text:
    Myrtle B. Poplar et al., Appellants, v. Bourjois, INC., Appellant and Respondent, and Lorscheider Schang Co., Iuc., Impleaded Defendant-Respondent.
    Argued April 12, 1948;
    decided June 11, 1948.

      Chester B. McLaughlin, Lester D. Sticldes and Rodger Whelan for appellants.
    I. In order to impose liability for negligence only the initial injury need be foreseen. (Pearlman v. Garrod Shoe Co., 276 N. Y. 172; Milks v. Mclver, 264 N. Y. 267; McCahill v. New York Transp. Co., 201 N. Y. 221; Welch v. Enright, 257 App. Div. 685; Lang v. Stadium Purchasing Corp., 216 App. Div. 558.) II. The Appellate Division erred in holding as a matter of law that infection cannot be foreseen as a result of a small wound. (Adlavn v. Konvalinka, 291 Y. 40; Pearlman v. Garrod Shoe Co., 276 N. Y. 172; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160; Busch v. Interborough R. T. Co., 187 N. Y. 388; Rich v. New York C. & II. R. R. Co., 87 N. Y. 382; Cox v. Mason, 89 App. Div. 219.) III. The Appellate Division erred in holding that an object or situation cannot, as a matter of law, be “ inherently dangerous,” simply because it is apparently capable of inflicting only a small initial wound. (Prokopowics v. 11 West 42nd Street, Inc., 289 N. Y. 35Ó; Pearlman v. Garrod Shoe Co., 276 N. Y. 172; Smith v. Peerless Glass Co., 259 N. Y. 292; MacPherson v. Buick Motor Co., 217 N. Y. 382; Hordern v. Salvation Army, 199 N. Y. 233; Pickard v. Woolworth Co., 280 N. Y. 816.) IY. The “ inherently dangerous ” test has been abandoned as a means of determining the liability of a remote vendor. (Langridge v. Levey, 2 M. & W. 519; Winterbottom v. Wright, 10 M. & W. 108; Donoghue v. Stevenson [1932], A. C. 562; Mayor of Albany v. Cunliff, 2 N. Y. 165; Thomas v. Winchester, 6 N. Y. 397; Huset v. Case Threshing Mach. Co., 120 P. 865; MacPherson v. Buick Motor Co., 217 N. Y. 382; Carter v. Yardley & Co., 319 Mass. 92.)
    The complaint was properly dismissed. (MacPherson v. Buick Motor Co., 217 N. Y. 382; Genesee Co. Patrons Fire Relief Assn. v. Sonneborn Sons, 263 N. Y. 463; Smith v. Peerless Glass Co., 259 N. Y. 292; Noone v. Perlberg, Inc., 268 App. Div. 149, 294 N. Y. 680; Field v. Empire Case Goods Co., 179 App. Div. 253; Liedeker v.’Sears, Roebuck'& Co., 249 App. Div. 835, 274 N. Y. 631; Boyd v. American Can Co., 249 App. Div. 644, 274 N. Y. 526; Jaroniec v. Hasselbarth, Inc., 223 App. Div. 182; Pickard v. Woolworth Co., 280 N. Y. 816; State v. é Sons, 79 Md. 514; Flaccomio v. Eysink, 129 Md. 367; State v. Consolidated Gas Co., 146 Md. 390; Bounds v. Phillips, 166 Md. 151.)

      Arthur W. Graef and Louis Arnold, Jr., for defendant-respondent.
   Fuld, J.

A day or two after Christmas, 1940, as Myrtle Poplar was showing her sister perfumes and cosmetics which her husband had given her, she pricked her finger on the point of a silvery metal star that adorned the gift box in which they were contained. A serious streptococcus infection developed, she became gravely ill, and the infected finger had to he amputated. Following an unsuccessful suit in Maryland for breach of warranty against the Baltimore department store where the article had been purchased (Poplar v. Hochschild, Kohn & Co., 180 Md. 389), this negligence action was brought against Bourjois, Inc., by Mrs. Poplar to recover for her injuries and by her husband for the loss of her services and for medical expenses.

Bourjois is a producer of perfumes, cosmetics and kindred articles. In 1940, it bought a large quantity of boxes from Lorscheider Schang Co., Inc., which manufactured them according to the former’s specifications. Each was of cardboard overlaid with a silk fabric, about a foot square and three inches deep; the two cover lids were quilted, and to each was glued a thin and sharply pointed metal star some three inches from point to point. In anticipation of the 1940 Christmas trade, Bourjois packed about 10,000 of these cardboard boxes with its products, stamped its name prominently upon the cover, and marketed the entire package as its own. It sold some of them to a department store in Baltimore, Maryland, and it was one of those that Mr. Poplar, living in nearby Havre de Grace, bought for his wife.

The charge of negligence leveled at Bourjois was that it had failed to have the injury-producing star fastened securely to the box, and there was evidence that the point of the star had become slightly upturned so that- it was not flush with the cover. It was claimed that defendant Bourjois’ carelessness rendered the article “ dangerous to life and limb ”. For its part,' Bourjois denied the charge of negligence and impleaded the manufacturer Lorsclieider, charging it with liability oyer. A trial was held; the jury returned a verdict in favor of plaintiffs against Bourjois and in favor of Lorseheider on the cross complaint. The Appellate Division reversed the judgment in plaintiff’s favor and dismissed the complaint.

"Whether defendant, as manufacturer — for so Bourjois must be treated (Armour & Co. v. Leasure, 177 Md. 393, 412; Commissioners of State Ins. Fund v. City Chemical Corp., 290 N. Y. 64, 69) — owed a duty of care to any one other than its immediate purchaser is the problem for determination, and since the wrong occurred — that is, plaintiff was injured and the harmful force took effect — in the State of Maryland, decision must be made according to the law of that jurisdiction. (See Benton v. Safe Deposit Bank, 255 N. Y. 260, 265; Hunter v. Derby Foods, Inc., 110 F. 2d 970, 971-972; Openbrier v. General Mills, Inc., 340 Pa. 167, 169; see, also, Restatement, Conflict of Laws, § 377, pp. 454-455; § 384.) We are not called upon to consider or decide whether recovery would be permitted under the common law of New York by either application or extension of the rule announced in MacPherson v. Buick Motor Co. (217 N. Y. 382).

We turn, then, to the law of Maryland. The courts of that State have made it clear that no recovery may be had against manufacturers for injuries caused to third persons with whom they have no direct dealings unless they are “ manufacturers or compounders of articles or substances which in themselves are imminently and inherently dangerous ” when defectively made. (State v. Consolidated Gas Co., 146 Md. 390, 399; see, also, State v. Katcef, 159 Md. 271, 278.) In Maryland, as elsewhere, whether a particular article is or is not capable of being characterized as inherently dangerous is determined as each case is presented, without exact yardstick or precise definition. (See Russell, Manufacturers’ Liability to the Ultimate Consumer, 21 Ky. L. J. 388, 405-406.) In general, though, the injury-producing article may not be considered inherently dangerous within the rule unless it is generally and commonly regarded as one which, when defectively made ” is “ a menace to the health and lives of any person ” who might use it. (State v. Consolidated Gas Co., supra, p. 399.) Study of the few Maryland cases in point demonstrates that the term inherently dangerous ” has been given an exceedingly restricted connotation. In the Consolidated Gas Co. case (supra), for instance, where plaintiffs’ infant son was poisoned by noxious gas fumes which escaped from a negligently constructed heater, the court, in dismissing the explicitly declared that the heater could not be considered “ inherently dangerous when defectively made ” (146 Md., at p. 399). Under such a decision, it must necessarily follow that an article which normally inspires as little expectation of disaster as a decorated cosmetics container may not be deemed an article imminently or inherently dangerous.

Recovery against Bourjois was, therefore, correctly denied, and we could conclude at this point were it not for certain observations of the Appellate Division on the subject of foreseeability,,— uttered, perhaps, in an endeavor to define that very elusive concept, “ inherently dangerous ”. We cannot agree with the intimations in that court’s opinion that Bourjois could not be held liable for the reason that it could neither foresee the “ remote ” eventuality that a streptococcus germ might be present where plaintiff’s finger was pricked and get into her blood stream ” (272 App. Div., at p. 76) nor anticipate so extraordinary and unpredictable a result ” as an amputation from the otherwise trivial puncturing of her skin ” (272 App. Div., at p. 75).

As a general proposition, liability for negligence turns upon the foreseeability of any harm resulting from the careless conduct, not upon the foreseeability of the exact nature and extent of the injury which does in fact ensue. (See 1 Cooley on Torts [4th ed.], § 53, pp. 140-141; Seavey, Cardozo and the Law of Torts, 52 Harv. L. Rev. 372, 384.) If a negligent act be the reasonable and proximate cause of an injury — that is, if the plaintiff’s injury is traceable to the defendant’s negligence without the intervention of any other independent, legally operative event — the injured person is entitled to recover for the harm actually suffered, even though the precise nature and extent of those injuries, as they finally developed, were more severe than-could ordinarily have been foreseen. (See Tice v. Munn, 94 N. Y. 621; Baltimore City Passenger Ry. Co. v. Kemp, 61 Md. 74, 80-81.) In other words, a defendant is chargeable for all the harm and suffering which his negligent act brought on even though the plaintiff’s injuries were aggravated by bis own predisposition or weakness (see McCahill v. New York Transp. Co., 201 N. Y. 221; Lang v. Stadium Purchasing Corp., 216 App. Div. 558) or by the intervening mistake or negligence of a physician who treated the original injury. (See Milks v. McIver, 264 N. Y. 267, 269-270). An infection, unquestionably connected to, and flowing from, an injury carelessly caused, should be and is equally chargeable to the careless defendant. (See Adlam v. Konvalinka, 291 N. Y. 40; Matter of Connelly v. Hunt Furniture Co., 240 N. Y. 83, 86.) So, in the present case, if Bourjois owed a duty to ultimate purchasers and could be held liable to plaintiffs for marketing the box in a defective condition, it would likewise be liable for all the proximate results of its negligence, including infection and amputation of the finger. It would, be legally inconsequential that the amputation was less clearly to. be foreseen than a simple scratch or pin prick.

However, as already observed, our determination that the complaint was properly dismissed, is dictated by the Maryland decisions which point the conclusion that, as matter of law, an article such as the Bourjois box may not be regarded as inherently dangerous, a menace to health and life.

The judgment of the Appellate Division should be affirmed, with costs.

Loughran, Ch. J., Lewis, CoNway, Desmond, Thacher and Dye, JJ., concur.

Judgment affirmed.


source: Caselaw Access Project

author:
Fuld, J.
      Dye, J.

license: Public Domain

text:
    Eva D. Haas, Appellant, v. Simon Haas, Respondent.
    Argued March 3, 1948;
    decided June 11, 1948.

      Julius Weiss for appellant.
    I. A separation agreement which relieves the husband from his liability to support his wife for reasons other than marital misconduct is void. (Querse v. Querse, 290 N. Y. 13; Matter of Rhinelander, 290 N. Y. 31; Kyff v. Kyff, 286 N. Y. 71; Jackson v. Jackson, 290-N. Y. 512; Tirrell v. Tirrell, 232 N. Y. 224; Dworkin v. Dworkin, 247 App. Div. 213; Goldman v. Goldman, 282 N. Y. 296; Garlock v. Garlock, 279 Y. 337; Leeds v. Leeds, 265 App. Div. 189; Moore v. Moore, 59 N. Y. S. 2d 22.) II. Special Term erred in holding that the burden of proof rested upon the wife to establish “ that she was not engaged in a retail business Since the husband claimed an exemption from the obligation to support his wife, the burden rested upon him to prove his affirmative defense. (Blunt v. Barrett, 124 N. Y. 117.)

      Victor Lehman for respondent.
    The subsisting separation agreement meets the test that adequate provision for support must exist, and does not offend section 51 of the Domestic Relations Law. (Kyff v. Kyff, 286 N. Y. 71; Almonte v. Almonte, 259 App. Div. 311; Moore v. Moore, 59 N. Y. S. 2d 22.)
   Fuld, J.

The parties to this separation suit, married in 1924, separated early in 1945, and in May of that year entered into an agreement pursuant to which the husband was to pay the wife $100 a week for her maintenance and support (paragraph fourth). It was further agreed that in the event the Wife shall engage in a retail business in the City of New Rochelle, Westchester County, New York, similar to that conducted by the Husband under the name of Haas Linen Shop, either as owner, part owner or stockholder, her right to alimony shall be suspended so long as she is so engaged (paragraph eighth).

The courts below have dismissed the complaint, holding that the clause relied upon is valid and enforcible. We reach a contrary conclusion. Whether or no it may be said that plaintiff’s activities and status as manager of the corporation brought her within the fair scope and intendment of the terms, “ owner, part owner or stockholder ’ ’, it is our judgment that the eighth paragraph offends against the public policy of the State and is illegal.

The obligation of the husband to provide for his wife springs from the marital relationship itself, and, while perhaps not susceptible of exact definition or precise measurément, requires the husband to support her in conformity with his condition and situation in life. (See Garlock v. Garlock, 279 N. Y. 337, 340-341; Rodgers v. Rodgers, 229 N. Y. 255.) That duty, the Domestic Relations Law makes clear, may be neither avoided nor diminished. Section 51, insofar as pertinent, provides that a husband and wife cannot contract to alter or dissolve the marriage or to relieve the husband from hi? liability to support his wife.” By such statutory prohibition, husband and wife are stripped of power to relieve the former of his obligation; both are rendered incapable of bargaining away the woman’s right to the man’s support.

The broad foundation in which the statutory rule is imbedded is the uncompromising determination of the State to preserve the important incidents of the marriage relationship during its continuance whatever the contrary sentiments of the parties themselves may be. This court, pointing to the State’s deep interest in the matter, recently declared that “ every agreement between husband and wife must be viewed in the light of this continuing interest of the State.” (Kyff v. Kyff, 286 N. Y. 71, 74.) They may, if separated, enter into an agreement for regular, substantial, periodic payments ” to the wife as a measure of the husband’s continuing obligation to support her. (See Jackson v. Jackson, 290 N. Y. 512, 516; Goldman v. Goldman, 282 N. Y. 296, 300-301.) But, such an agreement aside, contracts which entirely or partially exonerate the husband or which “ release ” him from his obligation or “ diminish it ” are condemned as void. (Goldman v. Goldman, supra, p. 299; see, also, Jackson v. Jackson, supra, pp. 516-517; Matter of Rhinelander, 290 N. Y. 31, 37; Garlock v. Garlock, supra, p. 340; Manufacturers Trust Co. v. Gray, 278 Y. 380, 386; Tirrell v. Tirrell, 232 N. Y. 224; Third Nat. Bank v. Guenther, 123 N. Y. 568, 576; Leeds v. Leeds, 265 App. Div. 189, 191; Rubinfeld v. Rubinfeld, 264 App. Div. 888, appeal dismissed 289 N. Y. 838; Mabbett v. Mabbett, 197 App. Div. 654, 655; Stone v. Stone, 173 Misc. 774; Moore v. Moore, 59 N. Y. S. 2d 22, 23.)

This court has ever been alert “to-enforce that statute, [§ 51] and to strike down any agreement fairly within its intendment.” (Matter of Rhinelander, supra, p. 37; cf. Weiman v. Weiman, 295 N. Y. 150, 154.) However artful the terms of the agreement, however veiled the design to terminate the husband’s obligation, contrary to the mandate of section 51, the attempts are doomed to failure. Thus, a husband may not purchase enduring exemption either by payment of a lump sum (Jackson v. Jackson, supra, pp. 516-517; Kyff v. Kyff, supra, p. 74) or by payments of installments over a limited period of years. (Rubinfeld v. Rubinfeld, supra.) And an agreement will be stricken that either calls for support only until a child of the marriage becomes twenty-one or sooner marries or dies (Leeds v. Leeds, supra); or excuses such support “ due to the fact ” that the wife “ is gainfully employed and agrees * * * to maintain and support herself ” (Moore v. Moore, supra); or requires the wife to “ assume and pay all the expenses of supporting the family.” (Third Nat. Bank v. Guenther, supra, at p. 574.)

Turning to the provision upon which defendant relies, there can be no doubt that it was designed to accomplish what section 51 forbade. Whatever may be the amount which represents the fair measure of support owed by husband to wife in any particular case, it is evident that its payment may not be made to depend entirely upon the subsequent conduct of the wife, at least when not fairly or reasonably related to the marriage relationship. (Cf. Duryea v. Bliven, 122 Y. 567.) In the present case, defendant was to be relieved from all liability to support plaintiff if she engaged in the retail linen business in New Rochelle, and that immunity of his was to endure, perhaps for life, regardless of how little his wife realized from the business. His freedom from her competition, the agreement indicates, was valuable to him. However, it could not have been so valuable as to equal the amount of support agreed upon, for in such a case, it would be necessary to indulge the conclusion — without warrant — that the amount thus agreed to be paid qua alimony was actually for the wife’s refraining from competing; if that were so, the agreement would be illegal upon the ground that it failed to provide any measurement, of defendant’s obligation of support. On the other hand, if freedom from such competition was worth less than $100 a week, the offending provision demonstrates an intention that defendant should be released not only from the payment agreed upon to induce his wife not to compete, but, in addition, from the payment agreed upon for her support. That obviously may not be done.

The parties, we assume, might have fixed an adequate measure of support and then added a condition providing for extra payments if the wife refrained from engaging in a competing enterprise, for then there would have been no agreement absolving the husband from his obligation. As written, however, the provision relieved defendant of his duty to support plaintiff and violated both the letter and spirit of section 51.

The eighth paragraph of the agreement was, therefore, void and, since it does not afford the husband a defense, dismissal of the complaint could not be predicated upon that provision. It is not now necessary either to consider or pass upon the effect which that clause has upon the agreement as a whole or upon any other of its provisions.

The judgments should be reversed, and a new trial granted, with costs to the appellant in all courts to abide the event.

Dye, J.

(dissenting). I dissent for the reason that the covenant in the separation agreement under review, providing for suspension of. alimony payments during such time as the wife shall engage in the retail linen business in New Rochelle, in competition with her husband either as owner, part owner or stockholder ” is not unreasonable and cannot, under the circumstances presented here, be regarded as a device to relieve the husband of his duty to support the wife in contravention of the statute (Domestic Relations Law, § 51).

The agreement provided for a property settlement under which the husband conveyed to the wife his interest in real property owned as tenants by the entirety, the household furnishings, a Ford station wagon, cash and securities in a jointly held safe deposit box, maintenance by the husband of a policy of insurance on his life in the amount of $10,000 for the benefit of the wife, and to pay alimony in the amount of $100 weekly. The terms also included mutual releases and the wife, for.her part, covenanted not to make any claim or bring any suits against heir husband for maintenance and support so long as the husband kept and performed the covenants and conditions taken by him, in consideration of which she released all interest in the retail linen business conducted by her husband under the style and name of “ Haas Linen Shop ”, with the specific understanding that if she thereafter engaged “ in a retail business in the City of New Rochelle, Westchester County, New York, similar to that conducted by the Husband under the name of Haas Linen Shop, either as owner, part owner or stockholder, her right to alimony shall be suspended so long as she is so engaged.”

The wife was thoroughly familiar with all phases of the linen business having assisted her husband throughout the married, years in the operation of his store. Shortly after the execution of the separation agreement the husband was informed by his landlord that his store lease would not be renewed at its expiration on July 31, 1945, as the premises had been leased to one Greentree who, by the way, is the wife’s brother-in-law. At the trial the wife admitted that she knew at and prior to the time of the execution of the separation agreement about Green-tree’s efforts to get the lease away from her husband but had kept such information from her. husband. The husband was evicted in September, 1945, and moved his business to another location in New Rochelle. Forthwith Greentree Linen Shop, Inc., opened a retail linen store in the old location, Greentree and his wife being the officers and stockholders, but took no active part in the business, and the plaintiff wife being in charge as general manager, Faced with this actuality the husband, relying on the covenant, suspended the weekly alimony payments of $100. The wife then brought the within action for separate maintenance and support alleging abandonment, cruel treatment occasioned by open and notorious adultery and failure to support. The husband interposed general denials and as an affirmative defense offered the separation agreement. The trial court found that the allegations of the complaint had not been sustained by the proof and dismissed the complaint making findings to the effect that the separation agreement was valid, that the defendant husband was complying with its terms and that there was no abandonment or failure to support and that the plaintiff wife had also failed to establish her allegation of cruelty based on open and notorious adultery.

. These findings, I am satisfied, were amply supported by the evidence and have been affirmed by the Appellate Division, except for its modification of the finding that the wife was engaged in the linen business within the intent and meaning of the separation agreement by the addition of the words “ and was so engaged at the time of discontinuance of weekly payments by the husband ” (272 App. Div. 822).

There is and, of course, can be no question as to the interest of the State in the economic aspects of the marriage relation. While the husband may not by contract be relieved of his duty to support the wife, the husband and wife may by contract agree upon an amount which the husband shall pay the wife in satisfaction of his obligation. Such agreement, unless unreasonable (Dolan v. Dolan, 296 N. Y. 860) will be enforced (Goldman v. Goldman, 282 N. Y. 296; Winter v. Winter, 191 N. Y. 462), and will bar the maintenance of an action for support (Oatman v. Oatman, 267 App. Div. 805).

Here the measure of support agreed upon by the parties is not challenged as unreasonable, unfair or inadequate, the sole claim being that the covenant allowing for suspension of alimony payments while the wife engaged in a competing business is and void unenforcible because it contravenes the public policy (Domestic Relations Law, § 51). The contrary seems clear and indisputable. The agreement, by its specific terms, does not relieve tbe husband of his duty to support but rather fixes his obligations which he is bound to meet. The covenant goes to the measure of the support. The wife controls the situation at all times for by her voluntary decision she may determine when she will take the payments or permit their suspension by engaging in competing business. The husband has nothing to say about it. This involves no problem of public policy as to her support for at any time that she desires she may stop competing with her husband and resume receipt of her alimony payments which he is bound to pay. Under such circumstances the covenant is entirely reasonable and should be enforced.

The judgment of the Appellate Division should be affirmed.

LoughraN, Ch. J., Lewis and DesmoNü, JJ., concur with Fuld, J.; Dye, J., dissents in opinion in which CoNWay and Thacher, JJ., concur.

Judgments reversed, etc.


author: J.

text:
    Amanda Noseworthy, as Administratrix of the Estate of Ernest Noseworthy, Deceased, Appellant, v. City of New York, Respondent.
    Argued June 9, 1948;
    decided July 16, 1948.

      Ralph Stout, Joseph Rothbard and Herman W. Bernstein for appellant.
    I. Plaintiff was entitled to requested charge “ that in a death case such as this, the plaintiff is not held to the high degree of proof required in a case where the injured person may take the stand and give his version of the happening of the accident.” (Frate v. State of New 7orle, 245 App. Div. 442; McBride v. Brady, 234 App. Div. 882.) It Plaintiff was entitled to have the trial court charge that the defendant’s motorman was an interested witness. (Fox v. Manhattan Ry.
      Co., 67 App. Div. 460; Matter of Kindberg, 207 N. Y. 220; Wohlfahrt v. Bechert, 92 N. Y. 480; Gaffney v. New York Cons. B. B. Go., 220 N. Y. 34; Harris v. Fifth Ave. Coach Co., 132 N. Y. S. 743.) III. The Trial Justice also erred in his charge where he said: “ I do not think there is any need to reject the testimony of anybody in this case. It seems to me that everything everybody said can practically be taken as true ’ ’. {Becker v. Wo arms, 72 App. Div. 196.)

      John P. McGrath, Corporation Counsel {William D. Van Pelt of counsel), for respondent.
    I. The trial court was correct in its refusal to charge in the language requested ‘ ‘ that in a death case such as this, the plaintiff is' not held to the high degree of proof required in a case where the injured person may take the stand and give his version of the happening of the accident.” In an action for wrongful death the law shifts the burden of proof only as to contributory negligence upon the defendant. II. The charge on contributory negligence was favorable to the plaintiff. III. The trial court charged “ they have a relation to the case, to the controversy, and that relation has got to be taken into consideration when you consider their testimony, but they have no financial interest and that is what interest means .in the law of evidence.” The request included the police officer, motorman and photographer. It is conceded that the request was too broad. Neither in the request nor in the modification was the motorman singled out. Begardless of how carefully the jury might scrutinize the testimony of the motorman, it could not be discarded. It may be interested but it is not in any way discredited. {St. Andrassy v. Mooney, 262 N. Y. 368.)
   J.

Ernest Noseworthy, plaintiff’s intestate, having somehow gotten down from the platform, in one of defendant’s subway stations, to the tracks a few feet below, was struck by a subway train. A few hours later, he died from his injuries. There was no testimony as to how he got onto the tracks or as to whether he was conscious or unconscious when struck. His body, when found, was lying between the rails with one leg on the rail farther away from the platform. Defendant’s motorman was the only eyewitness. He testified that he saw nothing in the way of the train until the body became visible on the tracks, only ten feet from the oncoming cars, and that he applied his brakes immediately and completed an emergency stop within fifteen feet. Meanwhile, the wheels of the first car had passed over body. The station was well lighted and the length of the platform was such that the train must have traveled more, than 400 feet on the straight, level, stretch of track inside the lighted station, before the accident. All this, we think, made a jury question as to whether or not defendant’s motorman was negligent in failing to see decedent until the train was so close that disaster was inevitable (see Clarke v. City of New York, 295 N. Y. 861). The jury answered this question in the negative by announcing a verdict for defendant, and the Appellate Division unanimously affirmed the judgment entered thereon. We granted plaintiff leave to appeal to this court so that we might review a number of alleged erroneous rulings made on the trial.

We refer herein to two only of those rulings, since those two were particularly important in their setting:

1. In that part of his charge to the jury where he briefly summarized the testimony, the Trial Justice had said: “ do not think there is any need to reject the testimony of anybody in this case. It seems to me that everything everybody said can practically be taken as true.” No exception was taken to those remarks but plaintiff’s counsel later asked the court to tell the jury that “ defendant’s witnesses, particularly the police officer, motorman and photographer are interested witnesses.” The court declined so to charge, and probably rightly so, since of the witnesses named, only one — the motorman— was “interested” in any sense. But the court then went on to tell the jurors that, under the law, no one is an interested witness unless he has a “ financial interest ” in the case. That was clearly wrong (Volkmar v. Manhattan Ry. Co., 134 N. Y. 418, 422; O’Flaherty v. Nassau Elec. R. R. Co., 34 App. Div. 74, 77, affd. 165 N. Y. 624; Eastland v. Clarice, 165 N. Y. 420, 430; Matter of Kindberg, 207 N. Y. 220, 227; Gaffney v. New York Cons. R. R. Co., 220 N. Y. 34, 37). That erroneous statement so made to the jury was almost exactly that condemned in Harris v. Fifth Ave. Coach Co. (132 N. Y. S. 743-744) an Appellate Term opinion, written by Justice Seabtjey, later a judge of this court, and concurred in by Justice later our Chief Judge. The Harris case gives the true rule applicable here: “ In an action for injuries, the person directly charged with having caused the injuries, although he may not be the defendant, is so interested that the jury may be at liberty to disbelieve his testimony, although it is not otherwise impeached or contradicted.” What this court said in the Gaffney case (supra, 220 N. Y. at p. 37) also is directly applicable here, since there as here, “ If intestate’s death was caused by negligence, the motorman was the person who was guilty of that negligence. ’ ’ From the misstatement of the law to these jurors — that only those financially involved were 11 interested witnesses and from the earlier remark that “ everything everybody said can practically be taken as true ”, the jurors could well have gotten the idea that their duty was to accept the version in its entirety. Such an .acceptance would necessarily mean a verdict for defendant.

The second error on which we comment was the court’s refusal to instruct the jurors that: “ in a death case such as this, the plaintiff is not held to the high degree of proof required in a case where the injured person may take the stand and give his version of the happening of the accident We think plaintiff was entitled to such an instruction. In the earlier cases, before the burden of proof as to contributory negligence in death cases, was, in 1913, shifted by statute (Decedent Estate Law, § 131) to defendants, the courts announced the rule that since the one accused of contributory negligence was no+ alive to speak for himself, only slight proof of his freedom from guilt would be required (see Schafer v. Mayor, 154 N. Y. 466; McHugh v. Manhattan Ry. Co., 179 N. Y. 378, 383; Harrison v. New York Central & H. R. R. R. Co., 195 N. Y. 86, 90). But the recent cases do not limit this liberality to the question of contributory negligence, and say that in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can' himself describe the occurrence (McBride v. Brady, 234 App. Div. 882; Herbert v. Smith Paper Corp., 243 App. Div. 260, 263; v. State of New York, 245 App. Div. 442, 445). We think that is sound and right. It is based on the consideration ” mentioned in Griffen v. Manice (166 N. Y. 188, 193-194) that where the management and control of the thing which has produced the injury is exclusively vested in the defendant, it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present.” Griffen v. Manice (supra) goes on to say (166 N. Y. at p. 194) that it is a general rule of evidence, applicable to every sort of case, “ that where the defendant has knowledge of a fact but slight evidence is requisite to shift on him the burden of explanation All that applies with greatest force to a situation like that before us here, where no one except the motorman knew what took place early that morning in that deserted subway station.

There were other incidents and rulings at this trial of which plaintiff rightfully complains. But the two rulings above described were, we think,' not only plainly wrong, but seriously prejudicial in a case like this. They deprived plaintiff of her right to have her cause go to the jury on an accurate statement of the simple rules applicable thereto.

The judgments should be reversed and a new trial granted, with costs in all courts to abide the event.

Loughean, Ch. J., Lewis, Thachee, Dye and JJ, concur; Conway, J., taking no part.

Judgments reversed, etc.


text:
    Argued May 17, 1948;
    decided July 16, 1948.

      Otho 8. Bowling and Fred J. Blunder for appellant.
    Insertion of the words “ self-destruction while sane or insane ” violates the statute. (Insurance Law, § 101; § 155, subd. 2, par. [b]; Shipman v. Protected Some Circle, 174 N. Y. 398; Van Zandt v. Mutual Benefit Life Ins. Co., 55 N. Y. 169; Meacham v. New York State Mut. Benefit Assn., 120 N. Y. 237; Matter of Delinousha v. National Biscuit Co., 248 N. Y. 93; De Cogorza v. Knickerbocker Life Ins. Co., 65 N. Y. 232; Bakker v. Aetna Life Ins. Co., 264 N. Y. 150.)

      George W. Riley for respondent.
    The policy clause simply expresses the legislative intention — and stops right there. This is no infringement. {City of New York v. New York City By. Co., 193 N. Y. 543; Mansbacher v. Prudential Ins. Co. of America, 273 N. Y. 140; Connecticut Rural Roads v. Hurley, 120 Conn. 20; Gelpcke v. City of Dubuque, 1 Wall. 175; People ex rel. Huntington v. Crevman, 141,N. Y. 239; People v. Shakun,
      251N. Y. 107; Matter of Stockwell, 210 App. Div. 753; Travelers Ins. Go. v. Padilla Co., 224 N. Y. 397; Addison v. Holly Hill Co., 322 U. S. 607; Knickerbocker Ice Co. v. City of New York, 209 App. Div. 434, 239 N. Y. 595; Brustein v. New Amsterdam Cas. Co., 255 N. Y. 137; Gans v. Aetna Ufe Ins. Co., 214 N. Y. 326.)
   This plaintiff is the beneficiary named in a policy of insurance upon the life of her husband which the defendant company issued and delivered to him in this State on November 13, 1943. It is thereby provided: “ If the Insured shall die within two years from the date of issue of this policy by self-destruction, while sane or insane, the amount payable hereunder shall be limited to the premiums paid On November 12, 1945, the insured destroyed his life by hanging himself. In response to timely notice of that occurrence, thé defendant company sent to the plaintiff the following communication: “ As the death occurred as a result of suicide during the first two years of the policy, the company’s liability in accordance with the terms of the contract is limited to return of premiums paid.” A tender of such payments was thereupon made to the plaintiff and rejected by her.

This action was brought to recover the face amount of the — $5,000. The defendant company moved for summary judgment dismissing the complaint and such a judgment was granted on the merits and was affirmed. We gave the plaintiff leave to bring this further appeal.

Section 154 of the Insurance Law provides for approval by the Superintendent of Insurance of policies of life insurance “ as conforming to the statute ” and forbids delivery of any life policy in this State unless so approved. The above suicide clause in the policy in suit was approved by the superintendent on July 14,1941, or so the parties are agreed. On that date, however, as the Insurance Law then said, no policy of life insurance issued or delivered in this State was to contain any provision excluding liability for self-inflicted death except,— “ A clause excluding liability of the company beyond the amount of reserve less any indebtedness on the policy, for death due to suicide occurring within two years from the date of issue of the policy ” (§ 155, subd. 2, par. [b]). Whether the superintendent had the right here to approve use of the words ‘ ‘ self-destruction, Avhile sane or insane ” as a substitute for the statutory phrase “ death due to suicide ” is the main question that has been argued before us.

According to many cases in this court, a stipulation in a life policy excluding death by “ suicide ” is effective if the insured kills himself while sane but is inoperative if the insured at the time of his suicide was so far insane as to have been without appreciation of the physical consequences of his action or without power to resist the disordered impulse that impelled him to end his own life. (Van Zandt v. Mutual Benefit Life Ins. Co., 55 N. Y. 169, 179; Weed v. Mutual Benefit Life Ins. Co., 70 N. Y. 561; Meacham v. New York State Mut. Benefit Assn., 120 N. Y. 237, 242-243. Cf. Matter of Delinousha v. National Biscuit Co., 248 N. Y. 93.) But the result is different when a policy excludes death by “ suicide * * * sane or insane ”. In that case, any and every insane self-killing by the insured will avoid the policy, as this court declared many years ago. (De Gogorza v. Knickerbocker Life Ins. Co., 65 N. Y. 232, 241-242.)

Thus in the decisional insurance law of New York, the word “ suicide ”, on the one hand, and phrases like suicide * * * sane or insane ”, on the other, long have had mutually and essentially divergent meanings which — since nothing to the contrary appears — the Legislature must here be taken to have recognized-at the time of its enactment of the Insurance Law. (See Perkins v. Smith, 116 N. Y. 441, 448-449.) In that view, the exclusion clause that we have quoted from section 155 of the statute covers only self-destruction by a sane insured and so we now adjudge. In that view, too, approval by the superintendent of the suicide clause contained in the policy in suit was without effect, that clause- was obviously less favorable to the plaintiff than the statutory exclusion clause which we have just construed and, therefore, the statute requires us to enforce the policy as if such statutory exclusion clause were the only suicide proviso set (See Insurance Law, § 143, subd. 3.)

In opposition to the motion of the defendant company for summary judgment, the plaintiff submitted an affidavit sworn to by the physician of the insured. This witness gives it as his professional opinion that the insured was the victim of insane impulses and did not know the nature of his act of self-destruction. Hence there is, under the cases first cited above, a basis for the cause of action here asserted by the plaintiff and for that reason summary dismissal of her complaint was unjustified.

The judgments should he reversed, with costs in all courts and the motion for summary judgment denied, with costs.

Lewis, Conway, Desmond, Thaoher, Dye and Fuld, JJ., concur.

Judgments reversed, etc.


author: Desmohd, J.

text:
    In the Matter of the Claim of Frank C. Ognibene, Respondent, against Rochester Manufacturing Company et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued June 10, 1948;
    decided July 16, 1948.

      Morgan F. Biss elle and Warren C. Tucker for appellants.
    The injury did not arise out of and in the course of employment but was solely the result of horseplay. (Matter of DeFilippis v. Falkenberg, 170 App. Div. 153, 219 N. Y. 581; Matter of Griffin v. Roberson & Son, 176 App. Div. 6; Matter of Still-wagon v. Callan Bros., Inc., 183 App. Div. 141, 224 N. Y. 714; Matter of Frost v. Franklin Mfg. Go., 204 App. Div. 700, 236 N. Y. 649; Plouffe v. American Hard Rubber Go., 211 App. Div. 298; Matter of Rauh v. Western Union Tel. Co., 259 App. Div. 770.)

      Nathaniel L. Attorney-General (Daniel Polonsky and Roy Wiedersum of counsel), for respondent.
    Claimant’s accidental injuries arose out of and in the course of his employment. (Matter of Industrial Gomr. [Signin'] v. McCarthy, 295 N. Y. 443; Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470; Matter of Ghanin v. Western Union Tel. Go., 271 App. Div. 763; Matter of Levy v. World-Telegram, 285 N. Y. 533;'Matter of-Verschleiser v. Stern & Son, 229 N. Y. 192; Matter of Miles v. Gibbs & Hill, Inc., 250 N. Y. 590; Matter of Heits v. Ruppert, 218 N. Y. 148; Groppe v. J. G. Penney Go., 272 App. Div. 851; Donovan v. Bush Terminal Go., 255 App. Div. 737.)
   Fuld, J.

A decision of the Workmen’s Compensation Board in claimant’s favor has been affirmed — two justices dissenting — by the Appellate Division. The simple, yet at times abstruse, question for our determination is whether claimant suffered an injury “ arising out of and in the course of ” his employment (Workmen’s Compensation Law, § 10).

Rochester Manufacturing Company is engaged in the manufacture of pressure and liquid level indicators and thermometers. Claimant, thirty-eight years old, was one of its stockroom clerks. While at work on a day in January, 1946, he playfully threw a small piece of rubber tubing at a fellow-employee who was busy typewriting and then, to escape detection and avoid being seen, ducked, bending low. In so doing, he struck his nose on the handle of a hand truck and sustained rather serious lacerations, which culminated in a permanent facial disfigurement.

Liberally though the Workmen’s Compensation. Law is to lie construed (§ 21), the courts must give heed to its provisions that the injury arise not only “ in the course of ” hut also “ out of ” the.employment. Thus, an employee who initiates or instigates a particular bit of horseplay — constituting a purposeful interference with the person and having no sanction in ordinary conduct — is not entitled to the protection of the statute (see, e.g., Matter of Gaurin v. Bagley & Sewall Co., 298 N. Y. 511, decided June 11, 1948; Matter of Frost v. Franklin Mfg. Co., 236 N. Y. 649, affg. 204 App. Div. 700; Matter of Stillwagon v. Callan Bros., 224 N. Y. 714, affg. 183 App. Div. 141), unless the prankish act has “ long been part and parcel, an incident, of the employment.” (Matter of Industrial Comr. [Siguin] v. McCarthy, 295 N. Y. 443, 446.) When recovery is allowed, it is upon the theory that the employee’s conduct or activity, having been approved by long-continuing custom and practice ” (p. 447), becomes an incident of employment. Injury in such a case may fairly be regarded as “ arising out of ” that employment. As we clearly indicated in our opinion in the McCarthy case (supra), it is continuity of practice — conduct which has gained acceptance — that transforms an extra-employment caper into an incident of employment; injury occasioned to the prankster by an isolated bit of horseplay does not entitle the employee to the statute’s benefits since it does “ arise out of ” his employment. Different is the case of Matter of Leonbruno v. Champlain Silk Mills (229 N. Y. 470), cited in the dissenting opinion. There, as the court took pains to point out, the claimant “ did not participate in the horse-play, and had no knowledge of it till injured ” (p. 471); in other words, he was not the initiator of the injury-producing prank.

Perhaps, at some future time, new legislation may render industry responsible for all injuries sustained by employees upon the employer’s premises during working hours; but, as the statute now stands, an injury is not compensable unless it is one arising out of ” as well as “in the course of ” the employment.

We cannot say on the record before us whether claimant’s act — which resulted in his injury — was a single, isolated act or one of a series of similar incidents generally participated in, to tiie employer’s knowledge, by employees, sufficient to regularize such conduct and stamp it as part and parcel of the employment. Accordingly, the matter should he remitted to the Workmen’s Compensation Board so that further testimony may he taken on this subject.

The order of the Appellate Division and. the award of the Workmen’s Compensation Board should be reversed, with costs in this court and in the Appellate Division, and the claim remitted to the Workmen’s Compensation Board for further proceedings not inconsistent with this opinion.

Desmohd, J.

(dissenting). Claimant, in the course of his work for his employer, was walking through a storeroom when he playfully tossed a small piece of rubber at a girl working nearby. Claimant then suffered an injury when, ducking his head so that the girl would not see him, he hit his face on the handle of a truck belonging to the employer and standing in the storeroom. I cannot agree that the inconsequential, sportive act of claimant, in tossing the piece of rubber, was such a complete deviation from his employment that he is barred from receiving workmen’s compensation even though he was on an errand for his employer at the time, was in the employer’s place of business and received his injuries from a piece of equipment belonging to his employer. No decided case goes so far as to dismiss such a claim. The case which should be followed here, I think, is Matter of Miles v. Gibbs & Hill, Inc. (225 App. Div. 839, affd. 250 N. Y. 590) where a railroad trackman seeing a torpedo on the rails, thoughtlessly hit the torpedo with his hammer, sustaining injuries for which he was allowed compensation. The cases where employees who engaged in horseplay or fighting were denied compensation, involved instances where the injured persons deliberately provoked fights or, in some other fashion, deliberately and substantially stepped out of their employments to engage in some activity unrelated to their work (see Matter of Gaurin v. Bagley & Sewall Co., 298 N. Y. 511, decided June 11, 1948).

Nor can I agree that, to justify an award for injuries sustained from pranks or horseplay, it must be shown that the incident was one of a series, or pursuant to the custom in the particular place. The fact that such conduct is customary is one of the reasons given in some cases, such, as Matter of Industrial Comr. (Siguin) v. McCarthy (295 N. Y. 443), for the fact findings that injured claimants were still in the course of employment when hurt. However, it has never before been held that such proof of custom or accepted conduct was essential in order to make an award valid in such cases. Numerous awards have been upheld where no such test was made or suggested. The courts (see Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470, 472), without proof of the particular usages of any one factory or shop, realize, as does everyone else, that “ a little nonsense now and then, is relished by the best of men ”. To say that this claimant, by this trifling act of foolery, stepped completely out of his role of workman and became an aggressor in an encounter during which he was hurt, would be to magnify unfairly what was a most insignificant antic.

The order should be affirmed, with costs.

Ch. J., Lewis and Thachee, JJ., concur with Fuld, J.; Dye, J., concurs for reversal but votes to dismiss the claim; DesmoND, J., dissents in opinion; CoNway, J., taking no part.

Order reversed, etc.


author: LougheaN, Ch. J.

text:
    Helen K. Lapchak, Appellant, v. S. F. Baker et al., Defendants, and Robert O. Hardy et al., Respondents.
    Argued May 18, 1948;
    decided July 16, 1948.

      William E. Haudeh for appellant.
    I. Section 61-b of the General Corporation Law as applied to this case, deprives both the plaintiff and her corporation, Barium, of their property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States and sections 1 and 6 of article I of the Constitution of the State of New York. (Pritchard v. Norton, 106 U. S. 124; Graham & Foster v. Goodcell, 282 U. S. 409; Eoral v, Savory, Inc., 276 N. Y. 215; Thorne v. Brand, 277 N. Y. 212; Jacobus v. Colgate, 217 N. Y. 235; Edwards v. Kearsey, 96 IT. S. 595; Angel v. Bullingion, 330 U. S. 183; Brinherhoff-Faris T. & S. Co. v. Hill, 281U. S. 673; Gilman v. Tucher, 128 N. Y. 190; Ettor v. Tacoma, 228 IT. S. 148; Truax v. Corrigan, 257 IT. S. 312; Chicago N. By. Co. v. Nye Schneider Fowler Co., 260 IT. S. 35; Life & Cas, Ins, Co. v, McCray, 291 IT. S, 566.) II. Section 61-b denies to plaintiff the equal protection of the laws, in violation of the Fourteenth Amendment of the Constitution of the United States and of section 11 of article I of the State Constitution. (.Everett v. Phillips, 288 N. Y. 227; Frost v. Corporation Comm., 278 U. S. 515; Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389; Asbury Hospital v. Cass County, 326 U. S. 207.) III. Section 61-b, as applied to this case, denies full faith and credit to the Public Acts of the State of Delaware, in violation of section 1 of article IV of the Constitution of the United States and of the due process clauses of the Federal and State Constitutions. (Cantor v. Sachs, 18 Del. Ch. 359; Graybar Elec. Co. v. Neio Amsterdam Cas. Co., 292 N. Y. 246; International Text Booh Co. v. Connelly, 206 N. Y. 188; Vernier v. New York Central & H. B. B. B. Co., 160 App. Div. 127, 217 N. Y. 615; Magnolia Petroleum Co. v. Hunt, 320 U. S. 430; State Farm Mut. Automobile Ins. Co. v. Duel, 324 U. S. 154; Pink v. A. A. A. Highway Express, Inc., 314 U. S. 201; Alaska Packers Assn. v. Industrial Acc. Comm., 294 U. S. 532; Home Ins. Co. v. Dick, 281 U. S. 397; Sioux County v. National Sur. Co., 276 U. S. 238; Points v. Gould, 202 N. Y. 11; Aetna Life Ins. Co. v. Dunken, 266 U. S. 389.) IV. Defendants’ contention that because plaintiff took this appeal directly from Special Term, the constitutional validity of section 61-b must be determined as an abstract proposition, without reference to the particular facts of this case, cannot be sustained. (Alabama State Federation of Labor v. McAdory, 325 U. S. 450; Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282; Nashville, C. & St. L. By. v. Walters, 294 U. S. 405; Dartmouth College v. Woodivard, 4 Wheat. [17 U. S.] 518; Kansas P. B. B. Co. v. Atchison, T. & S. F. B. B. Co., 112 U. S. 414; Gibbes v. Zimmerman, 290 U. S-326; Jacobus v. Colgate, 217 N. Y. 235.)

      Mark F. Hughes, Walter E. Godfrey, William F. Martin, Nelson Gammans, Baymond C. Murphy and Balph A. Gerra for respondents.
    I. Section 61-b does not violate the due process clause. (Clarke v. Deckebach, 274 U. S. 392; People v. Griswold, 213 N. Y. 92; Matter of Stubbe r. Adamson, 220 N. Y. 459; Gibbes v. Zimmerman, 290 U. S. 326; Stuart ,v. Palmer, 14c N. Y. 183; Jones v. Union Guano Co., 264 U. S. 171; Life & Cas. Ins. Co. v. McCray, 291 U. S. 566; Fay v. New York, 332 U. S. 261; National Bondholders Corp. v. Joyce, 276 N. Y. 92; Sworn v. Mutual Reserve Fund Life Assn., 155 N. Y. 9; v. Treanor, 272 N. Y. 268; Eanfgarn v. Marie, 274 N. Y. 22; Williams v. Mayor, 289 U. S. 36.) II. Section 61-b does not violate the equal protection clause. (Gibbes v. Zimmerman, 290 U. S. 326; Rapid Transit Corp. v. New York, 303 U. S. 573; Bayside Fish Co. v. Gentry, 297 U. S. 422; People v. Beakes Dairy Co., 222 N. Y. 416; Matter of Williams v. Walsh, 289 N. Y. 1; West Coast Hotel Co. v. Parrish, 300 U. S. 379; Middleton v. Texas Power & Light Co., 249 U. S. 152; Central Lumber Co. v. South Dakota, 226 IT. S. 157; Rosen-thal v. New York, 226 U. S. 260.) III. Section 61-b does not violate the full faith and credit clause. (Matter of Clark, 184 N. Y. 222; Stuart v. Palmer, 74 N. Y. 183; Aetna Life Ins. Co. v. Dunken, 266 IT. S. 389; New York Life Ins. Co. v. Head, 234 IT. S. 149; Kentucky Co. v. Paramount Exchange, 262 IT. S. 544; Langfelder v. Universal Laboratories, 293 N. Y. 200.) IY. Sections 64 to 68 of the General Corporation Law are constitutional.
   LougheaN, Ch. J.

This action was brought by a stockholder of the corporate defendant to recover in its behalf damages alleged to have been caused by acts of waste and mismanagement committed by the individual defendants as its officers and directors. On motion by the corporate defendant, the court at Special Term directed the plaintiff to file a surety company bond in the sum of $25,000 (or an equivalent pledge) to secure the corporate defendant for the reasonable expenses, including attorneys’ fees, which may be incurred by said defendant.in this action and for which it may become subject pursuant to the provisions of Article 6-A of the General Corporation Law ”.

In an affidavit submitted in opposition to that motion, counsel for the plaintiff said that their client was “ not prepared to furnish security ’ ’ and at their request the court in its order made a further direction that this action be dismissed. Judgment dismissing the action as to all the defendants was accordingly entered and the plaintiff then appealed directly to this court as in a case “ where the only question involved on the appeal is the validity of a statutory provision of the state * # # under the constitution of the state or of the United States (See Civ. Prac. Act, § 588, subd. 4.) On the basis of the jurisdiction thus invoked, an attack is now made by tbe plaintiff upon the constitutionality of the provisions of the General Corporation Law under which the Special Term entered its order.

The motion- of the corporate defendant for that order was founded upon section 61-b of article 6 of the statute. It is thereby provided: “ 61-b. Security for expenses. In any action instituted or maintained in the right of any foreign or domestic corporation by the holder or holders of less than five per centum of the outstanding shares of any clafes of such corporation’s stock or voting trust certificates, unless the shares or voting trust certificates held by such holder or holders have a market value in excess of fifty thousand dollars, the corporation in whose right such action is brought shall be entitled at any stage of the proceedings before final judgment to require the plaintiff or plaintiffs to give security for the reasonable expenses, including attorney’s fees, which may be incurred by it in connection with such action and by the other parties defendant in connection therewith for which it may become subject pursuant to section sixty-four of this' chapter, to which the corporation shall have recourse in such amount as the court having jurisdiction shall determine upon the termination of such action. The amount of such security may thereafter from time to time be increased or decreased in the discretion of the court having jurisdiction of such action upon showing that the security provided has or may become inadequate or is excessive.”

These words-of section 61-b are to be read in connection with article 6-A of the statute which the Special Term cited in its order. Sections 64- to 68 of that article in substance provide that any director, officer or employee of a corporation who shall defend himself successfully in an action brought in the right of the corporation, is entitled to have the corporation reimburse him for reasonable litigation expenses, including attorneys ’ fees, actually and necessarily incurred by him in his defense of the action.

Taken together, the cited sections mean this: In a stockholders’ derivative action, the plaintiffs — unless they represent at least 5% of the corporation’s shares or an aggregate of its shares having a value in excess of- $50,000 — must give security for the reasonable litigation expenses, including attorneys’ fees, of all parties joined as defendants in the action. This plaintiff represents less than 5% of the outstanding stock of the corporate defendant and less than $50,000 worth of its shares and thus the present case is within the scope of the statutory provisions in question.

The first issue is one in respect of the powers of this court. As we have already observed, the case eomes here on a direct appeal from a court of original jurisdiction and so the constitutionality of the challenged statute is the only question that we can determine. Because of that state of the case, counsel for the defendants insist that we cannot consider the reasonableness of the amount of the security which the Special Term ordered the plaintiff to furnish. They say : ‘ ‘ The very limited and narrow question before this Court is whether the Legislature could constitutionally confer upon the Supreme Court the power to require security in any amount, however small or reasonable, in an action of this kind ’ ’.

In reply to that contention, counsel for the plaintiff say: “ Defendants’ argument confuses the reasonableness ’ required by § 61-b with the * reasonableness ’ required by the due process clause of the Constitution ⅝ ⅜ *. The $25,000 security actually required from plaintiff is so large as to be prohibitive and hence, we say, unreasonable. This is the precise due process question before the Court In that view, however, the asserted constitutional question would not have originated in the challenged statute itself but in a determination by the Special Term of a matter of fact, i.e., the amount of security properly to be required, — an issue which the plaintiff chose not to present to the Appellate Division. A question so arising cannot be considered or determined by this court on a direct appeal. (N. Y. Const., art. § 7, subd. [2]; cf. Cohen on Powers of the New York Court of Appeals, pp. 165,166.) Thus the only issue that is here open to review is whether section 61-b is unconstitutional because it requires a plaintiff in a case like this to furnish security in any amount whatever for the litigation expenses mentioned in the statute.

In giving his executive approval to section 61-b, the Governor of the State issued a memorandum [Public Papers of Governor Dewey (1944), p. 255] in which he made the following commentary upon stockholders’ derivative actions: In recent years a veritable racket of baseless lawsuits accompanied by many unethical practices has grown up in this field. Worse yet, many suits that were well based have been brought, not in the interest of the corporation or of its stockholders, but in order to obtain money for particular individuals wbo bad no interest in tbe corporation or in its stockholders. Secret settlements — really pay-offs for silence — have been the subjects of common suspicion.” The existence of some of these evils is here conceded. Moreover, the Legislature, as we must assume, inquired and found (1) justification for making special provision in respect of derivative suits brought by holders of relatively small amounts of a corporation’s stock and (2) occasion for requiring plaintiffs in such suits to give reasonable security for litigation expenses of defendants therein. (See O’Gorman & Young v. Hartford Fire Ins. Co., 282 U. S. 251, 257-258; South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177, 190-191; Szold v. Outlet Embroidery Supply Co., 274 N. Y. 271, 278; East New York Sav. Bank v. Hahn, 293 N. Y. 622, 628, affd. 326 U. S. 230.) Of course, it is not for us to question the wisdom of the choice of remedy here adopted by the Legislature.

On this record, then, section 61-b cannot be held to be so palpably arbitrary or unduly discriminatory as to be obnoxious either to the due process clause or to the guaranty of the equal protection of the laws.

The judgment should be affirmed, with costs.

Lewis, CoNway, DesmoNd, Thacheb, Dye and Ftjld, JJ., concur.

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. Benjamin Nahman, Milton Seligman, Morris J. Schwartz, Charles Intrator, Nelson Levitt, Norman Sternbach, Morris Dimowitz, Irvin Greenberg, Joseph E. Nahem, Sol Woolis, Bernard Silverman, Albert Shafran and Nathan Litwack, Appellants.
    Argued April 22, 1948;
    decided July 16, 1948.

      Bertram Baherman for appellants.
    I. Section 21 of the Park Department Regulations on its face contravenes the due process clause of the Fourteenth Amendment to the Constitution of the United States and is therefore void. (Gitlow v. New York, 268 U. S. 652; Near v. Minnesota, 283 U. S. 697; Cantwell v. Connecticut, 310 U. S. 296; Lovell v. Griffin, 303 U. S. 444; Hague v. C. I. 0., 307 U. S. 496.) II. Section 21 requires the securing of a permit before the rights of free speech, press, or assembly may be exercised. (Schneider v. State, 308 U. S. 147; Lar gent v. Texas, 318 U. S. 418; Hague v. C. I. 0., 307 U. S. 496; Thornhill v, Alabama, 310 U. S. 88; Thomas v. Collins, 323 U. S. 516.) III. Section 21 is directed against freedom of speech, of press, and of assembly per se and not against abuses thereof which might be properly subject to regulation. (De Jonge v. Oregon, 299 U. S. 353; Lovell v. Griffin, 303 U. S. 444; Thornhills. Alabama, 310 U. S. 88; Cantwell v. Connecticut, 310 U. S. 296.) IV. Section 21 is directed .solely at activities of a noncommercial character. (Valentine v. Chrestensen, 316 U. S. 52.) V. The fact that section 21 is limited in its application to areas under the jurisdiction of the park commissioner does not save its constitutionality. (Hague v. C. I. O., 307 U. S. 496; Schneider v. State, 308 U. S. 147.) VI. Section 21 is void as applied to the activities of appellants. (Carlson v. California, 310 U. S. 106; Thomas v. Collins, 323 U. S. 516.)
    I. The regulation unreasonably restricts freedom of communication and assembly and is therefore unconstitutional and void. (■Carlson v. California, 310 U. S. 106; Thornhill v. Alabama, 310 U. S. 88; People v. Muller, 286 N. Y. 281; People v. Rieran, 26 N. Y. S. 2d 291.) II. The requirement that a permit be secured before ideas may be communicated is an unreasonable limitation of the right of communication. (Schneider v. State, 308 U. S. 147; Thornhill v. Alabama, 310 U. S. 88; Lovell v. Griffin, 303 U. S. 444; Thomas v. Collins, 323 U. S. 516; Cantwell v.' Connecticut, 310 U. S. 296.) III. The regulation is void because of its failure to provide a standard of action to insure its impartial enforcement. (Thornhill v. Alabama, 310 U. S. 88.) IV. Freedom of communication in the public parks may not be abridged by ordinance or regulation. (Hague v. C. I. O., 307 U. S. 496; Marsh v. Alabama, 326 U. S. 501; Tucker v. Texas, 326 U. S. 517.) V. The park commissioner in issuing the regulation exercised the lawmaking power reserved to tlie Legislature. The regulation was therefore unconstitutional and void. (Panama Refining Co. v. Ryan, 293 U. S. 388; United States v. Cohen Grocery, 295 U. S. 78; People v. Ryan, 267 N. Y. 133; People v. Grant, 242 App. Div. 310, 267 N. Y. 508; Schechter Poultry Corp. v. United States; 295 U. S. 495.)

      Hayden C. Covington for Watchtower Bible and Tract Society, Inc., and Jehovah’s Witnesses as amici curiae, in support of appellants’ position.
    I. The regulation, on its face and as con-
    strued and applied to the facts, is not a permissible regulation but abridges appellants’ rights of free speech, free press and free assembly by requiring a permit as a condition precedent to the exercise of such activity, contrary to the State and Federal Constitutions. (Hague y. C. I. 0., 307 IT. S. 496; Schneider v. New Jersey, 308 IT. S. 147; Thornhill v. Alabama, 310 IT. S. 88; Lovell v. Griffin, 303 IT. S. 444; Thomas v. Collins, 323 U. S. 516; Massachusetts v. Gilfedder, 321 Mass. 335; Marsh v. Alabama, 326 IT. S. 501.) II. Respondent has wholly failed to discharge the burden placed upon it requiring it to show that the regulation is regulatory, that the park is restricted in dedication and use and that the permit required is a part of a valid regulatory scheme. (De Jonge v. Oregon, 299 IT. S. 353; Palko v. Connecticut, 302 IT. S. 319; Cantwell v. Cownecticut, 310 IT. S. 296; Thomas v. Collins, 323 IT. S. 516; West Virginia State Rd. of Education v. Barnette, 319 IT. S. 624; United States v. Carotene Products Co., 304 IT. S. 144.)
    The regulation is unconstitutional as a violation of the rights of freedom of speech public assembly. (Hague v. C. 1. O., 307 U. S. 496; Schneider v. State, 308 U. S. 147; Marsh v. Alabama, 326 U. S. 501; Commonwealth v. Gilfedder, 321 Mass. 335; Lovell v. Griffin, 303 U. S. 444; Martin v. Struthers, 319 U. S. 141; Jones v. Opelika, 319 U. S. 103.)

      Frank S. Hogan, District Attorney (Whitman. Knapp, Edward T. Perry and Harold Roland Shapiro of counsel), for respondent.
    The regulation, as limited by the administrative practice set forth in the commissioner’s, letter, is valid. {Hague v. C. I. O., 307 U. S. 496; Cox v. New Hampshire, 312 U. S. 569;
      Williams v. Gallatin, 229 Y. 248; Matter of Kolb v. Moiling, 285 N. Y. 104; People v. Billiard, 252 App. Div. 125; Federal Trade Comm. v. Bunte Bros., 312 IJ. S. 349; Minnesota v. United States, 305 U. S. 382; United States y. Jackson, 280 U. S. 183; Lieberman y. Van De Carr, 199 U. S. 552.)

      John P, McGrath, Corporation Counsel (Seymour B. Quel, William S. Lebwohl and Philip V. Sherman of counsel), for Park Commissioner of the City of New York, amicus curice, in support of respondent’s position.
    The regulation does not prohibit or
    otherwise violate the rights of freedom of speech and assembly but is a valid and proper administrative regulation directed at the general convenience and welfare in the use and enjoyment by the general public of the public parks. (Williams v.- Gallatin, 229 N. Y. 248; Mague v. C. I. 0., 307 U. S. 496; Matter of Evans v. Berry, 262 N. Y. 61; Schieffelin v. Goldsmith, 253 N. Y. 243; Schieffelin v. Lahey, 243 N. Y. 102;'Cox v. New Mampshire, 312 U. S. 569; Prince v. Massachusetts, 321 U.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Ruth Kessler Toch of counsel), for the State of New York, amicus curice, in support of respondent’s position.
    I. To realize the purpose for which parks exist, regulation of activities therein and use thereof is essential. (Williams v. Gallatin, 229 N. Y. 248; Perrin v. New York Central R. R. Co., 36 N. Y. 120.) II. Regulations requiring a permit for holding meetings, making speeches or parading in State parks are not an infringement of the right of free speech. Liberty is not license. (People v. Most, 171 N. Y. 423; Crowley v. Christensen, 137 IJ. S. 86; Cox v. New Mampshire, 312 U. S. 569; United Public Works v. Mitchell, 330 U. S. 75; People ex rel. Doyle v. Atwell, 232 N. Y. 96; People v. Smith, 263 N. Y. 255; Mague v. C. I. 0., 307 U. S. 496.)

      ■G. Frank Dougherty and Ruth I. Wilson for Long Island State Park Commission, amicus curice, in support of respondent’s position.
    I. The right to proclaim and discuss one’s opinion
    in the public streets and parks is not absolute. Its exercise is necessarily limited by the many other public uses to which these places are dedicated. The regulation of these conflicting uses is a governmental duty. (Mague v. C. I. O., 307 U. S. 496; Cant-

      well v. IT. S. 296; Schneider v. State, 308 U. S. 147; Jamison v. Texas, 318 U. S. 413; Frend v. United States, 100 F. 2d 691; Prince v. Massachusetts, 321 U. S. 158.) II. Section 21 of article III is a general, nondiscriminatory regulation directed to preventing the various park uses from interfering with other. (Love v. Judge of Recorder’s Court, 128 Mich. 545; Coughlin v. Chicago Park District, 364 Ill. 90; People ex rel. Doyle v. Atwell, 232 N. Y. 96; Davis v. Massachusetts, 167 U. S. 43.)
   Each of the thirteen defendants stands convicted of exhibiting placards in City Park in the city of New York without having obtained a permit therefor, contrary to section 21 of article III of the Rules and Regulations of the Department of Parks of the city. The acts complained of 'were committed on March 15, 1946, while Mr. Winston Churchill was entering the city hall for ah official reception. On the placards that were then and there held aloft by the defendants were such declarations as “No American shall die for Churchill’s empire ” and “ No American Sweat Blood and Tears for a Churchill’s World War 3 ’ ’. There was evidence that the defendants also shouted, “ We want peace Churchill wants war.” But there was no charge of disorderly conduct. The one and only offense imputed to the defendants was an unauthorized carrying of placards in a public park. As appellants here, they challenge the permit requirement as a direct invasion of the right of freedom of speech and assembly which is guaranteed by the Fourteenth Amendment of the Federal Constitution and by sections 8 and 9 of article I of the Constitution of this State.

The pertinent text of the challenged regulation is as follows (Rules and Regulations of N. Y. City Agencies, Dept, of Parks, §21):

Meetings, Exhibitions, Parades, Racing, etc. No person shall erect any structures, stand or platform, hold any meeting, perform any ceremony, make a speech, address or harangue; exhibit or distribute any sign, placard, notice, declaration or appeal of any kind or description; exhibit any dramatic performance, or the performance in whole or in part of any interlude, tragedy, comedy, opera, ballet, play, farce, minstrelsy, dancing, entertainment, motion picture, public fair, circus, juggling, rope-walking or any other acrobatics, or show of any kind or nature; or run or race any borse, or other animal, or, being in or on a vehicle, race with another vehicle or horse, whether such race be founded on any stake, bet or otherwise; in any park or upon any park street except by permit. No parade, drill or manoeuver of any kind shall be conducted, nor shall any procession form for parade or proceed in any park or park street without a permit. ’ ’

Such strong prohibitory words may on the face of them at first seem to suggest an unbounded power of antecedent administrative censorship that would obviously be void (cf. Schneider v. State, 308 U. S. 147, 162; Largent v. Texas, 318 U. S. 418, 422). But the challenged regulation does not stand alone. Authority therefor is to be found in chapter 21 of the Charter of the City of New York. Subdivision a of section 531 thereof says: There shall be a department of parks the head of which shall be the commissioner of parks who shall be appointed by the mayor.” Section 534 thereof says: a. The commissioner shall have power to establish and enforce rules and regulations for the government and protection of public parks * * * which * ⅞ ⅞ so far as practicable shall be uniform in all boroughs and shall have the force and effect of law. b. Any violation of the rules or regulations of the commissioner shall be triable by a city magistrate and punishable by not more than thirty days’ imprisonment, or by a fine of not more than fifty dollars, or by both.”

The limits of the jurisdiction so granted are indicated in section 532 of the same chapter 21 of the city charter by these words: “ The commissioner shall have the power and it shall be his duty: * ⅜ * 3. To maintain the beauty and utility of all parks, squares, public places and playgrounds and other recreational properties, except those within the jurisdiction of the department of education, and to institute and execute all measures for the improvement thereof for ornamental purposes and for the beneficial uses of the people of the city. ’ ’ This last charter provision brings to light the real character and meaning of the regulation in question. No power to suppress the publication of facts or opinions is thereby conferred and the sole standard of official action thereby countenanced is the promotion of the beauty and utility of the public parks of the city — an objective which undoubtedly goes far to secure the safety, comfort and convenience of a population of more than eight million people. A permit process adapted to these charter purposes — if administered without discrimination — is, in our judgment, an entirely admissible procedure.

As is well known, there are areas of the park system of the city of New children’s playgrounds and horticultural gardens — that cannot be used for parades and like affairs. More than that, such affairs, when held in other areas of the system, must be so placed that ornamental improvements — e.g., lawns and shrubbery — will not he damaged, and also must be so scheduled in point of time and separateness as not unduly to interfere with the beneficial uses of the system by the people of the city. For the public parks of that vast and congested community are the only places where a great part of its population can have any. real opportunity for recreation in the open air and the only places where large numbers of its children can safely play.

In an unchallenged communication which is appended to the brief here submitted by the People, the commissioner of parks of the city sets forth the manner in which the regulation in question has heretofore been adminstered. He there says: “ Meeting's and other public events are never prohibited through the permit procedure hut are merely scheduled and located as to area and time in an orderly way by making necessary adjustments in the place and time stated in the application for a permit where such adjustment is necessary in the interest of the comfort, convenience and protection of the general public in the use of the parks. The application procedure is used so as to limit the use of available areas to one group at a time and provide for proper police and other supervision where necessary so that meetings and other events will be orderly and without danger to the safety of others using the parks.” The commissioner further shows this fact: Out of a total of 700 formal applications for permits to hold meetings or similar events, only 34 were denied in the period from January 1,1946, to April 1948, and on each denial, the applicant was offered an alternative location. Thus the regulation in question appears to have been administered in the manner which we now construe it to require.

The regulation, we repeat, confers no power to suppress the publication of facts or opinions. On ths contrary, as we have tried to demonstrate, it is in essence a nondiscriminatory provision which has for its sole objective the safety, comfort and convenience of the people of the city in their appropriate uses of its public parks. To our minds, the regulation — so read — is a reasonable measure of local control which affects civil liberties only in an allowable minor degree. (See Cox v. New Hampshire, 312 U. S. 569, where the relevant constitutional propositions are stated. Cf. Saia v. New York, 334 U. S. 558.)

The judgment should be affirmed.

Lewis, CoNway, DesmoNd, Thacher, Dye and Fuld, JJ., concur. , -

Judgment affirmed.


author: Per Curiam.

text:
    In the Matter of Rochester Gas and Electric Corporation, Respondent, and General Public Utilities Corporation, Intervener, Respondent, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, et al., Appellants.
    Argued June 3, 1948;
    decided July 16, 1948.

      MotioN to dismiss appeal renewed. (See 297 N. Y. 961.)

      Edmund B. Naylon, T. Carl Nixon, Earl L. Dey and George Foster, Jr., for respondent.
    The order of annulment appealed from does not finally determine the proceeding and consequently this appeal does not lie. (Matter of Golonial Liquor Distributors v. O’Connell, 295 N. Y. 129; Matter of New York State Guernsey Breeders’ Co-operative, Inc., v. DuMond, 294 N. Y. 692; Matter of New York State Guernsey Breeders’ Co-operative, Inc., v. DuMond, 291 N. Y. 704; Matter of Begent v. Noyes, 284 N. Y. 229; Matter of Village of Tupper Lake v. Maltbie, 283 N. Y. 720; Matter of Village of Wellsville v. Maltbie, 283 N. Y. 689; Matter of Newman Lake House, Inc., v. Bruckman, 283 N. Y. 646; Matter of New York State Elec. Corp. v. Public Service Comm., 260 N. Y. 32; Matter of Grade Crossings [N. Y. C. B. B. Co.], 255 N. Y. 320; Matter of Beynolds, 233 N. Y. 606.)

      Allen E. Throop, James B. Liberman and William W. Golub for intervener, respondent.
   Per Curiam.

Petitioner Rochester Gas and Electric Corporation applied to the Public Service Commission (1) for an order, pursuant to section 69 of the Public Service Law, authorizing it to issue and sell specified amounts of bonds and shares of preferred and common stock for concededly proper corporate purposes, and, in connection therewith, (2) for approval by the commission, pursuant to section 38 of the Stock Corporation Law, of a certificate of amendment to its certificate of incorporation to permit the issuance of additional shares of common stock.' The commission, after a hearing, in effect refused to grant the requested authorization and approval except upon petitioner’s compliance with certain conditions aimed at alleged possible impairments in petitioner’s financial structure, as indicated by tentative estimates of the commission.

In this proceeding under article 78 of the Civil Practice Act, the Appellate Division has, by a divided court, held those conditions invalid, annulled the determinations of the commission, and remitted the matter to that agency “ for further consideration.” The commission has taken an appeal as of right to this court. We have denied a motion heretofore made to dismiss the appeal, with leave to renew upon the argument; the matter is now before us upon renewal of the motion.

Neither the order nor the opinion of the Appellate Division specifies the scope of the “ further consideration ” to be accorded by the commission, or the nature of the further proceedings to be taken by it. We assume that the order appealed from would be final if the decision of the Appellate Division left .the commission no alternative but to grant petitioner the requested authorization and approval without the challenged conditions — at least to the extent of permitting petitioner to receive competitive bids for the purchase of the proposed new securities. (Cf. Matter of Colonial Liquor Distributors, Inc., v. O’Connell, 295 N. Y. 129.) However, analysis of the order and the opinion of the Appellate Division, as well as of the contentions of the parties to this appeal, leaves it doubtful whether the commission would not remain free — upon the remission of the matter to it “ for further consideration ” — to deny petitioner’s application upon findings supported by substantial evidence that, owing to impairment of petitioner’s financial condition, tbe proposed new security issue would not be backed by sound values. Consequently, in tbe absence of clarification by tbe Appellate Division of tbe scope of its decision, we cannot bold that its decision “ is conclusive upon every question of fact or law wbicb might be raised ” or that its order finally determines this proceeding. (Cf. Matter of New York State Elec. Corp. v. Public Service Comm., 260 N. Y. 32, 34.) We express no opinion upon tbe merits of tbe case.

Tbe appeal should be dismissed, with costs, without prejudice, however, to tbe right of tbe commission to move in tbe Appellate Division for a resettlement of that court’s order to specify tbe nature of the-“ further consideration ” to be accorded, or of tbe further proceedings to be taken, upon tbe directed remission to tbe commission.

Cb. J., Lewis, DesmoNd, Thaohee, Dye and Fuld, JJ., concur; CoNway, J., taking no part.

Appeal dismissed, etc.


author: Lewis, J.

text:
    Noble et al., Respondents, v. Evelyn B. Marx, Appellant.
    Argued May 21, 1948;
    decided July 16, 1948.

      John W. Manning for appellant.
    I. The trial court erred in refusing to dismiss the complaint at the end of the plaintiffs’ case or at the close of the entire case. (Schick v. Fleischhauer, 26 App. Div. 210; Kushes v. Ginsberg, 99 App. Div. 417,188 N. Y. G30; Boden v. Scholtz, 101 App. Div. 1; Cuttings v. Goetz, 256 N. Y. 287; Kosior v. Pomrinse, 249 App. Div. 196; Scudero v. Campbell, 288 N. Y. 328; Lafayette v. Weaver, 92 Ind. 477, Manderschild v. Dubuque, 29 la. 73; Perkins v. Bice, 187 Mass. 28; Readman v. Conway, 126 Mass. 374; Bruszacynaska v. Ruby, 267 App. Div. 539.; Rosenberg v. Kings Co. Sav. Bank, 270 App. Div. 904; Citron v. Kapner, 271 App. Div. v. Mont

      N. Bernard Silberg for respondent.
    I. A prima facie case was established by plaintiffs and no error was committed by the trial court in denying the motions to dismiss. (City of New Yorh v. Third Ave. By. Co., 294 N. Y. 238; Abrams v. Manhattan Dial Mfg. Co., 190 Mise. 106; Fritz v. Commonwealth Finance Corp., 123 Mise. 280,213 App. Div. 814, 241N. Y. 587; Sendero v. Campbell, 288 N. Y. 328; Antonsen v. Bay Ridge Sav. Bank, 292 N. Y. 143; Rosenberg v. Kings Co. Sav. Bank, 270 App. Div. 904; Citron v. Kapner, 271 App. Div. 932; Reische v. Montgomery, 273 App. Div. 824.) II. The trial court committed no error in the charge with respect to the credibility of the witnesses and the interest of defendant’s witnesses. (Fredella v. Prudential Ins. Co., 258 App. Div. 232.)
   Lewis, J.

A jury at Trial Term has awarded damages to the plaintiffs — husband and wife — for injuries sustained by the wife when her heel became lodged in a hole in the floor of an apartment owned by the defendant and occupied by the plaintiffs under a written lease. At the Appellate Division the judgment entered at Trial Term was affirmed, one Justice dissenting.

The original lease, which by a written renewal was effective at the time of the accident, contained the following provisions:

“ 7. That the Tenant shall and will keep said premises in good order.and repair during the term hereof and upon failure so to do, the Landlord may do and perform all repairs which may be necessary in and about said demised premises and add the amount of the cost of such repairs to the rent due hereunder for the month following the date of repairs and such cost of said repairs shall be and constitute such rent together with rent herein provided for. * * *

“ 12. That the Tenant will also permit the Landlord and/or the Landlord’s agent to enter in and upon said premises during the reasonable hours of any day during the term hereof to ascertain if said premises are kept in proper repair and condition and to make any repairs that the Landlord may deem nece's-sary for the preservation or safety of the premises or appurtenances. * * *

“ 18. The failure of the Landlord to insist upon a strict performance of any of the terms, conditions and covenants herein, shall not he deemed a waiver of any rights or remedies that the Landlord may have, and shall not he deemed a waiver of any subsequent breach or default in the terms, conditions and covenants herein contained.”

The property involved is a two-family structure located in the city of Albany. The defendant, a nonresident owner, managed the property through a local real estate agency.

There was evidence by the plaintiffs that before the lease was signed they called the attention of the defendant’s agent to the fact that there was a hole in the bathroom floor. There was also evidence that the plaintiffs refused to sign the lease until the defendant’s agent had assured them that the floor would be repaired. Although the agent denied giving such assurance, there was an evidentiary basis for a finding by the jury — now implicit in the verdict — that such a promise to repair was made by the defendant’s agent. There was also testimony — denied by the defendant’s witnesses — that, on repeated occasions when rent was paid by the plaintiffs, they demanded of the defendant’s agent that repairs to the defective floor be made. Despite such demands and despite the fact that other items of repairs were made by the defendant in the apartment occupied by the plaintiffs — the cost of which repairs was not added to the plaintiffs’ rent — the defective floor was not repaired until three days after the accident which gave rise to this action. Repairs then made were by the defendant and at her expense.

It is a general rule in the law of landlord and tenant that “ Liability in tort is an incident to occupation or control ” and that “ occupation and control are not reserved through an agreement that the landlord will repair ”. (Cullings v. Goetz, 256 N. Y. 287, 290.) We have said, however, in Scudero v. Campbell (288 N. Y. 328, 329) that “ ‘ When the defendant’s liability depends upon whether a landlord or his tenant was in control of premises * * * the acts of control of such a person are provable, and an act of repair done after the injury may chance to be such an act.’ (2 Wigmore on Evidence [3d ecL], § 283, p. 158.) ” (See, also, Antonsen v. Bay Ridge Sav. Bank, 292 N. Y. 143.)

We think the ease at bar falls within the rule of the Sendero case (supra) which was followed in the Antonsen case (supra). The Avritten lease, as we have seen, gives evidence of the right expressly reserved by the defendant landlord to enter the plaintiffs’ apartment during reasonable hours “ to ascertain if said premises are kept in proper repair and condition and to make any repairs that the Landlord may deem necessary for the preservation or safety of the premises or appurtenances.” There was also evidence that at the time of making the lease and at various times during the term of the lease prior to the accident agents of the defendant had made unfulfilled oral promises to repair the defective floor condition which later caused the plaintiff’s injuries. If this were the only evidence of control exercised by. the defendant, it might be true • that ‘ ‘ What resulted was not a reseiwation by an owner of one of the privileges of ownership.” (Cullings v. Goetz, supra, p. 291.) Indeed, the trial court charged in response to a request by the defendant that “ the mere breach of a contract to repair is an academic proposition.”

But the evidence of control in the case at bar goes further. The defendant, by her own witness, established the fact that three days after the plaintiff was injured her agents entered plaintiffs’ apartment and repaired the defective floor condition. Upon that phase of the proof the Trial Justice in his charge instructed the jury, without exception by the defendant, that:

“ If you are satisfied from the evidence that defendant had control of the premises occupied by plaintiffs and, having such control, was negligent and careless and that plaintiff, Lorina Noble, was free from contributory negligence, then in that event you will take up the question of damages.

When you are considering whether or not the defendant was guilty of negligence in failing to repair the flooring in the bathroom I particularly and with emphasis charge you that the fact that defendant repaired the flooring in the bathroom after plaintiff, Lorina Noble, was injured must in no way create a prejudice in your mind that a defective condition existed at the time of the accident. The only reason, members of the jury, I admitted such evidence of repair after the accident is for you to consider such evidence and use it, crediting it and believing it or not as you determine, in determining the question of control of the premises, and solely and only as to control and not otherwise.” (Emphasis supplied.)

' In the circumstances presented by this record, including defendant’s evidence of repairs made by her after the accident and received solely on the question of control, and the further evidence that for a period of time which antedated the term of the defendant through her agent had notice of the defective condition but failed, in response to the plaintiffs’ demands, to exercise the right expressly reserved by her in the lease to enter the premises to make necessary repairs, we think there, was evidence “ enough to countenance the verdict.” (Scudero v. Campbell, supra, p. 329.)

The defendant also argues that when the Trial Justice submitted to the jury the question of the credibility of the witnesses, he erred in his instruction that employees of a local real estate agency retained by defendant were interested witnesses. The witnesses involved are two employees of the Albany real estate agency which managed the property for the defendant. One of those witnesses was the agent who, prior to the signing of the lease, allegedly made an oral promise that the premises would be repaired. The other witness was the agent to whom allegedly a notice was repeatedly given by the' plaintiffs that a portion of the apartment floor was still defective. Although at the time of the trial the defendant had sold the property in question and no relationship then existed between her and the two witnesses mentioned above, we think the jury was properly instructed that, as agents who represented the defendant in her dealings with the plaintiffs, they were interested witnesses. (Volkmar v. Manhattan Ry. Co., 134 N. Y. 418, 422; O’Flaherty v. Nassau Elec. R. R. Co., 34 App. Div. 74, 77, affd. 165 N. Y. 624; Gaffney v. New York Cons. R. R. Co., 220 N. Y. 34, 37.)

LougheaN, Ch. J., DesmoNd, Teaches, Dye and Fuld, JJ., concur.

Judgment affirmed.