It follows that the order appealed from should be reversed, with $10 costs and disbursements, and motion denied with $10 costs, and the writ dismissed, with $50 costs. All concur.

(36 Misc. Rep. 96.)

In re LAWSON et al

(Surrogate's Court, Washington County. October, 1901.)

1. EXECUTORS-VOLUNTARY ACCOUNTING.

Code, § 2743, as amended in 1898 (Laws 1898, c. 565), provides that, in case of administration in intestacy, the decree must direct immediate payment and distribution where the administrator has voluntarily petitioned for judicial settlement of his accounts. Held to limit the distribution to that of an administrator of an intestate estate, and to exclude executors under a will.

2. SAME.

A petition by executors for the judicial settlement of their accounts stated that the only person interested in the estate is the sole residuary legatee named in the will, who is also an executor. The petition also named four legatees aside from the residuary legatee and four heirs at law. No waivers by any of these legatees, next of kin, or heirs at law of the issue and service of citation were filed, and one year has not elapsed since the issue of letters of administration. Held, that the petition will be denied.

In the matter of the judicial settlement of the accounts of Sarah Lawson and another, executors of Peter Lawson. Application for decree denied.

D. J. Sullivan, for executors.

INGALSBE, S. Letters testamentary were issued upon the will of the decedent December 3, 1900, to Sarah Lawson and Dennis J. Sullivan. A notice to creditors has been duly published. A petition is now presented by the executors for the judicial settlement of their accounts. It is accompanied by an account and vouchers. A proposed decree is submitted, settling the accounts, directing distribution, and discharging the executors. The petition does not give the name of any of the decedent's next of kin or heirs at law, but states that the only person interested in the estate of said deceased as creditor, legatee, next of kin, or otherwise is the Sarah Lawson who is the sole residuary legatee named in the will. This Sarah Lawson is one of the executors. The vouchers presented show payments of money to four different alleged legatees under the will of decedent. The petition which was filed for the probate of the testator's will names four legatees aside from the residuary legatee, and four heirs at law and next of kin. The will relates to both real and personal estate. No waivers by any of these legatees, next of kin, or heirs at law of the issue and service of a citation herein are presented. It is unnecessary for us to examine further to determine that the petitioners are not entitled to the decree for which they ask. But a still graver question awaits consideration. By an amendment to section 2728 of the Code it was provided by subdivision 2 that an executor or administrator might present his

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petition asking that his account be judicially settled when a notice requiring persons having claims against the decedent had been duly published, and it provided further for the issuance thereupon of a citation. At this time the distribution of testate and intestate estates was provided for under section 2743, as the result of the proceeding authorized by section 2728, and no change was made in the former section. In 1898, however, section 2743 was amended, providing:

"In case of administration in intestacy the decree must direct immediate payment and distribution to creditors, next of kin, husband or wife of the decedent, or their assigns, where the administrator has petitioned voluntarily for judicial settlement of his account as, and in the case provided in subdivision two of section two thousand seven hundred and twenty-eight of this article." Laws 1898, c. 565.

The purpose of this enactment is clear. Its plain intent is to limit the distribution in an accounting commenced under subdivision 2 to that of an administrator of an intestate estate. It follows that there can be no decree in judicial settlement entered here of the accounts of these petitioning executors. Could such a decree be entered, it would be subversive of various provisions of the general laws relating to the administration of testate estates. These statutes prohibit the payment of a legacy before the expiration of a year from the time of the granting of letters testamentary, unless an earlier payment is provided for in the will. During this period the residuary legatees are entitled to the interest on the general legacies. More important still, so far as the present case is concerned, these statutes allow any person interested in an estate to revoke the probate of a will at any time within one year. Any one of the four persons who are the next of kin and heirs at law of the decedent has the right, until the 3d of December, 1901, to come into this court, and file a petition to revoke the probate of this decedent's will. Of what value would this right be, after the estate disposed of by the will had been distributed under a judicial decree? It could, perhaps, be followed into the hands of the legatees, but the statute does not contemplate any such contingency. It intends that until the expiration of one year the estate shall remain within the jurisdiction of this court, and in the hands of the personal representatives of the decedent. The amendment of 1898 to section 2743 is conclusive as to this. In re Bronner, 30 Misc. Rep. 31, 34, 62 N. Y. Supp. 1003.

The application for the decree should be denied. Application denied.

(36 Misc. Rep. 98.)

SZOTAK v. BERWIND-WHITE COAL MIN. CO. (City Court of New York, General Term. October, 1901.) INJURY TO EMPLOYE-NEGLIGENCE OF FELLOW SERVANTS.

Where a coal miner in Pennsylvania, acquainted with the perils of crossing a mine's haulage way in which coal cars were run, was injured by a car while necessarily crossing such way, the fact that he had previously notified his mining foreman, made by the law in Pennsylvania. and the decisions of its courts his fellow servant, of the defects which contributed to his injury, and knew that such defects had not been remedied by such foreman, precluded him from recovering for injuries as for a neglect of his employer to furnish him with a safe place to work in.

Appeal from trial term.

Action by Joseph Szotak against the Berwind-White Coal Mining Company. From a judgment on a verdict for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Argued before CONLAN, O'DWYER, and HASCALL, JJ. Wilcox, Adams & Green (David L. Krebs and George Bethune Adams, of counsel), for appellant.

Jones & Nekarda (F. W. Catlin, of counsel), for respondent.

HASCALL, J. The action was brought to recover damages for personal injuries alleged to have been caused by negligence in permitting to exist an unsafe and dangerous exit from a coal mine owned and operated by defendant in Dunlo, Pa. In this mine plaintiff labored, and was in daily use of the passage in question. Entrance to the mine was by means of a cage, operated in a shaft leading into a slope, or haulage way. This slope was principally used for the purpose of transporting coal out of the mine by means of railroad cars, upon a single track, hauled and controlled by a cable. operated by an engineer in charge of a steam engine located near the entrance to the mine. Corridors or headings ran from this slope in various parts where the coal was dug. In these headings, other cars, for carrying out the excavated coal, were hauled by mules from and to the slope, where they were attached to the cable. In consequence of the operation of a railroad in this slope, it was considered a dangerous place, and it was commanded by law that a traveling or man way should be provided by the operator of the mine, and that persons employed as miners should "not travel to and from their work except by the traveling way assigned for that purpose." Act Pa. May 15, 1893, art. 20, rule 71 (P. L. 86). A proper manway had been provided by defendant, which followed the general direction of the slope and railway, and some feet away from it, on the opposite side from the entrance to the heading, mentioned in the testimony, where plaintiff worked. This manway was used by miners who were walking to and from performance of their daily tasks. The plaintiff alleges that he was leaving his place of work, March 9, 1900, at the close of day; was proceeding through the heading, in the direction of the slope; had reached the point of intersection of the heading with the slope, going towards the exit of the mine; and, while in the act of carefully stepping on the tracks in the slope,

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was unexpectedly and without any warning run upon, struck, and knocked down by a train of descending cars, and sustained severe and permanent injuries; that immediately before he so stepped upon the track in the slope his foot became, through no fault on his part, caught and fastened in an insecure and dangerous place, by the side of the track, obstructed by a steam pipe laid near by, which was defective, and out of repair. For further specification of acts of negligence on defendant's part, plaintiff charges, in rather vague averment, that this "defective pipe permitted steam to escape and obscure the view of persons going out of the mine; that it was negligently and carelessly allowed to remain there for a long time. prior to the day of the accident, with the result that, before plaintiff could extricate his foot, his collision with the cars occurred; that the train was proceeding on a downgrade; that defendant had negligently omitted to furnish brakes, or other proper facilities, for stopping or controlling the cars, and furnishing to employés an unsafe and dangerous exit." The defendant denies its carelessness; alleges contributory negligence by plaintiff, or fault of a fellow servant; asserts the operation of its mine under general laws and statutory rules, conformity therewith, and freedom from liability. No direct personal negligence is alleged against the owner; only a resulting liability because of omissions on the part of its superintendent, its direct representative. We have to consider whether the allegations are sustained against one duly charged in place of the owner, whether there was carelessness or improper conduct on the part of a co-workman, whether or not there was contributory negligence on plaintiff's part.

In his testimony plaintiff declares that he entered the mine, in the morning, by way of the cage, and walked down, not the manway, but the slope, about 150 yards, until he reached the heading where he was going to work; that there was a pipe, passing the heading, leading down from the cage along the slope, used to convey steam to pumps at a lower point in the mine; that, thus going to his work, this steam pipe was on his right hand, and, coming from his work, on his left; that he came down safely in the morning; that he had to pass this pipe in order to get out from the heading into the slope, and he went down and out the same way he went in, in the morning; that he had a light in his cap; that he was about crossing the tracks in the slope, to get into the manway, when the car struck him. With regard to his own vigilance and freedom from negligence, the plaintiff said that he looked and listened before going on the track; that steam from the alleged defective pipe, and noise it made in escaping, prevented him from seeing or hearing the cars as they came towards him; that he knew at what time the cars would pass; that he saw the steam, yet he kept right on; that these defects he had, some days before, brought to the attention of Mr. Griffiths, the mine foreman; that the hole, in which he says he caught his foot, was made partly by water and partly by the feet of the mules that drew the cars; ("the mules' feet had worn holes along between the ties"); that about a week before the accident he saw two or three holes at the same place; that he called the attention of the foreman

to them, and said, "I can't work there"; that again, two days before the accident, he called attention to them, and the foreman promised to fix them "right away"; that he had called attention to the hole in the pipe and escaping steam a week before the accident, and again two days before; that he was proceeding out of the heading in which he worked at 5 o'clock p. m.; that the place was lighted only by the lamp on his cap; that when struck his cap was on his head; that he was made unconscious, and hence did not know whether he was knocked, or was carried up the slope, on the left side, over 20 feet away from where he alleges he had been struck, and where he was found; that it was the custom of the employés, against orders, to walk on the ties in the slope, and the foreman himself had walked that way; that at the time of the accident the darkness of the mine and the escaping steam concealed the hole from view; that he knew it, yet went on; that he had worked in the mine 18 months before he was hurt; that the foreman, who employed him, was in the mine about three times a week, going around from one place to another and inspecting. He did not claim that his foot got caught by reason of the steam pipe, but was allowed, contravening his sworn allegation of particulars and over objection, to say that he got fastened in a hole between the ties of the track leading to the slope, made by mules tramping in water between the rails, while his complaint alleged that "while in the act of carefully stepping on the tracks in the slope" he was struck. It was shown by others that this steam pipe ran along the slope tracks, but was underground where the plaintiff said his foot got fast; that mules only went over the place described by him, in the heading, once in every 10 hours; that there was no water there, and (by three witnesses) that there was no hole there, and the track was in good repair; that the only noise from the pipe was a slight one, incident to the steam itself passing on through it; that an expansion joint, from which the steam was alleged to escape, was up the slope 30 to 36 feet from the heading; that a return of ventilation air to the shaft was ascending the slope at the rate of 500 feet per minute, and this would have carried any escaping steam away from the plaintiff, preventing obstruction of his view and of the place of crossing to the manway; that noise of steam, even if escaping, could not have drowned the noise of the cars; that a trackman, who was at the intersection of the heading and the slope, saw the plaintiff coming through the heading towards the slope, about 60 feet away, and heard the cars start, 500 feet away; that plaintiff was picked up on the left-hand side of the slope, the other side from that on which he claims he was standing when struck, and several yards above the heading; that he was struck on his face and nose; that he was found immediately, lying on the left-hand side of and up the slope, partly under the hind car; that from blood and flesh found on the brake handle of the car, he was probably struck by it; that this handle was on the left side of the forward car; that when found he was wet from having been in the small ditch on the left-hand side of the slope; that his cap was found, after the accident, some 24 feet up the slope, on the left-hand side.