strung was on the south side of the tracks. The wire was attached to the cornice of a shed, and then to the limbs of an elm tree north of the track, about 30 feet high, then to the limb of an elm tree diagonally across the tracks, about 30 feet high, from which it continued to the hotel; and the trees were about 135 feet apart. Apparently the wind which occurred just before the accident caused the bracket on the north tree to which the wire was attached to become loosened from the tree, so that the wire sagged down. Brackets were nailed to the limbs of the elm trees several feet from the trunks of the trees upon limbs that were three or four inches in diameter. Insulators were fastened on the brackets and the wire passing thereto in such a manner that there was no reasonable room for play when the branches swayed. The wire was broken at the time of the accident and the bracket on the north side remained attached to the wire. There was no evidence given upon which the defendant could be charged with any act or transaction in connection with placing the wire across its property. We think the evidence was insufficient to charge the defendant with notice or knowledge that the wire was insecurely placed, and that it was attached in an improper manner, or that it was left in a dangerous condition after the employés of Ten Eyck had placed the same there by the direction of Ten Eyck. In Wright v. Railroad Co., 25 N. Y. 566, Allen J., said:

"If the injury arises from a defect or insufficiency in the machinery or implements furnished to the servant by the master, knowledge of the defect or insufficiency must be brought home to the master, or proof given that he was ignorant of the same, through his own negligence and want of proper care; in other words, it must be shown that he either knew or ought to have known the defects which caused the injury. Personal negligence is the gist of the action."

That doctrine was approved in Warner v Railway Co., 39 N. Y. 478. The duty of the defendant in furnishing a reasonably safe place for the discharge of the duties of the employé was to exercise ordinary prudence,-such prudence as a man of ordinary care and caution would exercise in the same line of business acting with regard to his own safety, were he to occupy the place himself. Carlson v. Bridge Co., 132 N. Y. 273, 30 N. E. 750. Appar ently the wire had been placed in position by a competent and skillful person, and the evidence does not disclose that anything had occurred which was calculated to give notice or knowledge to the defendant of any unsafety in the condition of the wire. See Birmingham v. Railroad Co., 137 N. Y. 13, 32 N. E. 995.

Respondent calls our attention to Vosburgh v. Railroad Co., 94 N. Y. 374, and we find, on examination of the case, that it differs very essentially from the one before us. In that case the bridge,

at the time of the purchase thereof by the defendant, was unsafe and dangerous by reason of defects in its original build and construction, "and such defects were obvious to the eye of a skilled inspector, and could have been easily and surely ascertained by proper examination." Respondent also calls our attention to Donnegan v. Erhardt, 119 N. Y. 468, 23 N. E. 1051. Upon an inspection of that case, we find that the defendant is required to exercise

reasonable prudence and care in keeping the track free from obstructions, animate and inanimate; and the particular facts disclosed in that case to charge the defendant with negligence related to its omission to comply with the statute, which requires every railroad company to build and maintain fences on the sides of its road. We think there was not sufficient evidence of any neglect of duty on the part of the defendant in respect to the wire in question to warrant the court in denying the motion for a new trial.

Judgment and order reversed, and a new trial ordered, with costs to abide the event. All concur.

(8 App. Div. 337.)

AGAR v. CURTISS.

(Supreme Court, Appellate Division, Fourth Department. July 30, 1896.) EXECUTION-LEAVE TO ISSUE-JUDGMENT IN JUSTICE'S COURT.

Under Code Civ. Proc. § 3017, which provided, before the amendment of 1894, that the judgment of the justice's court, a transcript of which, if filed and docketed in the county clerk's office, is thereto deemed a judgment of the county court, and must be enforced accordingly, execution may be issued on such judgment, though the right to sue on it is barred by limitation.

Appeal from Wyoming county court.

Action by Thomas Agar against Mary J. Curtiss. A judgment in favor of plaintiff in a justice court on the confession of defendant was entered for $393.37, damages and costs. A transcript of the judgment was filed in the clerk's office of Wyoming county, where the judgment was docketed. Plaintiff moves for leave to issue execution on the judgment. Motion was granted, and defendant appeals. Affirmed.

On the 3d day of January, 1888, Thomas Agar recovered a judgment in a justice court in the county of Wyoming against the defendant upon the confession of said defendant of judgment in the sum of $393.37, damages and costs. On the 3d day of January, 1888, the plaintiff procured a transcript, and caused the same to be filed in Wyoming county clerk's office, where the judg ment was duly docketed on that day. On the 23d of February, 1888, the transcript of said judgment was filed, and the judgment was docketed in the clerk's office of Erie county. On the 8th day of April, 1888, the plaintiff, at the town of Warsaw, Wyoming county, died, and on the 30th of April, 1888. Mary Agar and Thomas B. Catton were duly appointed administrators, and letters of administration were issued to them, and they took upon themselves the duty of such administration, and on the 9th of October, 1895, they, as administrators, sold, transferred, and assigned said judgment to T. Delancey Agar, who became the owner of the judgment, and he recorded his assignment in the Wyoming county clerk's office. In his affidavit used upon the motion for leave to issue execution he stated that the said judgment was wholly unpaid and unsatisfied, that no execution had been issued on said judgment within five years after the entry thereof, and that no execution has ever been issued. Notice of motion was duly given, and the affidavit of T. Delancey Agar was duly served, and on the 13th of January, 1896, the county court of Wyoming county made an order, after hearing the parties, in the following language: "Ordered, that an execution upon said judgment issue in said action by the clerk of the county of Wyoming, or of any other county in whose office a transcript of said judgment may have been filed, and said judgment docketed in favor of said assignee of said judgment, to the sheriff of the proper county, upon filing in any such clerk's office a certified copy of this order." From that order the defendant appeals to this court.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.

Elihu R. Sherman, for appellant.
Frank W. Brown, for respondent.

*

*

HARDIN, P. J. It was the duty of the justice of the peace to furnish a transcript of the judgment. Code Civ. Proc. § 3017. was the duty of the county clerk of Wyoming county to file the same, and docket the judgment "as of the time of the receipt of the transcript, in the book kept by him for that purpose." He performed that duty in pursuance of section 3017 of the Code of Civil Procedure, as it existed January 3, 1888. That section then provided, viz.: "Thenceforth the judgment is deemed a judgment of the county court of that county and must be enforced accordingly." In 1894, section 3017 of the Code of Civil Procedure was amended so that the county clerk was authorized to file the transcript and docket the judgment "if within six years after the rendition thereof." It is to be observed that that limitation was not in the section at the time the transcript was filed and the judgment docketed, to wit, January 3, 1888. It is further provided in section 3017 of the Code that after filing and docketing, viz.: "Thenceforth the judgment is deemed a judgment of the county court of that county and must be enforced accordingly, Notwithstanding the provision we have just quoted, it was held in Dieffenbach v. Roch, 112 N. Y. 621, 20 N. E. 560, that an action may not be brought upon such a judgment after six years from the time of its rendition. It has been held in several cases that under the law as it was prior to the amendment of 1894 an application for leave to issue execution might be granted. See sections 1251, 2435, Code Civ. Proc.; In re Hallock's Estate (Sup.) 29 N. Y. Supp. 555; Waltermire v. Westover, 14 N. Y. 16; Johnson v. Railroad Co., 54 N. Y. 416; Kincaid v. Richardson, 25 Hun, 237; Herder v. Collyer (Com. Pl.) 6 N. Y. Supp. 513; Green v. Hauser (Super. Buff.) 9 N. Y. Supp. 660; Bolt v. Hauser (Co. Ct.) 10 N. Y. Supp. 397, affirmed 57 Hun, 567, 11 N. Y. Supp. 366, 368; Brown v. Hyman (Co. Ct.) 27 N. Y. Supp. 436; Townsend v. Tolhurst, 57 Hun, 40, 10 N. Y. Supp. 378; Bank v. Quackenbush (N. Y.) 38 N. E. 728. Davidson v. Horn, 47 Hun, 51, differs from the case in hand, as the transcript was filed and the judgment docketed in the county court more than six years after the renditon of the judgment, and in the course of the opinion it was said:

"The right of the judgment debtor to avail himself of the statute of limitations as a bar became perfect before the transcript was filed with the clerk. And that right was a vested one, which could not be defeated even by subsequent legislation. * And it is difficult to see how the defendant could

be divested of such right by the act of filing the transcript and docketing the judgment at the instance of the judgment creditor, inasmuch as the statute does not declare that it may be done after the time such right has accrued to the judgment debtor."

Following the cases cited they lead to an affirmance of the order. Order affirmed, with $10 costs and disbursements. All concur.

(8 App. Div. 354.)

SHARP v. MILWAUKEE MECHANICS' INS. CO.

(Supreme Court, Appellate Division, Fourth Department. July 30, 1896.)

INSURANCE-PROOFS OF Loss-WAIVER.

The assured, after loss, verbally notified the insurance agent, who thereupon notified the insurance company, which sent its adjuster to adjust the loss. An agreement was then entered into for the appraisal of the loss by the adjuster. The assured frequently applied to the insurance agent for blanks on which to make out proofs of loss, and the agent promised to furnish them, and informed the assured that the insurance company had been notified, and that the check for the amount of the appraisal would soon be received. Afterwards, and after the time limited by the policy, the assured sent proofs of loss to the insurance company, which received and retained them without objection. Held, that the provision of the policy that proofs of loss should be made within a certain time was waived.

Appeal from judgment on report of referee.

Action by James B. Sharp against the Milwaukee Mechanics' Insurance Company, impleaded, on a fire insurance policy. Judg. ment was rendered in favor of plaintiff for $569.76 and costs, and defendant insurance company appeals. Affirmed.

On the 18th day of July, 1892, the appellant, in consideration of $3.60, paid by the plaintiff to Samuel J. Jacoby, its duly-authorized local agent, made, executed, and delivered to the plaintiff its policy of insurance, whereby it insured the plaintiff against loss or damage by fire to the amount of $600 upon his two-story frame, shingle-roof dwelling house, situate on the west side of Rumsey street, in the village of Seneca Falls, N. Y., for the term of three years. On the 1st day of October, 1892, the dwelling house was destroyed by fire, without any fault of the plaintiff. The referee finds: "That, immediately after said fire, the plaintiff verbally notified said Samuel J. Jacoby, the local agent of said company, as aforesaid, who thereupon at once notified said company by telegraph and by letter of said loss. That pursuant thereto, and on or about the 10th day of October, 1892, said defendant sent its adjuster to Seneca Falls, to adjust said loss. That an agreement in writing was then and there entered into between plaintiff and defendant, pursuant to the terms of said policy of insurance, by which the amount of loss was to be appraised by said adjuster for said company, and one B. F. Peck for plaintiff and an award in writing, pursuant to said submission of appraisal, was thereupon duly made, by which the amount of said loss was duly fixed and agreed upon between said parties at the sum of four hundred and eighty dollars and thirty-four cents, which award was immediately thereafter delivered by said adjuster to said company. That the plaintiff frequently applied to said Jacoby for blanks to make out proofs of loss within the time limited by terms of policy for so doing. That Jacoby promised to furnish same, and informed plaintiff that the defendant had been notified, and that the check for the amount of appraisal would soon be sent on; and plaintiff relied upon said statements. That on the 9th day of December, 1892, and more than sixty days before the commencement of this action, this plaintiff made and executed proofs of loss in writing in due form, and properly verified, and mailed same to defendant company; and said proofs were received by it at its New York office on the 10th day of December, 1892, and have been ever since retained by said company without objection. * That said defendant Milwaukee Mechanics' Insurance Company, by entering into said agreement of arbitration and appraisal before expiration of the time within which proofs of loss should have been furnished, and the retention of same without objection, has waived the earlier furnishing of same, as required by the terms of its said policy. That the sum of four hundred eighty dollars and thirty-four cents became due and payable from said defendant to the plaintiff herein on the 7th day of February, 1893, and remains wholly unv.40N.y.s.no.7-52

paid." The appellant filed four exceptions to matters mentioned in the referee's report. Only two of them, however, relate to questions of law: (1) That the defendant is indebted to the plaintiff in the sum of four hundred eighty dollars and thirty-four cents; (2) that the defendant Wayne Building, Loan and Accumulating Fund Association has interest in said recovery to the amount of two hundred and twenty-six dollars and three cents.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD, and GREEN, JJ.

Satterlee, Yoeman & Taylor, for appellant.

J. N. Hammond, George W. Pontius, and S. N. Sawyer, for respondent.

HARDIN, P. J. No case containing exceptions is presented, and the only questions that can be considered are those arising upon the judgment roll and exceptions to the findings of law by the referee. The appellant, in order to succeed, must show "that the trial court could not, in any view of the facts found, properly have ordered judgment for the plaintiff." Insurance Co. v. Barnard, 96 N. Y. 525.

Appellant's defense is predicated upon the failure of the plaintiff to make proofs of loss within the 60 days mentioned in the stipulation in that regard in the policy. It must be assumed that the stipulation requiring proofs of loss to be made and filed within 60 days is a condition precedent to the right to recover upon the policy. A similar stipulation was under consideration in Smith v. Insurance Co., 47 Hun, 38, and it was there said:

"This was a condition precedent, and the plaintiff was not entitled to recover unless the strict performance of the condition was in some manner waived by the defendant."

In Rademacher v. Insurance Co., 75 Hun, 88, 27 N. Y. Supp. 158, it was assumed that the stipulation was a condition precedent, and it was said:

"Upon the law, therefore, unless the evidence shows that this condition has been expressly or impliedly waived, it would bar the plaintiff's recovery." Although the law does not favor forfeitures, it was said, in the case last cited:

"Forfeitures plainly incurred, and not waived, must be enforced by the courts."

And in that case it was further said:

"The facts relied upon in this case to show waiver are the receipt of the proofs of loss without objection, and retaining the same, and the entering into the agreement of arbitration before the time had expired within which the proofs of loss should have been furnished."

And it was further said in the course of the opinion:

“And, though the question has not been directly passed upon in this state, an argument in support of the proposition that the entering into an arbitration before notice or proofs of loss have been served is a waiver of notice of proofs of loss, notwithstanding a stipulation in such submission that it shall not operate as such waiver, is furnished by the case of Gale v. Insurance Co., 33 Mo. App. 664."

Upon the precise question involved in the case before us, we must regard what was said in the Rademacher Case as dictum, as there were other questions upon which the case was ultimately disposed of.