Third Department, May, 1910. [Vol. 138. pose of the Legislature to reduce this time limitation from six months to three months I think such intent would have been clearly manifested. As stated no substantial advantage is derived by the city in shortening the time in view of the other limitations that the action must be commenced within one year and not until three months after notice to the corporation counsel, and I think it was the purpose of the Legislature to enlarge rather than to restrict the time within which the notice of an intention to commence the action might be given to the corporation counsel. The construction which I have thus placed upon this statute seems to me to comport more nearly with the natural and ordinary meaning thereof and to be more consonant with the legislative purpose. It deprives the city of no benefit and places it at no disadvantage in respect to the claimant except to deprive it of the unmeritorious advantage of defeating his claim on the technical ground that he has not earlier threatened the city with litigation notwithstanding that he has speedily apprised the city of the full particulars of his alleged injury. The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment reversed and new trial granted, with costs to appellant to abide event. JACOB I. CHRISTMAN and Others, as Executors, etc., of ANTHONY CHRISTMAN, Deceased, Appellants, v. PHILIP KECK, Respondent. Third Department, May 4, 1910. Discovery inspection of books and papers — application during trial. Where the trial of an action on a note in which defendant counterclaims for the value of legal services is in progress before a referee, an inspection by defendant of certain statements of services rendered by him to plaintiff's testator in the latter's lifetime should not be granted for the sole purpose of refreshing his recollection. The papers which plaintiff offered to produce on the trial may be used for that purpose after they have been received in evidence. SEWELL and HOUGHTON, JJ., dissented. App. Div.] Third Department, May, 1910. APPEAL by the plaintiffs, Jacob I. Christman and others, as executors, etc., from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 30th day of December, 1909, directing the plaintiffs to allow the defendant an inspection of certain papers in their possession. Alfred Dudley Dennison, for the appellants. Andrew J. Nellis and M. H. Nellis, for the respondent. COCHRANE, J.: The trial of this action pending before a referee was halted to permit the defendant to procure an inspection of certain written statements delivered by him to the plaintiffs' testator. The action is on a promissory note given by defendant. He counterclaims for legal services rendered by him as an attorney and counselor at law extending through a period of many years, and the statements in question contain matters relating to the business transactions between him and his former client. Clearly those papers are evidence in behalf of either party to this action. The plaintiffs so regarded them and offered to produce them before the referee on the trial. We think the order for the inspection was improvidently granted and without sufficient reasons appearing therefor. The only reasons given by defendant in the moving papers are as follows: "Your petitioner does not recall the details of the services which he rendered to plaintiffs' testator during all the years since 1883, and is confident that these statements so rendered by him in confidence to said testator would refresh his recollection in many particulars so that he might testify to the services thus rendered and to many details concerning which he would be competent to testify because they would not concern any personal transaction had between your petitioner and said testator, and an inspection and copy of such statement and statements is necessary to enable your petitioner to prepare for the trial and defense of this action. That without an inspection of the said statement and of each and every statement which your petitioner has rendered to said testator in his lifetime your petitioner will be unable to maintain his defense and counterclaim as efficiently herein as if he were permitted to refresh his Third Department, May, 1910. [Vol. 138. recollection from the said statements and papers so rendered and delivered by him to said testator which are now under the control and in the possession of these plaintiffs." Manifestly whatever benefit as thus stated by defendant he could derive from an inspection of the documents in question would be available to him as well after as before such documents are admitted in evidence. The declared purpose of the inspection is solely to refresh the defendant's recollection. The papers can accomplish that result with undiminished efficiency after they become evidence. As previously pointed out, the trial of this action has already been commenced before a referee. The reasons which usually prompt a court to direct a discovery or inspection of papers before trial do not here apply. No time or expense is to be saved, and there is no question of surprise involved. The defendant's rights can be fully safeguarded by the referee. The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. All concurred, except SEWELL and HOUGHTON, JJ., dissenting. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. GERMANIO P. BACCELLI, as Administrator, etc., of TADDEO FORTE, Deceased, Appellant, v. NEW ENGLAND BRICK COMPANY, Respondent. Third Department, May 4, 1910. Practice-dismissal at opening - master and servant-negligencepleading-complaint — fall of clay bank - Employers' Liability Act — "works." On a motion to dismiss a complaint at the opening on the ground that it does not state a cause of action, the same question is presented as on a demurrer on like grounds. A complaint which alleges that defendant while its clay bank was in a dangerous condition owing to an overhanging face of clay and earth having several fissures running through it, directed plaintiff's intestate to work at the foot of the bank; that the deceased, who had no knowledge of the danger, relying on defendant's assurance that it was safe, went to work and was killed by the fall of the overhanging face, and that death was caused by defendant's negligence App. Div.] Third Department, May, 1910. in failing to provide a safe place to work should not be dismissed on the opening. A clay bank is "works" within the meaning of the Employers' Liability Act extending a master's liability to defects in the condition of the ways, works and machinery used in his business. APPEAL by the plaintiff, Germanio P. Baccelli, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 28th day of December, 1909, upon the dismissal of the complaint by direction of the court on the opening of the case at the Saratoga Trial Term. George R. Salisbury, for the appellant. Frederick Hulse, for the respondent. SEWELL, J.: Upon the trial of this action, after the plaintiff hau opened his case, the court dismissed the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The complaint must, therefore, be treated as if it had been demurred to, and the sole question to be considered is whether it sufficiently states a cause of action. The complaint alleges the incorporation of the defendant; that on the 15th day of July, 1908, the plaintiff's intestate, a boy sixteen years old, was employed by the defendant as a day laborer in mining and taking clay from the defendant's clay bank; that the defendant had caused large quantities of clay and earth to be excavated from the clay bed and had thereby constructed and maintained a vertical wall or side about fifty feet high; had near the top thereof an overhanging face of clay and earth which had several fissures running through it, and was in danger of falling any moment, "and that thereafter and while the said sides or wall and face was in such dangerous condition, the defendant negligently required and directed plaintiff's intestate to work at the foot of said side or wall and directly under said overhanging face of clay and earth. That defendant was then and there informed of the dangerous condition of said wall and requested to remove said overhanging Third Department, May, 1910. [Vol. 138. face, but negligently omitted so to do, and assured plaintiff's intestate that it was safe for him to work thereunder; and that thereupon plaintiff's intestate, having no knowledge of such dangerous and unsafe condition, and relying upon said assurance of defendant, did enter said excavation and work at the foot of said wall directly under said overhanging face of clay and earth in accordance with defendant's directions aforesaid; that immediately * * the said overhanging face of clay and earth gave way and fell upon plaintiff's intestate, and in consequence thereof, he was so injured and mangled and crushed that he died a few minutes thereafter." The complaint also alleges that the death of the deceased was caused by the negligence of the defendant, in that the defendant failed to provide a safe place to work, in constructing and maintaining said overhanging face of clay and earth, in assuring plaintiff's intestate that it was safe to work thereunder and in omitting to inspect and examine the wall and the overhanging face. It also alleges that the decedent was without fault or negligence and that on the 5th day of September, 1908, letters of administration upon his estate were duly issued and granted to the plaintiff. All the allegations of fact being admitted, it stands conceded that the plaintiff's intestate was put to work in a dangerous place, and that the defendant knew it was unsafe. I think this is enough to show that the defendant failed in its duty to the decedent, and if, as the complaint charges, the decedent was sent with the assurance that it was safe, and ignorant of the danger obeyed orders and met his death, it was error to hold as a matter of law that the deceased was negligent, or that he appreciated or assumed the risk of the accident which occurred. This case is not like Citrone v. O'Rourke Engineering Const. Co. (188 N. Y. 339); Russell v. Lehigh Valley R. R. Co. (Id. 344), or Perry v. Rogers (157 id. 251), cited by respondent's counsel. In each of these cases the servant was steadily making, or assisting in making, his own place in which to work. Here the servant had nothing to do with the preparation or creation of the overhanging wall or bank. He took no part in the creation of this condition of danger. On the contrary, he began his work after the place had been prepared by the master through other servants. I also think that the jury would have been justified in finding that the accident occurred from a cause which could have |