Knisley v. Pratt. frog was a necessary, open, visible structure in the yard, and was known to him. There was no statute requiring it to be blocked, and the company owed him no duty in that regard. In the Eldridge case the wheels of the winch. were open, visible and known to the plaintiff, who had operated it on previous occasions, but the statute did not require the wheels to be covered. And the same may be said in reference to the Sweeney case. Had the statute required covers in these cases, a different question would have been presented. In Benzing v. Steinway (supra), RUGER, Ch. J., in delivering the opinion of the court, says: "It has been repeatedly held that the risks of the service which a servant assumes in entering the employment of a master, are those only which occur after the due performance by the employer of those duties which the law enjoins upon him." And in McGovern v. Central Vermont R. R. Co. (supra), the chief judge says: “It may, we think, be laid down as a general rule that the dangers connected with such a business, which are unavoidable after the exercise by the master of proper care and precaution in guarding against them, are risks incident to the employment, and are assumed by those who consent to accept employment under such circumstances; but those dangers which are known and can be mitigated or avoided by the exercise of reasonable care and precaution on the part of those carrying on the business, and injuries from which happen through neglect to exercise such care, and not incident to the business, and the master is generally liable for damages occurring therefrom." The trial court appears to have based its decision upon White v. Witteman Lithographic Co. (131 N. Y. 631). In that case the trial court in its charge said: "Then, again, it is also claimed, or suggested, at any rate, that the defendant failed in not guarding this machine in a particular manner described by the same statute to which I have referred. But that point is not available against the defendant under the evidence in this case, because the boy was Knisley v. Pratt. aware of the absence of the guards, and he must be held to have assumed the risk of working on the machine without a guard." The judgment was affirmed on review, but we do not understand that the charge was held to be correct. EARL, J., in delivering the opinion of the court, says, in reference to it: "It is not always true that the absence of guards about the machinery in such a case, provided the boy knew it, can have no bearing upon the liability of the employer. The boy might unintentionally and without fault on his part, come in contact with the machinery, or accidentally fall or be thrown against it, and thus the absence of guards which would have protected him, might constitute the negligence which would impose liability upon the employer. But here the boy not only knew that the guards were not there, but, according to his own evidence, they would have been of no service if they had been there, because, having intelligence enough to take care of himself, and to understand and appreciate the machinery and the danger to be apprehended from it, he intentionally went to the place where he was injured and took hold of the lever with his right hand, knowing what the effect would be, and intending to produce that effect, and then carelessly or thoughtlessly thrust his left hand into the wheels. It is impossible to perceive how any ordinary guards would have saved him from the injury." As we understand the opinion, the charge was held not to be reversible error for the reason that the evidence showed that the guards, had they been there, would not have prevented the accident. We, consequently, are of the opinion that if it should. be found that the defendants owed the plaintiff a duty which was not discharged, and that they were guilty of negligence in not performing it, and the injury was the result of such omission of duty, the risk was not such as was assumed by her. It follows that the exception to the non-suit was well Hamilton v. Coogan. taken, and that a new trial should be granted, with costs to abide the event. DWIGHT, P. J., LEWIS and BRADLEY, JJ., concurred. Plaintiff's motion for a new trial granted, with costs to abide the event. HAMILTON v. COOGAN. N. Y. Court of Common Pleas, General Term; April, 1894. 1. Contract.] Plaintiffs agreed to erect a building for defendants and to receive “for such work as compensation the cost of labor and material used therein and ten per cent. added thereto as profit." According to the usages of the business known to defendant, plaintiffs sublet portions of the work to others. -Held, that plaintiffs were entitled to recover, as part of the cost of labor and material, what they had actually paid the subcontractors, though such charges included the sub-contractor's profits, and to recover ten per cent. upon the whole sum expended of which such charges formed a part. 2. Mechanic's lien.] As between the builder and the owner of the property, a mechanic's lien is effected when the proper notice is filed, and is not affected by the failure to serve a notice of claim upon the owner.* * In the recent case of Gee v. Torrey, 77 Hun, 23, it is held that under Code Civ. Pro., § 399, providing that An attempt to commence an action in a court of record is equivalent to the commencement thereof against each defendant within the meaning of each provision of this act which limits the time for commencing an action, when the summons is delivered, with the intent that it shall be actually served to the sheriff," etc.; and § 414, subd. 4, providing that the word "action" shall, when necessary, be construed “special proceeding," an attempt to commence the foreclosure of a lien given by L. 1880, c. 440, known as the "Oil Well Mechanic's Lien Act," by delivering the prescribed notice thereof to the sheriff for Hamilton v. Coogan. Appeal by defendants from a judgment of the Special Term foreclosing a mechanic's lien. Action by John L. Hamilton and others, against. James J. Coogan and another. The facts are fully stated in the opinion. A. & L. Levy, for appellants. Abner C. Thomas, for respondents. J. F. DALY, C. J.-The plaintiffs agreed to erect a building for the defendants and to receive" for such work as compensation the cost of labor and material used therein and ten per cent. added thereto as profit." The plaintiffs did the carpenter work at a cost for labor and materials of $18,193.30, but the other portions of the work they sublet to various contractors, whose bills amount to $93,294.57; and plaintiffs' whole demand was the total of these two sums, being $111,487.87 with ten per cent. added thereto, $11,148.70. The defendants resist this claim upon the ground that the bills of the sub-contractors include the profits of the latter, in addition to the cost of the labor and materials furnished by them respectively; and they instance the sub-contract of Wills for the mason and stone work, in which the plaintiffs agreed to pay Wills the cost of labor and materials with ten per cent. added for profit; the service within the time limited for the commencement of such foreclosure, is equivalent to the commencement thereof within such time, whether such foreclosure is regarded as an action or special proceeding; and that such action or proceeding is not excepted from the provisions of § 399 by § 414, providing that "The provisions of this chapter apply and constitute the only rules of limitation applicable to a civil action or special proceeding, except in one of the following cases: (1) A case where a different limitation is specially prescribed by law." Hamilton v. Coogan. very contract which plaintiffs made with these defendants. Wills' charge for labor and materials is $42,250.62, and his ten per cent. is $4,225.06, making his total bill $46.475.68, upon which plaintiffs claim ten per cent., or $4,647.56, thus charging defendants with ten per cent. on the labor and materials of the mason work twice over. The other sub-contracts do not present the point of contention as sharply as the Wills contract; but it is indisputable that each contractor has charged not only what he paid for labor and materials, but his customary profit in addition thereto; and the question for our determination is whether the plaintiff shall be allowed the amount of these sub-contracts as "the cost of labor and material." The plaintiffs contend that defendants themselves. have construed their agreement in conformity with the plaintiffs' view by recognizing the employment of subcontractors; having recommended one party to plaintiffs, with a request to give him an opportunity to figure upon the plumbing work, and having expressed a wish that Wills should do the mason work. Defendants claim that this was not inconsistent with their contract, and in no wise bound them to pay more than the stipulated price, viz., the cost of labor and material. What is a reasonable construction of the contract must be gathered from the circumstances of the case, the work to be done and the usages of business as known to both parties. This was a contract for the taking down of an old structure, excavating for a new one and erecting a large and costly building, which required the co-operation of a number of different trades, and the whole work was to be completed within a comparatively short period. The custom of apportioning building work among persons engaged in the several trades was known to and recognized by defendants, and is so generally understood that unless the contrary appears we must consider that the parties. entered into this contract with the understanding that |