dence, but that the circumstances under which they were made, and the weight to be attached to them were matters for the jury to determine. See, also, Alston v. Alston (1901) 114 Iowa, 29, 86 N. W. 55. It has also been held that an illegitimate child may testify that her deceased mother told her the name of her father. Coker v. Cooper's Estate (1915, Tex. Civ. App.) 176 S. W. 145. Where the declarant is dead, his statement is not excluded by reason of the fact that living members of the same family may be examined on the same point. Jarchow v. Grosse (1912) 257 Ill. 36, 100 N. E. 290, Ann. Cas. 1914A, 820.

[10] The Supreme Court of this state held that declarations concerning pedigree constitute marked and important exceptions to the rule excluding hearsay evidence. Such declarations are admitted upon the theory that they tend to show that the person to whom they refer was recognized and treated as one of the family. Proof of pedigree is restricted to the declarations of deceased persons who were related by blood or marriage to the person whose parentage is the subject of investigation. The statements of an ancestor or deceased kinsman are not to be regarded as separate and distinct conversations, but are to be taken as a connected and indivisible thing, indicating the treatment of the person whose pedigree is in dispute. De Haven v. De Haven, supra. There was no error in admitting this evidence.

[11] Appellant next contends that the court erred in admitting in evidence the certificate of the clerk of Champaign county, Ill, to the effect that there was no record in his office of a marriage license issued to Eli Stern and Mary Fry, or Mary Johnson, for the reason that it was not shown that there was any law in Illinois for the recording of such license. No such objection was made in the trial court to the introduction of such certificate in evidence. Appellant did object to the admission of such certificate in evidence, but not for the reason urged on appeal. The error, if any, in admitting this certificate, was harmless. [12] One of the attorneys for appellee, in the opening argument to the jury, after quoting testimony of William Green to the effect that before the death of Eli Stern he had a conversation with appellant, in the absence of Mr. Stern, in which appellant asked the witness if her father had made a will, and on being informed that he had not that appellant replied, saying, "The Lord has been good to me," and the attorney, continuing his argument, asserted that appellant was a competent witness to deny this conversation, but did not dare deny it. The record shows that appellant objected to this argument, and moved the court to require the attorney to withdraw the same, on the ground that the court had, at the instance of appellee, held appellant was not a competent witness to

testify to anything occurring during the lifetime of Eli Stern, whether in his presence or absence; that thereupon the court stated that, in view of the objections made by appellee to the competency of appellant as a witness, her counsel was justified in not offering her as a witness to deny such conversation, but allowed the attorney for appellee in his argument to persist in his contention before the jury that she was competent to testify in that particular instance, and to comment on her failure to do so as an admission of the truth of the testimony of the witness Green. The objection. of appellant to this argument, as well as to the motion to have the same withdrawn was overruled, and no instruction was at any time given the jury directing the jury to disregard this argument.

[13] Another one of appellee's attorneys, in making the closing argument to the jury, said:

"The plaintiff, Georgianna McDole, was born at the home of a sister-in-law of Eli Stern," and that she "was born at the home of Mrs. Henley McKinzie, who was a sister-in-law by marriage of Eli Stern, and who knows but that Eli Stern paid her expenses there when Georgianna was born."

Thereupon one of appellant's attorneys stated that there was no evidence tending to show any such relationship between Eli Stern and Mrs. McKinzie, and the judge in response to such statement, and in the hearing and presence of the jury, said he “did not remember what the evidence showed the relationship to be, but he did not remember it that way, but that the jury would remember what the evidence did show." Appellant objected to this argument, and moved the court to instruct the jury to disregard it and to withdraw it from the jury. This motion being overruled, appellant thereupon, and be fore the close of the argument, in writing requested the court to instruct the jury to disregard each of the statements so made. These requests were refused and exceptions saved.

The evidence concerning when Eli Stern first became acquainted with Mary Fry is anything but conclusive. One of appellant's witnesses, a brother of Mary Fry, testified that when he first knew Eli Stern he was going with her, and that appellee was probably 6 months old. Another witness testified that he became acquainted with Eli Stern in 1864; that he first met Mary Fry at a picnic with Eli Stern in July or August, 1865; that Eli Stern brought her to the dance. The witness Green, heretofore mentioned, testified that Eli Stern told him that he first began to go with Mary Fry in 1865; that they met at a dance, and attended several dances together, and that from that time she was his "lady friend"; that they decided in 1866 to get

married, but that his mother objected, and Mary said they would wait, and after that appellee was born. This witness also testified concerning a statement which he said Eli Stern made to him, and which, if the witness is believed, would justify an inference that Eli Stern was the father of appellee, and that the mother, Mary Fry, called her Georgianna Johnson to protect Eli Stern, on account of his being younger than she, and so people would not talk about him being the father of her child and not marrying her.

Other witnesses testified that Mary Fry had left Indiana when a child, going with her parents to Kansas; that she afterwards lived in Iowa; that in the summer of 1865 she returned to this state, and to the neighborhood where she lived as a child, with a man named Charles Johnson, whom she introduced to her relatives and friends as her husband. She and Johnson, who claimed to be a soldier, visited with her relatives for a few weeks after which they went to Indianapolis. Johnson said he had to report at Camp Morton. Mary Fry returned some time later, and reported that Johnson had deserted her at Indianapolis. On August 14, 1866, she gave birth to appellee at the home of her uncle, Henley McKinzie, whose wife was a sister of a brother-in-law of Eli Stern. The evidence relating to whether appellee was the legitimate or illegitimate child of Mary Fry, and whether after her mother married Eli Stern the latter acknowledged appellee as his, child, is in irreconcilable conflict. There is no conflict in the evidence as to where appellee was born. Eliza Woods, a sister of Eli Stern, testified that appellee was born at the home of one Mrs. Henley McKinzie, who was a sister of Mrs. Woods' husband.

The statement of appellee's counsel, in his argument to the jury, that appellee was born at the home of a "sister-in-law of Eli Stern," or at the home of a "sister-in-law by marriage of Eli Stern," was not a correct statement of the evidence; but, in view of the fact that there was no conflict in the evidence as to where she was born, and the evidence being clear and undisputed that Mrs. McKinzie was the sister of the husband of a sister of Eli Stern, the jury could not have been misled or prejudiced by such statement in relation to Mrs. McKinzie being a sister-inlaw, or "a sister-in-law by marriage," of Eli Stern. No specific objection was made to the statement, "and who knows but that Eli Stern paid her expenses there." Appellant thereafter, and during the course of the argument, in writing requested the court to instruct the jury that there was no evidence showing or tending to show that Mrs. McKinzie was a sister-in-law "by marriage" of Eli Stern, and that the jury therefore should disregard the statement "that Georgianna McDole was born at the home of Mrs. Henley McKinzie, who was a sister-in-law of Eli Stern, and who knows but that Eli Stern paid her expenses there." The reason given by appellant in support of her request for this instruction was that "the argument was not true as to the relationship of Eli Stern." It appears that the part of the argument to which appellant was really objecting was the statement of the relationship of Mrs. McKinzie to Mr. Stern, and not the statement relative to the payment of the expense. A careful consideration of the record convinces us that counsel for appellee were not guilty of such misconduct as amounts to reversible error. Judgment affirmed.

(240 N. Y. 474)
ROBERT v. UNITED STATES SHIPPING
BOARD EMERGENCY FLEET COR-
PORATION et al.

(Court of Appeals of New York. July 15, 1925.)

1. Master and servant 286 (21)—Negligence in ordering seaman to paint stem from slippery raft held for jury.

Evidence of ship officer's negligence, in ordering seaman to paint draft numbers on stem of steamship in harbor from a slippery raft, held sufficient for jury.

2. Trial 252(11)—Instruction seaman on ship chartered by Emergency Fleet Corporation was employed by managing agents held erroneous.

In action by seamen for injuries, instruction that relation between plaintiff and defendants, managing agents of ship under contract with the United States Shipping Board Emergency Fleet Corporation, was that of servant and employer, held erroneous, in absence of shipping articles and in view of contract and testimony that the agents were not a party to the hiring.

3. Evidence 466-Managing agents of ship entitled to show that gratuitous agency for charterer established by contract had been modified or abandoned.

In action by seaman for injuries, managing agents held entitled to show that gratuitous agency for charterer, established by a written contract, had been modified or abandoned.

4. Evidence 424-Parol evidence showing contract between charterer and manager of vessel admissible in action by employé.

In action by seaman for injuries caused by alleged negligence of employers, joining both the charterer of vessel and the managing agents, parol evidence as to actual contract be tween charterer and managing agents held admissible.

CARDOZO, J. Plaintiff, an able seaman on the steamship President Roosevelt, was ordered by an officer to paint the draft numbers on the stem while the steamship was lying in the harbor of Bremerhaven. There is evidence that the stem of the vessel was between two barges overlapping it on either side. Plaintiff stood upon a camel raft or fender, which was intended to keep the vessel from contact with the wharf. The raft was made of logs, with holes between them through which slime and water rose, making it hard to keep a foothold. The difficulty was corrected to some extent by placing planks across the logs, but only two planks could be found. Plaintiff, painting with his right hand, held onto the stem with his left in order to keep steady. There is evidence that he asked his officer for a boatswain's chair, but none was given. The water was in constant agitation through the movement of vessels which were coming into the basin and leaving it. As a result of this movement, one of the overlapping barges was driven against the stem, and struck the plaintiff's hand. He suffered injuries for which he sues.

though slight, is not lacking altogether. The [1] We think the evidence of negligence, defendants' officer admits that the plaintiff's position was one of danger if the steamship was moored with its stem between the barges. He would not order a man, he says, to work in such conditions. He denies, it is true, that there was overlapping except on one side, but in this he is contradicted by the plaintiff and by others. We have evidence, therefore, that the plaintiff was ordered to work in surto involve the risk of a collision. When we roundings which were known by his superior add to this the evidence descriptive of the condition of the raft, we think a basis has been laid for an inference of negligence. A raft, even though unsteady, may be safe enough in some surroundings. Here the over

Action by Charles Robert against the United States Shipping Board Emergency Fleet Corporation and the Roosevelt Steamship Company, and the Moore & McCormack Company, Inc. From a judgment of the Appellate Division (211 App. Div. 868, 207 N. Y. S. 908), affirming by a divided court a judgment of the Trial Term, entered on a jury verdict for plaintiff against defendants last named, and dismissing complaint as to defendant first named, the defendants last named appeal. Reversed, and new trial granted.

duty to supply protection against sudden and untoward contacts, or so the triers of the facts might find.

"It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily 156, 34 S. Ct. 44, 45 (58 L. Ed. 162), quoted prudent eye." Munsey v. Webb, 231 U. S. 150, in Condran v. Park & Tilford, 213 N. Y. 341, 107 N. E. 565, and Meisle v. New York Cent. & H. R. R. Co., 219 N. Y. 317, 320, 114 N. E. 347, Ann. Cas. 1918E, 1081.

Fleet Corporation as the owner or charterer