App. Div.]

FOURTH DEPARTMENT, DECEMBER TERM, 1896.

but no claim appears to have been made that he had deprived himself of the right to maintain this action because of any transfer to his mother, until that fact appeared upon the trial, in connection with which it also appeared that a few days prior to the trial there was a retransfer of the claim to the plaintiff.

The only subject for further inquiry is that which is furnished by the defendant's exceptions to certain questions which were asked of the witness Max L. Gutmann. The evidence objected to related to a conversation between the plaintiff and the witness, and was allowed upon the theory that the witness was the agent or representative of the defendant. It is conceded that this evidence was competent, provided the witness was, in fact, such agent, and as it appears without contradiction that all the preliminary negotiations which led up to the issuing of the policy in suit were had with the witness, and that he received from the plaintiff the premium thereon and accounted to the defendant for the same, it would seem as though his relation to the defendant had been sufficiently recognized to relieve this question of all doubt.

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.

WELLS, FARGO & COMPANY (Incorporated), Respondent, v. WELLSVILLE, COUDERSPORT AND PINE CREEK RAILROAD COMPANY and Others, Appellants.

Injunction granted, with leave to move to racate it — order not appealable — papers not read on a motion cannot be considered upon an appeal. Where an injunction order made at Special Term reserves for an indefinite time the right of the party enjoined to move before the judge who granted it, or at Special Term, to vacate or modify it, the party enjoined cannot appeal therefrom to the Appellate Division, as it appears that he has not exhausted his remedy at the Special Term.

An appeal from an order must be heard on the papers enumerated therein, and which were before the judge or court who made the order, and the fact that an order provides that additional affidavits may be made, served and filed, and that they shall be considered on an appeal therefrom, does not alter the rule nor make it proper for the Appellate Division to consider the additional affidavits.

FOURTH DEPARTMENT, DECEMBER TERM, 1896.

[Vol. 12. APPEAL by the defendants, the Wellsville, Coudersport and Pine Creek Railroad Company and others, from so much of an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Allegany on the 24th day of August, 1896, as enjoins and restrains the defendants, the Wellsville, Coudersport and Pine Creek Railroad Company, the Buffalo and Susquehanna Railroad Company, and their and each of their officers, agents, attorneys, employees and representatives, during the period hereinafter mentioned, from engaging in the express business on account of the Wellsville, Coudersport and Pine Creek Railroad Company and on account of the Buffalo and Susquehanna Railroad Company, or for or in the interest of any express company other than Wells, Fargo & Co., the plaintiff, or permitting any of the officers, agents of the said Wellsville, Coudersport and Pine Creek Railroad Company or the Buffalo and Susquehanna Railroad Company, or either of them, to receive, handle, carry or deliver any express goods on any account whatsoever, except for Wells, Fargo & Co., the plaintiff, under its certain contract between Wells, Fargo & Co., the plaintiff, and the Wellsville, Coudersport and Pine Creek Railroad Company, dated March 1, 1894. Said injunction, however, shall not apply to or restrain the taking, handling, carrying or delivery of any express goods which in the carrying thereof are carried over no portion of the railway of the Wellsville, Coudersport and Pine Creek Railroad Company, nor of any express goods which, taken at a point within the State of New York, are to be delivered at a point within said State, the carrying of which between said points shall be wholly within said State. Said injunction to continue from the day of the service of a copy of the same to the 1st day of March, 1897, or any day thereafter of which Wells, Fargo & Co. have been given sixty days prior notice of a desire for the termination of the said contract of March 1, 1894, between Wellsville, Coudersport and Pine Creek Railroad Company and Wells, Fargo & Co.

Appeal is taken pursuant to section 1348 of the Code of Civil Procedure.

Roswell R. Moss, for the appellants.

H. C. Mandeville, for the respondent.

App. Div.]

PER CURIAM:

FOURTH DEPARTMENT, DECEMBER TERM, 1896.

It has been held (Robbins v. Ferris, 5 Hun, 286), and the decision lays down a sound rule of practice, that in case a party moves to vacate an order and his motion is denied, with leave to renew, he cannot appeal from the order, for the reason that he has not exhausted his remedy at Special Term. In the case cited the plaintiff availed himself of the leave granted and also appealed from the first order, but the reason for holding such an order not appealable is as strong in the present case as in the one cited. The order made on the new motion, if any, becomes the final one, determining the rights of the parties, and is appealable.

In the case at bar the order appealed from reserved, without any time limit, the right to the defendants to move before the judge who granted it, or at Special Term, to vacate or modify the injunction order on the papers on which it was granted, or on new affidavits to be opposed by counter affidavits on the part of the plaintiff. The appellants, not having exhausted their remedy at Special Term, the appeal should be dismissed. Besides, the injunction was granted on the papers enumerated therein, in accordance with the rule, but it gave leave to the defendants to make, serve and file additional affidavits which were ordered to be considered on appeal from the injunction order. The defendants availed themselves of this privilege and filed two affidavits, which appear in the record and which we are asked to consider on this appeal. This is wholly irregular, as an appeal from an order must be heard on the papers enumerated therein, and which were before the judge or court making the order. The courtesy of the litigants towards each other is to be commended, but it does not justify this court in reviewing this order.

The appeal should be dismissed, but, under the circumstances, without costs to either party.

All concurred, except HARDIN, P. J., not sitting.

Appeal dismissed, without costs to either party.

APP. DIV.- VOL. XII. 7

FOURTH DEPARTMENT, DECEMBER TERM, 1896.

[Vol. 12.

JOSEPH KOEHLER, an Infant, by EDWARD J. SHANAHAN, his Guardian ad Litem, Respondent, v. SYRACUSE SPECIALTY MANUFACTURING COMPANY, Appellant.

Master and servant - risks of the employment.

An employee, sixteen years of age, was directed to operate a machine, by which
the backs of currycombs were made by a die descending upon a plate, set in
motion by the operator pressing his foot upon a lever, which he had been
instructed not to do except when he wished the die to descend
He sat upon a
wooden stool which stood upon the floor a little distance from the platform of
the machine, but becoming tired of reaching forward to place and remove the
plates, and for greater convenience, he drew the stool closer to the machine
so that its front legs rested upon a platform, while its hind legs were upon the
floor.

While the stool was in this position, it slipped from the platform, the plaintiff
jumped, his foot came in contact with the lever and the die descended upon
the plate and severely injured his hands.

The floor was considerably discolored by oil which had dripped from the
machinery, and the plaintiff testified (although apparently such was not the
fact) that there was oil on the floor." "It was on the platform, too." "It
was oily where the stool was."
Held, that presumptively the plaintiff was sui juris, and, in the absence of evi-
dence tending to show that he was not qualified to understand and appreciate
the situation in which he was placed and the possible injury liable to arise
therefrom, he was chargeable with the same degree of care and with the same
knowledge of his environment that an adult would have been charged with
under the same circumstances;

That, when he entered into the defendant's service, he assumed all the risks and
perils incident to the use of the machinery and appliances which were appar
ent to a person of ordinary observation;

That, if the floor was made slippery by the oil, it was a danger as apparent to the plaintiff as to any other person, and that a charge to the jury by which it was left to them to say whether, as a matter of fact, the plaintiff knew and could appreciate the condition of the floor, and which impliedly instructed them that they might find the defendant guilty of an omission of duty which it owed the plaintiff in failing to warn him against the liability of the stoo! slipping, if such slipping was something which might reasonably have been anticipated, was erroneous.

APPEAL by the defendant, the Syracuse Specialty Manufactur ing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 21st day of March, 1896, upon the verdict of a

App. Div.] FOURTH DEPARTMENT, DECEMBER TERM, 1896.

jury for $1,750 rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Onondaga, and also from an order entered in said clerk's office on the 16th day of March, 1896, denying the defendant's motion for a new trial made upon the minutes.

W. S. Andrews, for the appellant.

M. E. Driscoll, for the respondent.

ADAMS, J.:

The defendant, at the times hereinafter named, was a domestic corporation engaged in the manufacture of currycombs, having its place of business at the city of Syracuse in this State.

The plaintiff, who brings this action to recover damages for a personal injury received by him while in the employ of the defendant, was a lad a little more than sixteen years of age at the time of receiving such injury.

On the 16th day of June, 1895, he applied to the defendant for employment, and his application was accepted, and at one o'clock in the afternoon of the same day he was set at work at a machine which was designed to press the backs of the currycombs into proper shape. He received instructions how to operate the machine, and continued to operate the same until about five o'clock, when, having finished all the plates furnished him, he was taken by the foreman to another machine, known as "No. 19," which was somewhat similar to but larger than the one which he first operated. This machine was designated as a punch, and was one of several of like character which were located in a row in the defendant's shop and elevated upon a platform about one inch above the floor. The punch was operated by a lever, which, when pressed by the foot, set a fly wheel in motion and caused a die to descend upon a plate with sufficient force to bend it into the shape required.

When the plaintiff was placed in charge of this machine he was warned by the foreman never to press his foot upon the lever except when he wished the die to descend, and he also received further instructions with regard to its operation.

A round wooden stool without any back was furnished the plaintiff upon which to sit while operating the machine. This stool