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was imposed upon him, in view of the origin of this note, as entitled him to have the court say, as matter of law, that he should recover. If we leave out of account for the moment plaintiff's prior acquaintance and relations with the payees, we believe that the conclusion must almost inevitably come that his conduct in taking this note was so unusual that it could not be said to indicate bona fides, certainly as a matter of law. Payees living in a distant state, without any apparent reason therefor, such as need of money, with great speed after their making, offer to him notes made by strangers living in a distant part of the state, and payable there, at a very substantial discount or "shave." The notes themselves, upon their face, with the unusual number of makers, naturally suggest the question, "What kind of a transaction produced such notes?" No inquiry is made to secure an answer. No information is obtained or sought to answer such question. A brief correspondence is resorted to, to learn the responsibility of a very few of the makers, and then, in the briefest manner possible, by telegram, the notes are purchased at a rate of discount yielding interest substantially twice the amount of that authorized by law, and, as we may take judicial notice, prevailing in the country for good paper at the time the notes were purchased. Independent of their former relations, the act of McLaughlin Bros. in seeking out the plaintiff, who was not a banker or broker, instead of going to their own banker, or to a bank in the locality where the notes were made, and their readiness to sacrifice a large percentage of the principal of the notes on their sale, were of themselves calculated to suggest to a man of ordinary experience that there was something unusual about them. If, under such circumstances, plaintiff had contented himself with making the inquiries which he did make, and had refrained from making others which readily suggest themselves to the mind, he would, we think, have fairly come within the principles applied in the Case of Diefendorf, cited supra to the conduct of the plaintiff's cashier in the transaction there under review. In that case the omissions of the cashier were regarded as very significant upon the question of bad faith. The plaintiff, however, is entitled to have us take into account the prior relations between him and McLaughlin Bros., and it is, of course, our duty to do

So.

But in doing this we do not find any help for plaintiff. He had been accustomed to purchase notes before, as we infer from the evidence, taking liberal discount. This note was apparently of the same general character as those others. Plaintiff "imagined" it arose in horse business. Those others had been evolved under such circumstances that there had been trouble with the collection of them; that the makers had protested against, and objected to their payment as valid obligations, and it had been necessary to "scare" them into paying. So that, when we take into account the facts of this prior relationship, we have added that these notes which plaintiff was purchasing upon this occasion were of the same general class as those which he had secured before, and over the collection of which he had had trouble, resulting in litigation, or the necesssity of threatening litigation. The inquiry must naturally have suggested itself to his mind whether the origin of these notes was surrounded by such cir

cumstances as would render the makers unwilling to pay them, and compel resort by him to "scaring" or coercive processes. It seems to us that all of these circumstances presenting themselves to the mind of a fair man, having any sort of regard for his own security, and any desire to avoid illegitimate and unsavory circumstances in the purchase of so large an amount of paper, must have prompted an inquiry somehow, somewhere, as to the origin and history of these notes. It was very easy to have made it. The letter which plaintiff wrote to McLaughlin Bros. about the notes, and of the contents of which we are largely in ignorance, might very easily have contained an inquiry in regard to them. In fact, it is difficult to conceive of a man intending to purchase them writing such a letter without asking, in some form, what these notes were given for. It would have occasioned no extra trouble when the plaintiff's relative, Moon, made his investigation as to the responsibility of the makers of this note, to have asked some one of them how he came to give the note. It would have been a simple matter to have asked the father of the payees, who lived near plaintiff, if he knew anything about their origin. In fact, to have refrained, as plaintiff did, from doing any of these things or making any of these inquiries, indicates to our minds either an absolutely willful and grossly negligent indifference as to the origin of the notes, or else an intention to refrain from knowing about them for some other reason. Upon all of the evidence in this case, the thought obtrudes itself that the relations between plaintiff and McLaughlin Bros. were well defined in their minds, and had definite objects and purposes. This was evidently not the only transaction that McLaughlin Bros. undertook in the way of selling a horse. If the testimony in this case fairly illustrates what took place. upon such purported sales, we may well understand that they would have difficulty in collecting the notes resulting from them. Neither would they be apt to obtain much assistance from procuring the discount of such notes in any reputable bank; for such bank, upon objections being made to the payment of notes such as are urged in this case, would be apt to insist upon McLaughlin Bros. taking up their notes, rather than engage in litigation over them with the makers. This does not seem, however, to have been the case with plaintiff. By selling to him their notes he was placed in a position where he could urge that he was a bona fide holder for value, and therefore exempt from defenses that might prevail as against the original payees, and he does not seem to have been unwilling to undertake litigation which might ensue from the collection of such notes. McLaughlin Bros. made themselves liable as indorsers to him. Therefore there was little opportunity for loss to him. On the other hand, if he succeeded, McLaughlin Bros. really obtained the benefits of his litigation, less the amount of the liberal discount allowed to plaintiff, and which made the relationship advantageous to him.

We think there was still another reason why this case should have been submitted to the jury. Plaintiff relied upon his own oral evidence with which to meet the burden of showing that he was a bona fide holder for value. As to some of the things which he did he is

and 106 New York State Reporter

so corroborated by undisputed letters and telegrams that his evidence would not come within the rule requiring the credibility of an interested witness to be passed upon by the jury. But, as we regard it, it was necessary to plaintiff's case that his evidence should not only be inclusive, but exclusive, and deal not only with affirmatives, but with negatives; that he was called upon not only to state what he did, but also to show that he had no other information or knowledge or notice as to or of the origin and consideration of these notes. Thus, in Vosburgh v. Diefendorf, 119 N. Y. 357, 365, 23 N. E. 801, 16 Am. St. Rep. 836, it was said that it was necessary for the plaintiff, in order to entitle him to recover, to show that he had no knowledge or notice of the fraud with which the instrument was tainted. The same rule was laid down in Smith v. Weston, 159 N. Y. 194, 199, 54 N. E. 38, and apparently in Bank v. Diefendorf, 123 N. Y. 191, 196, 25 N. E. 402, 10 L. R. A. 676. Plaintiff apparently recognized the extent of his obligations in this respect, for, in response to the questions of his own counsel, he testified that he knew nothing about these notes, or how they were procured, etc. As to the contents of the original letter from McLaughlin Bros. inclosing these notes to him, as to his letter to Mr. Moon, and as to the fact that in the course of all of these transactions he acquired no information or knowledge other than he has stated, his testimony stands uncorroborated; and its credibility was, we think, a question for the jury. Bank v. Diefendorf, supra.

The conclusions which we have reached upon the questions discussed render it unnecessary to consider the other defense, of usury, urged by these defendants, in reaching the determination that the judgment and order appealed from should be reversed, and a new trial had, with costs to appellants to abide event. All concur.

Judgment and order reversed, and new trial granted, with costs to appellants to abide event.

SHERLOCK v. SHERLOCK.

(Supreme Court, Appellate Division, Fourth Department. November 12, 1901.) MASTER AND SERVANT-INJURY OF SERVANT-ASSUMED RISK.

Plaintiff was employed in defendant's mill in charge of the boiler room. In a passageway in the boiler room there was a tank under the floor. with a hole in the floor above it, having a cover consisting of pieces of flooring not fastened together. In stepping on this cover, plaintiff's foot went between two of the boards into the tank below, and he was injured. He had worked in the same place for 31⁄2 years, and was familiar with the tank and cover, which had during all the time been in the same condition. Held, that he assumed the risk therefrom.

Appeal from Onondaga county court.

Action by Patrick Sherlock against William Sherlock. Appeal by defendant from a judgment of the county court affirming a judg ment entered in the municipal court of the city of Syracuse. Reversed.

Argued before ADAMS, P. J., and MCLENNAN, SPRING, WILLIAMS, and HISCOCK, JJ.

Thomas Hogan, for appellant.
J. J. Kennelly, for respondent.

WILLIAMS, J. The judgment of the county court and of the municipal court should be reversed, with costs. The action was brought to recover damages for injuries to the plaintiff alleged to have been caused by the negligence of the defendant. The plaintiff was employed in the defendant's mill and shop, and had charge of the engine and boiler room, and took care of the engine and boiler. He had been so employed for three years and six months before the accident. The boiler room had a wooden floor, and in a passageway near the fuel bin, and under the floor, was a tank, which was used as a receptacle for drippings and exhaust steam from the engine. There was a hole in the floor above this tank, and a cover thereto, consisting of six pieces of flooring boards, tongue-grooved. The boards formed a part of the floor, so far as appeared on the trial, were sound themselves, and rested upon sound joists; the only defect in the cover being that the pieces of boards were in no way fastened together. The plaintiff knew the tank was under the floor, and what it was being used for. He had used the cover as a part of the floor during all the time he had worked there, and had passed over it and stepped on it frequently. He had seen it taken. up, and knew, or should have known, perfectly the condition it was in. On the occasion of the accident he stepped upon the boards constituting the cover in such a way that they separated and let his foot through into the tank below, and he thus received the injuries complained of. The theory upon which the jury were permitted to render a verdict for the plaintiff was that the defendant failed to inspect the cover and discover its defective condition and to repair it before the accident. It appeared that it was the duty of the plaintiff to report to the defendant any repairs needed in the boiler room, so that they could be made, and that the plaintiff omitted to notify defendant of any defective condition of the cover in question. If any inspection had been made, no defective condition would have been discovered, except that the boards were in no way fastened together; and the plaintiff, who had seen the cover taken up, knew or must have known of that condition. Within well-settled legal principles, the plaintiff assumed the risks of such condition, and no recovery could be had for a failure by defendant to repair the same. For the reasons stated, the judgments of the county court and municipal court must be reversed, with costs. All concur.

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In re KILLAN'S ESTATE.

(Supreme Court, Appellate Division, Fourth Department. November 12, 1901.) PROCEEDINGS FOR FINAL SETTLEMENT AND ACCOUNTING

ADMINISTRATORS
PROCEDURE.

By the filing of a petition for final settlement by an administrator, and the issuance of citation thereon, the surrogate's court acquires jurisdiction of the administrator's accounting; and, when he has accounted and made settlement in accordance with the decree of distribution entered, the court cannot entertain a petition for an accounting de novo filed by one claiming to be an heir of decedent, and that he was not served with the citation, but the remedy of the latter, if not bound by the original decree and accounting, is by motion to have the same re opened.

Appeal from surrogate's court, Monroe county.

In the matter of the estate of Mary Killan, deceased. Appeal from a decree and order refusing to issue a commission to examine witnesses, and dismissing a proceeding against the administrator for a final accounting. Affirmed.

Argued before ADAMS, P. J., and MCLENNAN, SPRING, and WILLIAMS, JJ.

Myron D. Short, for appellant.

James M. E. O'Grady, for respondent.

WILLIAMS, J. The decree and order appealed from should be affirmed, with costs. The death of the intestate occurred August 24, 1898. O'Reilly, a creditor of the intestate, was appointed administrator of the estate October 21, 1898. The estate consisted of personal property of the value of $1,514.22. A citation for a final settlement on petition of the administrator was issued, returnable December 30, 1899. It was directed to the next of kin, heirs at law, creditors, and persons interested in the estate, and was served by publication, by order of the surrogate, upon Patrick Killan, one of the next of kin. On the return day of the citation, five persons, claiming to be cousins of the intestate, appeared, personally and by counsel, and claimed the estate. Their names were Martin Callon, John Callon, Margaret Dunn, Michal C. Callon, and Mary Ford. The administrator declined to recognize these persons as heirs or next of kin. Thereupon issue was joined on the question of relationship, and December 30, 1899, these persons appeared and were examined in surrogate's court, and were decreed to be cousins of the intestate, and the only heirs and next of kin living and entitled to share in the estate; and February 7, 1900, a decree was made in surrogate's court directing the administrator to distribute and pay to these persons the balance of the estate after the payment of debts and funeral expenses, and thereafter the administrator made payments accordingly, and filed his receipts in the surrogate's court. Thereafter, and on January 9, 1901, the petitioner in this proceeding, claiming to be a brother of the intestate and to live in Ireland, filed his petition, claiming no accounting as to him had been made, and asked that citation be issued to the administrator to so account.