Stuber 7. McEntee. the right of action. When the plaintiff, Krause, gave the receipt and received the money he was in no such position, and had no authority to bind the next of kin of the deceased by a settlement or release. The cases cited by the learned trial judge in support of his view do' not, we think, control the question. It is only necessary to refer to the two leading cases in this State (Rattoon v. Overacker, 8 Johns. 126; Priest v. Watkins, 2 Hill, 225). These cases hold that when a person assumes to collect the assets or credits belonging to the estate of a deceased person, and who subsequently is appointed administrator of the estate, and in that capacity brings an action upon the claim so collected, the prior payment made to him before his appointment is a defense to the party against whom the claim existed and who made the payment. For the purpose of protecting parties making payment in good faith to the widow, or other person without authority to collect the assets at the time, the letters, when subsequently issued to them, are deemed to relate back, so as to legalize such payments. But these cases do not hold that a stranger may compromise a claim due to an estate on receiving a part only of what is due, and thereby estop himself in a subsequent suit, in a representative capacity, from collecting the residue. If there is any such rule of law in the administration. of the estates of deceased persons, it has no application in an action like this for the recovery of unliquidated damages under a special statute by the next of kin resulting from a negligent or wrongful act, causing the death of their intestate. We have no doubt that the defendant was entitled to prove the fact of payment and its application to the expenses of the funeral and burial of the deceased, and to be credited with the same by the jury in making its estimate of the damages which the plaintiff should recover, if any. In this way the principle decided in the cases above referred to is given full effect, but to hold that the receipt operated as an accord and satisfac Stuber v. McEntee. tion would be extending its operation in a manner to accomplish results that cannot be sustained by reason or authority. If the defendant made the excavation for the deceased to perform his work in, or if, having seen its condition, he directed him to work in it, then the servant was not, as matter of law, guilty of contributory negligence. It was a question for the jury within the doctrine of Kranz . Long Island R. R. Co. (123 N. Y. 1.) It is now claimed that there was no proof that the deceased was directed by the defendant to work in the trench, or that the defendant dug it, or had ever seen it, or that he knew anything about it, and hence negligence on his part was not established. It must be admitted that the proof on these points is very meagre. The course of the trial, however, would seem to indicate that they were assumed, and such was the view of the learned judge in granting the motion for a non-suit. It may be that upon a full trial it may be made to appear that the master was not so connected with the excavation as to render him responsible for the results of the accident. But as the plaintiffs were non-suited, they are now entitled to the benefit of every fact established and every inference that might properly have been drawn by the jury, and the case must be viewed in the most favorable light that it could fairly have been by the jury, had it been submitted upon. the evidence as given. It was sufficiently shown that the defendant was engaged in the plumbing business, that the deceased was his apprentice, in his employment, and, when killed, actually engaged in plumbing work in the excavation. In the absence of other proof or explanation, the inference that the trench was the place which the master furnished the servant in which to do his work, would seem to be reasonable, or at least possible. In the receipt which the defendant took for the $400, the deceased is described as "a plumber's assistant in the employ of said Mr. McEntee." Nothing appears in the case to justify any Stuber v. McEntee. inference that the deceased was at the time of his death working for any other person or subject to any other directions. Moreover, we think that the defendant tendered no issue in his answer in the form required by the Code upon the allegations of the complaint, which was to the effect that the defendant caused the trench to be made and directed deceased to work in it. On this point the allegation of the complaint is as follows: "That on or about May 12, 1890, the plaintiffs' intestate, William Stuber, while in the employ of the defendant, was directed by the defendant to go down and do certain work in an excavation, which the defendant had caused to be made in West One Hundred and Sixteenth Street, in the city of New York, between Seventh and Eighth Avenues, in said city, about four hundred feet or thereabouts east of Eighth Avenue, and while in said excavation and following the directions of the defendant, the said excavation, by reason of its not having been properly constructed by said defendant, and by reason of the neglect and improper conduct of the defendant in not properly constructing and making said excavation, and in not making the same safe and fit to work in, and in accordance with the laws of the State of New York in such case made and provided, the earth on the side and around said excavation fell in and upon the plaintiffs' intestate, the said William Stuber, and covered and buried him in the said excavation, inflicting injuries which caused his death." It will be seen that the fact that the defendant directed the deceased to work in an excavation which he had caused to be made is sufficiently alleged. The defendant has put the allegation in issue only by the use of the following language in the answer: "First. This defendant denies that he directed William Stuber to go down and do certain work in an excavation which this defendant had caused to be made in West One Hundred and Sixteenth Street, in the city of Stuber v. McEntee. New York, between Seventh and Eighth Avenues, in said city, about four hundred feet, or thereabouts, west of Eighth Avenue." This is not such a denial as is authorized by the Code. It is a species of negative pregnant (Wall v. Buffalo Water Works Co., 15 N. Y. 119; Baker v. Bailey, 15 Barb. 54). It may be that, in the absence of a motion to correct and make more certain, such pleadings may be regarded as good upon appeal. But the whole scope of the answer, even when setting up affirmative defenses, assumes the fact the absence of which is now claimed to be fatal to the plaintiffs' appeal. In view of the fact that the non-suit was not granted on any such grounds, but, on the contrary, the defendant's negligence was assumed in granting the motion, considering the form and substance of the pleadings, the manner in which the trial was conducted and the inferences which the jury were entitled to draw from the proof given, we think that this point is not now sufficient to sustain the judgment of non-suit, and that there should be a new trial. The judgment should, therefore, be reversed and a new trial granted; costs to abide the event. All the judges concurred. Judgment reversed. Mussinan v. Hatton. MUSSINAN v. HATTON. N. Y. Superior Court, Special Term; April, 1894. 1. Pleading.] Where the first amended complaint has been stricken out, plaintiff is not entitled to serve a second amended complaint as of course, under Code Civ. Pro., § 542,-authorizing a pleading to be amended once as of course. 2. The same.] It seems that a complaint may be amended under Code Civ. Pro., § 542, so as to set up an entirely new cause of action. Motion to strike out an amended complaint. Peters & Robinson, for motion. Foley & Powell, opposed. GILDERSLEEVE, J.-This is a motion to strike out an amended complaint. Before service of the answer to the original complaint, the plaintiff served an amended complaint, which was subsequently stricken out by the court, on motion of defendant. After the amended complaint had been so stricken out, the defendant served his answer to the original complaint, and, within twenty days thereafter, plaintiff served another amended complaint. The defendant now moves to strike out this second amended complaint. The question here presented is: Can the plaintiff serve two amended complaints,--that is, when the first amended complaint has been stricken out, can plaintiff serve a second amended complaint, as of course, without costs and without prejudice, under § 542 of the Code? That section of the Code permits a pleading to be amended "once by the party, of course, without costs, and without prejudice to the proceedings already had," etc., "within twenty days |