
    Harry H. Paul, Respondent, v. Westinghouse, Church, Kerr and Company, Appellant.
    Second Department,
    June 8, 1906.
    Negligence — master not bound to furnish hand-forged instead of dfo$>forged tools.
    -An employee injured by a chip which flew from a drop-forged hammer furnished hy the master cannot recover on the theory that a liand-forged hammer Should have been furnished, when the former kind of hammer is in general use.
    - Appeal by the . defendant, Westinghouse, Church, Kerr and Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, rendered after a trial before a justice without a jury. "
    
      E. Clyde Sherwood (Elliott L. Perkins with him on the brief], for the appellant.
    
      George F. Hickey, for the respondent.
   Gaynor, J.:

Plaintiff and a fellow-workman were at work on the same anvil in the defendant’s blacksmith shop pointing a pick. The process ■ was "that after the pick, was heated the plaintiff pounded it with ' a sledge while his fellow held it' on the anvil and alternately hit it ^itk'a small'handhammer, and when the plaintiff ceased his fellow finished the pointing by continuing with his handhammer. A little piece chipped off the edge of the handhammer as it hit the anvil and flew into the plaintiff’s hand as he was putting down his sledge: The handhammer Was new, having been taken that day from the storeroom where numbers of like hammers were kept for use in the shop. They were of the kind; in general use in blaclc- . smith shops, and were purchased by the defendant in the market. Ho particular flaw or defect is assigned by the plaintiff to the hammer in question; he only claims that.all such hammers are liable to chip, and that therefore the defendant" furnished an unsafe tool. They ape made by the drop of a forge on a base or die, and in that way shaped by a couple of strokes instead of being handmade, and it is on that score that the plaintiff condemns them. Such was the ^ testimony of his expert, who exhibited a hammer made by himself by hand, and which he claimed would never"chip. He testified that the bar steel .had to be "heated too intensely to enable the hammer -to be made ip arstróke’ór two of the drop forge, and as a result the hammer was too brittle,

The hammer was of the kind in general use.. The defendant "was not required to furnish handmade hammers. They have been superseded by machine-made hammers, as is the case "-generally • with tools and implements. His duty was to furnish a reasonably safe hammer, as things go and are accepted", and he did so (Apati v. D., L. & W. R. R. Co., 64 App. Div. 515).

■ The judgment should be reversed.

Woodward, Jenks, Hooker and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, , posts to abide the event. .  