Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, and JENKS, JJ. William C. Beecher, for appellant. H. Snowden Marshall, for respondent. GOODRICH, P. J. The complaint alleged that the defendant was the owner of a building on Fifteenth street, in the borough of Manhattan; that the plaintiff was a bricklayer working in the cellar in constructing a pier with the permission of the defendant; that above the place where the plaintiff was working was a covering of stone, which, through the defendant's negligence, was dangerous and unsafe, and known to defendant to be so; and that by reason of defendant's negligence the covering collapsed, and fell upon the plaintiff. At the opening of the trial the defendant moved to dismiss the complaint on the ground that it failed to state a cause of action, and the motion was denied. At the close of the plaintiff's case the defendant again moved to dismiss the complaint. The court granted the motion, and the plaintiff appeals. The evidence showed that the plaintiff was in the employ of John Batten, who had a contract for putting up the brickwork of the building. Batten was also doing as extra work the excavation of the cellar and digging out a place for the foundation of a wall to be built under an arch covering a vault which was under the sidewalk and outside of the building. The defendant gave Batten five dollars to pay for this last-mentioned work. At the time of the accident the foundation of the front wall had been started. The inner spring of the arch had been shored up on jackscrews, and there was a space between it and the area wall upon which the plaintiff was at work. The plaintiff was sent to work at the place where the accident happened, not by the defendant, but by Samuel Batten, foreman for his brother, John. He had been at work only a few minutes when the arch fell upon him. It appeared that some work had been done at the place in question by a colored man named Dan in taking down a wall, and there was some evidence tending to show that his work had weakened the support of the arch; but there is no evidence as to the relation of Dan to the defendant except that he had been working two or three days, and that the defendant saw him working there. The only other evidence is that of Samuel Batten, who testified: "Q. Did you see anybody removing the old wall, the vault? If so, who removed it? A. A colored man belonging to Mr. Pugh, I think. His name was Dan." This was not sufficient to raise a presumption that Dan was in the employment of the defendant. He might have been there in the employment of any other contractor on the building, or as an independent contractor, and it would not have been proper to permit the jury to speculate and find on such slight evidence that he was in the employ of the defendant. This position is emphasized by the fact that at the close of the evidence the attention of plaintiff's counsel was called to the fact that he had failed to show any connection between Mr. Pugh and the colored man, except by the statement of one witness that the colored man belonged to Mr. Pugh. There was no attempt to supply the and 100 New York State Reporter omission. But the main question in the case arises on the correctness of the ruling of the court on the motion to nonsuit, as follows: "The Court: How do you claim, Mr. Beecher, that you can recover upon your pleadings? You do not set forth that the relation of master and servant existed between the plaintiff and the defendant. (After argument, complaint dismissed. Exception.)" The appellant's counsel contends that this was error, and that the plaintiff could recover upon either of two theories: "(a) Because of the omis sion to perform a legal duty, and (b) because of the commission of a lawful act in a careless manner." This statement is taken, evidently, from the opinion in Nicholson v. Railway Co., 41 N. Y. 525, 529, where it was said: "Negligence consists in the commission of some lawful act in a careless manner, or in the omission to perform some legal duty to the injury of another. It is essential to a recovery in the latter case to establish that the defendant owed at that time some specific, clear, legal duty to the plaintiff or the party injured." The allegation of the complaint is that the plaintiff was working on the premises with the permission of the defendant. We must assume that the plaintiff, who was in the employ of Batten, an independent contractor doing work on the building, was lawfully there. The defendant knew of his presence in the service of his employer. What duty, then, did the defendant owe him? Certainly not the duty of securing him against injury from any negligence of his own employer. There is a clear distinction between active and passive negligence, between negligence of commission and negligence of omission. It is recognized in Larmore v. Iron Co., 101 N. Y. 391, 4 N. E. 752. It was also said in that case (page 394, 101 N. Y., page 754, 4 N. E.): "There is no negligence, in a legal sense, which can give a right of action, unless there is a violation of a legal duty to exercise care." The owner of real estate owes to a person employed on his premises in the service of an independent contractor a duty to commit no act of active negligence. I cannot find any authority which holds him liable for any passive negligence. The only evidence of any negligence on the part of the defendant which can be predicated in this case is that he did not furnish the plaintiff a safe place for his work. For any such omission the defendant is not liable to one in the service of a third person, where the evidence shows no act of affirmative negligence on the part of the owner. In Splittorf v. State, 108 N. Y. 205, 15 N. E. 322, it was held that the owner of premises owes no duty of active diligence to one going thereon either with or without license or permission, and merely for his own convenience; and is not liable for injuries resulting from an omission to keep a structure thereon in proper repair. In addition to this, the evidence shows the following facts: Batten had commenced laying some of the foundations for the wall of the building. He had built the retaining wall along the bank at the inner side of the arch. Dan had completed his work in placing two or three needles or jackscrews under the spring of the arch. Batten did not think the work secure, and directed Dan to get longer needles. These needles weighed 150 pounds each, and one of Batten's men, by his directions, assisted Dan to carry them to the place where they were set. It is simply incredible that Dan could have set these jackscrews in their place under the wall alone, and without assistance. The only inference from the evidence would seem to be that Dan was making the change, not under the directions of the defendant, but under those of Batten, the foreman, and for this act the defendant is not liable. Wyllie v. Palmer, 137 N. Y. 248, 33 N. E. 381, 19 L. R. A. 285; Higgins v. Telegraph Co., 156 N. Y. 75, 50 N. E. 500. Under these circumstances I think the nonsuit was properly granted, and that the judgment should be affirmed. Judgment and order affirmed, with costs. All concur. In re ROWLAND et al. (Supreme Court, Appellate Division, Second Department. November 23, 1900.) 1. ATTORNEY'S LIEN-SERVICE IN SURROGATE'S COURT. Under Code Civ. Proc. § 66, as amended by Laws 1899, c. 61, providing "that an attorney shall have a lien on his client's cause of action, claim, or counterclaim, which attaches to a verdict, report, decision, judgment, or final order in his client's favor, and the proceeds thereof," an attorney is entitled to a lien for services rendered in proceedings in the surrogate's court. 2. SAME-SERVICE TO EXECUTORS-LIEN OF MONEY OF ESTATE. Code Civ. Proc. § 66, as amended by Laws 1899, c. 61, provides that an attorney shall have a lien on his client's cause of action, claim, or counterclaim, which attaches to a verdict, report, decision, judgment, or final order in his client's favor, and the proceeds thereof. Held, that an attorney has no lien on the money of an estate deposited in a bank in the name of the testator, for a claim allowed the attorney by the surrogate's court for legal services rendered testator's executors. 8. SAME-ORDER TO DEPOSIT MONEY IN BANK-RIGHTS OF ATTORNEY. Where an attorney retained money in his hands, which had been deposited in a bank in testator's name, to secure payment for legal services rendered testator's executors, an order of the surrogate's court requiring him to deposit the money in a bank to the credit of the executors was not prejudicial to the rights of the attorney. 4. SAME-SURROGATE'S COURT-AUTHORITY. Code Civ. Proc. § 66, gives an attorney a lien on his client's cause of action and the proceeds thereof, and Laws 1899, c. 61, authorizes the court, on petition of the client or attorney, to determine and enforce such lien. Held that, where an attorney had retained the money of an estate for services rendered the executors, the surrogate's court, as ancillary to its power to determine the lien, had authority to enter an order requiring the attorney to deposit such money in a bank to the credit of the executors until final determination of his right to a lien. Appeal from surrogate's court, Kings county. In the matter of the judicial settlement of the account of Sidney L. Rowland and Robert P. Everett, as executors of Thomas R. Everett, deceased. From an order of the surrogate directing Robert J. Shadbolt to redeposit money in the bank, belonging to the estate, he appeals. Affirmed. Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ. 66 N.Y.S.-71 and 100 New York State Reporter Joseph A. Burr, for appellant. HIRSCHBERG, J. The appellant acted as attorney for the executors of the deceased, and claims to be entitled to compensation for his services. Among the assets of the estate was a deposit in the name of the testator in the Williamsburg Savings Bank, amounting to $1,344.30, which had come into the appellant's possession in the course of the preparation of the executors' accounts for the purpose of settlement. On the 8th of May, 1900, the appellant drew the money from the bank, and retained it in his possession under and by virtue of a claim to a lien thereon for his services. The money was drawn on an order signed by one of the executors, who accompanied the appellant to the bank, and who makes affidavit that the appellant stood close to the bank teller's window, and took possession of the money before he (the executor) was able to secure it. The order appealed from, as resettled, requires the appellant to deposit the money to the credit of the executors. The appellant has no lien upon the money. By the amendment to section 66 of the Code of Civil Procedure, effected by chapter 61 of the Laws of 1899, it may be assumed that proceedings in surrogate's courts were included within the provisions of the section. As so amended, the section provides that the attorney has a lien upon his client's cause of action, claim, or counterclaim, which attaches to a verdict, report, decision, judgment, or final order in his client's favor, and the proceeds thereof. The money in dispute is not within the description cited, nor does it proceed from any cause of action, claim, or counterclaim, or any resultant verdict, order, decision, etc. The section does not purport to give a general lien upon all moneys belonging to the client. Moreover, the amendment did not take effect until September 1, 1899, while the appellant's services appear to have been rendered in great part, if not wholly, before that date. The amendment is purely prospective in its operation. Goodrich v. McDonald, 112 N. Y. 157, 19 N. E. 649. Whether the appellant has or has not a lien upon the money, the order appealed from in no respect impairs his rights. It only provides for the safe custody of the estate of the deceased until his claim and rights, with those of others, can be judicially investigated and determined. This was the view taken by the former general term of this department in the very similar case of In re De Oraindi (Sup.) 9 N. Y. Supp. 873, and in which it was held that an order directing an attorney to deposit moneys which he had collected for an estate pending an inquiry into a claim by the attorney to hold them for services rendered to the estate is within the discretion of the surrogate. The order may also be upheld, irrespective of the validity of the appellant's claim of a lien, as ancillary to the power of the court to determine and enforce the lien under section 66 of the Code by virtue of the additional amendment made by chapter 61 of the Laws of 1899, to the effect that the court, upon the petition of the client or attorney, may determine and enforce the lien. This amendment relates to the remedy only, and would seem quite applicable to a case like this, where the attorney has possession of a fund belonging to the client considerably in excess of his claim for services, and asserts the right to retain it by virtue of a lien. The order should be affirmed. Order of the surrogate's court of Kings county affirmed, with $10 costs and disbursements. All concur. PEOPLE ex rel. COONEY v. WOOD, Sheriff. (Cayuga County Court. November 21, 1900.) CRIMINAL LAW-CERTIFICATE OF CONVICTION-SUFFICIENCY. A certificate of conviction showing petit larceny to be the offense of which defendant was convicted sufficiently complies with Code Cr. Proc. § 721, requiring that it should contain a "brief designation of the offense." Application by the people, on the relation of Eugene Cooney, against George S. Wood, sheriff, for discharge of relator on a writ of habeas corpus. Denied. J. C. McLaughlin, for relator. R. J. Burritt, for defendant. UNDERWOOD, J. It appears that relator is held in the jail of Cayuga county under a certificate of conviction of which the following is a copy: "Court of Special Sessions-County of Cayuga, Town of Cato. "The above-named Eugene Cooney having been brought before Oakley S. Dudley, Esq., a justice of the peace of the town of Cato, and forming a court of special sessions, charged with petit larceny, and the above-named Eugene Cooney having thereupon pleaded guilty, and upon such plea duly convicted, it is adjudged that he be imprisoned in the Cayuga county jail sixty days. "Dated at the said town the 6th day of November, 1900. "Oakley S. Dudley, Justice of the Peace." It is urged in his behalf that said certificate is fatally defective, in that there is not a sufficient description or designation of the offense to comply with the requirements of section 721 of the Code of Criminal Procedure. It is claimed that the "brief designation of the offense" which that section says the certificate should contain is something more than the mere statutory name of the crime, and that such salient facts relating to the particular offense should be stated as to clearly identify that offense, and furnish proof to protect the prisoner from the danger of a second prosecution for the same offense. In the case of In re Brown, 19 Misc. Rep. 692, 44 N. Y. Supp. 1096, Justice Hickok discharged a prisoner in habeas corpus proceeding because the certificate of conviction omitted to |