ever, led to instructions being given to the workmen that the door should never be opened from below. Before this the men in the planing room would sometimes open the door by pushing against it from the under side with a board, although it was difficult to do this by reason of the height of the floor and the weight of the door. But after the boy fell through, the men employed in the planing mill were instructed not to open the door from below, but to rap on the door when they desired to have it opened and wait until someone opened it from above, or to send a person from below to open it. The general uniformity of the practice thus enjoined is apparent from the plaintiff's own statement that during the whole twentytwo months of his employment he had never known the door to be opened from below except on the very occasion of the accident in question. On this occasion the door was thrust open by one Schmidt, a workman in the planing room, who four or five days before had entered the service of the defendants and had been set to work in the planing department. He testifies that he had been instructed by the foreman when he desired to have the door opened "to shake the door and wait until somebody came to open it;" that on this occasion he wanted to send lumber upstairs and rattled the door and then stopped; and, the witness continues: "I don't know how long, and then I pushed it up because they did not come quick enough upstairs; I did not like to wait so long; it was not an easy matter to push it open; it would take a man to throw that door open; it was a heavy door. I took a piece of board and put the end of it against the door and then I gave two or three raps with the board and waited a little while and there didn't anyone come; then I gave a little hitch, and then another, and then over it went." was not a prompt response by persons above to his signal for opening the door. His disregard of instructions designed for the safety of persons using the passage way was the fault which immediately caused the accident. The general rule that a master is not liable to a servant for an injury occasioned by the negligence of a coservant, is admitted by the learned counsel for the plaintiff; and indeed the general doctrine upon the subject is so well settled that it admits of no argument. But it is claimed that the negligence of the defendants co-operated with that of Schmidt, in producing the injury. If this claim is well founded, the plaintiff is entitled to recover; because for a wrong or injury occasioned by the joint or cooperative agency of two or more persons, all the tort feasors are separately or jointly liable, and there is no implied contract growing out of the contract of service that the servant shall take the risk of the master's negligence, or that the latter shall be exempt from responsibility to the servant for his own personal wrongs. The negligence of the defendants, if any exists, must be found either: 1, in the location of the trap door in the passage way; or 2, in failing adequately to protect or guard it. It is a complete answer to the claim of negligence in these respects that the plaintiff had full knowledge of the situation and of the arrangements for the protection of persons using the passage way, and that by continuing in the employment he assumed the risks and hazards incident to the situation, and especially such hazards as might result from the nonobservance by coemployees of directions designed for the protection of persons using the passage way. The dangers to which the plaintiff was exposed were known and obvious. It is not the case where an inexperienced or uninstructed employee may know the facts, but may be incapable of drawing the proper inferences, or appreciating the dangers. The plaintiff was as fully competent to understand risks from the location of the trap door and its use, and from negligent conduct of persons employed in the planing room, as were the defendants. The location of the trap door in the passage way was not per se a wrongful act. The defendants had a right to arrange their own premises in any way which suited their convenience, and were As bearing upon the knowledge of the de- not bound to change the arrangement to sefendants, of the dangerous location of the trap cure greater safety to the employees. If the trap door, it was shown that when it was construct-door was not open to observation, or its existed they were warned against placing it in the passage way, and that they knew of the incident of the boy falling through the opening at the time it happened. The evidence is undisputed that the plaintiff was fully informed as to the location and use of the trap door and the manner of its construction. He testifies that he had passed over it hundreds of times. In respect to the care taken by himself he says, "I used to think about the trap door a good deal. I dont think I thought any more about it than I had for a long time; I was always pretty careful about the trap door and always watched it." Upon the facts disclosed in the evidence, of which the foregoing statement is a summary, we are unable to perceive any ground upon which the defendants can be held liable. The immediate cause of the injury was the negligence of a coservant. If Schmidt had obeyed the instructions of the foreman, the accident would not have happened. He was a person of mature years, and it is not claimed that he was deficient in capacity or intelligence, or that he did not comprehend the situation and understand the instructions given him. His own account of his conduct shows that he violated his instructions from his impatience, because there ence was not known to those whose duty re- Judgment reversed and a new trial granted. Ella T. ROCHE, Respt., v. In Massachusetts, too, the same rule was applied. Bacon v. Charlton, 7 Cush. 581, cited BROOKLYN CITY & NEWTOWN R. R. and approved in Roosa v. Boston Loan Co. 132 Mass. 439. CO., Appt. The only question in this case arises upon the admission of the testimony of a third party that the plaintiff, some days after the happening of the accident which caused her injury, complained that she was suffering pain in her injured arm. The witness did not testify that on these occasions the plaintiff screamed or groaned or gave other manifestations of a seemingly involuntary nature, and indicative of bodily suffering; but he proved simple statements or declarations made by plaintiff, that she was at the time of making them suffering pain in her arm. The plaintiff was herself sworn and proved the injury and the pain. The condition of the arm the night of the accident was also proved that it was very much swollen and black all around it, and subsequently red and inflamed, and continued swollen and inflamed more or less for a long time. The defendant challenges the evidence of complaints of pain thus made, upon the ground that it was incompetent; and the argument made was that the evidence as to the injury and its extent could not be thus corroborated by mere hearsay. Prior to the time when parties were allowed to be witnesses the rule in this class of cases permitted evidence of this nature. Caldwell v. Murphy, 11 N. Y. 416; Werely v. Persons, 28 N. Y. 344. These cases show that the evidence was not confined to the time of the injury, or to mere exclamations of pain. The admissibility of the evidence was put, in the opinion of Judge Denio, in 11 N. Y. supra, upon the necessity of the case, as being the only means by which the condition of the sufferer as to enduring pain could in many instances be proved. Substantially the same class of evidence was admitted in England and for the same reason. Sce cases cited in 11 N. Y. After the adoption of the amendment to the Code permitting parties to be witnesses, the question under discussion was somewhat mooted in Reed v. New York Cent. R. R. Co. 45 N. Y. 574, by Allen J., in the course of his opinion, although the precise point was not before the court. The question there under discussion was as to the correctness of permitting the plaintiff to prove his declarations, made at the time when he was doing some work, to a third person, as to the state of his health. That is not exactly like the case of complaints made, not as to a state of health, but as to a then present existing pain at the very spot alleged to He re have sustained injury and proved so by other evidence; still, the remarks of Judge Allen on this kind of evidence in general, bear strictly upon the matter herein discussed. viewed in his opinion some of the above cases and others, and claimed that the courts had admitted the evidence from the necessity of the case, as being the only method by which the condition of the party could be shown fully and completely, not only as to appearances but also as to suffering. But there was no agreement by the court upon that branch of the case, the judgment going upon another ground. The case of Hagenlocher v. Coney Island etc. R. R. Co. 99 N. Y. 136, decides that even since the Code, evidence of exclamations indicative of pain made by the party injured is admissible. The case does not confine proof of these exclamations to the time of the injury. The question was asked of the plaintiff's mother "How long after injury was your daughter confined in the bed? Ans. "She was for about four weeks." Q. “What expressions did she make or what manifestations showing that she suffered pain?" This shows there was no confinement of the evidence to the time of injury. The evidence given, however, was of screams when the plaintiff's foot was touched, and of her exclamations of pain when even the sheet was permitted to touch the foot. The evidence was permitted upon the ground that it was of a nature which substantially corroborated the plaintiff, as to her condition. Having thus admitted evidence of this kind, since the adoption of the Code amendment permitting parties to be witnesses, the question is whether there is such a clear distinction between it and evidence of simple declarations of a party that he was then suffering pain, but giving no other indications thereof, as to call for the adoption of a different rule. It seems to us that there is. Evidence of exclamations, groans and screams, is now permitted, more upon the ground that it is a better and clearer and more vigorous description of the then existing physical condition of the party by an eye witness than could be given in any other way. It characterizes and explains such conditions. Thus, in the very last case cited, it was shown that the foot was very much swollen and so sore that the sheet could not touch it. How was the condition of soreness to be shown better than by the statement that when so light an article as a sheet touched the foot the pa tient screamed with pain? It was an involuntary and natural exhibition and proof of the existence of intense soreness and pain therefrom. True it might be simulated, but this possibility is not strong enough to outweigh the propriety of permitting such evidence as fair, natural and original corroborative evidence of the plaintiff as to her then physical condition. Its weight and propriety are, therefore, now sustained upon the old idea of the necessity of the case. 2. But evidence of simple declarations of a party made sometime after the injury, and not 3. to a physician, for the purpose of being attended to professionally, and simply making the statement that he or she is then suffering pain, is evidence of a totally different nature, is easily stated, liable to gross exaggeration and of a most dangerous tendency, while the former necessity for its admission has wholly ceased. As is said by Judge Allen in Reed v. Railroad, (supra), the necessity for giving such declarations in evidence where the party is living and can be sworn no longer existing, and that being the reason for its admission, the reason of the rule ceasing, the rule itself, adopted with reluctance and followed cautiously, should also cease. With the rule as herein announced there can be no fear of a dearth of evidence as to the extent of the injury and the suffering caused thereby. The party can himself be a witness if living; and if dead the suffering is of no moment, as it cannot be compensated for in an action by the personal representative under the statute; and the exclamations of pain, the groans, the sighs, the screams can still be admitted. But we are quite clear that the bald statement, made long after the injury, by the party that he suffers from pain ought not to be admitted as in any degree corroborative of his testimony as to the extent of his pain. For these reasons the evidence of Mr. McElroy, as to the plaintiff's declarations of existing pain, when they were walking in the street together, long after the accident, should not have been received. It was error also to permit the same witness to prove declarations of the plaintiff that her arm pained her very much, even though at the same time she showed her arm and it was swollen and red. The appearance of the arm he could describe, but her declaration that i pained her very badly is mere hearsay and should not have been permitted. The judgments of the General Term and Circuit should be reversed and a new trial granted, costs to abide event. All concur except Danforth, J., dissenting, Abner BUCKLAND, Admr., Appt., v. William GALLUP, Respt. 1. If an injury to the property of a decedent, or its conversion, happens after his death, although before letters are actually issued, or if a contract is made with an executor or an administrator personally, in regard to the effects or money belonging to the decedent, re 4. ceived by a third person after the death, the executor or administrator may sue in his own name, and if in any of these cases he may also sue in his representative character he is not required to do so. Only such causes of action as accrued during the lifetime of the decedent, or upon contract made by him, are of necessity to be prosecuted by his executors or administrators in their representative capacity. The distinction is between a cause of action accruing on a contract made with the representative, as distinguished from one devolving on him in that capacity by the creation of the trust or representative relation. The Code works no change in these respects. An administrator de bonis non appointed after the death of the executrix takes the estate in the condition in which the executrix left it. He is bound by her contracts, and if he sues for the proceeds of the estate or upon any promise made to her, he can occupy no different position. 5. Where the executrix sold the property of the testator and put a portion of the proceeds into the hands of the defendant as her agent, the administrator de bonis non of the estate, appointed after her death, may sue defendant for such portion in his own name as an individual. APPEAL from an order of the Supreme Court at General Term in the Fifth Department, reversing an order of the Monroe Special Term amending a judgment against plaintiff personally for costs so as to make it apply to him only in his representative capacity as administrator. Affirmed. The facts and questions raised appear from the opinion. Mr. George H. Humphrey, for appellant: The order appealed from is reviewable by this court. 1. It effected a substantial right charging plaintiff not as administrator, in which capacity alone he was a party to the suit, but as an individual, with the payment of $166.77 costs. 2. It was a final order against one not a party to the action. 3. It recognized the validity of the judgment as between the parties, in favor of defendant and against the plaintiff as administrator, and was therefore made in a summary application | in the action after judgment. Code Civ. Proc. § 190, subdv. 3; Sturgis v. Spofford, 58 N. Y. 103; Hobart v. Hobart, 86 N. Y. 636; Crosby v. Stephan, 97 N. Y. 608; Giles v. Halbert, 12 N. Y. 32. The intention of section 1814 of the Code of Civil Procedure is unequivocally declared to forbid a suit by an administrator in his own name where the estate is the real party in interest. Had the general term the right to nullify that intention? Messrs. J. & Q. Van Voorhis, for respond ent: When an executor brings a suit at law upon a cause of action, which does not belong to him in his representative capacity, and is defeated, the defendant in the suit becomes entitled, as a matter of right, to a judgment for costs, against the executor personally; and the latter is not relieved from personal liability by the fact that he brought the suit in his representative character. Holdrige v. Scott, 1 Lans. 303; Bedell v. Barnes, 29 Hun, 589; Fox v. Fox, 5 Hun, 54; Bostwick v. Brown, 15 Hun, 308: Feig v. Wray, 64 How. Pr. 391; Lyon v. Marshall, 11 Barb. 242; Ferrin v. Myrick, 41 N. Y. 315; Brockett v. Bush, 18 Abb. Pr. 337; Smith v. Patten, 9 Abb. Pr. N. S. 205. The general term says that the plaintiff is in no better position than Matilda Buckland would have been. This statement will not bear a moment's scrutiny. Had an action been commenced by Matilda, who in her own right and as an individual owned the property, it must of course have been commenced in her The cause of action set forth in the complaint own name. Every dollar of the proceeds of a did not belong to the plaintiff in his representarecovery by her would have been for her sole tive capacity, and the defendant was, therefore, and exclusive benefit. Here it was in nowise rightfully entitled to the judgment for costs. for the use of plaintiff, but only on account of Causes of action which arise out of the transthe estate. In the one case the individual actions of a decedent pass to his legal represenwould have been the sole party in interest, put-tative, and thus come to belong to him in his ting the avails in her own pocket; in the other, the estate was the real party in interest and the administrator accountable to the surrogate for every dollar recovered. It is exactly this distinction which brings us within the terms of the statute. Spencer v. Strait, 23 N. Y. Week. Dig. 458. The general term is in error in assuming that the cause of action accrued wholly after the death of the testator. The cause of action accrued by virtue of the will. By the tenor of the will the contract sought to be enforced was made by the testator with the plaintiff, for the benefit of the legatees, that out of any property remaining after the death of Matilda Buckland they should have $1,000. It was to enforce that contract that plaintiff demanded of the defendant enough to pay those legacies. The demand to be sure was necessary to complete this cause of action; but the gist of it was the provision of the will giving to the legatees that sum. Here, upon a contract made by the testator, the cause of action became perfect after his death. Plaintiff claimed no right to any property, save as it was derived from the will. The decision of this court, therefore, in Thompson v. Whitmarsh, 1 Cent. Rep. 4; S. C. 100 N. Y. 35, cited by the general term, instead of being against us is directly in our favor. Here the right to suę did not grow out of any action of the administrator, but out of an obligation imposed by the will and created by the testator when he executed that instrument. Had the action been trover upon the executor's own possession, the general term would be right. But here it was founded upon the title of the testator to goods once owned and possessed by him, and out of whose proceeds he bequeathed the sum of $1,000. Ketchum v. Ketchum, 4 Cow. 87. If, as we have shown, the action was necessarily prosecuted by plaintiff, as administrator, he is not, as he should not be, chargeable with costs. Ketchum v. Ketchum, 4 Cow. 87; Tilton v. Williams, 11 Johns. 403; Bedell v. Barnes, 29 Hun, 589; Code Civ. Proc. § 3246. representative capacity; whereas, those which arise in connection with the estate after the death of the testator or intestate are not regarded as belonging to the representative in that capacity. Holdrige v. Scott, 1 Lans. 303; Mercein v. Smith, 2 Hill, 213; Merritt v. Seaman, 6 N. Y. 168; Thompson v. Whitmarsh, 1 Cent. Rep. 4, 100 N. Y. 35; Cary v. Gregory, 38 N. Y. 127. The complaint should be construed most favorably to the defendant. Clark v. Dillon, 97 N. Y. 370. In bringing this action plaintiff stands upon the same footing that his predecessor would have held if the action had been brought by her. McMahon v. Allen, 4 E. D. Smith, 521; Conklin v. Egerton, 21 Wend. 433; Bain v. Pine, 1 Hill, 615. It is conceded that defendant's position would have been correct before the present Code; but it is claimed that section 1814 of the Code has made a radical change in the law in respect to the liability of an executor for costs. It makes no change in regard to what claims shall be considered as belonging to an executor in his individual capacity. Thompson v. Whitmarsh, 1 Cent. Rep. 4, 100 N. Y. 35; Ferris v. Disbrow, 22 Week. Dig. 330; Bingham v. Marine Nat. Bank, 41 Hun, 378. Danforth, J., delivered the opinion of the court: The plaintiff describing himself both in the title and body of the complaint as "administrator, etc. of Warren Buckland, deceased," demanded judgment against the defendant for the sum of $2,000 and costs of the action. The defendant answered, denying the material allegations of the complaint, and, upon trial before a referee, had judgment dismissing the complaint, with costs against the plaintiff in his individual capacity. Upon the plaintiff's application the special term ordered an amendment so that the judgment should direct the costs of the action "to be paid out of any assets in his hands as administrator." Upon appeal to the general term this order was reversed; and from the order of reversal the plaintiff appeals to this | of action which accrued after the death of his court. testator, and failing, was personally liable for costs. Burhans v. Blanchard, 1 Denio, 626. The special term regarded the question as controlled by section 1814 of the Code of Civil In that case the distinction is said to be well Procedure, which declares that an action by an settled between cases in which an executor executor or administrator "upon a cause of ac- must sue in that character, and those in which tion belonging to him in his representative he may prosecute in his own right, whether the capacity-must be brought by him in his rep-action be in tort or on contract. The final test resentative capacity;" while the general term, is whether it accrued before or after the death looking at the cause of action as one arising of the testator. In that case, and in cases there out of a transaction which occurred after the cited, and in many later ones, it is shown, as testator's death, held that it did not belong to well upon principle as authority, that only such the plaintiff in his representative capacity causes of action as accrued during the lifetime within the meaning of that section. of the decedent cr upon contract made by him were of necessity to be prosecuted by his executors or administrators in their representative capacity. This difference of opinion necessarily leads to an inquiry whether the cause of action upon which the plaintiff sues is, within the meaning of the Code, one "belonging to him in his representative capacity." That capacity was created by statute, to carry into effect the wishes of the decedent, and by virtue of it an executor takes as of the time of the death of the testator, and as it were from his hand, his personal property, so that there is no interval of time when it is not the subject of ownership by the testator up to the time of his death; and from that moment by the person named, not as an individual, but as a representative. The statute characterizes the property received as assets, requires it to be inventoried, and for those assets so inventoried and for any increase, the executor is to account. It includes among other things, debts secured by mortgage, bonds, notes and things in action. He and his sureties are liable for the full value of all such property of the deceased, received by the executor and not duly administered; and if the cause of action accrued in the lifetime of the testator, any suit respecting it must be in the name of the executor as such. He then sues in the right of the testator, and can bring such actions only as the testator himself might have maintained. In Patchen v. Wilson, 4 Hill, 57, the contract sued on was by the intestate in his lifetime; and the action was necessarily brought in a representative capacity, and although it failed, the plaintiff was not charged with costs. The same case shows that an action for the conversion of property after the testator's death may be brought in the executor's own name, and that the letters testamentary may be used as part of his chain of title. The same rule applies here. The distinction is between a cause of action accruing on a contract made with the representative, as distinguished from one devolving on him in that capacity by the creation of the trust or representative relation. The Code works no change in these respects. On the contrary, the provisions of section 1814 imply that a person while executor may have causes of action of more than one kind; for it declares that those which belong to him in "a representative capacity," shall be prosecuted in that capacity. They are thus contrasted with all others, and as clearly distinguished as if one class devolved on A and the other on B. So, in construing the section, it has been held that the phrase On the other hand, if an injury to the prop- "representative capacity" includes only those erty, or its conversion, happens after the death causes of action which accrued during the lifeof the decedent, although before letters are act-time of the decedent. Bingham v. Marine Nat. ually issued, or if a contract is made with an Bank, 41 Hun, 377. executor or an administrator personally, in regard to the effects or money belonging to the decedent, received by a third person after the death, the administrator might sue in his own name, and if in any of these cases he may also sue in his representative character he is not required to do so. Valentine v. Jackson, 9 Wend. 302; Merritt v. Seaman, 6 N. Y. 168; Patterson v. Patterson, 59 N. Y. 574; Lyon v. Marshall, 11 Barb. 242. When he sues in the right of the testator he pays no costs, because the law does not presume him to be sufficiently cognizant of the nature and foundation of the claims he has to assert, and in all these cases it is necessary for him to sue in his representative character, and expressly to name himself executor. Toller, Exrs. 438. But if he may bring the action in his private capacity, then if he fails he is liable for costs. As the statute stood (2 R. S. 615, 17) before the Code, costs were not as of course given in favor of a successful defendant against executors or administrators, necessarily prosecuting in the right of their testator or intestate; but it was held that an executor suing upon a cause C. R., V. VII. N. Y. 45 The demand there in suit arose upon a certificate for moneys belonging to the estate and deposited with the defendant by administrators. The court held that the action could be maintained by the bailors as individuals or as administrators, upon the ground that the section did not include a demand accruing to the personal representatives through a disposition of the funds or property of the estate after the decease of the testator or intestate; citing in support of this view, Thompson v. Whitmarsh, 1 Cent. Rep. 4, 100 N. Y. 35. In that case it appeared that Thompson, as executor, having received property of the estate, sold it to the defendant, and afterwards in his own name, as an individual, sued for the price; and the court held the action to be well brought, and that the defendant could not successfully set up against the demand a debt due to him from the testator. The defendant relied upon section 1814 of the Code; but it was held that the phrase "representative capacity," as there used, related to debts which belonged to the testator and came to the executor through his representation of the deceased, rather than as the result of his own action, and therefore 813 |