Y. 66, was the first authoritative decision on the effect of the Revised Statutes. It involved a grant made in 1832 to one John Jackson "for and during his natural life, and after his decease to his heirs and their assigns forever." The question was whether the children of John Jackson had an interest in the premises which they could convey during his life. Judge Woodruff was of the opinion, first, that the remainders were vested, and, second, that if contingent, they were alienable under the Revised Statutes, although the uncertainty was as to the persons. A majority of the court concurred on the latter ground, as was pointed out by Judge Finch in Hennessy v. Patterson, 85 N. Y. 91, 104. While Moore v. Littel has sometimes been criticized, it has never been overruled, but has been cited many times as authority for the proposition that contingent estates are alienable. Ham v. Van Orden, 84 N. Y. 257, 270; Beardsley v. Hotchkiss, 96 N. Y. 201, 213; Dodge v. Stevens, 105 N. Y. 585, 588, 12 N. E. 759; Griffin v. Shepard, 124 N. Y. 70, 76, 26 N. E. 339; Matter of Pell, 171 N. Y. 48, 54, 63 N. E. 789, 57 L. R. A. 540, 89 Am. St. Rep. 791; Roosa v. Harrington, 171 N. Y. 341, 353, 64 N. E. 1; Baltes v. Union Trust Co. of N. Y., 180 N. Y. 183, 187, 72 N. E. 1005. It seems strange that the question should still be thought open. It should be set at rest. We adhere to the ruling of Moore v. Littel not alone because it has been recognized as authority so long, but because that ruling gives effect to the plain language of the statute. I may add that the rule is the same in Massachusetts. Putnam v. Story, 132 Mass. 205; Whipple v. Fairchild, 139 Mass. 262, 30 N. E. 89. The judgment should be affirmed, with costs. CULLEN, C. J., and WILLARD BARTLETT, CHASE, CUDDEBACK, and HOGAN, JJ., concur. GRAY, J., not voting. Judgment affirmed. (209 N. Y. 24) may in the performance. of a particular act be the servant of another. 301.*] [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1210-1216; Dec. Dig. § 2. MASTER AND SERVANT (§ 332*)-NEGLIGENCE OF SERVANT-RELATION-QUESTION FOR JURY. Defendant having sold a wool carding masent C. to do the work. After it was erected chine to a mill company, and agreed to erect it, and secured, it was necessary to adjust it, and C., when starting on this work, observed that an iron ball on the feed with which he had nothing to do was not properly secured. While correcting this, the ball dropped, and, falling through a hole in the floor, struck deceased, who was on a lower floor, and inflicted injuries whether C.'s act in adjusting the ball was withfrom which she subsequently died. Held, that in the scope of his employment depended on whether, under the circumstances, it was proper one to be done by him in the furtherance of his master's interest, which was a question for the jury, since, if his intent was to forward defendant's business of adjusting the carding machine, then the defendant would be liable, provided C.'s act was within the scope of his employment, while if the adjustment of the ball was done for any other purpose, or if it was not necessary for the adjustment of the carding machine, or improper for C. to do the work himself, defendant would not be liable. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1274-1277; Dec. Dig. §: 332.*] Willard Bartlett and Cuddeback, JJ., dissenting. Appeal from Supreme Court, Appellate Division, Fourth Department. Action by John J. Casey, as administrator of the goods, chattels, and credits of Anna L. Casey, deceased, against the Davis & Furber Machine Company. From a judgment of the Appellate Division (149 App. Div. 423, 134 N. Y. Supp. 355) affirming a judgment on a nonsuit at Trial Term, plaintiff appeals. Reversed, and new trial granted. Stewart Hancock, of Syracuse, for appellant. Louis L. Waters, of Syracuse for respondent. CULLEN, C. J. The action is brought to recover for the death of plaintiff's intestate caused by the alleged negligence of the defendant's servant. The circumstances of the accident are these: The deceased was em CASEY v. DAVIS & FURBER MACH. CO. | ployed in a woolen mill. The corporation (Court of Appeals of New York. June 3, 1913.) 1. MASTER AND SERVANT (§ 301*)-RELATION —EVIDENCE — GENERAL SERVANT OF AN OTHER. owning and operating the mill had purchased from the defendant a carding machine which, as testified by the president of the corporation, though it was not so specified in the written contract, the defendant agreed to set up and start. The carding machine consisted of three cylinders or rollers over which successively the wool was passed. Automatic feeds were used to feed the stock to the rollers. In this case the feeds were not bought of the defendant, nor was it claimed that the defendant was under any obligation to install them. The defendant did send Where plaintiff's decedent was injured by the negligence of defendant's servant while adjusting a certain wool carding feed machine, which work was claimed to have been no part of the servant's business as an employé of defendant to set up the carding machine, the fact that defendant paid the servant's wages for the whole time he was working in the mill where the machine was set up for the purchaser was not conclusive on the question whether the servant was the servant of defendant or the mill company at the time of the accident, since a servant in the general service of one master an employé, one Clow, who, with some assist scope of Clow's employment depends on whether, under the circumstances, it was a proper one to be done by him in furtherance of his master's interests. If the work on the feed ball was done by Clow with any other purpose than to enable him to adjust the carding machine, or if it were not necessary for that purpose, or if, under the circumstances, it was not necessary or proper for Clow to do this work himself, instead of calling upon the millhands to do it, then in any of these cases the defendant was not liable. ance from the millhands, set up the carding | N. E. 739. Whether the act was within the machine. The feeds were set up by the millhands with some assistance from Clow. After the machine had been erected in its place and secured to the floor it was necessary to adjust it and for this purpose to test it by operation. Clow, when starting on this work, observed that an iron ball on the feed was not properly secured, sought to correct this, and while so doing the ball dropped, and, falling through a hole in the floor, struck the deceased, who was on a lower story, inflicting the injuries from which it is claimed she subsequently died. [1, 2] There is but one question presented on this appeal (the complaint having been dismissed at the close of the plaintiff's case): Was Clow in doing the work in which he let the ball drop, acting as the servant of the defendant? The question is a close one, but we think it should not have been decided by the court as a matter of law, but submitted to the jury as one of fact. The defendant paid Clow his wages during the whole time of his work at the mill, but the mill company paid Clow's other expenses. This, however, is not conclusive on the question, because a servant in the general service of one master may in the performance of a particular act be the servant of another. Wyllie v. Palmer, 137 N. Y. 248, 33 N. E. 381, 19 L R. A. 285. Nor is there anything in the argument that, if Clow was not the servant of the mill company, he must have been the servant of the defendant. He may have been the servant of neither, though his intention was to serve both. The liability of the defendant depends on the scope of his employment, the intent with which he did the act, and whether, under the circumstances, the act was one he was justified in doing on his master's behalf. These were questions for the jury. There was evidence in the case from which the jury could have found that it was not practicable to feed by hand the roller at which the ball fell, and that the machine could not be adjusted except it was first put in operation with the wool passing through it. It must be conceded that neither the defendant nor Clow was under any obligation to remedy any defect in the feed. The mill company could have been called upon to do that work, and had it refused to do it, this would have relieved the defendant from any obligation to adjust the machine. But to call upon the mill company might have taken time and caused delay. The work on the feed seemed trivial, though unfortunately in this case its result was serious enough. If Clow's intent in his work on the ball of the feed was to forward his master's business of adjusting the carding machine, then his master would be liable for his act, provided the act fell within the scope of his employment. Wright Steam Engine Works v. Lawrence Cement Co., 167 N. Y. 440, 60 The judgment should be reversed and a new trial ordered, with costs to abide the event. GRAY, CHASE, and MILLER, JJ., concur. WILLARD BARTLETT and CUDDEBACK, JJ., dissent. HOGAN, J., not sitting. Judgment reversed, etc. (209 N. Y. 29) TAYLOR v. NEW YORK LIFE INS. CO. (Court of Appeals of New York. June 3, 1913.) 1. APPEAL AND ERROR (§ 1212*)-REVERSALNEW TRIAL-SCOPE OF INQUIRY. the court directed a verdict for plaintiff, at the In an action on two life insurance policies, same time filing an informal memorandum showing that the amount for which he directed policies. Judgment was entered generally for the verdict was computed solely on one of the plaintiff; there being no finding or judgment for defendant on the cause of action based on the other policy. On defendant's appeal the Held, that the new trial was to be had as to judgment was reversed and a new trial granted. both causes of action; there being no judgment or determination amounting to an adjudication upon which defendant could insist in bar to either cause of action. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4713; Dec. Dig. § 1212.*] 2. INSURANCE (§ 367*)-NONPAYMENT OF PRE MIUMS-EXTENDED INSURANCE. A life insurance policy provided that after being in force three years, if any premium was not paid when due, the policy would be continued for its full amount for the periods provided in a table therein contained. On December 20, 1898, at which time an annual premium became due, insured paid one-fourth of such premium and executed a note for six months for the balance which provided that it was given with the understanding that all claims to further insurance and all benefits whatever, which full payment in cash of such premium would have secured, should become immediately void and forfeited if the note was not paid at maturity, except as otherwise prosuch note he paid a further sum equal to onevided in the policy itself. At the maturity of fourth of the premium and gave a similar note for the balance for three months which was not paid. The reserve on such policy on December 20, 1898, would not have extended the policy until insured's death but the reserve on September 20, 1899, to which date the policy was extended by the notes computed according to the American Experience Table of Mortality at the rate of 42 per cent. per annum, as required by Laws 1892, c. 690, in force when the pol icy was issued, and the notes given, after de- [ment was unanimously affirmed. Taylor v. ducting the indebtedness represented by the N. Y. Life Ins. Co., 131 App. Div. 922, 115 note, would extend the policy until after insured's death. Held, that the policy was in force at the time of insured's death he being equitably entitled to the reserve computed as prescribed by statute; and the note not having waived the benefit of the reserve arising from the partial payments of premiums, especially in view of the provision of Insurance Law (Consol. Laws 1909, c. 28) § 88, relative to the surrender value of lapsed or forfeited policies, that it shall not apply where its provisions are specifically waived in the application and notice of the waiver is written or printed in red ink on the margin of the face of the policy when issued. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 935, 938; Dec. Dig. § 367.*] Appeal from Supreme Court, Appellate Division, Fourth Department. Action by Emma A. Taylor, as executrix of Royal A. Johnson, deceased, against the New York Life Insurance Company. Judgment for plaintiff was affirmed by the Appellate Division, Fourth Department (153 App. Div. 940, 138 N. Y. Supp. 1145), and defendant appeals. Affirmed. James H. McIntosh, of New York City, for appellant. Charles E. Spencer, of Syracuse, for respondent. N. Y. Supp. 1146. An appeal was then taken by the defendant to this court, where the judgment of the Appellate Division was reversed and a new trial granted. Taylor v N. Y. Life Ins. Co., 197 N. Y. 324, 90 N. E. 964. At the new trial plaintiff offered both of said policies and also testimony relating to each in evidence. The defendant insisted that the plaintiff should not be allowed to retry the action so far as it is based upon policy No. 709973, because, as it alleged, the judgment rendered in favor of the plaintiff upon the first trial was not in anyway based upon such policy. The defendant's contention was overruled and judgment was rendered against the plaintiff upon the cause of action based upon policy No. 709973 and in favor of the plaintiff upon the other cause of action for an amount computed in accordance with the opinion written by this court on the appeal from the first judgment against the defendant. An appeal was taken to the Appellate Division by the plaintiff from that part of the judgment dismissing the complaint as to the cause of action on policy No. 709973 where the judgment of the trial court, so far as appealed from, was reversed, and a new trial granted as to the cause of action affected by the appeal. Taylor v. N. Y. Life Ins. Co., 148 App. Div. 815, 133 N. Y. Supp. 746. On the third trial judgment was rendered in favor of the plaintiff against the defendant on such cause of action. An appeal was taken therefrom to the Appellate Division, where the judgment was affirmed. Taylor v. N. Y. Life Ins. Co., 153 App. Div. 940, 138 N. Y. Supp. 1145. CHASE, J. On December 20, 1895, the defendant issued to the plaintiff's testator two policies of insurance, of $5,000 each, numbered 709973 and 709974. The annual premium on each was $304, to be paid yearly in advance, "until fifteen full years' premiums shall have been paid." After paying three full years' premiums on each of said policies, and after making certain provisions as hereinafter mentioned for the fourth year's premiums, and on October 21, 1906, he died. The judgment entered upon the verdict obThe beneficiary named in said policies having tained at the first trial was a general judgdied prior to the death of the insured, the ment for the plaintiff. There was no finding plaintiff, as his personal representative, or judgment for the defendant on the second brought an action against the defendant upon cause of action. When the judgment against said policies. The action was tried before the defendant was reversed, it left the parthe court and a jury, but, after a stipulation ties with their rights wholly unaffected by by the parties that the court should deter- any previous adjudication. The issues were mine the issues, a verdict was directed for shown by the pleadings. There was no judgthe plaintiff for $4,856.92. Judgment was en-ment in favor of the defendant upon either tered upon such verdict. It appears by an cause of action or any determination amountinformal memorandum filed by the judge pre-ing to an adjudication which the defendant siding at the trial that the amount for which could insist upon in bar of either cause of the verdict was directed was computed by action alleged in the complaint. him solely upon policy No. 709974. [2] The other questions involved on this [1] The complaint alleged two causes of appeal were fully considered on the former action, one on each of said policies. No mo-appeal in this court, and the decision therein tion was made to dismiss the plaintiff's com- is controlling unless the facts relating to the plaint as to either of said causes of action, payment of the fourth year's premium on the and the judgment as entered was based policy now under consideration require a difwholly upon the verdict of the jury as direct- ferent determination. The two policies held ed by the court. No judgment of any kind by the plaintiff's intestate were alike in form was entered at the first trial in favor of the and in the terms thereof as quoted in the defendant. An appeal was taken by the de- opinion of this court on that appeal. fendant from the judgment entered against it to the Appellate Division, where the judg When the fourth year's premium became due on policy No. 709974 the insured gave a note quoted in the opinion mentioned and re- | quently canceled but retained by the deceived therefor a receipt in the usual form fendant. for the premium due that day. The insured wholly failed to pay such note. The defendant insists that the policy now under consideration expired on the day previous to the death of the insured. It further insists that, by the terms of the note and receipt quoted and the note and receipt given in renewal thereof, the payments upon the fourth year's premium were wholly forfeited. It relies for such contention upon Holly v. It is conceded that the payment of three full years' premiums on policy No. 709973, now under consideration, gave to the insured extended insurance as provided by the policy and the statute. It is also conceded that the reserve after such payments extended the policy for its full amount of $5,000 to October | Metropolitan Life Insurance Company, 105 20, 1906. The insured died on the following day. The question involved on this appeal is whether the policy was further extended for at least such one day by what was done toward paying the fourth year's premium. On the day that the fourth year's premium became due the insured paid to the defendant $76 in cash and delivered to the defendant a note which was accepted by it, of which the following is a copy: "Pol. 709973. Tucson, Arizona, 12/20, 1898. Without grace, six months after date I promise to pay to the order of the New York Life Insurance Company, two hundred and twenty-eight and no/100 dollars at Phoenix National Bank, Phoenix, Arizona. Value received, with interest at the rate of 5 per cent. per annum. This note is given in part payment of the premium due Dec. 20th, 1898, on the above policy, with the understanding that all claims to further insurance and all benefits whatever, which full payment in cash of said premium would have secured, shall become immediate-er things, that: "This policy cannot be forly void and be forfeited to the New York Life Insurance Company if this note is not paid at maturity, except as otherwise provided in the policy itself. $228.00. Royal A. Johnson, P. O. Address: Tucson, Arizona.” And at the same time the defendant gave to the insured a receipt of which the following is a copy: "New York Life Insurance Company, 346 & 348 Broadway, New York, Phoenix, Arizona, 12/19/98. Cash $76.00. Note 6 mo., dated Dec. 20th, 1898, Due June 20, 1899, without grace. Made by Royal A. Johnson. Payable at the Phoenix National Bank, Phoenix, Arizona. Received from the owner of Policy No. 709973 $76.00 in cash, and his note at six months for $228.00 which continues said policy in force until the twentieth day of December, 1899, at noon, in accordance with its terms and conditions, provided the above note is paid at maturity and this receipt is signed by J. V. Hollingsworth, Cashier, per pro R. Allyn Lewis, Gen. Agt." When said note of $228 became due the insured paid to the defendant a further sum of $76 in cash and the interest on said note and gave to the defendant another note for $152 which was accepted by it. It was similar in form to the one quoted except that it was given for three months instead of six months. At the same time the defendant gave to the insured a receipt similar in form to the one quoted. The last-mentioned note N. Y. 437, 11 N. E. 507. The note and receipt under consideration in the Holly Case were substantially the same as the note and receipt now under consideration, except that there is added to the note in this case the words, "Except as otherwise provided in the policy itself." The policy under consideration in the Holly Case was written prior to the statutes of this state relating to the surrender value of lapsed or forfeited policies. Such statutes have been passed for the express purpose of preventing the forfeiture of a policy of insurance so long as the reserve on such policy, computed according to the American Experience Table of Mortality at the rate of 42 per cent. per annum, will continue it in force in some form as provided therein. The statute in force at the time when the policies were issued and at the time when the note and receipt quoted were given was chapter 690, Laws of 1892. The policies expressly provide, among oth feited after it shall have been in force three It is found by the trial court that: "The reserve on policy No. 709973 on September 20, 1899, computed according to the American Experience Table of Mortality, at the rate of 42 per cent. per annum, amounted to $752.09, which after deducting the indebtedness represented by said note in the sum of $153.90 left a balance of said reserve in the sum of $598.19." It is also found that such reserve would carry the policy to a time beyond October 21, 1906, the date of the death of the insured. There is evidence in the record given by an insurance actuary to sustain the findings quoted. Such application. tract of the insured with the defendant, un- | have seen, has not been computed upon the less we construe the note and receipt entire basis of a full payment of the fourth year's ly independent of the statute and policy. We premium. think the statute, policy, and supplementary agreement contained in the notes and receipts should be construed together. It may be assumed that the reserve would have carried the policy to a time after October 21, 1906, if it had been computed as of June 20, 1899, or as of any date to which the $152 in cash would have paid the premium on the policy. provisions of the section are specifically waived in the application and notice of such waiver is written or printed in red ink on the margin of the face of the policy when issued." It thus appears that it was the intention of the Legislature to prevent any waiver of the terms of the statute unless such waiver is not only specific, but also that such specific waiver is in some form brought to the attention of the insured. The intention of the insured to wholly forfeit the $152 paid on the fourth year's premium unless he paid the balance of the year's premium on the day of the maturity of the note should be clearly shown. It is not clearly shown. The note provides: "That all claims to further insurance and all benefits whatever which full payments in cash of said premium would have secured shall become immediately void and be forfeited to the New York Life Insurance Company if this note is not paid at maturity except as otherwise provided in the policy itself." The note does not in terms say that the insured shall forfeit all benefits whatever arising from the payments made in cash. There is no clear agreement by the insured, as shown by such note and the receipt, that a failure to pay the note will be an unconditional forfeiture of the money paid upon the fourth year's premium and the reserve arising from such partial payment of that year's premium. By the findings of the trial court the reserve is not computed as upon full payment of the fourth year's premium in cash but as of a time when the policy was in force apart from the terms thereof relating to the reserve, viz., September 20, 1899. The reserve upon a policy computed as prescribed by the statute equitably belongs to the insured. It nowhere appears that the reserve is not estimated by the defendant after quarterly or semiannual payments. The partial payments were accepted by the defendant and constituted a part of the fourth year's premium. Although the note by its terms "is given in part payment of such premium," it is not necessary to hold that the full year's premium was paid because the reserve, as we We think that the decision in the Holly Case is not controlling in this case, and that the findings of fact made by the trial court were not without some evidence to sustain them, and that the conclusions of law are sustained by the findings. The judgment should be affirmed, with costs. CULLEN, C. J., and WERNER, WILLARD BARTLETT, HISCOCK, COLLIN, and HOGAN, JJ., concur. Judgment affirmed. (209 N. Y. 135) EVIDENCE (§ 123*)-RES GESTE-STATEMENT In an action for the death of an employé caused by falling from a ladder, his statements, while lying on the floor after falling, in response to an inquiry as to what happened, that his feet were broke, and that the ladder bent over, were not admissible, since the declarations of an injured person are admissible only where they are so spontaneous or natural as to exclude the idea of fabrication, and not where they are in the nature of a narrative of what has occurred. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 351-368; Dec. Dig. § 123.*] Appeal from Supreme Court, Appellate Division, Third Department. Action by Mary Greener, as administratrix, against the General Electric Company. A judgment for plaintiff and an order denying a new trial were afirmed by the Appellate Division, Third Department (153 App. Div. 439, 138 N. Y. Supp. 273), and defendant appeals. Reversed and new trial granted. James O. Carr, of Schenectady, for appellant. Fryer & Lewis, of Schenectady, for respondent. GRAY, J. This action was brought to recover damages of the defendant for being the cause of the death of the plaintiff's intestate, an employé. In substance, the alleged negligence was that the defendant had provided for the use of its workmen a defective and insecure ladder, in connection with an overhead crane erected in its works, from which the deceased fell, or was thrown, to the floor of the building. The facts disclosed by the evidence were such as to warrant the jurors in finding that the deceased, who was employed as a "rigger," upon the day in question was standing on top of the carriage of the crane, when he was called to by the crane repairman, from the floor, to come down and to assist in hoisting up a piece of machinery; that, in attempting to comply with the order |