Evening star. [volume] (Washington, D.C.) 1854-1972, 1905-04-18

SS1 40 without notice to the appellant. was
without jurisdiction and was null and void.
and therefore 1t was error for the District
Supreme Court to sustain the plaintiffs po-
sition taken by the demurrer on which the
special appeal was heard.
Police Court Judgment Affirmed.
''The Judgment of the Police Court was
right, and it Will be affirmed with costs.
said the Court OF Appeals in an opinion
written by Mr.. Chief Justice Shepard and
handed down today. In the case of Francis
H. Duehay, plaintiff in error, against the
error to review a judgment of conviction
in the Police Court of the violation of what
Is known as the smoke law" The Court
of Appeals decides that apartment houses
are not private residences within the mean
ing of the law.
The proof showed the emission of unlaw-
full smoke several times October &c. 1904,
from the chimney of the Rochambeau
apartment house. The single question for
determination was whether a building Of
the kind and uses shown is exempted from
the operation of the 'smoke law under the
following prOyiSo: Provided, That nothing
in this act shall be construed as applied TO
chimneys of buildings used exclusively for
private residences"
In the opinion of the Court of Appeals the
proviso was intended to exclude only what
are generally understood to be houses of
private residence. equipped with the Chin
neys ordinarily used therein. Further the
appellate court GAYS:
we are clearly of the opinion that the
provlso was not intended to withdraw from
the application of the act those buildings
commonly called apartments or tenement
houses. or flats, wherein number of pri
Vate famliieS may live in separate apart
ments, as In this case. enjoying the benefits
of boilers and furnaces attached to one or
more great chimneyS or smokeStacks and
supplying heat and other conveniences for
the common use.
Such buildings. although their owners
may not carry on in them the ordinary
business of hotels in connection with the
lease of apartments, are not used exclu-
sively as private residences within the
meaning of the law
Lower Court Sustained.
The court. in an opinion written by Mr..
Justice Dueli and handed down this after
noon, affirmed the judgment of the lower
court in the case of the Commissioners of
the District of Columbia. appellants against
Lorin NJ. Saunders.
The appeal by the Commissioners was
from an order made by the Supreme Court
of the District of Columbia, sitting as a
District court, setting aside, vacating and
annullng an order confirming a verdict.
extension and widening of Sherman avenue
entered and filed October =, 1901.
The Court of Appeals, in concluding it's
opinion says:
THE court below in vacating the former
decree reserved the right OF the Commits
sioners to take such further proceedings in
the matter in accordance with the opinions
of this court in the cases heretofore re-
ferred to by us.
In our opinion no error was commi tt ed
by the court below in vacating the order
OF October q 1901. and the order of August
16, 1904, must therefore be affirmed with
COSTS
Case of Lillian Butler.
In the case of Lillian s. Butler. appel
LIANT against John D. Frazee. the Court OF
Appeals. by an opinion written by Mr..
Chief Justice Shepard, has affirmed the
judgment Of the lower court.
The action was brought by the appellant
as plaintiff in the Supreme Court of the
District of Columbia to recover damages
occasioned by the alleged negligence of
her employer the appellee.
The Court of Appeals holds that the trial
court was right in directing verdict for
the defendant. and says that the doctrine
of law is established beyond question, that
where an employe undertakes and continues
the use of defective and unsafe appliances
either with actual notice of such defect or
where the same is open to ordinary obser-
walton in the usual course of its use, he
must be deemed to have accepted the risk
of all danger reasonably to be apprehended
from such use, and cannot recover of his
employer.