of the answer, which was filed at the precise time directed by the court when the default was opened. In behalf of the respondent it is argued that because in section 145 (page 1535) of the Municipal Court act it is provided that issue in certain cases must be joined on the return day of the summons, except as otherwise expressly prescribed in the statute, it should be held that issue was joined in this case when the defendant's default was taken on account of his mistake in regard to the borough in which the venue was laid, and hence. the defendant lost his right to apply for a jury trial because he did not appear in the right place on that day. This is a forced construction, which ought not to be adopted if it can be avoided. The opening of the default left the parties to the action in exactly the same position which they occupied before the return day of the summons, except so far as the order opening the default imposed conditions upon the defendant. Those conditions did not include the requirement that he should relinquish his right to a trial by jury. Issue was not actually joined until the filing of the answer, and at that time defendant could not properly be deprived of the right to a jury trial, conferred upon him by section 231 of the Municipal Court act. The provisions of that section do not differ substantially from those of section 2990 of the Code of Civil Procedure in regard to jury trials in courts of justices of the peace. The language of that section is:

"At the time when an issue of fact is joined either party may demand a trial by jury, and unless so demanded at the joining of issue a jury trial is waived."

It has been held by the Appellate Division in the Fourth Department that there is nothing in the language quoted that limits the right to demand a trial by jury to the joining of issue upon the return day of the summons, although the demand would usually be limited to the issue joined on such return day, if the defendant then pleaded. Reese v. Baum, 83 App. Div. 550, 82 N. Y. Supp. 157. The defendant in the case at bar, however, did not plead on the first return day. He was relieved from the consequences of his default, and the order opening that default postponed the joinder of issue until the day when his answer was actually filed. By the action of the court below he has been deprived of a substantial right, which requires a reversal of the judgment.

Judgment reversed, and new trial ordered; costs to abide the event. All

concur.

CARLEY v. GAIR.

(Supreme Court, Appellate Division, Second Department. April 15, 1904.) 1. MASTER AND SERVANT-INJURIES TO SERVANT-DEFECTIVE MACHINERY-NON

SUIT.

Where an operator of a paper corrugating machine was injured by having his fingers crushed between the rollers, which started suddenly on his relieving them from the strain of paper which had become clogged in the machine, he was not entitled to recover on the ground that the machine

and 121 New York State Reporter

was defective in that it occasionally started when the power was cut off, in the absence of clear proof that he in fact did cut off the power before attempting to free the machine.

Appeal from Trial Term, Kings County.

Action by Eugene Carley against Robert Gair. From a judg ment in favor of defendant dismissing the complaint at the close of plaintiff's case, he appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.

Edward J. McCrossin, for appellant.

Frank Verner Johnson (E. Clyde Sherwood, on the brief), for respondent.

HIRSCHBERG, P. J. The plaintiff was injured while working for the defendant at a machine for corrugating paper. The machine was supplied with three rollers or cylinders between which the paper passed in the process of corrugation. Its operation was controlled by a lever, which, when pushed up, cut off the power. and started the machine again when pushed down. On the day of the accident the machine became clogged and stopped its motion owing to the fact that too much paper was put in, and while the plaintiff was engaged in clearing it of the excess of paper apparently without having first cut off the power, it started suddenly, drew his hand between the rollers, and inflicted the injury complained of. The plaintiff produced but one witness besides himself on the subject of the operation of the machine, and proved by him that the machine was out of order, so that it would occasionally start even when the power was cut off. If the plaintiff had made it clear that the power had been cut off at the time of the accident, this evidence would have required a submission of the case to the jury. But the plaintiff's evidence on this point, while somewhat obscure, tends strongly to the conclusion that he failed to stop the machine when it became clogged, and that it started up again when he relieved it from the tension of the paper, which he did with his fingers. His witness testified as follows:

"If the machine is clogged, it would stop itself if it was enough paper in there. In a stoppage of that kind the force of the belt could not overcome it because of the stoppage of the machine in that way because of the pressure between the cylinders. It would slip on the driving wheel of the machine and do nothing. It was apparent to anybody that the machine, as soon as you would relieve it, it would start itself with the belt. Just as soon as you remove that paper, then the machine would go, because it hadn't been shut off. Therefore, if it got clogged, it was the duty of the operator to cut here and throw the wheel-throw this off and stop the machine. That was apparent to anybody. So in the working of this machine, if the paper got clogged between the lower and the middle cylinder, or if it got clogged between the middle and the upper cylinder, to such an extent that it would stop the machine, it was the apparent duty of the operator immediately to turn off his power. Then he could work as long as he wanted to in pulling out this paper. There is nothing about that machine that you cannot see at once. You can see everything, you can see how the wheels go. This is about the simplest form of turning on and off power."

The plaintiff, in recounting the accident, testified as follows: "On this 29th day of May, 1900, we started in the morning, and I pulled the paper to the roll, and I let it go, and then the machine got nearly threequarter-the machine stopped there. The paper stopped up in the roll. Q. You say you had to stop the machine by pushing the lever up? A. Push her, yes, to stop. Q. Did it stop then? A. Yes, this time it stopped itself. When it stopped I looked in the machine-the rollers of the machine-when it stopped up with the paper, and I tried to pull that paper in the roll. One roll going that way, I took my hands to pull up the paper. I saw a lot of paper in the roll stopping her up. The rolls are going one this way, and one the other way. It stopped with a lot of paper, and I tried to clear that roll. Then the machine started itself and smashed my fingers off. The machine started itself. I did not pull the machine or do anything to make it start. After the machine started, as I have described it to the jury, my fingers were caught."

On cross-examination he testified:

"Q. After the paper came through between the first and second roller, did you stop the machine? A. I stopped that machine. Mr. McCrossin. I submit the witness talks very poor English at best, and should not be cut right off whenever he tries to answer. The Court: The witness has that difficulty and some allowance must be made. If you think the testimony is not correct, you may try and correct it on the redirect. We must do the best we can."

Notwithstanding this suggestion of the court no attempt was made by redirect examination or otherwise to furnish an explanation of what the answer was to be which the plaintiff's counsel himself apparently interrupted. The plaintiff was afterwards recalled by his counsel as a witness, but no attempt was made to prove by him that he turned the power off after the machine stopped itself and before he attempted to remove the paper which had clogged it. The plaintiff admitted full knowledge of the risk which would exist in an endeavor to clear the cylinders with his bare hands while the power was on, and his right to recover was dependent upon affirmative proof that he did not negligently incur that risk by a failure to throw off the power by the simple process of pushing up the lever which was supplied for that purpose. He was instructed in the use and operation of the machine before he went to work upon it alone, and he was told by his instructor, to quote his own testimony, "to take up the lever if in trouble, stop, push it up, and, if I want to start, pull down." He did, indeed, testify generally, "I stop that machine when I clean it;" but he not only gave a clear account of his actions when, on the occasion of the accident the machine stopped itself, by stating that when it stopped he tried to pull the clogging paper away, without the remotest suggestion of first shutting off the power, but throughout the entire trial no question was asked him on the subject of the shutting off of the power as a preliminary step to the attempt to clean it. As the proof was permitted to stand, the utmost that can be said of it is that it affords room for a bare inference that the accident was not due, in part at least, to the plaintiff's negligence. It was his duty, however, to have furnished clear and positive proof on that branch of the case, and his failure to do so justifies the disposition of the action made at the trial. The judgment should be affirmed.

Judgment affirmed, with costs. All concur.

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HOLMES v. ELY.

(Supreme Court, Appellate Division, Second Department. April 15, 1904.) 1. ACTIONS-THEORY-PARTIES-PLEADING.

Defendant executed a bond and mortgage to secure payment of the sum of $20,000, with interest, to plaintiff's assignor, who thereafter, at defendant's request, and on his express promise to pay the sum agreed on, executed a satisfaction of the mortgage. Defendant, in pursuance of his promise, paid at different times sums aggregating $9,000, after which the obligee in the bond assigned his claim to plaintiff, without, however, assigning the bond, and plaintiff brought suit to recover the balance due. Held, that a complaint alleging such facts should be regarded as stating a cause of action on defendant's promise to pay, and not on the bond, and was therefore not objectionable for plaintiff's failure to join the obligee as a party defendant.

Appeal from Special Term, Westchester County.

Action by George S. Holmes against Arthur H. Ely. From an interlocutory judgment overruling defendant's demurrer to the complaint, he appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.

Justus A. B. Cowles (Charles P. Cowles, on the brief), for appellant. Frederick Hulse, for respondent.

WOODWARD, J. The plaintiff brings this action as the assignee of a claim owned and held by the firm of Samuel I. Acken & Sons against the defendant, and the latter demurs to the complaint upon the grounds (1) "that it appears upon the face of the plaintiff's complaint herein that there is a defect of parties defendant, in that Samuel I. Acken is not made a party defendant herein"; and (2) "that it appears upon the face of the plaintiff's complaint herein that the complaint does not state facts sufficient to constitute a cause of action." This demurrer has been overruled at the Special Term, and the defendant appeals from the interlocutory judgment entered.

We are convinced, from an examination of the complaint, that it is not open to the objections urged, and that it does state facts sufficient to constitute a cause of action. The theory of the demurring defendant is that the action was brought upon a certain bond, mention of which is made in the first paragraph of the complaint, and that the person to whom this bond was made and delivered-it not having been assigned-should have been made a party defendant. We think this theory is not justified by the facts set forth in the complaint. The complaint alleges, on information and belief, that the defendant, for the purpose of securing the payment to one Samuel I. Acken of the sum of $20,000, with interest thereon, on or about the 23d day of December, 1898, executed and delivered to the said Acken a bond bearing date on that day, sealed with his seal, whereby he bound himself, his heirs, executors, and administrators, in the penalty of $40,000, and upon the condition that the same should be void if the said defendant should pay to the said Samuel I. Acken, his executors, administrators, or assigns, the sum of money first above mentioned; that the defendant, on the same day, and as collateral security, duly executed, acknowledged, and

delivered a mortgage upon certain premises; that thereafter the defendant requested the said Samuel I. Acken to cancel the lien of said. mortgage and satisfy the same, and that the said Samuel I. Acken, upon the request of the defendant, and upon the defendant's express promise to pay the said sum of $20,000, agreed to cancel the said mortgage, and that he did execute and deliver a satisfaction piece to the said defendant; that subsequently, and about the month of May, 1900, the defendant, in pursuance of his promise to pay the $20,000 above mentioned, did pay to the said Samuel I. Acken the sum of $7,000; and that subsequently the defendant paid various sums, aggregating $2,000, leaving a balance still due and owing to the said Samuel I. Acken of $11,000, with interest from the 1st day of March, 1901, no part of which has been paid, though frequently demanded. The complaint then sets forth an assignment of all the right, title, and interest of the said Samuel I. Acken in and to the said sum of $11,000, with interest, as aforesaid, to Samuel I. Acken, Joseph Acken, and Samuel I. Acken, Jr., composing the firm of Samuel I. Acken & Sons, and a subsequent transfer of the said claim by the above firm to the plaintiff.

If the plaintiff had alleged that on a given day the defendant owed Samuel I. Acken the sum of $20,000, and that the defendant had promised to pay the same; that he had paid from time to time sums aggregating $9,000, and that there was still due and unpaid $11,000, though often demanded; and that this claim had been duly assigned to the plaintiff there would be no doubt that a good cause of action was stated, and we fail to discover any fatal defect in the complaint because the pleader has set forth the facts out of which this claim arose. The action is not upon the original bond, but upon the express promise of the defendant to pay the amount, in consideration of the discharge of the mortgage which was given as collateral to such bond; and the complaint will be deemed to be sufficient whenever the requisite allegations can be fairly gathered from all the averments, though the statement of them may be argumentative, and the pleading deficient in logical order and in technical language. The pleading will be held to state all facts that can be implied from the allegations by reasonable and fair intendment, and facts so impliedly averred are traversable in the same manner as though directly stated. Sage v. Culver, 147 N. Y. 241, 245, 41 N. E. 513, and authorities there cited. We think the allegations of this complaint impliedly aver that Samuel I. Acken, upon the express promise of the defendant to pay this indebtedness, relinquished his mortgage security, and relied upon the new promise in place of the bond which had been given, and that both parties treated. the matter in this light; the defendant paying from time to time upon. this new promise until he had discharged $9,000 of the indebtedness. Mr. Acken could have sued upon this promise, independent of the bond; and the plaintiff, having title through Mr. Acken to the claim asserted in this action, has a right to recover the amount due, and there is no reason to anticipate that any one else will be able to recover upon the bond.

The interlocutory judgment should be affirmed, with costs, and the defendant should be permitted to answer upon the payment of costs. All concur.