App. Div.] Second Department, June, 1906. a certain period, and not till then, the servant cannot recover for an injury received before the end of that period." In Standard Oil Company of Indiana v. Helmick (148 Ind. 457) the promise was to repair as "soon as the order they were then filling was turned out," and the court said: "But here the promise was not to repair generally, which would imply that it was to be done within a reasonable time. The promise was to repair as soon as the present order was run out. How long that would take, whether a week, thirty days, six months or a year after the promise was made is not found in the special verdict. For aught that appears it may have required thirty days, or six months to run out that order. At the end of that time the promise was to repair. That being so, there could have been no inducement influencing the appellee to remain in the service and work with the alleged dangerous machine during that thirty days or six months, expecting the danger to be obviated as is the case where the promise is to repair generally implying it is to be done within. a reasonable time. In Indianapolis, etc., R. W. Co. v. Watson, supra,* it was said, on page 30: 'Now, if there had been a promise to furnish a lantern at the end of the thirty days, that would not relieve plaintiff from the risk incurred by working without a lantern for that thirty days, when, as he says, he had no expectation that a lantern would be furnished.' So, in the case before us, there could be no expectation on the part of the appellee that any repairs were to be made during the time required to run out the order on which appellee was at work at the time the promise was made. And, hence, during that time, whatever its length was (italics are mine), the promise would not relieve plaintiff from the risk incurred by working without such repairs. Therefore, if the plaintiff's injury occurred during the time required to run out that order, and before it was finished, the promise to repair did not relieve him from the risk incurred in working without the repairs. In other words, it left him as to risks from known dangers within that time as if no agreement to repair had been made, and that is that he assumed such risks." (See, too, McFarlan Carriage Co. v. Potter, 153 Ind. 107; 52 N. E. Rep. 209; Southern Pacific Co. v. Leash, 2 Tex. Civ. App. 68.) In fine, it seems to me that upon a promise to repair at a definite fixed period, the servant has no right to assume the risk until the arrival of * Indianapolis & St. Louis Railway Co. v. Watson (114 Ind. 20). — [Rep. Second Department, June, 1906. [Vol. 113. that period and then insist that the risk is that of the master before the arrival of that period. In the views of the court as explained to the jury the defendant was only responsible in case it had made the promise to repair, and if it had made the promise the jury were instructed as if the promise were general. Therefore, the jury, as instructed, could have found (indeed the only evidence was that way) that, notwithstanding the promise was only to repair at a fixed period, the defendant was liable for the accident that occurred before the period came. In the learned and elaborate opinion of WERNER, J., in Rice v. Eureka Paper Co. (supra) the two Indiana cases (supra) are cited at length. In Rice's case the promise was held to absolve the servant. It was made on Saturday night, at the close of the working week, and was "to the effect that the repairs would be made in the forepart of the following week, when the mill was to be shut down for other repairs." The court say that the plaintiff was an ordinary laborer, presumably not in the confidence of his employer so far as to know when the mill would be shut down, and that under such conditions. he may have gone to work on Monday morning with the expectation that the mill might be shut down at any moment without further notice; that, therefore, the court could not say as a matter of law that this would have been an unreasonable view, and that, therefore, as the promise made was capable of a construction that it might be fulfilled within a reasonable time, the plaintiff might be absolved. Between that case and this one there is no analogy of facts. The facts before us are extremely plain. The servant saw the loosened stone; he understood its menace to his proposed place of work. He called it to the foreman's attention in the morning. Both knew that a brace or braces would prevent its fall; the mas ter promised to brace it "after dinner," and the servant thereupon began work and was injured by the falling stone at ten-thirty A. M. The risk was apparent and understood; the remedy was plain and also understood. The qualification was "after dinner." The servant knew perfectly well, for the trench was only thirteen or fourteen feet deep, if since the promise any bracing above his head was doing or any work of that kind had been done. The promise does not present a qualification in words so ambiguous or so general as App. Div.] Second Department, June, 1906. to admit a supposition by any reasonable man that the prescribed period "after dinner" began in the early morning, and that, therefore, the master was in default at ten-thirty a. M., or to assume that a promise to act "after dinner" meant to act at once, so that he had an expectation that if the promise had been fulfilled the bracing might have been done at that morning hour. The measure for the master is often moderated by sympathy for the servant. Legislatures and courts often are benign in this humane age to strive to assure an equality in their relationship that otherwise does not exist from the very nature of the relation, to say nothing of the opportunities or the drawbacks of one or the other man that disturb equality. But we go far, and too far, in the road of collectivism, in holding that a servant, who deliberately disregards common prudence to encounter injury in service, may nevertheless hold the master liable for the consequences, if the master has promised that at some future specified time not yet at hand he will make the service safe. In other words, that the master cannot make a promise to repair qualified as to a future period with performance thus limited. The learned counsel for the appellant insists that inasmuch as the negligent act happened during the course of work, the rule of Cullen v. Norton (126 N. Y. 1), of Perry v. Rogers (157 id. 251), and of like cases, must apply. But the plaintiff was not at any work upon the trench incidental to it; he was breaking up stones that had been taken out of the earth and from the trench. True, he was in the trench, but that was the place where he did work, which in itself might have been done at any place where the free stones could be taken. And there is no evidence that at the time there was any work doing by any one upon the trench. On the contrary, the testimony that "it had been blasted where Citrone was working," and that " they sometimes blast at night in order to have the material on hand in the morning," justified the inference that when the plaintiff was put to work in this place the stones or earth did not fall in the course of any construction or destruction connected with the trench itself. It does not appear that at the time, or even on the day of the accident, in the words of VANN, J., in Simone v. Kirk (173 N. Y. 16), the servant (or any fellow-servant) "was engaged in the work of making a safe place for himself and his fellow-workmen.” Second Department, June, 1906. [Vol. 113. There is another principle that has been recognized in many decisions. Mr. Bailey, in his work on Personal Injuries, says (§ 3117): "Where the defect is so glaring that with the utmost care and skill the danger is still imminent, so that none but a reckless man would incur it, then, if the servant will engage in the hazardous undertaking, he must be considered as doing so at his peril, notwithstanding he may have assurances from the master that the defect causing the danger will be remedied." The principle is ably discussed by ELLIOTT, J., in Indianapolis & St. Louis Railway Co. v. Watson (114 Ind. 20). In Hough v. Railway Co. (100 U. S. 225) it is said: "We may add, that it was for the jury tó say whether the defect in the cowcatcher or pilot was such that none but a reckless engineer, utterly careless of his safety, would have used the engine without it being removed. If, under all the circumstances, and in view of the promises to remedy the defect, the engineer was not wanting in due care in continuing to use the engine, then the company will not be excused for the omission to supply proper machinery, upon the ground of contributory negligence." (See, too, Hannigan v. Smith, 28 App. Div. 176; McCarthy v. Washburn, 42 id. 252.) There is another feature in the case which, in view of the new trial, may be commented upon. The plaintiff testified not only that the foreman made a promise to repair, but that he also said the stones would not move that they would not fall. The servant could rightfully assume that the master had made the place reasonably safe. (Kranz v. L. I. R. Co., 123 N. Y. 1.) Nevertheless, if the danger was so apparent to the servant as to be as well known to him as to the master, he could not, even with the duty of the master in his mind, rely upon this assurance of safety that was contradicted by the physical fact fully apparent to him. (Graves v. Brewer, 4 App. Div. 327.) I do not pretend to say that upon the facts elicited the learned court erred in passing upon this question and withholding it from the jury. I think the judgment and order should be reversed and a new trial granted, costs to abide the event. RICH, J., concurred. Judgment and order affirmed, with costs. App. Div.] Fourth Department, May, 1906. In the Matter of the Application of CHARLES MEFFORD, Appellant, for a Writ of Peremptory Mandamus Commanding CHARLES H. SWARTS, Respondent, to Pay to the Said CHARLES MEFFORD Certain Moneys. Fourth Department, May 16, 1906. Town-audit of town board conclusive unless reversed by competent tribunal - when supervisor cannot refuse payment of audited claim not reviewable by mandamus when board is not made party- when peremptory writ of mandamus will issue. When a claim against a town for work done upon a highway has been audited by the town board which by resolution has directed a levy and assessment to meet the claim, and the entire audit of the town, including the amount allowed to the claimant, has been duly paid to the supervisor of the town by the collector with a direction to pay the claimant, such supervisor cannot refuse payment on the ground that he believes that the audit was too large. The audit of the town board is conclusive and of the nature of a judgment unless reversed by a competent tribunal. Moreover, when the town board is not made a party to a proceeding of mandamus brought to compel payment of an audited claim, the audit cannot be reviewed in such proceeding. A peremptory writ of mandamus ordering the payment of an audited claim will issue when neither the jurisdiction of the town board nor the legality of its action upon the relator's claim is contested. APPEAL by the petitioner, Charles Mefford, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Livingston on the 12th day of April, 1906, denying the relator's motion for a peremptory writ of mandamus directed to Charles H. Swarts. Newton B. Gorham, for the appellant. Robert Pratt, for the respondent. SPRING, J.: The relator, pursuant to a contract with the defendant as supervisor of the town of Sparta in the county of Livingston, made in September, 1904, performed services in excavating earth in constructing a subway railroad crossing in one of the highways of said town. The contract price for the excavating was twenty-six cents per cubic APP. DIV.-VOL. CXIII. 34 |