least have been submitted to the jury, whether the effect of the language was such as to bring it within the purview of the statute. The language used may be susceptible of an innocent construction, which it is well settled is for the jury to determine. Sanderson v. Caldwell, 45 N. Y., 398; Moore v. Francis, 121 id., 199; 30 N. Y. State Rep., 467.

If the words are meant to apply to the plaintiff, they certainly seem to have a "tendency to injure him in his business or occupation;" at all events, a jury may put such a construction upon them as would bring them within the statutory definition of libel. It was not necessary for the plaintiff, in his complaint, to set out extrinsic facts for the purpose of showing the application of the defamatory matter to the plaintiff, but he may state generally what was published concerning him, and if the allegation is controverted, he must establish it on the trial. Section 535, Code Civil Procedure.

In Byrnes v. Mathews, 12 N. Y. State Rep., 74, decided by this court, in which all of the judges took part and wrote opinions, the question of what constituted libel was so fully discussed and variously stated that it seems hardly necessary to repeat the arguments here. It is sufficient to say that while the words in that case did not charge the plaintiff with a criminal offense, it was the unanimous opinion of the court that the complaint was not demurrable and that the case would have to be submitted to the jury. The cases bearing upon the question were there collated and their application to the facts commented upon at great length, and from the rule there followed it is difficult to see how the conclusion can be escaped that the question must be submitted to the jury for determination.

We are, therefore, of the opinion that the verdict and order of the trial court must be set aside and a new trial ordered, with costs to abide the event of the action.

HATCH, J., concurs for reasons stated, and upon the authority of Morey v. Morning Journal Ass'n, 33 N. Y. State Rep., 49; S. C., 17 id., 266.

BECKWITH, Ch. J., did not sit.

MURTY FLANNIGAN, Pl'ff, v. THE AMERICAN GLUCOSE COMPANY, Def't.

(Superior Court of Buffalo, General Term, Filed November 8, 1890.)

1 NEGLIGENCE-WHEN OCCUPANT OF BUILDING NOT LIABLE FOR INJURIES TO STRANGER.

Plaintiff was employed by a firm to deliver boxes to defendant. Not finding the employe who generally received them, he went into a part of the warehouse from which all but employes were excluded, to inquire for him, and another employe pointed to a stairway which was next to an elevator shaft which was open and in a dark place. Plaintiff fell into the open shaft and was injured. Held, that no duty was imposed on defendant to guard the elevator hole, or provide other protection for plaintiff, and that whether plaintiff was a mere trespasser, or was there by sufferance of defendant, he assumed all the risks of the surroundings.

2. SAME-LAWS 1887, CHAP. 462.

Chapter 462, Laws 1887, was not designed to embrace persons who go

upon the premises without invitation or business, and consequently imposes no duty or obligation on the occupant of the premises with respect to such persons.

MOTION for a new trial upon case containing exceptions, ordered to be heard at the general term in the first instance.

The plaintiff was employed by a firm engaged in delivering boxes to defendant. In the course of his business he drove a team, with a load of boxes, to defendant's warehouse, situated on the south side of Scott street in Buffalo, and there delivered the boxes to the employe of defendant. The method of delivery was, for plaintiff to toss the boxes through a window, where they were caught by defendant's inspectors, and, if satisfactory, accepted. The foreman having charge of this business for defendant was named Cook, and the employe who assisted him was Scheel. Plaintiff had delivered boxes in this manner for about four years, and had been to the warehouse many times. Defendant's factory was situate on the north side of Scott street, where its manufacturing business was carried on. On the day of the accident plaintiff drove, with a load of boxes, to the warehouse. Cook was not there to receive them. After waiting twenty or twenty-five minutes, Cook not appearing, plaintiff made inquiries of some employes, and learned that Cook was in the factory; he went to the factory found Scheel, inquired for Cook, was informed that he was upstairs; he asked the way upstairs, and Scheel pointed in the direction of an elevator shaft, by the side of which the stairs were situate. Plaintiff walked in the direction indicated and fell into the elevator hole, and was injured. The place where plaintiff entered the factory was through a large door used for running into the factory railroad cars, where they were unloaded upon a raised platform constructed for that purpose, and level with the floor of the factory. There was but little space between the platform and the car. Plaintiff got upon the platform by jumping. Scheel was at this time unloading barrels from a car by the platform. This portion of the factory received but little light, was filled with barrels, vats, tubs, etc., used about the business, and at the elevator hole it was dark. The elevator, at the time of the injury, was in use hoisting barrels to the upper floor, the doors of the well hole were open, and it was not protected or guarded. The point of entrance used by plaintiff was not the usual one, and was not generally used by the employes or persons visiting the factory on business. West of this entrance were two entrances, one with steps running up from the street, which connected with stairs going to the upper stories; another which led into the business office of the factory. The first of these is fifteen feet west from the car track; the second twenty feet. These entrances were protected by doors which were seen by plaintiff. No one was allowed to go through the factory except employes, and plaintiff had never before been therein.

O. C. De Witt, for pl'ff; John G. Milburn, for def't.

HATCH, J.-The complaint in this action is predicated upon a negligent omission of duty by defendant by which plaintiff

suffered injury. The proof is in harmony with the allegations of the complaint as to the cause of the injury. We are, therefore, confronted with the question, did defendant owe any duty to plaintiff to keep its premises and the elevator hole in a more secure condition. Plaintiff was not an employee of defendant, was not upon the premises engaged in any business for defendant; he entered the premises through a passageway not used for that purpose, and was in that portion of the factory from which the public and all persons, except employes of defendant actually engaged in its business, were excluded. Not only was plaintiff not invited into the factory, but he was there against the express direction of defendant, at a time when the premises were being used in the usual and customary method in which its business was transacted.

Under such circumstances authority is abundant that no duty was imposed upon defendant to guard the elevator hole, or provide other protection for plaintiff, and this is true whether he be considered a mere trespasser, or was there by the sufferance of defendant; being there, he assumed all the risks incident to the surroundings. Victory v. Baker, 67 N. Y., 366; Thompson on Negligence, 308; Cusick v. Adams, 115 N. Y., 55; 23 N. Y. State Rep., 548.

Plaintiff's position is not aided by the direction given by Scheel; taking plaintiff's version, denied by Scheel, plaintiff's witness, it amounted to no more than a direction where Cook could be found; it added nothing to the obligation of defendant, and it was no assurance to plaintiff of his safety. Larmore v. Crown Point Iron Co., 101 N. Y., 391; 1 N. Y. State Rep., 43.

The claim is made, however, that this case is excepted from the operation of the foregoing rule, for the reason that defendant was subject to a statutory duty which required the protection of the elevator hole. The statute relied upon is chap. 462, § 8, Laws 1887. We think this statute has no application to the present⚫ case. Its preamble reads: "An act to regulate the employment of women and children in manufacturing establishments, and to provide for the appointment of inspectors to enforce the same." Plaintiff is certainly not embraced within the class of persons contemplated by the preamble, and the act itself shows that it is limited in its operation to such persons as are employed in the estab lishment, and is so expressed in section 8. It was not designed to embrace persons who should go upon the premises without invitation or business; consequently it imposed no obligation or duty upon defendant with respect to such persons. Knight v. N. Y., L. E. & W. R. R. Co., 99 N. Y., 25; Graham v. President, etc., D. & H. C. Co., 46 Hun, 386; 12 N. Y. State Rep., 390.

In no view of the case does plaintiff show himself entitled to recover. The exceptions are, therefore, overruled, motion denied, and judgment ordered for defendant.

BECKWITH, Ch. J., concurs; TITUS, J., did not sit.

LOUIS M. KIMBALL, App'lt, v. THE FARMERS & MECHANICS' BANK OF BUFFALO, Resp't.

(Superior Court of Buffalo, General Term, Filed November 8, 1890.) CHATTEL MORTGAGE-RIGHTS OF MORTGAGEE OF VESSEL TO EARNINGS.

Plaintiff took a chattel mortgage on a vessel to secure a note, and upon default in payment took possession of the vessel for the purpose of foreclosure, but upon receiving an assignment of the net earnings for two round trips to Chicago, released and surrendered it for such trips. Prior to the time plaintiff took possession, but after default, defendant also took a mortgage on the vessel, and on its being attached by an insurance company, brought replevin and retained possession by virtue of its mortgage, received the freight moneys and refused to pay them to plaintiff. Held, that the surrender by plaintiff was conditional and limited, and by it he parted with no part of his legal title; that defendant possessed no property in the vessel and could enforce no right which was not subject to the payment of plaintiff's claim; that it acquired no greater rights by the seizure than it already had, and plaintiff was entitled to the moneys earned.

APPEAL from a judgment entered upon the report of a referee. The evidence is not returned and the conceded facts appear in the referee's findings of fact. From them it appears that Sarah E. Nims, on April 16, 1873, was indebted to plaintiff, upon a promissory note, in the sum of $8,000, payable, with interest, ninety days from its date; that said Nims was the owner of a schooner named George D. Russell; for the purpose of securing the payment of said note and interest, said Nims executed and delivered a mortgage upon said vessel, which was duly recorded. In and by its terms said mortgage provided that in case default was made in the payment of said note, or if plaintiff should at any time deem herself in danger of losing said debt or any part thereof, said plaintiff was authorized to take possession of said schooner, her tackle, etc., and sell and convey the said property or so much thereof as would satisfy said debt after giving notice of said sale by publication in a newspaper. That on October 27, 1873, the defendant, for the purpose of securing the payment of seven promissory notes made by said Nims, amounting in the aggregate to $20,000, the last of which fell due December 1, 1874, took a mortgage upon said schooner, which contained a like clause as was contained in plaintiff's mortgage, as herein stated, and caused the same to be duly recorded.

When plaintiff's note fell due it was not paid, and plaintiff, on November 5, 1875, took possession of said schooner for the purpose of foreclosing his said mortgage. While plaintiff was so in possession of said schooner, on said last named date, said Nims executed and delivered to plaintiff an assignment of the net earnings of said schooner, exclusive of towage charges which she might earn upon two round trips to Chicago and return. That in consideration of said assignment plaintiff released and surrendered said schooner and returned her to the possession of said Nims. That thereupon said schooner proceeded on her voyage to Chicago, from thence to Milwaukee, where she took on board a cargo of wheat consigned to W. H. Powers & Co., at Buffalo. After being loaded said schooner was frozen in at Milwaukee and was no

to leave said port until the spring of 1876. While so frozen in said schooner was seized under a writ of attachment, issued from the circuit court of the state of Wisconsin, in proceodings commenced by the Etna Insurance Company against said Nims and Ozias Nims, her husband; the latter notified defendant of said proceeding, and subsequently defendant caused to be commenced, in the courts of Wisconsin, replevin proceedings, took said schooner from the possession of the sheriff, and retained the same, under and by virtue of its mortgage, caused said schooner to be towed to Buffalo, where she arrived about May 15, 1876, and procured from said Sarah E. Nims an order for the freight moneys, collected the same and applied them upon its mortgage debt. Defendant had no knowledge of the existence of the assignment of the earnings of the schooner to plaintiff until after the completion of her voyage from Milwaukee. That thereafter plaintiff demanded of defendant the freight moneys, and upon refusal to pay them over brought this action. While said schooner was frozen in some repairs were made upon her, which, with the charges incident to her voyage to Buffalo, amounted to the aggregate sum of $500. The referee decided, as a matter of law, that defendant became legally entitled to collect and receive said freight moneys and apply the same in reduction of its said mortgage debt; that plaintiff was not entitled to maintain the action, and directed judgment dismissing plaintiff's complaint, with costs. To the conclusions of law, found by the referee, plaintiff filed exceptions; these exceptions present the question now here.

Sherman S. Rogers, for app'lt; Spencer Clinton, for resp't.

HATCH, J.-When default was made in the payment of the note held by plaintiff, the legal title to the vessel became vested in plaintiff subject to be defeated only upon compliance with the conditions of the mortgage. Marsden v. Cornell, 62 N. Y., 215; Campbell v. Birch, 60 id., 218. At the time defendant took its mortgage from Sarah E. Nims she was then in default; the legal title was vested in plaintiff; all the interest she then had or could mortgage was an equity of redemption in the property; of this fact defendant had notice, as plaintiff's mortgage was duly recorded and by its terms informed defendant when the debt became due and payable. As to the vessel defendant possessed no property therein, as against plaintiff, could enforce no right which was not subject to the payment of plaintiff's claim. The present question, however, relates not to the vessel but to her earnings. Ordinarily earnings are an incident of ownership and follow the title. Maclachlan's Merchant Shipping, 99, and cases cited. In the case of a mortgagee of a ship out of possession, the mortgagor becomes entitled to receive the freight moneys, may collect the same and use them for his own benefit. This right in the mortgagor, however, may be intercepted by the mortgagee's taking possession of the vessel at any time before the delivery of the cargo, in which event the latter becomes entitled to all the earnings of the voyage, subject to such expenses as are legally chargeable thereon. Liverpool Marine Credit Co. v. Wilson, 7 Ch. App.