it would be presented if this were an action at law to charge him with personal liability. His right to take the land, with the power to control and dispose of it in execution of the trust, was given by the will, and in respect to it the trustee is subject to the equitable jurisdiction of the courts of the state within which the land is situated, and such jurisdiction will be exercised by the court in behalf of creditors within the state.

The denial of the motion to dismiss the complaint as to the defendant Stevenson, therefore, was not error.

The liability of the heirs to pay the mortgage out of their property is proportionate with the real estate inherited by them respectively. And although no question arising out of the non-joinder of any representative of the estate which descended to Mrs. Hettrick is raised by the answer or otherwise, the defendants are not liable to pay out of their property any amount greater than that with which they are charged by the statute. The omission to plead the defect of parties defendant was a waiver merely of that defense to the action, without increasing the extent of the liability of the defendants or the amount which the plaintiffs would otherwise be entitled to recover against them respectively. It may be observed that the liability of the heirs to pay out of their property is not joint, nor is the estate which descended to any one of them subject to the proportion of the mortgage debt chargeable to any other of the heirs. The portion which descended to Jane McDonald was one-half and to each of the defendants Patterson and Bonner one-sixth. And inasmuch as the recovery in the court below was for the full amount of the mortgage debt, and the defendants represented only five-sixths of the estate which descended. to the heirs, the judgment should be so modified as to charge the defendants with only five-sixths of the amount of such recovery and direct the levy of it, duly apportioned, of the real estate which descended to Jane McDonald and the defendants Patterson and Bonner, and, as so modified, affirmed, without costs in this court to any party.

All concur (HAIGHT, J., in result), except FOLLETT, Ch. J., dissenting.

STACIA CULLEN, Adm'rx, Resp't, v. FREDERICK O. NORTON, App'lt.'

(Court of Appeals, Filed March 10, 1891.)

1. MASTER AND SERVANT-NEGLIGENCE.

One Doran, a superintendent in the employ of defendant, after placing plaintiff's intestate at work in a cement quarry, negligently or improperly placed others at work drilling near a hole of a blast in which the powder had not exploded, a d in consequence plaintiff's intestate was injured. Held, that Doran in placing deceased at work where he did acted in his capacity as an employe and not as a representative of the master, and that the latter was not liable for his negligence.

2. SAME.

Where a master has provided a competent and experienced foreman, ' Reversing 29 N. Y. State Rep., 700.

who has been in his employment a number of years, he is not chargeable with the consequences of a place for work made dangerous only by the carelessness and neglect of a fellow-servant.

(RUGER, Ch. J., and O'BRIEN, J., dissent.)

APPEAL from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiff, entered upon a verdict upon trial at circuit.

J. Newton Fiero, for app'lt; David M. De Witt, for resp't.

PECKHAM, J.-Assuming Doran to have been negligent, is the evidence in the case of such a nature as to show that the defendant was responsible for it, or was the negligence that of a fellowservant of the intestate? I think it was the latter. A master is bound to furnish reasonably safe and suitable implements for the use of the servant and a reasonably safe place of employment, considering the nature of the employment itself. There is very little room for disagreement as to the principles of law in this class of cases, but the difficulty lies in their application to the facts of each special case.

Did the defendant discharge this duty of furnishing, in the first instance, a reasonably safe place for the servant to do his work? The place was a cement quarry, and the work had proceeded so far that the business had to be conducted by blasting. To blast at all is to encounter some danger, and hence in this case all the danger incident to the working of the quarry, under conditions requiring frequent blasts, the workman took the risk of when he accepted employment in the quarry.

The danger of accident from the negligence of a fellow-workman is part of the risk assumed. The master was liable for the act of Doran in placing the deceased at work where he did, provided such act was of a character which the master was required to perform as master. This is the principle decided in Crispin v. Babbitt, 81 N. Y., 516, and it has never been receded from in this court. If Doran acted as master the defendant is liable, while if he acted in his capacity as an employe, and not as a representative of the master, his negligence does not rest upon the master.

The quarry was the place where the work was to go on, and the master was bound to make it a reasonably safe place for such work, considering its character and the necessarily dangerous nature of the work itself. For the manner in which the persons employed in the quarry should themselves perform the work, the master was not liable. It is not claimed that the master did not furnish a proper place to work in in the first instance; that is, when the deceased was employed the quarry was as safe as any quarry is where frequent blasts are being fired off. But the manner of the performance of each of the various details of the work by which, as a whole, it was to be conducted, rested necessarily upon the intelligence and care and fidelity of the servants to whom these duties were entrusted.

It can't be that every time a blast was exploded and the men came back the manner of their distribution for work was a duty of the master, and that the order of a foreman, mistakenly or

negligently given, must be regarded as the order of the master in filling a duty to furnish a safe place to work in. It is, as it seems to me, a detail of the working or management of the business, the risks attending which have been assumed by the party taking employment.

The case of Pantzar v. The Tilly Foster Iron Co., 99 N. Y., 368, was entirely different. The master was there held liable because, through the superintendent, it placed the plaintiff in a position of danger, not necessarily connected with or part of the conduct of the general work itself for which plaintiff was employed, and which danger was not caused by any negligent act or omission of a fellow servant. The plaintiff, while working in the pit of the mine, was injured by the fall of a mass of rock from an overhanging cliff, not caused by the negligence of any workman and not a natural or necessary part of the danger arising from the working of the mine itself. The superintendent and foreman had been warned of the danger before the plaintiff went to work at the place where he was injured, and they took no precautions to support the rock while the men were at work under it, although it was entirely practicable to do so. We held in such case the master failed to furnish a reasonably safe place to the plaintiff to continue his work.

In this case it is the ordinary one of choosing a method, a time and a place for continuing the work in the quarry, and this involved questions of judgment and discretion committed in this instance, it would seem, to Doran. He, it may be conceded, mismanaged or misjudged the matter, and after placing the deceased at work, negligently or improperly placed others at work too near the hole in which the powder had not exploded, and the consequence was this most unfortunate accident. The accident resulted from a negligent act done in the very course of the work, and by one of the fellow workmen of the deceased. The negligent act was a part performance of the work itself, the risks of which the deceased had assumed. The master had provided a competent and experienced foreman, who had been in his employment a number of years, and he was not chargeable with the consequences of a place for work made dangerous only by the carelessness and neglect of a fellow servant, Hussey v. Coger, 112 N. Y., 614-618; 21 N. Y. State Rep., 848, although that fellow servant happened to be the foreman.

The case of Tendrup v. The Stephenson Co. (Limited) decided in this court in 121 N. Y., 681; 31 N. Y. State Rep., 993, without an opinion, was a very close one, a border case so to speak, and not on which should be amplified in the slightest degree. The idea upon which its affirmance was founded in this court was that the ladder leading from an upper to a lower part of the place where the plaintiff was working was never sufficiently fastened down to make the place a safe one to work in, because of the readiness with which it could be removed without noise or notice. Hence it could be said the master had failed to furnish at all a safe place to work in.

The case of Kranz v. Long Island Railway Co., 123 N. Y., N. Y. STATE REP., VOL. XXXVI. 46

1;

33 N. Y. State Rep., 46, is not in point. There the trench was to be dug by others, and in it the plaintiff was to go for the purpose of cleaning out certain water pipes. The defendant owed a duty to see to it that the place the plaintiff was sent to work in should be reasonably safe. Here the decedent and the other men in the quarry were engaged therein, and by their blasting they were con tinually changing the conditions of the quarry, and its dangerous conditions were added to by the negligence of this foreman in carrying out the general purpose and design of the work in which they were all engaged, and he acted therein as a fellow workman and not as master or in place of the master.

In McGovern v. Railroad, 123 N. Y., 280; 33 N. Y. State Rep., 416, the decedent was sent into the bin to discover why it was that the grain had ceased to flow through the hopper at the bottom of the bin and where the difficulty was. It was known that there was a tendency in grain to heat, and when heated it would sometimes stick to the sides of the bin and cease to run out. When this was the case it was dangerous to attempt to enter the bin from the trap door in the bottom, as the grain might be detached, fall down, close the trap door and smother any one in the bin. The work could have been done from the top of the bin without danger. This court held there was evidence to go to the jury on the question whether the defendant had discharged the duty which it owed its servants, and whether it was not negligent in ordering its servants to enter a place obviously dangerous without first making proper inspection. Under the circumstances the place (the bin) was obviously dangerous to enter at all from below and its danger did not in any way depend upon the manner in which the work should be conducted by fellow servants after they entered the bin. The danger consisted in entering it at all through this trap door.

The court said it was the duty of the master to adopt all reasonable precautions to shield the servant from the danger he might be exposed to in the place assigned him for labor before requiring him to occupy it. This remark was made in reference to ordering him to enter an obviously dangerous place through this trap door, and when it was not at all necessary to enter from below. It was not at all dangerous unless there was grain in the bin, and then it was dangerous only for the time being and because of the known habit of the grain to heat and stick to the sides of the bin. It seems plain that the risk thus run by the decedent was no necessary, natural or usual part of the general business which he was employed to do and the risks of which he assumed when he entered the defendant's employment. The danger did not arise out of the prosecution of his work or the prosecution of the work of his fellow workmen, and hence when ordered to go into a place which was only made dangerous from this temporary cause and which was entirely disconnected with the ordinary prosecution of his work, it was an order from the master to occupy a place of danger which the jury might say he had not sufficiently, that is, reasonably guarded against, and for the injuries resulting from which the master should be held liable. The case at bar is not

similar in these respects. The facts already recited show the difference, and hence the McGovern case does not apply.

The case of Hogan v. Henderson (just decided by this court) 35 N. Y. State Rep., 870, is the latest example of the application of the law relating to master and servant in this particular. The defendant had been held liable below because of his alleged failure to furnish as master a reasonably safe place for the servants to do their work. We held that the place which the master furnished was the ship itself, constructed in the usual way, and which became unsafe not by reason of any careless or negligent plan or manner of construction, but solely from the way in which the longshoremen did their work. The injury, it was said, happened, not from any inadequate supply of boards to build the "stool,' but from the negligent manner in which the workmen used them, and we reversed the judgment against the defendant.

So in the case at bar. The master furnished the mine as a place for labor, and it was solely on account of the manner in which the foreman, a fellow-servant, performed the work or directed it that the accident happened, and happened in the course of the performance of the very kind and character of work which the plaintiff's intestate took the risk of by accepting employment. I think this case comes within the clear principle of the Crispin and Babbitt cases, supra, which remains in full vigor and life in this court. The same principle has been lately reiterated in Loughlin v. State of New York, 105 N. Y., 159; 6 N. Y. State Rep., 826.

The judgment should be reversed and a new trial granted, costs to abide event.

All concur, except RUGER, Ch. J., and O'BRIEN, J., dissenting.

ELIAS BACH et al., App'lts, v. SIMON TUCH, Assignee, Resp't.' (Court of Appeals, Filed March 10, 1891.)

1. SALE-RESCISSION ON GROUND OF FRAUD-ELECTION OF REMEDIES.

Plaintiffs first brought an action in which they sought an attachment, rtifying the sale of certain goods to defendant's assignor, but ignoring the credit given on the ground of their being obtained by fraud, and seeking to recover the purchase price of the property sold. The attachment being subsequently set aside, the suit was discontinued and this action begun, which repudiates the sale, claims the title and ownership of the goods themselves and seeks their recovery in specie. Held, that the plaintiffs made an election which ratified the sale of the goods to the assignor, and consequently cannot now maintain an action based upon the assumption that they still own the property.

2. SAME.

Where a party who has been induced by fraudulent representations to sell his goods to another elects to ratify the sale after knowledge of all the material facts going to prove the fraud, such election will be conclusive, although at the time he makes it he is ignorant that his vendee had made similar fraudulent representations to others by which he had obtained property from them.

APPEAL from judgment of the supreme court, general term, first department, denying motion by plaintiffs for a new trial made. 'Affirming 32 N. Y. State Rep., 941.