bill of particulars. The complaint alleged that plaintiff made a contract to deliver from time to time certain cords of wood; that plaintiff had fully performed, and that there was a balance due. Defendant then served the demand under Code, 531. The eastern part, bounded by the river, was quite small, and was known as the “water lot;" in the western part were the house and barns. The respondent took the water lot only. Evidence offered as to the value of the house lot was excluded. Held, Error; that in making an award the two parts should have been considered as one lot. This is a proceeding to take Smith, Fursman & Cowen, for lands. The owner, appellant, had applt. Smith & Wellington, for respt. Held, That a demand was proper. We see no reason to limit the right to make such a demand to the case of an account stated, as seems to have been done in Mallory v. Johnson, 2 Robt., 681. The word "account" is applied to almost every claim on contract which consists of several items, and its meaning, in Sec. 531, should not be limited. The plaintiff denies that he can serve a bill of particu lars. He can make that an excuse, if a motion is made for a further bill, after he has served the best in The a plot of about ten acres, bounded on the east by a turnpike; while beyond, and still further east, was a smaller, narrow lot, bounded by the Hudson River. This latter was called the "water lot." two lots were used together, though the dwelling house was on the tenacre plot. The water lot comprised the whole front of the owner on the Hudson River, and the railroad also took part of the turnpike. Damages were assessed upon the basis of taking the water lot only. Evidence offered as to the value, &c., of the dwelling house was excluded. A. B. Parker, for applt. F. L. & T. B. Westbrook, for respt. Held, Error. The turnpike divides the property into two parts, but these parts are used in common. The owner was, therefore, entitled to have compensation for the injury to the property as a whole. Order set aside and new assessment by a new commission order N. Y. SUPREME COURT. GENERAL ed, with costs. TERM. THIRD DEPT. In re The N. Y., W. S. & B. RR. Co., respt.,v. Lefevre et al., applts. Decided Sept., 1882. A turnpike divided appellant's land into two parts, but these parts were used together. Opinion by Learned, P. J. NEGLIGENCE. MASTER AND ing with ropes, which would have SERVANT. N. Y. COURT OF APPEALS. made it stronger, instead of by nailing, as was done here; giving as a reason that the springing of Devlin, admrx., applt., v. Smith the planks when walked on was et al., respts. Decided Oct. 10, 1882. Plaintiff's intestate was killed by the falling of a scaffold on which he was at work for defendant S. Evidence was given showing that the uprights should have been fastened by lashings instead of by nailing. It did not appear that intestate did anything to contribute to the injury. Held, That the question whether the injury was the result of negligent construction of the scaffold was one of fact for the jury, as was also the question of contributory negligence. S. procured the scaffold to be made by one J., a scaffold builder. It was not shown that J. was incompetent or that S. knew or had reason to know of any defects. Held, That S. was not liable for the acts or omissions of J.; that J. having undertaken to build the scaffold for the purpose of enabling the workmen of S. to stand upon it and perform their work, he is liable for damages to said workmen in case of negligence on his part. See S. C., 13 W. Dig., 214. This action was brought to recover damages for the death of D., plaintiff's intestate, which was caused by the breaking down of a scaffold upon which he was at work. The evidence showed that the ledger which supported the plank upon which D. was sitting broke down without any excessive weight being put upon it and without any apparent cause sufficient to break a well constructed scaffold. One witness for plaintiff, who was accustomed to work on scaffolds and to see them built, testified that the upright which supported the end of the ledger should have been fastened by lash liable to break the nails or push them out, while lashings would only become tighter. This testimony was corroborated by another witness, a carpenter and builder. The appearance of the scaffold after the accident was described to the jury and a model of it exhibited to them. Defendants gave testimony touching the same points. Thomas E. Pearsall, for applt. Winchester Britton, for respts. Held, That it was a question of fact whether or not the injury was the result of the negligent construction of the scaffold. It appeared that when the accident occurred D. was sitting on a plank, performing the work for which the scaffold was erected. There was nothing to indicate that he was in an improper place or unnecessarily exposed himself to danger, or did any act to contribute to the accident. Held, That the question of contributory negligence was one for the jury. It appeared that defendant S. had contracted to paint the interior of the dome of the Kings County Court House, and employed D. upon that work. S. was to furnish the necessary scaf folding. He knew nothing about building scaffolds, and contracted with defendant J. to erect the scaffold for a gross sum, and the work was done under that contract by J., who employed his own men and superintended the job himself. J. had been known to S. as a scaffold builder for many years; his experience had been very large; S. had employed him before, and the contract on this occasion was for a first-class scaffold. There was no evidence that J. was incompetent or S. negligent, or that he knew or had reason to know of any defect in the scaffold. Held, That J. was not the agent or servant of S., but an independent contractor, for whose acts or omissions S. was not liable. 5 N. Y., 48 S. having received the scaffold as a completed work it was not negligence for him to rely on its sufficiency and permit his employes to go upon it to perform their work. An employer does not undertake absolutely with his employes for the sufficiency or safety of the implements and facilities furnished for their work, but only the exercise of reasonable care in that respect, and where injury to an employe results from a defect in the implements furnished knowledge of the defect must be brought home to the employer, or proof given that he omitted the exercise of proper care to discover it. Personal negligence is the gist of the action. 25 N. Y. 566; 39 id. 468, 475; L. R., Scotch and Div. App., 326; 80 N. Y., 46. Also held, That J. having undertaken to build the scaffold for the express purpose of enabling S.'s workmen to stand upon it and perform their work, and as any defect or negligence in its con struction which would cause it to give way would naturally result in great danger and serious injury to the workmen, he would be liable for damages to said workmen in case negligence was shown on his part. 6 N. Y., 397; 56 id., 124. Mayor, &c., v. Cunliff, 2 N. Y., 165, and Loof v. Litchfield, 42 id., 351, distinguished. Judgment of General Term, affirming judgment dismissing plaintiff's complaint, affirmed as to defendant S., and reversed as to defendant J., and new trial ordered. Opinion by Rapallo, J; Andrews, Ch. J., Danforth and Finch, JJ. concur. Earl, J., concurs as to defendant S. and dissents as to defendant J. Miller, J., absent. Tracy, J., not sitting. N. Y. COURT OF APPEALS. Lynch, respt., v. The Metropolitan Elevated RR. Co., applt. Decided Oct. 10, 1882. A railroad company has a right to make reasonable rules and regulations for the management of its business and the conduct of its passengers; but it cannot legally have a regulation that a passenger, before leaving its cars or premises, should produce a ticket or pay his fare, and, if he did not, that he should then and there be detained and imprisoned until he did so; and it is liable for the acts of its gateman, in pursuance of such regulation, to enforce payment or to punish a passenger for refusing to pay. Affirming S. C., 12 W. Dig., 228. This action was brought to recover damages for the arrest and E legally have a regulation that a passenger, before leaving its cars. or its premises, should produce a ticket or pay his fare; and, if he did not, that he should be then and there detained and imprisoned until he did so. At most plaintiff was a debtor to defendant for the amount of his fare, and that debt could be enforced by the same remedies any creditor has against his debtor. 3 M. & W., 247; 16 false imprisonment of plaintiff by defendant. It appeared that in September, 1878, plaintiff purchased a ticket on defendant's road and entered one of its cars. Before reaching his destination he lost his ticket, and when he attempted to pass from the station. platform through the gate into the street he was prohibited by the gatekeeper and told that he could not pass until he produced a ticket or paid his fare. He explained | id., 212; 111 Mass., 512; Potter on that he had paid his fare and lost his ticket, and insisted on passing out. He was pushed back by the gatekeeper, who refused to let him pass. He expostulated and insisted on his right to pass, when the gatekeeper sent for a police officer and ordered his arrest. was arrested and taken to a police station by the police officer, the gatekeeper going along and making a complaint against him. He was locked up in the station house over night. In the morning the gatekeeper appeared against him, and he was examined before a police magistrate and discharged. R. E. Deyo, for applt. Chas. C. Smith, for respt. He Held, That the plaintiff's arrest and detention were illegal. Defendant had the right to make reasonable rules and regulations. for the management of its business. and the conduct of its passengers. It could require every passenger, before entering one of its cars, to procure a ticket and to produce and deliver it up at the end of his passage or again pay his fare, 22 Barb., 130; 15 N. Y., 455; 20 id., 126; 56 id., 295; but it could not Corps., §81; Clark's case, 5 Rep., 64. Defendant is responsible for all that its gatekeeper did to enforce payment by plaintiff of his fare or to punish him for refusing to pay it. 64 N. Y., 129; 73 id., 543. Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed. Opinion by Earl, J. All concur, except Finch, J., dissenting, and Rapallo, J., not voting. BAILMENT. EVIDENCE. DAMAGES. N. Y. COURT OF APPEALS. Jones, respt., v. Morgan, applt. Decided Oct. 10, 1882. Where goods are deposited for storage under an assurance that they will be under guard of responsible and reliable men, and the price of storage is fixed with reference to such conditions, the contract is one of bailment, and the storehouse keeper assumes the obligation of ordinary care and prudence. In an action to recover the value of goods lost through the negligence of the bailee, where the goods were second-hand and had no market value, Held, That evidence as to their original cost, use and condition when stored, was admissible, as it was the best proof of the value that could be given under the circumstances. Expenses incurred in the recovery of the goods, and in the repair of such as was recovered in a damaged condition, are proper items of damages in such an action. This action was brought to recover the value of goods lost through the alleged negligence of the defendant bailee. It appeared that defendant had a storehouse in New York, in which the storage business was carried on, and that he assured plaintiff, who wished to store some household furniture and other property with him, that her goods would be safe therein, and that they would be under the guard of a watchman by night and of a responsible or reliable man by day. The price paid by plaintiff was fixed in reference to these conditions. Joseph R. Flanders, for applt. Held, That the contract was one of bailment, and that defendant assumed the obligation of ordinary care and prudence in keeping the goods. Upon the trial plaintiff testified as a witness in her own behalf to the value of certain of the articles of furniture; that she had bought them in 1868 and 1869, and paid the market price for them, and what they cost her, how they had been used, and what their condition was when stored. Defendant's counsel objected to this evidence on the ground that the time was too remote, and the Judge overruled the objection. Held, No error; that defendant was to be charged with the value of the articles at the time he failed to deliver them to the plaintiff upon her demand, and their value at that time, with interest, was the measure of plaintiff's recovery ; that the furniture being secondhand furniture and having no market value, and having been lost, so that it could not be exhibited to experts for their valuation, it was incumbent upon plaintiff to make the best proof she could as to its value; that the proof given by her was such, as there seems to have been no other feasible way to ascertain the value. 37 N. Y., 457, 470. Plaintiff claimed in her complaint compensation for the entire value of her furniture as for a total loss. By the aid of detectives, by legal proceedings, and the expenditure of money, she recovered some of the property, and was allowed to prove, against the objection of defendant, what expenses she thus incurred. Held, No error; that plaintiff was not bound to seek for her property, and when defendant failed upon demand to deliver it to her he became liable for the whole of it; what plaintiff did to recover the property, so far as it was successful, was for defendant's benefit, and he was entitled to credit for the property thus recovered, less the expenses of recovering it. Also held, That the same liability existed as to the expense of repairing some of the furniture recovered in a damaged condition. Judgment of General Term, af |