been under the duty toward the intestate of exercising reasonable care to maintain a proper insulation.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Annie McDonnell, as administratrix of James S. McDonnell, against the Metropolitan Bridge & Construction Company. From a judgment of the Appellate Division (148 App. Div. 925, 132 N. Y. Supp. 1136) affirming a judgment of nonsuit by the Trial Term, plaintiff appeals. Reversed, and new trial ordered.

The judgment should be reversed, and a new trial ordered; costs to abide the event.

CULLEN, C. J., and GRAY, WERNER, HISCOCK, CUDDEBACK, and MILLER, JJ.,

concur.

Judgment reversed, etc.

(209 N. Y. 106) MCDONNELL v. METROPOLITAN BRIDGE & CONSTRUCTION CO.

(Court of Appeals of New York. June 17, 1913.)

1. APPEAL AND ERROR (§ 927*) -REVIEWJUDGMENT OF NONSUIT.

On appeal from a judgment of nonsuit, plaintiff is entitled to the benefit of every fact which the jury could have found and every legitimate inference which could have been made in his favor.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, 4024; Dec. Dig. § 927.*]

2. MASTER AND SERVANT (§ 286*)-INJURYJURY QUESTION-NEGLIGENCE.

Evidence, in an action for an employé's death by falling from a derrick, held to make it a jury question whether the employer exercised ordinary care in providing defendant with a reasonably safe place of work.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. 286.*]

3. MASTER AND SERVANT (§ 286*)-INJURIESJURY QUESTION-INSPECTION OF APPLIANCE. Evidence, in an action for an employé's death by falling from a derrick, held to make it a jury question whether the employer was negligent in not properly inspecting the appliance and materials furnished to decedent.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]

4. MASTER AND SERVANT (§ 285*)-INJURIESJURY QUESTION-PROXIMATE CAUSE. Evidence, in an action for the death of an employé by falling from a derrick on which he was working, held to make it a jury question whether the proximate cause of the injury was the breaking of the mast and "stiff leg" which was being put into place.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. &$ 1002, 1003, 1007, 1008, 1016, 1035, 1043, 1053; Dec. Dig. §, 285.*] Chase, J., dissenting.

See, also, 149 App. Div. 922, 133 N. Y. Supp. 1131.

ment of nonsuit entered at a Trial Term of

the Supreme Court.

This action was brought to recover damages for the death of plaintiff's husband through the alleged negligence of the de

fendant. At a former trial of the case the plaintiff obtained a verdict which was reversed by the Appellate Division and a new trial ordered (131 App. Div. 301, 115 N. Y. Supp. 865); one of the justices dissenting. Upon the new trial the evidence presented was the record which had been used on the appeal to the Appellate Division. At the close of the trial, upon motion, the complaint was dismissed by the trial justice. An appeal was taken to the Appellate Division, where the judgment was unanimously affirmed without opinion (148 App. Div. 925, 132 N. Y. Supp. 1136), and thereafter the Appellate Division made an order certifying that in its opinion a question of law was involved which ought to be reviewed by this court, and granted leave to plaintiff to appeal to this court.

On the 26th day of December, 1907, plaintiff's intestate was employed by defendant in the erection of a derrick owned by defendant. The derrick consisted of a mast set on a foundation, which consisted of four heavy timbers about 16 inches square and 16 feet long. The timbers were covered crosswise with boards. After the completion of the foundation the mast, which was of timber 12"x12" and 47 feet long, was raised and inserted in the iron support placed in the foundation for it, and two steel guy ropes were fastened at its top and stretched taut at right angles to hold it in position. A timber called a "stiff leg," which was made of two yellow pine timbers, 10 inches square, spliced for 16 feet in the center, and about 62 feet long, was placed against the mast to support the same. In the top of the mast was a gudgeon pin two inches in diameter by eight inches long. On the upper end of the "stiff leg" was a flat piece of iron known as a "gooseneck" about an inch and a half thick, four inches wide, and six feet long, bolted to the "stiff leg" on its under side with a two-inch hole in its uppermost end to inclose the gudgeon pin arising from

the top of the mast. The "gooseneck" was to be passed over the gudgeon pin to be fastened there and prevented from rising by an iron bolt, called a key, inserted in the opening made in the gudgeon pin.

Plaintiff's intestate, McDonnell, was raised in a boatswain's chair to the top of the mast and had climbed out of the chair and lay over and upon the "stiff leg" already in position for the purpose of fastening in place the "gooseneck" of the second "stiff leg" which was about to be put in place. The boom of the mast was fastened to the top of the second "stiff leg" and had raised it near to the top of the mast. Two men on the ground with bars were pinching up the bottom and two other men with guide lines fastened to the top of the "stiff leg" were holding it to prevent swaying.

Evidence was offered in behalf of the plaintiff that, while the "stiff leg" was being put in place, the same turned around and the boom also and struck the other "stiff leg" already in place; that the mast and "stiff leg" in place thereupon fell; and that the "stiff leg" in place broke into three or four pieces because of the fact that the timber of the "stiff leg" was decayed and plaintiff's intestate was precipitated to the ground and struck by one of the pieces of the "stiff leg" that had been in place and suffered injuries which resulted in his death.

On behalf of the defendant evidence was offered tending to show that the plaintiff's intestate had removed the pin or key from the gudgeon in expectation of putting the

pulpy, contained dry rot, and was what is called "dead wood"; and that the condition of the same would have been ascertained by inspection.

[1-4] As the plaintiff was entitled to the benefit of every fact that the jury could have found from the evidence and to every legitimate inference therefrom, we are of the opinion that a question was fairly presented for the determination of a jury as to whether or not the defendant master had exercised ordinary care and diligence in providing the deceased with a reasonably safe place to work and in the proper inspection of the appliances and materials which defendant furnished plaintiff's intestate in the course of his employment, also as to whether or not the proximate cause of the injury was the breaking of the mast and "stiff leg" which was being put into place.

For this reason the judgment should be reversed, and a new trial ordered; costs to abide the event.

CULLEN, C. J., and WERNER, WILLARD BARTLETT, and HISCOCK, JJ., concur. CHASE, J., dissents upon the ground that as matter of law it appears from the record now before us that the breaking of the "stiff leg" was not a proximate cause of the accident. COLLIN, J., absent.

Judgment reversed, etc.

(209 N. Y. 145.)

gudgeon, and thereby the "stiff leg" in place and upon which the plaintiff's intestate was resting was permitted to slip off the gudgeon, and by reason of that act on the part of plaintiff's intestate the injury occurred.

George F. Hickey, of New York City, for appellant. Hector M. Hitchings, of New York City, for respondent.

HOGAN, J. (after stating the facts as above). From the foregoing statement it will be observed that there was a disputed question of fact as to the proximate cause of the accident which resulted in the death of McDonnell. While the evidence adduced by the plaintiff is not as clear as it might be, due to the fact that the principal eyewitnesses of the accident were not familiar with the English language, still the evidence of the witness Sernicola was clear to the effect that the "stiff leg" which was being put in place "turned around and the boom also and struck this other 'stiff leg' and the whole thing fell." It was established by the evidence that the death of McDonnell was caused by his falling from the top of the mast and being struck by a piece of the "stiff leg." Evidence was also given by plaintiff that the "stiff leg" was broken; that the timber of the same was found to be soft and

V. VALENTINE et al. (Court of Appeals of New York. June 17, 1913.)

1. REPLEVIN. (§ 128*)-ACTIONS ON BONDPERSON ENTITLED TO SUE.

Where the requisition issued required the sheriff to take chattels replevied from the defendant in the action, it would not protect him upon taking them from the possession of others, and hence the replevin undertaking would not inure to the benefit of another adjudged to be entitled to the chattels, who was subsequently made a party defendant in the replevin action.

[Ed. Note.-For other cases, see Replevin, Cent. Dig. §§ 502, 506-509; Dec. Dig. § 128.*1 2. JUDGMENT (§ 584*)

BAR

BAILOR AND

BAILEE. While either the bailor or bailee may maintain an action against a trespasser for the conversion of the property, but one action can be maintained therefor, so that a recovery by one party bars an action by the other.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1063-1065, 1067, 1079, 1081, 1083, 1086, 1087, 1096, 1097, 1123, 1125, 1137; Dec Dig. § 584.*]

Appeal from Supreme Court, Appellate Division, First Department.

Action by the First Commercial Bank of Pontiac against Moses M. Valentine and another. From an order of the Appellate Division (155 App. Div. 91, 139 N. Y. Supp. 1037) reversing an interlocutory judgment

ty either in replevin or conversion. The first replevin suit has no possible effect on his rights. The liability of the sureties in case of a decision adverse to the plaintiff in the replevin action might be very different to different defendants. The title of a third person might be superior to that of the plaintiff in the replevin suit, yet the relation of the parties to the replevin suit might be such as would entitle the plaintiff to a favorable judgment or subject him, if the judgment was adverse, to a liability less than the full value of the chattels. Thus the plaintiff and the defendant might be bailor and bailee, in which case the defendant could not dispute plaintiff's title, or the defendant might merely have a lien on the chattels for some services, in which case the value of the goods, on a judgment in his favor, would be limited to the value of his special property. If there were privity of title or possession between the original defendant in the replevin action and the present plaintiff, a very different question would arise.

[2] Either a bailor or bailee of property may maintain an action against a trespasser for its conversion, though but one action can be maintained, and a recovery by one party is a bar to an action by the other. Black on Judgments, § 581; Story on Bailments, § 94; Smith v. James, 7 Cow. 328; Green V. Clarke, 12 N. Y. 343. If that relation existed between the Brady Company and the plaintiff, and the Brady Company had succeeded in the replevin action by virtue of the present plaintiff's title, the Brady Company would have been entitled to recover on the replevin bond the full value of the property and the damages, and such recovery, less any charges thereon, would be the property of its bailor. I cannot see that the bailor's rights would be any less because it was made a codefendant in a replevin suit with his bailee. But, as before said, the complaint is barren of any allegation of such relation between the codefendants in that suit. As to the hypothetical case suggested by counsel for the appellant (that of a shipper whose goods a carrier has stored after its inability to make delivery in accordance with the terms of the shipment), whether in

such a case the relation of bailor and bailee

exists we express no opinion. The subject,

however, will be found discussed in Fisk v. Newton, 1 Denio, 45, 43 Am. Dec. 649, Bliven v. Hudson R. R. R. Co., 36 N. Y. 403, and Western Transportation Co. v. Barber, 56

N. Y. 544.

The order appealed from should be affirmed, with costs, and the questions certified answered in the negative.

GRAY, WILLARD BARTLETT, HISCOCK, CHASE, HOGAN, and MILLER, JJ.,

concur.

Order affirmed, etc.

(209 N. Y. 70)

PEOPLE v. HARRIS. (Court of Appeals of New York. June 17, 1913.)

1. HOMICIDE (§ 253*) - SUFFICIENCY OF EVIDENCE-MURDER IN FIRST DEGREE.

In a trial for the murder of defendant's wife, defended on the ground that in consequence of intoxication and the emotion aroused by her declaration of her illicit relations with a certain third person, resulting in her pregnancy, he was incapable of the premeditation and deliberation requisite to murder in the first degree, evidence held sufficient to sustain a conviction of murder in that degree.

[Ed. Note. For other cases, see Homicide,

Cent. Dig. §§ 523-532; Dec. Dig. § 253.*] 2. HOMICIDE (§ 14*)-MURDER IN FIRST DE

GREE-PREMEDITATION-TIME.

Where six attempts were made to discharge a revolver, four of which were effective, the time which must have elapsed between the first and the sixth attempt might be regarded as a sufficient period within which deliberation was possible.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 19, 20; Dec. Dig. § 14.*] 3. HOMICIDE (§ 166*)-ADMISSIBILITY OF EVIDENCE-MOTIVE-DEFENDANT'S RELATIONS. with the murder of his wife, evidence is comThe rule that, when a husband is charged petent of his relations with a paramour as tending to show the absence of affection for the wife and a motive for getting rid of her did temporary intimacy with a prostitute, particunot extend so far as to permit proof of mere larly where such intimacy has existed at a time when the husband and wife were voluntarily living apart, and with another woman living at a boarding house upon whom defendant called several times in his wife's absence, and of his alleged statements to one of them four years previously that they might some time be married, since such evidence was too remote and afforded no basis for any inference that defendant desired to get rid of his wife because of his preference for any other woman.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.*] 4. CRIMINAL LAW (§ 351*)-ADMISSIBILITY OF EVIDENCE-ATTEMPT TO ESCAPE.

In a trial for murder in the first degree, evidence that defendant, while in jail, participated in the fashioning of a possible instrument of escape which other prisoners had begun before he came to the jail was not within the rule permitting an inference of guilt from an attempt to escape arrest or imprisonment, and hence its admission was error.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig. § 351.*]

5. CRIMINAL LAW (8_1186*)-HARMLESS ER

ROR-ADMISSION OF EVIDENCE.

Under Code Cr. Proc. § 542, requiring the court on appeal to give judgment without regard to technical errors or to exceptions not affecting the substantial rights of the parties,

even technical errors may be so numerous that when considered together they cannot be deemed harmless.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. § 1186.**]

6. CRIMINAL LAW (§ 683*) EVIDENCE-REBUTTAL.

RECEPTION OF

In a trial for murder in the first degree, where the defense was that accused was incensed by his wife's declaration of illicit relations with another while she and defendant

were voluntarily living apart, resulting in her pregnancy, and that in consequence thereof he shot her in the heat of passion, without deliberation or intent to cause her death, testimony of two women as to the condition of the wife's clothing, indicating that menstruation had not ceased at the period to which her alleged declaration referred, and testimony of physicians who examined the remains of the wife and ascertained that she was not pregnant at the time of her death, offered in rebuttal on the theory that it was improbable that the wife would have made such a declaration, was inadmissible, since it introduced a collateral issue tending to obscure the main issue and to protract the trial to an unreasonable extent without any corresponding advantage.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 1615-1617; Dec. Dig. § 683.*1

7. HOMICIDE (§ 348*)-HARMLESS ERROR-AD

MISSIBILITY OF EVIDENCE.

Error in the admission of such evidence was so clearly harmful as to entitle the defendant to a new trial, notwithstanding Code Cr. Proc. § 542, requiring the court on appeal to give judgment without regard to technical errors or defects or to exceptions not affecting the substantial rights of the parties.

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 724; Dec. Dig. § 348.*]

wishes of the wife. After they thus came together, at the beginning of October, 1911, they seem to have lived in harmony at Mr. Wheeler's in Perry until the evening of the homicide. On that day the defendant left off work about 10 o'clock a. m. because he did not feel well, and spent most of the time until evening frequenting a pool room with the exception of a visit home for dinner, when he met his wife and accompanied her part way to the knitting mill, to which she went to resume work in the afternoon. He stayed around this pool room until after 6 o'clock and drank a good many bottles of beer; he says possibly 10 or 12. Returning home while the Wheeler household were at supper, he went to the room occupied by himself and his wife, where she speedily joined him. Mr. and Mrs. Wheeler and the other boarders went out early in the evening and none of them had returned at the time of the tragedy which ensued. At about 8 o'clock the report of several pistol shots and the scream of a woman, apparently proceeding from the Wheeler house, were heard by the occupants of dwellings in the vicinity. Shortly after

tion of great emotional excitement, appear

L. A. Walker, of Perry, for appellant. John Knight, Dist. Atty., of Arcade, for the People.

WILLARD BARTLETT, J. The defendant has been convicted of the premeditated and deliberate killing of his wife by shooting her to death at the village of Perry, in the county of Wyoming, on the 20th day of November, 1911. Upon the trial, at the close of the people's case, his counsel in the course of his opening address to the jury admitted that the defendant fired the fatal shots, but said it would be claimed that he was not in a condition to be responsible for the act.

At the time of the homicide George Harris and Beatrice, his wife, were boarding and lodging at the house of John W. Wheeler in the village of Perry, occupying a room on the second floor. They were respectively 25 and 21 years of age. He worked in a cutlery manufactory and she in a knitting mill in the village. They were married on December 8, 1906, in Perry, being both then engaged in the same employments. There had been two separations of the couple during their married life; one in 1910, when the wife gave birth to a child who survived but a short time, and the other from February to the early part of October, 1911, in consequence of the husband's drinking habits. The reconciliation which terminated this separation appears to have been due to the husband's advances quite as much as to the

asked the inmates to get a doctor, saying that his wife had shot herself, and adding, in response to an inquiry as to what the trouble was: "Oh, we had a few words and I went out; oh, if she had only waited!" A ghastly picture was revealed to the physicians and others who hastened to the defendant's room. His wife lay dead in her chair, evidently shot to death by a revolver which the incomers found held in her right hand. There were four wounds on her body, any one of which was sufficient in and of itself to have caused death. One cartridge remained intact in the pistol, except that it was dented in such a manner as to indicate that two efforts had been made to discharge it; the shells of the four other cartridges were empty.

From the very first the defendant insisted that his wife had committed suicide. According to his earlier statements, a controversy had arisen between them in regard to his drinking shortly after he came in; this went on until she asked him to get her a glass of water; while he was out in the hall on his way to procure it, he heard a shot; and returning to the room he saw smoke around his wife's head, upon which he rushed out, calling for Mrs. Wheeler.

When the defendant took the stand as a witness, after the concession of his counsel that he had fired the fatal shots, his account of the events immediately preceding the tragedy was as follows: "I went home and went upstairs; took my hat and coat off. I don't remember whether I hung them up or laid them on the bed. Took a drink of whis