App. Div.] FIRST DEPARTMENT, AUGUST TERM, 1897. ing corporation is not required to refuse the transfer of risks of the other company, because the insured happens at the time of the consolidation to be over sixty years of age." It is not shown, therefore, that the defendant has received moneys on a void contract, or that it would be inequitable to allow it to retain what it has received from the plaintiff's assignor. On the facts as they are made to appear, the judgment was properly directed and must be affirmed, with costs. RUMSEY, O'BRIEN and PARKER, JJ., concurred; VAN BRUNT, P. J., concurred in result. Judgment affirmed, with costs. FRANCES J. NOBLE, Appellant, v. FREDERICK H. NOBLE, Respondent. Reservation in a decree of divorce of the right to apply for alimony. Unless a provision for alimony is contained in the final judgment in an action for divorce it cannot be awarded by a subsequent order, but where such a judgment contains a provision that the plaintiff "may apply at the foot of this judgment, as she may be advised, for such other provision, touching an allowance or otherwise, as any change in the circumstances of the parties may require," the court may thereafter make a provision for her support when it is shown that the defendant's circumstances have changed since the decree of divorce was entered. APPEAL by the plaintiff, Frances J. Noble, from an order of the Supreme Court, made at the New York Special Term and entered in the cffice of the clerk of the county of New York on the 28th day of April, 1897, denying her motion to modify a decree of divorce in her favor theretofore granted in the action. David May, for the appellant. Charles H. Kelby, for the respondent. PATTERSON, J.: The order appealed from was made on the denial of a motion of the plaintiff for a modification of a decree of divorce entered in her favor against the defendant, and by which she asked that provision FIRST DEPARTMENT, AUGUST TERM, 1897. [Vol. 20. be made for the payment to her, by the defendant, of a sum of money for the maintenance and support of herself and of her two infant children, who are in her custody and under her control. She sets forth her inability to provide for and support the children. In the decree of divorce referred to, no express provision was made either for alimony to the plaintiff or for the support, education or maintenance of her children. But those matters were not left totally unprovided for, it being inserted in the decree as one of its provisions, that the plaintiff "may apply at the foot of this judgment, as she may be advised, for such other provision, touching an allow ance or otherwise, as any change in the circumstances of the parties may require." It is the settled law of this State that, unless alimony is provided for in the final judgment, it cannot be awarded by subsequent order, but providing for alimony does not necessarily mean the allowance by specific mention of a fixed and definite sum. Section 1759 of the Code of Civil Procedure relates to modifica tions of provisions as to alimony made in a judgment. Section 1771 of that Code relates to applications before final judgment, or modifications of final judgments, containing provisions for the support and maintenance of children only. This application in its nature, and under the circumstances of the case, seems to come within the purview of the Code. There is a reservation of power in the decree to make a further order for allowance, and the reservation is sufficiently broad to allow an application of this character to be made. In Galusha v. Galusha (138 N. Y. 281) it is said that alimony need not be determined when the judgment dissolving the marriage is entered, providing the right to have it subsequently determined is reserved in the judgment. And in Stahl v. Stahl (12 N. Y. Supp. 855) it was held by the General Term of the Supreme Court that the reservation of this right of supervision, being a part of the original decree, was designed to continue the subject to which it related within the jurisdiction of the court, and was in effect a continuation of the power of the court over the subject and the parties, and was not, as to alimony, a final judgment." These views are suthcient to indicate that the learned judge below was mistaken in applying to the decision of this application the doctrine of the case of Kamp v. Kamp (59 N. Y. 212), and similar cases. But the papers, as they were presented to the court below, would not have justified App. Div.] FIRST DEPARTMENT, AUGUST TERM, 1897. the granting of any specific sum, nor a determination of the motion in the plaintiff's favor on the merits. There was nothing to show that the defendant's circumstances had changed since the decree of divorce was entered, and that is something that must be shown to entitle the plaintiff to a modification of the decree, or to a further order. The order, therefore, must be affirmed, but, under all the circumstances of the case, without costs, and without prejudice to the plaintiff to make a new motion upon proper papers, as she may be advised. RUMSEY, INGRAHAM and PARKER, JJ., concurred; VAN BRUNT, P. J., concurred in result. Order affirmed, without costs, and without prejudice to the plain- . tiff to make new motion upon proper papers. ANNIE M. PRESCOTT, an Infant, by MARIA PRESCOTT, her Guardian ad Litem, Respondent, v. THE J. OTTMAN LITHOGRAPHING COMPANY, Appellant. Negligence-failure of the master to have a machine oiled, resulting in its becoming unmanageable and cutting off an employee's fingers. Proof that if a press was not properly oiled, its clutch, designed to allow the press to make one operation by a pressure of the foot, would break or throw it out" and "allow the press to keep going right on around without any effect of the treadle at all," coupled with testimony that the press required oiling twice a day, that the master had not appointed any one to see that the machinery was in a safe condition and that an employee lost part of her fingers because the die of the press, which had been oiled only three times in two weeks, instead of stopping when she removed her foot from the treadle, kept plunging and cut off her fingers before she could withdraw them, is sufficient to make the question of the liability of the master to the employee a proper one for the consideration of the jury. APPEAL by the defendant, The J. Ottman Lithographing Company, from a judgment of the Superior Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 6th day of December, 1895, upon the verdict of a jury, and also from an order entered in said clerk's office on the 30th FIRST DEPARTMENT, AUGUST TERM, 1897. [Vol. 20. day of December, 1895, denying the defendant's motion for a new trial made upon the minutes. The jury rendered a verdict in favor of the plaintiff for the sum of $2,500. Henry T. Brennan, for the appellant. William A. Jones, Jr., for the respondent. PATTERSON, J.: There were no exceptions taken on the trial of this cause to the charge of the judge, nor to his rulings upon the admission or rejection of evidence; nor was any testimony introduced by the defendant, who relied alone upon the motion to dismiss the complaint at the close of the plaintiff's case. That motion was properly denied. The judge properly submitted the case to the jury, for they were, at all events, to pass upon the credibility of the plaintiff and the subject of the amount of damages. The plaintiff had failed to show any defect in the construction of the machine at which she was working when the accident happened, but there was testimony tending to show that at that time the machine was not in a safe condition for use by an operator. The claim on the part of the plaintiff was that for the want of proper oiling it had become unsafe. She had been working on the machine only two weeks, and, according to her story, she had used it in the precise manner in which she was instructed to use it by Mr. Myers, by whom she was employed for the defendant. The only question of fact really arising in the case was with reference to oiling the machine. The designer and inventor of this very machine was put on the stand as a witness for the plaintiff, and he testified that the machine required oiling twice every day, running at the speed they had to attain in lithographing and paper cutting, which was the use to which this machine was applied. He also testified that that was a well-known fact among machinists and people familiar with machines. "If the machine is not oiled properly the bearing of the fly wheel that revolves on the shaft is liable to get hot." "The clutch will break or throw out, and will allow the press to keep going right on around without any effect of the treadle at all." "The clutch is to allow the press to make one operation by pressing your foot." That was precisely the situation App. Div.] FIRST DEPARTMENT, AUGUST TERM, 1897. at the time of the occurrence which resulted in the injuries to the plaintiff's hand, viz., the die, instead of stopping when the plaintiff's foot was removed from the treadle, kept plunging, and cut off parts of her fingers before she could withdraw them. It appeared by the testimony of the plaintiff, which is entirely uncontradicted, that during the two weeks that she was employed on the machine it was oiled but three times. The point on behalf of the appellant is, that assuming the plaintiff's testimony to be true, as the jury have found it to be, then it is apparent that the unsafe condition of the machine was the result of negligence on the part of some fellowservant of the plaintiff. But the difficulty with the proposition of the appellant in that regard is that there is not a particle of proof to show that the defendant ever devolved upon any one the duty of oiling that machine in the way required to make it safe, or indeed to oil it at all. No one was charged with that duty, no servant was employed or instructed to do it, so far as the proof discloses. On one of the three occasions when it was oiled the machine was making a noise, and Mr. Myers, the superintendent, sent for an oil can and had it oiled. On the other two occasions it seems that a machinist came and oiled it. There is, therefore, absent from the case any evidence to show that the master gave directions or took any means to provide for the proper and safe running of the machinery, and in that respect the case differs from those cited by counsel for the appellant, in which nonsuits have been granted in actions of this character. Where a defendant has furnished means and conveniences for keeping machinery in proper condition for safe operation, and employed some one whose duty it was to use those means and appliances, the neglect to use them is not chargeable to the master. But in all those cases, of which Webber v. Piper (109 N. Y. 496) is a fair example, all that was required of the master had been done by him. The ruling of the court below in refusing to dismiss the complaint was right. We are unable to say, under all the circumstances of the case, that the verdict was excessive, and, therefore, the judgment and order appealed from must be affirmed, with costs. VAN BRUNT, P. J., RUMSEY, O'BRIEN and PARKER, JJ., concurred. Judgment and order affirmed, with costs. |