FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

Held, that negligence on the part of the defendants' foreman could not be predicated upon the circumstance that he stood by and allowed the deceased, with other workmen, for their convenience, to ride up in the elevator instead of insisting upon their ascending by ladders provided for workmen.

APPEAL by the plaintiffs, Charles H. White and another, as administrators, etc., of David G. Robertson, deceased, from 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 30th day of March, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

T. M. Tyng, for the appellants.

No one appearing for the respondents.

O'BRIEN, J.:

This action, brought to recover damages for alleged negligence in the operation of the defendants' elevator, resulting in the death of plaintiffs' intestate, who was defendants' workman, was previously considered by this court on an appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury (White v. Eidlitz, 19 App. Div. 256), and a new trial was ordered on the ground that the evidence was insufficient to show that the defendants had authorized the use of the elevator by the decedent or were responsible for the obstructions in the way of the elevator which caused the accident. The leading facts in the case were set forth in the opinion then given and will not be here repeated.

In dismissing the complaint on the new trial the learned judge below held that there could be no recovery, first, because there was no negligence shown on the part of the contractor; second, because the elevator was not intended for the transportation of workmen, but was clearly intended for the carrying of material; and, third, because the accident resulted, not from any want of care or negli gence on the part of the contractors, the defendants herein, but from the act of some one in covering the elevator shaft at the fourth floor with planks. These are essentially the grounds of reversal on the previous appeal, although the appellants here assert that the reasons were quite different. We are called upon, therefore, to review the new record to determine whether or not, at the close of the plain

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

tiffs' testimony when the complaint was dismissed, a prima facie case had been made out.

With regard to the point claimed by the appellants, that the employees were authorized by the defendants to use the elevator, we have the testimony of three of the men who were with the deceased on the elevator when the accident occurred. John Schultz testified that on the morning of the accident he saw Robertson, the deceased, and said to him, "Come on, Dave, we will ride up" that they got on the elevator and he said to the engineer, "Take us up;" that three other men got on and then the foreman of the bricklayers said, "That is enough," and the engineer said, “Oh, one more," and told Hogan to get on; that the regular use of the elevator was for carrying materials up, but "occasionally the men did, for their own convenience, go up and down with it;" that he knew nothing about any signals when men were aboard.

Patrick E. Meara testified that men rode up and down the elevator, and that there was a signal of three bells for men and two bells for material, so that the engineer might know how fast to run the engine; that the usual way was for the men to go up and down ladders; that the men had no authority to use the elevator as they pleased, and did so only by direction of the foreman; that the persons who usually rode on the elevator were the architects, contractors and men not regularly at work. Gustave Isaacson states substantially the same story as the previous witnesses, except that four men were on the elevator when the foreman said that was enough, and that two jumped on afterward. This witness also said that the elevator was regularly used for carrying material. and that he had never ridden on it before that morning, and had never heard any orders given by any one as to that matter, but saw men riding occasionally.

With regard to the point contended for by the appellants, that the defendants were responsible for the obstructions which caused the accident, which obstructions consisted of planks lying across the elevator shaft on the fourth floor, the proof rests on the testimony of John Meister, who had charge of the night gang at the building. The substance of his testimony is that he had, at different times, seen planks across the elevator shaft, but on the evening preceding the morning of the accident did not see any planks at all; that

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

planks were placed across for the purpose of keeping material from falling down, but that he did not himself put planks there, and did not know who did.

In the previous opinion referred to it was stated "in some way, which was entirely unexplained, these planks had been put across the elevator well on the fourth floor. When it had been done, or by whom, or for what purpose, or how long it had continued, did not appear" (White v. Eidlitz, 19 App. Div. 259), and these words are applicable in the present appeal. And we may also, with regard to the authority vested in the foreman, quote from the same opinion: "There was an entire failure of evidence to establish that he had been intrusted by the defendants with any right to control the operation of the elevator or to direct the men to ride upon it." We may add that, according to the workmen's testimony, it appears that, contrary to the foreman's advice, two men got on the elevator. If we assume, however, that the evidence would justify the inference that the foreman Walters was the representative of the defendants, and that any fault or negligence of his was chargeable to them, then we must go one step further and determine whether any act or direction of Walters was responsible for the accident. He occasionally allowed the workmen and others to use the elevator, but it was not shown that the elevator was in any way defective or unsafe. It was intended for material, but, if properly used, it was not dangerous or hazardous for persons to ride upon it. Negligence, therefore, on the part of the foreman cannot be predicated upon the circumstance that he stood by and allowed the deceased with the other workmen for their convenience to ride up in the elevator, instead of insisting on their ascending by the ladders which were provided for the workmen.

Apart from all this, however, it clearly appears that the cause of the accident was the placing of planks across the elevator shaft on the fourth floor, which planks were carried upwards with the ascent of the elevator to the top of that story, and thus impeding its further progress and producing a strain which caused the elevator to descend. It was the striking of the elevator against the planks and the jar and noise produced by its pressure upon them which gave the workmen just cause of alarm and induced them to jump, some to a place of safety and Robertson to his death. It not having been

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

shown when or by whom the planks were so placed, and there being an entire absence of any evidence connecting Walters or the defendants therewith, it follows, under our former decision, that no cause of action was made out.

We think that the trial judge was right in dismissing the complaint on the ground that no negligence on the part of the defendants was shown. The judgment is, therefore, affirmed, with costs.

VAN BRUNT, P. J., BARRETT, RUMSEY and PATTERSON, JJ., concurred.

Judgment affirmed, with costs.

LAURA LE COUTEULX DE CAUMONT, Respondent, v. ANTONIO RASINES,

Appellant.

Principal and surety — when a creditor must first resort to the property of the principal debtor.

To sustain the defense that a creditor, as between a surety and the principal debtor, must first resort to the property of the principal debtor, two things are necessary a request by the surety to the creditor so to proceed, and a failure to comply therewith with resultant damages.

An accommodation maker of a note, payable "on demand and return of the securities given," and delivered under no agreement as to the use to be made of it, is not entitled to insist that the note shall be used as an offset to an obligation existing in favor of the principal maker against the holder of the note, who took the note with knowledge of the relation thereto of the accommodation maker- the obligation not being a collateral to secure the payment of

the note.

APPEAL by the defendant, Antonio Rasines, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of December, 1898, upon the verdict of a jury rendered by direction of the court.

The action was brought upon four promissory notes, each forming a separate cause of action, each payable to the order of Charles W. Dayton, attorney, and signed by J. S. McWilliam, since deceased, and Antonio Rasines, the defendant, and each having express collaterals.

APP. DIV.-VOL. XXXVIII. 20

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. The answer admits the making of the notes and delivery for value, but denies the plaintiff's title, alleges payment and sets up a counterclaim arising upon dealings between the parties. When the plaintiff had rested, the defendant's attorney, Mr. Hill, was permitted to state the facts relied upon as defense, which he did as follows: "Prior to the making of the notes, and in July, 1890, Mr. Dayton, then being the attorney in fact for the plaintiff, bought from a Mr. Meyer a piece, or several pieces of property on Broadway, and at the same time gave a declaration of trust to Mr. John S. McWilliam for a quarter interest in that property, this declaration being in consideration of services rendered and to be rendered, no money being then paid. There was a provision in the declaration that Mr. McWilliam should contribute proportionately to the expenses of carrying the property. Later Mr. McWilliam received from Mr. Dayton another declaration of trust for one-sixteenth interest in the property in consideration of $12,500 cash, thus making five-sixteenths interest in the property, with a like provision about the contribution for the expenses of carrying. Those papers contemplated that there should not be a conveyance to Mr. McWilliam of any interest in the real estate itself, but that the property should be carried in Mr. Dayton's name and ultimately be sold and the proceeds divided among the parties interested, Mr. McWilliam to receive his share upon that basis.

"While matters stood in this shape Mr. McWilliam desired to obtain a loan of money from Mr. Dayton or to have him raise some money for him, and applied to him for that purpose. The result was that an arrangement was made between Mr. Dayton, Mr. John S. McWilliam and Mr. Rasines, the defendant, that Mr. Dayton should loan Mr. McWilliam some money with which to buy certain Canal street bank stock or something of that kind, upon specified collateral, to wit, the bank stock which he was going to buy, and also upon the name of Mr. Rasines signed as co-maker with him upon the notes, it being understood by them all that Mr. Rasines had no interest at all in the loan or proposed purchase, but was to sign the notes solely as an accommodation maker.

"I do not expect to prove that there was a definite contract between Mr. Dayton and either of the makers of those notes that this real estate interest was a collateral to the obligation itself. My