text:
    Gladys M. Shuman, as Administratrix of the Estate of Amzie W. Shuman, Deceased, Appellant, v. Chauncey Hall et al., Respondents.
    Negligence — motor vehicles — Highway Traffic Law — duties of drivers of automobiles meeting at intersection — driver of car killed by being struck by car approaching from his right — not guilty of contributory negligence as matter of law where evidence shows he proceeded cautiously and gave notice of his approach.
    1. The application of subdivision 4 of section 12 of the General Highway Traffic Law (Cons. Laws, eh. 70), which reads: “ Every driver of a vehicle approaching the intersection of a street or public road shall grant the right of way at such intersection to any vehicle approaching from his right,” must depend upon all the surrounding circumstances, the distance of the ears from the intersecting point, the speed and relative duties placed upon each. If the two vehicles are so near the intersecting point that there is a chance of collision if both keep on at the same speed, then the statute says the vehicle approaching from the right may take precedence. The vehicle having the subordinate right must not take chances, make close calculations, try to slip by on a chance; it must give way to the vehicle on the right when it is anywhere near the crossing. The driver coming from the right is equally obliged to exercise care. As he approaches the intersection he must have the same control of his car and approach it with the same degree of care as is required of the driver coming on his left. He is required in turning a corner to drive with extreme caution and under control (Gen. Highway Traffic Law, § 11, subd. 3) and upon approaching an intersecting highway or a curve or corner he is required to slow down and give a signal by horn or other device. (Highway Law, § 286, subd. 8.)
    2. Where, therefore, on trial of an action for the death of the driver of an automobile, who, while driving along a straight road, was struck by defendant’s automobile coming in on a road on the right which joins but does not intersect the road on which decedent was driving, it appears that decedent on approaching the corner where his view to the right was obstructed, slowed down to eighteen miles an hour and blew his horn and when he first saw defendant’s car thirty feet awa.y coming fast, no signals having been given, swerved to the left and accelerated his speed, it cannot be said as matter of law that decedent was guilty of contributory negligence. A question is presented for the jury and a dismissal of the complaint is error.

      Shuman v. Hall, 219 App. Div. 75, reversed.
    (Argued June 21, 1927,
    decided July 20, 1927.)
    Appeal from a judgment, entered December 31, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 31, 1926, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.

      Ivan A. Gardner and Charles E. Taylor for appellant.
    There was proof to sustain the jury’s finding that defendants were negligent and intestate free from negligence, and the Appellate Division erred in dismissing the complaint. (Hoykendorf v. Bradley Contracting Co., 227 N. Y. 204; Waddle v. Cabana, 220 N. Y. 18; Metzger v. Cushman’s Sons, Inc., 243 N. Y. 118; Demarest v. 42nd St., M. & St. N. Avenue R. Co., 104 App. Div. 503; Boston Ins. Co. v. Brooklyn Heights R. Co., 182 App. Div. 1; Ward v. Clark, 232 N. Y. 195; Brillinger v. Ozias, 186 App. Div. 221; Salm v. Bleau, 210 App. Div. 554.)

      John Bright and William J. Lamont for respondents.
    The evidence shows that the cause of the accident was Shuman’s reckless disregard of the Highway Traffic Law. (General Highway Traffic Law, § 12, subd. 4; Ward v. Clark, 232 N. Y. 195; Brillinger v. Ozias, 186 App. Div. 221; Shirley v. Larkin, 239 N. Y. 94.)
   Crane, J.

The Maybrook and Campbell Hall road in Orange county runs about east and west. The Neelytown road enters it from the north. At the junction the Neelytown road spreads out, turning by one fork toward the west in the direction of Campbell Hall and by the other fork to the east, or in the direction of Maybrook. Between the forks of the road at the junction is a triangular grass plat. While the Neelytown road at this point joins the other road, it does not cross it. Persons coming down the Neelytown road must turn either to the right or to the left to enter the Maybrook-Campbell Hall road.

On the 22d day of August, 1925, early in the morning, Amzie W. Shuman, a conductor on the Lehigh and Hudson railroad, was driving his car in a westerly direction along the Maybrook road, approaching the Neelytown road. He had other railroad employees in the car with him, and was going to his home in Warwick, as the railroad terminated at Maybrook. As he approached the junction of these two roads, he blew his horn several times, and slowed down to about eighteen miles an hour. As he was thus proceeding, the Neelytown road entered at his right, or from the north. His view was obstructed. So also was the view of any person riding on the Neelytown road. Trees and bushes in full foliage obscured the view of approaching vehicles until the intersection of the highways was reached.

The defendants, Chauncey Hall, and his wife, Anna Hall, were coming along the Neelytown road in their Dodge car. Their view of Shuman in his Cleveland car was obstructed by the same trees and bushes and tall grass which obstructed Shuman’s view of them. The two cars collided at the intersection and Shuman was killed. The judgment which his administrator recovered against Hall and his wife for their negligence in causing Shuman’s death has been reversed by the Appellate Division and the complaint dismissed, two of the justices dissenting.

The rights of the road and the questions which arise over collisions at intersections of highways are always more or less perplexing. In many of the cases which comé before the appellate courts it is difficult to know where to put the blame or to determine when on evidence most favorable to the plaintiff a cause of action has been made out. Much of the uncertainty is due, no doubt, to subdivision 4, section 12 of the General Highway Traffic Law (Cons. Laws, ch. 70), which reads: “ Every driver of a vehicle approaching the intersection of a street or public road shall grant the right of way at such intersection to any vehicle approaching from his right.” We have had occasion in other cases to construe this law. (Metzger v. Cushman’s Sons, Inc., 243 N. Y. 118; Shirley v. Larkin Co., 239 N. Y. 94; Ward v. Clark, 232 N. Y. 195.)

As we stated in these cases, it is apparent that the application of this statute must depend upon all the surrounding circumstances, the distance of the cars from the intersecting point, the speed and the relative duties placed upon each. The law does not attempt to say at what particular point the vehicle having the subordinate right must stop or give way. The main purpose of this provision is to demand care of the driver commensurate with the danger, and to require of the driver approaching a street with a vehicle coming from his right to slow up and let that vehicle pass when their positions are such that a reasonably careful man might otherwise be in doubt as to which should go first. If the two vehicles are so near the intersecting point that there is a chance of collision if both keep on at the same speed, then the statute says the vehicle approaching from the right may take precedence. This is no finespun distinction. Driving motor cars is a practical matter, and the statute requires and demands care of both drivers. The highway laws are full of these injunctions, and they are to be obeyed. Circumstances- and conditions vary, and we must apply these injunctions and directions to give effect to them if possible. The vehicle having the subordinate right must not take chances, make close calculations, try to slip by on a chance; it must give way to the vehicle on the right when it is anywhere near the crossing. Only in this way can these serious accidents be avoided.

On the other hand, the statute cannot be pressed too far. The intersections of all streets and highways are so numerous that one driver must rely upon the prudence and carefulness of another. No one driver is to obey the rules; all must obey them. The driver coming from the right is equally obliged to exercise care. He also must look out for vehicles coming from his right, so that as he approaches the intersection he must have the same control of his car, and approach it with the same degree of care as is required of the driver coming on his left. More than that, the General Highway Traffic Law, section 11, subdivision 3, says: In turning a corner of intersecting streets a vehicle shall be driven with extreme caution and under control.”

This was the duty required of the defendant Hall in driving his car. He did not have a straight road ahead; he was obliged to turn into the main highway; he could not see around the corner; he was about to turn into traffic. Natural instinct as well as the statute would suggest extreme caution in making this turn. Shuman had to make no turn; he was going ahead on a clear open road; the danger, if any, arose from the turning into the road of another vehicle, not from any change in direction made by Shuman. Hall had another duty to perform. Subdivision 8 of section 286 of the Highway Law (Cons. Laws, ch. 25) says: “Upon approaching an intersecting highway or a curve or a corner in a highway where the operator’s view is obstructed, every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn or other device for signaling.”

Shuman, therefore, in going along the MaybrookCampbell Hall road approaching the Neelytown road, while obliged to comply with subdivision 4 of article. 12 of the General Highway Traffic Law, had the right to assume that a car coming on the Neelytown road would comply with subdivision 3 of section 11 of that law, and subdivision 8 of section 286 of the Highway Law. Or to put it in plain language, he had the right to assume that Hall, in coming to the turn where his view up the Maybrook-Campbell Hall road was obstructed would slow down and give a timely signal with his horn, and would turn the corner with extreme caution having his car under control.

Applying, therefore, all these provisions to this situation, what do we have from the evidence most favorable to the plaintiff? Shuman is driving his Cleveland car at a very moderate rate of speed. As he approaches the Neelytown road, he slows down to eighteen miles an hour; he blows his horn. As he reaches the intersection where he gets the first glimpse up the Neelytown road, he sees Hall’s car thirty feet away, coming fast. This is the first notice which Shuman has had that Hall is there, as Hall failed to blow any horn. Shuman speeds ahead to pass, turns to his left to avoid Hall, and is struck near the back wheel as he has almost crossed the full width of the Neely town road. Who under the circumstances was guilty of neglect? Who in ordinary judgment should have avoidéd the collision? Hall was coming fast; the statute says he should turn into a road with extreme caution. He gave no signal; the statute says that he should have blown a horn. He went thirty feet after he saw or could have seen Shuman’s car at the crossing; the statute says that in using extreme caution he should have had his car under control. What did Shuman do? He slowed down to eighteen miles an hour; he was going straight ahead in a clear road; he did not change his direction; he blew his horn and gave his signal; he relied on a car coming out of the Neely town road giving a signal and turning with extreme caution. When he saw Hall thirty feet away, coming fast, having given no signal, he swerved to the left, accelerated his speed to avoid Hall. Was he under these circumstances negligent as matter of law? Can we say, as matter of law, that if he had stopped short in the road at the intersection, Hall would -not have struck him just the same? Would he not then have been charged with contributory negligence in not getting out of the way? One thing Shuman was not obliged to do as matter of law; he was not obliged to stop his car, get out and look around the bushes to find out if Hall was coming. He had a right to proceed ahead on his own road, provided he drove carefully, slowly and with caution at intersections, giving notice of his approach.

Of course, in view of the dismissal of the complaint by the Appellate Division, I have taken the evidence, and stated the facts most favorable to the plaintiff. I by no means intend to indicate that these are the facts. On a subsequent trial of this case, care must be taken that no intimation is given that we in anything said here have passed judgment upon the merits of this case. The facts here stated are disputed and must be decided by a jury. All that I have said and intend to say is that upon this evidence the case is one for the jury, and not for the court.

For the reasons here stated, the judgment of the Appellate Division in so far as it dismisses the complaint, should be reversed and a new trial granted, costs to abide the event.

Cardozo, Ch. J., Pound, Lehman, Kellogg and O’Brien, JJ., concur; Andrews, J., absent.

Judgment accordingly.


source: Caselaw Access Project

author: Pound, J.

license: Public Domain

text:
    Nowy Swiat Publishing Co., Inc., Appellant, v. Sophie Misiewicz and Louis Ehrenberg, as Receiver of Anthony Misiewicz, Respondents.
    Stocks and stockholders — equity — corporation may maintain action in equity to compel surrender of stock certificate illegally held.
    1. A corporation which issues new certificates of its stock to the rightful owner in place of certificates held by defendants but in which they have no ownership but mere indicia of title, the certificates having been taken by them to hold for the true owner on whose demand they have refused to surrender them, may maintain an action in equity to compel defendants to surrender the certificates held by them for cancellation. The possession of such certificates enables them to pass title to a bona fide holder and thus wrong the corporation.
    2. At the request of a foreign corporation M. purchased stock of plaintiff, a domestic corporation, and took the same in separate blocks in the name of himself and five others to hold for the foreign corporation which furnished the money to pay for it, one certificate being issued to him and one to his wife. Thereafter the purchaser requested M. to retransfer the stock held in his name and that of his wife and surrender the certificates. He and his wife failed to do so but the others to whom certificates had been issued surrendered theirs and plaintiff issued to other persons designated by the foreign corporation shares of stock in place of all the first set of certificates, including those held by M. and his wife, who still failed and refused to surrender their certificates. The new stock has since been transferred to a purchaser with knowledge of the facts. In an action by plaintiff, the issuing corporation, to compel surrender of the M. certificates for cancellation, a dismissal of the complaint on the ground that defendants were under no duty to plaintiff, was error. The defendants are not bona fide holders of the certificates, nor has the corporation for which they were purchased any further interest therein. The defendants are committing a wrong against the plaintiff in refusing to surrender their certificates and it is against conscience and equity that they should be kept outstanding. They should be canceled to protect the plaintiff and its genuine stockholders.

      Nowy Swiat Publishing Co. v. Misiewicz, 218 App. Div. 818, reversed.
    (Argued June 22, 1927;
    decided July 20, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 8, 1926, unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term.

      David T. Smith and Nicholas A. Heymsfeld for appellant.
    This case is peculiarly one for equitable relief. (Jefferson Life Ins. Co. v. Keeton, 292 Fed. Rep. 53; McHenry v. Hazard, 45 N. Y. 580; Fifth Ave. Bank of New York v. 42d St. & Grand St. Ferry R. R. Co., 137 N. Y. 231; Holbrook v. N. J. Zinc Co., 57 N. Y. 616; Lyman v. Bank, 81 App. Div. 367; N. Y. & Eastern Co. v. Gt. Eastern Tel. Co., 74 N. J. Eq. 221; Bank v. R. R. Co., 137 N. Y. 231; Archer v. Dunham, 89 Hun, 387; London v. Sage, 48 N. Y. 173; Becker v. Church, 115 N. Y. 562; St. Stephens v. Church, 201 N. Y. 1.) The rights of respondent Sophie Misiewicz are no greater than those of Anthony Misiewicz. (Pom. Eq. Juris. [3d ed.] §§ 740, 742, 743, 763-778; Murray v. Finster, 2 Johns. Ch. 155; Jerett v. Palmer, 7 Johns. 65; Harris v. Fly, 7 Paige, 421; Manhattan Co. v. Everston, 6 Paige, 457; .Wyckoff v. Sniffen, 2 Edw. Ch. 580; Gallatian v. Cunningham, 8 Cow. 361; Woodruff v. Cook, 2 Edw. Ch. 258.)

      Louis Ehrenberg and Samuel Okin for respondents.
    The plaintiff is not entitled to any equitable relief against these defendants or either of them. (N. Y. & Eastern Co. v. Gt. Eastern Tel. Co., 74 N. J. Eq. 221; McHenry v. Hazard, 45 N. Y. 580; Fifth Ave. Bank of N. Y. v. 42d St. & Grand St. Ferry R. R. Co., 137 N. Y. 231; Hollbrook v. N. J. Zinc Co., 57 N. Y. 616; Jarvis v. Manhattan Beach Co., 148 N. Y. 652; Smith v. American Coal Co., 7 Lans. 317; N. Y., N. H. & H. R. R. Co. v. Schuyler, 17 N. Y. 592.)
   Pound, J.

Action to compel defendants to surrender stock certificates for cancellation.

In June, 1920, Polish Mechanics Co., a foreign corporation, sought to purchase five hundred shares of the treasury capital stock of plaintiff, a domestic corporation, of the par value of $10 a share. It requested Anthony Misiewicz to purchase the stock and take the same in blocks of one hundred shares in the names of himself and four other persons to hold it for and on behalf of the purchasing corporation and gave him $5,000 which he agreed to use for that purpose. He made the purchase. The number of distributees was increased to six. One certificate, No. Ill, was issued to him for ninety shares, and one, No. 112, to his wife, the defendant Sophie Misiewicz for seventy-one shares, without consideration and merely to hold for the corporation. Defendant Louis Ehrenberg as receiver of Anthony Misiewicz now holds the certificate for ninety shares. The wife still holds the certificate issued to her. In the following' November the Polish Mechanics Co., desiring to make a new arrangement as to the form of its stock holdings, requested Misiewicz to retransfer the stock so held in his name and that of his wife and to surrender the certificates. He promised but failed to do so. The other persons to whom certificates had been issued surrendered their certificates and plaintiff issued to certain other persons designated by Polish Mechanics Co., five hundred shares of its capital stock in place of all the first set of certificates including the certificates in suit. Misiewicz still failed and refused to surrender the certificates. As a result there are now outstanding both the Misiewicz certificates and the certificates issued in their place. Polish Mechanics Co. has meantime transferred its stock to a purchaser with knowledge of the facts.

The complaint has been dismissed on the ground that defendants were under no duty to plaintiff. The principle has been relied on that a corporation may not, where it has issued and recognized two certificates for the same holding, be heard to assert the validity of one and the invalidity of the other and that the rights of two holders may not be properly settled in the suit, particularly as they are not here parties. (N. Y. & Eastern T. & T. Co. v. Gt. Eastern Tel. Co., 74 N. J. Eq. 221; 75 id. 297.) I think that this principle has no application to this case. The plaintiff corporation should, for its own protection, have refused to issue the new stock without the surrender of the old certificates (McNeil v. Tenth Nat. Bank, 46 N. Y. 325, 331), but its failure to do so does not prevent equity from taking hold of the case. Polish Mechanics Co. clothed the Misiewiczs with the indicia of title of stock which it owned. As a result defendants now have it in their power to commit a wrong against the plaintiff by transferring the certificates to bona fide purchasers for value. If plaintiff should refuse to recognize such transferees as stockholders, it would be liable in damages to them. Cancellation on the books is not enough to protect it. When certificates of stock contain apparently all the essentials of genuineness a bona fide holder thereof has a claim to recognition as a stockholder, if such stock can legally be issued, or to indemnity if this cannot be done. (Holbrook v. N. J. Zinc Co., 57 N. Y. 616; Bean v. Am. Loan & T. Co., 122 N. Y. 622; F. A. Bank v. F. S. S. & G. S. F. R. R. Co., 137 N. Y. 231, 242.) To remove this menace, action is brought. The defendants are not bona fide holders of the certificates nor has Polish Mechanics Co. any further interest therein. It had its stock and has parted therewith. While the transferee doubtless has a cause of action to compel the surrender of the outstanding certificates, the plaintiff has a right to prevent the defendants from clinging to something to which they have no title. o

The contention is made that the proper remedy for plaintiff is to bring an action to compel the holders of the new certificates to surrender them and to cancel them until the first outstanding certificates are surrendered. But the Misiewiczs are committing a wrong against the plaintiff in refusing to surrender their certificates. As Chancellor Kent said in Hamilton v. Cummings (1 Johns. Ch. 517, 522): “It is every day’s practice * * * to order instruments to be delivered up, of which a bad use might be attempted to be made at law.” In the hands of defendants the certificates, valid on their face, are from their nature liable to abuse. The stock has become fictitious. They have no true ownership therein but only the indicia of ownership. While their certificates were not fraudulently issued, they now hold them without right. It is against conscience and equity that the certificates should be kept outstanding and they ought to be canceled to protect the corporation and its genuine stockholders. (N.Y. & N. H. R. R. Co. v. Schuyler, 17 N. Y. 592.) Mrs. Misiewicz pleads no equities and stands in the same position as her husband.

The judgment of the Appellate Division and that of the Special Term should be reversed and judgment ordered in favor of plaintiff for relief demanded in the complaint, with costs in all courts.

Cardozo, Ch. J., Crane, Lehman, Kellogg and O’Brien, JJ., concur; Andrews, J., absent.

Judgment accordingly.


author: O’Brien, J.

text:
    The Travelers Insurance Company, Appellant, v. Morris Pomerantz et al., Respondents.
    Insurance — contract — rescission — meaning of statement in application in reference to medical attention — material misrepresentation — proof thereof makes prima facie case for rescission — insurer not estopped by receipt of second premium by agents where tender was refused by executive officers within reasonable time.
    1. A statement in an application for life and disability insurance which reads, “ I am not deformed; I have had no bodily or mental disease, nor have I received medical or surgical attention within the past five years,” enumerates three distinct subjects, deformity; previous bodily or mental disease; medical or surgical attention within the past five years. A holding, therefore, that the statement meant the applicant had received no medical or surgical attention within the past five years for a bodily or mental disease, is error.
    2. A misrepresentation in that the applicant, who made no exception to the statement, had received medical attention no less than twelve times from five physicians, was material. The insurer had a right to know whether the attention was for an inconsiderable or serious ailment, and any misrepresentation which defeated or seriously interfered with the exercise of such a right cannot be said to be immaterial.
    3. Proof of such misrepresentation makes out a prima facie case in an action for rescission of the policy and where defendant neither denied nor explained his untrue application and gave no information concerning the state of his health at the time of his medical attention or on the dates of his application or of his payment of the first premium, a finding of material misrepresentation should have followed.
    4. The receipt of the second premium by plaintiff’s general agents does not estop it from contesting the policy where the only fair inference to be drawn from the evidence is that plaintiff whose branches were widely scattered and which at the time was engaged in contesting this policy repudiated the proffered benefit within a reasonable time after its responsible executive officers were enabled to know that it held defendant’s money in its possession.

      Travelers Ins. Co. v. Pomerantz, 218 App. Div. 431, reversed.
    (Argued June 21, 1927;
    decided July 20, 1927.)

      Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 9, 1926, afimning a judgment in favor of defendants, entered upon a dismissal of the complaint by the court on trial at Special Term in an action for the rescission of a policy of life and disability insurance for material misrepresentations.

      William J. Moran for appellant.
    There is no ambiguity to be resolved against the appellant in paragraph “ 12 ” of the insured’s application. The rule contra proferentem may not be applied herein. (Mutual Life Ins. Co. v. Hurni Packing Co., 260 Fed. Rep. 645; Saad v. N. Y. Life Ins. Co., 201 App. Div. 546; Preston v. Ætna Life Ins. Co., 193 N. Y. 144; Houlihan v. Preferred Accident Ins. Co., 196 N. Y. 340; Kreiss v. Ætna Life Ins. Co., 229 N. Y. 54; Nelson v. Traders Ins. Co., 181 N. Y. 472; Metzer v. Ætna Life Ins. Co., 227 N. Y. 417; Witherstine v. Employers’ Liability Assur. Co., 235 N. Y. 168; Satz v. Mass. Bonding & Ins. Co., 243 N. Y. 385.) The facts established by the evidence, which stood unchallenged by any evidence for the respondents, that the insured received medical attention when he was sick which he failed to disclose in his application, constitute material misrepresentations and alone justified the rescission of the policy herein. (Stanulevich v. St. Lawrence Life Assn., 228 N. Y. 586; Saad v. N. Y. Life Ins. Co., 235 N. Y. 550; Archer v. Equitable Life, etc., Assn., 218 N. Y. 18; Satz v. Mass. Bonding & Ins. Co., 243 N. Y. 385; Kwiatkowski v. Brotherhood of Am. Yeomen, 243 N. Y. 394; Mutual Life Ins. Co. v. Hurni Packing Co., 260 Fed. Rep. 641; Sparer v. Travelers Ins. Co., 185 App. Div. 861; Thorner v. John Hancock, etc., Ins. Co., 164 App. Div. 34; Hoffman v. Metropolitan Life Ins. Co., 141 App. Div. 713; 147 App. Div. 893; Grubiak v. John Hancock, etc., Ins. Co., 212 App. Div. 126.)

      Louis Salent, Stanley B. Ecker and Eugene J. Raphael for respondents.
    Appellant is estopped to claim rescission because of the acceptance and retention for an unreasonably long time of the second premium with full knowledge of the facts. (McNeilly v. Continental Life Ins. Co., 66 N. Y. 23; East v. Prudential Ins. Co., 11 App. Div. 190; McNaught v. Equitable Life Assur. Society, 136 App. Div. 774; Clark v. Kirby, 204 App. Div. 446.) The evidence amply sustains the findings of the trial court, affirmed by the Appellate Division, that the assured had no bodily or mental disease within the meaning of the policy and that he made no material misrepresentation with regard thereto. (Eastern District Piece Dye Works, Inc., v. Travelers’ Ins. Co., 234 N. Y. 441; Dilleber v. Home Life Ins. Co., 69 N. Y. 256; Cushman v. U. S. Life Ins. Co., 70 N. Y. 72; Schmidt v. Michigan Mut. Life Ins. Co., 101 App. Div. 12; Connecticut Life Ins. Co. v. Union Trust Co., 112 U. S. 250.) The trial court and the Appellate Division properly construed the declaration that the assured had received no medical or surgical attention as meaning no medical or surgical attention for a bodily or mental disease. (Bushey & Sons v. American Ins. Co., 237 N. Y. 24; Genung v. Met. Life Ins. Co., 60 App. Div. 424; Valentini v. Met. Life Ins. Co., 106 App. Div. 487; Denavo v. Prudential Ins, Co., 154 App. Div. 840; Diamond v. Met. Life Ins. Co., 116 N. Y. Supp. 616; Brown v. Met. Life Ins. Co., 65 Mich. 306; N. Y. Life Ins. Co. v. Moats, 207 Fed. Rep. 481; Blumenthal v. Berkshire Life Ins. Co., 134 Mich. 216; Sargent v. Modern Brotherhood, 148 Iowa., 600.)
   O’Brien, J.

Defendant, applying for a policy of life and disability insurance, signed this statement: 12. I am not deformed; I have had no bodily or mental disease, nor have I received medical or surgical attention within the past five years except as herein stated.” He made no exception and, accordingly, his statement is deemed to be wholly in the negative. He stated further in his application that “every declaration hereinabove contained is true.” The consideration for the policy issued to him May 10, 1922, is based upon his signed application, made part of the policy, as well as payment of the premium. February 28, 1923, defendant made claim for permanent total disability benefits stating that, as a result of a motor car collision in August, 1922, he became wholly disabled, that after this collision he began to feel pain in his heart and shortly thereafter had a severe heart attack and fainting spell and was advised by his physician not to attempt any form of occupation because his heart was in a weak condition. April 23, 1923, plaintiff informed the insured that it rescinded the policy and gave him notice of its intention to contest it, and tendered to him the amount of the premium. On May 4 plaintiff delivered six copies of the summons in this action to the sheriff who on June 19 certified to his failure to serve. They were, however, served by some one upon all these defendants, two on May 8 and all the others on May 23. The complaint was served June 7. The very day upon which the copies of the summons were delivered to the sheriff for service, the insured paid the second premium to plaintiff’s general agents who were authorized to receive premiums. The agents tendered a return for this amount in June or at the beginning of July, 1923. All the elements included within the foregoing statements have been found as facts and are supported by the evidence.

The first question to be determined is whether defendant made any misrepresentation in his application. The answer depends upon the meaning of statement 12 in the application form. The courts below have decided that the statement, by fair interpretation, must be held to mean that defendant was not deformed, that he had had no bodily or mental disease and that he had received no medical or surgical attention within the past five years for a bodily or mental disease. If the statement were ambiguous, it would necessarily be resolved against plaintiff, for plaintiff drew it. To us it does not seem doubtful. We can find no other meaning in it than the enumeration of three distinct subjects: 1, deformity; 2, previous bodily or mental disease; 3, medical or surgical attention within the past five years. If medical or surgical attention had been intended to refer only to bodily or mental disease, the statement ought to have been and presumptively would have been differently framed. Naturally, it would have read that the attention had been “ for such bodily or mental disease ” or “ therefor ” or in connection therewith ” or it would have included some other phrase expressing a relation between a disease and medical or surgical attention. The statement, as framed, affects the question whether an applicant not deformed and never afflicted with any bodily or mental disease had received within five years medical or surgical attention for injuries or for illnesses other than diseases. An applicant might have fractured his bones on twenty occasions or suffered at frequent intervals from indispositions which indicate a weak constitution and reveal a tendency toward disease but which had not yet developed into a definite disease. If any of the three parts of the statement was false, misrepresentation resulted. The applicant bound himself that “ every declaration herein-above contained is true;” the policy provides that all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties.” That the statement was false in at least one particular is certain. He made no exception to any part of statement 12 and so must be deemed to have made it without qualification. The proof is that within the past five years he had received medical attention no less than twelve times from five physicians. The trial court refused to make such a finding but as the evidence is not contradicted the request to find should have been granted. (Mawhinney v. Millbrook Woolen Mills, 231 N. Y. 290.)

Misrepresentation, therefore, existed. Was it material? In ascertaining the true answer, a complete separation of thought must be observed between a disease and some medical or surgical attention either for a disease or for an ailment other than a disease. A disease is one thing, medical or surgical attention for an injury or a disease or for an ailment other than a disease is quite a different one and we think that statement 12 clearly preserves the line of substantial distinction. Ailments, injuries, indispositions, sicknesses do not necessarily constitute diseases, although disease frequently develops from them. The words “ deformity ” or infirmity ” as used in connection with applications for insurance are, of course, construed to mean deformities or infirmities of such a substantial character as, if known, would have been liable to deter an insurer from issuing a policy. (Eastern District P. D. Works, Inc., v. Travelers Ins. Co., 234 N. Y. 441, 453, 454.) The same principle must be true respecting medical or surgical attention. The attention to which reference is made in statement 12 must be not for a trivial indisposition but for some substantial. illness, sickness, injury or disease. The insurer has the right to an opportunity to know whether the attention was for an ailment inconsiderable or serious. Although no disease may have developed, symptoms which had required medical attention might indicate conditions from which disease might be generated. Depending upon the nature of the attention, whether trivial or substantial, an applicant might prove to be a poor risk or a sound one. The insurer indicated by statement 12 that it wanted to know the facts and that it intended and expected the applicant to speak the truth so that it might acquire information concerning them. Any misrepresentation which defeats or seriously interferes with the exercise of such a right cannot truly be said to be an immaterial one. How can an insurer discover the nature of an applicant’s previous illness, subject perhaps to recurrence and apt to degenerate into a disease yet bearing no trace at the time of his physical examination for the policy, if he falsely states that he had received no medical attention at all ?

Plaintiff proved its case prima facie to the effect that the misrepresentation was material when it showed that within five years defendant had received medical attention a dozen times, that at least one medical consultation had been held, that digitalis had been prescribed in July, 1920, and that defendant was “sick” (Klein v. Prudential Ins. Co., 221 N. Y. 449) when he received attention. It could not compel him to waive his privilege arising from his relation to his physicians and force them to disclose the diagnosis and the nature of the treatment. He may insist upon this privilege but he cannot be heard to claim that no prima facie case has been made out. He produced no witnesses and gave no evidence concerning vital facts which could be disclosed only by him. As a witness called by plaintiff, he testified in respect to a few formal matters. He neither denied nor explained the untrue statement in his application and he gave no information concerning the state of his health at the time of his medical attention or on the dates of his application or of his payment of the first premium. To hold that the proof under such circumstances is less than prima facie would be to condone and encourage misrepresentations and to impose upon a litigant conditions impossible of fulfillment. Plaintiff proceeded as far as the law allows and far enough, in the absence of denial, to require a finding of material misrepresentation. All evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted. (Blatch v. Archer, 1 Cowper, 63, 65; Kirby v. Tallmage, 160 U. S. 379, 383; Matter of Jordon v. Decorative Co., 230 N. Y. 522,526,527.) The finding to the effect that defendant received no medical attention for any bodily or mental disease is based, as we think, upon a wrong interpretation of the contract and is, therefore, immaterial. The finding that he received none material.to the risk is subject to the same objection, is in effect a conclusion of law and moreover, is without evidence to support it. There was proof to the contrary and no rebuttal. Plaintiff produced evidence to show that the facts concerning which defendant made his misrepresentation were such as, if known, might have deterred it from accepting him as a risk. (Eastern District P. D. W., Inc., v. Travelers Ins. Co., supra.) Suppose this applicant had truly answered statement 12 and admitted that he had received medical attention twelve times from five physicians but then stood upon his rights and refused to state the nature of the attention or the names of his doctors. What chance would he have had to obtain a policy? If, on the contrary, he had stated that he had been treated even once for some form of heart disorder, almost certainly his application would have been rejected. We do not say that legal proof of such treatment is in the record. We make the supposition to illustrate the necessity of a truthful statement by an applicant and to emphasize the materiality of the misrepresentation.

The receipt of the second premium by plaintiff’s general agents on May 4, 1923, does not estop plaintiff from contesting this policy. Receipt by the agent is receipt by the principal (McClelland v. Mutual Life Ins. Co., 217 N. Y. 336) but a mere temporary retention of the premium does not, under the circumstances, constitute any evidence of an intention to abandon the claim of rescission and to ratify the policy. The company, whose main office is located in Connecticut, was seeking at the time to effect service of process in this action upon defendants. The premium was paid to its general agents for a limited territory in Brooklyn. On the day upon which the summons in this action had been delivered to the sheriff for service, defendant paid the premium to a clerk in the office of the agents in Williamsburg and received a temporary receipt ” therefor. The check was deposited by the agents to their own account in their own bank and the amount transmitted to plaintiff which returned it to its agents. The last of June or early in July the agents tendered the amount to defendant who refused it. All these facts were proved by uncontradicted evidence and do not conflict with any finding. On plaintiff’s request, all should have been found and the exception to the refusal to find presents reversible error. (Mawhinney v. Millbrook Woolen Mills, supra.) The fact that the amount of the premium was in plaintiff’s constructive possession for nearly two months does not indicate that it intended to retain any benefits therefrom and thus abandon its claim of rescission. It continued its efforts to effect service of the summons and succeeded on May 8 and finally on May 23. The complaint was served June 7. The only fair inference to be drawn from the evidence is that an organization whose branches were widely scattered and which at the time was engaged in contesting this policy repudiated the proffered benefit within a reasonable time after its responsible executive officers were enabled to know that it held defendant’s money in its possession.

The judgment of the Appellaté Division and that of the Special Term should be reversed and a new trial granted, with costs to abide event.

Cardozo, Ch. J., Pound, Crane, Lehman and Kellogg, JJ., concur; Andrews, J., absent.

Judgment accordingly.


author: Cardozo, Ch. J.

text:
    In the Matter of the Application of the Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title to Lands Required for Widening and Extending of Elm Street. The Comptroller of the City of New York et al., Appellants; American Express Company, Respondent.
    Constitutional- law — home rule — determining whether statute is general or local —• claim for award in street opening proceeding barred by Statute of Limitations — chapter 602 of Laws of 1925 authorizing resubmissio'n and payment of claim violative of Home Rule provision of Constitution.
    1. In determining whether a statute is violative of section 2 of article 12 of the State Constitution courts must inquire not only whether it is general or local in its terms but also whether it is general or local in its effect. Approximately the principle of division is that if the class in its formation is so unnatural and wayward that only by the rarest coincidence can the range of its extension include more than one locality, and at best but two or three, the act so hedged and circumscribed is local in effect. If the same limits are apparent upon the face of the act, unaided by extrinsic evidence, or are so notorious or obvious as to. be the subject of judicial notice, it is also local in its terms.
    2. Chapter 602 of the Laws of 1925, providing that “ where an award for damages has been made and confirmed by the Supreme Court in condemnation proceedings to acquire title in fee to real property for the purpose of opening, widening or extending a street in any city and said award has not been paid, but within one year last past has been adjudged by the courts of this State to have been barred by any Statute of Limitations, a claim for the payment of such award may be again presented and settled and paid, or if not so settled and paid may again be prosecuted and enforced,” is violative of section 2 of article 12 of the State Constitution. Though the act is general to the extent that it applies to any city where the prescribed conditions are fulfilled, the conditions are so circumscribed and narrow that the class subjected to the statute is one in name and nothing else.

      Matter of Mayor, etc., of New York (Elm St.), 218 App. Div. 765, reversed.
    (Argued June 1, 1927;
    decided July 20, 1927.)

      Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 26, 1926, which unanimously affirmed an order of Special Term granting an application to compel payment of an award.

      George P. Nicholson, Corporation Counsel [Joel J. Squier and William B. R. Faber of counsel), for appellants.
    Chapter 602, Laws of 1925, is unconstitutional, because in violation of sections 2, 3 and 7 of article XII of the State Constitution. (People ex rel. Purdy v. Comrs. of Highways of Marlborough, 54 N. Y. 276; Rumsey v. N. Y. & N. E. R. R. Co., 130 N. Y. 88; Schieffelin v. Mills, 241 N. Y. 96; Matter of New York Elevated R. R. Co., 70 N. Y. 327; Ferguson v. Ross, 126 N. Y. 459; Hermitage Co. v. Goldfogle, 204 App. Div. 710; 236 N. Y. 554; Browne v. City of New York, 125 Misc. Rep. 1; Schieffelin v. Kelliher, 125 Misc. Rep. 305; 215 App. Div. 770; Schieffelin v. McLaughlin, 215 N. Y. Supp. 209; Matter of Henneberger, 155 N. Y. 420; Matter of Pell, 171 N. Y. 48; People ex rel. Bolton v. Albertson, 55 N. Y. 50.)

      Litchfield F. Moynahan for respondent.
    Chapter 602 of the Laws of 1925 is a valid enactment under sections 2, 3 and 7 of article XII of the State Constitution. [People v. Albertson, 55 N. Y. 50; Matter of Henneberger, 155 N. Y. 420; Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Kohl v. United States, 91 U. S. 367; Sage v. Brooklyn, 89 N. Y. 189; McAneny v. Board of Estimate, 232 N. Y. 337; Matter of Church, 92 N. Y. 1; Matter of N. Y. El. R. R. Co., 70 N. Y. 328; Matter of Dobson, 146 N. Y. 357; Matter of N. Y. & L. I. Bridge Co., 148 N. Y. 540; People v. Dunn, 157 N. Y. 528.)
   Cardozo, Ch. J.

In the year 1898 Commissioners of Estimate and Assessment made an award of $36,266 in favor of the American Express Company in proceedings for the widening of Ehn street in the city of New York.

In February, 1899, the Comptroller drew a voucher in

A favor of the Express Company for $40,122.28, the amount of the award with interest from the date of the vesting of title to the date of the voucher (L. 1897, ch. 641, sec. 2).

For some unexplained reason, the Express Company failed to call for this voucher, and for many years it was carried on the Comptroller’s books as a warrant outstanding against the city of New York.

In 1921 (twenty-three years after the award) the Express Company awoke from its lethargy -and made demand for payment. Upon the city’s refusal to comply with the demand, a proceeding to enforce payment was begun, and thereafter carried to this court (239 N. Y. 220). We held, reversing the ruling in the court below, that under Civil Practice Act (§ 44) there was a conclusive presumption after twenty years that the award has been paid. The opinion pointed out that the city authorities were not at liberty to waive the defense of the statutory bar, however harsh the result. Relief must be sought elsewhere.” The claimant was not slow to look for aid in other quarters. Our decision was rendered in December, 1924. In April, 1925, the Legislature passed an act (L. 1925, ch. 602), which reads as follows:

“ AN ACT in relation to the presentation, payment or enforcement of certain awards against cities for damages in condemnation proceedings.

, “ Became a law April 11, 1925, with the approval of the Governor. Passed, three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Where an award for damages has been made and confirmed by the Supreme Court in condemnation proceedings to acquire title in fee to real property for the purpose of 'opening, widening or extending a street in any city and said award has not been paid, but within one year last past has been adjudged by the courts of-this state to have been barred by any statute of limitations, a claim for the payment of such award may be again presented and settled and paid, or if not so settled and paid may again be prosecuted and enforced by an action or proceeding in the courts of this state in the same manner as if the same had not been barred by any statute of limitations, and notwithstanding the fact the same was heretofore barred by such statute, provided that such claim be again presented to the proper officer of the city and paid within six months, or if not"so settled and paid that an action or proceeding be commenced thereon within one year from the date of the passage of this act.

“ § 2. This act shall take effect immediately.”

The claimant upon the passage of this act renewed its demand, and meeting again with a refusal, began this proceeding, which has been determined in its favor in both the courts below.

We think the act of 1925 was passed in violation of' the restrictions imposed by section 2 of article XII of the Constitution of the State.

By that section it is provided: “ The Legislature shall not pass any law relating to the property, affairs or government of cities, which shall be special or local either in its terms or in its effect, but shall act in relation to the property, affairs or government of any city only by general laws which shall in terms and in effect apply alike to all cities except on message from the governor declaring that an emergency exists and the concurrent action of two-thirds of the members of each house of the Legislature.”

This act was not passed upon an emergency message or by the concurrent action of two-thirds of each house. The question is whether it is special or local in terms or in effect.

The section quoted is part of the Home Rule article or amendment of the Constitution of the State which took effect as law on January 1, 1924. Up to that time, the distinction between special or local laws on the one hand and general laws on the other was directed to the form of the enactment rather than to its substance. If the act by its terms was applicable to a class, it did not cease to be general though the fact would appear, if extrinsic evidence were received, that it was local in effect (Matter of N. Y. El. R. R. Co., 70 N. Y. 327; Matter of Church, 92 N. Y. 1, 5; People v. Dunn, 157 N. Y. 528,540; Kittinger v. Buffalo Traction Co., 160 N. Y. 377, 395). Even then there was a point beyond which evasion was not suffered. Identifying tokens might be so many and particular that classification would find an end and designation a beginning (Matter of Henneberger, 155 N. Y. 420). There was here in this exception the germ of a doctrine more adapted to realities. As time went on, however, the exception was so narrowed by distinctions that it became of negligible value. The provisions of the Constitution distinguishing between special acts and general were in much the same pass as was the Statute, of Uses (27 Henry VIII, ch. 10) after the decision in Tyrrel’s Case (Dyer, 155) had opened the door to the development of trusts through the ingenuity of the Chancellors. Little had been accomplished beyond the addition of a phrase to the rigmarole of parchments (Hardwicke, L. C., in Hopkins v. Hopkins, 1 Atk. 581, 591; Williams, Real Property [24th ed.], pp. 59, 60, 61; 2 Washburn, Real Prop. [4th ed.] p. 406, bk. 2, ch. 2, § 2; p. 460, bk. 2, ch. 3, § 9).

The Home Rule amendment established a new test. We are no longer’confined to the inquiry whether an act is general or local “ in its terms.” We must go farther and inquire whether it is general or local in its effect.” Home Rule for cities, adopted by the people with much ado and after many years of agitation, will be another Statute of Uses, a form of words and little else, if the courts in applying, the new tests shall ignore the new spirit that dictated their adoption. The municipality is to be protected in its autonomy against the inroads of evasion.

In the setting of this background the validity of the act of 1925 (L. 1925, ch. 602) is to be considered and determined.

The act is general “ in its terms ” to the extent that it applies to any city where the prescribed conditions are fulfilled. It is general to that extent “ in its effect." Even so, the question remains whether the conditions are so circumscribed and narrow that the class subjected to the statute is one in name and nothing else. The act is not drawn as an amendment of section 44 of the Civil Practice Act.' The presumption of payment established by that section is not abolished or modified in its application to every one. It is not changed in its application to all cases where a city is the debtor. It is not even changed in all cases in which a city has been charged with an award for the value of land taken by right of eminent domain. It is changed in respect of one class of awards only, awards for opening, widening and extending a street. But even in this special class of proceedings, the scope of the exemption is whittled down again. It is not enough that the enforcement of the award has been barred by limitation; a “ judgment " declaring it barred must have been rendered by the courts. It is not enough that such a judgment has been rendered; it must have been rendered “within one year last past." A claim upon an award might have been barred by the delay of a single day beyond the statutory term. There would be no revival of its life unless the bar had been adjudged within the year. It might have been barred under a judgment rendered a day earlier than the year, or a day later. There would be no revival then. Out of all time, past and future, a single year is selected. Any award then condemned by the courts is to be revived though the award itself be a century old. Anything not condemned within that lucky year, that “annus mirabilis,” is to be governed by existing law.

We close our eyes to realities if we do not see in this act the marks of legislation that is special and local in terms and in effect. This group of conditions so unusual and particular is precisely fitted to the claimant’s case, and only by a most singular coincidence could be fitted to any other. ■ If we may not say of such a coincidence that it is literally impossible, at least we may say that one would be surprising, and several would be marvelous. An act is not general when the class established by its provisions is at once so narrow and so arbitrary that duplication of its content is to be ranked as an unexpected freak of chance, a turn of the wheel of fortune defying probabilities. Even before the Home Rule amendment, the framers of a statute did not save it from being local by making it apply to two or three cities instead of one (People ex rel. Clauson v. Newburgh, etc., Plank Rd. Co., 86 N. Y. 1, 7). Something more than this was involved, even then, in the notion of generality. What was true in those days is yet more plainly true to-day. The marks of distinction on which the classification is founded must be such, in the nature of things, as will, in some reasonable degree at least, account for or justify ” the grouping — justify it, in other words, as based upon something better than arbitrary preference (People ex rel. Richards v. Hammer, 42 N. J. L. 435, 440; cf. Alexander v. City of Elizabeth, 56 N. J. L. 71, 79, 80; Van Riper v. Parsons, 40 N. J. L. 1, 123; Town of Longview v. City of Crawfordsville, 164 Ind. 117, 121, 122). Futile is the endeavor to mark the principle of division with the precision or binding force of a codifying statute. Any statement attempted will need to be shaded down or enlarged to meet the exigencies of particular instances as hereafter they develop. Roughly speaking, however, the principle of division, considered merely for the purpose of a working approximation, may be stated to be this: If the class in its formation is so unnatural and wayward that only by the rarest coincidence can the range of its extension include more than one locality, and at best but two or three, the act so hedged and circumscribed is local in effect. If the same limits are apparent upon the face of the act, unaided by extrinsic evidence, or are so notorious or obvious as to be the subject of judicial notice, it is also local in its terms.

The statute now before us does not survive these tests. All the stigmata of arbitrary selection, of forced and unnatural classification, appear upon its face. By its terms a new burden has been laid, not upon cities generally, despite its pretense of generality, but upon one city or a few. A misshapen congeries of accidents has been made to masquerade under the semblance of a class.

The order of the Appellate Division and that of the Special Term should be reversed and the application denied, with costs in all courts.

Pound, Crane, Andrews, Kellogg and O’Brien, JJ., concur; Lehman, J., absent.

Ordered accordingly.


text:
    Keystone Hardware Corporation, Respondent, v. Patrick Tague, Appellant.
    Vendor and purchaser — down payment — action to recover as for money had and received —• summary judgment improper where issues of fact are raised by pleadings and affidavits — purchaser may not recover down payment if vendor is willing to convey — vendor may not compel specific performance where material element of contract was left for future negotiations.
    1. Where a complaint states a cause of action for money had and received, the answer admits receipt of the money but denies any promise to pay or demand and alleges as a counterclaim that the sum was paid pursuant to an agreement in writing for the sale of land, that defendant was willing to perform but plaintiff refused to consummate the purchase and demands specific performance, and the reply admits the agreement but denies that it was in writing and pleads the Statute of Frauds and further issues of fact are raised by affidavit, an award of summary judgment is improper.
    2. Where it appears from such affidavits if true that the parties signed a memorandum in writing complete in all respects except as to the duration of certain mortgages which was left for further agreement which was subsequently orally reached and that plaintiff recognizing its validity paid the money it now seeks to recover, a jury might find on the issues created that plaintiff had paid its money in part performance of a contract which was never in danger of repudiation by defendant, in which event plaintiff could not recover.
    3. Nor can defendant enforce specific performance. H a material element of a contemplated contract is left for future negotiations there is no contract enforcible under the Statute of Frauds and duration of mortgages is a material element in an agreement for the sale of land. (Ansorge v. Kane, 244 N. Y. 395; Poliak v. Dapper, 245 N. Y. 628, followed.)

      Keystone Hardware Corp. v. Tague, 218 App. Div. 820, reversed.
    (Submitted June 22, 1927;
    decided July 20, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 21, 1926, which unanimously affirmed an order of Special Term granting a motion by plaintiff to strike out the answer and for summary judgment.

      John C. von Glahn for appellant.
    Where the answer denies the material allegations of the complaint, or where the opposing affidavits controvert the moving affidavits, it is error for the court to give judgment under rule 113. (Gibbs v. Title Guarantee & Surety Co., 79 Misc. Rep. 247; Wayland v. Tysen, 45 N. Y. 281; Panzica v. Boasberg, 209 N. Y. Supp. 593; Hinrichs, Inc., v. City of New York, 121 Misc. Rep. 592; Color v. Reiss, 203 N. Y. Supp. 771; Dwan v. Massarene, 199 App. Div. 872; Chelsea Exchange Bank v. Munoz, 202 App. Div. 702; Friedman v. Kamener, 203 App. Div. 687; Rothschild v. Title Guarantee & Trust Co., 204 N. Y. 458; Munoz & Co. v. Savannah Sages Refining Corp., 193 N. Y. Supp. 422; Feingold v. Scardoccione, 187 N. Y. Supp. 68; Rogan v. Consolidated Copper Mines Co., 117 Misc. Rep. 718.) A vendee under an agreement for the purchase of land, whether or not it satisfies the Statute of Frauds, cannot recover the down payment if the vendor has not repudiated the contract, but is ready, willing and able to perform. (Laurence v. Miller, 86 N. Y. 131; Williston on Contracts, § 48; Swedish-American Nat. Bank v. Merz, 179 N. Y. Supp. 600; Tobias v. Lynch, 192 App. Div. 54; 233 N. Y. 515': Spiritusfabriek Astra v. Sugar Products Co., 176 App. Div. 829; 221 N. Y. 581; Faucett v. Northern Clay Co., 84 Wash. 382; Kavanaugh v. Cohoes Power & Light Corp., 114 Misc. Rep. 590; Smith v. United Traction & Electric Co., 49 App. Div. 641; 168 N. Y. 597; Ketchum v. Evertson, 13 Johns. 365; Beveridge v. West Side Construction Co., 130 App. Div. 139; Weintraub v. Kruse, 234 N. Y. 575.)

      Michael I. Winter for respondent.
    The answer fails to raise any issue and was properly stricken out pursuant to rule 113 of the Rules of Civil Practice. (Weinberg v. Greenberger, 47 Misc. Rep. 117; Knickerbocker v. Robinson, 82 N. Y. Supp. 314; Collins v. Pearsall, 119 N. Y. Supp. 203; Schubach v. Konshner, 114 Misc. Rep. 354; Polucek v. Jahoda, 203 App. Div. 38; Cooley v. Lobdell, 153 N. Y. 600; Mandel v. Nat. Assn. Building Corp., 200 App. Div. 767; Spielvogel v. Veit, 197 App. Div. 804.) In the case at bar the negotiations never ripened into a contract. (Ansorge v. Kane, 244 N. Y. 395; Roberge v. Winne, 144 N. Y. 709; Weintraub v. Kruse, 234 N. Y. 575; Wertheimer v. Boehm, 241 N. Y. 575; Mayer v. McCreery, 119 N. Y. 434.)
   O’Brien, J.

The action is an ordinary one at law for money had and received. The complaint alleges that defendant had and received $1,000, the property of plaintiff, at a certain time and place which sum defendant promised to pay to plaintiff and after demand has failed to do so. No relief is asked except judgment for that sum of money with interest and costs. The answer admits the receipt of the money at the time and place alleged but denies any promise to pay or any demand. It alleges as a counterclaim that the sum was paid to defendant by plaintiff pursuant to an agreement in writing for the sale of land; that defendant was willing to perform in all respects and that plaintiff refused to consummate the purchase and to pay the balance of the purchase price. For relief the answer demands specific performance of the agreement or judgment for the balance of the purchase price as agreed. Plaintiff’s reply admits the agreement as alleged in the counterclaim except that it denies that it was in writing, and denies that defendant was willing to perform, that plaintiff was unwilling, and that plaintiff paid the $1,000 on account of the purchase price of the land described. The reply also pleads the Statute of Frauds and alleges that the writing which purports to be the instrument whereby defendant attempted to convey an interest in land does not contain all the terms, conditions and provisions of the agreement and is insufficient, void and unenforcible.

Certain evidence appears by affidavits opposing the motion for summary judgment. During negotiations between the parties for the sale of land, plaintiff’s attorney drew a memorandum in writing in order to meet requirements of section 259, Real Property Law (Cons. Laws, ch. 50). The memorandum did not fully meet such requirements, because it did not provide for the term of mortgages. It mentioned mortgages for a definite amount but described them as “ expiring on date to be subsequently agreed on.” A complete agreement in writing had not, therefore, been reached. If the parties never agreed upon the date of the expiration of the mortgage, the contract could not be specifically performed. (Ansorge v. Kane, 244 N. Y. 395; Pollak v. Dapper, 245 N. Y. 628.) Plaintiff does not bring this action for specific performance. He sues only for money had and received. Some evidence appears in the record that the parties made a parol agreement respecting the date of the expiration of the mortgages. An affidavit filed by defendant on the motion for summary judgment states that after the written agreement had been executed, plaintiff’s president asked defendant if he would make the term of the mortgage five years and that defendant replied that he would do so. Other issues of fact are raised by evidence from which a finding might follow that defendant was willing to perform this contract as supplemented by the oral agreement and that plaintiff refused.

The issues of fact present in this case prevent the award of a summary judgment. If the statements contained in defendant’s affidavits be accepted by a jury as true, we would find the case to be one where the parties signed a memorandum or binder complete in all respects except one item which was left for future agreement, where such an agreement subsequently was orally reached, where plaintiff from the beginning recognized the validity of the memorandum, paid $1,000 upon the strength of it (Rothschild v. Title G. & T. Co., 204 N. Y. 458), where defendant always was willing to perform and where plaintiff later seeks a pretext to repudiate its bargain. It is not defendant who pleads the Statute of Frauds. He is satisfied with the contract. The fact that it was incomplete in the sense that something was left for future negotiation does not concern plaintiff as far as its alleged cause of action is concerned. The agreement was not illegal. There was no obj ection in law to complete performance by both parties. Money paid in performance in part even of an oral contract for the purchase of land cannot be recovered if the vendor is willing to convey on the performance of the conditions by plaintiff. (Collier v. Coates, 17 Barb. 471.) A jury might find on the issues created by the pleadings and affidavits in this action that plaintiff had paid its money in part performance of a contract which was never in danger of repudiation by defendant. If a jury should accept defendant’s evidence, a necessary conclusion would follow that plaintiff is attempting, by its plea of the Statute of Frauds, to take advantage of its own wrong. No court will tolerate such a thing. (Riggs v. Palmer, 115 N. Y. 506; Thomson v. Poor, 147 N. Y. 402; Imperator Realty Co. v. Tull, 228 N. Y. 447.)

Defendant cannot, however, enforce specific performance. The elementary rule that written instruments cannot be varied by parol agreements is not here applicable. No attempt was made to vary anything. The memorandum provides that a future agreement shall be made and defendant says that the fact has been accomplished. In effect he asserts that the parties have not varied, they have conformed. For all that, we think that under our decisions he cannot recover on his counterclaim. The effect of the reasoning in Ansorge v. Kane (supra), followed so recently in Pollak v. Dapper (supra), prevents enforcement by defendant of specific performance. We have decided that if a material element of a contemplated contract is left for future negotiations, there is no contract enforcible under the Statute of Frauds. Duration of the mortgages is certainly a material element in the agreement before us and it was left for future negotiations. The fact that later the negotiations were completed by arriving at an oral agreement cannot affect the original contract. If the parties had merely provided for mortgages at certain amounts and remained silent in respect to rate of interest and date of maturity the law would imply legal rate and maturity on demand. (Weintraub v. Kruse, 234 N. Y. 575; Wertheimer v. Boehm, 241 N. Y. 575.) They did not remain silent, they expressly reserved the subject for future consideration and, therefore, under the established rule specific performance cannot be decreed.

We have said that statements in the affidavits supported the conclusion that there was a later and oral agreement as to the terms of the mortgage. We are not to be understood, however, as holding that the failure of the defendant to establish such an agreement will require judgment in favor of the plaintiff for the return of the deposit. When a part payment is made under a binder such as the one in suit, the party making the payment, the vendee, may not recover it thereafter if he has willfully refused to make any genuine effort to reach an agreement as to the details left open for subsequent adjustment. Such refusal will indeed be effective to thwart specific performance at the suit of the vendor. It will not confer a cause of action for money had and received, a cause of action rooted in principles of equity.

The judgment of the Appellate Division and that of the Trial Term should be reversed and plaintiff’s motion to strike out answer and for summary judgment denied, with costs in all courts.

Cardozo, Ch. J., Pound, Crane, Lehman and Kellogg, JJ., concur; Andrews, J., absent.

Judgment accordingly.


author: Crane, J.

text:
    Bessie L. Klepper, Appellant, v. Seymour House Corporation of Ogdensburg, Inc., et al., Respondents.
    Municipal corporations —• streets — buildings — negligence— duty of municipality to maintain streets in safe condition for travel — duty of abutting owner to maintain building so snow and ice will not fall therefrom to sidewalk — when both city and owner are chargeable with notice of dangerous falls of snow and ice from building • — • case properly submitted under law of negligence though nuisance also alleged — owner of leased premises who undertook to keep outside of building in repair liable for injury from fall of snow and ice from roof — duty of city either to remove danger or protect passers-by — separation of verdict by jury under direction of court after they found proper general verdict disregarded —■ reinstatement of verdict by judge at subsequent term to which motions had been adjourned by stipulation proper.
    1. A municipality is under the duty to use reasonable care to maintain its streets in reasonably safe condition for travel and to remove all obstructions or incumbrances which are dangerous. The owner of an abutting building is also under the duty to maintain it so that snow and ice will not accumulate upon the roof and fall off upon passers-by to their injury.

      2. Where in an action against a city and the owner of a building abutting on one of its streets, to recover for personal injuries to a pedestrian through her being struck by a mass of ice and snow which fell from the roof of the building, it appears that the roof had attached to it a cornice which extended out over the street and sloped at an angle so that, after heavy storms, ice and snow would slide off onto the sidewalk and that this had happened three or four times that winter and during previous winters, policemen reporting it, both city and owner are chargeable with notice of the condition. (Hixon v. City of Lowell, 13 Gray, 59, disapproved.)
    3. Although the complaint alleged against the owner both nuisance and negligence there was no error in submitting the ease to the jury, as to it, under the law of negligence. Nuisance and negligence at times so nearly merge into each other that it is difficult to separate them.
    4. The jury were justified in finding from the evidence that the owner was in possession of the property and charged with the duty of care to prevent snow from falling from its roof. It appeared that though the premises were leased, the owner undertook to keep the outside of the premises, including the roof, in repair. An owner cannot escape his duty of exercising reasonable care to maintain his property adjoining a highway in reasonably safe condition unless he parts with the entire possession and control of the premises.
    5. A holding that the city could not remove the incumbrance or the projecting roof is error. Having constructive notice of the danger to pedestrians by reason thereof the city was called upon to do something, either to remove the encroachment or danger or to protect passers-by from it. (Cain v. City of Syracuse, 95 N. Y. 83, distinguished.)
    6. The jury having found a general verdict, their subsequent action, under direction of the court, of dividing it, one part against the city and another against the owner, is a surplusage which may be disregarded. Furthermore, the trial judge properly reinstated the verdict at a subsequent term to which hearing of motions had been adjourned by stipulation.

      Klepper v. Seymour House Corp., 218 App. Div. 686, reversed.
    (Argued June 8, 1927;
    decided July 20, 1927.)
    Appeal from a judgment, entered December 30, 1926, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.

      Delos M. Cosgrove, Loren E. Harter and Edmund Fitzgerald for appellant.
    The defendant Seymour House Corporation was negligent in maintaining its building and cornice over or so near the street that ice and snow in the ordinary course of things was liable to fall upon "travelers lawfully upon the street. (Hynes v. N. Y. C. R. R. Co., 231 N. Y. 229; Walsh v. Mead, 8 Hun, 387; Kelly v. Washburn, 178 App. Div. 664; Tremblay v. Harmony Mills, 171 N. Y. 598; Shipley v. Fifty Associates, 106 Mass. 194; Smethurst v. Barton Square Church, 148 Mass. 261; Shepard v. Creamer, 160 Mass. 496; Gould v. McKenna, 86 Penn. St. 297; 3 Shearman & Redfield on Negligence [6th ed.], 1886, § 721; Glover v. Holbrook, Cabot & Rollins Corp., 189 App. Div. 328; McNulty v. Ludwig & Co., 153 App. Div. 206.) The defendant Seymour House Corporation did not surrender entire control of its building to its tenants. It retained control over the outside of the building and over the cornice. It owed a duty to the plaintiff to keep ice and snow from falling from this cornice upon her to her injury. (Jennings v. Van Schaick, 108 N. Y. 530; Trustees of Canandaigua v. Foster, 156 N. Y. 354.) The wing of the Seymour House building with the cornice thereon as maintained by the defendant Seymour House Corporation was a nuisance and the trial court should have submitted to the jury the question of nuisance as against this defendant. (Davis v. Niagara Falls Tower Co., 171 N. Y. 336; Vincett v. Cook, 4 Hun, 318; Timlin v. Standard Oil Co., 126 N. Y. 514; Ahern v. Steele, 115 N. Y. 203; Junkerman v. Tilyou Realty Co., 213 N. Y. 404; Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310; Swords v. Edgar, 59 N. Y. 28.) The defendant City of Ogdensburg was negligent in not abating the nuisance or dangerous condition of the building; in not removing or causing to be removed the snow and ice from the cornice overhanging the street; and in not giving adequate warning or notice by signs or otherwise of the danger from falling snow and ice.
      (Todd v. City of Troy, 61 N. Y. 506; Allison v. Village of Middletown, 101 N. Y. 667;, Twogood v. Mayor, etc., of N. Y., 102 N. Y. 216; Rehberg v. Mayor, etc., of City of New York, 91 N. Y. 137; Metzroth v. City of New York, 241 N. Y. 470; Farley v. Mayor, etc., 152 N. Y. 222; Gillrie v. City of Lockport, 122 N. Y. 403; Ferguson v. City of Newburgh, 174 App. Div. 554; Embler v. Town of Wallkill, 132 N. Y. 222.) The overhanging cornice with the accumulation of ice and snow thereon constituted a dangerous obstruction to the safety of State street, and was, therefore, a public nuisance and the defendant City of Ogdensburg is liable to the plaintiff for the injuries she sustained by reason thereof. (City of New York v. Rice, 198 N. Y. 124; City of New York v. Knickerbocker Trust Company, 104 App. Div. 223; Cohen v. Mayor, etc., of N. Y., 113 N. Y. 532; Sewell v. City of Cohoes, 75 N. Y. 45; Ivory v. Town of Deerpark, 116 N. Y. 476; Melker v. City of New York, 190 N. Y. 481; McNulty v. Ludwig & Co., 153 App. Div. 206; McCloskey v. Buckley, 223 N. Y. 187; Hume v. Mayor, etc., of N. Y., 74 N. Y. 264; Bieling v. City of Brooklyn, 120 N. Y. 98; Wells v. City of Brooklyn, 9 App. Div. 61; 158 N. Y. 699.) The trial court properly directed entry of judgment against both defendants for the amount of damages found by the jury. (Polsey v. Waldorf-Astoria, Inc., 216 App. Div. 86; Wands v. City of Schenectady, 171 App. Div. 94; Post v. Stockwell, 34 Hun, 373; Gilchrist v. Shepard, 214 App. Div. 810.)

      Francis E. Cullen and Frank J. Ryan for Seymour House Corporation, respondent.
    The defendant Seymour House Corporation, having at the time of the accident parted entirely with the possession of the property from which the snow and ice fell, is not hable for negligence in failing to keep the cornice on the building free from snow and ice or in failing to hold such snow and ice on the cornice until it melted. (Mollino v. Ogden & Clarkson, 243 N. Y. 450; Tobias v. Lewis, 182 App. Div. 598; 230 N. Y. 571; Zolezzi v. Kroll & Horowitz, 243 N. Y. 490; Clancy v. Byrne, 56 N. Y. 129; 1 Thomp. on Neg. [2d ed.] 1037, §§ 1154-1171.) After two trials no evidence has been produced indicating negligence of the defendant, Seymour House Corporation, and the Appellate Division did not err in dismissing the complaint. (Davis v. Niagara Falls Tower Co., 171 N. Y. 336; Vincett v. Cook, 4 Hun, 318; Steinsitz v. Wannamaker, 154 N. Y. Supp. 262; Sterger v. Van Sicklen, 132 N. Y. 499; Odell v. Solomon, 99 N. Y. 635; Fox v. Ireland, 46 App. Div. 541; Clancy v. Byrne, 56 N. Y.. 129; Wenzlick v. McCotter, 87 N. Y. 122; Stork v. Dorn, 212 App. Div. 522.)

      Robert S. Waterman for City of Ogdensburg, respondent.
    It would have been trespass by the city of Ogdensburg to have gone upon the Seymour House property to remove the snow and ice therefrom. (Cain v. City of Syracuse, 95 N. Y. 83.) There must have been willful misconduct or culpable negligence to create any liability on the part of the city. (Hunt v. Mayor, etc., 109 N. Y. 134; Hubbell v. City of Yonkers, 104 N. Y. 434; Smith v. Mayor, 66 N. Y. 295; Leary v. City of Yonkers, 95 App. Div. 126; O’Shaughnessy v. Village of Middleport, 93 App. Div. 93; Harrington v. City of Buffalo, 121 N. Y. 147; Taylor v. City of Yonkers, 105 N. Y. 202; Herman v. City of New York, 148 App. Div. 61; Dubois v. City of Kingston, 102 N. Y. 219; Cain v. City of Syracuse, 95 N. Y. 83.)
   Crane, J.

On January 15, 1923, the plaintiff, a young woman twenty-nine years of age, was walking with her two children on the sidewalk of State street, a public highway, in the city of Ogdensburg. She was in front of a building known as the Seymour House, owned by the defendant, the Seymour House Corporation. While thus proceeding, a mass of ice and snow, weighing about 150 pounds, fell upon her from the roof of the Seymour House, inflicting serious and permanent injuries. The judgment which she recovered at Trial Term against the owner of the Seymour House and the city of Ogdensburg has been reversed by the Appellate Division, and her complaint dismissed.

State street has been one of the principal streets and highways in the city of Ogdensburg for over fifty years. The Seymour House has been there for the same length of time, in substantially the same condition as it was on the day of the accident. The sidewalk of State street, adjoining the Seymour House at the place of the accident, for all these years had been open to the public and used by them as a public street. The city has recognized and treated it as such. For the full width of its user, the duty of the city and the adjoining property owner to passers-by was the same as if the street had been legally laid out by proper municipal proceedings. On the trial much unnecessary effort was expended in attempts to show that the Seymour building, as distinguished from the cornice, encroached upon the highway. This apparently led to much confusion, and was not at all essential to sustain the plaintiff’s claim. (Sewell v. City of Cohoes, 75 N. Y. 45; Ivory v. Town of Deerpark, 116 N. Y. 476.) We may, therefore, dismiss this question upon which much evidence was given without further consideration. As to this street where the plaintiff was traveling, the city of Ogdensburg was under the duty to use reasonable care to maintain it in reasonably safe condition for travel and to remove all obstructions or incumbrances which were dangerous. The owner was also under the duty to maintain its building so that snow and ice would not accumulate upon the roof and fall off upon passers-by to their injury.

The roof of the Seymour House had attached to it a cornice which extended out over the street, as thus described, sixteen to twenty inches. It sloped at an angle of fifty degrees. After heavy storms, snow and ice would accumulate on this slanting cornice and slide off onto the sidewalk in a mass of varying dimensions and weight. This had happened three or four times during the winter previous to the injury to the plaintiff. It had happened every winter. Members of the city government were familiar with the condition. The policeman reporting it to his superior was virtually told to mind his own affairs. The evidence in the case is abundant to prove that this cornice projecting on a slant over the sidewalk was a danger to pedestrians by reason of its facility for collecting ice and snow and slipping it off into the street. The owner of the building, whether the eaves did or did not actually project over the sidewalk, had no more right to collect snow and ice on such a structure and discharge it into the street than he would have had to shovel it down by the hand of employees. The frequency with which this thing had happened during all the winters since the defendant was the owner of the property was sufficient to charge it with notice of the condition. In Tremblay v. Harmony Mills (171 N. Y. 598) an owner was held to be hable in damages for injuries caused to a passer-by who slipped on ice formed from water discharged from a leader connected with the roof. No right to discharge water from the roof of a building, it was said, can be predicated upon the ownership of the adjacent land. A roof so constructed as to collect snow and ice and discharge it upon passers-by in a public street necessarily imperils the safety of the public, and becomes a nuisance. Any act of an individual, though performed on his own soil, if it detracts from the safety of travelers is a nuisance. (Walsh v. Mead, 8 Hun, 387; Beck v. Carter, 68 N. Y. 283.) The Supreme Judicial Court of Massachusetts has expressed this duty in very forceful language in Shipley v. Fifty Associates (106 Mass. 194). A roof was so constructed that snow and ice were likely to fall from natural causes on an adjoining highway. Speaking of the duty of the owner, the court said: He has no right so to construct his building that it will inevitably, at certain seasons of the year, and with more or less frequency, subject his neighbor to that kind of inconvenience; and no other proof of negligence on his part is needed. He must at his peril keep the ice or the snow that collects upon his own roof, within his own limits; and is responsible for all damages, if the shape of his roof is such as to throw them upon his neighbor’s land, in the same manner as he would be if he threw them there himself.” Again, in Shepard v. Creamer (160 Mass. 496) that court said: “ It was negligence to maintain a building so near the street and so constructed that, in the ordinary course of things, snow or ice was liable to fall from the roof upon travelers on the adjoining highway.”

Although the complaint alleged against the owner both nuisance and negligence, the trial court sent the case to the jury on the theory of negligence. Nuisance and negligence at times so nearly merge into each other that it is difficult to separate them. A cornice, such as that in this case, may be a nuisance by reason of its danger to passers-by on the street, and at the same time the owner may be guilty of negligence in permitting snow and ice to accumulate upon it and fall in heavy mass upon the heads of people below. The existence of a nuisance in many, if not in most instances, presupposes negligence. These torts may be, and frequently are, coexisting, and practically inseparable; as, where the same acts or omissions constituting negligence give rise' to a nuisance. (McNulty v. Ludwig & Co., 153 App. Div. 206, p. 213.) There was no error, therefore, in submitting this case to the jury under the law of negligence as to the Seymour House Corporation.

There was also evidence from which the jury were justified in finding that this corporation not only was the owner but in possession of the property and charged with the duty which I have heretofore stated.

The Seymour House Corporation acquired the property known as the Seymour House in November of 1920, and entered into possession. At the time the cornice was in the same condition that it was on January 15, 1923, with the exception of certain repairs and modifications made by this defendant. The ground floor of part of the structure was built over into four stores by the corporation after it purchased the property, so that the building consisted of a hotel and stores. The four stores were leased and occupied by separate tenants, and were in that part of the building from which the snow fell. The hotel was leased by the corporation to one Hurrah, who was originally a defendant in this action. The lease ran for five years and provided that the lessee was to keep the interior of the premises in repair while the lessor agreed to pay all necessary outside repairs. This agreement of lease, bearing date the fifth day of November, 1920, was later modified by agreement dated December 22, 1921. By this instrument the Seymour House Corporation agreed to remodel the stores facing on State street underneath the hotel rooms, the intent being that said party of the first part shall have the right to rent the said stores and receive the income and rentals therefrom until such time as said rentals shall repay the party of the first part the cost of such improvements with interest.” Under these lease agreements, it is evident that the lessee, Hurrah, agreed to make the inside repairs to the hotel property, and the landlord agreed to repair the outside of the property, which of course would include the roof. The subsequent action of the parties also indicated the meaning of the lease. In August of 1922 the Seymour House Corporation considered a certain portion of the roof or cornice over State street to be dangerous. It repaired the condition. Prior to that time a battlement extended up a few feet above the roof and cornice. Hr. Wilson, the architect employed by the Seymour House Corporation to make this change, testified that this parapet wall, or battlement, as he called it, was constructed of wood and extended above the roof about two feet. He said: It was getting so rotten, we thought we better take it down.”

This lessor, therefore, retained certain control over the premises leased. It reserved the right to remodel and rent the stores facing on State street, and undertook to and did repair the outside of the premises, or the roof. The public, however, are not particularly interested in these agreements between the lessor and lessee. An owner cannot escape his duty of exercising reasonable care to maintain his property adjoining a highway in reasonably safe condition unless he parts with the entire possession and control of the premises. (Trustees of Canandaigua v. Foster, 156 N. Y. 354.) Vann, J., writing in that case for this court said: “ If he [the owner] transfers either title or possession, in part only, he does not escape the burden. * * * As the duty is imposed by law for the public safety, its extent is measured by whatever public safety requires. Anything less than the alienation of the entire property, either permanently, as by deed,' or temporarily, as by lease, would leave the public without adequate protection.” This same point was raised in the Shipley Case (supra), and the court answered by saying: “ The building was occupied by separate tenants, one of whom had some special facilities for getting upon the roof, but it does not appear that the place where the snow and ice accumulated was under the control of the tenants, or that they had anything to do with the outside of the roof. * * * The landlords were not excluded from going upon the roof, and so altering its construction that at all seasons of the year it should not produce any inconvenience or danger to travelers on the highway below.”

On the first trial of this case the tenant, as I have stated above, was a party. He and the Seymour House Corporation appeared by the same able counsel. The complaint was dismissed as to the lessee, as it did not appear that he had anything to do with the outside of the building. (See record in 212 App. Div. 277.) Strange indeed would it be in the administration of law by our courts if the case against the lessor should now be dismissed because it had nothing to do with the outside of the building. All obligations toward the public would have vanished. The leases were before the court on both trials.

Although not instructed so to do, the jury, with a surprising and unusual degree of intelligence, answered specific questions framed by themselves. One of them as reported in their verdict was as follows: “ Third. Was the Seymour House Company guilty of negligence? The jury finds upon consideration of the evidence given that the Seymour House Company was guilty of negligence by allowing snow and ice to accumulate on the cornice of the wing of Seymour House and not taking precaution to remove said snow or ice or to erect a barrier to hold said snow or ice on the cornice roof till it melted or was otherwise disposed of.”

There was evidence to sustain this finding of the jury.

We now approach the case against the city. The court charged the jury that the cornice was a part of the hotel, and the jury found specifically that the hotel or the wing on State street projected over the street. The jury could hardly have found otherwise, as the defendant’s own witnesses testified that the cornice projected out sixteen to twenty inches over the traveled portion of the sidewalk. As I have above said, the slidé from the slanting ledge of snow and ice into the street had happened so many times that the city must have known of the dangerous situation. Its public officials had notice of it. The policeman reported it. The duty rested upon the city to keep this sidewalk reasonably safe for pedestrians. It was an active duty, requiring vigilance and diligence. Even if no portion of the building projected over the highway, yet substances faffing from the building into the highway, making it unsafe and dangerous, would require some safeguard or protection from the danger. (Metzroth v. City of New York, 241 N. Y. 470.)

Todd v. City of Troy (61 N. Y. 506) is in point. In that case, while the plaintiff was walking along the sidewalk of the city of Troy, she slipped and fell on ice caused by the freezing of water which came down a conductor from a building and flowed out and over the sidewalk. The conductor had been there for a long time and the water would freeze and thaw and freeze again on the sidewalk, according to the weather. Earl, J., writing for this court, said: “ Upon this evidence it was a question for the jury to decide, whether it was negligence for the municipal authorities to permit this water to flow upon the sidewalk, and thaw and freeze there and form ice remaining there for some days. It was also a question for the jury to decide, whether the existence of this state of things, for the length of time and under the circumstances, in a street much traveled, which was easy to observe, and must have been seen by many persons, ought to have been known by the defendant; in other words, to decide whether the defendant was guilty of negligence in not knowing facts so notorious.” (See, also, Allison v. Village of Middletown, 101 N. Y. 667; Gillrie v. City of Lockport, 122 N. Y. 403.)

The case of Nixon v. City of Lowell (13 Gray, 59), cited and relied upon by the court below, is not the law of this State. Our courts refused to follow it In Leary v. City of Yonkers (95 App. Div. 126); Champlin v. Village of Penn Yan (34 Hun, 33; affd., 102 N. Y. 680). The Nixon case rested upon the law of incumbrances and encroachments peculiar to the New England States. The subject is fully discussed in Dillon on Municipal Corporations (Vol. IV [5th ed.], sections 1694, 1705, 1706).

Some of the rulings of the judge upon this trial were due to the opinion of the Appellate Division upon the appeal from the first trial, and found at 212 Appellate Division, 277. Nuisance, it was said, could not be charged to the Seymour House Corporation, as it never had actual notice of the dangerous roof. The case of Ahern v. Steele (115 N. Y. 203), cited as an authority for this proposition, is to the contrary. This court there stated: “ The owner is responsible if he creates a nuisance and maintains it; if he creates a nuisance and then demises the land with the nuisance thereon, although he is out of occupation; if the nuisance was erected on the land by a prior owner, or by a stranger, and he knowingly maintains it; if he has demised premises and covenanted to keep" them in repair, and omits to repair, and thus they become a nuisance.” The court distinctly held that the demising of the pier there in question while it was in such a condition as to be a nuisance rendered the trustee who made the lease guilty of misfeasance and responsible for the damages caused by the nuisance. The actual notice which is required is in the instance where one inherits property on which is a nuisance without knowledge of its existence. In such a case there would be a mere passive passing of title, no act of entry or possession. Where, however, the heir enters into possession and makes a lease of property upon which there is a nuisance, his possession in the eyes of the law amounts to notice, provided of course that the nuisance is one which he should have known about. The Seymour House Corporation, after entering into possession of the property, leased it with a slanting roof or a nuisance upon it. No actual notice of this condition was necessary. It was supposed to know what it was leasing. The company, moreover, as we have above stated, remained in control of the roof. (See, also, Clancy v. Byrne, 56 N. Y. 129.)

Again, the Appellate Division was in error in holding that the city could not remove the incumbrance or the projecting roof. Cain v. City of Syracuse (95 N. Y. 83), cited by it, has no reference to public streets, as the wall which fell did not face the street, but fell on adjoining property. This court distinguished such a case from those where the general public were interested, and citizens menaced. The nuisance then became not a private, but a public nuisance, which the city could remove. While here,” said the court, “ the walls threatened only adjoining private property and endangered the lives not of the public, but of the adjoining owners or occupants.”

The city of Ogdensburg, having constructive notice of this over-reaching roof and of the danger to pedestrians by reason thereof, was called upon to do something, either to remove the encroachment or danger or to protect passers-by from it.

The jury specifically found: The jury finds upon consideration of the evidence given that the city of Ogdensburg, as defendant in this action, is guilty of negligence by not causing proper precaution to be taken to prevent the fall of ice and snow, or both, into a public highway and thereby endangering the persons or people passing to and fro upon a public highway of said city, and by allowing the above condition to exist, thereby constituting a public nuisance in that portion of State street adjoining the wing of said Seymour House.” It was justified in so finding.

The jury also returned together with these findings a general verdict in favor of the plaintiff in the sum of $37,500 against both defendants, which leads to a consideration of the next point.

At the request of counsel for the Seymour House Corporation the judge thereafter directed the jury to separate their verdict, which they did, by dividing it $20,000 against the city and $17,500 against the corporation. We think that the jury having found a general verdict in accordance with the law, their subsequent action under the direction of the court is a surplusage which may be disregarded. With the rendition of their verdict in accordance with the law their duty ceased. Their subsequent expression as to how their verdict should be divided was beyond their powers, and, therefore, a nullity.

But even if this is not so, we think the judge properly-reinstated their verdict at a subsequent term of the court. We recently held that an amendment of a verdict is in effect an incident of the trial, and the power to make it is exhausted when the term is at an end. (Urband v. Lubell, 245 N. Y. 156.) Such procedure, however, submits to stipulation. The parties in this case stipulated that the motion to set aside the verdict and for a new-trial, and to amend the verdict, by directing entry of a judgment for the full amount against both defendants, be heard at a subsequent term of the court presided over by the same trial judge. The defendants, however, reserved the right to object to the power and jurisdiction of the Special Term to grant the motion of the plaintiff to amend the verdict. The reservation was of power to grant, not of power to hear. The court had no power to hear any of the motions at a subsequent term unless the parties so stipulated. They did so stipulate. What they evidently had in mind was, that while the court might hear the motion it had not power after a verdict of a jury to amend the verdict at any term. The court at the original Trial Term had the power to reinstate the verdict of the jury, and this power continued by stipulation for the term to which the parties had adjourned a hearing of the motions. We find no difficulty, therefore, with this procedure.

It only remains for me to state that the Appellate Division reversed the judgment for the plaintiff upon the law alone and thus affirmed the facts. We find no error of law in this case which justified reversal, as we have stated. The judgment of the Appellate Division should, therefore, be reversed and that of the Trial Term affirmed, with costs in the Appellate Division and in this court.

Cardozo, Ch. J., Pound, Lehman and O’Brien, JJ., concur with Crane, J.; Andrews, J., concurs in result; Kellogg, J., not sitting.

Judgment accordingly. ,