FIRST DEPARTMENT, APRIL TERM, 1903. [Vol. 82. skull and killing him almost instantly. It appeared upon the trial that one McDonald was employed by the defendant as coal foreman, and had been so employed for eight or nine years. He had general charge of the business and of the men engaged in unloading the barge. It further appeared that the defendant furnished lights for the purpose of use in the barge, as necessity required, and that whether the lights should be used or not was left by the defendant to the discretion of McDonald. When it became dark in the hold, so that the workmen could not see sufficiently plain to perform the duties which devolved upon them, it was expected that lights would be so placed in the interior of the barge as would enable the workmen to control the movement of the buckets and steady them in place as they were raised and lowered. There were no lights in the hold of the barge at the time of the accident. McDonald testified that the lights were ready, but that he did not think it necessary to put them up. The evidence authorized the jury to find that at the time when the accident happened it had become so dark that the captain of the barge was unable to see what was being done in the hold, or to determine when the signal was given to raise the bucket, and that by reason of such condition he was not able to determine when it was necessary to wrap the guy rope around the pin and thus prevent the swinging of the bucket. The case was submitted to the jury upon the theory that if the jury found that McDonald represented the defendant in respect of this work, and had full control of the same, then he was to be regarded as the representative of the defendant and its alter ego in the performance of the work, and, if so, negligence might be predicated of a failure to exercise ordinary care to keep the place so lighted as to enable the work to be safely done, and they might therefrom find that the defendant, if there was failure to discharge such duty by McDonald, was liable for an injury sustained by reason of the unsafe place in which the work was being transacted, created by the omission to supply proper lights. Upon such submission the jury found a verdict in favor of the plaintiff for the sum of $2,500, and upon motion thereafter made the court set aside the same and ordered a new trial, based upon the ground that McDonald was a fellow-servant of the deceased; that the failure to App. Div.] furnish lights, if required, was an act of negligence upon his part, for which no recovery could be had. It is now firmly established in the law of negligence that it is the duty of the master in employing servants to use reasonable care to provide proper appliances and a safe place to work. This duty is so firmly fixed upon the master that he cannot delegate its performance to a servant and escape liability, if the servant, whatever be his grade, neglect to properly perform the same and injury result therefrom to a person to whom he owes such duty. (Simone v. Kirk, 173 N. Y. 7; Crispin v. Babbitt, 81 id. 516.) It is evident, in the present case, that the jury were authorized to find that lights were necessary in the hold of the barge in order to make it a safe place for the prosecution of the work then being carried on. The circumstances which produced this accident authorized the jury to find that it was solely the result of darkness to such an extent that the captain of the barge could not see when to take the precaution of controlling the bucket by means of the guy rope, and that his inability so to see caused him to omit the usual precautions which he had theretofore taken; that such failure upon his part permitted the bucket to swing and thus produced the injury resulting in the death of plaintiff's intestate. This condition was created by the failure of McDonald, who represented the master, in omitting to place lights in the hold of the barge and thereby rendered such place unsafe and dangerous. The duty to place the lights devolved upon the master; McDonald stood in the relation of its alter ego, and his negligence became the negligence of the defendant. (Pantzar v. Tilly Foster I. M. Co., 99 N. Y. 368.) Nor can the plaintiff be defeated in her right to recover upon the ground that her intestate assumed the risks incident to the situation. The darkness came gradually in the prosecution of the work. The deceased had the right to rely upon the performance by the master of the duty which was devolved upon it. He doubtless could see in the hold sufficiently to fill the buckets, and his eyes becoming used to the dim light might enable him to see much better than the person in charge of the guy rope and he be without notice that the latter could not see. It cannot be said, therefore, as matter of law, that he assumed the risk of the inability of the captain of the barge APP. DIV.-VOL. LXXXII. 14 to see. FIRST DEPARTMENT, APRIL TERM, 1903. [Vol. 82. (Kain v. Smith, 89 N. Y. 375.) Nor is there basis to make a claim of contributory negligence, as it does not appear that any act of the deceased contributed to the accident; besides, the questions of risk and contributory negligence were fairly submitted to the jury for their determination, and they have negatived both. It follows that the order granting a new trial should be reversed and judgment ordered for the plaintiff upon the verdict, with costs. PATTERSON and O'BRIEN, JJ., concurred; VAN BRUNT, P. J., and INGRAHAM, J., dissented. Order reversed and judgment ordered on verdict, with costs. WILHELMINE FUHR, Appellant, v. TIMOTHY T. CRONIN, Individually and as Executor, etc., of JANE CRONIN, Deceased, and JENNIE CRONIN BYRNES, Respondents. Specific performance — marketable title-proof of adverse possession must also negative the existence of persons who might attack it · courses which neither run to or along lot lines, held not to be controlled thereby. A contract for the sale of real property and the deeds in the vendor's chain of title described the premises conveyed as follows: "Beginning at a point on the northwesterly side of Grove Street distant one hundred and ninety-two feet eight inches northwesterly from the northwesterly corner of said Woodruff Avenue and Grove Street, running thence northwesterly along Grove Street twenty-five feet, and thence southwesterly and parallel with Woodruff Avenue one hundred and eight feet and nine inches to Lot Number 80 on said map, and thence southeasterly along Lot Number 80 twenty-five (25) feet, and thence southeasterly and parallel with Woodruff Avenue one hundred and eight feet and nine inches to the westerly side of Grove Street, the point or place of beginning." The east and west lines of the lot which it was intended to convey ran at right angles with Grove street and not parallel with Woodruff avenue. In consequence thereof, the vendor had no paper title to a triangular piece in the southwesterly part of the lot intended to be conveyed and had a paper title to a triangular piece of the adjoining lot No. 97. App. Div.] FIRST DEPARTMENT, APRIL TERM, 1903. The vendee, upon discovering this condition of affairs, refused to accept the title, whereupon the vendor tendered a deed which described the premises as they should have been described through the entire chain of title. The vendor had been in the uninterrupted occupancy of the premises described in the deed tendered for a period of thirty years. There was, however, no proof negativing the existence of persons who might, notwithstanding the lapse of thirty years, be still entitled to attack the vendor's title. It also appeared that a person claiming to hold a gore of land upon another part of lot 79 under a deed similar to the vendor's had been dispossessed of the same. Held, that the vendor's title was not marketable and that specific performance of the contract of sale should not be decreed; That the deeds mentioned in the vendor's chain of title could not be construed as conveying to the vendor a paper title to the lot intended to be conveyed, on the theory that the lot lines constituted monuments controlling the courses and distances mentioned in the deed, for the reason that the lines of the premises conveyed, as given in the deed, did not run to, or along, the lot lines. APPEAL by the plaintiff, Wilhelmine Fuhr, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 9th day of September, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits and directing the specific performance of a contract upon the counterclaim set forth in defendants' answer. The plaintiff's assignor entered into an agreement for the purchase of a house and lot, No. 1895 Franklin avenue, in the city of New York, upon which he paid $100 at the time of the execution. of the contract, the remainder of the purchase price to be paid at the time of the ensealing and delivery of a deed of the premises. In the contract of sale the vendor covenanted that he was well seized of the premises. Upon making a search, the plaintiff found that the vendor's title was defective in that the description in the deeds showing the vendor's chain of title failed to include a small triangular piece of ground nine and fifty-seven one-hundredths feet wide at the rear and running to a point at the front. On this account the vendee refused to take the title unless such defect was remedied. The vendor made tender of a deed, which properly described the premises as they should have been described through the whole chain of title. The premises fronted upon Grove street, and the following is a diagram of the premises and adjoining land: The description of the premises as contained in the vendor's chain of title, and as described in the contract of sale, is as follows: Beginning at a point on the northwesterly side of Grove Street distant one hundred and ninety-two feet eight inches northwesterly from the northwesterly corner of said Woodruff Avenue and Grove Street, running thence northwesterly along Grove Street twentyfive feet, and thence southwesterly and parallel with Woodruff Avenue one hundred and eight feet and nine inches to Lot Number 80 on said map, and thence southeasterly along Lot Number 80, twenty-five (25) feet, and thence southeasterly and parallel with Woodruff Avenue one hundred and eight feet and nine inches to the westerly side of Grove Street, the point or place of beginning." It will be seen by examining the diagram that the directions given to the boundary lines by the points of the compass as mentioned in the said description, and the directions given those same lines by the monuments mentioned, are absolutely at variance. If the directions |