See Code, § 3356.

Moreover, section 1628 is not applicable to an equitable suit like the present; it merely forbids another action at law, to recover a debt which can be recovered in an action of foreclosure.

Equitable, etc. Society v. Stevens, 63 N. Y. 344: Scofield v. Doscher, 72 N. Y. 493; Vanderbilt v. Schreyer, 91 N. Y. 396.

The action was properly brought by the creditor and not by the executor, under the Statute of 1858.

Dewey v. Moyer, 72 N. Y. 78, citing cases; Gardner v. Lansing, 28 Hun, 416; Fort S. Bank v. Leggett, 51 N. Y. 554; Bate v. Graham, 11 N. Y. 242. See also Everingham v. Vanderbilt, 12 Hun, 75, 78.

Mr. Isaac Kugelman, for respondents: The judgment set forth in the plaintiff's complaint is a part of a mortgage debt; and this action cannot be maintained without leave of the court in which the foreclosure action was pending.

Code, § 1628.

Earl, J., delivered the opinion of the court: It appears from the opinion of the judge who presided at the special term that he gave judgment against the plaintiff, for the reason that he had not obtained leave to sue under section 1628 of the Code. At the general term, as appears from the opinion there pronounced, the judgment was affirmed because no execution had been issued upon plaintiff's judgment.

We think this action is without precedent and that the judgment should be affirmed, but not for the precise reasons stated in the courts below.

Plaintiff's judgment was obtained subsequently to the death of the testator, in an action against his executors in their representative capacity, and did not become a lien upon any real estate left by him; and no execution could be issued thereon against any real estate. It was provided in the Revised Statutes (2 R. S.

2 R. S. 199, § 153.

The want of authority to sue is not a defense necessary to be pleaded and proved affirmatively by the defendant; but on the other hand, the fact that leave to sue was granted must be alleged.

Scofield v. Doscher, 72 N Y. 491.

A judgment against executors or administrators of a deceased party is not binding upon nor does it in any way affect the real estate of the decedent; nor can such real estate be sold by virtue of any execution issued upon such judgment.

2 R. S. 6th ed. p. 733, § 12; Code Civ. Proc. $ 1823. See Osgood v. Manhattan Co. 3 Cow. 612; Sparker v. Davis, 8 Cow. 132; Baker v. Kingsland, 10 Paige, 366, 368.

Until the creditor has obtained a judgment at law for his demand against the debtor, and the return of an execution unsatisfied, an action in equity cannot be maintained to set aside conveyances as fraudulent and void.

Dunlevy v. Tallmadge, 32 N. Y. 457; Beardsley Scythe Co. v. Foster, 36 N. Y. 561. See also Allyn v. Thurston, 53 N. Y. 622; Estes v. Wilcor, 67 N. Y. 264; Adee v. Bigler, 81 N. Y. 349; Wiggins v. Armstrong, 2 Johns. Ch. 144; Miller v. Miller, 7 Hun, 208; Adsit v. Sanford, 23 Hun, 45; Adsit v. Butler, 87 N. Y. 585; Chautauque Co. Bank v. Risley, 19 N. Y. 369; Bergen v. Carman, 79 N. Y. 146.

As against Mrs. Herdtfelder, the grantee in the conveyance sought to be set aside, and the children of George Herdtfelder, the plaintiff is only a contract, not a judgment creditor.

Laws 1837, chap. 460, § 72.

Chapter 172 of the Laws of 1843, amending the Act of 1837, makes the judgment against the executors prima facie evidence of the debt before the surrogate, on an application to sell the decedent's estate for the payment of his debts. Judge Folger in Sharpe v. Freeman, 45 N. Y.

to any deceased person shall not be bound or in any way affected by any judgment against his executors or administrators; nor shall it be liable to be sold by virtue of any execution issued upon such judgment; and subsequently the same provisions were incorporated in the Code. § 1823.

Executions authorized by 2 R. S. 88, § 23, and by the Code, § 1825, 1826, are such only as can be issued against personal assets which are in the possession or under the control of the executors or administrators, and have no relation whatever to real estate.

The conveyances, therefore, which the plaintiff seeks to set aside are no obstruction to any lien he may have, or to the enforcement of any execution which he may be able to issue. If the conveyances should be set aside, he would not be able to sell the real estate by virtue of his judgment or any execution issued thereon; and hence this is a case where he is not entitled to the equitable relief which he seeks. Spring v. Short, 90 N. Y. 538.

If the plaintiff could obtain the judgment which he seeks, it would result that without having any lien upon the real estate he would obtain satisfaction of his claim in preference to the other creditors of the testator. The law gives no preference to a vigilant creditor in the estate of a decedent. It impounds his estate for the benefit of his creditors; and no creditor can by any procedure or any degree of vigilance obtain any preference over others. This scheme of the law would be violated if such an action as this could succeed.

The lands, although conveyed by the testator in his lifetime, were assets which could be appropriated for the payment of his debts. Chap. 314, Laws 1858.

If the facts stated in the complaint are true, it is the duty of the executors to pursue the real estate and reclaim it for the benefit of the persons interested in the estate of the testator;

and no one creditor can appropriate it for his sole benefit. Southard v. Benner, 72 N. Y. 424.

(Decided October 5, 1886.)

105.

The fact that the fraudulent grantee is one of the executors furnishes no insurmountable obstacle. If she should refuse to restore the lands to the estate, she could be removed from her office of executrix, and then the remaining two executors could, under the Act of 1858, disaffirm the conveyances of the real estate and bring an action to set them aside. Or the two executors could commence the action, making the executrix a defendant, and in such action obtain for the estate the relief demanded. If the two defendants refused to commence the action upon the application of the creditors or some of them, they could be compelled to commence it by an order of the surrogate, who has ample power to that end under section 2481 of the Code.

Here it does not appear that any application was made to the surrogate, or to the two executors; and there is no reason whatever for not pursuing the orderly method pointed out by the statute, for the reclamation of this real estate and its sale, for the payment of the debts of the testator.

We are, therefore, of opinion that there is no basis for the maintenance of this action, and that the judgment should be affirmed, but without

costs.

All concur except Miller, J., absent.

Jane E. OLIVE, Admrx., Appt., OLIVE,

v.

WHITNEY MARBLE CO., Respt.

1. In an action for damages for death caused by the explosion of a boiler owned by defendant, which was at the time in the charge of the vendor thereof for the purpose of being repaired by it on its own account, it being claimed by plaintiff that the explosion resulted from the negligence of a servant of defendant, assisting vendor's servants (of whom deceased was one) in testing the repairs, held, on the facts:

(a) That in the absence of proof on the part of plaintiff, it must be presumed that defendant's servant either volunteered to aid vendor's servants, or was requested by them to do so; in either event he was not the servant of defendant in what he did, and defendant was not responsible for his acts.

(b) That defendant's servant was not guilty of negligence.

(c) That no responsibility was cast upon defendant if the accident occurred from any defect in the boiler which employer of deceased was bound to repair.

2. It is not sufficient, after an accident, to show that the acts of one charged with negligence were improper and caused the accident; but plaintiff must show that such person knew or had reason to know that the acts were improper and dangerous.

Court at General Term in the Fourth partment, affirming a judgment of nonsuit of the Jefferson Circuit Court in an action to re cover damages for the negligent killing of plaintiff's intestate. Affirmed.

The facts are stated in the opinion. Memorandum of decision below, 36 Hun, 640. Messrs. O'Brien, Emerson & Ward, for appellant:

In determining the correctness of a nonsuit the following rules are to be observed: 1. That the plaintiff is entitled to the most favorable inferences from the evidence, and that all contested facts are to be deemed established in plaintiff's favor. 2. Where, from the circumstances shown, inferences are to be drawn which are not certain and incontrovertible or as to which persons might differ, it is for the jury to decide.

Hewitt v. Watertown, 34 Hun, 626; Rehberg v. Mayor, 91 N. Y. 137, 141; Hart v. Hudson River Bridge Co. 80 N. Y. 622; Williams v. Syracuse Iron Works, 31 Hun, 392; Vosper v. Mayor and Tice v. Munn, 18 N. Y. Week. Dig. 98, 143; Justice v. Lang, 52 N. Y. 323.

The action is not based upon contract but is founded in tort and arises out of a violation of the duty of every man to so manage his property as to inflict no unnecessary damage upon his neighbor.

Farwell v. Boston, etc. R. R. Corp. 4 Met. 49; appd. Coon v. Syracuse & U. R. R. Co. 5 N. Y. 495; 1 Bl. Com. 431.

The boilers in question were the property of defendant. There is no evidence that the sale was a conditional one or that any right was reserved by defendant to reject or return them, and no pretense that defendant claimed any such right.

Nash v. Weaver, 23 Hun, 516; Morey v. Medbury, 10 Hun, 540; Bacon v. Gilman, 57 N. Y. 656; Smith v. Edwards, 29 Hun, 493; Hurd v. Cook, 75 N. Y. 454; Groat v. Gile, 51 N. Y. 431.

The fact that the Watertown Steam Engine Company had guarantied the boilers to be good and sent men to repair them for that reason made no difference with the title.

Voorhees v. Earl, 2 Hill, 288; Cary v. Gruman, 4 Hill, 625, 626; Rust v. Eckler, 41 N. Y. 488; Fogg v. Francis, 9 N. Y. Week. Dig. 130; Kiernan v. Rocheleau, 6 Bosw. 148; Gillespie v. Torrance, 25 N. Y. 306; Royce v. Burt, 42 Barb. 661; Nichols v. Townsend, 7 Hun, 375.

Even if this firing up was for the sole purpose of testing the repairs, it would make no difference with the result.

Coughtry v. Globe Woolen Co. 56 N. Y. 124; Devlin v. Smith, 89 N. Y. 470.

The trial court nonsuited the plaintiff solely upon the ground that the evidence did not show that the boilers were in charge of defendant. This court cannot uphold the nonsuit upon other grounds than those specified by the trial court.

Wisser v. O'Brien, 44 How. Pr. 209; Colleran v. Kennedy, 94 N. Y. 634; Jordan v. National Shoe & L. Bank, 74 N. Y. 471.

As the deceased was not a coservant of Newcombe, the defendant was liable for any in.

juries sustained through his negligence; and this notwithstanding the servant may have acted contrary to his directions and was guilty of a violation of his duty, as long as he is acting within the scope of his employment.

Quinn v. Power, 87 N. Y. 535; Rounds v. Del. Lack. etc. R. R. Co. 64 N. Y. 129; Cosgrove v. Ogden, 49 N. Y. 255; Hoffman v. N. Y. Cent. etc. R. R. Co. 87 N. Y. 25; Lynch v. Met. El. R. Co. 90 N. Y. 77; Whitaker v. 8th Av. R. R. Co. 51 N. Y. 295; Schultz v. 3d Av. R. R. Co. 14 Jones & S. 211; Leviness v. Post, 6 Daly, 321; Peck v. N. Y.C. & H.R. R. R. Co. 70 N. Ÿ. ❘ 587; Higgins v. Watervliet Turnpike Co. 46 N. Y. 23; Shea v. 6th Av. R. R. Co. 62 N. Y. 180. If a servant is directed to test a boiler at 150 pounds and carelessly tests it at 200 the master is liable for injuries sustained thereby.

Ochsenbein v Shapley, 85 N. Y. 214.

That the servant's act was not contemplated by the master is no excuse from liability. Lynch v. Met. El. R. Co. 24 Hun, 506. The master is responsible for injuries caused by the negligence of his servants within the general scope of their employment, notwithstanding the negligent acts are wanton and even willful. In an action against the master the only question is whether the wrongful act was done in the course of the employment or outside of it.

Mott v. Consumers Ice Co. 73 N. Y. 543; Rounds v. Del. Lack. etc. R. R. Co. 65 N. Y. 129; Jackson v. 2d Ar. R. R. Co. 47 N. Y. 274. See also, Coughtry v. Globe Woolen Co. 56 N. Y. 124; Declin v. Smith, 89 N. Y. 470.

Where an accident is of such a nature that it could not usually, or according to the ordinary course of things, happen without the want of proper care, negligence is presumed and the burden is cast upon defendant to relieve itself of that presumption.

Seybolt v. N. Y. Lake Erie & W. R. R. Co. 95 N. Y. 562; Heeg v. Licht, 80 N. Y. 579; Russell Mfg. Co. v. New Haven Steamboat Co. 50 N. Y. 121; Mullen v. St. John, 57 N. Y. 567; Roberts v. Johnson, 58 N. Y. 613; Brignoli v. Chicago & Gt. East. R. Co. 4 Daly, 182; Walker v. Erie R. Co. 63 Barb. 260; Curtis v. Rochester & Syr. R. R. Co. 18 N. Y. 534; Spinner v. N. Y. C. & H. R. R. R. Co. 67 N. Y. 153; Lyons v. Rosenthal, 11 Hun, 46.

Accordingly, it has been repeatedly held that as steam boilers do not when properly managed usually or ordinarily explode, the fact of such an explosion is presumptive evidence of negligence, and the burden is cast upon the owner of removing the presumption.

Caldwell v. N. J. Steamboat Co. 47 N. Y. 282, 293; S. C. 56 Barb. 425; Rose v. Stevens, etc. Trans. Co. 21 Am. Law Reg. 522; Ill Cent. R. R. Co. v. Phillips, 55 Ill. 194; Peoria R. R. Co. v. Reynolds, 88 Ill. 418; Fay v. Davidson, 13 Minn. 528; McMahon v. Davidson, 12 Minn.357. As the act of letting in the water or steam which caused the explosion was done by direction of defendant's engineer it bound the defendant.

Gleason v. Amsdell, 11 N. Y. Week. Dig. 159; Althorf v. Wolfe, 22 N. Y. 355; Simons v. Monier, 29 Barb. 419.

It was the duty of the engineer to see that a sufficient quantity of water was kept in the

boiler, and it was also the duty of defendant to keep the boiler clear of scales and to examine it for that purpose as often as was necessary. King v. N. Y. C. R. R. Co. 4 Hun, 770; Hawley v. Northern Cent. R. R. Co. 82 N. Y. 370; Vosburg v. Lake Shore, etc. R. R. Co. 94 N. Y. 374; Near v. Del. & Hud. Canal Co. 32 Hun, 557; Durkin v. Sharp, 88 N. Y. 225; Disher v. N. Y. C. & H. R. R. R. Co. 12 N. Y. Week. Dig. 277.

It was not necessary that the explosion should have been occasioned by any particular one of these causes. The rule is that where several proximate causes contribute to an accident and each is an efficient cause, without which the accident would not have happened, it may be attributed to all or any of them. Ring v. Cohoes, 77 Ñ. Y. 83; Pollett v. Long, 56 N. Y. 200; Ellis v. N. Y. L. E. & W. R. R. Co. 95 N. Y. 546.

A nonsuit cannot be granted upon the ground of contributory negligence, unless the undisputed facts show the omission or commission of some act the law adjudges negligence. The negligence must appear so clearly that no construction of the evidence or inferences drawn from the facts will warrant a contrary conclusion.

Stackus v. N. Y. C. & H. R. R. R. Co. 79 N. Y. 464; Payne v. Troy, etc. R. R. Co. 83 N. Y. 572; Wolfkiel v. 6th Av. R. R. Co. 38 N. Y. 49; Weber v. N. Y. C. & H. R. R. R. Co. 58 N. Y. 451; Kain v. Smith, 89 N. Y. 375.

The absence of contributory negligence may appear as well from circumstances as direct evidence.

Morrison v. N. Y. C. & H. R. R. R. Co. 63 N. Y. 643; Johnson v. Hud. Riv. R. R. Co. 20 N. Y. 65; Jones v. N. Y. C. & H. R. R. R Co. 10 Abb.N. C. 200; affd. 28 Hun, 364; Massoth v. Del. etc., Canal Co. 64 N. Y. 524; Hart v. Hudson River Bridge Co. 80 N. Y. 622; Justice v. Lang, 52 N. Y. 323.

The fact that the deceased was in a proper position, engaged in his work with nothing to indicate that he was in an improper place, or unnecessarily exposed to danger, or did any act to contribute to the accident, is sufficient to sustain a finding that he was not guilty of contributory negligence.

Devlin v. Smith, 89 N. Y.470,475; Smith v. Boston Gaslight Co. 22 Alb. L. J. 396.

Even if there had been no proof whatever, as to whether deceased was or was not guilty of contributory negligence, but simply evidence that he was found dead, it would have been a question for the jury as to whether he exercised proper care and caution.

Dorland v. N. Y. C. & H. R. R. R. Co. 19 N. Y. Week. Dig. 76; Hays v. Gallagher, 72 Pa. 136; Hart v. Hudson River Bridge Co. 80 N. Y. 622; Justice v. Lang, 52 N. Y. 323.

The act of Dashno in letting the steam on the south boiler was not, under the circumstances of the case, negligence.

It was the duty of defendant to see that the boilers were kept in a proper condition, and Dashno had the right to assume that this duty had been performed and that the boiler was not overheated and contained a sufficient quantity of water to make the letting in of steam a barmless operation.

Kain v. Smith, 89 N. Y. 375; Fuller v. Jewett, 80 N. Y. 46; Vosburg v. Lake Shore & M. S. R. Co. 94 N. Y. 374.

At all events it was a question for the jury as to whether Dashno acted as an ordinary careful and prudent man would under the cirstances. If he did he was not negligent.

Salter v. Utica, etc. R. R. Co. 88 N. Y. 43; Kellogg v. N. Y. C. & H. R. R. R. Co. 79 N. Y. 76; Stuckus v. N. Y. C. & H. R. R. R. Co. 79 N. Y. 468; Unger v. 42d St. R. R. Co. 51 N. Y. 497. It is sufficient if it appears from the whole case that a party was not chargeable with any want of care.

Moody v. Osgood, 54 N. Y. 488, 496.

There was no privity of contract between Dashno, plaintiff and defendant; and consequently the rule which exempts the master from liabilities for injuries sustained through the negligence of a co-servant has no application.

Farwell v. Boston, etc. R. R. Corp. 4 Met. 49; Perry v. Lansing, 17 Hun, 34.

Dashno is to be regarded as a third person, so far as deceased was concerned. The deceased had no control over him and consequently was not in any way chargeable with his negligence. Robinson v. N. Y. C. & H. R. R. R. Co. 66 N. Y. 11; S. C. 65 Barb. 146; Cosgrove v. N. Y. C. & H. R. R. R. Co. 13 Hun, 329; Platz v. Cohoes, 24 Hun, 101; Spooner v. Brooklyn City R. R. Co. 54 N. Y. 230; Dyer v. Erie R. Co. 71 N. Y. 228; Callaghan v. Rome, W. & O. R. R. Co. 13 Week. Dig. 395.

When an injury results from the negligence of the employer he is not exonerated from liability because the negligence of a co-servant has also contributed to the accident.

Ellis v. N. Y. L. E. & W. R. R. Co. 95 N. Y. 546; Booth v. Boston & A. R. R. Co. 73 N. Y. 38; Cone v. D. L. & W. R. R. Co. 81 N. Y. 206; Flike v. Boston & A. R. R. Co. 53 N. Y.549; Harvey v. N. Y. C. & H. R. R. R. Co. 19 Hun, 556; Dyer v. Erie R. Co. 71 N. Y. 228.

To make out a cause of action it was only necessary to allege and prove that the deceased was killed through the negligence of the defendant and its servants.

Code Civ. Proc. § 1902.

This certainly was alleged and proved. The fact that the plaintiff went further than this and alleged other facts not essential to make out a cause of action is of no consequence, so far as defendant is concerned. The recovery was for the same negligent act of defendant in either case. The defendant was not misled, and at most it was an immaterial variance which the trial court properly disregarded.

Code Civ. Proc. § 539, 540; Robinson v. Wheeler, 25 N. Y. 252; Thomas v. Nelson, 69 N. Y.118; Place v. Minster, 65 N. Y.89; Oyer v. Oyer, 19 N. Y. Week. Dig. 313; Smith v. Lippincott, 49 Barb. 398; Fells v. Vestvali, 2 Keyes, 152; Rose v. Bell, 38 Barb. 25; Carter v. Hope, 10 Barb. 180; Dubois v. Beaver, 25 N. Y. 123; Catlin v. Gunter, 11 N. Y. 368; McComber v. Granite Ins. Co. 15 N. Y. 495; Poirer v. Fisher, 8 Bosw. 258; Underhill v. N. Y. & Harlem R. R. Co. 21 Barb. 489; Saunders v. Auyer, 32 Hun, 420.

The only repairs required or which were made were in the seam which attached the dome to the shell of the boiler, where there was a trifling leakage of steam. Therefore the only risks plaintiff's intestate assumed was such as arose from this

| particular work. No motion for nonsuit was made upon this ground. If it had been, the defect in the evidence, if any, could have been supplied. For this reason a nonsuit cannot be upheld on appeal, upon grounds not suggested in the court below.

Booth v. Bunce, 31 N. Y. 246, 251; Colleran v. Kennedy, 94 N. Y. 634; Adams v. Greenwich Ins. Co. 70 N. Y. 166; Atkins v. Elwell, 45 N. Y. 753; Murphy v. People, 63 N. Y. 590; McDonald v. North, 47 Barb. 530; Osgood v. Toole, 60 N. Y. 475; Brown v. Cayuga, etc. R. R. Co. 12 N. Y. 486; Isaacs v. N. Y. Plaster Works, 8 Jones & S. 277.

The defendant, by not objecting upon this ground, assumed that the question was not in the case and cannot now raise the point upon appeal.

Paige v. Fazakerly, 36 Barb. 392; McDonald v. Christie, 42 Barb. 36; Wisser v. O'Brien, 3 Jones & S. 149; Hill v. Heermans, 17 Hun, 473; Osgood v. Toole, 60 N. Y. 475; Cooper v. Bean, 5 Lans. 322; Rue v. Perry, 63 Barb. 41; Austin v. Burns, 16 Barb. 643; Jencks v. Smith, 1 N. Y. 90, 94.

Mr. John Lansing, for respondent:

The defendant, while the plaintiff's intestate was engaged in making the repairs, owed no duty to him, to furnish safe, proper and suitable machinery for the purpose of making such repairs; or skillful, careful and experienced persons to operate the same.

Murphy v. Caralli, 3 Hurl. & Colt. 462; Murray v. Currie, L. R. 6 C. P. 24; L. R. 2 C. P. Div. 205; Ditberner v. Rogers, 66 How. Pr. 35-39; McCafferty v. Spuyten Duyoil, etc. R. R. Co. 61 N. Y. 178, and cases cited.

The master is liable to his servant for negligence in the employment of incompetent servants or the furnishing of improper and unsafe machinery.

Wright v. N. Y. C. R. R. Co. 25 N. Y. 562– 565, and cases cited.

But such negligence must be proved and knowledge of the defect or insufficiency of the machinery must be brought home to the master, or that he was ignorant of the same through his own neglect.

Wright v. N. Y. C. R. R. Co. 25 N. Y. 562– 566, and cases cited.

Without such evidence plaintiff could not recover.

Gibson v. Northern Cent. R. R. Co. 22 Hun, 289, 292.

The boilers were put into the hands of the plaintiff's intestate and his companion Dashno, for the purpose of reparation and not for use as machinery. He assumed the risks incident to such employment.

Murphy v. Boston & A. R. R. Co. 88 N. Y. 146-151, 152; Brick v. Rochester, etc. R. R. Co. 98 N. Y. 211, 214, 216.

The mere fact of the explosion is not evidence of negligence; so held in the case of an explosion of a steam boiler in a saw mill.

Young v. Bransford, 12 Lea (Tenn.) 232. The boiler was in charge of the mechanics, Dashno and the plaintiff's intestate. The defendant could not be negligent in a matter over which it or its agents or servants had no control.

Ferguson v. Hubbell, 97 Y. Y. 507-510; Hexamer v. Webb, 2 Cent. Rep. 439; Edmundson

v. Pittsburgh, etc. R. R. Co. 1 Cent. Rep. 868; Hoppin v. Worcester, 1 New Eng. Rep. 273; Bailey v. Troy, etc. R. R. Co. 57 Vt. 252.

Earl, J., delivered the opinion of the court: This action was brought to recover damages for the death of Joseph Olive, caused by the explosion of a steam boiler owned by the defendant at Gouverneur in this State. The material facts are as follows:

The defendant bought two boilers of the Watertown Steam Engine Company in September or October, 1883. They were placed side by side, to furnish power for the same machinery and were used until May 3, 1884, when the southerly boiler exploded. The vendor guarantied that the boilers should be good, constructed in first class manner, and of good material. Shortly before the explosion the defendant discovered that there were defects in the boilers and notified the vendor thereof and requested it to repair them. In compliance with this request and to fulfill its contract and guaranty with the defendant, the vendor sent from Watertown one Hislop, the foreman of its boiler shop, and one Dashno, a boiler maker, to make the necessary repairs upon the boilers. They examined them and found that they leaked steam and needed calking and some new rivets and bolts.

Hislop told Dashno what to do and that he should have the boilers fired up and steam on and examine them thoroughly and not leave them until everything was perfect and right. He then returned to Watertown and had some bolts made and sent Olive, a boiler maker who had been in the employ of the vendor for many years, with the bolts to Gouverneur with instructions to aid Dashno in making the repairs, and told him "to help get the rivets driven and see that everything was all right before he came home and left the boilers; to fire the boilers up and test them before he came home and see that everything was all right."

Dashno and Olive went to work upon the boilers and when they had substantially finished one, Newcombe (who was the defendant's engineer and who was also killed by the explosion) put fire under the boilers. It does not appear at whose request he did this. It must be presumed that he did it at the request of the boiler makers, for the purpose of making the tests which they had been instructed to make. The only witness who lived to tell what took place immediately before the explosion detailed à conversation which occurred between Newcombe and Dashno, who was at the time upon the south boiler, as follows: "Dashno asked Newcombe how much steam was on the north boiler. Newcombe said ninety-five pounds. Dashno then said, How much on this (the south boiler)? Newcombe said 'twenty-five pounds.' Dashno then said, 'Open the door in the further (north) boiler. Newcombe said, 'Let the steam on it' and he would risk it. Dashno then stepped up towards the smoke stack. He hadn't hardly made his move when the explosion came. When Newcombe said let the steam on, Dashno made some objection. He did not want to, and Newcombe told him he would risk it, to let the steam on. The explosion then took place."

The plaintiff claims that Newcombe was both unskillful and careless and that the defendant is responsible for his acts. There was no proof whatever that the defendant had any notice that he was unskillful or that he was in fact unskillful. There is no proof whatever or just inference that he was then acting for the defendant.

The vendor had undertaken on its own account to make these repairs, and then to test the boilers to see if the repairs were adequate; and it must be presumed, in the absence of proof on the part of the plaintiff, who has the burden of establishing her case, that Newcombe either volunteered to aid the boiler makers or was requested by them to aid in making the tests. In either event he was not the servant of the defendant in what he did, and it did not become responsible for his acts.

But we should reach the same conclusion on this branch of the case, if we assumed that Newcombe was the servant of the defendant in what he did, as there is no sufficient evidence and no just inference of any carelessness on his part. The proof does not show with any certainty what caused the explosion. No experts were called upon the subject. It was probably caused by letting steam or cold water into the boiler. But even if it was thus caused it does not follow that Newcombe was careless. It does not appear that there was anything to indicate danger to him in what he did. The water gauges indicated a sufficiency of water in the boilers, and there is no proof that they were out of order or that he ought to have known that they were out of order. For aught that appears he believed and had the right to believe that his acts were perfectly proper and safe. It is not sufficient now after the accident to show that they were in fact improper and caused the explosion.

But the plaintiff should have shown that he knew, had reason to know or ought to have known, that they were improper and dangerous. This was not shown, and carelessness which put human life in peril should not be presumed or found upon a mere scintilla of evidence.

But the plaintiff also claims that the boiler which exploded was in an improper and unsafe condition, and that on account thereof the defendant is liable for the accident. It did not owe the same duty to Olive which would have been due to an employee into whose hands the boiler was placed for use. To such an employee it would have owed the duty of reasonable care and diligence to see to it that the boiler was in a safe and proper condition for use.

Olive was there to repair this boiler; and if the accident occurred from any of the defects which the vendor, his employer, was bound to repair, no responsibility was thereby cast upon the defendant. Olive assumed all the risks incident to such defects. If there had been any concealed dangerous defects known to the defendant, it would have been bound to notify the boiler makers of them. But it did not guaranty that the boiler was safe. It does not appear that anyone had knowledge of any concealed defects in the boiler, making it dangerous. It was new, had been used but a few months and had been cleaned every two weeks. There is no evidence that it ought to