
    Gertrude Muller, as Administratrix etc., of Henry Muller, Deceased, Respondent, v. Oakes Manufacturing Company, Appellant.
    Second Department,
    June 22, 1906.
    ' Negligence — injury to fireman by bursting of hot water tank attached to boiler —notice of custom of firemen to wash, their clothes at the -tank — washing dirty overalls as incident to employment.
    A master operating boilers connected with a tank outside the boiler room, near which tank firemen were accustomed to eat their dinner, and at which they were accustomed to wash their soiled overalls, is bound to use reasonable care to keep the tank safe from bursting.
    When a fireman washing his clothes at the tank was scalded so that he died, by reason of the tank bursting owing,.to the rusty condition of the hoops which surrounded it, the master is liable.
    A master is chargeable with knowledge of a custom of firemen employed by him to wash clothes at such tank when the custom is of three years’ standing. '.. Although the fireman was washing his own clothes, he was performing work incident to his employment.
    Appeal by the defendant, the Oakes Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 20th day of January, 1905, upon the verdict of a jury for $3,000, and also from an order bearing date the 13tli day of July, 1905, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frederick E. Fishel, for the appellant.
    
      Louis Hess [ William Law Stout with him on the brief], for the respondent.
   Gaynor, J.:

In the manufacturing establishment of the defendant there was a boiler room with six. boilers- in use. The deceased was one of three firemen who kept up the fires under them. There was a door from the" boiler room into the yard ; it was only from eight to twelve feet from the boilers. Outside of this door, about six or seven feet,from it, and alongside the building, was a large tank of water. It was in circulation with the boilers' and the water was hot. The men in the engine room were in the habit of sitting on a bench set up against the building outside of the door, and' a few feet from the tank, while eating their dinner daily in warm weather. " ’ The tank had a spigot with a tub under it, and the firemen were in . fhe habit of washing their overalls and_ jumpers in. this tub at least once- a week. Their clothes got very dirty from coal dust and ashes, and .also from, the burning of exhausted logwood chips from the manufactory mixed, with the coal for economy of fuel. This habit of going,out by the tank to eat and wash had been of long continuance; there is testimony of* it for three years, at least. While’ the deceased was washing his clothes at the tub the tank burst and he was scalded by the hot water from ,-it and died there-' from'. • One or more of the iron hoops of the tank gave way from having become corroded and eaten thin by rust -caused by water dripping down the sides of the tank from leaks and settling under the hoops. ‘ Witnesses on both sides testified to these facts, and none of them are seriously disputed. -

It seems to me a thing unquestionable that it was the duty of the defendant to the deceased and his fellow-workmen,to use reasonable care to keep the tank safe from bursting. The door was there Connecting the boiler room with the yard, and free to be opened and uséd by them, and for no Other use, so far as appears. It was natural .and proper and to be expected that they should step outside to eat tlieir dinner or wash; and moreover it had so long been their custom to do so that it was to be presumed that the defendant knew of it. The deceased was doing work of his own at ,the tank when he was hurt, it is- true, blit it was work which workmen who work-at such dirty employments customarily do.-" It would be too much to say that the master in such a case as this owes no-duty to bis servant except while he is in front of his furnace shoveling in fuel, or raking ashes and cinders. The law is not so hard a taskmaster as that, butdiumane and reasonable. Workmen in boiler rooms’ and ' dirty shops may step aside to a convenient place at hand in their working place, or'so adjacent as to be of it or appurtenant to i!t, to eat or clean. up, - without getting outside the duty which their employer owes to t-liem to take reasonable care of their safety.

The case of Muhlens v. Obermeyer & Liebmann (83 App. Div. 88) is closely in, point. The case of Gibson v. Erie R. Co. (63 N. Y. 449) is not applicable "at all. There the conductor of a moving freight train was climbing up to the roof of a car on the side ladder when he was knocked off by the roof of the station. The trouble with his case was that he had no occasion to climb on the top of the cars, and his doing so was in no way connected with his duties; he was entirely disconnected from his place and duties. The judgment should be affirmed.

Present — Jenks, Hookeb, Gaynor, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  