pects analogous to that of a receiver, as was pointed out in the Matter of Union Bank, 204 N. Y. 313, 97 N. E. 737, in many other aspects it is essentially different. His powers are statutory, and there is nothing in the statute to indicate that he is required to make application to the court to be permitted to perform the duties which the statute imposes upon him.

Motion for judgment is granted, with $10 costs in each instance, with leave to each of said defendants to plead over within 20 days upon payment of such costs.

Argued before JENKS, P. J., and CARR, STAPLETON, MILLS, and PUTNAM, JJ.

Wm. G. Cooke, of New York City (Howard O. Wood, of New York City, on the brief), for appellants.

Joseph G. Deane, of New York City, for respondent.

PER CURIAM. Order overruling demurrers affirmed, with $10 costs and disbursements, upon the opinion of Mr. Justice Jaycox at Special Term.

FRACHTMAN v. FOX.

(Supreme Court, Appellate Term, First Department. December 20, 1915.) MASTER AND SERVANT 30 GROUNDS FOR DISCHARGE.

An employé, given a Christmas gift by his employer, wrote the employer a letter in which he stated that he was returning "with many thanks your valuable set of cuff links, because I have at least four sets of diamond set buttons which are practically doing no service whatsoever, and, since they will only have to lay around, I would prefer to have you give them to some one who could make use of them." Held, that the employé had a right to decline any gift his employer sought to bestow, and the letter was not wanting in due courtesy and respect in the exercise of such right, and neither the refusal of the gift nor the tone of the letter furnished any adequate reason for his discharge.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 30-36; Dec. Dig. 30.]

Appeal from City Court of New York, Trial Term.

Action by Morris Frachtman against Charles L. Fox.

From a

judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

Argued December term, 1915, before GUY, PAGE, and PHILBIN, JJ.

Philip Baum, of New York City (Joseph G. Cohen, of New York City, of counsel), for appellant.

Barnett & Jablow, of New York City (Ralph Barnett and Morris Jablow, both of New York City, of counsel), for respondent.

PHILBIN, J. The plaintiff sues to recover damages for a breach. of a contract of employment caused by the alleged wrongful discharge of the plaintiff. The defendant conducted a dental office, and employed the plaintiff as a dentist therein for a term which had yet some months to run at the time of said discharge. The sole cause assigned.

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

by the defendant for such dismissal was the writing by the plaintiff of the following letter in relation to a Christmas gift, and which the defendant characterized as insulting and disobedient in tone:

"December 24, 1913.

"Am returning with many thanks your valuable set of cuff links, because I have at least four sets of diamond set buttons which are practically doing no service whatsoever, and since they will only have to lay around I would prefer to have you give them to some one who could make use of them. Again thanking you for your generosity, I remain, Dr. M. Frachtman."

Upon the close of the plaintiff's case the defendant's counsel moved to dismiss the complaint for the reason that the plaintiff was rightfully discharged because of the writing of said letter. The court in granting the motion took the view that said letter was insolent and furnished sufficient reason for the discharge of the plaintiff.

The plaintiff certainly had a right, without violating a duty under said contract, to decline any gift his employer sought to bestow. The acceptance of a gift in such circumstances, or even an increase in compensation, is not compelled by law, but must be entirely voluntary. Due courtesy to the employer, however, may often require acceptance, particularly in the season of peace and good will. It might well be supposed that the employé would, not unnaturally, be inclined to encourage such manifestations on the part of his or her employer. The attitude taken by the appellant here, however, shows that that is not always the case. The protection the law gives in such instances should be stated, lest others may suffer from compulsory acceptance of such favors through ignorance of their legal rights. Where the relation exists, it justifies only such social and sentimental manifestations on the part of the employer as the employé may willingly accept. The former by his position acquires no right not strictly incidental to the business of the employment.

The said letter cannot be regarded as disobedient or wanting in due courtesy and respect in the exercise of the appellant's right to reject the gift, and therefore neither it nor such refusal furnished adequate reason for the discharge. The tone of the communication would rather indicate a desire to make the performance of an unpleasant duty as painless as possible, in accordance with the spirit and practice of the important and exacting profession of which both the appellant and the respondent were members.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.

(93 Misc. Rep. 57)

BRENNAN v. GEORGE L. WALKER CO. et al. (Supreme Court, Appellate Term, First Department. December 20, 1915.) MASTER AND SERVANT 318-INDEPENDENT CONTRACTORS-LIABILITY.

A contractor, constructing a building, is not liable for injuries to workmen caused by mere negligence of a subcontractor, unless he participates in and exercises control over the manner of doing the work, even though he has knowledge of the negligence; but he is liable if the negligent For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Sup. Ct.)

BRENNAN V. GEORGE L. WALKER CO.

manner of doing the work is unlawful, since negligence is imputed to one who knowingly permits his subcontractor to act unlawfully.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1257, 1258; Dec. Dig. 318.]

Appeal from City Court of New York, Trial Term.

Action by William Brennan against the George L. Walker Company and another. From a judgment for plaintiff against the company, defendants appeal. Reversed, and new trial ordered.

Argued December term, 1915, before GUY, PAGE, and PHILBIN, JJ.

Floyd K. Diefendorf, of New York City (Floyd K. Diefendorf and James F. Donnelly, both of New York City, of counsel), for appellants. Armstrong & Keith, of New York City (John S. Keith, of New York City, of counsel), for respondent.

GUY, J. Defendant appeals from a judgment in favor of plaintiff in an action for personal injuries. Plaintiff was employed as a plasterer by one McDermott, a subcontractor, in the construction of an addition to a church building, for which work the defendant Walker Company was the general contractor, subcontractor McDermott's work having only to do with the plastering. While so engaged at work a ceiling, which had been constructed by another subcontractor, and upon which plaintiff was engaged in doing plastering work, fell, injuring plaintiff.

Evidence was introduced by the plaintiff tending to show that the ceiling constructed by the other subcontractor had been constructed in violation of the rules of the bureau of buildings, and that the defendant Walker Company, through its representatives, not only had knowledge of the manner in which said work was unlawfully done, but actually participated in exercising control and direction over the Evidence in contradiction thereof manner in which it was done. was presented by the defendant company. On all the evidence there were three issues for the jury: First, whether the work of constructing the ceiling was done in an unlawful manner; second, whether the defendant Walker Company participated in and exercised control and direction over the manner in which such work of construction was done; third, whether, if the work was done in an unlawful manner, the defendant Walker Company had knowledge of the fact that the work was being done in violation of law and permitted said. work to proceed in an unlawful manner.

It is well established by the authorities that ordinarily a general contractor, who sublets part of the work of construction on a building, relinquishing the right of control and direction over the work so sublet, and exercising only such general superintendence as is necessary to see that the subcontractor duly performs his contract, is not liable for any merely negligent acts of the subcontractor, and that mere knowledge that the work is being done in a negligent manner by the subcontractor is not sufficient to charge the general contractor therewith, unless he actually participates in and exercises control and di

rection over the manner in which the work is done. Parsan v. Johnson, 208 N. Y. 337, 101 N. E. 879. If, however, the work is done not merely in a negligent manner, but in violation of law, and the general contractor has knowledge of the violation of the law during the progress of the work, makes no objection, and does nothing to endeavor to cause the work to be performed in a lawful manner, he is liable, as a joint tort-feasor, with the subcontractor, for injuries resulting from such violation of law.

"He is not at liberty to stand by, with knowledge of the breach of law, and escape liability merely because the actual work is being done by another, whether such other be an independent contractor or an agent for whose doings he would, in general, be responsible." Pitcher v. Lennon, 12 App. Div. 356, 42 N. Y. Supp. 156; Burke v. Ireland, 26 App. Div. 487, 50 N. Y. Supp. 369; Haenschen v. Allison Realty Co. and Roebling Con. Co., 124 App. Div. 920, 108 N. Y. Supp. 1134, affirmed 194 N. Y. 533, 87 N. E. 1120.

The courts have invariably held that every person violating a statute is a wrongdoer, negligent in the eyes of the law, and that any innocent person injured by such violation, if it be the proximate cause of the injury, may, in a proper case, recover damages from employer and contractor jointly or severally; it not being in the power of an owner or general contractor to escape liability by making a contract with another to commit the wrong for him.

In submitting the case to the jury, the trial judge, under exception by defendant's counsel, charged the jury as follows:

"If you find this defendant knew this work was done in an improper manner, you have a right to hold, not only the subcontractor, but also the contractor, liable for damages."

This charge was clearly erroneous under the rule laid down in Parsan v. Johnson, supra, unless the jury found on all the evidence that the defendant Walker Company had actual or presumptive knowledge that the construction work upon the ceiling was being done in violation of the rules of the bureau of buildings. This fact was not conclusively established by the evidence, but was one of the issues, on conflicting evidence, which it was the duty of the jury to determine. Mere knowledge on the part of the defendant that the work was being done in an improper manner was not sufficient to charge the defendant with negligence, though knowledge that it was being done in an unlawful manner would be sufficient to render the defendant liable therefor. The language of the charge in this regard was therefore highly prejudicial, and might well lead the jury to believe that the mere knowledge that the work was being done negligently would render the defendant liable, even though defendant committed no affirmative act of superintendence and exercised no control or direction over the work, and even though the work was not done in violation of law.

Again, the court was asked by the defendant to charge:

"That the defendant George L. Walker Company is not responsible for and cannot be held to respond in damages for any negligent act or omission on the part of the defendant McDermott, his servants, agents, or employés."

To which the court replied:

"I decline to charge in that language. I will charge, unless he knew of any negligent act or omission."

To this refusal and modification of the request, defendant excepted. This ruling was prejudicial, and constitutes reversible error. The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

EDDERY v. INTERBOROUGH RAPID TRANSIT CO.

(Supreme Court, Appellate Division, Second Department. December 24, 1915.) 1. MASTER AND SERVANT 286-ACTION FOR DEATH-QUESTIONS FOR JURY. In an action for the death of an elevated railway trackwalker, killed by the turning of a plank over an opening incidental to the work of a contractor engaged in lowering the elevated railway, where there was evidence of the use of such planks, not only by employés of the contractor, but by employés of the railway company, including other trackwalkers, and it was testified that this use was frequent, and participated in by trackwalkers both at night and openly in the daytime, whether the railway company had actual or imputable knowledge that its trackwalkers were using such plank in going about their duties was a question for the jury.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. 286.]

2. APPEAL AND ERROR 1006-REVIEW-QUESTIONS OF FACT-SUCCESSIVE VERDICTS.

That in an action for death three juries have found for plaintiff does not relieve the appellate division from a careful scrutiny of the testimony to ascertain whether the judgment is sustainable.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 39513954; Dec. Dig. 1006.]

Jenks, P. J., dissenting.

Appeal from Trial Term, Westchester County.

Action by Mary Eddery, as administratrix of Andrew Eddery, deceased, against the Interborough Rapid Transit Company. From a judgment in favor of plaintiff, and from an order denying its motion for a new trial, defendant appeals. Affirmed.

See, also, 161 App. Div. 949, 146 N. Y. S. 1089.

Argued before JENKS, P. J., and CARR, STAPLETON, MILLS, and PUTNAM, JJ.

William E. C. Mayer, of New York City (Terence Farley, of New York City, on the brief), for appellant.

Thomas J. O'Neill, of Yonkers (L. F. Fish, of New York City, on the brief), for respondent.

PER CURIAM. [1, 2] Upon this third trial (see 150 App. Div. 761, 135 N. Y. Supp. 170; 161 App. Div. 949, 146 N. Y. Supp. 1089), the evidence showed a use of these inclined planks, not only by emFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes