1919.] Opinion, per CRANE, J. [225 N. Y.] Q. Mr. Robertson, in your opinion would it excite any suspicion in the mind of an ordinarily competent test clerk that three or four withdrawals were made within one month on an account upon which there had been no previous withdrawals for some time? * Q. In your opinion would it excite any suspicion in the mind of an ordinarily competent test clerk that the whole of an account were withdrawn after there had been no withdrawals for some time?" The objections to these questions should have been sustained. As there is to be a new trial of this case it may be well to call attention to another ruling which was erroneous. The plaintiff called the paying teller of the Coal and Iron National Bank and asked him a question as an expert similar to that asked by the defendant of its experts as above given and which was equally objectionable. Being incompetent, as we have stated, the court could properly have excluded it. The ruling made, however, was as follows: "The Court holds that the witness has qualified as an expert on handwriting, but has not qualified as an expert as to the degree of care that should be exercised by a teller in a savings bank." If this meant that officials from banks of deposit qualified as experts could not give the usual and customary methods used in such banks for comparing signatures or detecting forgeries we think this a too narrow limitation. The custom which is followed in all the banks in the city of New York-deposit or savings deposit or savings could properly be shown in order to determine the care used in this instance. It follows from what is here stated that the judgment appealed from must be reversed and a new trial granted. HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK and HOGAN, JJ., concur; MCLAUGHLIN, J., not sitting. Judgment reversed, etc. [225 N. Y.] Statement of case. [Jan., WALTER MICHALSKI, Respondent, v. AMERICAN MACHINE AND FOUNDRY COMPANY, Appellant. Labor Law - provision requiring machines used in factories to be guarded — construction and application of such provision — employer not liable for injury from unguarded machine if there is no practicable guard obtainable - evidence examined and held insufficient to sustain verdict against employer. 1. The statute (Labor Law, § 81, subd. 1) requiring machinery and machines used in a factory to be guarded has application only to machines and machinery which it is practicable to guard and from which, unguarded, injuries to employees may reasonably be apprehended. In order to hold an employer liable for failure to comply with the statute, there must have been a practicable guard which could have been acquired by him. 2. Where in an action to recover for injuries suffered by plaintiff, it was claimed that the machine by which they were inflicted was not properly guarded, and it appeared that there was not in the market or procurable or contrivable by defendant any guard for the machine, the testimony of a witness descriptive of a guard which never had existed or been obtainable or known to or contrivable by the defendant, raised no real conflict in the evidence and could not be adopted by the jury as the basis of a verdict for plaintiff. Michalski v. American Machine & Foundry Co., 176 App. Div. 901, reversed. (Argued December 6, 1918; decided January 14, 1919.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 9, 1916, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. J. Arthur Hilton for appellant. The defendant did everything that a reasonably careful and prudent man could have done under the circumstances and is, there 1919.] Opinion, per COLLIN, J. [225 N. Y.] fore, not liable for the plaintiff's injury. (Bushtis v. C. C. Co., 128 App. Div. 780; 198 N. Y. 548; West v. B. M. Co., 128 N. W. Rep. 992.) Adolph Ruger for respondent. Appellant was guilty of negligence in that it violated the provisions of the Labor Law (Cons. Laws, ch. 36, § 81). (Scott v. I. P. Co., 204 N. Y. 49; Derouin v. N. Y. A. B. Co., 222 N. Y. 627; Martin v. Walker-Williams Mfg. Co., 198 N. Y. 324; Basel v. Ansonia Clock Co., 159 App. Div. 912; McEwen v. Borden's Condensed Milk Co., 154 App. Div. 185; Michalski v. American Machine & Foundry Co., 169 App. Div. 967.) COLLIN, J. The action is, servant against master, to recover damages for the alleged negligence of the defendant in failing to comply with a statute in that it did not guard the cutter of a milling machine. The Appellate Division by a decision not unanimous affirmed the judgment consequent upon the verdict of the jury in favor of the plaintiff. If there was not evidence that tended to support the verdict, the denial of the defendant's motion that the complaint be dismissed and the submission of the case to the jury were errors. (Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86.) We are to determine under the record presented, as a question of law, whether or not the evidence presented an issue of fact; in reviewing it we must give the respondent the advantage of all the facts properly presented and every favorable inference that can reasonably be drawn. The plaintiff was injured by thrusting, as he slipped upon the oily floor, his hand upon the unguarded cutter of the milling machine which he was operating as an employee in the factory of the defendant. The machine, including the part designated the cutter, was described upon the trial. Its function was to shave, with exceeding [225 N. Y.] Opinion, per COLLIN, J. [Jan., exactness, at times within less than a hair's breadth, the rough or irregular surface of metal. The cutter was a steel solid wheel, in upright position above the table of the machine, about seven inches in diameter and one inch in width. In and across the width of its circumference were set teeth or knives which, as it was revolved at the speed of about one hundred revolutions each minute, did the shaving. At the trial the plaintiff expressly alleged, as the sole act of negligence on the part of defendant, its failure to comply with the statute. The trial justice charged the jury that whether the defendant was negligent depended upon whether it was practicable to guard the cutter. The appellant asserts and argues that unconflicting evidence established that it was not practicable. The statute relates to a factory where machinery is used, and provided: "Machinery of every description shall be properly guarded and provided with proper safety appliances or devices. All machines, machinery, apparatus, furniture and fixtures shall be so placed and guarded in relation to one another as to be safe for all persons." (Labor Law [Cons. Laws, chapter 31], section 81, subdivision 1.) In applying an analogous statute it has been stated that there is a broad distinction between "machines " and "machinery;" a machine is a concrete thing, consisting of all the parts and devices necessary to its operation; machinery is only a part of a machine, designed to work with other parts, so as to effect the common end. (National Enameling & Stamping Co. v. Zirkovics, 251 Fed. Rep. 184.) The statute has application only to machines and machinery which it is practicable to guard and from which, unguarded, injuries to employees may reasonably be apprehended. (Scott v. International Paper Co., 204 N. Y. 49; Pyne v. Cazenovia Canning Co., 220 N. Y. 126; Glens Falls Portland Cement Co. v. Travelers Insurance Co., 162 N. Y. 399.) 1919.] Opinion, per COLLIN, J. [225 N. Y.] A detailed narration of the evidence is not essential to an understanding of the reasons for our decision. The plaintiff, in proving his case, as a witness in his behalf, testified that the cutter was guarded by parts of the milling machine at either side and above, and was unguarded only at its front and rear; it was necessary for the operator to watch the circumference of the cutter and its contact with the metal when work was being performed, otherwise the machine would have to be stopped to know whether or not the work was being correctly done. He introduced no other material evidence (apart from photographs of the machine) relating to the cutter and its guarding. The evidence of the defendant, several of whose witnesses were disinterested, established the conclusions: the defendant had through the four or five years last past attempted to find and to contrive a guard for the cutter; it was unable to learn of or find one in the markets, or to contrive one which would not seriously affect its efficiency or utility; it was impossible to guard the cutter and leave it capable of performing the varied operations required of it; there was no guard for the cutter in the markets or obtainable; no instance of the guarding of or no guard for a cutter like unto this was known or heard of. The evidence in behalf of the defendant did not permit a reasonable inference conflicting with those conclusions. A witness called by the plaintiff, in rebuttal, testified in effect: he was and for twenty-five years had been a consulting engineer; he had examined the milling machine in question to see if it was practicable to put a guard on it; it is practicable to guard, in the way described by him, the cutter of this machine while cutting a piece of material such as was then shown him; he had seen probably twenty-five thousand milling machines and never saw but one guarded; that he saw in operation about three years prior and saw it again about six months prior |