It seems to me that the cause of action thus alleged is similar to that alleged in Roberts v. Ely, and that the rule there laid down must apply to this case. In stating the rule applicable, the court, in Roberts v. Ely, said:

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"Assuming that the plaintiff is right in his construction of the facts, the case falls within the familiar doctrine that money in the hands of one person to which another is equitably entitled may be recovered in a common-law action by the equitable owner upon an implied promise arising from the duty of the person in possession to account for and pay over the same to the person beneficially entitled. The action for money had and received to the use of another is the form in which courts of common law enforce the equitable obligation. The right on the one side, and the correlative duty on the other, create the necessary privity, and justify the implication of a promise by the defendant to do that which justice and equity require. * * * Nor is this form of action excluded, because in a general sense there is a relation of trust between the parties arising out of the transaction. There are many cases of trust cognizable only in a court of equity. But the fact that money in the hands of one person is impressed with a trust in favor of another, or that the relation between them has a trust character, does not, ipso facto, exclude the jurisdiction of courts of law. The general rule that trusts are cognizable in equity and are enforceable only in an equitable action, is subject to many exceptions, 'as, for instance, cases of bailments, and that larger class of cases where the action for money had and received for another's use is maintained.' * The present case falls within the exception. Upon the plaintiff's theory of the facts, Geiger & Co. were the equitable owners of a pro rata part of the insurance money received by Ely. That firm and Ely were alone interested in the question, as it is conceded that Ely was entitled to all the money received, subject only to the claim of Geiger & Co. The only accounting required was such as was necessary to ascertain the interest of Geiger & Co., and that depended upon simple facts as readily ascertainable in a legal as in an equitable action. The case, therefore, presented a cause of action upon a liability implied by law, and it was subject to the limitation of 6 years prescribed by section 91 of the Code of Procedure, in force when the cause of action arose. Assuming that an equitable action could be brought to enforce the liability claimed, it would still be subject to the limitation of 6 years.

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The plaintiff cannot avoid the application of the statute by treating the actual appropriation of the money by Ely in 1874, as the cause of action. The right of Geiger & Co. to recover the money was perfect from the time of its actual receipt by Ely in 1871."

The learned trial judge in his opinion calls attention to the fact that this case arose under the old statute (section 91 of the Code), and that section has been considerably changed. That section is now section 382 of the Code of Civil Procedure, and I cannot find that there has been any change in this provision which at all affects this question. Subdivision 1 of that section provides now, as in the former Code, that an action must be commenced within 6 years after the cause of action has accrued "upon a contract obligation or liability, express or implied, except a judgment or sealed instrument."

I cannot see that that case has been subsequently qualified or questioned. It was applied in Adams v. Olin, 140 N. Y. 150, 35 N. E. 448, in Middleton v. Twombly, 125 N. Y. 520, 26 N. E. 621, in Strough v. Jefferson County, 119 N. Y. 212, 23 N. E. 552, and in Yates v. Wing, 42 App. Div. 356, 59 N. Y. Supp. 78. Thus it seems to me settled that this action for money had and received is based upon an implied contract; that the cause of action, whether sought to be en

forced in a legal or equitable action, is controlled by the statute which provides for limitations in actions upon contract expressed or implied; and therefore the 6-year statute applied.

The learned court at Special Term seemed to consider that this case had been qualified by Lightfoot v. Davis, 198 N. Y. 261, 91 N. E. 582, 29 L. R. A. (N. Š.) 119, 139 Am. St. Rep. 817, 19 Ann. Cas. 747; but that case presented an entirely different question. As Chief Judge Cullen said in his opinion, it was a singular case, and the question that was discussed seemed to be whether a thief could obtain a valid title to the stolen property by concealing the fact of the robbery until 6 years after it had taken place, and the court held he could not. In summing up the decision, the court said:

"In cases like the one before us there are two distinct elements of fraud: (1) the original larceny; (2) the subsequent concealment of the stolen property and of its sale and the receipt of its proceeds. Assuming (but only for the argument) that under the first no bill in equity could be maintained, I think the second affords a good ground for the interposition of equity, and, as already stated, though the plaintiff failed to identify in the estate of the deceased the proceeds of his bonds, he was still entitled to what would be a personal judgment, were the original wrongdoer still living. Cases

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of the character of the one before us are to be distinguished from that large class, often those of principal and agent, in which it is held that an accounting in equity will not lie, and that the accounting must be had in an action at law. In such cases there exists merely a debt from one party to the other, while in those of the former class, the property or fund itself belonging to the claimant, he is entitled to follow the proceeds as long as he may be able to identify them, or, failing that, to recover, not only the amount of the fund, but also any profits acquired by its wrongful appropriation."

My view, therefore, is that the 6-year statute of limitations applied, and that the order should be reversed, with $10 costs and disbursements, and the motion for judgment on the pleadings, dismissing the complaint, granted, with $10 costs.

SCOTT and DOWLING, JJ., concur. MCLAUGHLIN and LAUGHLIN, JJ., dissent, on opinion of Lehman, J.

(170 App. Div. 168)

BICKLEMEYER v. LACKAWANNA STEEL CO,

(Supreme Court, Appellate Division, Fourth Department. November 17, 1915.) 1. MASTER AND SERVANT 185-ACTIONS FOR INJURIES-QUESTIONS FOR JURY. Plaintiff was employed in relining with brick heavy iron furnace covers, which were placed by a crane on the floor. It was necessary to break off pieces of brick, which were allowed to remain on the floor until cleared away. The crane operator placed a cover on the floor with one end resting on a brick; it not appearing whether this was intentional or because there was no clear place to lay it. While plaintiff was working at it, the crane operator attempted to lay down another cover, and permitted or caused it to swing against the one on which plaintiff was working, causing it to move so as to crush the brick and injure plaintiff. He alleged negligence in placing the cover upon a brick inadequate to support it, rendering the place of work unsafe. The court submitted negligence in placing the cover with one end on the brick, and in so operating the business as to allow the crane to swing another cover against For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

the one in question, but further charged that there could be no recovery if the accident was caused solely by the carelessness of the crane operator; that there was no evidence of any negligent act of superintendence, and that, if the placing of the cover on the brick and the handling of the crane were details of the work, there could be no recovery. Held, that the negligence proved was that of fellow servants, and the placing of the covers and the relining of them were details of the work, and under the law of the case, as stated in the instructions, there was no question to submit to the jury.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig.

2. MASTER AND SERVANT

GENCE.

185.]

265-ACTIONS FOR INJURIES-EVIDENCE OF NEGLI

The maxim of "res ipsa loquitur" was not applicable to the facts. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 877-908, 955; Dec. Dig. 265.]

Appeal from Trial Term, Erie County.

Action by Frank Bicklemeyer against the Lackawanna Steel Company. From a judgment in favor of plaintiff for $1,776.06 damages and costs upon the verdict of a jury, and from an order denying defendant's motion to set aside the verdict and for a new trial on the minutes of the court, defendant appeals. Reversed, and new trial ordered.

Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.

Evan Hollister, of Buffalo (Rogers, Locke & Babcock, of Buffalo, of counsel), for appellant.

W. H. Ticknor, of Buffalo (Ticknor, Pierce & Pomeroy, of Buffalo, of counsel), for respondent.

PER CURIAM. This appeal presents the question as to whether a case was made for submission to the jury on the ground of negligence alleged in the complaint and in view of the law of the case as charged by the court.

[1] Plaintiff was an employé of defendant as a mason and bricklayer. Among his duties was that of relining with brick iron furnace covers. These covers were eight or nine feet long by six feet wide and about twenty inches in height and weighed from six to nine tons. They were used to cover the top of large furnaces when in blast. The brick lining of these covers frequently burned out and had to be replaced with new fire bricks. The top of the furnaces was on the same level as the second floor of the mill, and the method employed was to lift the cover from the top of the furnace by means of an electrically operated crane propelled along a track on the second floor of the mill. The operator of the crane then laid the cover down bottom side up at some convenient place on the floor to be relined by plaintiff and one or two other bricklayers who worked with him. This floor was made of sheets of steel resting upon steel beams. In the process of relining these covers it was necessary to break off pieces of the bricks, which were allowed to fall on the floor and remain there

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

until cleared away. How often they were cleared away, or by whom, does not clearly appear.

The cover which plaintiff was engaged in relining at the time he was injured had been laid down upon the floor by the crane operator, with one end resting upon one or more pieces of brick. Whether this was done intentionally, to facilitate placing a chain under the cover when it was ready to be raised, or whether there was no such intention, but the bricks had accumulated on the floor and had not been removed to make a clear place to place the cover, does not appear. Plaintiff at the time of his injury was standing at the end of the cover which rested on the brick, engaged in his work of relining it. After he had worked 10 or 15 minutes the crane operator brought over another cover and attempted to lay it down on the floor near the cover on which plaintiff was working; but he permitted or caused it to swing against and strike the cover on which plaintiff was working in such a way as to move it toward plaintiff, crushing the brick on which its end rested, and injuring plaintiff's foot, which projected partly under the end of the cover. Plaintiff had previously relined another cover near by, and had then been directed by his foreman to reline the cover on which he was injured.

The negligence alleged in the complaint is the placing of this cover upon a brick wholly inadequate to support it, rendering the place where plaintiff was to do his work unsafe. The ground of negligence left to the jury, as stated in the charge, is as follows:

"It is the plaintiff's claim that this cover was placed on the floor with one end of the same on a brick; * # that while this cover was upon the brick ** he was directed to undertake to lay brick upon the same, and in doing so he did have his foot placed under the cover. It is his claim that he had no reason to believe that the conditions were such that he was in danger at that time; that, if the condition had remained as it was when he first put his foot there, he was in a safe condition, but that the defendant operated its business in such a way that it allowed the crane to raise a cover and swing it around in such a way as to strike the cover upon which the plaintiff was at work; that moved the cover, and it being of such great weight it crushed the brick and caused the cover to come down upon his foot, and that caused his injury."

At the request of defendant's counsel the court charged, in substance, that there could be no recovery if the jury find the accident occurred solely by reason of the carelessness of the crane operator causing the cover that he was handling to strike the cover that the plaintiff had his toe under; also that there was no evidence of any negligent act of superintendence; also that, if the jury found that the placing of this cover on this brick and the handling of the crane as they did while it was thus placed were details of the work, then there could be no recovery.

Under the law of the case as thus laid down by the court, we think there was no question for submission to the jury. While the action. was brought under the Employers' Liability Act, there was no proof of any defect in the ways, works, machinery, or plant, or of any negligent act of superintendence, to make that act applicable to the case. If it was negligence to lay down this cover with one end resting upon

a brick, it was the negligence of a coemployé so far as appears. At least it does not appear that any foreman or superintendent was concerned in this act, nor does it appear that the weight of the cover would have crushed the brick, if it had not been struck and moved by the other cover.

It was the law of the case as charged by the court that the crane operator was a coemployé with the plaintiff, and that the negligence. of the crane operator would not render the defendant liable. It does not appear that the crane operator moved the cover, which struck the cover on which plaintiff was working, under the supervision of any superintendent or foreman controlling his action, and so far as appears the moving and placing of these covers upon the floor and the relining of them by the plaintiff and his coemployés, was a part of the detail of the work. The negligence proved was that of plaintiff's fellow

servants.

It follows that on the evidence presented the trial court should have dismissed the complaint. Edgar v. Brooklyn Heights R. R. Co., 146 App. Div. 541, 131 N. Y. Supp. 286; Dailey v. Stoll, 211 N. Y. 74, 105 N. E. 87.

[2] Respondent urges that the recovery can be supported under the doctrine of the maxim "res ipsa loquitur." We think this doctrine is not applicable.

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

All concur; KRUSE, P. J., and MERRELL, J., in result only.

KRUSE, P. J. I concur in the result. While the evidence is not very satisfactory, I think it is sufficient to submit the question to the jury as to whether the method of carrying forward the work was reasonably safe. Pepe v. Utica Pipe Foundry Co., 132 App. Div. 458, 116 N. Y. Supp. 921; Banchetti v. Gorsline & Swan Const. Co., 152 App. Div. 275, 136 N. Y. Supp. 589.

The plaintiff had nothing to do with moving about these covers. His work was relining them after they had been placed for that purpose. He was set at work doing that by the foreman, and then, so far as appears, the foreman took no precaution to see that he was warned against dangers from the operation of the crane. Nor does it appear that any rules were made for operating the crane and giving warning, or that other like precautions were taken to guard against accidents of this kind.

The difficulty in the case is, as I view it, that it was not submitted to the jury upon that theory, and that the verdict rests upon an untenable ground.

I therefore concur for reversal.