
    STRAUSS, Respondent, v. HABERMAN MFG. CO., Appellant.
    (Supreme Court, Appellate Division, Second Department.
    January 11, 1898.)
    Action by Morris Strauss against the Haberman Manufacturing Company. Robert Thorne, for appellant. E. J. McCrossin, for respondent.
   PER CURIAM.

In the original decision of this appeal we did not overlook the point urged upon us on this motion for a reargument. 48 N. Y. Supp. 425. The evidence of the witness Levin tended to show that the machine itself was defective at the time the plaintiff was put ■at work thereon. Hé testified that for three days before the accident the die would come down without the foot being placed on the ■treadle, and that the reason for the difficulty was that the spring which would hold the treadle up was not properly fastened. This testimony was sufficient to permit the jury to infer that the master either had knowledge or should have had knowledge of the defect, and was negligent in failing to remedy it. It is ■of the conduct of the foreman in this regard that the opinion states that for such conduct the master was liable, and in support of which proposition the authority of Fox v. Le Comte (Sup.) 37 N. Y. Supp. 316, was cited. If we assume that the lying of the die by the foreman was a detail of the prosecution of the work, and therefore the negligence of a fellow servant, it would not relieve the defendant from liability if the press itself was defective, and the defendant knew, or should have known, of such defect. The motion for reargument should be denied.  