think not. Notwithstanding its language we think the section, read with others, only means that the action of the committee is final as to the amount of loss. The other construction, which is not absolutely necessary, would take away a jury trial and preclude any defence by the company. This can hardly have been the intention of the legislature. Judgment affirmed, with costs. Opinion by Learned, P. J.: Landon and Fish, JJ., concur. CIVIL DAMAGE ACT. EVI DENCE. tiff is deemed such a wilful neglect, N. Y. SUPREME COURT. GENERAL &c. Defendant succeeded below. S. L. & F. M. Mayham, for plff. A. C. Cowles, for respts. Held, That plaintiff had no cause of action. There has been no wilful neglect or refusal. There is a doubt and reasonable doubt as to TERM. THIRD DEPT. Catharine Ludwig, respt., v. Lawrence Glaessel, applt. Decided Dec., 1884. In an action under the Civil Damage Act for a father's death, it appeared that a guardian had been appointed for his children by the Surrogate, and that this guardian had assigned the claims of the infants, for being deprived of their means of support, to plaintiff, their mother. Held, That a recovery by the mother in this action, both in her own right and as such assignee, was proper. Defendant after having testified that he owned the premises where the liquor was sold was, on cross-examination, asked whether he had not shortly after the commencement of this action put all his property in his wife's hands; he answered that he had to. Held, That the question was immaterial and improper. This was an action under the Civil Damage Act, Chap. 646, Laws of 1873. Plaintiff sought to recover of defendant, a saloon keeper, damages for selling liquor to her husband, whereby he became intoxicated, and, as alleged, in that condition fell into the Erie Canal and was drowned. She had children. The surrogate appointed a guardian for them who, with the surrogate's approval, assigned all the rights of the children, for being deprived of their means of support, to plaintiff. Defendant, as a witness in his own behalf, had testified that he owned the building where the liquor was sold; upon cross-examination he was asked, "Shortly after the commencement of this action did you put all your property in the hands of your wife?" he answered, "I had to." This question was objected to by defendant. Plaintiff recovered judgment in her own right and as assignee of her children. Shults & Borst, for applt. J. E. Dewey, for respt. Held, That the evidence objected to was immaterial and improper. Defendant had testified that he owned the building. The ground of action is the sale of the liquor, not the ownership of the premises. That defendant had put all his property out of his hands was not an issue in this action, and if true could only be tried in another action. It was likely to prejudice the jury, because it might be taken by them as an admission by defendant of his liability in this action. As to whether the claims of the children were assignable to the mother we may say that, in analogy to the case of Moriarty v. Bartlett, ante, 277, holding that such a cause of action survived the death of defendant, and might be continued against an executor, such claims seem assignable. It is not necessary to decide whether they could be assigned to a stranger. Here the assignment was to the mother, on whom the duty of supporting the children had devolved by the father's death. For error in admission of evidence there must be a new trial. Opinion by Learned, P. J.; Bockes and Landon, JJ., concur. GUARDIANS. N. Y. SUPREME COURT. GENERAL In re accounting of Henry Miller as guardian. Decided Nov., 1884. Where a will, of which M. was executor, contained a wish that M. should also act as guardian of a child and that the child, the sole devisee, should live with M., and the latter, omitting to be regularly appointed This was an accounting by the guardian of an infant. His father was dead when, in 1869, his mother died. The infant was then about five. The mother made a will, admitted to probate in 1870, by ian. In this particular case, however, questions may arise or the proof may be such that there can be no recovery. Decree reversed and matter sent back for rehearing. Opinion by Learned, P. J.; Bockes and Landon, JJ., concur. HIGHWAYS. PENALTIES. SUMMONS. which she left her property to the N. Y. SUPREME COURT. GENERAL infant, appointed Henry Miller executor, and expressed a wish that he should be guardian of the infant until of age; that the infant should live with him. TERM. THIRD DEPT. Wm. Hitchman, Comr., applt., v. Adam R. Baxter, respt. Decided Nov., 1884. In an action for penalty, under the Revised Statutes, the summons was endorsed, "For a penalty imposed under and according to the provisions of § 19, Ch. 16, Tit. 1, Part 1 of the several statutes relating to overseers of highways and highway labor." Held, That the endorsement was fatally defective within Code of Civ. Pro., § 1897. In June, 1880, Miller was appointed guardian. On his accounting in 1883 Miller offered to show that he had supported the infant from 1869 to 1880, and asked to be allowed for it. The surrogate excluded the proof, allowing for the infant's support only from the time of Miller's appointment as guardian. Peter E. Palen, for Miller, districts, who by §§ 6 and 7 shall applt. keep the highways in order; and Fancher & Sewell, for a special upon a neglect or refusal to do so, guardian, respt. Held, Error. The proof should have been received. Without passing upon the merits of this case, we deem the view which the surrogate took of the main question erroneous. In a proper case a guardian who had furnished necessaries to an infant before his appointment as guardian could recover therefor. Otherwise an infant having property might perish because he had no legal guard By 1 R. S., Ch. 16, Tit. 1, Art. 1, § 1, commissioners of highways may appoint overseers of road by $16, they shall forfeit ten dollars, to be sued for by the commissioner. This action for such a penalty was commenced by a summons endorsed, "For a penalty imposed under and according to the provisions of § 19, Ch. 16, Tit. 1, Part 1 of the several statutes relating to overseers of highways and highway labor." Section 19 of Ch. 16 has no reference to the penalty. Plaintiff recovered. This was reversed in the County Court. |