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to provide the best possible machinery or the safest appliances known, but only such as are reasonably safe when used with reasonable care. He is not called upon to procure other devices to secure greater safety, provided those furnished by him are reasonably safe. The test of responsibility is not whether he omitted to do something that he could have done, but whether he was reasonably careful and prudent. Quigley v. Levering, 167 N. Y. 58, 63, 60 N. E. 276, and authorities there cited. For instance, had the plaintiff been employed to work at night, where he would require a light, and if the defendant had furnished him a kerosene lamp, and this had been overturned by a fellow employé, resulting in injury, would any one contend that because electric lights and gaslights were in common, everyday use in the cities of Chicago, Baltimore, and New York, the jury could be allowed to speculate as to the negligence of the defendant in furnishing a kerosene lamp? Yet the learned court submitted to the jury whether the defendant was guilty of negligence because it had furnished a chisel and hammer to cut off rails, while some other kind of a contrivance was used in the cities mentioned to accomplish the same work. There was no evidence, with the possible exception of a gratuitous remark by one of the witnesses that the saw plan had been adopted by "all railroad companies that want to accomplish any work in safety," that the saw plan was safer than the chisel and hammer, or that the railroads using the saw system had been led to make the change on the score of safety. The witness who intruded this remark into his evidence admitted on cross-examination that he knew nothing about any roads, "with the exception of the Third Avenue and Metropolitan," street railroads in the city of New York; and the inference is just as strong that the saw system was adopted because of greater economy in time or greater accuracy and efficiency, as that it was on account of the safety of the process. It is conceded that the tools were such as were ordinarily used, and that they were in good condition, so far as any reasonable inspection would disclose defects, and it was error for the court to submit the question of negligence to the jury upon the proposition that they might determine whether the defendant should have used some other method of cutting off its rails in making repairs in its railroad property. The appliances used on this occasion were of the simplest construction; they were in form such as have been in use from the most remote antiquity, and have been in use for the purpose for which the defendant was using them from the earliest days of iron and steel railway tracks; and the only question of the defendant's negligence, under the circumstances, was whether these tools were reasonably safe for the performance of the work which was to be accomplished. If they were, then there was an end of the case. The defendant is presumed to have done its duty. The burden of proving negligence was upon the plaintiff, and, in the absence of evidence to show that the chisel and hammer were not reasonably safe for the cutting of these rails, there was no case for the jury. It may be that, if the plaintiff had put in evidence showing that the use of a hammer and chisel for this kind of work was unsafe,-that it was so unsafe that it had induced other railroads generally to adopt the saw system,

and 106 New York State Reporter

the jury might have been warranted in holding that it was negligent on the part of the defendant to insist upon the use of the hammer and chisel, but there is no such evidence in the case. All that can be spelled out of the evidence is that some railroads in some of the cities of the country have used another method, but whether that is due to the greater efficiency and economy of the saw system, or whether it is because they have found the hammer and chisel so dangerous as to demand the change, does not appear, and we are clearly of opinion that it was error to refuse to dismiss the complaint. We are equally clear that the charge of the learned court, while stating the law correctly in the first instance, was erroneous in elaborating and explaining, and that the interests of justice demand a new trial.

The judgment and order appealed from should be reversed, and a new trial granted; costs to abide the event. All concur.

(64 App. Div. 509.)

FREEMAN v. AHEARN et al.

(Supreme Court, Appellate Division, Second Department. October 18, 1901.) 1. ACTION For Dower-ACCEPTANCE OF GROSS SUM-WAIVER OF IRREGULARI TIES.

Under Code Civ. Proc. § 1617, providing that in an action for dower the plaintiff may, at any time before an interlocutory judgment is rendered, where the defendants are in default, or at any time before the commencement of the trial, where an issue of fact is joined, file a consent to accept a gross sum in full satisfaction of her right of dower, where plaintiff files such consent after the interlocutory judgment, but prior to entry of judgment confirming the referee's report of sale of the land, irregularities in proceedings up to the time of filing are thereby cured.

2. SAME-APPLICATION FOR LEAVE TO PAY.

Under Code Civ. Proc. § 1618, providing that at any time after consent is filed as prescribed in section 1617, and before an interlocutory judgment is rendered, defendant may apply for leave to pay such gross sum, whereupon the court may, in its discretion, make an order directing payment, in the absence of such application a judgment confirming a referee's report of sale of the lands in question will not be disturbed on appeal.

Appeal from special term, Kings county.

Action by Catharine Loretta Freeman against Elizabeth G. Ahearn and others. From a judgment in favor of plaintiff, defendants Elizabeth G. Ahearn and Fannie L. Freeman appeal. Affirmed.

Argued before GOODRICH, P. J., and JENKS, WOODWARD, HIRSCHBERG, and SEWELL, JJ.

Francis A. McCloskey, for appellants.

Edmund G. Wakelee, for respondent guardian ad litem.
John C. Judge, for respondent Freeman.

PER CURIAM. The plaintiff brought this action to procure an admeasurement of dower in six houses and lots owned by her deceased husband. Section 1617 of the Code of Civil Procedure pro

vides that in such an action the plaintiff may, at any time before an interlocutory judgment is rendered, where the defendants are in default, or at any time before the commencement of the trial, where an issue of fact is joined, file a consent to accept a gross sum in full satisfaction and discharge of her right of dower in the real property described in the complaint. No such consent was filed in this case until after the interlocutory judgment had been rendered. The plaintiff did file such a consent, however, prior to the entry of the judgment confirming the referee's report of sale. From this judgment the defendants Elizabeth G. Ahearn and Fannie L. Freeman have appealed by a notice in which they state their intention of bringing up for review the preliminary order of sale, and also an order amending the final judgment. In the brief in behalf of the appellants the determination of this appeal is said to depend upon the broad question of law: "Has the supreme court power, in an action for dower, to sell the fee of the lands in which dower is claimed, unless the plaintiff first files and serves a consent to accept a gross sum in lieu of dower, as required by section 1617 of the Code of Civil Procedure?" Under the circumstances presented in this case we think that the filing of the consent prescribed by section 1617 of the Code of Civil Procedure before the entry of the judgment confirming the sale sufficed to cure whatever irregularity there may have been in the proceedings before that was done. The language of the Code is "may," not "must." In such an action it is the widow who is chiefly concerned with the question whether she will accept a gross sum in lieu of dower or not. We cannot see how it makes any difference to the defendants in this case whether that consent was filed before or after the rendition of the interlocutory judgment, so long as the widow avowed her willingness to accept money, instead of the land, before the property was actually sold.

It is said in the brief of the learned counsel for the appellants that they have been deprived of their property without due process of law, because they have not been allowed to redeem by paying the dower in gross, as provided for in section 1618 of the Code of Civil Procedure. They do not appear, however, to have made any application to this end. If they had deemed this deprivation a denial. of a substantial right, they could have applied to the court to set aside the interlocutory judgment and all proceedings subsequent thereto, and for an order granting them leave to pay such gross sum, if they had so desired. No application of this kind appears in the record. It is true that the defendants did ask for a modification of the judgment, but in an entirely different respect. They desired to strike out the direction to sell, and to substitute in lieu thereof a direction that a sum equal to one-third the rental value of the property be paid to the plaintiff annually during her life.

We find no defect or irregularity in the proceedings which would warrant any interference with the judgment, and conclude that it must be affirmed, with costs.

(64 App. Div. 558.)

and 106 New York State Reporter

MORSCHAUSER v. PIERCE.

(Supreme Court, Appellate Division, Second Department. October 23, 1901.) 1 INSURANCE-ASSIGNMENT OF POLICY-FRAUD-CONSIDERATION-WEIGHT OF

EVIDENCE.

A paid-up life policy for $1,628 was assigned for $300 by the holder's administrator to the wife of a client of the office occupied by the administrator and his attorney. A witness testified that, if the company should purchase the policy, they would pay about $650 for it. A disinterested witness (an insurance agent) testified that the fair cash value of the policy was $300. The company purchased its policies only on exceptional occasions. Held, that a finding that the assignment was in good faith and for a valuable consideration was proper.

2. SAME ASSIGNMENT OF POLICY.

Laws 1879, c. 248, requiring the consent of the husband to the assignment or surrender by a married woman of a policy issued to her, by her or by her legal representative on her death, does not apply to a policy issued on the husband's life for the benefit of his legal representatives, and afterwards assigned by the husband to his wife, and assigned on her death by her administrator.

Appeal from trial term, Dutchess county.

Action by Charles Morschauser, as administrator of the estate of Hester Halliwell, deceased, against James W. Pierce. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Argued before GOODRICH, P. J., and JENKS, WOODWARD, HIRSCHBERG, and SEWELL, JJ.

Charles F. Cossum, for appellant.
Allison Butts, for respondent.

JENKS, J. This action is to determine which party is entitled to the proceeds of a policy of life insurance paid by the insurance company to a trustee to abide the event. Halliwell took out the policy in 1876 for $5,000, payable upon his death to his legal representatives. In 1886 Halliwell duly assigned the policy to Hester, his wife. and her executors, administrators, and assigns. Hester died intestate, owning the policy. Baker, her administrator, surrendered the policy to the insurance company in consideration of a paid-up policy for $1,628, payable to him as administrator, or to his successor. Baker, as administrator, assigned the paid-up policy in 1886 for $300, and through several similar assignments the policy is held by the defendant. Baker died, and was succeeded as said administrator by this plaintiff and by the husband of Hester. The assured died in 1900, and both the plaintiff, as sole surviving administrator of Hester, and the said defendant, by virtue of the said assignment of the policy by Baker and the successive assignments based thereon, claimed the insurance moneys. The plaintiff contends that the first assignment of the policy by Baker, as administrator, was fraudulent and collusive, invalid, and without consideration, and ultra vires. The learned special term decided against the plaintiff, who now appeals.

The policy is regarded as "a chose in action, with all of the ordinary incidents belonging thereto, and as such may be assigned either as

collateral or as the payee may elect." Steinback v. Diepenbrock, 158 N. Y.. 24, 30, 52 N. E. 662, 663, 44 L. R. A. 417, 419, 70 Am. St. Rep. 424, 428. The policy was payable to Hester, her executors, administrators, and assigns, and passed, like any other chose in action, upon the death of the owner, to the person entitled to take the personalty. Geoffroy v. Gilbert, 5 App. Div. 98, 102, 38 N. Y. Supp. 643, affirmed in 154 N. Y. 741, 49 N. E. 1097, and cases cited. It is regarded as an asset of her estate. Johnston v. Smith, 25 Hun, 171; In re Knoedler's Estate, 140 N. Y. 377, 35 N. E. 601; Griswold v. Sawyer, 125 N. Y. 411, 414, 26 N. E. 464. And Baker, as her administrator; took the unqualified legal title to it, as he did to all personalty not specifically bequeathed, notwithstanding that he held as a trustee for the creditors, and for those entitled to distribution. Blood v. Kane, 130 N. Y. 514, 29 N. E. 994, 15 L. R. A. 490. No point is made against the exchange by Baker of the first policy for the paid-up policy, which was payable to him as administrator. But Baker, with the title to the policy as administrator, could make an assignment in good faith to a bona fide purchaser (2 Williams, Ex'rs, p. 120, and cases cited; Leitch v. Wells, 48 N. Y. 585, 595), even though in so doing he violated his duty (Leitch v. Wells, supra). A mere sale or transfer of such an asset by an administrator, which would result in realization of its fair money value, was not, in the terse words of Yeoman, J., in Gibbs v. Bank, 86 Hun, 105, 34 N. Y. Supp. 195, “in contravention of the trust, but a step in its execution." It certainly was not the affair of the assignee to see whether the consideration money was honestly applied by the executor. 2 Williams, Ex'rs, p. 122; Scott v. Tyler, 2 Dickens, 725; Leitch v. Wells, supra, and authorities cited; Gibbs v. Bank, supra. And the administrator's failure to account in no way affects the assignment, nor inculpates the assignee. Aside from the contention that the assignment was in violation of a statute hereafter noticed, the question, then, is whether the plaintiff established fraud, collusion, or bad faith in the assignment by Baker to Bedell, and thereby opened the way for equity to follow. 2 Williams, Ex'rs, pp. 122, 124, and cases cited. The learned special term decided that the assignment was not fraudulent, but in good faith and for a good and sufficient consideration, and I think that such decision is with the weight of evidence. Indeed, there is nothing in the record to indicate that the assignee did not take in perfect good faith. Even if the appellant had been permitted to show that such assignee was the wife of a client of the office occupied by the administrator and by Ackerly, who acted as his attorney, that fact in itself has no controlling weight. Nor was it established that the consideration paid for the assignment was insufficient. The assured lived for four years after the assignment of the policy. It is true that one witness testified that, if the insurance company were to purchase this policy, they would pay for it about 80 per cent.,-possibly $650. But he admitted that such a purchase is exceptional, and only made when the assured needs the funds for maintenance, and a valid release can be obtained from all parties in interest. the other hand, a disinterested witness, who was an insurance agent,

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