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remain constant and unchanged throughout the whole term of the defendant's membership. It bore no resemblance to the "mortuary" assessment which was required to be levied on the occasion of the death of a member, to provide means to pay his certificate. The payment in question was required only of members of “Class B," which seems to have been an addendum, rather imperfectly tacked onto the original scheme of the organization. The provision for it is found in article 20 of the by-laws, and is as follows: "Sec. 4. Assessments will be levied on the first working day of February, April, June, August, October, and December of each year; and will fall due on or before the first of the month following, and based on the following;" and here follows a table of "rates," from which it appeared that the regular bimonthly payment required of the defendant (determined by his age and the "number of shares" held by him) was $5.60. Here, it is apparent, was no "assessment” to be "levied” on the bimonthly dates above mentioned, but that, by whatever process the amount was arrived at, it was done, once for all, when the by-law and the accompanying table were adopted.

Looking further for evidence of a contract to pay on the part of the member we find that section 1, of article 15 of the by-laws prescribes the form and contents of the certificate of membership, and, among other things, that "it shall contain the specified terms of the agreement or contract between the association and the member to whom it is issued;" and, turning to the certificate itself issued to the defendant, we find its first clause to be as follows: "For and in consideration of the representations made to it in the application for the certificate, and the sum of twenty-five dollars to it in hand paid, and the further sum of five dollars and sixty cents to be contributed bimonthly,

do hereby constitute George G. Bown

a member of this association, in class B.” Here was, unquestionably, sufficient evidence of a contract obligation on the part of the defendant to pay the bimonthly $5.60,whether it be called an assessment or a due,—to bring the case within the doctrine of the case of Ross-Lewin.

The further question is raised by the submission, whether the notice given to the defendant of the time and amount of the pay. ment in question, was sufficient under the requirements of the statute, (Act 1883, supra.) We think that what we have already said in respect to the character of the payment is an answer to the objection to the notice. The provision of the statute referred to is as follows:

"Each notice of assessment made by any corporation, or society, transacting the business of life or casualty insurance or boih, upon the co-operative or assessment plan, made upon its members, or any of them, shall truly state the cause and purpose of such assessment. And shall, also, state the amount paid on the last death claim paid; the name of the deceased member, and the maximum face value of the certificate or policy, and if not paid in full, the reason therefor.”

The notice given to the defendant served the useful purpose of reminding him of the nature of the payment required, the amount to be paid, the day of payment, and the consequences of his failure

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to pay. It did not conform to all the requirements of the statute, and we think it need not, for the reason that the payment called for was not an assessment within the meaning of the statute, and to give it the name of an assessment did not bring it within the statutory provisions. It was, so far as we can see, to all intents and purposes a bimonthly premium, subject to no change of amount or date of payment during the continuance of the membership, un. affected by death losses or other vicissitudes of the business, and which the defendant had contracted to pay in consideration of the issuance of the certificate to him. We think the case was within the doctrine of McDonald v. Ross-Lewin, supra, in respect to the obligation to pay, and that it is not within the purview of the statute in respect to notice of assessments; and therefore that judgment should be given to the plaintiff for the amount of the so-called assessment, with interest from September 1, 1891, but without costs, since costs are expressly disclaimed by both parties to the submission. So ordered. All concur.

(75 Hun, 402.)

In re FRYE'S ESTATE. (Supreme Court, General Term, Fifth Department. January 18, 1894.) EXECUTORS AND ADMINISTRATORS-CREDITOR OF DECEDENT.

On an issue as to whether A. was a creditor of decedent, so as to entitle him to letters of administration, it appeared that decedent had organized a corporation, of which he was made treasurer, and plaintiff subscribed to five shares of the stock. Afterwards, plaintiff advanced money to decedent, and took from him a certificate for additional stock, and decedent agreed to pay interest on assessments until the company should begin business. Held, that the effect of the transaction was a purchase of stock, and not a loan to decedent. Appeal from surrogate's court, Monroe county.

Letters of administration granted to Dean Atwood, as a creditor of the estate of Edwin E. Frye, deceased, were revoked by the surrogate, on which Atwood appeals. Affirmed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
Geo. A. Carnahan, for appellant.
Horace McGuire, for respondent.

DWIGHT, P. J. Letters of administration were granted to the appellant, on his own petition, as a creditor of the estate. They were revoked by the order here appealed from, on the ground that he was not in fact such creditor. The facts established by the evidence were, briefly, as follows: The decedent, Frye, being engaged in the business of buying and selling grain at Rochester, procured the organization of an incorporated company to purchase the business from him. The organization was in all respects in accordance with law. The proper certificate of incorporation was duly executed and filed, which showed that not less than 10 per cent. of the capital stock was subscribed, and that 10 per cent. of the amount subscribed had been paid in cash to the directors, and officers were duly elected,

of whom Frye was the treasurer; but the company never became qualified to do business, because one-half of the capital stock was never subscribed. The appellant was an original subscriber for five shares of the stock at the price fixed, of $50 a share, and paid 10 per cent. ($25) thereon at the time of the organization. Very few, if any, subscriptions to the stock were ever made, beyond the 10 per cent. mentioned in the certificate; and the business was never transferred to the company, but, pending the expected transfer, was carried on as before, by Frye, individually. Frye came to be in want of money for the business, and, upon that fact becoming known to Atwood, the latter paid him $975, and took from him a certificate of 20 shares of full-paid stock of the company, of the par value of $1,000, which included the 5 shares, originally subscribed by him, on which he had paid $25 at the time of the organization. Atwood also received from Frye the promise to pay him the interest on the $975 until the business should be transferred to the company, it being understood between them that Frye would make use of the money in his own business until that time. The certificate given to Atwood bore the names of the president and treasurer of the company, it having been one of a number which were signed in blank by the president for the convenience of the treasurer, in case of the sale of stock.

This was the transaction between Frye and Atwood, out of which, if at all, arose the relation of debtor and creditor between them. We think it reasonably clear that the relation was not created thereby. The transaction was no doubt irregular, in some respects, but its character was not obscure. It was clearly the intention of Atwood to increase his holding of the stock of the company from 5 shares to 20 shares, and to pay for the whole of it in full. This it was entirely competent for him to do, and this was undoubtedly the effect of the transaction. He testifies that he dealt with Frye as the treasurer of the company, and paid him the mouey as such; and the certificate which he received, if not, in all respects, reg. ularly issued to him, was good, at least as a voucher, and entitled him to a certificate for 20 shares of full-paid stock. The money, therefore, paid by him, belonged to the company, and he had no claim to recover it from Frye. It was not paid to him under any mistake of fact, and there is no ground for imputing to him any fraud in the transaction, as between himself and Atwood. All the facts of the case were equally known to both parties, and it was the intention of both that Frye should use the money in the business until the business should be transferred to the company. The facts of the case are, we think, equally fatal to the contention of the appellant that he was the creditor of the decedent in respect to the interest which the latter agreed to pay him for the use of the money pending the transfer of the business to the company. Such an agreement was clearly an unlawful one, as being, in effect, if not in intention, a fraud upon the company, to which the money belonged; and, the parties thereto being in pari delictu, neither will be heard to assert a claim against the other based upon that agreement. The views here expressed are based, we conceive, upon ele

mentary principles, and, if correct, they result in the denial to the appellant of the relation of creditor, to any extent, of the decedent, and consequently in the affirmance of the order revoking the letters of administration which were issued to him in that capacity. Decree appealed from affirmed, with costs to the respondent. All concur.

(75 Hun, 209.)


(Supreme Court, General Term, Fifth Department. January 18, 1894.) 1. MASTER AND SERVANT-FAILURE OF MASTER TO PRESCRIBE RULES.

Failure of master to prescribe rules for the conduct of his servants does not render him liable for injury to a servant where the injury did not

result from the act or negligence of a fellow servant. 2. SAME-DANGEROUS PREMISES.

While a servant, in the discharge of his duty, was opening a tank containing melted paraffine, he was burned by an explosion of gas in the tank, which was ignited by a lantern carried by him. Held, that the master was not liable on the ground that he failed to light the premises sufficiently, where it appeared that no light was necessary except to show the way to the tank, and that the servant could have left his

lantern at a safe distance. 8. SAME-INSTRUCTIONS OF SERVANTS.

Where a servant is injured after he has had practical experience for a year and a half in performance of the same duties as those in which he was engaged at the time of the accident, the master is not liable for fail.

ure to instruct the servant in such duties. 4. SAME-DANGERS NOT ANTICIPATED.

The fact that a servant had habitually opened tanks containing melted paraffine, with a lighted lantern in his hand, for a year and a half before an explosion of gas in the tank was caused by the lantern, tends to show that such explosion was not a danger which could have been reasonably apprehended by the master.

Appeal from circuit court, Monroe county.

Action by William C. Benfield against the Vacuum Oil Company to recover damages for personal injuries. From an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Reversed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
Wm. N. Cogswell, for appellant.
Chas. Van Voorhis, for respondent.

DWIGHT, P. J. The plaintiff had been in the defendant's employ for a year and a half, engaged in the same duties and exposed to the same dangers as at the time when the accident occurred from which the injury was received of which he zow complains. The accident was the explosion of gas in a tank in which paraffine was being heated, and it was caused by the act of the plaintiff himself in raising the lid of the tank with a lighted lantern in his hand, or hanging on his arm. The gas escaping from the open tank communicated with the flame of the lantern, and the explosion followed, in which the plaintiff was burned and otherwise injured. The paraffine tanks or boilers were outside of the building, and were

buried in the ground, except the openings through which they were filled and emptied, and to which the covers were fitted. The tanks were heated by steam, introduced by means of coils of pipe, from which it was the duty of the engineer to shut off the steam when sufficiently heated; and, at the proper time after that, more of the cold and solid paraffine was added, and the heat renewed. The cold paraffine was brought from the presses inside of the building in a hand cart, and thrown or dumped into the tank, and this was the duty, among others, of the plaintiff. The operation involved the danger of being splashed with the already heated contents of the tank, and to obviate this the men were in the habit of lifting the cover a suitable time beforehand in order to cool down the contents before filling. It was for this purpose only that the plaintiff went to the tank at the time of the explosion. He had no need of his lantern, except to light his way to the tank. He had no occasion to inspect the contents or condition of the tank in any respect, but only to raise the lid; and for this purpose the lantern would have served him as well set down or hung up at a safe distance as carried to the very mouth of the tank. The failure to observe this precaution was the sole cause of the accident, and the only ques. tion for the jury was, "Whose fault was it?" or "Was it solely the fault of the defendant ?" For if it was even partly the fault of the plaintiff there can be no recovery in this action. The plaintiff seeks to charge the fault to the defendant on the grounds (1) that it failed to give the plaintiff the necessary instruction as to the explosive character of the gases evolved from petroleum in the various processes of its refinement and manufacture; (2) that it failed to provide proper lighting for the tank; (3) that it failed to provide proper rules for the government of its employes.

The second and third of these grounds need not occupy very much of our time. It is plain that the doctrine of the liability of the employer for failure to prescribe rules for the conduct of his servants has application only to charge the employer with responsibility to one servant for the act or neglect of a fellow servant in the same employment. In this case there was only one fellow servant whose act or neglect seems to have borne any possible relation to the accident in question, and the plaintiff does not seek to charge the defendant with responsibility for his act or neglect. That servant was the engineer, whose duty to turn off the steam from the tank at the proper time was well understood by him, but who on this particular evening intrusted that duty to the plaintiff himself; so that, if the steam was not shut off in time, or the tank was opened too soon after the steam was shut off, the plaintiff has only himself to blame.

In respect to the lighting of the tanks it was in evidence that there were some electric lights in the yard,—though the plaintiff testified that they were not so situated that he could see at the tank which exploded, and that a new electric light had been put up, within a few days, on the outside of the building, near the tank, which could have been lighted by turning on the electricity by a switch inside; but the plaintiff testified that he did not know of its—2

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