App. Div.] Second Department, March, 1910. it was safe, but failed to do so, cannot recover for injuries received when the beam broke if the fact that it had rotted could have been determined by customary tests. HIRSCHBERG, P. J., dissented. APPEAL by the defendant, the Empire Hardware Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of July, 1909, upon the verdict of a jury for $5,000, and also from an order entered in said clerk's office on the 12th day of July, 1909, denying the defendant's motion for a new trial made upon the minutes. H. Aplington, for the appellant. Frederick S. Martyn, for the respondent. JENKS, J.: This action is for negligence under the rules of the common law. The plaintiff's intestate was the servant of the defendant as foreman of carpenters and of a floor in the defendant's factory. The defendant was about to move its business. An officer of the defendant told the servant that the defendant was about to move, that he wished the servant to take care of all matters, to inspect everything and to see that all was right, saying that the servant must not have any accident, and inquiring whether a certain beam and the ropes were strong, and whether the beam was strong enough to carry anything that was let down. The servant answered: "That is foolish; that is strong enough to carry, to lift a house." The said officer also said to this servant that the latter was the captain, referring to the moving and to the men who were to act under him. The same officer, who seems to have been the active man of the corporation, instructed the servant before any articles whatever, light or heavy, were let down from that beam, that he must make an inspection of the beam, the ropes, the pulleys and everything else, to see that they were safe. He testifies that he gave these instructions to the servant as the foreman, and further told him that after a load was let down and the ropes were up again and before another load was let down, a similar inspection must be made of APP. DIV.-VOL. CXXXVII. 7 Second Department, March, 1910. [Vol. 137. everything. He testifies that he did not know how the articles in the factory were lowered on the day of the moving, although he knew that the tackle and the beam were used for that purpose, but as to the particular piece of machinery hereinafter mentioned that was on it when the beam gave way, he did not know that it was being lowered by the beam, he did not authorize that particular piece of machinery to be thus lowered, and that he did not know but what it would be brought down on the elevator. There is evidence that there was a lift in the factory which was usable for the carriage of freight. This beam extended from the roof of the factory over the street. It had been used for four years to lower by tackle ice boxes manufactured by the defendant. Four years before the defendant had bought it, as the best that money could buy, from a shipyard through a servant who was an experienced carpenter. It was of white oak 10x12 inches, and had been laid on the flat roof of the factory to project through a brick coping a foot thick. It was tightly incased in the coping by the bricks and mortar. Upon the day fol lowing the said conversation between the master and servant the moving out began. The beam and tackle were used to lower certain pieces of machinery. After several pieces had been lowered the beam broke under the strain of another piece, and a part of the apparatus struck and killed the servant, who was then engaged in that work. The break was at the point where the beam passed through the brick coping, and the break extended diagonally to the edge of the coping. Examination at that point revealed rot within. The expert witness for the plaintiff testifies that the rot as described to him was the result of from two to four years' decay, and that it was caused by the confinement of the moisture, which was absorbed or which was naturally in the timber, by the close incasement of the beam in the brick coping. He testifies that the proper construction was to pass the beam through the coping by an opening larger than the beam, protected by an iron casing, as the beam would not then have rotted nearly as soon and the deterioration throughout the beam would have been of even quality. He further testified that "the ordinary and usual test" in common use, in his experience and one that had been used for years, was "the auger test," by boring diagonally into the inclosed part of the beam to ascertain by the App. Div.] Second Department, March, 1910. borings the character of the wood, and that after timber had been inclosed for two years in a wall a foot thick that test should be made every six months. There is evidence that the beam appeared perfectly sound, that visual inspection of it had been made from time to time and that the master had given very general directions for inspection from time to time. The question submitted to the jury was whether the master had used reasonable and ordinary care to ascertain the condition of this beam. I think that the conduct of the servant as shown by this record is fatal to the judgment. There is no evidence that the servant heeded his master. For aught that appears, he used this beam and tackle without regard to these cautions or without obedience to these commands of the master. The beam and its tackle were about to be put to unusual use. The servant had no reason to believe that the master proposed to furnish or that he did furnish a beam suitable for that work, in that the master had fulfilled all of his obligations with respect thereto, including inspection, for the master expressly charged him with the duty of ascertaining the fitness of the apparatus, including inspection. That very duty was cast upon the servant by a special order. Shearman and Redfield on Negligence (5th ed. § 217) say: "The duty of inspection and inquiry may be cast upon the servant by special contract, or by general rules or special orders, brought home to his notice and giving him reasonable opportunity for compliance, and to the extent to which such investigation is within his reasonable capacity." Here was a foreman of carpenters charged on the day before the proposed use with the duty of test and inspection of a beam of wood which the plaintiff's own expert says could have been found defective by the ordinary and usual test in common use in his experience and one used for years. Labatt on Master and Servant (§ 416) lays down the rule: "The duty of inspection may be cast on the servant by express contract, or by general rules, or by special orders of which he is notified. In other words, it is permissible for the master to impose, and for the servant to accept, by mutual understanding, the burden of such an inspection as the latter is competent to make." And the same author further says (§ 413): "He is manifestly not warranted in assuming that he is not exposed to any abnormal dangers, where he has actual knowledge that one of Second Department, March, 1910. [Vol. 137. the master's duties has not been performed; nor where he has been expressly warned to examine the appliance in question. He will not be heard to say that his ignorance of a danger was excusable if it could have been discovered by a reasonable use of his faculties of observation." (Citing Senior v. Ward, 1 El. & El. 385, and other cases.) (See, too, Shields v. N. Y. C. & H. R. R. R. Co., 133 N. Y. 557; Kilkin v. N. Y. C. & H. R. R. R. Co., 76 App. Div. 529; affd., 177 N. Y. 566; Cooper v. Butler, 103 Penn. St. 412.) I advise that the judgment and order be reversed and that a new trial be granted, costs to abide the event. WOODWARD, BURR and THOMAS, JJ., concurred; HIRSCHBERG, P. J., dissented. Judgment and order reversed and new trial granted, costs to abide the event. ALEXANDER SMITH AND SONS CARPET COMPANY, Respondent, v. BERTRAM BALL, Appellant. Second Department, March 31, 1910. Injunction pendente lite - discretionary power of Special Term - appeal review of discretionary order definition "discretion." The power of the Special Term to continue an injunction restraining the defendant from changing a grade so as to deprive the plaintiff of the use of a right of way owned by them in common, pending a suit for a permanent injunction, is discretionary. Though the Appellate Division may review such discretionary order it will not interfere there with unless it be so unwise or unjust, illegal or so contrary to the general principles of law or of equity as to compel the conclusion that there was an abuse of discretion. Judicial discretion defined. APPEAL by the defendant, Bertram Ball, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 1st day of February, 1910. James M. Hunt, for the appellant. William W. Scrugham, for the respondent. App. Div.] Second Department, March, 1910. This appeal is from an order of the Special Term continuing an injunction pendente lite. I do not favor the suggestion that we now in effect determine the issues. Such a short cut to a conclusion is not avoidance of circuity, but departure from the common course not to be permitted save in exceptional cases. There is no reason thus to accept a trial by affidavits. The litigation does not require unusual expedition, and it is not clear that the evidence upon a judicial trial will not further enlighten the court. Determination upon the merits is not urgent, inasmuch as the question presented is the relative rights of the parties in a right of way long owned by them in common. The plaintiff or its tenants have used the way for access for wagons to its lands for 17 years, and this action is to enjoin the defendant from changing the grade whereby the plaintiff will be deprived entirely of such access. The injunction halts the defendant, who acquired this right of way in 1906, in work incidental to the improvement of his lands, but not immediately necessary for any present use or enjoyment of them. The learned Special Term commented that a trial could be had at a very early day, and examination of the appointed terms for the county of Westchester confirms that statement. We cannot say that trial will not further enlighten the court as to the proper decree, inasmuch as the relative rights at the present time may not be determined by original rights acquired by the conveyances, but may in part be determined or be limited by the subsequent acts of the parties. And, moreover, the court itself, upon the correct hypothesis that neither party could practically exclude the other, intimated that equity might properly decree for an adjustment so as to afford mutual rights of practical use, a decision, however, which the court said could only be made after a trial that would reveal all of the facts. It may well be that the plaintiff is an offender in that its wall has impaired the full rights of the defendant, but this is no legal excuse for retaliation, although such conduct may have to be considered by the court when it shapes its decree. Therefore, I confine discussion to the question whether the Special Term should be sustained without expression upon the merits save as necessary to a proper disposition of this appeal. I think that the order should not be disturbed. It is within the |