and 85 New York State Reporter.

ter, and which such persons have a right to assume is reasonably safe.

In the cases of Burke and Savage v. Ireland, 50 N. Y. Supp. 369, we have recently been called upon to examine, at some length, the duty of an owner who has contracted for the construction of a building to the workmen who may be engaged in such construction, and his liability in case of injury to them. We there held that the owner, having designed a safe and proper structure, and having employed a competent builder as contractor for the construction of the building, was not liable to the workmen of the contractor or his subcontractor for injury which might befall them from the defective condition of the building, occasioned by the negligence of the contractor. The fact that the deceased was not the employé of Eidlitz or Eidlitz's subcontractors, but was working under an independent contract between the respondent and the Bostedo Company, does not, in our opinion, change the rule. It is the common practice in the erection of buildings to make separate contracts for different parts of the work, one for the mason work, another for the carpenter work, and others for the heating apparatus, etc. It is generally necessary that the work of the sev eral contractors shall be carried on concurrently. In such case there is no assurance or guaranty on the part of the owner that each contractor shall be guilty of no negligence by which his own workmen or the workmen of other contractors shall be injured. So far as the owner is concerned, each contractor or his workman takes the risk of fault on the part of his fellow contractors, and his only recourse is against the party who, either personally or through his servants, has been guilty of fault. In this case it was apparent to the deceased that the building was in the course of construction, and he took the risk of the work. It is also sought to hold the respondent liable on account of the action of Perry, his cashier. When the door was brought to the building, the combination by which it could be locked or unlocked was made known by the safe men to Perry. After the door was in place Perry unlocked it, for the convenience of the workmen who were engaged in building the vault, but left it bolted. There is nothing to show that unlocking the safe tended in any way to cause the accident. It is conceded that the mere unlocking of the combination, as long as the bolts were not withdrawn, would have no tendency to render the position of the door less secure. It is urged that the jury were at liberty to discredit Perry's statement that the bolts were not withdrawn. Granting this. the mere discrediting of Perry would not supply the absence of affirmative testimony to the effect that the bolts were withdrawn. The burden of proof was on the plaintiff to establish affirmatively the negligence of the defendant, and in this she has failed. The order appealed from should be affirmed, with costs. cur; GOODRICH, P. J., in result.

All con

WILSON v. OLANO.

(Supreme Court, Appellate Division, Second Department. April 19, 1898.) 1. NEGLIGENCE-DANGEROUS PREMISES-LICENSEE.

Defendant, the proprietor of a storage warehouse, was engaged in delivering to the employés of a truckman, of whom plaintiff was one, goods which had been on storage, and in the course of their work directed them to carry back into the building, and place temporarily in a designated room, a picture for which there was not room on the load. In complying, plaintiff fell through an open doorway in the floor and was injured. Held, that plaintiff was not a mere licensee upon the premises.

2. SAME

REASONABLE CARE.

The duty of an occupant of business premises to one whom he invites to enter for some purpose of business is to use reasonable prudence and care to keep the property in such a condition as not to expose him unreasonably and unnecessarily to danger.

Appeal from Kings county court.

Action by John J. Wilson against John P. Olano. From a judg ment dismissing the complaint, plaintiff appeals. Reversed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

J. G. Tighe, for appellant.

George C. Case, for respondent.

GOODRICH, P. J. In August, 1896, the plaintiff and a man named Howe were working for one Sanders, a truckman, who was engaged in removing from the storage warehouse of the defendant a quantity of furniture belonging to one Thompson and stored in the warehouse. The men carried the furniture to the sidewalk and loaded a part of it upon the truck. Among the articles was a large picture for which there was not sufficient room on the truck. defendant was on the sidewalk, and told the men to carry the picture back into a room on the ground floor. Howe, one of the plaintiff's witnesses, testified as follows:

The

"Mr. Olano gave instructions to bring it around into the storehouse. He said, "Take it around and leave it in that rcom till you come back,'-the storeroom where the man fell. He came around and showed us, and went outside. He showed us to place it up against the wall in the room where the man fell down. Mr. Olano went in there with us. * * Yes; Mr. Olano showed us into the room where the picture was to go. We saw at that time no trapdoor open. He directed us to put the picture near the wall where the trapdoor was. * Yes; Mr. Wilson was with us when Mr. Olano pointed out where to put the picture. Re-direct by Mr. Tighe: * * * There was no opening in the floor at that time visilde. There was no trapdoor in sight."

Howe and the plaintiff carried the picture, Howe at the after end, and the plaintiff at the forward end, and walking backwards. The place pointed out by the defendant was at the further side of the room, which was quite light. The trapdoor spoken of was open, and either flat upon the floor or up against the wall. The opening was large enough to take in bureaus and large furniture. A flight of stairs led into the cellar below. As Howe and the plaintiff were carrying the picture, the plaintiff fell through the opening, and received serious injuries.

and 85 New York State Reporter.

At the close of the plaintiff's evidence the defendant moved for a dismissal of the complaint, on the ground that the plaintiff was a trespasser, or, at most, a mere licensee, and was on the premises without invitation, expressed or implied; that there was no relation between the plaintiff and defendant which required the exercise of any care, or, at the most, only ordinary and reasonable care, and that the defendant exercised such care; that the business of the defendant did not justify the plaintiff in entering his storeroom; and that such place was not a public place. The court said to the plaintiff's counsel: "I want to hear you on the motion to dismiss,-on the question of what more was he [the plaintiff] than a mere licensee; a licensee entering a building takes it exactly as he finds it;" and after argument stated that the plaintiff in entering the premises took the premises as he found them, and that the rule is that there is no liability on the part of the defendant to the plaintiff, and dismissed the complaint. The plaintiff excepted, and from the judgment entered on this dismissal appeals.

The first question to be considered is whether the plaintiff was a mere licensee. The defendant admitted in his answer that he was "the proprietor of the Grand Central Storage Warehouse," at which the accident occurred. He was engaged in the delivery of Thompson's furniture. It is immaterial whether or not there had been a delivery of the picture to the owner by the removal of the same from the storage warehouse, and its deposit upon the sidewalk into the custody of Sanders, the truckman, because subsequently thereto the defendant gave permission for its return to the warehouse, and instructions to the plaintiff and his fellows to return it to a particular place; and they were doing this when the accident occurred.

It cannot be said, under such an invitation, that his duty to the plaintiff had terminated. His liability, then, was precisely the same as it would have been if he were originally taking in the article upon storage, and at that time gave the instructions to the men to set the picture down in the place pointed out by him in the evidence above cited. The plaintiff was not a trespasser or a mere licensee. entered and was doing work upon the premises, at the invitation of the occupant.

He

This brings us to the question as to what is the duty of an occupant of business premises who invites a person to enter for some purpose of business. This is not a case within the principle stated in Larmore v. Iron Co., 101 N. Y. 391, 4 N. E. 752, where a person went on the land of another without invitation; but it falls within the case of Flynn v. Railroad Co., 142 N. Y. 439, 445, 37 N. E. 514, 515, where the court held:

"The general rule applicable to persons occupying real property for business purposes is that they must use reasonable prudence and care to keep their property in such a condition that those who go there shall not be unreasonably and unnecessarily exposed to danger. The measure of their duty is reasonable prudence and care."

We have had occasion at the present term of this court to apply this doctrine in the case of Murphy v. Altman, 51 N. Y. Supp. 106. We do not think it necessary to consider the other questions involved, as

the views expressed necessarily compel the determination that there were questions of fact which should have been submitted to the jury, and that the dismissal of the complaint was error.

Judgment reversed, and new trial granted, costs to abide the event. All concur.

28 App. Div. 442.)

NON-ELECTRIC FIBRE MFG. CO. v. PEABODY.

(Supreme Court, Appellate Division, Second Department. April 19, 1898.) PROOF OF JUDGMENT.

*

Under Code Civ. Proc. § 933, providing that "a transcript from a record kept pursuant to law * * is evidence, as if the original was produced," a mere transcript of a judgment affords evidence only of the fact that a judgment for some cause of action has been docketed, but does not prove what the judgment was for..

Appeal from trial term, Kings county.

Action by the Non-Electric Fibre Manufacturing Company against Royal C. Peabody. From a judgment directed in favor of plaintiff, defendant appeals. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, HATCH, and WOODWARD, JJ.

Frank Harvey Field, for appellant.

Chas. Coleman Miller, for respondent.

GOODRICH, P. J. This is the second appeal in this action. The former appeal is reported in 21 App. Div. 247, 47 N. Y. Supp. 677. It was taken from a judgment entered on the verdict of a jury, and resulted in a reversal for error in rejecting proof. The facts of the case are fully stated in that opinion. At the last trial, the plaintiff, apparently to meet some suggestions of the opinion on the former trial, contended that there was an outstanding obligation of the company, and, to establish this fact, offered in evidence a transcript of a judgment against the company in favor of Daniel A. Carpenter. The defendant objected to the evidence as incompetent, irrelevant, and immaterial, and not within the issues of the case, but it was admitted, and the defendant excepted. At a later stage of the case, the defendant, with the permission of the court, stated a further objection to the introduction of the transcript on the ground that it was no evidence of the judgment, and that this was not the proper way to prove a judgment. The court overruled the objection, and the defendant again excepted. The court directed a verdict for the plaintiff. There is no other evidence in the record as to any judgment, or that there were any creditors of the corporation, and we have no means of ascertaining upon what the judgment named in the transcript was based. There is in evidence a letter from the defendant to Mr. Carpenter, in which he says:

"I beg to acknowledge receipt of your favor of Feb. 1st, and beg to say that I will send you a check to-morrow or next day in reply to the same, or as soon as I can get time to get at my papers, which will certainly not be longer than two or three days

"Respectfully yours,

R. C. Peabody, Treas."

and $5 New York State Reporter.

But this does not prove any cause of action or any valid claim against the company, nor any debt upon which the alleged judg ment was rendered. We assume that the plaintiff offered the transcript in evidence to meet a suggestion in the former opinion, at page 251, 21 App. Div., and at page 680, 47 N. Y. Supp., where it was said:

"It is quite true that directors of a going concern having creditors, contracts. stockholders and a business, could not by agreement among themselves release each other from their obligations to the company, to the prejudice of the company, its stockholders and creditors.”

The difficulty is that the proof offered does not meet the suggestion of the former opinion. There is no evidence of any valid claim against the company. The rendition of a bill by Carpenter would not prove it. The acknowledgment of some unspecified claim in the defendant's letter, and his promise to pay the claim referred to therein, although he appended the word "Treas." to his signature, does not prove it; and neither the judgment nor the exist ence of the original claim is anywhere alleged in the pleadings. The defendant had no notice by the pleadings of the plaintiff's intention to prove either any outstanding claim or the judgment itself. He might have desired to attack the judgment, because of jurisdictional defects, collusion, or fraud in obtaining it. The plaintiff, without citing authority, contends that section 933 of the Code of Civil Procedure authorizes the admission of the transcript of a judgment to prove the judgment itself. This section reads, "A transcript from a record kept, pursuant to law, is evidence, as if the original was produced." What is the original referred to in the transcript? Only that a judgment for some cause of action has been docketed. That, and that only, is the evidence which the transcript affords. It proves no other fact than the recovery of a judgment, not what such judgment was for. Mr. Abbott, in his Trial Evidence (page 533), says: "There are four methods of proving a judgment, viz. by producing (1) a certified copy, (2) a sworn copy, (3) an exemplification, and (4) the original record."

*

#

We think the admission of the transcript of the judgment, instead of the judgment roll itself, without other evidence, was er ror. The judgment must be reversed, costs to abide the event. All concur.

(28 App. Div. 461.)

BRANAGAN v. LONG ISLAND R. CO.

(Supreme Court, Appellate Division, Second Department. April 19, 1898.) EXCESSIVE VERDICT-POWER OF TRIAL TERM.

The trial term of the supreme court has clear authority to set aside a verdict considered excessive unless the successful party will consent to a reduction of the amount to a proper sum.

Appeal from trial term.

Action by Honora Branagan against the Long Island Railroad Company. From a judgment entered on a verdict for $1,000, and from an order denying a motion for a new trial, defendant appeals.

on conditions.

Reversed