Second Department, April, 1908. [Vol. 125. repair of belts. The necessity of constant and careful inspection is obvious. One witness testified that a very careful inspection was necessary to discover any loosening of the joints. I think the master owed the duty of inspection, and that he is liable for the negligence of the servant selected to perform that duty. The duty of furnishing a proper belt in the first instance is undoubted, and a correlative and equal duty was that of maintenance, which involved proper inspection. (Franck v. American Tartar Co., 91 App. Div. 571; Koehler v. New York Steam Co., 183 Ν. Υ. 1.) The general rule is settled law, the question is as to the exception, the reason for which is well stated by FINCH, J., in Cregan v. Marston (126 N. Y. 568): "One of those is that it is not the master's duty to repair defects arising in the daily use of the appliance, for which proper and suitable materials are supplied, and which may easily be remedied by the workmen, and are not of a permanent character, or requiring the help of skilled mechanics. * * * The cases cited and their doctrine appear to be founded upon what is determined to be the implied contract relation between the master and servant. Their mutual duties grow out of that relation and change and vary as it is changed or varied by the facts which indicate and measure it. Where those facts show that in the understanding of both parties a class of ordinary repairs are to be made by the servants with materials furnished by the master for that express purpose; that they and he regard it as a detail of their own work; that it is something entirely within their capacity and not dependent upon the skill of a special expert; and that the necessity springs from their daily use of the appliance, occurs at different and unknown periods in their service, and is open to their observation in the absence of the master; the inference is inevitable that the contract relation between the parties makes it a duty of the servants and a detail of their work to correct the defect when it arises with the materials furnished." I think that the present case falls within the rule and not the exception. It is true that the defect resulted from daily use, but that is always the case and the very reason for requiring inspection. The defect was not one which the servants themselves if careful necessarily discovered in the course of their work and were expected to repair. The necessity for special inspection was recognized by the master, and it selected an inspec App. Div] Second Department, April, 1908. tor who alone was permitted to make repairs. The case is not at all like Cregan v. Marston (supra), in which the rope handled by the workmen was constantly wearing out and was easily replaced by the men themselves. I advise that the judgment be reversed. WOODWARD, JENKS and HOOKER, JJ., concurred. Judgment reversed and new trial granted, costs to abide the event. LOUIS TOLKON, Appellant, v. OTTO E. REIMER COMPANY, Respondent. Second Department, April 24, 1908. Highway - obstruction by pushcart - negligence - injury by passing vehicle. A vendor unlawfully obstructing a city street with a pushcart in violation of the city charter and paying no attention to passing vehicles cannot recover damages for injury caused by the hub of a passing truck overturning his pushcart, un'ess it appear that the driver willfully or wantonly ran against it, for his unlawful obstruction of the street contributed to the accident. The fact that there were no other obstructions in the street does not prove that the act of the driver was wanton where he was on the proper side of the street away from the street car tracks. GAYNOR and HOOKER, JJ., dissented, with opinion. APPEAL by the plaintiff, Louis Tolkon, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 11th day of February, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff's case upon a trial at the Kings County Trial Term. Jacob W. Kahn, for the appellant. William L. Kiefer [Frank V. Johnson with him on the brief], for the respondent. MILLER, J.: The plaintiff was obstructing the street for the purpose of vending his wares. It cannot be doubted that that was an unlawful encroachment upon the street, for it was not in any sense a legiti mate street use. Second Department, April, 1908. [Vol. 125. Section 50 of the city charter (Laws of 1901, chap. 466) provides, among other things, that "the board of aldermen shall not have power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof during the erection or repairing of a building on a lot opposite the same." (See, also, Cohen v. Mayor, etc., of N. Y., 113 N. Y. 532.) Although unlawfully obstructing the street, the plaintiff admits that he did not exercise the slightest care to avoid being hit by passing vehicles. His pushcart was in the roadway and he was standing on the side toward the center of the street, facing the sidewalk, showing his wares to a customer, but taking no heed whatever of the traffic in the street. His unlawful occupation of the street contributed to his accident, unless the defendant's driver willfully or wantonly ran into him. (Banks v. Highland Street Railway Co., 136 Mass. 485.) The plaintiff's evidence discloses that as the defendant's truck was passing the plaintiff, the hub of the rear wheel struck the handle of the pushcart. The mere fact that there were no other obstructions in the street does not prove that the act of the driver was either willful or wantonly reckless. He was properly on that side of the street, away from the street car tracks, and even if the plaintiff had been lawfully in the street he would have had to exercise some care to avoid being hit by passing vehicles. (Lyons v. Avis, 5 App. Div. 193.) The complaint was properly dismissed, and the judgment should be affirmed. WOODWARD and JENKS, JJ., concurred; GAYNOR, J., read for reversal, with whom HOOKER, J., concurred. GAYNOR, J. (dissenting): This action is brought to recover damages caused by the defendant's wagon being run into the plaintiff in the street. The plaintiff is a push-cart peddler. He was standing at his push-cart, which was by the curb in the roadway, showing his wares to a customer when the defendant's horse and wagon, unobserved by the plaintiff, was driven into the push-cart by the driver, turning it over and injuring the plaintiff. The learned trial judge dismissed the case at the close of the plaintiff's evidence. App. Div.] Second Department, April, 1908. The mere fact that the plaintiff was there selling merchandise out of his push-cart, although it be granted that he was there unlawfully, is not enough in itself, as matter of law, to make out a case of contributory negligence against him. The two things are not synonymous. Nor is negligence in a plaintiff always synonymous with contributory negligence. The plaintiff may be negligent, and yet if his negligence do not contribute to the occurrence, it is not taken into account but passes for naught. A familiar example is the case of one driving in a street car track and a car coming up and hitting him behind. He may be negligent in being there, and yet such negligence may not contribute to the collision. The collision may be willful and intentional on the part of the defendant, and in that case such conduct of the defendant is the sole cause of the collision. It is like a battery. The negligence of the plaintiff does not enter into it at all. In the present case the evidence suffices to have enabled the jury to find that the plaintiff's unlawful occupation of the street did not contribute to the collision. It cannot be gainsaid that although unlawfully there, the defendant did not have the right to run into him, but owed him the duty of due care, and if disregard of that duty, or lack of such due care, was the sole cause There was no car, wagon time, and no reason why of the collision, the defendant is liable. or other obstruction in the street at the the defendant's wagon should have come near the plaintiff. The judgment should be reversed. HOOKER, J., concurred. Judgment affirmed, with costs. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ADENRIA JEINA, Appellant. Second Department, April 24, 1908. Crime murder - defense of another. The defendant was convicted of murder in the second degree. Evidence examined, and held, that a finding that the homicide was not done in self-defense and defense of another was against the weight of evidence. [Vol. 125. Second Department, April, 1908. APPEAL by the defendant, Adenria Jeina, from a judgment of the Supreme Court rendered on the 26th day of January, 1907, after a trial at the Kings County Trial Term, convicting the defendant of the crime of murder in the second degree, and also from an order denying the defendant's motion for a new trial. Thomas Kelby [James W. Ridgway with him on the brief], for the appellant. Peter P. Smith [John F. Clarke, District Attorney, with him on the brief], for the respondent. MILLER, J.: The defendant appeals from a judgment convicting him of the crime of murder in the second degree. The only question presented by the record, requiring consideration, is whether the judgment is suppported by the evidence. It is undisputed that on the 13th day of August, 1906, the defendant shot and killed one Antonio Gambardello. The defense was that the homicide was justifiable. The defendant and the deceased were longshoremen employed on one of the South Brooklyn docks near the intersection of Conover and Pioneer streets. Their foreman was one Salvatora Richighi, the defendant's prospective brother-in-law. It was the custom of the longshoremen to gather on the dock, and the foreman selected such as he wanted and assigned them to work. Some time previons to the day of the homicide, said foreman had discharged a brother of the deceased and had compelled him to leave the dock. Shortly before one o'clock on said day a crowd of men variously estimated from one hundred and fifty to three or four hundred were gathered about the gate opening upon the dock, and while said foreman was selecting men to work he got into an altercation with the deceased. The People's witnesses do not explain the cause of the quarrel, but according to the testimony of two witnesses called by the defense, it was begun by the deceased, who threatened said foreman because the latter refused to assign him work; at any rate a scuffle between them ensued, and the defendant, who was standing nearby, fired three shots from a pistol, two of which entered the left breast of the deceased, inflicting mortal wounds. The only witness called by |