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Second Department, July, 1911.

[Vol. 146.

GEORGE STELTER, Respondent, v. WILLIAM CORDES and CHARLES

J. WALTER, Appellants.

Second Department, July 27, 1911.

Negligence - injury by splinter in floor of bowling alley - failure to

show negligence of proprietor – res ipsa loquitur.

One who while bowling in a public bowling alley slipped and ran a small

splinter into his foot, cannot recover of the proprietor without proof that the splinter existed for a period prior to the accident so that it could have been removed by proper care, or that it could have been discovered upon proper inspection, or that the alley was defective in construction or condition so that the splinter would naturally result from some defect. Under the circumstances the rule of res ipsa loquitur does not apply.

APPEAL by the defendants, William Cordes and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 24th day of January, 1911.

Theodore H. Lord (Floyd K. Diefendorf with him on the brief], for the appellants.

Leon Raunheim, for the respondent.

JENKS, P. J.:

To sustain this judgment the plaintiff invokes necessarily the rule of res ipsa loquitur. The plaintiff when bowling in a public bowling alley slipped and ran a splinter into his foot. The obligation of the defendants was that of reasonable care and prudence lest their premises might injure the plaintiff when in a reasonable contemplated use thereof. (Larkin v. O'Neill, 119 N. Y. 221.) The rule in question arises when the occurrence as proved points necessarily to negligence of some kind on the part of the defendant. (Robinson v. Consolidated Gas Co., 194 N. Y. 37, 41; Griffen v. Manice, 166 id. 188.) The mere fact that the occurrence was in the premises of the defendants does not raise any presumption of wrongdoing. (Curran v. Warren Chemical and Manufacturing Co., 36 N. Y. 153.) The splinter was but a small slender bit of wood. There was no proof of its existence for any period prior to the

App. Div.]

Second Department, July, 1911. occurrence, so that proper care could have removed it, or that it was of such probable origin that proper inspection could have discovered it. And there is no proof that the alley was defective in construction or condition so that such a splinter might be a natural result of some defect thereof. The plaintiff and his companions had used the alley on this very occasion for some time before the occurrence. I fail to see, then, that this mishap as proved points necessarily to any actionable neglect on the part of the defendants. Moreover, the plaintiff and his companions were in the immediate lawful possession and use of the premises when the accident happened. (See Bevan Negligence in Law [3d ed.], 118.)

I advise that the judgment be reversed and that a new trial be ordered, costs to abide the event.

HIRSCHBERG, BURR, WOODWARD and Rich, JJ., concurred,

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

FRANK & J. G. JENKINS, JR., a Corporation, Appellant, v.

WILLIAM A. CONKLIN, Respondent.

Second Department, July 27, 1911.

Pledge-stock held as security for money advanced by broker - action by pledgee holding negotiable security - tender of security - dismissal when not upon merits.

Where a stockbroker advances inoney to buy stocks for a customer, the

stocks to be held by the broker as collateral security for the loan, the relation of pledgee and pledgor exists. In the absence of any special agreement that the collateral shall be first

resorted to by the pledgee, the general rule is that he is neither required to realize upon it nor to return it before suing upon the debt. But in

such action he can recover upon the debt only. But where a pledgee of stock holds certificates so indorsed that he can negotiate them and give a good title to a transferee free from claims of the pledgor, he must, when suing the pledgor for the debt to which the stock is collateral, produce it at trial. On his failure to do so his complaint should be dismissed; but not upon the merits. It seems, that the pledgee might proceed with the action after he had been charged with the face value of the collateral.

Second Department, July, 1911.

(Vol. 146. APPEAL by the plaintiff, Frank & J. G. Jenkins, Jr., a corporation, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 12th day of January, 1911, upon the dismissal of the complaint by direction of the court at the opening on a trial at the Kings County Trial Term, and also from an order entered in said clerk's office on the same day denying the plaintiff's motion for a new trial.

Herman S. Bachrach, for the appellant.

Arnon L. Squiers, for the respondent.

JENKS, P. J.:

The plaintiff appeals from a judgment upon dismissal on the pleadings and on its opening of the case at Trial Term, and from an order denying its motion for a new trial. The plaintiff, a stockbroker, sues to recover a balance of money lent to the defendant, its client, to buy stocks for the latter, with an agreement that such stocks would be held by the plaintiff as collateral security for the loan. There was no plea of tender of the securities or of demand, and upon the argument of the motion for dismissal the plaintiff admitted that it still held the stock as collateral security for the debt in suit; that the certificates were so indorsed that it could negotiate them and make good title to the stock in a transferee, free from any claim of the defendant; that it did not produce the stock or the certificates on the trial; that it did not have them present, and that it made no offer to surrender the same or to have the same in court. Such admissions “deliberately and intentionally” state facts which present the question which we shall consider. (See Hoffman House v. Foote, 172 N. Y. 351.) There was the relation of pledgee and pledgor. (Content v. Banner, 184 N. Y. 124.) But in the absence of any special agreement for first resort to the collateral the general rule is that the pledgee is neither required to realize upon it nor to return it before action upon the debt. (De Cordova v. Barnum, 130 N. Y. 615; Benecke v. Haebler, 38 App. Div. 344, 348; affd., 166 N. Y. 631.) The pledgee may have sold the collateral and, therefore, cannot produce it. But when the court comes to the ascertain

App. Div.]

Second Department, July, 1911.
ment of the debt, the sale is considered and the proceeds thereof
are charged against the debt, or if such sale was not binding
on the defendant, or if it was conversion, then the pledgor may
insist on credit to the extent of the market value of the collat-
eral. Thus the pledgor would receive the full benefit of a proper
sale, while to deny recovery for the debt to the pledgee, if any
debt survived such credit, would be in the nature of a penalty
for a sale of the collateral to the extent of wiping out the debt,
although the action rested upon the debt and not upon a wrong-
ful sale of the collateral. (See Gruman v. Smith, 81 N. Y. 25;
Minor v. Beveridge, 141 id. 399.) All that the pledgee is enti-
tled to in such an action is to recover the debt. If he still have
collateral which he may negotiate, he should not recover the
debt and yet be left free to negotiate the collateral for his own
benefit

. He might do this thing to leave the defendant to per-
haps an unsuccessful pursuit of him or of one who is a bona
fide holder for value. This, to use the expression in Ocean
National Bank of N. Y. v. Fant (50 N. Y. 476), “would be
most unreasonable.”

I think then, in this case, as the collateral was negotiable
by the plaintiff it should have produced it at the trial. (Ocean
National Bank of N. Y. v. Fant, supra; Jones Pled. $ 106;
Coleb. Neg. Sec. § 106; Holmes & Griggs Co. v. Morse, 53
Hun, 58.) It is true that the plaintiff might have insisted
upon proceeding after it had been charged with the face value
of the collateral (Coleb. Neg. Sec. $ 106), but it did not, nor
did it appear that if this had been done there would have been
any apparent debt. I advise affirmance. I think that it should
be clearly understood, however, that such dismissal was not
upon the merits. (Nichols New York Practice, 2211.)
The judgment and the order are affirmed, with costs.
HIRSCHBERG, BURR, THOMAS and CARR, JJ., concurred.
Judgment and order affirmed, with costs.

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Second Department, July, 1911.

[Vol. 146.

AUGUST BAKER, Appellant, v. BROOKLYN UNION ELEVATED

RAILROAD COMPANY, Respondent.

Second Department, July 27, 1911.

Assault and battery — liability of railroad for assault by servant

provocation – erroneous charge.

The fact that a passenger on a street car uses vile and insulting lan

guage to the conductor does not justify an assault by the latter and the carrier will be liable therefor, unless the jury determine that the

passenger used the language with an intent to bring about the assault. In an action to recover for such assault and battery it is error for the

court to refuse to charge that the plaintiff cannot recover if he used language to the conductor with an intent to bring about the assault, if the words used are such as to raise that question, even though they did

not in terms directly invite violence. Where such question exists, it is error for the court to charge that the

jury may find for the plaintiff if they believe his version of the affair, and for the defendant if they believe its version, for under such charge the jurors merely determine the credibility of witnesses.

APPEAL by the plaintiff, August Baker, from an order of the Municipal Court of the city of New York, borough of Brooklyn, entered in the office of the clerk of said court on the 1st day of May, 1911, setting aside the verdict of the jury and granting a new trial.

Wilson & Wilson, for the appellant.

James W. Carpenter, for the respondent.

JENKS, P. J.:

This is plaintiff's appeal from an order of the Municipal Court setting aside his verdict and affording a new trial upon defendant's motion made upon section 999 of the Code of Civil Procedure, and section 254 of the Municipal Court Act. The specific ground of the order is not stated. The action is by passenger against a common carrier of persons for an assault and battery by its servant. It is undisputed that the plaintiff applied a vile and insulting epithet to the servant, who thereupon dealt a blow to the plaintiff. Such language, or any vile or insulting language, did not justify violence, and such com

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