407. the cause of action for the penalty for making a false report died with B.; that the provisions. of the statute under which the right of action asserted accrued are highly penal in their nature. and such actions are to be classed with actions ex delicto, and do not affect or concern any property right or interest as the subject of inquiry, 96 N. Y., 323; that the provisions of the Revised Statutes, 2 R. S., 448, § 1, modifying the common law rule as to the surviving of actions ex delicto, affect only injuries to property rights, and where such are not invaded the common law rule still prevails. 99 N. Y., 258. Also held, That so far as the cause of action was for a conspiracy to cheat or defraud plaintiff's intestate it was for an injury to a property right and did not die with its owner; that the order of revivor was therefore proper, but should have been limited to the cause of action which survives. Judgment of General Term, affirming judgment for plaintiff, reversed, and judgment rendered for defendant. Opinion by Finch, J. All con cur. MASTER AND SERVANT. N. Y. SUPREME COURT. GENERAL Decided July, 1886. Disobedience of a rule made by an em ployer and posted conspicuously in his factory for the protection of his employees in the use of the machinery would ordinarily be negligence on the part of the employee; but, if the employer prosecutes his work in a manner that renders a violation of the rule necessary or probable, or if he suffers and approves its habitual disregard, its disobedience is not conclusive on the question of the employee's negligence, and that matter must be left to the jury to determine. Appeal from judgment dismissing plaintiff's complaint. Plaintiff, a boy of fifteen years, was employed by defendant to feed a press with strips of tin out of which "bottoms" were stamped. While pushing the strips in under the punch or die for the last bottom his finger passed under the punch and the press being set in motion he was injured. This action was brought to recover damages for such injuries upon the ground that they were caused by the defective condition of the machine, and plaintiff's evidence tended to show that they were so caused. It appeared that in the factory were conspicuous notices forbidding placing hands or fingers between the dies for any purpose; but the evidence of plaintiff tended to show that it was necessary in the ordinary prosecution of his work to place his fingers under the punch when the last bottom of the strip was to be stamped and that such was the ordinary custom in the factory. The complaint was dismissed upon the ground that plaintiff was guilty of contributory negli gence. C. J. Patterson, for applt. Walter M. Rosebault, for respt. Held, Error; that the notice or printed rule was not conclusive on the question of plaintiff's negligence. That ordinarily disobedience of such a rule would be negligence, but if defendant prosecuted the work in a manner that rendered a violation of the rule necessary or probable, or if they suffered or approved its habitual disregard, the rule was inoperative. That the question of plaintiff's negligence should have been submitted to the jury. Judgment reversed and new trial ordered. Opinion by Cullen, J.; Barnard, P.J., and Dykman, J., concur. NEGLIGENCE. N. Y. COURT OF APPEALS. Card et al., exrs., respts., v. The Manhattan R. Co., applt. Decided Nov. 23, 1886. After the gates on defendant's cars were closed plaintiffs' testator kept hold of the stanchions supporting the roof while the train was moving and the gateman pushing him away until he disappeared under the car and was killed, Held, That plaintiffs could not maintain an action for damages for his death. Reversing S. C., 22 W. Dig., 321. This action was brought to recover damages for the killing of plaintiffs' intestate, through the alleged negligence of defendant's guard in pushing the deceased off the platform of a car, in consequence of which he was run over and killed while he was lawfully endeavoring to board one of defendant's trains. A passenger in an adjoining car, who was appa rently wholly disinterested, testified that after the gates on the platforms of defendant's cars were closed and the train was in motion, plaintiffs' intestate had hold of the iron stanchions supporting the roof of the platform, clinging to them as the train moved while the gateman was pushing him away, and that this continued until the deceased disappeared from sight. Edward S. Rapallo, for applt. S. W. Fullerton, for respts. Held, That the conduct of the deceased was an interference with a moving train which was dangerous and imprudent and from which the injury resulted; and as the same was unnecessary and inexcusable, plaintiffs could not maintain this action. Judgment of General Term, affirming judgment for plaintiffs, reversed, and new trial ordered. Opinion by Finch, J. All concur, except Danforth, J., not voting, and Rapallo, J., taking no part. EVIDENCE. INTEREST. AMENDMENTS. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Constance B. Price, respt., v. Stephen Brown et al., exrs., applts. Decided Oct. 15, 1886. When it appears from the testimony of a witness other than plaintiff in an action to recover the value of certain bonds from the executors of a person to whom it is claimed plaintiff gave such bonds for safe keeping, that on a certain day plaintiff delivered to testator an envelope apparently containing bonds, it is competent for plaintiff to testify that previous to that time she had in her possession a certain number of bonds of a specified value contained in said envelope and that she fendant's testator for safe keeping. It appeared upon the trial that never had them in her possession there- previous to March 25, 1865, plaintiff owned and had in her possession $12.000 of U. S. bonds; that on that day she discovered a theft of $500 of said bonds; that she sent for defendants' testator, to whom she was engaged to be married, who came to her house with a policeman and took the remainder of said bonds into his possession, and plaintiff never had possession of them again. The fact of defendants' testator coming to after. That is an independent fact to which plaintiff is not precluded from testifying by § 829, Code Civ. Pro. When on a trial before a jury evidence is erroneously admitted in violation of § 829, Code Civ. Pro.,but is subsequently stricken out by the court, the judgment will not be reversed on account of such error, if the improper evidence was merely cumulative and the fact sought to be proved was fully established by competent evidence. In an action of the nature above mentioned plaintiff is not entitled to recover interest unless defendant's testator had mingled plaintiff's property with his own, and the amount of interest upon the bonds is plaintiff's house, and the delivery limited to the value of the coupons up to the time of their payment. to him by plaintiff of an envelope containing bonds was proved by When during the trial of an action plain- the policeman who was present at tiff is allowed to amend his complaint, and an amended complaint is duly served and answered, and the judgment rendered upon such trial is subsequently reversed upon appeal, and a new trial ordered, the order granting such new trial does not obliterate the amendment made during the course of the first, and the second trial will proceed upon the amended pleadings. When property is delivered to a person for safe keeping the statute of limitations does not begin to run against an action to recover such property until a demand for its return has been made. This action was brought to recover the proceeds of $11,500 in value of U. S. bonds alleged to have been given by plaintiff to defendant's testator for safe keep ing, and subsequently sold by him and a portion of the proceeds loaned and the rest retained in his hands, and never accounted for by him or defendants; and also for the recovery of the proceeds of $500 in value of certain bank stock belonging to plaintiff likewise alleged to have been given to de the time. Plaintiff, however, was allowed to prove, against the objection of defendants, that, previous to the time defendants' testator came to the house, she had in her possession $11,500 of U. S. bonds contained in said envelope, and that she never had them in her possession thereafter. There was no other evidence showing that defendants' testator received from plaintiff the amount of bonds specified in the complaint. Plaintiff also testified to the fact of defendants' testator coming to her house on the 25th of March, 1865, but this evidence was subsequently stricken out by the court on plaintiff's motion. Hughes & Northup, for applts. John L. Hill and George H. Starr, for respt. Held, That it was not incompetent under § 829 of the Code Civ. Pro. for plaintiff to testify, as an independent fact, that she had, at the time stated, in her possession the bonds in question, 33 Hun, 69, and that there was, therefore, sufficient legal evidence in the case to support the verdict for plaintiff. That the other testimony given by plaintiff was incompetent under said section of the Code, but, while ordinarily it would be reprehensible practice to permit a party to give evidence before a jury that was incompetent under the statute and then deprive the opposite party of an exception by striking it out of the record, inasmuch as that part of plaintiff's evidence in this case was cumulative merely, and the fact of testator's appearance at her house was fully established by the testimony of the policeman, there was no harm done by the reception of the testimony and its final rejection. The case had previously been tried before a referee, and upon that trial plaintiff was allowed to amend her complaint, which she did, and the amended complaint was duly served upon defendants, who answered the same. The judgment recovered upon said trial was reversed upon appeal and a new trial ordered, and it was claimed by defendants that this trial should have proceeded upon the original and not the amended complaint. It was further claimed by them that plaintiff was not entitled to recover interest and that her claim was barred by the statute of limitations. Held, That the jury was instructed on the matter of interest that no interest could be recovered unless the testator had mingled plaintiff's property with his own, and that the amount of the interest upon the bonds was limited to the value of the coupons up to the time of their payment. That this was a correct statement of the rule, and defendants could not have been prejudiced thereby. That the order granting the new trial did not obliterate from the record all the amendments which had been properly ordered during the previous stages of the case, and the trial properly proceeded upon the amended complaint. That the only issue in the case was whether or not a trust existed on the part of the testator to keep plaintiff's property safely, and, such being the case, the statute of limitations did not begin to run against the action until aftera demand was made, and that the time necessary to bar the action had not elapsed since the making of such demand. 98 N. Y., 487. Judgment affirmed. Opinion by Macomber, J.; Brady and Daniels, JJ., concur. MASTER AND SERVANT. N. Y. COURT OF APPEALS. Shaw, admrx., respt., v. Sheldon et al., applts. Decided Nov. 23, 1886. Plaintiff's intestate, a skilled workman, entered and remained in defendants' service with full knowledge and appreciation of the risk and danger of leaving the roller couplings uncovered. He died from injuries received in the couplings. Held, that he took upon himself the risk of injury from plaintiff's omission. Testimony was given that the superintendent asked deceased if he wanted the couplings covered and that he declined it. Held, That the jury should have been charged that, if true, that fact proved conclusively that deceased took the risk and freed defendants from responsibility. Reversing S. C., 21 W. Dig., 489. This action was brought to recover damages for the death of plaintiff's intestate, which was alleged to have been caused by defendants' negligence. It appeared that defendants were engaged in operating a rolling-mill and that the deceased was one of their employees and died from injuries received in the couplings of the rollers in their mill, and it was claimed that the injuries were occasioned by the negligence of defendants in failing to provide proper and suitable coverings for said couplings. The facts showed that the deceased entered upon the service and remained in it with a full knowledge and appreciation of the risk and danger resulting from leaving the couplings uncovered. This fact was entirely obvious and the deceased was a skilled workman, a foreman of the rollers, accustomed to the machinery and the service, and having capacity and ability to fully appreciate the consequences of leaving the couplings uncovered. Richard C. Steel and C. D. Adams, for applts. Louis Marshall, for respt. Held, That the deceased must be held to have taken upon himself the risk of injury from defendants' omission. The trial judge charged the jury that if they believed the evidence of defendants' superintendent that he asked the deceased if he wanted the couplings covered and the latter declined the precaution, it was a circumstance for them to consider upon the question of conse quent damages by the deceased. Held, Error; that if the fact sworn to was true it proved conclusively that the deceased took upon himself the risks of the omission and freed the employer from responsibility; that the jury should have been so charged. Judgment of General Term, affirming judgment on verdict for plaintiff, reversed, and new trial granted. Per curiam opinion. All concur, except Ruger, Ch. J., Danforth and Finch, JJ., dissenting. NEGLIGENCE. DAMAGES. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Henry M. Birkett, admr., respt., v. The Knickerbocker Ice Co., applt. Decided July, 1886. A person driving a vehicle through the streets of a city is bound to anticipate that pedestrians may be at the crossings and to take reasonable care not to injure them. In order to impute the negligence of its parents to a child who is non sui juris the child itself must be guilty of what would be negligence in an older person. It is not negligence, as a matter of law, for a mother to allow a child four and onehalf years old to go out to play on the sidewalk in the city of Brooklyn on a summer afternoon in company with a brother six years of age. Whether or not such an act is negligence is a question for the jury. The measure of the damages arising from |