Second Department, March, 1910. [Vol. 187. nett v. Garlock, 10 Hun, 328, 341; Gindrat v. Western Railway of Alabama, 96 Ala. 162; 19 L. R. A. 839.) It is urged that Hoople became mortgagee in possession. He had the title to four-fifths of the land. Plaintiff owned the other undivided fifth, subject to the life estate which Hoople held. If he was a mortgagee in possession was he claiming as such to be in possession of the whole fee or only that which the plaintiff owned? The plain fact is that he did not enter as mortgagee, he did not claim to be a mortgagee in possession of any part of the land, he did not claim it adversely against plaintiff as he must have done in order to bar her. (Becker v. McCrea, 193 N. Y. 423.) The judgment should be affirmed as to defendant appellant Shevill, and reversed as to the plaintiff, and a new trial granted, with costs of the appeal to the plaintiff, and costs below to abide the final award of costs. JENKS, BURR, RICH and CARR, JJ., concurred. Judgment affirmed as to the appellant Shevill, and reversed as to the plaintiff, and a new trial granted, with costs of the appeal to the plaintiff, and costs below to abide the final award of costs. LOLLIE FLANAGAN, an Infant, by CHARLES A. JANIN, Her Guardian ad Litem, Respondent, v. NATHAN GOLDBERG and THOMAS G. BAXTER, Appellants. Second Department, March 31, 1910. Negligence-injury to person attending theater erroneous charge. In an action against the proprietor of a theater to recover for injuries received by a spectator who was struck by a board which fell, it is error to charge that, where the accident occurred after the plaintiff was admitted and seated, the burden was upon the defendant to show that he was not negligent rather than upon the plaintiff to prove the contrary. APPEAL by the defendants, Nathan Goldberg and another, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, rendered on the 17th day of November, 1909. App. Div.] Second Department, March, 1910. Samuel I. Goldberg, for the appellants. J. Baldwin Hand, for the respondent. THOMAS, J.: Plaintiff attended a moving picture show at Rockaway Beach, and during the performance a board fell upon her, causing the injury for which the action is brought. Plaintiff's evidence tends to show that the board was some ten feet long, and that it had been placed against the inside wall of the room by defendants' servant. Defendants' evidence is to the effect that some children, running about on the adjoining premises, where building was in progress, removed, during the performance, a board from the side wall of the theater, and, pushing it through the hole, caused the injury. If defendants negligently so placed the board that it fell and did the injury, they are liable. They would not be liable for an injury caused by a board thrown into the hall, unless the facts show that they had knowledge, actual or constructive, that the boys were committing depredations, or had done so, and thereupon negligently failed to protect those invited to the entertainment. The court charged, among other things: "In actions of this character, in fact in all actions, it is incumbent upon the plaintiff to prove by a preponderance of evidence his case. The rule is slightly different here, where in public places an injury occurs through some accident happening while there." Defendants' counsel excepted to this charge, and thereupon the court charged, in effect, that after the plaintiff was admitted and seated, the burden was upon the defendants to show that defendants were not negligent, and not upon plaintiff to show that the defendants were negligent. For such error the judg ment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event. HIRSCHBERG, P. J., BURR, RICH and CARR, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. Second Department, March, 1910. [Vol. 137. FRANK M. HICKOK, as Receiver of the Personal Property of FRANK H. COWPERTHWAIT, Appellant, v. FRANK HI. COWPERTHWAIT and Others, Respondents. Second Departinent, March 31, 1910. -- Bailment - pledge of stock lien dependent on possession - pledge of substituted stock subject to trust. A pledgee of personal property who gives up possession to the pledgor waives his lien unless he returns the property for some special, limited or temporary purpose of benefit to him so that the pledgor may be deemed to be in possession as bailee for the pledgee. Thus, where the pledgee of certificates of stock returned them without qualification to the pledgor, and accepted in return as security for an old debt substituted certificates standing in the name of a third party as trustee for the pledgor, he holds the stock subject to the trust. APPEAL by the plaintiff, Frank M. Hickok, as receiver, etc., 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 15th day of March, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term. Samuel Evans Maires, for the appellant. Lewis Squires [Francis H. Wilson with him on the brief], for the respondents. JENKS, J.: This plaintiff brought two actions for fraud against the Cowperthwaits. The actions were tried together, and the records are identical. In one action a certain corporation was made a party defendant and in this action the respondent Aymar. The appeals in these actions are separate. Our judgment in the action first heard on appeal, written by BURR, J. (Hickok v. Cowperthwait, 134 App. Div. 617), disposes of all of the questions as to the transactions of the defendants Cowperthwait, and, therefore, as to them this judgment is reversed. We have then but to consider this appeal as to the respondent Aymar. At the time of the alleged fraudulent transactions of the Cowperthwaits, Aymar, as creditor of Cowperthwait senior, held on pledge as security for the debt certain certificates of stock standing App. Div.] Second Department, March, 1910. in Cowperthwait senior's name. The contention, therefore, is that Aymar had a valid lien upon that stock as against this plaintiff. But it appears that, at the instance of the said pledgor, Aymar delivered up the certificates to him. The learned counsel for Aymar recognizes the rule that a pledgee who parts with possession of the pledge thereby waives his lien (Black v. Bogert, 65 N. Y. 601; Casey v. Cavaroc, 96 U. S. 467), but insists that the delivery in this instance was within the exception to the rule applied in Hays v. Riddle (1 Sandf. 248), which case he insists is decisive of the case at bar, and in White v. Platt (5 Den. 269). It is well settled that "the pledgee may return the property to the pledgor for some special purpose without losing his right, and the pledge will remain." (Fairbanks v. Sargent, 117 N. Y. 334.) But in the cases cited the parting of possession was temporary and for a special purpose, so that the pledgor became a mere special bailee, agent or servant of the pledgee. In Hays v. Riddle (supra) the pledgee delivered up bonds, which were convertible into stock at the option of the holder, for the specific purpose of such conversion, whereupon the stock was to be returned to the pledgee. In White v. Platt (supra) the pledgee of promissory notes delivered them up for collection that the proceeds might be returned to him. These cases and others like unto them are discussed in Casey v. Cavaroc (supra). (See, too, Jones Pledges, § 44 et seq.) But as the court say in Casey v. Cavaroc (supra): "All the cases cited, however, show that a bailment to the pledgor for a mere temporary purpose for the use of the pledgee, or for the repair and conservation of the pledge will not destroy the latter's possession; at the same time they imply that a redelivery to the pledgor, except for the special and temporary purposes indicated, divests the possession of the pledgee, and destroys the pledge." Upon naked request Aymar returned the certificates, and there is no proof that he did so for any special, limited or temporary purpose of his own or for his own benefit, so that the pledgor could be regarded in possession as the special bailee, servant or agent of the pledgee. Moreover, it does not appear that Cowperthwait senior, after he obtained possession of the certificates, dealt with them for the benefit or to the use of Aymar in any way. He caused the stock represented by the certificates, together with a few other Second Department, March, 1910. [Vol. 137. shares, to be transferred to Cowperthwait junior as trustee, and then delivered certificates standing in the name of Cowperthwait junior as trustee to Aymar as security for the old debt. This was done in two instances at about the time when the actions wherein this plaintiff became receiver came on for trial. We are not concerned with the reasons for the acts of Aymar. He appears in this record as a complacent creditor, business associate and friend, who was willing to accede to the requests of Cowperthwait senior without inquiry, to act in accord with his wishes without demur, and to accept whatever was given without complaint. It may well be that he supposed that the security he finally received was as valid as that originally given. But Aymar did not receive finally the original pledge or anything that represented it. The debtor, in place of the original pledge returned, substituted certificates of stock owned by Cowperthwait junior as trustee-a third party, so far at least as Aymar was concerned, which could be done. (Jones Pledges, § 53, and authorities cited.) When Aymar received such certificates he must be charged with notice that he received in pledge the property of a trustee as security for a debt arising out of an independent transaction, and hence he took such security at his peril. (First Nat. Bank v. Nat. Broadway Bank, 156 N. Y. 459; Gaston v. Am. Exch. Nat. Bank, 29 N. J. Eq. 98.) For these reasons the judgment must be reversed and a new trial must be granted, costs to abide the final award of costs. WOODWARD, BURR, THOMAS and RICH, JJ., concurred. Judgment reversed and new trial granted, costs to abide the final award of costs. AURORA HOLM, as Administratrix, etc., of THEODORE M. HOLM, Deceased, Respondent, v. EMPIRE HARDWARE COMPANY, Appellant. Second Department, March 31, 1910. Master and servant — negligence — contributory negligence — failure of servant to inspect as ordered. A foreman of carpenters employed in a factory who was ordered by his master to inspect a beam supporting a hoisting apparatus in order to ascertain whether |