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GOODRICH, P. J. On June 17, 1900, after daylight, the plaintiff was injured by falling through an elevator opening in a platform at the defendant's factory, in the borough of Queens. He has recovered a judgment, from which, and from the order denying a new trial, the defendant appeals.

It appeared by the evidence of the plaintiff that the platform in question is of iron, and about 50 feet square. It was used by workmen in the operations of the defendant's business, elevators passing through it. There are trapdoors in the platform, 5 or 6 feet square, which open and close, and when closed are level with, and compose a part of, the floor. There are no guards about the opening through which the plaintiff fell. He had been in the service of the defendant about three months, and had been accustomed during that time to work on this platform. There were no ladders or other means of access to the platform, except the elevators, and the plaintiff was in the habit of using the elevators in going to and from the platform, and had used the one in question. He knew that there was no guard rail about the opening. While walking across the platform he slipped near the opening, and fell through to the floor below. The plaintiff offered in evidence an ordinance of the city providing that elevator openings like the one in question "shall be provided with and protected by a substantial guard or gate and with such good and sufficient trap-doors as may be directed and approved by the department of buildings. * * * Such guards or gates shall be kept closed at all times, except when in actual use, and the trap-doors shall be closed at the close of business each day." At the close of the plaintiff's evidence the defendant moved to dismiss the complaint upon the ground, among others, "that the plaintiff assumed the risk of the conditions that existed at that place, having full knowledge of the fact that there were no guards about the elevator." The motion was denied, and the defendant excepted. It appeared by the defendant's evidence (and this was not rebutted) that at the time of the accident another workman was moving the elevator up toward the platform, and that it had been moved up two feet when the plaintiff fell. The motion to dismiss was renewed at the close of all the evidence, and again denied, and exception was taken.

The defendant requested the court to charge the following:

"An employé, in accepting service with a knowledge of its character, the dangers of which are apparent, and from which he might be liable to receive injury, assumes the risks incident to the employment, and he cannot recover damages from his employer for injuries resulting from such dangers. If the jury find that the elevator in question was being operated in the customary and usual manner, and if the plaintiff was well acquainted with the manner of using the elevator, he must be held to have assumed the risks incident to the use thereof, and the verdict must be for the defendant. If the plaintiff knew that there was no guard rails around the elevator shaft, he must be held to have assumed the risks of the absence of the guard rails. "Mr. Nadal: I ask your honor to charge that the plaintiff in this action assumed the risk of the obvious conditions that existed at the time of the accident."

The court refused to charge except as already charged. In the main charge appeared the following:

"Then comes in the other principle which has been invoked on the part of the defendant, namely, that a workman assumes the ordinary and obvious risks which are incident to the employment itself, or which results from the dangerous environment into which the workman knowingly enters, provided the master has done all that his duty demanded of him with respect to securing the safety of his workmen. If this master did its duty as to providing a reasonably safe place for this workman, then, as the plaintiff took the risks of his employment, he cannot recover. If the master did not do its duty in that respect, then you may find negligence on its part; and if you so find, and also find freedom from negligence on the part of the plaintiff, you may render a verdict for the plaintiff. And you may find that there were no risks of the employment involved here, if you find that the master failed in its duty to the plaintiff."

Exception. was taken to the charge and the refusal.

The effect of the requests was to have the jury instructed that the plaintiff assumed the obvious risks of the situation, and by refusal the court instructed them that the plaintiff did not assume the obvious risks unless and until the defendant had performed all the duties that the law imposed upon him; that, as it was the defendant's duty to put up guard rails, the plaintiff did not assume the risk of their absence until the master had done its duty. There is a clear distinction between risks of service and obvious risks. The rule of law is well expressed in Knisley v. Pratt, 148 N. Y. 372, 42 N. E. 986, where the plaintiff was injured while cleaning a machine in motion, by reason of his hand being caught between cogwheels which were unguarded, contrary to the provisions of the factory act (chapter 398, Laws 1890). The court, speaking through Judge Edward T. Bartlett, said (pages 377, 379, 148 N. Y., and page 987, 42 N. E.):

"The defendants are chargeable, therefore, with one omission, only, under the statute, viz. a failure to properly guard the cogwheels of the punching machine. In order to sustain the judgment in favor of plaintiff, it is necessary to hold that where the statute imposes a duty upon the employer, the performance of which will afford greater protection to the employé, it is not possible for the latter to waive the protection of the statute under the common-law doctrine of obvious risks. We regard this as a new and startling doctrine, calculated to establish a measure of liability unknown to the common law, and which is contrary to the decisions of Massachusetts and England under similar statutes. It should be remarked at the outset that the factory act in this state does not, in terms, give a cause of action to one suffering an injury by reason of the failure of the employer to discharge his duty thereunder. An action for such injury is the ordinary common-law action for negligence, and subject to the rules of the common law. Caswell v. Worth, 5 El. & Bl. 855. The principle contended for seems to rest, if it can be maintained at all, upon a question of public policy. The factory act, it is said, is passed to regulate the employment of women and children, and imposes upon the employer certain duties, and subjects him to specified penalties in case of default; that a sound public policy requires the rigid enforcement of this act, and it would contravene that policy to permit an employé, by implied contract or promise, to waive the protection of the statute. We think this proposition is essentially unsound, and proceeds upon theories that cannot be maintained. * * * We are of opinion that there is no reason in principle or authority why an employé should not be allowed to assume the obvious risks of the business as well under the factory act as otherwise."

Freeman v. Paper Mill Co., 70 Hun, 530, 24 N. Y. Supp. 403, affirmed without opinion in 142 N. Y. 639, 37 N. E. 567, was an action based upon the failure of the defendant to maintain a trap or automatic door at an elevator opening, as prescribed by statute (section.

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8, c. 462, Laws 1887). The court had charged the jury that the statute had no sort of bearing upon the case if the jury should find, as they must find, on the evidence, that the plaintiff's intestate knew that the elevator was not provided with automatic doors, and that he knew what protection there was when he accepted the employment. This was held not to be error. The court added (page 535, 70 Hun, and page 406, 24 N. Y. Supp.):

"The absence of a door from the well was apparent, and must have been well known by plaintiff's intestate. He worked there for weeks before the happening of the accident, used the elevator daily, and several times a day. He knew of, and was instructed what to do with, the device that took the place of a door. It must be held that it was satisfactory to him, and that he waived the full and complete performance of the duty which defendant owed to him, and that he voluntarily assumed the risks incident to the absence of the door,"-citing numerous cases.

One other citation will obviate the necessity of further reference to the authorities. In Crown v. Orr, 140 N. Y. 450, 452, 35 N. E. 648, Judge O'Brien, speaking for the court, said:

"The master does not insure the servant against all accidents and mishaps that may befall him in the business. The servant, when he enters into the relation, assumes not only all the risks incident to such employment, but all dangers which are obvious and apparent. If he voluntarily enters

*

into or continues in the service without objection or complaint, having knowledge or the means of knowing the dangers involved, he is deemed to assume the risk, and to waive any claim for damages against the master in case of personal injury to him."

Under these authorities, the charge and refusal constituted reversible error, because the plaintiff assumed the risk of obvious conditions which existed at the time of the accident. One of these conditions was the absence of guard rails about the elevator opening, and such absence is claimed by the plaintiff to have been a proximate cause of the accident.

It is unnecessary to consider whether the accident was occasioned by the negligence of a fellow servant in leaving the trapdoor open. The judgment and order should be reversed, and a new trial granted. All concur.

SINSKIE v. BRUST et al.

(Supreme Court, Appellate Division, Second Department. November 15, 1901.) 1. REPLEVIN-DAMAGES FOR DETENTION-SEPARATE ACTION THEREFOR.

Laws 1897, c. 378 (Greater New York Charter, § 1369), makes the provisions of the consolidation act (Laws 1852, c. 410) relating to the procedure, service, and execution of process, appearance, practice, proceedings, and judgment applicable to actions and proceedings in the municIpal court; and Consol. Act, § 1344, provides that where the defendant does not appear, and no personal service of summons has been made on him, in an action of replevin, the justice may proceed to hear and determine the action in respect to the chattel. Held, that a separate action for damages for the taking and detention of property seized on execution, and subsequently replevied, could be maintained by the plaintiff in replevin against the defendants therein the municipal court of New York City.

in

2. SAME-ELEMENTS OF DAMAGE.

In an action for damages for the wrongful taking and detention of property recovered in replevin, the costs and expenses incurred in recovering the possession of the property are not elements of damage. 8. SAME-COSTS.

Under Code Civ. Proc. § 3229, providing that where, in an action against two or more defendants, the plaintiff is entitled to costs against one or more, but not against all, none of the defendants are entitled to costs of course, but the court may award them in its discretion, it was not error for the court to refuse to award costs to one of two defendants in an action for damages for the detention of property, against whom the complaint had been dismissed.

Appeal from municipal court, borough of Richmond.

Action by Lena Sinskie against August C. Brust and another. From a judgment in favor of plaintiff, defendants appeal. Judgment modified and affirmed.

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

David A. Sullivan, for appellants.

Frank H. Innes, for respondent.

SEWELL, J. This action was brought to recover damages for taking and detaining chattels. It appears that the defendant Sommers recovered a judgment against one Lucas Sinskie, the husband. of the plaintiff. An execution was issued thereon, and delivered to the defendant Brust, one of the marshals of the city of New York, who levied upon a horse, wagon, and harness of the plaintiff, and took the property into his possession. Thereafter the plaintiff commenced an action in the municipal court to recover possession of the chattels, and such proceedings were had that judgment was entered awarding the possession to the plaintiff, without damages for the taking or detention of the same. It appears by the return of the marshal in the action of replevin that personal service of the summons was not made upon the defendant, that the defendant did not reside and could not be found in the county of Richmond, and that the service of the papers was made by delivering the same to Walter S. Scott, the defendant's agent, in whose possession the property was found. It was stipulated upon the trial of this action that the plaintiff "commenced an action of replevin, and as a result of this action judgment was taken by default on the 13th day of September, and the horse, wagon, and harness delivered to her. As to the costs of the action, the expenses were to the marshal, counsel fees and court fees, summons, etc. She was compelled to pay out the sum of $56.60."

The provisions of the consolidation act (chapter 410, Laws 1882) relating to the procedure, the summons, or other process, service and execution of the same, appearance, practice, proceedings, and judgment, were, by section 1369 of the Greater New York charter (chapter 378, Laws 1897), made applicable to actions and proceedings in the municipal court. Section 1344 of the consolidation act provides that where the defendant does not appear, and the summons has not been personally served upon him, and a chattel or

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a part of a chattel to recover which the action is brought has been replevied, and the proceedings thereupon have been duly taken, "as prescribed in this title," the justice may proceed to hear and determine the action with respect to the chattel or part of a chattel; or, if the action is brought to recover two or more chattels, with respect to those which have been specified in like manner and in like effect as if the summons had been personally served. I think that the effect of this section is to make the damages for taking or detaining the property a distinct and separate claim where the defendant does not appear, and the summons has not been personally served. The legislature did not make section 1730 of the Code of Civil Procedure applicable to municipal courts. But under that section a court has power to determine the plaintiff's right to the possession of property which has been replevied only where the defendant neither appears in the action nor is served with process. In such a case the defendant is not personally bound as to any fact determined in the action so that he is precluded from denying it in a subsequent litigation concerning matters other than his right to the property affected by the judgment. Schwinger v. Hickok, 53 N. Y. 280; Rigney v. Rigney, 127 N. Y. 408, 28 Ñ. E. 405, 24 Am. St. Rep. 462. I am, however, of the opinion that the plaintiff was not entitled to recover as damages the costs and expenses incurred in the action to recover the possession of the property. I do not think the admission that the plaintiff was compelled to pay out the sum of $56.60 sufficient to justify the recovery of that sum as special damage. Cook v. Gross, 60 App. Div. 446, 69 N. Y. Supp. 924.

It is urged that the court, having rendered a judgment dismissing the complaint as against the defendant Sommers, should have awarded costs to him. Judgment was not given against the plaintiff in the action. She was entitled to costs against one of the defendants, and the court, in the exercise of its discretion, had the power to decline to award costs to the other. Code Civ. Proc. § 3229; Sawyer v. Gates, 14 N. Y. St. Rep. 236; Hodgkins v. Mead, 25 N. Y. St. Rep. 937, 5 N. Y. Supp. 435; Frazer v. Hunt, 18 Wkly. Dig. 390.

It follows that the judgment must be modified by deducting from it the sum of $56.60, and, as modified, affirmed, but without costs of this appeal. All concur.

BURT v. CATLIN.

(Supreme Court, Appellate Division, Second Department. November 15, 1901.) MASTER AND SERVANT-CONTRACT OF EMPLOYMENT-DISCHARGE.

The fact that one of two servants committed a simple assault on the other does not necessarily justify the master in discharging the assailant, but the right depends on the circumstances of the personal encounter.

Appeal from Westchester county court.

Action by Walter L. Burt against William H. Catlin. From an order setting aside a verdict in plaintiff's favor and granting a new trial, he appeals. Reversed.