
    Jacobsen v. Cornelius.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    1. '.pVJ^sTBR and Servant—Risks oe Employment.
    _" A complaint for injuries received by plaintiff while replacing a belt which fur'iriithed the motive power for a machine at which he was at work is properly dismissed, where the only defect in the machine proven is that a better method might . have been provided for putting it in and out of gear.
    2. App8al—Review.
    ’ Where no exception is taken to the dismissal of a complaint by the special term, "&nd.no motion is made for a new trial upon the minutes, or on a case made, as pro- - vided by Code Civil Proc. IT. Y., § 999, an appeal does not present the merits of the Jo case; V
    
      Appeal from special term.
    Action by Isaac Emiel Jacobsen, an infant, by his guardian, Jacob Jacob-sen, against James Cornelius, to recover for injuries sustained by the plaintiff while in the employ of the defendant, and while attempting to replace a belt which furnished the motive power for a machine at which he was at work.
    Argued before Barnard, P. J., and Dyknan and Pratt, JJ. 0
    
      Henry W. Bates, for appellant. B. F. Tracy, for respondent.
   Barnard, P. J.

The evidence makes out no cause of action, and the plaintiff was properly nonsuited. The plaintiff was about 18 years of age, and had been employed about six months in the defendant’s machine-shop. There was no proof tending to show that the machinery by which the plaintiff was injured was defective in such respects as would support an action for neglect against the master. The general rule is that the employé assumes the risks of the employment. The master is not bound to furnish the very best and safest machines. The implement must be reasonably safe of its kind, and adapted to the employment. .The only defect alleged or proven by the evidence is that tile machine by which plaintiff was injured could be put in and out of gear in a better manner. There was no counter-shaft, and no fast and loose pulley, technically so called, which would have made it safer to connect and disconnect the power from the machine. This omission was not actionable negligence. Lafflin v. Railroad Co., 106 N. Y. 136, 12 N. E. Rep. 599.

This appeal does not present the merits. There was no exception to the ruling of the judge in dismissing the action, and there was no motion for a new trial on the minutes or on a case made at a special term, according to section 999, Code Civil Proc. Ho question as to merits can therefore be raised •upon this appeal. Railroad Co. v. Ebling, 100 N. Y. 98, 2 N. E. Rep. 878. The judgment should be affirmed, with costs.  