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to have been known to her. It is insisted on the part of the defendant that it was not obvious, and it was therefore for the jury to say whether the leaning upon the railing for the purpose of looking into the yard or under the veranda was within the scope of that reasonable care which the plaintiff's intestate owed to the defendant in the use of this balcony, as a condition of the plaintiff's recovery. In other words, the defendant was maintaining a railing around this balcony, and the question presented to the jury was whether the plaintiff's intestate, in approaching the railing and leaning upon it as she did (she being a woman of about 110 pounds weight), exercised that degree of care which the obvious circumstances demanded-whether she had a right to rely upon the safety of the structure to the extent that she obviously did in leaning out over it. The jury has found that she was exercising that reasonable degree of care, and, in the light of common experience as to what men and women do under similar circumstances, and what they might fairly be expected to do, we see no reason for holding that the jury is not justified in its verdict.

The judgment and order appealed from should be affirmed. with costs. All concur.


(Supreme Court, Appellate Division, First Department. April 15, 1904.) 1. STREET RAILROADS-PERSON ON TRACK-DOCTRINE OF DISCOVERED PERIL, APPLICABILITY.

The doctrine of discovered peril does not apply to the case of a boy, who, in negligently attempting to cross a street car track, falls in front of an approaching car 50 feet distant, and is run over through the motorman's negligent failure to stop, though the car might have been stopped in 10 feet Appeal from Trial Term, New York County.

Action by Grace McDonald, as administratrix of John F. McDonald, deceased, against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from a denial of a new trial, defendant appeals. Reversed.


Charles F. Brown, for appellant.
Edmund L. Mooney, for respondent.

O'BRIEN, J. This is an action to recover for injuries which caused the death of plaintiff's intestate, alleged to have occurred through the negligence of defendant's motorman in charge of a Broadway north-bound car at Thirty-Ninth street on December 15, 1895. The facts have been presented and considered in this court upon two former occasions (46 App. Div. 143, 61 N. Y. Supp. 817; 75 App. Div. 559, 78 N. Y. Supp. 284), and passed upon by the Court of Appeals (167 N. Y. 66, 60 N. E. 282); a new trial being ordered on the first appeal on the ground that the question of conand 121 New York State Reporter tributory negligence was one to be determined by the jury, and on the second appeal on the ground of error in the charge.

The question of fact involved is whether the boy, who, at the time of the accident, was 12 years of age, ran immediately in front of the car, after passing behind a south-bound car, as claimed by defendant, or whether he ran upon the track and fell while the car was some 50 feet away, and was run over owing to defendant's negligence in the operation of the car. In support of the latter theory there was testimony that the car could be stopped in 10 feet.

The court, at defendant's request, charged: “Reasonable care required of the deceased boy a vigilant use of his senses. He was bound to use his eyes and ears in attempting to cross the defendant's tracks, so as to avoid collisions with cable cars; and if there was an omission of this care or duty on the part of the deceased boy, which contributed to the accident, such omission was contributory negligence upon his part, and the jury should find a verdict for the defendant."

To this charge the plaintiff's counsel excepted, and said:

"In that connection, I ask your honor to charge that, even if the jury believe that the boy carelessly or negligently ran or walked on the track, still such carelessness or negligence would not entitle the plaintiff to recover, unless it was the proximate cause of the injury.”

The court so charged, and the defendant excepted. The jury returned a verdict in plaintiff's favor, and from the judgment thus entered the defendant appeals.

The appellant insists that this charge was erroneous, because it eliminated from the case the doctrine of contributory negligence; that the case did not present the facts necessary to bring it within the exception to the general rule, there being no new act of negligence shown on the part of the defendant that was the proximate cause of the accident. Csatlos v. Met. St. Ry. Co., 70 App. Div. 606, 75 N. Y. Supp. 583; Bortz v. Dry Dock, 78 App. Div. 386, 79 N. Y. Supp. 1046. In the latter case cited it was said:

“The modification of the charge was an application to the concrete case of a rule with respect to contributory negligence which applies only in cases in which some new circumstance is introduced or new relation established, apart from the original act or omission constituting negligence; such new circumistance being the proximate cause of the injury sustained.”

The respondent contends that the evidence herein that the boy fell upon the track some 40 or 50 feet ahead of the car, and was struck by the car, although it might have been stopped within 10 feet, permits the inference that the proximate cause was the negligence so to stop, and that a new circumstance was thus presented, and hence the charge was applicable. Both sides thus agree that the request charged was a statement of the rule of law applicable to those exceptional cases wherein it appears that, after the initial danger resulting from the negligence of one or both of the parties, there was a second negligent act, which was the proximate cause of the injuries. As said by this court in the Csatlos Case, supra, a good illustration of the application of the rule of law referred to was in the Weitzman Case (Weitzman v. Nassau R. R. Co., 33 App. Div. 585, 53 N. Y. Supp. 905), where a child fell upon a fender of a car, and after this culmination of the negligent act which resulted in his

being there assuming that it was the result of a negligent act on his part he was carried along for a distance of from 32 to 150 feet; and it was held that from the moment of his falling into that position “a new relation existed between the parties, and any act or omission on the part of the defendant amounting to a lack of the care demanded by the situation, and resulting in the death of plaintiff's intestate, is sufficient to charge the company with negligence." We do not think that the evidence herein, taking every inference which the respondent contends may be drawn therefrom, presents a case calling for the application of the rule of law embodied in the request charged. The fact that the boy fell upon the track 40 or 50 feet ahead of the car did not eliminate from the case the doctrine of contributory negligence. Whether the car was a few feet or 50 feet away when the boy fell, the question of his contributory negligence was one of fact for the jury. The evidence here shows that the presence of the boy on the track, and the operation thereafter of the car until the boy was struck, did not present two situations entirely distinct, and based on two distinct acts of negligence on the part of the inotorman, but constituted a single situation or condition, resulting in the accident. There was no new act of negligence after such a situation existed which was the proximate cause of the accident. The charge, therefore, which embodied a rule of law which was applicable only to a case like Weitzman v. Nassau El. R. R. Co., supra, was erroneous, and there must therefore be a new trial; and the judgment and order accordingly are reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

GILLESPIE V. MONTGOMERY et al. (Supreme Court, Appellate Division, Second Department. April 15, 1904.) 1. MASTER AND SERVANT-ACTION FOR WAGES-SUFFICIENCY OF COMPLAINT.

Plaintiff alleged that defendants were copartners, and agreed to pay him, for services to the copartnership, an equal share of the profits; that he superintended their business and acted for them for a certain period, and that his share of the profits for such period was a certain sum, or more, which was unpaid; and that defendant failed or refused to account

therefor. Held, that the complaint stated a cause of action. 2. SAME-EQUITABLE RELIEF-INSUFFICIENCY OF COMPLAINT-DEMURRER FOR


In an equitable action by the manager of a brokerage business to re cover his agreed compensation, of a share of the profits, he alleged that an accounting was necessary to determine the amount due him, and prayed judgment therefor and for a receiver. He also prayed that de. fendants might be compelled to pay him a certain sum, to which he had alleged his share of the profits would have at least amounted, or such sum as might be due him. This was followed by a prayer for general relief. The complaint stated a good cause of action at law, though the averments seeking equitable relief were insufficient. Held, that it was not

demurrable for want of facts. 3. SAME-PLAINTIFF'S PERFORMANCE OF CONTRACT.

In an action by the manager of a brokerage business to recover his agreed compensation, of a share of the profits, he alleged that defendant's promise to give him a share of the profits was in consideration of his giving his services, and allowing his name to be used in raising a certain

and 121 New York State Reporter sum for the purposes of the business. He alleged performance of the services, but did not allege that he had allowed his name to be used in raising the money in question. Held, that the complaint was not de murrable for want of facts, as it could not be assumed that the contract was so entire that plaintiff's failure to permit the use of his name de

feated his right to any share of the profits. Appeal from Special Term.

Action by Frederick J. Gillespie against George L. Montgomery and another. From an interlocutory judgment overruling a demurrer, defendants appeal. Affirmed.

See 86 N. Y. Supp. 1135.


Edward H. M. Roehr, for appellants.
William Hughes, for respondent.

JENKS, J. The defendants demur that the complaint does not state facts sufficient to constitute a cause of action. The position of the learned counsel for the appellants is that the plaintiff seeks equitable relief to which he is not entitled, and that a complaint in an action at law is made to the equitable side of the court.

In Leggett v. Stevens, 77 App. Div. 612, 79 N. Y. Supp. 289, it is held that, if the complaint states a cause of action of which some court has cognizance, whether or not the equity side of the court has jurisdiction or power to grant the relief prayed for is technically not raised by such a demurrer, but that the demurrant must challenge the complaint upon the second ground specified in section 488 of the Code of Civil Procedure. In Hotel Register Co. v. Osborne, 84 App. Div. 307, 82 N. Y. Supp. 609, the court states the general rule that, if the facts show that the plaintiff is entitled either to equitable or to legal relief, the complaint is not demurrable upon the ground stated in the demurrer; citing Middleton v. Ames, 37 App. Div. 510, 57 N. Y. Supp. 443, and Lester v. Seilliere, 50 App. Div. 239, 63 N. Y. Supp. 748. Abbey v. Wheeler, 170 N. Y. 122, 127, 62 N. E. 1074, holds that, if the facts alleged in the complaint justify legal or equitable recovery, a demurrer upon the ground stated in this case is not well interposed, although the pleading may be open to correction by motion or otherwise. We must first ascertain whether the facts alleged, if taken as facts

, state any cause of action. Sage v. Culver, 147 N. Y. 241, 41 N. E. 513. The plaintiff complains that the defendants were copartners in business as brokers and money lenders, who agreed to pay to the plaintiff, for services to the copartnership, an equal share of their profits. The plaintiff superintended their business and acted for them from August 15, 1902, until February 21, 1903. Plaintiff's share of such copartnership profits for such period is $5,000 or more, which is unpaid. The defendants have failed or refused to account therefor. I think that the facts stated establish plaintiff's right to some form of legal relief.

But the point of the learned counsel for the appellants is that the plaintiff also pleads that an accounting is necessary to determine the


true amount due and payable, and that he prays judgment for the accounting and for a receiver. But the plaintiff also prays “that the defendants may be compelled to pay the said sum of $5,000, or such sum as may be due him as his share of the profits aforesaid, and that the plaintiff may have such other and further relief as may be just and equitable." The authorities cited by the learned counsel for the appellant may be discriminated. Black v. Vanderbilt, 70 App. Div. 16, 74 N. Y. Supp. 1095, is principally relied upon. In that case the court states that no legal redress was demanded, and that it consequently appears that the complaint was framed for equitable relief alone. This statement is borne out by the prayer of the pleader in that case. The court cites Swart v. Boughton, 35 Hun, 287, and quotes therefrom:

“Where all of the allegations of the complaint are made for the purpose of procuring equitable relief, and where equitable relief alone is asked for, the complaint cannot be sustained for legal redress, where no answer has been interposed."

The court also cites Cody v. First Nat. Bank, 63 App. Div. 199, 71 N. Y. Supp. 277. This case presents the converse of Swart's Case, supra, for the sole demand was for the specific relief of money damages, and the complaint was framed directly for such prayer. And so the decision is based upon the ground that only legal redress was demanded. The appellant also cites Kelly v. Downing, 42 N. Y. 71. In that case the court, construing section 275 of the old Code (Code of Procedure), say:

"It was not the object of this section to aid a plaintiff who had insuficiently stated the cause of action upon which he seeks judgment, but simply to aid him if his complaint is adequate for the judgment he asks, except his prayer for relief. In this case the complaint states but one cause of action, and that one in equity.

There was nothing in the whole framework of the complaint, nor in the prayer for relief, that would lead Bailey to infer that a judgment would or could be taken against him upon the note."

So far as O'Brien v. Fitzgerald, 143 N. Y. 377, 38 N. E. 371, is pertinent, it but holds that where the facts pleaded are ambiguous, so as to support legal action or equitable, the relief asked is the necessary, because the sole solution of the ambiguity. In Bateman v. Straus, 86 App. Div. 540, 83 N. Y. Supp. 785, the question before this court was whether, upon the facts pleaded, an action for specific performance of a contract of chattel property would lie; and we held that inasmuch as the plaintiff did not plead, directly or by inference, that he had no adequate remedy at law, the action would not lie. The averments that seek equitable relief may be regarded as surplusage. Hackett v. Equitable Life Assurance Soc., 50 App. Div. 266, 272, 63 N. Y. Supp. 1092. Without them, there is a good cause of action at law sufficiently well stated to prevail against this demurrer, and there is a specific demand in the prayer for relief for money, namely, $5,000. If, in addition thereto, the plaintiff prays for other specific or general relief to which he is not entitled, he is not therefore to be dismissed the court. Wetmore v. Porter, 92 N. Y. 76; Hotel Register Co. v. Osborne, supra; Mitchell v. Thorne, 134 N. Y. 536, 32 N. E. 10, 30 Am. St. Rep. 699.

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