ties interested as beneficiaries in the estate had the right to the exercise of the discretion by both executors. 71 N. Y. 502; 4 Johns. Ch., 368. The rule would have been other wise if the property agreed to be sold had been personal. The house and lot in question were not for the purpose now in hand personal estate. 4 Hill 492. There may have been a conversion of the real estate into personalty for some purpose, but it physically remained real estate, taxable and controllable as such and it could only be conveyed as such. Judgment of General Term, affirming judgment dismissing complaint, affirmed. Opinion by Earl, J. All con cur. MASTER AND SERVANT. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. George F. Newbauer, applt., v. The N. Y., L. E & W. RR., respt. Decided Dec., 1883. The master is not responsible for the mere negligence of one employee whereby another employee is injured, and the grade of the negligent employee is not material. Appeal from a judgment dismissing plaintiff's complaint. Plaintiff is a carpenter, and was at the time of the accident an employee of defendant. Defendant had a department of carpenters for its several divisions, and upon the Delaware division, where the accident happened, one Robert Frompton had charge with foremen under him. Frompton hired. and discharged men. Proof was given tending to show that the accident happened by the negli gence of Frompton. The work in process was building a bridge for defendant. Held, That the action was not made out. The general rule is that a servant assumes all risks of injuries incident to and occurring in the course of his employment except such as are the acts of the master himself or a breach by the master of some term of the contract or of a duty of the master to the servant. The master is not responsible for the mere negligence of an employee whereby another employee is injured. 81 N. Y., 516. The same case holds that the grade of the negligent employee is not material; that a superintendent with power to employ men and to represent the master in other respects is in the management of the machinery a fellow servant of the other operatives. Although the rule was established with a large dissent, it was established. Shehan v. The N. Y. C. & H. RR., 91 N. Y., 332, and Dana v. Same, 16 W. Dig., 395, distinguished. This is a plain case where the master has done everything. The foreman was competent. The assistants were skilful and sufficiently numerous and the applian accident happened. Unless the rule is entirely abolished in respect to injuries occasioned by one employee through the negligence of another there is no liability herein. Every employee has entire control over a particular branch of the corporation who is deputed to give any order in its management. Judgment affirmed. Opinion by Barnard, P. J.: Pratt, J., concurs; Dykman, J.. not sittting. INTEREST. COSTS. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. James B. Jermain, respt., v. The L. S. & M. S. RR. Co., applt.; Drake, respt., v. Same, applt., and three other cases. Decided Jan. 25, 1884. Where interest is recoverable as a measure of damages for breach of contract to pay over certain moneys, and not by virtue of the provisions of the contract, the legal rate must govern, though the contract was made long prior to the act changing the rate of interest, which, took effect January 1st, 1880. In such case interest on the recov ery since January 1st, 1880, must be at the rate of 6 per cent. Upon the decision of an appeal by defendants to the Court of Appeals from a judgment granting a new trial, the remittitur from the Court of Appeals granted judgment absolute to plaintiff on defendant's stipulation, with costs. Held, That "with costs" in the remittitur means the whole costs of the action, and not merely costs in the Court of Appeals. The Court will not reverse or modify an or der granting an extra allowance except in cases of abuse of discretion by the Court below. Various appeals were taken in the above cases. The actions were to recover arrearages of dividends upon certain stock under the provisions of a contract assumed by defendant as a part of its consolidation agreement. The first question is as to what rate of interest should govern and be allowed on the recovery since January 1st., 1880. E. S. Rapallo, for applt. Held, That inasmuch as interest is recoverable as damages and not by force of the terms of the contract, the legal rate must control, though the contract was entered into long prior to January 1st, 1880. 18 W. D., 160. As to the other question in reference to the meaning of the words. "with costs," in the remittitur from the Court of Appeals, granting judgment absolute to plaintiff "with costs," Held, That "with costs" means the whole costs of the action and not merely the costs in the Court. of Appeals. 45 How., 139; 85 N. Y., 241. Held further, That this Court will not disturb the extra allow ance in the absence of any abuse of discretion by the Court below. Orders modified to conform to these views. No costs to either party. Opinion by Brady. J.; Davis, P. J., and Daniels, J., concur. In an action for damages resulting from defendant's negligence, when the evidence leaves in doubt the question as to plaintiff's contributory negligence, the case should be submitted to the jury. Appeal from judgment and from order denying motion for a new trial upon the minutes. Action to recover damages for injuries caused by defendant's negligence. Upon the trial it appeared that plaintiff, about three o'clock in the afternoon of a clear day, while attempting to pass into a hallway and up the stairs of premises occupied by defendants, fell through an open hatchway and received the injuries for which the suit is brought. Defendants requested the court to charge that if plaintiff walked into the opening in daylight he was chargeable with negligence within the rule, because the ordinary use of his senses would have prevented it; and further, that plaintiff did walk into that opening in daylight. The court submitted to the jury the question whether the daylight that was there was sufficient in their judgment of the facts to warrant the conclusion that plaintiff if he had exercised proper care would have seen the opening and would have avoided it. The jury rendered a verdict for plaintiff. Wm, H. Arnoux, for applts. T. C. Campbell, for respt. Held, No error; the facts in this case were not such as were proven in the case of Totten v. Phipps, 52 N. Y., 357. Plaintiff was familiar with the place of the accident and had often passed over it in safety. If, as he testified, he had never observed any indications of a hatchway or any special danger at the locality, he would be justified in believing that nothing would be found in the hallway from which he would incur risk of such an injury as he received. The evidence of plaintiff showed that just previous to the accident he had been for some weeks in the employ of defendants and had repeatedly passed through said hall way. Plaintiff further testified that he had never observed in said hallway anything showing that there was an opening in the It was therefore proper to subfloor and was not aware of its ex-mit to the jury the question of istence. plaintiff's contributory negligence. 91 N. Y., 303. Just before the accident plaintiff had been conversing with a person outside the door, turned suddenly to pass in and up the stairs, made one step without look ing and fell into the unguarded opening. Held further, That the leaving of the opening in the floor unguarded and unprotected and in disregard of the ordinance of the corporation relating to such openings was sufficient prima facie evidence of negligence on the part should be carried free. In such of defendants. Judgment and order affirmed. Opinion by Daniels, J.; Davis, P. J., concurs. NEGLIGENCE. CONTRACT. N.Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Mary A. Seabolt. admrx., respt., v. The New York, Lake Erie & W. RR. Co., applt. Decided Dec., 1883. A postal clerk who, under an agreement between the Government and a railroad company, is to be carried free, is entitled to damages for injuries occasioned by the negligence of such railroad company notwithstanding a condition upon the back of the pass issued making the recipient agree to waive his right to sue for injuries occasioned by the negligence of the railroad company, it being no part of the contract between the Government and such company and there being no consideration therefor. Appeal from judgment in favor of plaintiff as administrator, for the negligence of defendant in kil. ling plaintiff's intestate. The deceased was a postal clerk and defendant was a carrier of mails for the Government by contract. It was part of this contract that the postal clerk should be carried free. The pass sent by defendant had a condition upon the back making the recipient agree to waive his right to sue for injuries occasioned by the negligence of the railroad company. J. F. Seybolt, for respt. Lewis E. Carr, for applt. Held, That it was part of the contract that the postal clerk cases the clerks are passengers and entitled to protection. 66 N. Y., 313. The clerk was not traveling upon a free pass. The Government officers made requisition for passes under the contract and defendant sent one with a condition upon the back of the pass, making the recipient agree to waive his right to sue for injuries occasioned by the negligence of the railroad company. This was not a part of the contract between the Government and defendant nor of the contract between the Government and the deceased. There was no basis for such a restriction upon the carrying of the clerk. There was no consideration moving either between the Government or deceased and defendant. The question of fact properly arising upon the evidence having been found in favor of plaintiff the judgment should be affirmed with costs. Opinion by Barnard, P. J.; Pratt, J., concurs: Dykman, J., dissents. ADVERSE POSSESSION. N.Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Harriet L. Not, respt., v. John J. Carroll, appll. Decided Dec. 21, 1883.. In computing the period during which possession of lands adverse to the owner and his heirs has continued, the term of a valid assessment lease of the premises, creating an outstanding term, must be deducted. The Statute of limitations does not run against the owners during the term of such a lease, for the reason that they are not entitled to possession. Appeal from judgment in favor 15th day of November, 1852, said Carroll assigned said lease to one James McCormack, who took care of the business of the Carroll fam of plaintiff on trial at Circuit with-ily for a time after the father's out jury. Action to recover possession of certain premises in the City of New York. Plaintiff is the sole heir at law of one Henry C. Brier, who was, at the time of his decease in 1830, the owner of the premises and who died intestate. Defendant claims that his father entered into possession of the premises in 1848, claiming title as owner thereof, and that from that time he or his heirs have continued in possession, living on the property, the property, claiming title thereto. On September 26, 1846, the premises were sold by the Comptroller of the City of New York for taxes to one Harron for the term of fourteen years unless redeemed in two years in pursuance of the Acts mentioned in the certificate delivered to said purchaser. After two years, no redemption having been made, a lease was executed by the corporation of the City of New York to one Joseph Blake, the assignee of said Harron. Subsequently this lease, by various assignments, became the property of one Charles Johnson, who, on the 15th day of August, 1850, assigned said lease and granted and conveyed the property described therein, with covenants of warranty that the lease was good and valid according to its tenor and an effectual lease for the term specified, to James Carroll, father of defendant. Afterwards, on the death in 1852. This suit was commenced in May, 1874. Defendant relies upon the statute of limitations as a defence, claiming that this action was not commenced within the twenty years limit. I. T. Williams, for applt. G. W. Stephens, for respt. Held, That, assuming that defendant's possession has been of such a character as to entitle him to the protection of the Statute, such possession has not continued long enough to make the defence available. During a portion of the time there was an outstanding term created by the assessment lease, the validity of which was recognized by defendant's father while in possession both by its purchase and by its sale by him, and it was also recognized by plaintiff by reason of his taking no steps to invalidate the same during the term for which it was made. During that time the statute did not run. 53 N. Y., 287. As plaintiff had no present right of possession during the period of fourteen years that period must. under the authorities, be deducted from the period of adverse occupation claimed to be shown by defendant. Adverse possession appears therefore to have continued only about twelve years. That is not sufficient to constitute a defence. The result at which the learned Court below arrived, al |