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The court did not err in the conclusion stated. | which is suspended a large bell-shaped castThe statute provides that letters shall be ing, so adjusted to an iron beam over the granted in the county where, at his death, top. of the furnace that it could be raised up the intestate was an inhabitant. Burns' Ann. into the hole in the center of the hopper suffiSt. 1901, § 2381.

cient to close it and prevent the escape of The action of the Johnson circuit court was gas and fire. When in operation the furnace not, however, void. It was not subject to is fed from the top. The coke or fuel is collateral attack, but only to a direct one, and raised up from the ground by mechanical so long as it was unrevoked, furnished com appliances, in what are called buggies, and plete protection to appellant acting thereun then with the scrap iron or iron ore is der. Razor V. Mehl, 25 Ind. App. 645, 57 dumped into the hopper, and at frequent in. N. E. 274, 58 N. E. 734; Soules v. Robinson tervals the bell is lowered, allowing the conet al., 158 Ind. 97, 62 N. E. 999, 92 Am. tents of the hopper to slide down through St. Rep. 301. Many questions are presented the opening, and, by reason of the flange of in argument, but, in view of the fact that the bell, distributed around the outer sides the court, which has assumed jurisdiction of the furnace, where it becomes fused from which did not properly belong to it, may the fire and heat beneath. After the contents and should, upon its own motion or upon of the hopper has thus been discharged the application of any interested person, or upon bell is again raised up, closing the hole, suggestion of an amicus curiæ, revoke such thus permitting the refilling of the hopper. action, they are not regarded as material. To facilitate the dumping of the buggies into Croxton v. Renner, 103 Ind. 223, 226, 2 N. E. the hopper there was a platform constructed 601.

at the top of the furnace with a small house Judgment affirmed.

at one end, some distance from the furnace, in which the men could stay and be shielded

from the fire and gas escaping from the fur(186 N. Y. 323)

nace when the bell was lowered, and from STENGER Y. BUFFALO UNION FURNACE

which they could pass to the top of the CO.

furnace when necessary to dump a buggy (Court of Appeals of New York. Nov. 13, 1906.)

filled with fuel or ore. The plaintiff and his MASTER AND SERVANT-INJURY TO SERVANT

brother were in the employ of the defendNEGLIGENCE EVIDENCE QUESTION FOR JURY.

ant engaged in dumping the material into In an action for injuries to a servant by the hopper, and from thence into the furnace being overcome by gas escaping from a blast

from time to time by the lowering of the furnace at which he was working, evidence ex

bell. About 4 o'clock in the morning of the amined, and held to warrant a finding that the injury was suffered in consequence of the in day of the accident, the plaintiff was in creased discharge of gas from tbe furnace be the house referred to upon the top of the cause of the actionable negligence of the em

platform with his brother. A buggy of maployer in failing to keep the same in proper repair.

terial had come up from below, and his

brother went out to the top of the furnace Appeal from Supreme Court, Appellate to dump it. The brother remaining longer Division, Fourth Department.

than usual, the plaintiff stepped out to see Action by Michael Stenger against the what had become of him, and as he did so Buffalo Union Furnace Company. From a

he saw him stagger and then fall into the judgment of the Appellate Division (95 N. Y.

hopper. The plaintiff, as he tells us, then Supp. 1162) reversing a judgment in favor of

called for help, and instantly ran to the top plaintiff and granting a new trial, he appeals.

of the furnace and reached down with one Reversed, and judgment entered on verdict

hand to get hold of his brother, and in doing affirmed.

so he himself inhaled gas, fell upon the George H. Kennedy, for appellant. Clin hopper, and became unconscious. He was ton B. Gibbs, for respondent.

shortly thereafter rescued, taken down to the

ground and revived, but his brother died. HAIGHT, J. This action was brought to The plaintiff received severe burns which recover damages for personal injuries alleged laid him up for several weeks, and it is for to have been sustained by the plaintiff the injuries so received that the jury has through the negligence of the defendant on awarded him damages. the 17th day of April, 1903. The defendant The questions presented upon this review was the owner operating a blast furnace in are as to whether the plaintiff presented any the city of Buffalo, and the plaintiff was in evidence from which the jury could have its employ and worked on the top of the fur found negligence on the part of the defendnace. The furnace was about 80 feet high, ant, and the want of contributory negligence circular in shape, with a diameter at the on the part of the plaintiff. In order to base of 22 feet, and at the top of about 14 answer these questions, it will become necesfeet. The top was covered with what is sary to examine with some care the evidence called an iron hopper in the form of a sus produced upon the trial as to the manner in pended cone extending down into the furnace which this furnace was equipped and operwith a circular opening in the center, through ated. It appears that in the operation of a

blast furnace a great amount of gas is generated, and that of necessity a considerable quantity escapes and impregnates the atinosphere. When the bell is lowered so as to permit the coke and ore to slide into the furnace, the gas and a flame of fire shoots out into the air in great quantities. It also appears that a pipe had been constructed from the top of the furnace running down to the bottom, through which the gas was conducted and there made to serve as fuel to the fire inside of the furnace. There were also constructed near the top of the furnace two large steel doors, which hung upon hinges hanging downward so that they would close by their own weight, which were called explosion doors. Their purpose was to relieve the furnace when the pressure of gas inside became too great; on such occasions the doors would fly up allowing the gas to escape and thus relieve the furnace from the over-pressure. The defendant had constructed the house in question to shelter the men and to guard them against injury while working on the top of the platform, by reason of the escape of fire gas from these sources. It had also SO

SO arranged that it was necessary for but one man to go out at a time to dump a buggy, and then to remain but a brief time, and had provided shifts of men to take the places of those upon the platform at frequent intervals or whenever any one felt the ill effects of the escaping gas. The company had also provided clay with which to fill in the cracks around the explosion doors, and salamoniac and iron borings to fill in around the iron plates of the hopper, in order to prevent as far as possible the escape of gas from the furnace. These precautions taken on the part of the defendant were doubtless ample and sufficient to afford reasonable protection to the men in its employ if they observed proper care and caution. But it is now claimed on behalf of the plaintiff that the defendant had permitted the furnace to get sadly out of repair, and that, by reason thereof, a much larger quantity of gas was allowed to escape than would have had the furnace been kept in good repair, and that the injury to the plaintiff resulted in consequence of such escape.

This brings us to a consideration of the controverted evidence in the case. It distinctly appears from the testimony of several witnesses produced on the part of the plaintiff that the explosion doors were not only cracked but badly warped; that there was a displaced brick under the hopper so as to leave an opening between the hopper and the brickwork of from four to six inches; that some of the plates had been cracked, and that one had been removed; that one explosion door was unpacked with clay, and that it was vibrating back and forth by reason of the gas inside, and that the foreman in charge had refused to stop the

blowpipe from beneath sufficiently long to allow the door to be packed. This evidence was all sharply controverted by the defendant's witnesses, whose testimonies tended to show that the furnace was in proper condition and repair. The learned presiding justice, writing for the Appellate Division, in granting a new trial, conceded that the evidence bearing upon this question was of such a character as to raise a question of fact as to that issue, and justified the jury in finding that the defendant was negligent in respect to those matters. But following such concession he then proceeded to state that “the serious question presented by this appeal is whether or not there is any evidence which tends to show that any gas has escaped because of either of the defects referred to and from which the injury to the plaintiff resulted.” And then, after considering the evidence, he reached the conclusion that there was no such evidence. In this particular we have reached a different conclusion.

Assuming, as we must from the verdict rendered, that the defects complained of existed at the top of the furnace, it is within the common knowledge and experience of ordinary men at the present day that the gas generated in the operation of a furnace of this character will escape in large quantities through the cracks and holes described by the witnesses. Indeed, this is colle ceded by several of the defendant's witnesses. They even go to the extent of claiming that, in case the cracks and holes were of the dimensions claimed by the plaintiff's witnesses, it would not be possible for men to work there; that the gas would escape in such volumes that it would consume and burn them

them up. The defendant's witness Smoot, on cross-examination, said: “If you have these holes they testified to in these plates, the gas would come up." Thomas Marron, the defendant's yard superintendent, said: "Gas always exists at the top of a furnace while it is in blast or in operation. It comes from the combustion of the stock inside, coming up through the pores of the brick. There is no way to confine it absolutely. It will escape the best you can do to prevent it, and it passes into the air above the furnace. If holes three-quarters of an inch to an inch wide and four feet long existed at the bell extension and at the hopper extension of three feet long, it would not be possible for the men to work there on account of the escape of such a large volume of gas. It would consume the men, burn them up. After it struck the air and was ignited it would be flame. It would blow anywheres from 10 to 20 feet high. The men could not work there. They would burn up. It is not possible to operate a furnace under such conditions.” Schroeder, another of the defendant's witnesses, testified that "all furnaces leak more or less gas. It will

penetrate right through the brick.

settle the claim without the attorney's consent, If there was a hole three-fourths of an inch

was not champertous, or in violation of Code in width and four feet, or one-half an inch Civ. Proc. $$ 73, 74, prohibiting an attorney

from directly or indirectly buying or being inin width and three feet long in the bell terested in a chose in action, with the intent extension, it would be impossible to operate and for the purpose of bringing suit thereon, the furnace because the gas and flame would

and from making loans to the client. come out through these openings and the

[Ed. Note. For cases in point, see Cent. Dig.

vol. 9, Champerty and Maintenance, $8 22–32.] men could not work there." Patrick O'Brien,

2. ATTORNEY AND CLIENT - LIEN - ENFORCEanother of the defendant's witnesses, testi

MENT-SUMMARY PROCEEDINGS. fied that he was working at the furnace at In a proceeding to enforce an attorney's the time the plaintiff was injured. He said lien, the latter alleged a written contract by it was very gassy that night at the top

which his client agreed to pay a percentage of

the recovery, taxable costs, etc., and not to of the furnace because of the east wind, and settle the claim without the attorney's consent. also that he was taken down from the fur. The answer alleged that the client was induced nace that night because he was overcome

to sign the contract by the attorney's written and gassed at the time of this accident;

proposition that he would pay all court fees,

fees of witnesses, and necessary disbursements that it was very gassy up there; said he to judgment, if the client would allow 40 per was affected by the gas; that it affected cent. of the damages recovered up to the first his knees; and that it overcame him alto

$10,000, etc., plus taxable costs. The attorney

in reply averred that he submitted to his client gether. It thus appears to us that there

four propositions: One to receive a retainer was evidence which tended to show that, of $250, 15 per cent. of the verdict, or 10 per if the appliances at the top of the furnace cent. of a settlement plus taxable costs; an

other, that the client was to advance all court were out of order by reason of cracks or

fees and disbursements, and pay 25 per cent. of holes, the gas would escape through such the verdict, or 20 per cent. of a settlement and openings, and augment or increase the dan. costs; or to advance one-half of the court fees ger to the men working upon the platform

and necessary disbursements and pay 30 per

cent. of the verdict, or 20 per cent. of a settleover and above that which necessarily exist

ment and costs; or the proposition contained ed with the appliances in good condition in the written contract, which the client acceptand repair, and that the jury might have ed. Held that, if the contract was based on the found that the injury which the plaintiff proposition alleged in the client's answer, it was

in violation of Code Civ. Proc. $ 74, prohibiting suffered was in consequence of such in. an attorney from making loans to his client for creased discharge of gas.

the purpose of conducting litigation, and that Some exceptions were taken by the defend

it was error for the court to dispose of such

issue in a summary manner without a trial ant to the admission and rejection of evi

in open court or before a referee. dence upon the trial. The Appellate Di

Appeal from Supreme Court, Appellate Division did not discuss any of them, and none of them were orally argued. We have ex

vision, First Department.

Proceeding by Gino C. Speranza to enforce amined them and have reached the conclusion

an attorney's lien on a judgment recovered that no error of sufficient importance to

by him as attorney for plaintiff in an action justify a reversal was committed by the

by Charles Walsh against the city of New court.

York. From an order of the Appellate DiviThe order of the Appellate Division should be reversed, and the judgment entered upon

sion (100 N. Y. Supp. 1144), affirming an order

of the Special Term enforcing such lien, the verdict affirmed, with costs to the plain

Walsh appeals. Reversed. tiff in the Appellate Division and this court.

Benjamin Patterson, for appellant. A. C. CULLEN, C. J., and VANN, WERNER, Shenstone, for respondent. and WILLARD BARTLETT, JJ., concur. GRAY, J., absent. HISCOCK, J., not sit

WERNER, J. This is a controversy beting.

tween attorney and client over the terms of

the contract of retainer. Upon conflicting Ordered accordingly.

averments made by the opposing affiants, the court at Special Term fixed the attorney's

lien and directed its enforcement. At the Ap(186 N. Y. 280) In re SPERANZA.

pellate Division that determination was unan

imously affirmed. In view of that affirmance WALSH v. CITY OF NEW YORK.

we shall refer to the facts, not for the purpose (Court of Appeals of New York. Nov. 13, 1906.)

of reviewing them, but simply to support our 1. CHAMPERTY AND MAINTENANCE-CONTRACT

suggestion that this is a case in which the FOR FEES OF ATTORNEY. A contract by which a client agreed to pay

dispute between attorney and client should the attorney, for services in conducting a law not have been summarily disposed of by the suit, a sum equal to 40 per cent. of the first

court upon the petition and affidavits, unsup$10,000 and 25 per cent. of any amount over $10,000 of the net amount recovered in the ac

ported by any common-law evidence. As that tion, or, if it was settled before trial, 25 per is the precise point upon which our decision. cent. of the net amount of the settlement, to turns, it may not be out of place to preface gether with all taxable costs and disbursements

our résumé of the facts with the statement to which the client would be entitled if the case had been tried, conferring a lien therefor, and

that while all of our courts are proverbially un agreement on the part of the client not to and properly solicitous for the enforcement

of the just claims of lawyers against their the taxable costs to which I would be entitled clients, the latter have rights of equal im if tried.” This allegation was met by a reportance and sacredness which should not be butting affidavit from Speranza in which be overlooked or ignored.

avers that he submitted to Walsh, at the latIn the latter part of the year 1901 the peti ter's request, four distinct propositions as tioner respondent, Gino C. Speranza, an at follows: "(1) That said Walsh give deponent torney at law, was employed by the appellant, a retainer of $230, and agree to pay 15% on Charles W. Walsh, to prosecute a claim any verdict that might be secured, or 10% against the city of New York arising out of on a settlement plus taxable costs. (2) That injuries sustained by Walsh in slipping and said Walsh advance all court fees and necesfalling on ice formed on one of the highways sary disbursements, and 25% on any verdict of that city. Pursuant to this retainer Sper that might be recovered, or 20% on a resettleanza brought an action in favor of Walsh ment plus taxable costs. (3) That said against the city, which subsequently resulted Walsh advance one-half of all court fees and in a verdict for the plaintiff in the sum of necessary disbursements as they become due, $12,500. At the Appellate Division this re and 30% of any verdict that might be recovcovery was reduced to $7,500, and judgment ered, or 20% on a settlement plus taxable for that amount, with interest and costs, was costs. (4) The proposition set forth in the entered, making a total of $7,702.04. There agreement of February 8, 1902, and embodied after a disagreement arose between Speranza in the petition herein." These averments and Walsh, and the latter employed another are followed by Speranza's assertion that attorney to collect the judgment. Then Sper Walsh, after due consideration, chose the lastanza filed a notice of his lien for compensa mentioned proposition. Upon the petition tion with the comptroller of the city of New and affidavits referred to, which, upon the York, and later commenced this proceeding to issue of facts presented, are more in the enforce the same. Attached to his petition nature of pleadings than proofs, the court, as and made a part thereof is a written instru stated, made an order fixing the attorney's ment, signed by Walsh, whereby the latter lien and directing its enforcement. agreed "to pay to said Speranza for such serv What was the issue tendered by the anices a sum of money equal to forty per cent. swering affidavits of the appellant? Nothing (40%) on the first $10,000, and twenty-five more nor less than that the agreement alper cent. (25%) of any amount over said leged by the respondent in support of his lien $10,000 of the net amount of money which was champertous and void. That agreement I may recover from said city for said in as set forth by the respondent was, to be sure, juries, or, if the action is settled before trial, perfectly free from champertous taint, and twenty-five per cent. (25%) on the net amount the appellant does not deny having signed it. of such settlement, together with all taxable If that were all, it would clearly justify the costs and disbursements to which I would summary disposition of the proceeding made have been entitled if the case had been tried, at Special Term. But the appellant says that and I agree to give him and hereby give him the respondent has introduced only a part of a lien on all the proceeds of said action for the agreement, and that there is another part, the same, and in addition thereto the taxable also in writing and signed by the respondent, costs which may be awarded to me in such which clearly reveals the champertous charaction, and, further, I agree not to compound, acter of the whole. The court at Special compromise, or settle my claim for such inju Term seems to have proceeded upon the theories or such action without his consent and ry that the negotiations of the parties had except by him."

all been merged in the writing signed by the In answer to Speranza's petition, filed here appellant. In that connection it is to be in, Walsh raised many objections to the en noted that the part of the agreement relied forcement of the lien, only one of which we upon by the appellant to establish champerty deem it necessary to consider. That objec is not inconsistent with or contradictory of tion is that the written instrument, above that part relied upon by the respondent. The quoted and signed by Walsh alone, was cham agreement as set forth by the latter is silent pertous, illegal, and in violation of the provi as to the expenses of the litigation, and is sions of sections 73 and 74 of the Code of signed only by the appellant. But if it is Civil Procedure. In support of this objection true that there is a written proposition, signWalsh's answer alleges that he was induced ed by the attorney, by which he agrees to to sign said instrument by a proposition in "pay all court fees, fees of witnesses, and writing made by Speranza on January 25, necessary disbursements to judgment,” if the 1902, which reads as follows: "I will pay appellant would agree to the scale of comall court fees, fees of witnesses and neces pensation set forth in the other writing, it sary disbursements to judgment, if you will is too clear for discussion that the arrangeagree to give me forty (40) per cent. of the ment would constitute no less a palpable viodamages recovered on the first $10,000 there lation of the provisions of section 74 of the of, and twenty-five (25) per cent. of such dam Code of Civil Procedure than that which was ages on any greater sum than $10,000 if so recently condemned in Matter of Clark settled before trial, twenty-five (25) per cent. (184 N. Y. 222, 77 N. E. 222). We think the on the entire amount of the settlement plus case is one in which the court at Special

Term should have treated the record before it as presenting an issue upon which nothing short of a complete and thorough hearing, either in open court or before a referee, would satisfy the demands of justice. That is a pratice, not only sanctioned by long usage and the repeated approval of this court (Matter of Fitzsimons, 174 N. Y. 15, 66 N. E. 554; Matter of King, 168 N. Y. 53, 60 N. E. 1054; Peri v. N. Y. C. & H. R. R. R. Co., 152 N. Y. 521, 46 N. E. 849; Matter of H

an Attorney, 87 N. Y. 521), but one peculiarly adapted to the ascertainment of the truth in cases where reckless affidavit making, or discreet silence upon essential particulars, may give the whole controversy a false atmosphere in which the real truth is hidden rather than revealed.

The orders of the Appellate Division and Special Term should be reversed, and the latter court directed to proceed as above indicated, with costs to abide the event.

space between its rails in the same condition as the rest of the street, though it necessitated the laying of a new pavement.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 44, Street Railroads, 101.]

Appeal from Supreme Court, Appellate Division, First Department.

Action by the mayor, aldermen and commonalty of the city of New York against the Harlem Bridge, Morrisania & Fordham Railway Company. From a judgment of the Appellate Division (91 N. Y. Supp. 557), reversing a judgment and an order directing a verdict in favor of defendant, and granting a new trial, defendant appeals. Affirmed. Judgment against defendant.

Charles F. Brown, for appellant. Terrence Farley, for respondent.


Ordered accordingly.

(186 N. Y. 304)

M. & F. RY. CO. (Court of Appeals of New York. Nov. 13, 1906.) 1. STREET RAILROADS - PAVING - STATUTESAPPLICATION-EXTENSION OF LINE.

Defendant street railway company was incorporated as provided by Laws 1863, p. 603, c. 361, which was amended by Laws 1874, p. 745, c. 553, so as to authorize it to extend its lines, and lay its tracks in the street in question. Laws 1871, p. 1436, c. 658, amended section 3 of the original statute of incorporation so as to provide that the grantees of the franchise or their successors should keep the surface of the street inside the rails and for one foot outside thereof in good and proper order and repair, and conform the tracks to the grades of the streets or avenues, etc. Held, that when defendant was authorized to construct the extension by an amendment to the original act, such extension was subject to the obligations contained in such original act as amended, including the duty to pave, though the amendatory statute, permitting the construction of the tracks in the street in question, contained no provision for repair or repaving.

[Ed. Note.-- For cases in point, see Cent. Dig. vol. 44, Street Railroads, 8 99–103.] 2. SAME-STATUTES-CONSTRUCTION.

Laws 1871, p. 1436, c. 658, provides that the grantees of a franchise for the construction of a street railway or their successors shall keep the surface of the street inside the rails and for one foot outside thereof in good and proper order and repair, and conform the tracks to the grades of the streets or avenues as they now are or may hereafter be changed by the authorities of the town. Held, that where the town authorities determined that the street occupied by the tracks of the railway company should be paved with a granite block pavement, the railway company's obligation to repair and keep the space between its rails, etc., in good order required the railway company to put the

HISCOCK, J. This action was brought to recover the value of granite block pavement laid between and for one foot outside the rails of defendant's tracks in 138th Street, New York, at the same time that the rest of said street was being paved with said material, the defendant having failed to so pave its tracks in accordance with the demand of the plaintiff. The learned Appellate Division, in reversing the determination of the trial court, held that the defendant was under obligation to lay a trap rock pavement in the place specified by virtue of a condition contained in the permit granted by the municipal authorities to lay its tracks in said street, and that by virtue of such liability the plaintiff was entitled to recover upon the entire cost of laying the granite block pavement what it would have cost the defendant to lay a trap rock pavement. We agree with the Appellate Division that it was error to direct a verdict in favor of the defendant, and that a new trial was properly granted, but upon somewhat different grounds than were adopted by that learned court.

The plaintiff was incorporated under chapter 361, p. 603, of the Laws of 1863. Chapter 553, p. 745, of the Laws of 1874, by amendment to section 8 of the original act of incorporation, authorized the defendant to lay its tracks in the street in question. Chapter 658, p. 1436, of the Laws of 1871 amended section 3 of the original statute of incorporation so as to read as follows: "Sec. 3. * *

The said grantees or their successors shall keep the surface of the street inside the rails and for one foot outside thereof, in good and proper order and repair, and conform the tracks to the grades of the streets or avenues as they now are or may hereafter be changed by the authorities of the aforesaid towns." The amendatory statute, permitting it to construct its tracks in the street in question, contained no provision upon the subject of repairs or repaving, from which it is argued that the defendant is exempt as to such extension from the obligations contained in the provisions of the original act, as amended, upon that subject.

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