(178 N.Y.S.)

"Accident" is defined in United States Mutual Accident Association v. Barry, 131 U. S. 100, 121, 9 Sup. Ct. 755, 762 (33 L. Ed. 60), quoted by defendants' counsel:

"As meaning 'happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected;' that, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs, which produces the injury, then the injury has resulted through accidental means."

The appellant has cited several decisions of the courts of England holding that the injury was not the result of an accident, where the occurrence was not accompanied by any slip, wrench, or strain, or where the person injured was unable to give any specific time of the happening of the accident.

Contrary to the holding of these cases is that of the House of Lords in Clover, Clayton & Co. v. Hughes, 3 B. W. C. C. 275, where a workman suffering from an advanced aneurism of the aorta was doing his work in the ordinary way by tightening a nut with a spanner. This ordinary strain caused a rupture of the aneurism, resulting in death. Held, that the workman's death resulted from a personal injury by accident. But these cases are subject to the ruling of the House of Lords in the case of Fenton v. Thorley, in which the claimant ruptured himself at work. "There was no evidence of any slip or wrench or sudden jerk." Held, that it was an accidental injury. The House of Lords defined the meaning of "personal injury by accident" in the English Workmen's Compensation Act (60 & 61 Vict. c. 37, § 1) as an unlooked-for mishap or an untoward event, which is not expected or designed. Fenton v. Thorley & Co., Ltd., L. R. [1903] A. С. 443, 5 W. C. C. 1.

The felon was the unexpected result of the bruising of claimant's hand. In Swart v. Town of Shelby, 186 App. Div. 927, 172 N. Y. Supp. 921, a teamster dumped 20 or 30 loads of dirt each day, striking the lever with his hand. It pained him, and he was obliged to desist from work. On examination the doctor found the palm of his hand calloused, and a blood blister, and evidences of infection. The infection spread to his arm, necessitating amputation, and causing his death. An award of compensation was affirmed by this court.

The award should be affirmed. All concur, except HENRY T. KELLOGG, J., who dissents.

DUKAS v. HENNESSY REALTY CO. et al.

(Supreme Court, Appellate Term, First Department. November 6, 1919.)

1. TRIAL 25 (13) -DEFENDANT ENTITLED TO OPEN AND CLOSE ON COUNTER

CLAIM.

Defendants' answer, admitting every allegation of the complaint, except the conclusion that a certain balance was due, raised no issue, and, having pleaded counterclaims, the denial of defendants' motion to be allowed the affirmative with the jury was error.

2. PLEADING (5) -ALLEGATION THAT CERTAIN AMOUNT IS DUE ON NOTES

STATES CONCLUSION.

An allegation that certain amounts are still due and owing to plaintiff on notes sued on states a conclusion.

3. PLEADING125-DENIAL OF CONCLUSION RAISES NO ISSUE.

Denial of the conclusion that a certain balance is due plaintiff raises no issue.

Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Action by Julius J. Dukas, as trustee in bankruptcy of Harry Jarmulowsky and another, individually and as copartners trading as S. Jarmulowsky's Bank, against the Hennessy Realty Company and another. From an order denying defendants' motion for a new trial, defendants appeal. Order reversed, motion granted, judgment vacated, and new trial ordered.

• Argued October term, 1919, before GUY, BIJUR, and DELEHANTY, JJ.

Adolph Cohen, of New York City, for appellants.

S. F. Hyman, of New York City (Jacob J. Lesser, of New York City, of counsel), for respondents.

GUY, J. Plaintiff, as trustee in bankruptcy of a bank, sues on two promissory notes made by the defendant realty company and indorsed by the defendant Polstein, alleging that by the indorsement of said notes to said bankrupt, it became the true and lawful owner of said notes, and further alleging the making of certain payments by defendants on each of said notes, and that defendants, upon demand, refused to pay the balance of said notes.

The answer admits each and every allegation in the complaint, except the allegation as to one of the notes in paragraph 7 "leaving a balance due plaintiff of $401.31," and in paragraph 14 the allegation as to the other note "leaving a balance of $201.31 due plaintiff," and sets up two counterclaims-one for $427, alleged to have been due one Sheitel, a depositor in said bank, which claim was assigned to the defendant Polstein, and subsequently, before the petition in bankruptcy was filed, was assigned by said defendant to the defendant realty company; the other a claim for $47.15, alleged to be due defendant realty company as part of a certain commission agreed to be allowed by said bankrupt to said realty company upon the discounting of certain notes under an agreement that 2 per cent. of said commission should be

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(178 N.Y.S.)

repaid to the defendant realty company when the last note or renewal thereof was paid; that certain of said notes were renewed, the last of said renewals being the notes sued on herein.

[1-3] At the opening of the trial the defendants moved to strike out the allegation in the complaint, "leaving a balance due plaintiff," etc., and demanded the affirmative in going to and closing before the jury. This motion to be allowed the affirmative with the jury was denied, and an exception taken. Thereupon plaintiff introduced the notes in evidence. The denial of said motion by the learned court was error requiring a reversal. Millerd v. Thorn, 56 N. Y. 402; Conselyea v. Swift, 103 N. Y. 604, 9 N. E. 489. On the pleadings no material allegation of the complaint was denied. The allegation that certain amounts were still due and owing to the plaintiff on said notes was not a material allegation, but a statement of a conclusion, the denial of which raised no issue. Conkling v. Weatherwax, 181 N. Y. 258, 73 N. E. 1028, 2 Ann. Cas. 740.

Order reversed, motion granted, judgment vacated, and a new trial ordered, with $30 costs to appellant to abide the event. All concur.

(189 App. Div. 564)

WHITE v. SLAYBACK et al. *

(Supreme Court, Appellate Division, First Department. November 7, 1919.)

1. PLEADING 214(1) - ON DEMURRER, COMPLAINT DEEMED TRUE.

true.

Upon defendants' demurrer, allegations of complaint will be taken as 2. BROKERS 35 CONVERSION BY STOCKBROKERS.

Where owners deposited stock with stockbrokers to protect marginal account, under brokers' agreement to make demand for margin and give due notice of the time and place of sale before selling stock for failure of margin, the sale of such stock by brokers without giving such notice constituted conversion.

3. BROKERS 24(1)-AGREEMENT WITH OWNER OF STOCK DEPOSITED TO PRO

ТЕСТ MARGINAL ACCOUNT.

Stockbrokers' agreement with owner of stock deposited to protect marginal account to carry owner's account "for a reasonable time" and "see her through" held too uncertain from which to find a binding obligation. 4. BROKERS

OF STOCK.

38(3) -SUFFICIENCY OF COMPLAINT IN ACTION FOR CONVERSION

In an action against stockbrokers for conversion of collateral stock deposited for purpose of protecting marginal account, complaint held to state a cause of action.

Appeal from Special Term, New York County.

Action by Flora MacDonald White against Henry B. Slayback and others. From two orders denying plaintiff's motion for judgment on the pleadings, plaintiff appeals. Orders reversed, and motions granted, with leave to defendants to withdraw demurrers and to answer, on payment of costs.

Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, SMITH, and MERRELL, JJ.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Reargument denied, and leave to appeal denied, - App. Div. -, 179 N. Y. Supp. 211.

Goldman & Unger, of New York City (Abraham Freedman, of New York City, of counsel), for appellant.

Francis X. Brosnan, of New York City (Richard J. Cronan, of New York City, of counsel), for respondent Feitner.

Coleman, Stern & Gotthold, of New York City (Ernest J. Ellenwood, of New York City, of counsel), for respondents Slayback and Coyne.

SMITH, J. [1] The pleadings consist of the complaint and of the demurrers of Slayback, Coyne, and Feitner; the same attorneys appearing for Slayback and Coyne. Two orders were entered only. The plaintiff was doing business with the defendants as copartners in the stock brokerage business in the city of New York. She brings this action for conversion in the sale of certain collateral which she held with the defendants for the purpose of protecting her marginal account. The Special Term has held that the complaint did not state a cause of action. We are of opinion that, taking the allegations of the complaint as true, which we must do upon the defendants' demurrer, the plaintiff's complaint states a cause of action in both counts thereof.

[2] In the first cause of action the plaintiff alleges that the defendants agreed, before selling any stocks belonging to the plaintiff for failure of margin, "they would make due demand on the plaintiff for margin and would give plaintiff due notice of the time and place of sale," and that the plaintiff's stocks were sold without notifying the plaintiff of the amount of margin required and without giving the plaintiff due notice of the place of sale. If this agreement were in fact made, and these stocks were sold without compliance on the part of the defendants with the conditions under which they were authorized to sell, the plaintiff has a right of action for their conversion, and we think the matters referred to in the first count of the complaint sufficiently allege such a cause of action.

[3,4] The second count realleges the matters alleged in the first count, and further alleges an agreement upon the part of the defendants upon consideration to carry her account "for a reasonable time" and "see her through." The allegation "to see her through" is clearly too indefinite to impose any obligation on the part of the defendants. In view of the nature of the transactions, where the amount of necessary margin depends upon a fluctuating market, always uncertain and always capricious, in my judgment, a promise to carry her account for a reasonable time is also too uncertain from which to find a binding obligation. This complaint also alleges, however, that these stocks were sold without notifying plaintiff of the amount of margin required and without giving the plaintiff notice of the place of sale, and, upon these allegations, we find a cause of action stated which is not obnoxious to a demurrer for insufficiency.

The orders should therefore be reversed, with $10 costs and disbursements, and the plaintiff's motions granted, with $10 costs, with leave to defendants to withdraw demurrers and to answer on payment of said costs. Order filed. All concur.

(189 App. Div. 235)

(178 Ν.Υ.Σ.)

BACKERMAN v. COCCOLA et al.

(Supreme Court, Appellate Division, First Department. November 7, 1919.)

1. INFANTS 82-FINANCIAL IRRESPONSIBILITY GROUND FOR REMOVAL OF GUARDIAN AD LITEM.

Where guardian ad litem appointed for infant defendant was irresponsible financially, it was proper for defendant to call the court's attention thereto and move for an order revoking the appointment, since guardian's responsibility for costs, under Code Civ. Proc. § 469, gave defendant an interest in the matter.

2. INFANTS 82-IRRESPONSIBLE GUARDIAN AD LITEM REMOVED THOUGH OFFERING SECURITY FOR COSTS.

Since court has no power to require guardian ad litem to give security for costs, under Code Civ. Proc. § 3268, and since the requirement that a responsible person be appointed guardian ad litem under section 469 is primarily for the protection of the infant, an irresponsible guardian ad litem should not be allowed to continue to act merely upon giving security for costs.

Appeal from Special Term, New York County.

Action by Charles Backerman, an infant, etc., against Elizabeth Coccola, impleaded, etc. From an order denying a motion to revoke appointment of guardian ad litem, and for the appointment of a responsible person as guardian, unless the present appointee qualified by giving security for costs to defendant in sum of $250, defendant appeals. Reversed, motion to remove guardian ad litem granted, and matter remitted, with directions.

Argued before CLARKE, P. J., and LAUGHLIN, SMITH, PAGE, and PHILBIN, JJ.

Moses Miller, of Port Chester (Frederick Zorn, of New York City, of counsel, and Joseph Kahn, of New York City, on the brief), for appellant.

Louis Sanders, of New York City (Arnold Gross, of New York City, of counsel), for respondent.

PAGE, J. The action was brought by Charles Backerman, an infant, by Leah Backerman, his guardian ad litem, and is to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant. Leah Backerman is the mother of the infant plaintiff and petitioned to be appointed as guardian ad litem. On this appointment she made an affidavit:

"That she is of sufficient financial ability to answer to the said infant for any damages which may be sustained by her carelessness or negligence in the prosecution of said suit, and is worth at least the sum of two hundred and fifty ($250) dollars, consisting of cash and household effects, and above all her debts and liabilities."

The attorney for the defendant presents an affidavit that he called on the guardian ad litem at her place of residence and was informed by said guardian that she owns no real estate or personal property of any kind, character, nature, or description; that she and her three children were wholly dependent upon her husband, David Backerman, for sup

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