(155 Fed. 116.) BONG v. ALFRED S. CAMPBELL ART CO. No. 275. COPYRIGHT-PAINTING-ASSIGNMENT OF RIGHT. Where the author or owner of a painting is a citizen or subject of a foreign nation having no reciprocal copyright relations with the United States, and therefore not entitled to copyright such painting under Rev. St. § 4952 [U. S. Comp. St. 1901, p. 3406], as amended by Act March 3, 1891, c. 565, 26 Stat. 1110 [U. S. Comp. St. 1901, p. 3417], he cannot, while retaining the painting itself, convey such right to another. In Error to the Circuit Court of the United States for the Southern District of New York. M. J. Kohler, for plaintiff in error. Baggott & Ryall, for defendant in error. Before LACOMBE, TOWNSEND, and COXE, Circuit Judges. PER CURIAM. This is an action under the copyright statutes to recover penalties and forfeiture for infringement of alleged copyright of a painting. Verdict in favor of defendant was directed by the court upon the pleadings and opening. It thereby appeared that one Hernandez was the author of the painting, and that he was and always had been a citizen of Peru. The plaintiff is a citizen and subject of Germany. Section 13 of the act of March 3, 1891, 26 Stat. 1110, c. 565 [U. S. Comp. St. 1901, p. 3417], amending Rev. St. § 4952 [U. S. Comp. St. 1901, p. 3406], provides that the copyright act shall apply only to a citizen or subject of a foreign state or nation when such foreign state or nation permits to citizens of the United States the benefit of copyright on substantially the same basis as its own citizens, or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States of America may at its pleasure become a party to such agreement. The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation made from time to time. No such proclamation has ever been made as to Peru. It is conceded that Germany is within the terms of the section. Prior to November, 1902, Hernandez executed documents purporting to convey to the plaintiff the right to enter the painting in his (plaintiff's) own name as proprietor for copyright protection in the United States, and also the exclusive right of reproduction in colors, and also the exclusive right of engraving, etching, and lithography in black and in colors, reserving, however, the right of photography and reproduction by all photographic monochrome processes. Thereafter plaintiff took the usual steps to secure copyright of the painting. For aught that appears the painting still belongs to Hernandez. The peculiar form of assignment of rights of reproduction, conveying part and reserving part, presents an interesting question which need not be here discussed. The concessions as to citizenship are sufficient to dispose of the case. It has been held that when a person is the author or proprietor of a painting, and has the right under our statute to secure a copyright on the same, he may separate the two, selling the right to take out a copyright to one person, while he himself retains the original painting, or sells it, without copyright privileges, to another person. We know of no authority which holds that when a person is the author or owner of a painting, but has no right under our statutes to secure a copyright here, he may nevertheless, while retaining the painting, convey to some one else what he does not own himself, viz., the right to take out copyright. In the absence of controlling authority we are unwilling so to hold, believing that such a construction would be judicial legislation defeating the very object. which Congress, by the thirteenth section above cited, sought to obtain. The judgment is affirmed. (155 Fed. 117.) UNITED STATES ex rel. SCHAUFFLER v. FIDELITY & DEPOSIT CO. OF MARYLAND. (Circuit Court of Appeals, Second Circuit. May 30, 1907.) No. 285. APPEAL AND ERROR-TIME OF TAKING PROCEEDINGS-EFFECT OF MOTION TO VACATE JUDGMENT. The six months allowed by statute for suing out a writ of error for the review of a judgment by the Circuit Court of Appeals cannot be extended by a motion in the trial court to vacate the judgment, filed after such time has expired, which brings nothing new into the record, but is in effect merely a motion to reargue the question whether the judgment was warranted by the record. In Error to the District Court of the United States for the Southern District of New York. See 147 Fed. 228. Creevey & Rogers, for plaintiff in error. Frank H. Platt and Henry W. Clark, for defendant in error. LACOMBE, Circuit Judge. The action was brought by the trustee in bankruptcy of George W. Mosely to recover upon a bond given by defendant for the faithful performance of his duties by a former trustee of the same estate, who was alleged to have defaulted. Issue being joined in the District Court, an order was made on March 17, 1903, sending the cause to a referee to take testimony and report. Subsequently, and while the hearing was still proceeding before the referee, such order was amended (June 21, 1904) so as to direct the referee to hear and determine the issues. Thereafter, the referee having rendered his decision in favor of defendant, said decision with the pleadings, orders, testimony, and exhibits came before the District Court, which on November 1, 1905, directed that judgment be entered in favor of defendant, dismissing the complaint on the merits with costs. Judgment was formally entered November 8, 1905. Plaintiff took an 83 C.C.A.-37 appeal from such judgment to the Circuit Court of Appeals, which was dismissed; but he applied for no writ of error within the six months limited by statute for proceedings to review a judgment of the District Court in the Court of Appeals. About four weeks subsequent to the expiration of the six months he moved in the District Court for an order vacating the judgment, on the ground that it was null and void by reason of the fact that said court was without jurisdiction, authority, or power to direct the entry of the same, or to amend the order of reference without relator's consent, and for the further reason that said judgment was irregularly entered. The motion was denied, and this writ of error was sued out to review such denial. Before disposing of the case, it may be noted that we do not express any opinion upon the question whether or not a trustee in bankruptcy is "an officer of the United States authorized by law to sue" in the District Court, under the fourth paragraph of section 563, Rev. St. [U. S. Comp. St. 1901, p. 456]. The point made by plaintiff is that there was no jurisdiction to order a reference to hear and determine without plaintiff's consent or to enter judgment upon a referee's report made in conformity with such order. To reverse or vacate a judgment upon such theory, it would, of course, have to be shown that the order of reference complained of was not consented to or acquiesced in. No facts are set forth in the moving papers which were not before the District Court when judgment was ordered and entered. Every proposition which is now advanced could have been fully presented upon a writ of error to review the judgment itself. We are of the opinion that the case is within the principle laid down in Conboy v. First Nat. Bank of Jersey City, 203 U. S. 141, 27 Sup. Ct. 50, 51 L. Ed. 128. In substance and effect the motion was an application to the District Court to reargue the question whether upon the record before it in November, 1905, judgment should or should not have been entered. Having allowed the time to review the decision embodied. in that judgment to expire, plaintiff cannot, by any motion for reargument or similar relief, extend such time beyond the limit fixed by statute.. The order is affirmed. (155 Fed. 62.) NATIONAL STEEL CO. v. HORE. (Circuit Court of Appeals, Sixth Circuit. June 15, 1907.) No. 1,632. 1. MASTER AND SERVANT-INJURY OF SERVANT-ASSUMPTION OF RISK. To defeat recovery for an injury to a servant by the defense of assumption of risk, the master must show not only that the servant knew of the negligence of which he complains, but that he knew and understood, or ought to have known and appreciated, the increased danger to which he voluntarily exposed himself by reason of such negligence. [Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 575.] 2. SAME. A copper water block in the wall of a blast furnace being operated by defendant blew out, and plaintiff, who was a plumber's helper in defend ant's employ, was injured by the molten metal which escaped. The block, which was embedded in the wall, had become leaky, and preparations had been made to remove it, which could only be done when the blast was off. After much of the cement packing which held it in the wall had been removed, it was decided to allow it to remain for some hours, until the next blast should be off, in order to make repairs to the water system, which had also become defective at the same time. When the removal was about to be made, and while the furnace was still being operated, plaintiff was ordered upon a platform near the block to shut off the water, when the block was pulled, and was there when it blew out. Held that, although plaintiff knew of the defective water system, that the furnace was in full blast, and that a part of the packing had been removed from around the block, it could not be said as matter of law that he assumed the risk arising from such conditions, where it did not appear that he knew the dangers therefrom, or that his experience had been such that he should have known that there was danger that the block would blow out. [Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1068, 1077. Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.] In Error to the Circuit Court of the United States for the Eastern Division of the Southern District of Ohio. James C. Tallman, for plaintiff in error. Before LURTON, SEVERENS, and RICHARDS, Circuit Judges. LURTON, Circuit Judge. By the sudden blowing out of a copper water block in the wall of one of the blast furnaces operated by the National Steel Company, John Hore, a plumber's helper, in the employment of the company, sustained severe injuries, for which he has recovered a judgment. The facts essential to be stated are these: One of these blocks became leaky, and, preparatory to pulling it out to replace it with another, the plaintiff, John Hore, was directed by the manager of the furnace to ascend to a small platform, conveniently placed for removing this block, for the purpose of being ready to disconnect the iron water pipe which supplied it with water. Almost immediately upon his reaching his proper place, and before the blast had been shut off, this block blew out, and the molten contents of the furnace were ejected with great force in every direction. These water blocks were hollow blocks of copper placed in many places in the wall of the furnace, through which, for the purpose of cooling the walls, a constant circulation of cold water was maintained. There was evidence tending to show that a water block could be pulled only when the blast was off, and that it was usually done when the blast was off for making a cast. Preparation for removing this block at the 9 o'clock morning cast had been made by removing much of the cement packing which held it in the wall and by giving direction to the plumber and his helper, Hore, to be ready then to disconnect the water pipe connections. There was evidence tending to show that not long prior to 9 o'clock it was reported to the manager that the filter in the water tank was clogged, and the brush, which was the mechanism used for cleaning it, had gotten out of repair and would not operate. Thereupon the manager directed that preparation should be made for repairing the water system at the 12 o'clock cast, and the pulling of this water block postponed until then, that both jobs might be done when the blast should be shut off at 12 o'clock. The petition avers that it was negligent to keep the hot air blast on with a defective water circulation through a water block thus weakened by the cutting away of the cement casing which held it in place. The case has been made to turn in the argument here chiefly upon the question as to whether Hore did not assume all the risks incident to assisting in the removal and replacing of this water block. This defense was made by demurrer to the petition, by request for a peremptory instruction, by request for special charges bearing upon the doctrine of assumption of risk, and by exceptions to parts of the charge as delivered. The demurrer was rightly overruled. The petition does not deny that plaintiff knew that the water system had broken down, that the packing had been in part removed from around this block, nor that the furnace was being operated under full blast, when in obedience to the order of the master he took his place near this water block to disconnect its water connections. But it does aver that he was "ignorant of the danger" resulting from this state of facts. Now, knowledge of the conditions which surround the doing of a thing by a workman does not always imply knowledge of the dangers which confront him. The fact known, the defect which he sees, or should see if ordinarily observant, may present dangers so obvious that the law will conclusively presume that he did know the danger; no other inference being reasonable. Indeed, the inference in some circumstances is so strong that the denial of appreciation will be of no avail, for the law will say: "You should have known if you had been reasonably attentive to your own safety." Cooley on Torts, 1042 (3d Ed.), and cases cited. Cases in which this court has indulged the presumption of a voluntary assumption of risk are not rare in our opinions. See Detroit Crude-Oil Co. v. Grable, 94 Fed. 73, 36 C. C. A. 94; Railroad Co. v. Hennessy, 96 Fed. 13; Narramore v. Cleveland, etc., Ry. Co., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68; Kenney v. Meddaugh, 118 Fed. 209, 55 C. C. A. 115; and Riley v. Louisville & Nashville R. R. Co., 133 Fed. 904, 66 C. C. A. 598. See, also, Reed v. Moore & McFerrin, 153 Fed. 358, and Coal Creek Co. v. Davis, 90 Tenn. 715, 716, 18 S. W. 387. In the Grable Case, cited above, the contention was that, while the plaintiff might know of the defect by which he was hurt and be chargeable with knowledge of danger therefrom, "he did not anticipate being hurt in the way he was," and therefore a risk not assumed by the plaintiff. But in that case it appeared that the defect was known to the plaintiff and had been complained of. The court also found that the plaintiff was a mature and experienced man, and the danger to be apprehended presumably better known to him than the master. This court therefore said: "When the defect is known, and the danger apparent, it is immaterial that the servant does not anticipate the precise extent or character of the injury which may result. None of the authorities upon the subject put the rule of |