by retaining the notice of argument which was served on the 10th of Dec., 1885, for the 14th of the same month. Chas. W. Brooke, for applt. Marsh, Wilson & Wallis, for respts. Held, That the respondents were entitled to eight days' notice of argument, but could waive it by admitting due service. The retention of the notice of argument served on the 10th of Dec. for the 14th of the same month was not a waiver of a regular notice. Under the circumstances, the submission of the case to the General Term was improper. 249; id., 631. The General Term judgment should have been set aside as a judgment made without jurisdiction. Order reversed. 2 Wend., knowledged the 5th of November, 1884, and there is proof tending to show that the assignor continued in the possession of the property, manufacturing and managing the stock of goods and materials as usual until the 8th of November, 1884, when it was seized by the sheriff of New York. The assignee formally locked the door of a workroom in the house, and there is proof tending to show that the key was at once returned to the assignor. Herman Vogel, for respt. Fernando Solenger, for applts. Held, Under this state of the proof it was error to exclude the declarations of the assignor. 10 N. Y., 309. When an assignment is followed by a change of possession the declarations of the assignor are not Opinion by Barnard, P.J.; Dyk- evidence. 84 N. Y., 392. man, J., concurs. The admissibility of the testimony depends upon the assignor being in possession. In Coyne v. Weaver, 84 N. Y., 392, the answer of defendant alleged that the asGENERAL signee was in possession at the EVIDENCE. ASSIGNMENT. N. Y. SUPREME COURT. TERM. SECOND DEPT. Felix Jellenick, assignee, respt., v Moses May et al., applts. Decided July, 1886. Where an assignment is not followed by change of possession the declarations of the assignor are admissible in evidence. Appeal from judgment in favor of plaintiff. The proof of fraud in the assignment by Grunberg is very light, but it was sufficient to admit the declarations of Grunberg. The assignment was dated the 3d of November, 1884, and ac time of the levy, and the court held that the declarations of the assignor were inadmissible "because made after the assignment and delivery of possession under it." The acts done by the assignor at about the time of the assignment and the declarations made by him were evidence and their rejection was improper. The question of a lack of a change of possession as the case was left, was one for the jury. The necessity for a jury may be further shown by proof of a fictitious debt, or Risks Assumed 25 p. 23 174 N. Y. 394 that the assignment was made to defraud creditors by other proof. Judgment reversed and new trial granted. Opinion by Barnard, P.J.; Dykman and Cullen, JJ., concur in result. 25 p. 23 Contrib. Neg. 70 App. Div. 349 MASTER AND SERVANT. NEGLIGENCE. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Patrick Healy, respt., v. Cornelius J. Ryan et al., applts. Decided July, 1886. One who has authority from the master to employ men, act as foreman and order repairs, stands in the position of the master, and the latter is liable for his neglect to adopt reasonable precautions for the safety of the employees. Plaintiff was injured while in defendants' employ in a collision caused by a defective brake. He had notified one P., who had authority to order repairs, and had been promised that it would be repaired. Held, That the question of contributory negligence was for the jury, and that the question whether such notice was given was properly submitted to them. Appeal from judgment entered on verdict and from order denying motion for a new trial on the minutes. Action for damages for injuries received by plaintiff while in defendants' employ by reason of defendants failing to furnish a car with a safe and suitable brake, and an averment that defendants neglected to properly repair the brake. Answer, denial and contributory negligence. Defendants were engaged in building an enbankment on the line of the N. Y., W. S. & B. RR. Co., and employed a large number of men in loading dirt trains by means of a steam shovel at a gravel pit, which was connected with the main track by a temporary track.. For three months before the accident plaintiff was employed as a brakeman on one of these trains.. When the train at the shovel was loaded it would be pushed on a Switch and held to allow the othertrain to pass; there was a descent of grade at the switch, and the engine usually uncoupled just before getting to it and allowed the train to run by its own momentum on the switch, where it was stopped and held by two brake cars manned by brakeman. When the accident occurred the loaded train had reached the switch, and was being held there by the brake cars until the approaching empty train should pass the junction of the switch with the main track. Plaintiff alleges that the defective brake was such on the car operated by him that he was unable to hold the train on the grade, and it ran into the train passing on the main track and caused the injuries sustained by him. Apparently the defect in the brake had existed for several weeks, and the evidence tended to show that he had complained of the defect and notified one P., who had authority to employ men, act as foreman and order repairs and when cars needed repairs, order them off the track and out of use, and that he was assured the defect would be remedied. M. A. Knapp, for applt. freedom from negligence to the M. E. & G. W. Driscoll, for jury. 80 N. Y., 622; 91 id., 495; 82 id., 270; 83 id., 572; 93 id., 7; 100 id., 271; id., 170. respts. Held, Authority is abundant to the effect that it is the duty of the master to furnish safe, suitable and sound tools and machinery and appliances for the use of a servant in the performance of the work of the master, and that it is the duty of the master to keep them in suitable repair. Reasonable care and prudence must be exercised by the master in the selection and keeping in repair of all such machinery and appliances and the instruments put into and left in the hands of the servant. 100 N. Y., 272. That P. stood in the place of defendants as master. 99 N. Y., 372. His "neglect to adopt reasonable means and precautions to provide for the safety of the employee constitutes an omission of duty on the part of the master rendering him or them liable for any injury accruing to the servant therefrom." 59 N. Y., 517. In that case, as here, it appeared that the agent had notice of the defect complained of. Burke v. Witherbee, 98 N. Y., 567; Powers v. Railroad, 98 N. Y., 274, distinguished. That it was proper to leave to the jury the questions whether notice of the defect was given to P. and whether he promised to remely them and by such promise induced plaintiff to continue in the use of the brakes. 49 N. Y., 536. That it was proper to submit all questions relating to plaintiff's alleged contributory negligence or * In the course of the charge the trial judge said, viz: “The next question is whether or not plaintiff was induced by promises to repair on the part of defendants or their agent there to continue in the employ of defendants up to the time this accident occured. ** So it becomes a question for you to determine here whether or not there was any notice given to defendants or their agents; and whether they promised to repair the defect in this brake, and whether as a consequence of such promise he remained down to the time of the injury." Held, That these instructions bore upon the question relating to plaintiff's freedom from contributory negligence. At the close of the charge defendants excepted to "so much of the charge as holds that P. was not the fellow servant of plaintiff, and as holds that defendants are responsible for his acts and doings." Held, That the exception was broad. There was no request for more specific instructions, and no request to have any questions of fact as to the extent of the powers and duties of P. submitted to the jury in any manner more specifically than had been indicated in the body of the charge. Judgment and order affirmed, with costs. Opinion by Hardin, P. J., Boardman and Follett, JJ., concur. NEGLIGENCE. N. Y. COURT OF APPEALS. Solomon, admrx., applt., v. The Manhattan R. Co., respt. Decided Nov. 23, 1886. After defendant's train began moving plaintiff's intestate with others attempted to board it. The gate was closed on the foot of deceased and he was carried along clinging to the car until struck by a water pipe and injured so that he died. Held, That his attempt to enter the train under the circumstances was a negligent act contributing to his death and that plaintiff could not recover. This action was brought to recover damages for the negligent killing of plaintiff's intestate. It appeared that a train on defendant's road had stopped at the Chatham Square station for the purpose of discharging and receiving passengers, and had started again before S. and two men in front of him, hurrying from the Third avenue train across the bridge and down the steps to the station platform of the Second of the Second avenue road, had reached the rear of the first car. The conductor, who was standing on the platform between the first and second cars, had given the signal to start the train and had closed or attempted to close the gate before the first of the three men reached the car. The car was slowly moving with a constantly accelerating speed. The two men in advance of S. succeeded in safely boarding the train. S. was a few feet behind them. He attempted to get on the platform of the car. The evidence tends to show that he took hold of the stanchions of the car with both Vol. 25-No. 2. hands and placed one foot upon the car platform, and was in the act of passing on to the car when the conductor closed the gate against S., who, clinging to the car, or possibly being caught by the gate, was carried along a few feet until his body came in contact with a water pipe extending horizontally at the end of the station platform, and received the injuries of which he subsequently died. There was a conflict of evidence as to whether the gate had been fully closed before the two men in front of S. reached the car. The station platform was lighted and it appeared that S. had been accustomed to take the train in the evening at this station for over a year. George Putnam Smith, for applt. Edward S. Rapallo, for respt. Held, That the attempt of S. to enter the train under the circumstances was in law a negligent act which contributed to his death, and therefore plaintiff was not entitled to recover. The boarding or alighting from a moving train is presumably and generally a negligent act per se, and in order to rebut this presumption and justify a recovery for an injury so received it must appear that the passenger was by the act of defendant put to an election between alternative dangers, or that something was done or said, or that some direction was given to the passenger by those in charge of the train, or some situation created which interfered to some extent with his free agency, and was calculated to divert his attention from the danger and create a confidence that the attempt could be made in safety. 37 N. Y., 287; 49 id., 47; 63 id., 556; 56 id., 302. It is presumptively a negligent act for a passenger to attempt to alight from a moving train, and it is not sufficient to rebut the presumption that the trainman acquiesced in the action of the passenger, or that the company violated its duty or contract in not stopping the train, or that to remain on the train would subject the passenger to trouble or inconvenience, but to excuse such an act and free plaintiff from the charge of contributory negligence there must be a coercion of circumstances which did not leave the passenger in the free and untrammeled possession of his faculties and faculties and judgment. 49 N. Y., 177. Judgment of General Term, affirming judgment dismissing complaint, affirmed. Opinion by Andrews, J. All concur, except Miller and Danforth, JJ., dissenting, and Rapallo, J., taking no part. ORDER. CODE. PRACTICE. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Edward T. Browning, respt., v. Edwin L. Hayes, applt. Decided July, 1886. Where an order is made by a justice of the Supreme Court to examine a non-resident debtor who has a place of business in another judicial district, the order must be made returnable before a judge of that district. Plaintiff obtained a judgment in Kings county in the Supreme Court. A transcript was filed in the county of New York and an execution issued to the sheriff of that county and returned unsatisfied. Defendant is a non-resident of the State and has a place of business in the county of New York. An order was made by a judge of the Supreme Court in Kings county directing defendant to appear before a referee in the city of New York. The order does not provide that the subsequent proceedings be had before a justice of the Supreme Court of the first judicial district. A motion was made to vacate said order for the reason that it did not direct all subsequent proceedings to be had in the first judicial district before a justice to be specified in the order, which motion was denied and from the order denying motion this appeal is taken. C. S. Simpkins, for respt. Wm. R. Garrard, for applt. Held, That the order is irregular and cannot stand. Section 2434, Code Civ: Pro., is not very plain. It can be gathered therefrom by a strict reading that it is only in cases where a Supreme Court justice makes the order in the place of other inferior judges that a provision must be inserted making the order returnable before a Supreme Court justice or other local magistrate of the judicial district where the order is to be exercised. This reading is not the true one. A debtor non-resident cannot be taken out of the county where his place of business is. When, there |