On mo ceased, against the Standard Oil Company of New York. tion by defendant for judgment on the pleadings. Motion denied. Olmsted, Van Bergen & Searl, of Syracuse, for plaintiffs. Kenefick, Cooke, Mitchell & Bass, of Buffalo, for defendant. CLARK, J. This is an action brought by the administrators of the estate of Everett A. Loucks, deceased, against the above-named defendant for damages for the death of plaintiffs' intestate, caused, as it is alleged, by the negligence of the defendant. The accident occurred in the state of Massachusetts, but the intestate was at the time of his death a resident of Wayne county. [1, 2] The action is brought under what is known as the "Death Statute" of Massachusetts, being section 2 of chapter 171 of the Revised Laws of that state, as amended by chapter 375 of the Laws of 1907, and that statute reads as follows: "If a person or corporation by his or its negligence, or by the negligence of his or its agents or servants while engaged in his or its business, causes the death of a person who is in the exercise of due care and not in his or its employment or service, he or it shall be liable in damages in the sum of not less than $500 nor more than $10,000, to be assessed with reference to the degree of his or its culpability or of that of his or its agents or servants, to be recovered in an action of tort, commenced within two years after the injury which caused the death, by the executor or administrator of the deceased, one-half thereof to the use of the widow and one-half to the use of the children of the deceased; or, if there are no children, the whole to the use of the widow; or, if there is no widow, the whole to the use of the next of kin." Actions for damages for the negligent killing of a person have been authorized in the state of New York for many years and are provided for in sections 1902, 1903, 1904, and 1905 of the Code of Civil Procedure; section 1902 reading as follows: "The executor or administrator of a decedent who has left him or her surviving a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof, if death had not ensued. Such an action must be commenced within two years after the decedent's death." Section 1903 provides that the damages recovered in such an action are exclusively for the benefit of the decedent's husband or wife and next of kin. The defendant in a most interesting and elaborate argument urges that the Massachusetts statute cannot be enforced in an action brought in the courts of this state, because that statute is penal in its character and has been so held by the courts of Massachusetts. McCarthy v. Wood Lumber Co., 219 Mass. 566, 107 N. E. 439. It is not necessary to cite authorities to sustain the proposition that the courts of one state will not enforce a purely penal statute of a sister state, for the reason that an action for a penalty is not transitory in its character; but the question whether or not a statute is penal in its character need not be exclusively determined by the courts of the state where the law was enacted, but can be determined in the state and by the court Huntington v. At where it is sought to have the statute enforced. trill, 146 U. S. 685, 13 Sup. Ct. 224, 36 L. Ed. 1123. . A reading of the death statutes of the states of New York and Massachusetts above quoted shows that the primary purpose of each of them is to furnish a private remedy to compensate parties who have suffered damages for private wrongs. It is not the purpose of the Massachusetts statute under consideration to punish a party for committing a public wrong, but its purpose is to furnish a remedy for a private injury against a person or corporation for an unlawful or negligent act, and the statute is not penal in its nature; its primary purpose being to furnish a means to procure compensation and not to inflict punishment. The wording of the statutes differs, of course; but they are similar in principle and in their purposes, viz., to compensate private parties who have suffered private wrongs and they are substantially similar in principle. Under these circumstances no public policy of the state of New York is violated if a resident of this state, or his representatives, are permitted to enforce this foreign statute in the courts of this state, for I have no doubt that the courts of this state have jurisdiction where a resident seeks to enforce here a private remedy afforded by a statute of a sister state which is similar in principle to a statute of this state affording a similar remedy. This is especially so where, as in this case, substantial justice as between the parties requires that the court here should recognize and enforce the statute of a sister state, where the primary purpose of that statute is substantially similar to our own statutes, affording a means for obtaining compensation, and not punishment, for a purely private wrong. Leonard v. Columbia Steam Nav. Co., 84 N. Y. 48, 38 Am. Rep. 491; Wooden v. W. N. Y. & P. R. R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 1458, 22 Am. St. Rep. 803; Strauss v. N. Y., N. H. & H. R. R. Co., 91 App. Div. 583, 87 N. Y. Supp. 67; Huntington v. Attrill, 146 U. S. 670, 13 Sup. Ct. 224, 36 L. Ed. 1123; Pensabene v. Auditore Co., 155 App. Div. 372, 140 N. Y. Supp. 266. This motion must therefore be denied, with costs. Ordered accordingly. HILTON et al. v. WHITE. (Supreme Court, Appellate Division, First Department. December 10, 1915.) BANKRUPTCY 425-DISCHARGE-DEBT NOT SCHEDULED. A judgment against defendant for wages not scheduled in defendant's bankruptcy proceeding as provided by the Bankruptcy Act, was not discharged unless the creditor had actual notice of such proceeding, and in the absence of evidence to show notice it could not be presumed. [Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. § 775; Dec. Dig. 425.] Smith, J., dissenting. Appeal from Special Term, New York County. Action by Frank P. Hilton and others against John A. S. White. From an order granting a motion to modify an order directing issu For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes ance of execution against defendant's wages upon a judgment recovered against him by plaintiffs, plaintiffs appeal. Order reversed, and motion denied. Argued before INGRAHAM, P. J., and MCLAUGHLIN, CLARKE, SCOTT, and SMITH, JJ. Bernard I. Finkelstein, of New York City, for appellants. PER CURIAM. This judgment was not scheduled in the bankruptcy proceedings, as provided for by the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 544). The judgment, therefore, is not discharged unless the creditor had actual notice of the bankruptcy proceedings. There was no evidence to show that such notice was given to the creditor, or that he had such notice, and that fact cannot be presumed. The order appealed from must therefore be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. SMITH, J., dissents. (170 App. Div. 205) HYMAN v. BARRETT. (Supreme Court, Appellate Division, First Department. December 3, 1915.) 1. LANDLORD AND TENANT 5-EXISTENCE OF RELATION. Where the owner of premises extended defendant's lease thereto until the premises were put in such repair as required by the tenement house department of New York City, and later the parties agreed that defendant himself should do the work, an occupant of part of the premises was a tenant of the defendant at a time when he was paying the owner rent for the premises and doing the work. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 3, 5, 9, 10; Dec. Dig. 5.] 2. MASTER AND SERVANT 316-INDEPENDENT CONTRACTOR-INJURY TO TENANT-LIABILITY OF LANDLORD. Where a lease of the premises had been extended until they should be repaired, and the tenant had later agreed with the owner to repair the premises himself, such tenant could not discharge his obligation to protect his subtenants from disturbance and injury during repairs by securing a competent independent contractor; a landlord's obligation being to see that repairs on the premises are conducted with all reasonable care and prudence, and also being of a personal character and nondelegable. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1242-1243; Dec. Dig. 316.] 3. TRIAL 146-WITHDRAWAL OF JUROR-CONDUCT OF PARTY. Where, in a personal injury case, the plaintiff, sitting in back of the courtroom during trial, fainted and was taken outside, defendant's physician went and examined her at the time, and testified that such a fit was one of the manifestations of hysteria, being a spell of what is called hysterical epilepsy, and that he did not believe she feigned it, the denial of defendant's motion to withdraw a juror on the ground that the fainting was a pretense to improperly affect the jury was proper, in view of the physician's testimony. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 329; Dec. Dig. 146.] Ingraham, P. J., and Laughlin, J., dissenting. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Appeal from Trial Term, New York County. Action by Rosie Hyman against Hopkins G. Barrett. Judgment for plaintiff for $2,886.53, and from it, and an order denying his motion for new trial, defendant appeals. Affirmed. Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ. Strang & Taylor, of White Plains (Clinton T. Taylor, of White Plains, of counsel), for appellant. Isadore Apfel, of New York City (Moses Feltenstein, of New York City, of counsel), for respondent. CLARKE, J. The plaintiff alleges: That she was a tenant of defendant at 804 East Fifth street on the 7th day of June, 1910; that defendant was the lessee and in control of said premises, a portion of which were used as halls. There were two houses, arranged as tenement houses, and in the rear building the plaintiff was a tenant. That plaintiff was crossing the yard between the two buildings on the 7th day of June, 1910, when a board or plank fell upon her and caused the injuries complained of. She claims that the board or plank was dropped from out of a window of the upper story of said rear building by the defendant or his agents, who were engaged in making repairs to said building at the time. There are two questions in this case: [1] Whether the relation of landlord and tenant existed between the plaintiff and defendant. The court charged as a matter of law that such relation at the time of the accident did exist. In this he was entirely justified. The owner of the property was Mrs. Conklin. On the 20th day of February, 1909, she leased the premises to the defendant at a yearly rental, payable monthly, from the 1st of April, 1909, but a separate instrument was attached thereto providing: "It is hereby mutually agreed by Cornelia L. Conklin, party of the first part, and Hopkins G. Barrett, party of the second part, that the lease dated February 20, 1909, for the property situate 314-316-318 East Twenty-Eighth street and 835 East Twelfth street and 804 East Fifth street be continued until the property at 804 East Fifth street be put in such repair as required by the tenement house department of New York City." She also made an agreement on the 16th of April, 1910, with the defendant, under which he agreed to do all work, alterations, and repairing on the two houses situate at 804 East Fifth street for $3,000, and is to pay the said Cornelia L. Conklin $155 per month for the said property from the time the 804 East Fifth street house is completed until February 20, 1911, after which time he is to pay $2,000 for one year after February 20, 1911; and receipts for rent were proved for $130 down to July, 1910, and thereafter for $155. This accident occurred on the 7th of June, 1910. In addition to that, the defendant, as landlord, began a dispossess proceeding against the plaintiff in June, after the accident, for nonpayment of part of the rent for May and part of June, resulting in a judgment adjudging possession of the premises in his favor as landlord, and a warrant of dispossession directed to the marshal was signed on the 28th day of June, as a result of which she was dispossessed, so that the court was justified in charging that the relation of landlord and tenant existed at the time of the alleged accident. [2] The contentions are summed up in the charge as follows: "What is the alleged act of negligence which I am about to submit to you? It is contended by the plaintiff that the defendant negligently conducted building operations by which a board was precipitated from an upper window in the rear building while she was passing from the front building to the rear building to enter her apartment. The defendant in the first place absolutely denies that any such accident occurred in the manner claimed by the plaintiff. That I will take up later. And he also contends that, if it didand under our Code he is entitled to make a defense within his rightsthat the contract for the alterations had been intrusted to a competent contractor, an independent contractor, and therefore that he was free from negligence, in that he exercised ordinary care in selecting an independent contractor who was a free agent to conduct these repairs. As to that, gentlemen, I charge you as a matter of law that the defendant was under obligations to protect his tenants from any unnecessary disturbance, and for that purpose to see to it that the building operations on the building, when repairs were being made thereon, were conducted with all reasonable care and prudence; that that duty of a landlord to protect his tenants from disturbance in the course of his building operations, or repairing operations, is of a personal character, and he cannot discharge it by delegating those operations to a competent independent contractor, and that this obligation extended to the place offered as a means of ingress and egress of the tenants to and from their apartments." In so charging the learned court was following Paltey v. Egan, 200 N. Y. 83, 93 N. E. 267, where the Court of Appeals said: "Ordinarily the respondent might reply, as he does attempt to, that he discharged his obligations by securing a competent independent contractor, and that thereby he has been relieved from responsibility for any negligence except of himself, which is not shown to have existed. That defense, however, is not available in this case. The respondent's duty to protect his tenants from disturbance in the course of his building operations was of a personal character, and he could not discharge it by delegating those operations, even to a competent independent contractor. Blumenthal v. Prescott, 70 App. Div. 565 [75 N. Y. Supp. 710]; Sciolaro v. Asch, 198 N. Y. 77 [91 N. E. 263, 32 L. R. A. (N. S.) 945]." [3] In the case at bar the defendant was the general contractor, as well as plaintiff's landlord, and his contract provided: * ** "The contractor is to give his personal superintendence to the work, furnish all materials, transportation, labor, scaffolding, etc; He shall be liable for all accidents or damage to property traceable to the negligence of himself or his subordinates." The accident was testified to by plaintiff and another tenant, and the testimony on defendant's part was slight and unsubstantial. There is no doubt there was a question of fact for the jury, nor is there any doubt as to the woman's injuries. Both plaintiff's and defendant's doctors testified that she was suffering from neurasthenia, and that the blow on the head from this board was a competent producing cause of the situation that she is in. Sitting in the back of the court during the trial, plaintiff fainted and was taken outside, and appellant urges error in the denial of his motion to withdraw a juror; the intimation being that this fainting was a pretense to improperly affect the jury. But his physician testified: |