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App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

defendant's wagon, but in vain. The defendant also kept turning toward the gutter until, finally, at a distance of four feet from the gutter, the wagon pole struck the bicycle and knocked off the rider, who was then trodden under the hoofs of the horses and run over by the wagon wheels, suffering injuries which resulted in his

death.

This narrative presents a view of the accident based upon evidence which is in the case, and which the jury may well have believed to be true. There is other evidence which, if credited, would have justified them in adopting an entirely different view, exonerating the defendant; but it is manifest that the jury refused to believe his testimony to the effect that he did not leave the right side of the street, and that the boy had his head down all the time he was approaching the wagon until he struck it.

I think the proof authorized the jury to find that the death of the plaintiff's intestate was caused solely by the gross negligence of the defendant.

The plaintiff was allowed to prove what the defendant said shortly after his arrest, when asked whether he knew the boy's bicycle which had been brought to the police station. According to one witness his answer was, "Damn the bicycle." According to another, he responded, "Damn the bicycle, anyway; they are no good." The objection to proof of these declarations was not well taken. The evidence tended to show the existence of a feeling of hostility to bicycles on the part of the defendant which increased the probability that he had conducted himself with indifference to the rights of the rider of such a vehicle when he encountered the plaintiff's intestate on the Eastern parkway, and in this point of view the testimony was relevant, especially as there were circumstances indicating that the defendant might have willfully brought about the collision.

The verdict was reasonable in amount ($2,000), and the judgment and order refusing a new trial should be affirmed.

Judgment and order unanimously affirmed, with costs.

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

KAROLINA W. KARLSON, Appellant, v. JAMES B. HEALY, Respondent. Negligence-tenant of an apartment house injured by falling through a flooring of slats on a roof while hanging out clothes to dry when contributory negligence is not established.

A tenant of an apartment house who, with knowledge that some of the slats constituting the flooring of the roof of the building are rotten and that others are broken, goes upon the roof for the purpose of drying clothes, and is injured in consequence of the breaking of a slat upon which she stepped, is not, as matter of law, guilty of such contributory negligence as will preclude a recovery by her in an action brought against the landlord for the injuries thus sustained, where it may be inferred from the evidence that no other place for drying clothes had been provided by the landlord, and it appears that the tenant was acting with prudence and circumspection at the time she was hurt, and that the slat which gave way under her was not previously broken,

APPEAL by the plaintiff, Karolina W. Karlson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of October, 1898, upon the dismissal of the complaint at the close of the plaintiff's case by direction of the court after a trial at the Kings County Trial Term.

Henry M. Dater [George F. Elliott with him on the brief], for the appellant.

Edward M. Grout, for the respondent.

WILLARD BARTLETT, J.:

The determination of this appeal depends on the question whether the trial court was justified in dismissing the complaint on the ground that the plaintiff had been guilty of contributory negligence. The plaintiff and her husband were tenants in an apartment house owned by the defendant. Upon the roof of the building was a fenced flooring of slats, with poles erected thereon for the use of the tenants in drying clothes. The plaintiff was injured, while hanging out her wash, by falling through this flooring in consequence of the breaking of a slat upon which she stepped. There was abundant evidence that this roof flooring had been in a bad condition for weeks before the accident, some of the slats being rotten and others

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

The

broken, and that the landlord had been repeatedly informed of the defects and had promised to have them repaired. That the plaintiff was aware of the condition of the roof was also clearly established. This fact, however, did not make it contributory negligence, as matter of law, on her part to continue to use it, so long as it appeared to her that she might safely do so with the exercise of care. learned counsel for the respondent argues that there is no proof that this roof was the sole place for drying clothes, or that there were no other means in the building for that purpose. The plaintiff, however, testified thus: "The arrangements made for hanging clothes on those premises were that we had to take the clothes on the roof and dry them on the roof." We think it might be inferred from this statement that no other place had been provided by the landlord.

The plaintiff's testimony further indicates that she was acting with prudence and circumspection at the time she was hurt. The slat which gave way under her was not previously broken. Its appearance was like that of the other slats. "I walked very carefully," she says; "we have to be very careful when we have to be up there, because I was afraid, and I was very careful when I was up there that I should not fall."

As Judge BRADLEY said in Peil v. Reinhart (127 N. Y. 381): "While the question may have been a close one of fact, it could not properly be held, as a matter of law, that the plaintiff was guilty of contributory negligence." In the case cited, the tenant was injured by falling on a stairway common to the occupants of the defendant's tenement house, and the same rule of liability applies to a landlord in respect to negligence in the maintenance of a slatted roof provided for the use of his tenants in drying their clothes. (Alperin v. Earle, 55 Hun, 211.)

It was error to dismiss the complaint in this case, and the judg ment should be reversed.

All concurred.

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

38 488

42 453

38 488 f52 343

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

LEWELON E. LINDERMAN, and EDMUND L. BAYLIES, as Trustee under
the Will of HERMAN C. LE ROY, Deceased, Appellants, v.
HASTINGS CARD AND PAPER COMPANY, Defendant, and JOHN W.
AXFORD, Respondent.

Assignment by a corporation for the benefit of creditors—not invalid because of a defective certificate of acknowledgment where the instrument was in fact acknowledged an assignment to a director is not repugnant to section 48 of the Stock Corporation Law - assignments without preferences favored.

A general assignment for the benefit of creditors, executed under chapter 466 of the Laws of 1877, is not rendered invalid because the certificate of acknowledgment does not show a proper acknowledgment by the assignor, where it is proved that the instrument was in fact duly acknowledged, as required by law. Semble, that a general assignment for the benefit of creditors, executed by a corporation to a director or stockholder thereof, is not repugnant to section 48 of the Stock Corporation Law (Laws of 1890, chap. 564, as amd. by Laws of 1892, chap. 688) prohibiting transfers of the property of a corporation to a director or stockholder thereof in contemplation of its insolvency; the transfer contemplated by that statute is one which is for the benefit of the director or stockholder, and operates in the nature of a preference.

Assignments for the benefit of creditors, without preferences, are favored in law.

APPEAL by the plaintiffs, Lewelon E. Linderman, and Edmund L. Baylies, as trustee under the will of Herman C. Le Roy, deceased, from a final judgment of the Supreme Court in favor of the defendant John W. Axford, entered in the office of the clerk of the county of New York on the 12th day of July, 1898, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

This appeal was transferred from the first department to the second department.

Edmund L. Baylies [ Walter F. Taylor with him on the brief], for the appellants.

Ralph S. Rounds, for the respondent Axford.

PER CURIAM:

We think this case was properly disposed of at the Special Term upon the grounds set forth in the two opinions of Mr. Justice WALTER LLOYD SMITH. We concur in his conclusions that the general

SECOND DEPARTMENT, MARCH TERM, 1899.

App. Div.]

assignment made to the respondent Axford for the benefit of the creditors of the corporation, was not in contravention of the provisions of section 48 of the Stock Corporation Law (Laws of 1890, chap. 564, as amd. by Laws of 1892, chap. 688), or invalidated by reason of lacking a proper certificate of acknowledgment, so long as the proof showed that it was, in fact, duly acknowledged as required by law. We deem it unnecessary to add anything to what he has said, except one observation in regard to the decision in Rogers v. Pell (154 N. Y. 518, 531), as applicable to the second branch of the case. It seems to us that, while there is much in the opinion to the effect that an insufficient certificate of acknowledgment is fatal to the validity of a general assignment, the decision actually made by the Court of Appeals was that an assignment may be upheld, notwithstanding the insufficiency of such a certificate on its face by proof aliunde that the instrument was duly acknowledged.

Judgment unanimously affirmed, with costs.

The following is the opinion of SMITH, J., upon the dismissal of the complaint at Special Term:

SMITH, J.:

This case presents many novel legal problems which are not of easy solution. A general assignment made by a corporation to the defendant Axford for the benefit of all the creditors of the corporation is assailed upon two grounds: First, as being in contravention of section 48 of the Stock Corporation Law (Laws of 1890, chap. 564 as amd. by Laws of 1892, chap. 688) prohibiting transfers to a director, directly or indirectly, for the payment of any debt, etc., after the corporation has refused to pay any note or obligation when due. Second, as not having been properly executed. If the assignment should be held invalid for either of the reasons stated, other questions are presented as to the rights of the plaintiff, which it will not be necessary to discuss by reason of the conclusion reached upon the questions first presented.

First. This assignment was not repugnant to section 48 of the Stock Corporation Law. The assignee was neither a director nor a stockholder at the time of the assignment. If he had been, and had not APP. DIV.- VOL. XXXVIII. 62

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