(195 N.Y.S.)

set forth. But, assuming that the defendant had a reasonable time to deliver the molasses after the 17th of August, we think it cannot be held as a matter of law that such reasonable time had not expired before the commencement of the action. Nor was it necessary, in making the various demands, for the plaintiff to fix a specific time for the delivery of the molasses. Neverfail Lighter Co. v. Blum, 201 App. Div. 153, 194 N. Y. Supp. 24.

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

CHAKOFSKY v. INTERBOROUGH RAPID TRANSIT CO.

(Supreme Court, Appellate Term, First Department. July 12, 1922.) Carriers 286 (4)-Carrier held not liable for injuries to passenger, whose hand was cut or squeezed by rough piece of metal on arms of turnstile gate, when he was jostled by crowd.

Where passenger was about to use a turnstile gate at a subway station, and was jostled by the crowd, and to steady himself placed his hand on the arms of the turnstile, and was cut or squeezed by a rough piece of exposed metal, the carrier was not liable.

Bijur, J., dissenting.

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

Action by Louis Chakofsky against the Interborough Rapid Transit Company. From an order dismissing the action, plaintiff appeals. Affirmed.

Argued June term, 1922, before GUY, BIJUR, and McCOOK, JJ. Williams & Williams, of New York City (David B. Williams, of New York City, of counsel), for appellant.

James L. Quackenbush, of New York City (Albert L. Wilbur, of New York City, of counsel), for respondent.

PER CURIAM. Judgment affirmed, with $25 costs.

BIJUR, J. (dissenting). Defendant rested on plaintiff's case, renewing the motion to dismiss, which had been made at the close of the plaintiff's case.

Plaintiff sued for injuries to one of his fingers, caused by a turnstile gate (then installed but a few days) at one of the subway stations. in this city. Plaintiff, when about to use the gate and turn the stile, was jostled by some of the crowd, and to steady himself placed his hand upon one of the arms of the turnstile. Upon withdrawing it, he found that the finger was lacerated. Plaintiff called an engineer of the Transit Commission to testify to the construction of the gate. It then appeared that the four arms of the turnstile are rounded off at the center, where they meet in a crotch; that these arms rest upon a post, which at the top consists of a square metal plate, the angles or

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corners of which protruded beyond the rounded crotch of the arms. "These pieces of iron were not covered in any way. * * * They were not as sharp as a knife blade, but the edges were not thoroughly rounded."

Whether the plaintiff's finger was merely cut by the rough piece of iron, or squeezed between the iron and the arm, is not clearly demonstrated, nor is it important. It is plain that the accident occurred by reason of the protruding rough piece of metal exposed in the mechanism as above stated. Both briefs discuss at some length the doctrine of res ipsa loquitur, which, however, clearly does not apply, since the cause of the accident is demonstrated. The bare question is presented whether, upon the facts proved, defendant is chargeable with negligence. The purpose and circumstances of the installation of the turnstile gates are a matter of common knowledge, of which the court will take judicial notice. They provided a mechanical substitute for a personal attendant to watch and check off the entry and exit of passengers. The presence of large crowds is a well-known condition.

The question thus presented, therefore, is whether the construction described was reasonably safe under the circumstances. To permit a visible and palpably approachable portion of mechanism designed to be used within a closely circumscribed space, by large numbers of persons moving rapidly, to remain exposed and in a condition to do physical injury to the person using it, was clearly negligent.

The judgment should be reversed, and a new trial ordered, with $30 costs to appellant to abide the event.

MCCARTHY v. ODELL.

(Supreme Court, Appellate Division, Fourth Department. May 24, 1922.)

Trial 314(1)-Statement of court to jury held reversible error.

It was reversible error for the trial court, after the jury had been out for 24 hours, to say to them: "Juries are selected, not to disagree, but to agree, and all this time has been wasted unless the jury comes to an agreement. It is not likely that we will have in this county a jury as competent and as impartial to try this case as you are"-such remarks resulting in a verdict within 10 minutes.

Action by James R. McCarthy against Emma Odell. From a judgment and order, defendant appeals. Reversed, and new trial granted.

PER CURIAM. Judgment and order reversed on the law, and new trial granted, with costs to appellant to abide event. Held, that it was reversible error for the trial justice, after the jury had been out for 24 hours, to say to them upon their return to the courtroom: "Juries are selected, not to disagree, but to agree, and all this time has been wasted unless the jury comes to an agreement. It is not likely that we will have in this county a jury as competent and as impartial to try

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Sup. Ct.)

SOHMER V. UNITED TRACTION CO.
(195 N.Y.S.)

81

this case as you are;" that the effect of such remarks was to improperly coerce the jury, and resulted in their agreeing upon a verdict within 10 minutes thereafter.

SHEEDY v. CITY OF NEW YORK.

(Supreme Court, Appellate Division, Second Department. May 26, 1922.) Evidence 148-Testimony as to conversation over telephone was inadmissible. It was error to receive the testimony of witnesses in regard to a conversation with some person in the corporation counsel's office unknown to them, and whose voice they did not recognize or identify.

Blackmar, P. J., dissenting.

Action by Theresa Sheedy, as administratrix, etc., of James Sheedy, deceased, against the City of New York. From a judgment and order, defendant appeals. Reversed on the law, and new trial granted.

PER CURIAM. Judgment and order reversed on the law, and new trial granted, costs to abide the event, on the ground that it was error for the trial court to receive the testimony of the witnesses O'Toole and Abruzzo in regard to the alleged conversation with some person in the corporation counsel's office, unknown to them, and whose voice. they did not recognize or identify.

KELLY, MANNING, KELBY, and YOUNG, JJ., concur.

BLACKMAR, P. J., dissents, upon the ground that all that was necessary for the plaintiff to prove in order to establish a waiver was that the conversation over the telephone was with the corporation counsel's office, without identifying the particular person with whom the witnesses talked. The evidence supports a finding that the conversation was with that office. Therefore whether the attendance of the witness before the comptroller was waived was a question of fact for the jury.

SOHMER v. UNITED TRACTION CO.

(Supreme Court, Appellate Division, Third Department. May 3, 1922.) Street railroads 118(1)-Instruction on issue of motorman's incompetency held improperly refused.

Court erred in refusing to charge that jury were not at liberty to find that the defendant's motorman was incompetent and unable to properly perform his duty; the issue being not general incompetency, but the manner in which he performed his duty on the occasion of the accident. Action by John Sohmer against the United Traction Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.

PER CURIAM. Judgment and order reversed, and a new trial granted, with costs to the appellant to abide the event, on the ground

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 195 N.Y.S.-6

that the jury should have been charged, as requested, that they were. not at liberty to find that the defendant's motorman was incompetent and unable to properly perform his duty; the issue being, not general incompetency, but the manner in which he performed his duty on the occasion of the accident, under the authority of Gorman v. New York, Chicago & St. Louis Railroad Co., 194 N. Y. 488, 493, 87 N. E. 682, and Warner v. New York Central Railroad Co., 44 N. Y. 465, 471.

STATE TREASURER v. COHEN et al.

(Supreme Court, Appellate Division, Third Department. May 16, 1922.) Master and servant 375(1)—Employee going in workroom to change his clothes, and not to sleep is in "course of employment," within Compensation Law.

If an employee goes to the workroom for the purpose of sleeping or resting, he is not in the course of his employment within Workmen's Compensation Law; but, if he goes there for the purpose of changing his clothes, he is in the course of his employment.

[Ed. Note.--For other deunitions, see Words and Phrases, First and Second Series, Course of Employment.]

Proceeding under the Workmen's Compensation Law (Consol. Laws, c. 67) by the State Treasurer to obtain compensation for the death of John F. Howard, opposed by Herman Cohen, doing business as Shenk Realty & Construction Company, employer, and the Travelers' Insurance Company, insurance carrier. There was an award of compensation, and the employer and insurance carrier appeal. Award reversed, and matter remitted for further consideration.

PER CURIAM. Award reversed, and matter remitted to the State Industrial Board for further consideration, with costs to the appellants against the State Industrial Board, upon the ground that, if the deceased went to the workroom for the purpose of sleeping or resting, he was not in the course of his employment. Matter of Gifford v. T. G. Patterson, Inc., 222 N. Y. 4, 117 N. E. 946, 6 A. L. R. 576. If he had gone there for the purpose of changing his clothes, as found by the board, he was in the course of his employment; but there is no evidence upon which to make the finding made by the board in that regard.

In re WILLIAMS, Commissioner of Public Works.

(Supreme Court, Appellate Division, Fourth Department. May 24, 1922.) Eminent domain 133-Value of property to be fixed in its existing condition without deductions on theory of removal of building.

Commissioners of condemnation were required to fix the value of property taken by a city in its existing condition, and were not authorized to make deductions on the theory that the owner might remove a dwelling house to another portion of the premises; she not having indicated a desire or consent to make such removal, and the report of the commissioners For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

and order of confirmation not authorizing her to do so, her right, title, and interest in the premises, including the dwelling house, having become vested in the city.

In the matter of the application of Richard B. Williams, Jr., as Commissioner of Public Works of the City of Syracuse, for the appointment of commissioners of condemnation, etc. From an order, Rosalia Kalinowski appeals. Order reversed, and matter remitted to commissioners.

PER CURIAM. Order reversed, with costs, and matter remitted to commissioners of condemnation to reassess and determine the amount of compensation to be awarded the appellant, Rosalia Kalinowski, for the premises taken and acquired by the city. Held, under the evidence, the compensation allowed was inadequate. The commissioners were required to fix the value of the property taken in its existing condition, and were not authorized to make deductions on the theory that the owner might remove the dwelling house to another portion of her premises. She has not indicated a desire or consent to make such removal and the report of the commissioners and the order of confirmation do not authorize her to do so. Her right, title, and interest in the premises taken have become vested in the city. This includes the dwelling house located thereon. Jackson v. State of New York, 213 N. Y. 34, 106 N. E. 758, L. R. A. 1915D, 492, Ann. Cas. 1916C, 779.

TRACY v. EASTERN LOADING CORPORATION. (Supreme Court, Appellate Division, Second Department. June 9, 1922.) Admiralty 20-Local law prescribes liability for injuries resulting on land.

A dock is the extension of the land, and the liability of an employer for injuries to one working thereon is governed by the local law, and his exclusive remedy is under the Workmen's Compensation Law.

Action by George Tracy against the Eastern Loading Corporation. Judgment for plaintiff, and defendant appeals. Judgment reversed on the law, and complaint unanimously dismissed.

PER CURIAM. Judgment reversed on the law, and complaint unanimously dismissed, without costs of this appeal. The plaintiff having been injured on the dock, the exclusive remedy for his hurts is under the act of the state of New York commonly known as the Workmen's Compensation Law and the acts amendatory and supplemental thereto (being chapter 67 of the Consolidated Laws). See State Industrial Commission of the State of New York v. Nordenholt Corporation, 257 U. S., 42 Sup. Ct. 473, 66 L. Ed., decided May 29, 1922.

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