Second Department, December, 1920. [Vol. 194. HELEN S. ENGEL PRICE, Appellant, v. DAVID PRICE, Respondent. Second Department, December 17, 1920. Husband and wife annulment of marriage evidence -admis sibility of original school records to show age of plaintiff. In an action brought by an infant to annul her marriage on the ground that she was under the age of consent when the marriage was contracted, the original school records of the plaintiff's age, which were required by law to be kept, are evidence of the facts thus required to be recorded and are admissible to establish her age, although the data of age came from a school of a lower grade and the transcriber was not called. The constant entry of the date of the plaintiff's birth carried through the school period gave it the character of an admission which the plaintiff confirmed by accepting a record card. APPEAL by the plaintiff, Helen S. Engel Price, from judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 18th day of February, 1920, upon the decision of the court rendered after a trial at the Nassau Special Term dismissing the coplaint upon the merits. The suit, begun June 25, 1919, was to annul a marriage between the parties, solemnized on March 15, 1913. Although in the affidavit for the marriage license plaintiff swore that her age was nineteen, the basis of this action was a claim that she was but seventeen, having been born on August 17, 1895. The main question raised on appeal is the admissibility of plaintiff's school records as bearing upon her age. Henry L. Maxson, for the appellant. William S. Glickman, for the respondent. PUTNAM, J.: Our Education Law makes attendance compulsory between the ages of seven and fourteen, when the child, among other places, resides in a city. (Education Law [Consol. Laws, chap. 16; Laws of 1910, chap. 140], art. 23. See, also, Education Law, § 621. Amd. by Laws of 1911, chap. 710; Laws of 1913, chap. 511; Laws of 1917, chap. 563, and Laws of 1919, chap. App. Div.] Second Department, December, 1920. 232.) An accurate record is required of the attendance of all children between seven and sixteen years of age. (Education Law, § 629.) Section 630, regarding a school record certificate, as in force during part of the period of plaintiff's school attendance, provides: "Such record shall also give the date of birth and residence of the child, as shown on the school records, and the name of the child's parents, guardian or custodian."* Section 1097 of the Greater New York charter (Laws of 1901, chap. 466) provides: "The board of education shall provide the proper book or books, in form as required by its by-laws, and shall cause the class teachers under the direction and supervision of the principal to enter the names, ages and residences of the scholars attending the school, the name of the parent or guardian of each pupil and the days on which the scholars shall have attended respectively, and the aggregate attendance of each scholar during the year." (See, also, Greater New York Charter [Laws of 1897, chap. 378], $ 1099; Consolidation Act [Laws of 1882, chap. 410], § 1035, subd. 4.) Pupils passing from lower to higher grades, or transferred to other schools, take with them this date of birth and like data as entered at the original school admission. Here was produced the " permanent scholarship record "authenticated by the official of the board of education in charge of the school records of the Eastern District High School of Brooklyn, wherein plaintiff was a pupil from February 6, 1908, until September, 1911, while she resided in the city of New York, borough of Brooklyn. It was an original record of this high school, although part of the data had been copied from the child's record card from the lower school. That source did not impair but confirmed their admissibility. Like records were produced from Public School No. 147 of Brooklyn whence plaintiff had *Since amd. by Laws of 1913, chap. 101, and Laws of 1917, chap. 563. See, also, Education Law (Consol. Laws, chap. 16; Laws of 1909, chap. 21), § 530, as renumbered from § 531 and amd. by Laws of 1909, chap. 409; Id. § 534, as amd. by Laws of 1909, chap. 409; Consolidated School Law (Laws of 1894, chap. 556), tit. 16, § 3, added by Laws of 1894, chap. 671, as amd. by Laws of 1896, chap. 606; Laws of 1903, chap. 459, and Laws of 1907, chaps. 103, 585; Id. tit. 16, § 6, added by Laws of 1894, chap. 671, as amd. by Laws of 1903, chap. 459; Id. tit. 16, § 4a, as added by Laws of 1907, chap. 585.- [By direction of the Court. Second Department, December, 1920. [Vol. 194. been advanced to this high school. The school principal was produced and testified to such rolls or records, in which plaintiff was registered as attending from 1906 to 1908. Here again as to this school the entries are original, kept by the proper school authority, although the data of age came from a school of lower grade and the transcriber could not and needed not to be called. In both these schools plaintiff's birth was registered as in 1892 and not 1895, as claimed in this suit. Originally the parents lived in Columbia street, Manhattan. Mrs. Engel, the mother, said she took the girl to a school at the age of six. But neither the mother nor plaintiff was able to identify such school, or to state how long she attended it. School records of the pupil's age when required to be kept by law, like other official records, such as census returns and like enumeration lists, are evidence of the facts thus required to be recorded. (1 Greenl. Ev. § 484; 5 Chamberlayne Ev. § 3450.) This precise point of the competency of a record of school age which was older than that afterwards claimed by parents in a suit for death, was ruled in 1906 in Levels v. Railroad (196 Mo. 606). Though not record evidence, in the sense of being conclusive, the fact of such registered age is always competent to be weighed in the balance with other evidence. Indeed, the constant entry of the date of a pupil's birth carried through the school period gives it the character of an admission which the pupil confirms by accepting a record card. The bearing and weight of such records were for the trial court. We see no error in his disposition of the issues and his findings, especially in view of the dubious evidence offered, six years after marriage, which would controvert every age record producible, and charge and impute to defendant the sole responsibility for the age sworn to in plaintiff's affidavit to obtain a marriage license. I, therefore, advise to affirm the judgment. JENKS, P. J., MILLS, RICH and KELLY, JJ., concur. App. Div.] Second Department, December, 1920. THEODORE A. ALEXANDER, Appellant, v. THE CITY OF NEW YORK and THE DEPARTMENT OF HEALTH OF THE CITY OF NEW YORK, Respondents. Second Department, December 17, 1920. Municipal corporations action by employee of concern selling coal to recover for injuries received by falling into unguarded cog wheels while manipulating coal chute in defendants' hospital doctrine of respondeat superior not applicable question for jury whether reasonably safe place provided - plaintiff's position similar to that of employee of defendants right to sue department of health of Greater New York. In an action to recover for personal injuries it appeared that the plaintiff and another, who were in the employ of a company delivering coal to one of defendants' hospitals, were trimming the coal in the bin by means of a movable chute; that the plaintiff stood with one foot on a plank of a rude platform and the other on a cross beam in which a depression had been worn; that while changing the direction of the chute the plank slipped and the plaintiff's foot slipped into the depression in the cross beam and in an effort to save himself from falling he threw out his hand, which was caught in the unguarded cog wheels of the coal conveyor. Held, that the doctrine of respondeat superior had no application to the case, since this was not the failure of a servant to perform a duty properly chargeable upon him, but was a general condition chargeable upon the defendants alone, and the fact that some servant of the municipality caused the defect or left it unguarded was no defense. It was a question for the jury to say whether the defendants had given the plaintiff a reasonably safe place in which to work. The plaintiff came upon the premises to perform work which he was obliged to perform by use of the means provided for him and his position was the same as though he were an employee of the defendants. It is expressly provided by sections 1192 and 1196 of the Greater New York charter that the department of health may be sued. APPEAL by the plaintiff, Theodore A. Alexander, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 2d day of March, 1918, upon the dismissal of the complaint upon the merits by direction of the court at the close of the case. APP. DIV.-VOL. CXCIV. 11 Second Department, December, 1920. [Vol. 194. Alfred Ekelman [Walter P. Vining with him on the brief], for the appellant. William B. Carswell [John P. O'Brien, Corporation Counsel, with him on the brief], for the respondents. JAYCOX, J.: The plaintiff and another man were engaged in trimming coal in a bin in the Kingston Avenue Hospital in the city of New York. The coal was being delivered by S. Tuttle Son & Co., and the plaintiff and the man working with him were in its employ. The hospital building was fitted with a conveyor by which the coal was conveyed to a platform about twenty or twenty-five feet above the floor of the engine room in the center of the building and from there distributed by means of a movable chute. It was necessary occasionally to change this chute and for this purpose the trimmers went upon a rude platform where the conveyor delivered the coal into the chute. One man held one end of the chute and moved it in the direction towards which they desired to project the coal. The other man (the plaintiff) took care of the other end of the chute, disengaged it from the loop of rope in which it was suspended and replaced it in this loop from the other side when the chute had been swung around so as to point in the opposite direction. At the time of the happening of the accident the plaintiff was standing with one foot on one of the planks in the platform, and the other on a cross beam into which a depression three inches in depth was worn. Plaintiff held the chute with his left hand and was endeavoring to manipulate the rope loop when the plank, upon which his foot rested, slipped, plaintiff's other foot slipped into the depression in the beam and the plaintiff, in an effort to save himself from falling, threw out his right hand and it was caught in the unguarded cog wheels at the end of the shaft which actuated the conveyor. Upon the trial the complaint was dismissed upon the ground that plaintiff had failed to prove negligence. The dismissal was not placed upon the ground that the doctrine of respondeat superior did not apply, and in this I think the trial court was correct; that doctrine has no application to this case. This was not the failure of a servant to perform a duty properly chargeable upon him |