the pendency of the appeal.

Order modified accordingly, with costs to abide event. Opinion per curiam.

CONTRACT. NEGLIGENCE.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

Peter Harting, respt., v. The Bay State Shoe & Leather Co., applt.

Decided Feb., 1887.

A party employing convict labor by contract with the proper authorities, is liable to the convict for injuries received by him by reason of the machinery furnished by such party being out of repair and dangerous.

Plaintiff was a convict in the Kings County penitentiary. Defendant is a corporation. The county authorities "let and farmed out" to defendant a large number of convicts to be employed in making boots and shoes. Plaintiff was one of the men included in the contract. The prison authorities by its terms were to enforce the performance of the day's work and defendant was to furnish "all the tools, machinery and stock necessary" for the employment. Plaintiff, while using one of the machines designed to mould the soles of shoes, was injured.

The action is based upon an allegation that the machine by which the convict was injured was out of repair and dangerous.

W. E. Beecher, for applt.

D. W. Northup, for respt.

not exist because the labor furnished was compulsory, defendant must be held to have owed a duty to the convict in respect to the machinery to be furnished for the purpose of the work. This follows from the covenant itself. A contract for machinery carries with it an obligation to furnish machinery fitted to and sufficient for the work and that it shall be kept in constant repair. The contract, it is true, was with the county of Kings, but the convict was essentially a servant of defendant. By his crime he lost the power over his own freedom to contract and labor and his services were let out to defendant as minors and apprentices are let out, by the authority of a temporary superior. He was defendant's workman though his wages went to the county of Kings.

The verdict of the jury in favor of plaintiff upon the issue as to the machine being out of order is sustained by the evidence. Plaintiff therefore had, if he was free from contributory negligence, a cause of action. 89 N. Y., 375; 100 id., 516.

Contributory negligence is usually a question for the jury, and this was a case upon which the evidence was not only satisfactory, but upon the evidence of defendant was such that it was susceptible of different deductions.

The convict was doing his work at the machine when the roller slipped and the machine became liable to close. The mould was

to replace it and the machine suddenly closed and smashed his finger. The evidence tends to show on both sides that this disordered machine gave notice of the disor der before it closed and the contributory negligence consists in this fact. The answer to this as matter of law is that it was not uniform; "it was likely to close." The jury were to pass upon the question, especially as a portion of the evidence consisted of a model of the machine which was shown to the jury. 82 N. Y., 370. Judgment affirmed.

account in favor of a firm of stock brokers, to which defendants are said to have assented in a paper as follows: "We have received your account, and the balance of indebtedness against us of $17,882.29 is correct, and will be paid by us."

Defendants claimed that their signatures were obtained by fraud and misrepresentation. Defendant Harris testified that at that time he had never examined the monthly statements in regard to the stock transactions to see if they were correct, and did not know that they were. That W., one of plain

ACCOUNT STATED.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

William H. Smith, respt., v. William D. Harris et al., applts.

Decided March 31, 1887.

To constitute an account stated there must be not only an examination of the claims involved in the account, but an agreement as to their allowance.

In an action on an account and admission of its correctness defendants testified that each was induced to sign by the false representation that the other had looked over the account and agreed to sign, and that they had not examined the account. Held, That the question whether an account had been stated should have been left to the jury, and that a direction of a verdict for plaintiff

was error.

Appeal from judgment entered upon verdict for plaintiff directed by the court.

Action brought by plaintiff, as assignee, to recover a balance of

could use such a paper in their business, and that defendant Williams was willing and had consented to sign it. Defendant Williams testified that he had never expressed such willingness or given such consent, and that he signed in consequence of a statement that Harris had examined the accounts and found them correct and had then signed.

Thomas Jackson, for applts.
B. F. Dos Passos, for respt.

Held, That the case should have been submitted to the jury. The execution of this written admission by defendants was certainly strong evidence that an account had been rendered and balanced between them and W., G. & Co., and that they had assented to the balance; but this proof of assent did not preclude them from showing that they signed the paper in consequence of fraudulent misrepresentations. See 100 N. Y., 224. The false representations by which defendants say they were misled

were such as might have induced each to suppose that the other had verified the correctness of the accounts rendered, in which they were both interested, and each might naturally be willing to make the admission contained in the paper if he believed the other was satisfied that it accorded with the truth. Under these circumstances the alleged misrepresentations were most material, and if satisfactorily proved would go far toward destroying the effect of the writing.

There can be no doubt that, in order to constitute an account stated, there must be not only an examination of the claims involved in the account, but an agreement as to their allowance.

Less than Less than

this will not suffice. 18 N. Y., 286. Here was evidence which, if believed, would have warranted the jury in finding that at least one essential element of an account stated was wanting. If defendants testified truly they knew very little about what was in the account to which the memorandum referred, and their signatures to that memorandum were procured by statements which were false in fact. With this evidence in the case the defense was sustained by sufficient proof to require it to be submitted to the jury.

It is argued that defendants on the trial expressly conceded the several accounts to be correct. We do not find that the testimony goes as far as this. It is true that defendants did not appear to have objected to the accounts, and that Harris admitted owing something,

and Williams was unable to pick out any inaccuracy when on the stand, but they interposed and sought to establish two counterclaims which were in direct hostility to the accounts. If there was an account stated, as claimed by plaintiff, the transaction which formed the basis of these counterclaims would have been merged therein. The suit must stand or fall as an action upon an account stated, and there being no such clear admission of liability as demanded the direction of a verdict against defendants, the question of whether an account had been stated or not, upon all the evidence applicable to that issue, should have been left to the jury for determination.

Judgment reversed and new trial ordered, costs to abide event.

Opinion by Bartlett, J.; Brady and Daniels, JJ., concur.

TRUSTEES.

N. Y. SURROGATES COURT. In re estate of Margaret Le Comte.

Decided May 1, 1887.

The doctrine that a trustee cannot, without special leave of the court, purchase the property of his trust, and that, unless the beneficiary chooses to affirm such a purchase, it will be disregarded upon his demand, is thoroughly well settled.

A decree settling the accounts of executors and charging them with certain sums as received from the sale of certain real estate sold by them under a power of sale given them by the will will be set aside upon the application of infant residuary legatees and the infants allowed to file objections to the account upon proof that