
    Mary E. Shafer, Appellant, v. New York Life Insurance Company, Respondent.
    Second Department,
    March 8, 1912.
    Appeal — dismissal of complaint — failure to except — master and servant — negligence — injury from melted sealing wax — defective receptacle — question for jury.
    Where, after a disagreement of the jury, a defendant delayed applying for a dismissal of the complaint and an order of dismissal was made nearly fifty days after trial, the Appellate Division will review the facts on an appeal by the plaintiff from a judgment entered on an order of dismissal, although there is no exception to the order.
    Action by a servant against a master to recover for injuries received owing to the fact that a cup holding melted sealing wax overturned and burned her. Evidence examined, and held, that the question as to whether the cup furnished by the master was defective was for the jury.
    Appeal by the plaintiff, Mary E. Shafer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 28th day of June, 1911, upon a dismissal of the complaint by direction of the court after the jury had failed to agree upon a verdict, and also from an order entered in said clerk’s office on the 3d day of July, 1911, dismissing the complaint herein.
    
      Thomas J. Ritch, Jr., for the appellant.
    
      Carl Schurz Petrasch [Sidney L. Teven with him on the brief], for the respondent.
   Thomas, J.:

Plaintiff, for many years employed as a general utility girl by defendant, was directed to do what she had often done, seal packages with wax taken by her from a small pan or cup set down about a quarter of an inch into a receiving standard. While she was scraping, gently as she says, the melted wax from the applying stick on the edge of the cup, it upset and severely burned her. The jury disagreed and later the defendant, although it had not so moved at the close of the evidence, “applied” for a dismissal of the complaint, and it was so ordered, and the plaintiff has appealed from the order and judgment thereon. The record shows no exception, but order of dismissal was made on June 29, 1911, although the trial was on May eleventh. It would be injustice to deny a review of the facts by reason of the failure to file an exception to an order so made. The cup and holder were bought in the open market, and were óf a kind in general use. Such utensils are “ generally made in two parts,” as defendant’s expert stated. From this evidence it is inferable that they are sometimes made in one part, although defendant’s superintendent of the printing department stated that all were separable; that the cup was brass or copper, and the base iron, suggesting an impossible unity, and that their separability was for the purpose of readily cleaning them. If this evidence be accepted, the disposition of the case was correct, even though, as the witness Roden said, a cup did at one time tip with her and she reported it. But there is evidence for the plaintiff that the cup produced by defendant on the trial was not the cup she was using, in that the absent one had a deeper flange, which in itself is not sufficient to disturb the judgment, and that the two parts of all cups were originally united so as to form one piece. This evidence as to the union is given by the forewoman in the printing department until within six months of the accident. She was not permitted to give evidence of repairs, which was error, as it may be that it would have shown that the parts were refastened after the separation of them indicated by her. The plaintiff, as she says, did not know that the parts were separable, and perchance they were not. It may be argued that the evidence preponderatingly shows that the utensil used and all utensils used were in two parts; but, whatever the view may be in that regard, the question was in the first instance for the jury whether the dish was one of parts originally fastened so that the cup could not tip, and whether through the defendant’s negligence there had been failure to preserve the dish in its intended condition.' If the repairs had upon it related to this, evidence of the same was admissible, otherwise not.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Hirschberg, Oarr and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  