text:
    MURRAY B. Stone, et al., Doing Business as Stone & Stone Co., Appellants, v. Jack Freeman, Doing Business as Hom-O-Zone of Manhattan, Respondent.
    Argued October 14, 1948;
    decided November 24, 1948.

      Abraham Shamos, Alan Nordlinger and ‘Norman Hammer for appellants.
    I. Tbe transactions alleged in tbe counterclaims were illegal and contrary to public policy. (Sirkin v. Fourteenth St. Store, 124 App. Div. 384; Matter of McNally, 252 App. Div. 550; Matter of Browning, 176 Mise. 308.) II. Tbe illegality of the agreements as pleaded precludes resort to tbe courts by tbe parties thereto, whether such resort be for tbe purpose of enforcing performance of tbe agreements or for tbe purpose of recovering back performance already rendered. (Tates v. Foot, 12 Johns. 1; Ruckman v. Pitcher, 1 N. Y. 392; Knowlton v. Congress & Empire Spring Co., 57 N. Y. 518; Perkins v. Savage, 15 Wend. 412; Staples v. Gould, 9 N. Y. 520; Sharp v. Wright, 35 Barb. 236; Haynes v. Rudd, 102 N. Y. 372; Union Exchange Nat. Bank v. Joseph, 231 N. Y. 250; Daimouth v. Bennett, 15 Barb. 541.) III. Tbe exception to tbe rule that no cause of action can arise from an illegal transaction — which exception is said to permit recovery by a principal from bis agent of moneys entrusted to tbe agent for an illegal purpose but not yet expended by tbe agent for that purpose — is not recognized in this State, and, in any event, is not applicable to this case. {Yates v. Foot, 12 Johns. 1; Staples v. Gould, 9 N. Y. 520; Leonard v. Poole, 114 N. Y. 371; Kearney v. Webb, 278 Ill. 17; Smith v. Blachley, 188 Pa. 550; Haynes v. Rudd, 102 N. Y. 372; Union Exchange Nat. Bank v. Joseph, 231 N. Y. 250; Daimouth v. Bennett, 15 Barb. 541; Baldwin v. Potter, 46 Yt. 42; Rolfe v. Delmar, 30 Robt. 80; Negley v. Devlin, 12 Abb. Prac. [N. S.] 210; De Oroot v. Van Duser, 20 Wend. 390; Holmcm v. Johnson, Cowp. 343.)

      Leo Gittin for respondent.
    Defendant in Ms counterclaim properly demands that plaintiffs, bis agents, retnrn bis fnnds beld by plaintiffs regardless of illegality of tbe proposed transaction. (Leonard v. Poole, 114 T. 371; Murray v. Vanderbilt, 39 Barb. 140; Morgan v. Groff, 4 Barb. 524; Gilbert v. American Sur. Go., 121 F. 499; Kearney v. Webb, 278 Ill.'17; Evans v. City of Trenton, 24 N. J. L, 764; Norton v. Blink, 39 Obio St. 145; Smith v. Blachley, 188 Pa. 550; School Dist. No. 39 v. Casey, 243 Ill. App. 434.) '
   Desmond, J.

Tbe snit is by a broker or agent for bis commissions earned in arranging a sale by defendant, who is a jobber of clotbing, to tbe French Purchasing Mission,, in New York City, in 1946. However, tbe sole question here is as to tbe sufficiency of two counterclaims. For present purposes, those counterclaims may be treated as one, since each alleges these same things: that defendant (vendor) agreed to pay, and did pay to plaintiff (broker) certain sums, on plaintiff’s agreement that be would divide those sums with an employee or representative of tbe French Supply Council (vendee), but that plaintiff paid to that French representative part only of the latter’s agreed share, wherefore defendant in these counterclaims, sues for return of the part so assigned to the French representative but not paid to Mm. The question of law is aptly stated in appellants’ brief thus (p. 2): “ May a seller of goods, who has agreed with his broker that the broker shall divide his commissions with tbe buyer’s purchasing agent and has paid tbe broker moneys intended to be so divided, recover back from the broker a portion of such moneys intended to be paid to the buyer’s purchasing agent but not yet so paid? ” Both courts below answered that question in the affirmative. We answer it in the negative.

These counterclaims plainly allege a conspiracy (see Penal Law, § 580) to violate section 439 of the Penal Law, which makes it a misdemeanor to give or offer such a commission or bonus to a purchasing agent. The contract or arrangement between plaintiff and defendant was thus illegal, criminal and unenforcible (see Sirkin v. Fourteenth St. Store, 124 App. Div. 384). It is the settled law of this State (and probably of every other State) that a party to an illegal contract cannot ask a conrt of law to help him carry out his illegal object, nor can snch a person plead or prove in any conrt a case in which he, as a basis for his claim, mnst show forth his illegal purpose (Reiner v. North Amer. Newspaper Alliance, 259 N. Y. 250; Municipal Metallic Bed Mfg. Corp. v. Dobbs, 253 N. Y. 313, 316; Morgan Munitions Corp. v. Studebaker Corp., 226 N. Y. 94; Flegenheimer v. Brogan, 284 N. Y. 268; Carmine v. Murphy, 285 N. Y. 413; Furman v. Furman, 287 N. Y. 772; Baksi v. Wallman, 297 N. Y. 456). For no conrt should he required to serve as paymaster of the wages of crime, or referee between thieves. Therefore, the law ‘ will not extend its aid to either of the parties ’ ’ or listen to their complaints against each other, hut will leave them where their own acts have placed them ” (Schermerhorn v. Talman, 14 N. Y. 93, 141). Conforming to that settled rule, this conrt and its predecessor have several times held that when an agent receives money to he spent for illegal purposes, his principal may not recover hack so much of that money as the agent has failed so to spend, particularly when the illegal purpose has been partly or wholly attained and a part of the money expended, therefor (Perkins v. Savage, 15 Wend. 412; Staples v. Gould, 9 N. Y. 520, 522; Leonard v. Poole, 114 N. Y. 371, 378). Both Staples v. Gould (supra) and Leonard v. People (supra), say that a broker or agent who knowingly participates in a criminal scheme is a principal, and in pari delicto with the one who employs him, so that neither may sue the other. Such is the New York law and it disposes of this case. Insofar as the Restatement of the Law of Agency (§ 412) is to the contrary, we do not concur in it.

We point out that we are passing on the precise question here involved, and no other. This is not a case where a mere agent or depository, receiving money for his principal, refuses to pay it over, on the ground that it was the fruit of an illegal contract between his principal and another (see Murray v. Vanderbilt, 39 Barb. 140, 152; Merritt v. Millard, 4 Keyes 208; Woodworth v. Bennett, 43 N. Y. 273, 276; and the reference to such a situation, by way of dictum, in Leonard v. Poole, supra, 114 N. Y. at p. 379). Nor are we deciding what the result would he had this defendant repented of his wrong, and demanded back Ms money, before any attempt had been made by plaintiff to bribe the purchasing agent (see Morgan v. Groff, 4 Barb. 524; Spring Co. v. Knowlton, 103 U. S. 49, 59; Schley v. Andrews, 225 N. Y. 110, 114).

The orders should be reversed, with costs in all courts, each certified question answered in the negative, and the motion to dismiss granted as to both the first and second counterclaims in the amended answer.

LougheaN, Ch. J., Lewis, CoNway, Dye and Fuld, JJ., concur.

Orders reversed, etc.


source: Caselaw Access Project

author: Fuld, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v. Craig J. Nelson, Respondent.
    Argued October 8, 1948;
    decided November 24, 1948.

      Daniel J. O’Mara, District Attorney (Harry L. Rosenthal of counsel), for appellant.
    I. The City Court, Criminal Branch, retained jurisdiction of the charge of leaving the scene of an accident in violation of subdivision 5-a of section 70 of the Vehicle and Traffic Law and no authority existed for the consideration of that charge before the grand jury hearing evidence of the charge of criminal negligence resulting in the death of an individual in violation of section 1053-a of the Penal Law. (Charter of City of Rochester, §§ 474, 479.) II. Section 270 of the Code of Criminal Procedure is not applicable as there had been no dismissal of the charge of leaving the scene of an accident. (People v. Sebring, 14 Mise. 31; People v. Kelly, 140 Mise. 377; People ex rel. Eirschberg v. Orange County Court, 271 N. T. 151.)

      George J. Slcivington for respondent.
    I. The grand jury had jurisdiction to inquire into and to indict on this misdemeanor charge. (People v. McCarthy, 168 N. Y. 549; Code Crim. Pro.,

   Fuld, J.

A pedestrian was struck and killed by a hit-and-run driver crossing a street in Eochester. Police investigation led to defendant as the operator of the automobile. After he admitted that he had driven the car and had failed report the incident, he was arrested and charged with two separate and distinct crimes — the felony of criminal negligence, in that he operated his automobile “ in a reckless or culpably negligent manner ” whereby a person was killed (Penal Law, § 1053-a), and the misdemeanor of leaving the scene of an accident (Vehicle and Traffic Law, § 70, subd. 5-a). Separate informations were filed against him in the City Court of the City of Eochester. Arraigned upon both charges on December 5, 1947, defendant appeared with his attorney and pleaded not guilty to each of them. Trial on the misdemeanor and a hearing on the felony — as to which the city court had jurisdiction to determine only whether defendant should be held for action by a grand jury — were adjourned to December 17, 1947, and on that day to January 21, 1948.

In the meantime, witnesses were called before the grand jury of Monroe County, and they gave evidence as to defendant’s driving his car at about the time the accident occurred, as to his hitting the victim, as to his departing the scene without reporting the occurrence,- and as to his admissions. At his own request and after having signed a waiver of immunity solely in connection with the charge of criminal negligence, defendant himself went before the grand jury.

On the day to which the adjournment had been taken in the city court, the district attorney, advising that the grand jury had reported a “ ‘ No Bill ’ on the felony charge ”, suggested dismissal of the information accusing defendant of that crime;, that application was, of course, granted. When, however, the prosecutor announced that the People were ready to proceed with the trial of the misdemeanor of leaving the scene of an accident, defendant moved to dismiss that charge as well; he contended that it also had been presented to the grand jury and had likewise been dismissed and that, as a result thereof, no further prosecution could be had in the absence of the order called for by section 270 of the Code of Criminal Procedure. That section provides that “ The dismissal of the charge, whether it be a felony or misdemeanor, does not ⅝ ⅝ * prevent its being again submitted to a grand jury or its being prosecuted in a court of special sessions, .police court or city court, having jurisdiction to try and determine such charge, if the county judge of the county or justice of the supreme court so directs. But without such direction, it cannot be again submitted or further prosecuted.”

The city court judge heard all the witnesses and then, at the conclusion of the entire case — noting that the same witnesses testified before him as had appeared before the grand jury and that the substance of their testimony was practically the same” — agreed with the position urged by defendant and granted his motion to dismiss the information. On appeal to the county court, the order of dismissal was affirmed.

Decision herein necessarily turns upon whether the misdemeanor charge of leaving the scene of an accident was dismissed by the grand jury. If — as the People contend — the grand jury, because of a provision contained in the Rochester City Charter, lacked jurisdiction to inquire into or indict for the misdemeanor, then there could have been neither presentation nor dismissal of the charge. The view which we take, however, renders determination of that question unnecessary, for the record plainly establishes that, in point of fact, the grand jury neither considered nor disposed of the misdemeanor charge.

Of no consequence here is the circumstance that the grand jury heard evidence which might have supported the misdemeanor accusation. Testimony there was relating to defendant’s conduct after the accident but unquestionably that was adduced simply to round out the picture of the events surrounding the fatal mishap, perhaps in an effort to bolster proof of defendant’s guilt of criminal negligence by proving that he fled the scene. Except for the coincidence that they allegedly occurred in swift succession, the felony and misdemeanor charges are completely distinct; they require proof of entirely different facts and the application of wholly different rules of law. Certainly, leaving the scene of an accident is not in any sense included in the crime of felonious criminal negligence, and it cannot he said that, because the grand jury, in considering the felony charge, heard evidence hearing on defendant’s actions at the time and place of the alleged misdemeanor, it necessarily considered that crime.

Before a grand jury may he said to have acted upon a charge, there must be some indication that it knew about and considered the charge. Not only is there nothing in the record before us so indicating, but everything points the contrary conclusion. The district attorney expressly declared — in advising.the city court “ There is ‘ No Bill"’ on the felony charge ’’ — that the misdemeanor charge had not been presented to the jury. In addition, while the information relating to the felony bears the indorsement “ ‘ No Bill ’ ”, the misdemeanor accusation has no similar notation. By the same token, though the record card of the city court lists the ‘ ‘ DispositioN ’ ’ of the criminal negligence charge as “ No Bill Jan. 1948 ” grand jury, the “ Disposition ” of the charge of leaving the scene shows only adjournments up to the date of its dismissal, on defendant’s motion. Finally, and of the utmost significance, in requesting the opportunity to appear before the grand jury and testify “ concerning the matters there under investigation ”, defendant signed a waiver of immunity wherein it was explicitly recited that the grand jury was conducting only “ a criminal proceeding in which evidence has been given * tending to connect me' with the crime of Criminal Negligence there was not a word or suggestion about the other crime.

In short, entirely lacking in the case is the essential showing that the gr'and jury dismissed the charge of leaving the scene of an accident or, indeed, that it even considered such an accusation.

The orders should be reversed and a new trial ordered.

Loughran, Ch. J., Lewis, Conway, Desmond and Dye, JJ., concur.

Orders reversed, etc.


author: Per Curiam.

text:
    In the Matter of The Container Co., Respondent. Edward Corsi, as Industrial Commissioner of the State of New York, Appellant.
    Argued October 12, 1948;
    decided November 24, 1948.

      Nathaniel L. Goldstein, Attorney-General (Francis B. Curran and Wendell P. Brown of counsel), for appellant.
    I. The Industrial Commissioner properly denied the application for a refund since the interest and penalties were not “ erroneously collected.” (Matter of Fox Lane Corp. v. Loughman, 225 App. Div. 417; Matter of Gramott Corp. v. Graves, 255 App. Div. 255, 280 N. Y. 588; People ex rel. Westbrook-Buff alo, Inc., v. State Tax Comm., 257 App. Div. 705; Matter of Siegel, 262 App. Div. 789.) II. Section 578 of the Unemployment Insurance Law, effective March 22, 1946, does not authorize the refunding of interest or penalties lawfully assessed and .collected prior to the effective date of that amendment. (Orinoco Realty Co. v. Bandler, 233 N. Y. 24; Matter of Gramott Corp. v. Graves, 255 App. Div. 255, 280 N. Y. 588; People ex rel. Westbrook-Buff alo, Inc., v. State Tax Comm., 257 App. Div. 705.)

      Hugh P. Mullen and Mark F. Hughes for respondent.
    I. Section 578 and subdivision 6 of section 570 of the Unemployment Insurance Law should be liberally construed in favor of respondent. (Matter of Hamlin, 226 N. Y. 407; Cahill v. Wissner, 183 App. Div. 659.) II. Section 578 of the Unemployment Insurance Law is retroactive. (People ex rel. American Bible Soc. v. Commissioners, 142 N. Y. 348; People ex rel. Eckerson v. Board of Education, 126 App. Div. 414,193 N. Y. 60; People ex rel. Huntington v. Crennan, 141 N. Y. 239; People ex rel. Pells v. Supervisors of Ulster Co., 65 N. Y. 300; People ex rel. Collms v. Spicer, 99 N. Y. 225.) III. The interest and penalties were “ erroneously collected.” (People ex rel. Lucey v. Molloy, 35 App. Div. 136,161 N. Y. 621; Matter of Maricm Lodge No. 926 F. & A. M., 178 Mise. 219; People ex rel. American & Foreign Marine Ins. Co. v. Sohmer, 163 App. Div. 778, 213 N. Y. 658.) IV. The Legislature intended that employers in the respondent’s position should receive a refund. (Matter of 320 West 37th St., Inc., v. McGoldrick, 281 N. Y. 132; People ex rel. Equitable Holding Corp. v. Graves, 263 App. Div. 468.)
   Per Curiam.

By leave of this court, the State Industrial Commissioner appeals from an affirmance by the Appellate Division of a decision of the State Unemployment Insurance Appeal Board awarding to the corporate employer-respondent a refund of interest and penalties paid by it under an assessment levied pursuant to section 572 of the Unemployment Insurance Law. (Labor Law, art.

The interest and penalties in question concededly were owing when payment thereof was made in 1945. Effective March 22, 1946, the Unemployment Insurance Law was amended by the addition thereto of section 578 which declares nonliability for penalty or interest of employers who failed to discharge their obligations under our statute “ because of the bona fide belief that all or some of their employees are covered under the unemployment insurance laws of other states or of the United States, provided they paid pursuant to such laws the contributions required thereunder on all wages of all such employees. ’ ’ If this amendment is to be applied retroactively — as the appeal board and the Appellate Division held — the employer-respondent is concededly entitled to the refund demanded by it.

“ The general rule is that statutes are to be construed as prospective only ⅝ * *. It takes a clear expression of the legislative purpose to justify a retroactive application ” (Jacobus v. Colgate, 217 N. Y. 235, 240). The employer-respondent would have us find such an expression in the circumstance that the above amendment of the Unemployment Insurance Law speaks in the past ténse of contributions “ paid ” under unemployment insurance laws of other States or of the United States. We think this point is without substance. Statutes authorizing refunds ordinarily refer to past and not to future events. There is nothing in the text of the amendment in question to take it out of the general rule which requires statutes to be construed as prospective only.

The order of the Appellate Division and the decision of the Unemployment Insurance Appeal Board should be reversed, and the decision of the State Industrial Commissioner reinstated, with costs to the commissioner in this court and in the Appellate Division.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ., concur.

Ordered accordingly.


author: DesmoND, J.

text:
    Jarvis Towing & Transportation Corporation et al., Respondents, Insurance Company et al., Appellants.
    Argued October 12, 1948;
    decided November 24, 1948.

      Henry J. Bogatko and William M. Keegan for appellants.
    I. Defendants’ insurance policy contained an express warranty that the plaintiffs would employ a competent watchman who would make frequent inspection of the bilges of the vessel, etc. No such watchman was provided. (Gary v. Home Ins. Go., 199 App. Div. 122, 235 N. Y. 296; Shamrock Towing Go. v. American Ins. Go., 9 F. 2d 57; Ripley v. Aetna Ins. Go., 30 N. Y. 136; United States Gypsum Go. v. Insurance Go. of North America, 19 P. Supp. 767; First Nat. Bank v. Insurance Go. of North America, 50 N. Y. 45; Levine v. Aetna Ins. Go., 139 P. 2d 217; Kentucky Vermillion Mining & Concentrating Go. v. Norwich Union Fire Ins. Soc., 146 P. 695; Craig v. United States Ins. Go., Fed. Cas. No. 3340; Shuster v. National Sur. Co., 256 N. Y. 150; Aetna Ins. Go. v. Houston Oil & Transport Co., 49 P. 2d 121; Manheim Ins. Go. v. Tyner, 142 Ky. 22.) II. Any contention that the presence on board of a competent engineer even though not a watchman was sufficient to prevent any casualty and therefore a compliance with the warranty is untenable for the reason that it is immaterial whether there is any causal connection between the breach of warranty and the cause of the loss. (Ripley v. Aetna Ins. Go., 30 N. Y. 136; United States Gypsum Co. v. Insurance Go. of North America, 19 P. Supp. 767.) III. Respondents are in error in arguing that the engineer was a watchman. No watchman as required by the warranty was provided by the plaintiffs. (First Nat. Bank v. Insurance Go. of North America, 50 N. Y. 45.) IV. The employees of the Oceanic Service Corporation did no more than look at the tug which clearly was not a compliance with the warranty.

      Joseph K. Inness for respondents.
    It is apparent from a reading of the warranty that it is vague, indefinite and ambiguous. It leaves to the plaintiffs the obligation of determining what are “ careful examinations ” of the tug, what are “ frequent intervals ” and what constitutes a “ competent ” watchman. Under such circumstances, the policy of insurance, having-been drawn by the defendants, should be strictly construed against them. (Aetna Ins. Go. v. Sapramento-Stockton S. S. Co., 273 P. 55; National Bank v. Insurance Go., 95 U. S. 673; Thompson v. Phenix Ins. Go., 136 U. S. 287; Shamrock Towing Co. v. American Ins. Go., 9 P. 2d 57.)
   DesmoND, J.

Plaintiffs (two affiliated corporations which we shall call “ plaintiff ”) were respectively, the actual owner and the demise^ charterer or “ chartered owner ” of the tug American Eagle, and, as such, brought this action to recover upon a marine hull insurance policy issued to them by defendants. The tug had sustained damage, from one of the perils insured against, when, while tied up for the night at a Brooklyn pier, in January, 1945, one of her stern planks was stove in by floating ice. The sole question is as to whether or not plaintiff proved compliance with this part of the policy: Warranted bt the assured that when this vessel is tied up or moored, it shall at all times be in charge of a competent watchman in the employ of the Assured, who shall make careful examination of the vessel throughout at frequent intervals, including inspection of the bilges.” On the trial there was a jury verdict for plaintiff, judgment thereon being affirmed unanimously by the Appellate Division, whereupon we granted defendant leave to appeal to this court.

It is undisputed, and the trial court correctly instructed the jury, that the provision above quoted is express promissory warranty, which must be literally complied with, and that noncompliance forbids recovery, regardless of whether the omission had causal relation to the loss (Ripley v. Aetna Ins. Co., 30 N. Y. 136; First Nat. Bank of Ballston Spa v. Insurance Co. of North America, 50 N. Y. 45; Cary v. Home Ins. Co., 199 App. Div. 122, affd. 235 296; Snyder v. Home Ins. Co., 133 F. 848, affd. 148 F. 1021; Shamrock Towing Co. v. American Ins. Co., 9 F. 2d 57, 60).

Plaintiff’s testimony, accepted by the jury, shows that the tug had tied up at one of the several piers which make up plaintiff’s Brooklyn terminal, late in the afternoon preceding the disaster. After the mooring, banking of fires and pumping of bilges had been attended to, as was usual every afternoon, the master and the fireman departed, leaving engineer Thomas, who customarily slept on board. Thomas was not instructed to, or expected to, act as a night watchman but was permitted to sleep on the tug. He left early in the evening to go to dinner and a theatre, returning about 10:00 p.m., at which time he looked at the lines, the boiler and the bilges, found everything in order, and then went to bed. When he awoke at 3:45 a.m., the tug was sinking.

Plaintiff had a contract or arrangement with Oceanic Service Company, a so-called “ watching concern ”, by the terms of which the day supervisor ”, and the “ night supervisor ” of that company were to keep plaintiff’s tug under observation at all times during their respective tours of duty and to see that there was always steam up. Oceanic Service Company, with a considerable force of patrolmen, furnished police and watchman service for the piers at one of which the American Eagle tied up every afternoon after her day’s work. The patrolmen had no duties in connection with watching the tug, but their supervisors, one during the day and the other at night, were stationed, or made their rounds, at points where the tug was in plain view nearby. Both supervisors testified that the tug when tied up, was at all times in full view of the supervisor on duty. But there is no testimony that these supervisors were ever instructed to go on board the tug for inspection purposes or that they were under orders to do anything more than keep the vessel in sight and notify plaintiff or notify engineer Thomas, if anything seemed amiss. When engineer Thomas went ashore on the evening before the sinking, he notified the day supervisor of his departure, and the day supervisor communicated the fact to the night supervisor when the latter reported for duty.that night.

On the proof above summarized, we are to determine whether there was full and literal compliance with each of the several demands of the warranty, which, for convenience, we divide into two groups, as follows:

1. Whenever tied up or moored, the trig was to he in charge of a competent watchman, in the employ of the assured.

2. The watchman was to make careful examination of the vessel throughout at frequent intervals, including inspection of the bilges.

Without further discussion, we assume that requirement No. 1 above was met (see Aetna Ins. Co. v. Houston Oil & Transport Co., 49 F. 2d 121, 124, certiorari denied 284 U. S. 628). Not so, however, with No. 2. That part of the warranty promised that the watchman in charge would make frequent examinations of the vessel, throughout and including the bilges. But on neither of these supervisors had there been put by plaintiff any duty of boarding the vessel, much less looking into the bilges. To examine “ throughout ” means to examine every part, a meaning which is inescapable here because of the express reference to inspection of the bilges. A “ throughout ” examination, including an actual inspection of the bilges, could not be carried out by a supervisor who merely looked at the tug from his vantage point on the pier. Witness Kelly, in charge of these matters for plaintiff, testified that supervisors Donlin and Buckley were the watchmen. But all of the proof shows that these men never were hired or instructed to make “ throughout ” examinations or bilge inspections, and that they never did make any. Nor does it help plaintiff if we add engineer Thomas’ activities to those of the supervisors. The same witness Kelly told the jury that engineer Thomas was not supposed to be the watchman, and not supposed to keep watch. That in itself was enough to eliminate Thomas from consideration as a watchman within the policy terms (see First Nat. Bank of Ballston Spa v. Insurance Co. of North America, supra, 50 N. Y. at pp. 48-49). But the plain fact here is that, when the tug was tied up, Thomas did not maintain any regular watch, or make “ careful examination of the vessel throughout at frequent intervals, including inspection of the bilges ”, nor did anyone else do so. “ The only question in such cases is whether the thing warranted to be performed was or was not performed ” (Shamrock Towing Co. v. American Ins. Co., supra, 9 F. 2d at p. 60). Here the warranty was not complied with, and so the suit must fail.

The judgments should be reversed, and the complaint dismissed, with costs in all courts.

Loughran, Ch. J., Lewis, Conway, Dye and Fuld, JJ., concur.

Judgments reversed, etc.


text:
    Argued October 21, 1948;
    decided November 24, 1948.

      Albert P. Thill and John P. Smith for appellants.
    Claimant failed to establish an occupational disease within the Workmen’s Compensation Law. (Goldberg v. 954 Marcy Corp., 276 Y. 313; Matter of Nielsen v. Fireman’s Fund Ind. Co., 239 App. Div. 239.)

      Nathaniel L. Goldstein, Attorney-General (Boy Wiedersttm and Daniel Polanshy of counsel), for Workmen’s Compensation Board, respondent.
    The disability of claimant was due to an occupational disease. (Goldberg v. 954 Marcy Corp., 276 N. Y. 313; Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470; Matter of Mason v. Y. W. C. A. of City of New York, 271 App. Div. 1042, 297 N. Y. 1037; Matter of Peloso v. D’Alessio Bros., 272 App.- Div. 984, 298 N. Y. 582; Matter of Gaites v. Society for Prevention of Cruelty to Children, 277 N. Y. 534; Matter of Wakefield v. World-Telegram, 274 N. Y. 517; Matter of Levy v. World-Telegram Corp., 285 N. Y. 533; Matter of Char-basian v. Regina Novelty Corp., 257 App. Div. 1097; Matter of Wickham v. Glenside Woolen Mills, 252 N. Y. 11; Matter of Hughes v. Trustees of St. Patrick’s Cathedral, 245 3NT. Y. 201; Matter of Lepow v. Lepow Knitting Mills, Inc., 288 N. Y. 377.)
   Fuld, J.

James Harman was one of two hundred employees working in the clean and well-ventilated tool and rig shop of the Republic Aviation Corporation. As foreman’s assistant, he was required to read blueprints, lay out work, and, in general, keep the men supplied with tasks and examine and check what they did. His duties brought him in fairly close contact with all of the men and with Rodney Humphrey in particular. Those two, doing substantially the same sort of work, had benches but a few feet apart, conferred constantly on jobs that “ would tie in together,” shared tools, and, with everybody else, talked over the same telephone, on days as often as five times, on others, not at all. In 1942, following a siege of pneumonia, Humphrey developed active pulmonary tuberculosis and shortly thereafter claimant also fell ill with it and suffered a disability. The Workmen’s Compensation Board, having found that claimant contracted the disease from Humphrey, concluded it was occupational and made an award in his favor. That determination has been affirmed by a divided Appellate Division.

The evidence is ample to support the conclusion that claimant contracted the disease from Humphrey in the course of his employment. Accordingly, we need but consider the question whether a communicable disease — which the board acknowledges would include measles or even a common cold — contracted from a fellow employee, is to be deemed an occupational disease ” and compensable under the Workmen’s Compensation Law. That question must be answered in the negative, the determination reversed. A contrary decision, approval of the award, would transform workmen’s compensation into life and health insurance. Socially desirable and appealing as such a course may be, it is one to be initiated not by the courts but by the legislature.

When the legislature, in 1920 (L. 1920, ch. 538), added article 2-A to the Workmen’s Compensation Law, it granted coverage only for “ occupational diseases,” not, as it might have, for communicable diseases or for any and all diseases arising out of and in the course of employment. Clearly, the legislature did not make compensation benefits for diseases as inclusive or as broad as those for accidental injuries. Thus, if a workman suffers an injury, lie has but to show, to qualify for an award, that his injury arose “ out of and in the course of employment ” (§2, subd. 7). If, however, an employee is disabled by disease, he must go further and prove that his disablement was the result of an “ occupational ” disease (§3, subd. 2). We draw from this the obvious conclusion that the legislators envisaged and intended a coverage for diseases less comprehensive, less inclusive, than the coverage for injuries.

The statute itself furnishes additional confirmation. The provision entitled occupational diseases ” lists twenty-seven types of diseases in one column and, opposite each, an industrial process or áctivity of which the disease is commonly a by-product (§ 3, subd. 2). Such a listing, such a compilation, of the diseases and of the industrial operations likely to induce them, demonstrates that the Workmen’s Compensation Law was not designed to cover all diseases suffered by an employee in the course of his work.

As the statute reads, then, the disease is not covered unless it is occupational ”, and the word “ occupational ”, subjected to careful consideration, has taken on well-defined meaning. An ailment does not become an occupational disease simply because it is contracted on the employer’s premises. It must be one which is commonly regarded as natural to, inhering in, an incident and concomitant of, the work in question. There must be a recognizable link between the disease and some distinctive feature of the claimant’s job, common to all jobs of that sort. As this court observed in Matter of Goldberg v. 954 Marey Corp. (276 N. Y. 313, 318-319), an occupational disease is one “ which results from the nature of the employment, and by nature is meant ⅝ * * conditions to which all employees of a class are subject, and which produce the disease as a natural incident of a particular occupation, and attach to that occupation a hazard which distinguishes it from the usual run of occupations and is in excess of the hazard attending employment in general.” In similar fashion, the courts of other States have insisted .that the disease is not to be deemed occupational if the illness results from unexpected and unforeseen conditions of a job which, by its nature, is no more likely to cause the disease than any other kind of employment. (See, e.g., Madeo v. Dibner & Brother, 121 Conn. 664, 667; see, also, Grain Handling Co. v. Sweeney, 102 F. 2d 464; Sullivan Mining Co. v. Aschenbach, 33 F. 2d 1; Industrial Comm. of Ohio v. Roth, 98 Ohio St. 34; Seattle Can Co. v. Department of Labor & Industries, 147 Wash. 303.) In short — to borrow from a typical opinion — to he occupational the disease must he one “ dne wholly to canses and conditions which are normal and constantly present and characteristic of the particular occupation; that is, those things which science and industry have not yet learned how to eliminate. Every worker in every plant of the same industry is alike constantly exposed to the danger of contracting a particular occupational disease. ’ ’ (Seattle Can Co. v. Department of Labor & Industries, supra, at p. 309.)

Quite obviously, claimant’s ailment is not an occupational disease within the accepted definitions. In no sense can it be said that tuberculosis was “ the natural and unavoidable result of the conditions of the employment ’ ’ in which he was engaged. (Cf. Barrencotto v. Cocker Saw Co., 266 N. Y. 139, 143; see, also, Matter of Lerner v. Rump Bros., 241 N. Y. 153, 155.) Claimant’s case — contracting tuberculosis in a well-aired factory — is not at all similar to that of a diver who contracts bends, a miner stricken with silicosis, a hospital nurse infected by some communicable disease (see Matter of Hessinger v. City of New York, 264 App. Div. 802, leave to appeal denied 289 N. Y. 853; Matter of Shepardson v. Roosevelt Hosp., 271 App. Div. 760; Matter of Yearich v. Roosevelt Hosp., 264 App. Div. 961, leave to appeal denied 289 N. Y. 854; Matter of Vanore v. Mary Immaculate Hosp., 285 N. Y. 631), or that of a telephone operator disabled from tuberculosis as a result of using the same telephone as an ill fellow telephone operator. (Matter of Mason v. Y. W. C. A. of City of New York, 271 App. Div. 1042, leave to appeal denied 297 N. Y. 1037.) The last cited case, upon which the Appellate Division and the Workmen’s Compensation Board place chief reliance, presents differences most clear. We need but note that in that case the conditions to which the employee Mason was subject — continuous mouth, nose and throat contact with a close-fitting, cup-shaped, potentially germ-infested mouthpiece — were the conditions to which all telephone operators as a class were subject; those conditions constitute a hazard peculiarly a feature of such work.

Reference to the facts of two cases suffice to illumine the distinction between diseases occupational and those which are not. In the Goldberg case (276 N. Y. 313, supra), a cashier, employed to sell tickets in an outside theatre booth where an electric heater occasioned sharp temperature changes, contracted a disease which disfigured her legs and numbed and weakened her feet. Rejecting her claim that she was suffering an occupational disease, this court pointed out that there was no connection between her sickness and the nature of work performed: “ Her occupation was that of handling cash and thea-tre tickets and it is obvious that this work in and of itself .could not have caused the leg injury or disease. The ‘ disease ’ which befell her, therefore, was caused not by the nature of her employment, but by the failure of her employer to furnish her with a proper and safe place in which to work.” (276 N. Y., at p. 319.) And in Madeo v. Dibner & Brother (121 Conn. 664, supra) — which this court cited with approval in the Goldberg case — a disease brought on by the unsanitary condition of the employer’s premises, was held, for similar reasons, not to be occupational.

So in the case before us. The hazard that rendered claimant subject to the disease was Humphrey and not any condition that inhered in the nature of the employment itself. Any one, whether supervisor, laborer, factory hand or clerical worker, in any field of work, in any occupation or employment, whether factory, store or office, may contract tuberculosis, given a fellow worker already ill with that disease. No peculiarity of claimant’s job induced the disease or heightened the chance of infection ; workers in other occupations, carried on under similar conditions, would have been just as likely as claimant to fall victim to the ailment if a Humphrey were about. As thus becomes evident, claimant’s disease resulted not from the ordinary and generally recognized hazards incident to a particular employment, but rather from the general risks common to every individual regardless of the employment in which he is engaged. (See Matter of Goldberg v. 954 Marcy Corp., supra.)

The order of the Appellate Division should be reversed, with costs in this court and in the Appellate Division against the Workmen’s Compensation Board, and the claim dismissed.

Ch. J., Lewis, CoNway, DesmoND and Dye. JJ., concur.

Order reversed, etc.


author: CoNway, J.

text:
    Argued October 5, 1948;
    decided November 24, 1948.

      John J. Scully and James H. Hyer for appellant.
    I. The case was properly presented to the jury as a question of fact and the verdict of the jury was amply supported by the evidence. II. When the defendant erected the new dam, it created a condition which detracted from the safety of a traveler on the highway and, therefore, it created and maintained a nuisance. (Klepper v. Seymour House Corp., 246 N. Y. 85; Tremblay v. Harmony Mills, 171 N. Y. 598; Beck v. Garter, 68 N. Y. 283; Taylor v. City of Albany, 239 App. Div. 217, 264 N. Y. 539; Khoury v. County of Saratoga, 267 N. Y. 384.)

      Andrew J. Cook for respondent.
    No liability on the part of the defendant has been established. (Weis v. Long Island B. R. Go., 262 N. Y. 352; Conklin v. New York, Ontario & Western Ry. Co., 102 N. Y. 107; Bellinger v. New York Central R. R. Co., 23 N. Y. 42; Pierce v. New York Central R. R. Co., 260 App. Div. 295, 284 N. Y. 754; Isaac v. Town of Queensbury, 244 App. Div. 14; Bóve v. Donner-Hanna Coke Corp., 236 App. Div. 37; Oreen v. City of Mechanicville, 269 N. Y. 117; Hearst v. New York Central & Hudson River R. R. Co., 215 N. Y. 268; Bennett v. Long Island R. R. Co., 181 N. Y. 431; Sheehan v. Neio York Central R. R. Co., 254 App. Div. 386; Reiss v. Town of Pelham, 53 App. Div. 459.)
   CoNway, J.

On an evening in January, 1946, the decedent, a farmer, set out in his automobile from his home to attend a meeting at the Greenville Masonic Lodge. It was a clear night and the roads were dry. On his way he crossed the Woodstock bridge which spans Catsldll Creek and is located on the State system of highways and known as Route No. 32. (See Highway Law, §§ 230, 340, 341, subd. 19.) The bridge at that time was dry. At the conclusion of the meeting, some of those who had been present commenced the return journey to Athens in three automobiles. The decedent drove the second one. About seven or eight miles from Greenville, the automobiles approached again the Woodstock bridge. The driver of the first automobile, one Haeussler, slowed down as he approached. As he went upon the bridge, his car skidded on the ice and swerved from left to right, but he was able to pull out of the skid and to proceed. Decedent in the second car also slowed down. As his automobile went upon the bridge, it went into a skid, turned sideways at a severe angle and as it came off the bridge and reached dry ground, it rolled over and the decedent was killed.

Occupants from the automobiles testified that at the time of the accident the bridge was covered with a sheet or ‘‘ glaze ’ ’ of ice, caused by the freezing of spray and mist produced by the operation and maintenance of a dam by the defendant and that mist and spray were in the air at the time. A State highway employee, who was called to the scene to sand the highway after the accident, and one Bishop, who lived in the vicinity and happened to be passing by, also testified as to the ice formation on the bridge and the mist and spray in the air from the dam at the time of the accident. There was also ice from the mist and spray upon one or both of the approaches of the bridge.

Both the dam of the defendant, as presently constructed, and the highway bridge replaced older and similar structures, although the highway system antedated, of course, the dam. 1906, when the present dam was built by the predecessors of defendant, it replaced a wooden dam which had been ten feet lower and had been farther away from the bridge. It was then constructed as a reinforced concrete structure of a patented type known as an Amburson dam. At that time the highway bridge was of iron truss construction with a wood planking floor. Subsequent to 1906, mist and spray from the present dam fell upon that bridge, but ice did not then form upon it as it now does on the present bridge, construction of which occurred in 1929 and 1930. The new bridge occupied approximately the same position as the old one — the axis was the same but. one end was shifted seven feet nearer the dam and consequently the other end was an equal distance farther away from the dam. The bridge is of steel with a concrete roadway, 161.5 feet long and 22 feet wide. The dam is adjacent to the bridge with its south end 98 feet from the bridge and with its north end 289 feet from the north end of the bridge. The width of the spillway across the top of the dam is 146 feet and the drop of the water Over the spillway to the base of the dam is 25 feet. The top of the spillway, over which the water flows, is 1.7 feet higher than the roadway of the bridge. From the spillway the water drops and strikes an ‘ ‘ apron ” — a ledge extending downward and outward.

It is not disputed that the fall of the water over the dam causes mist and spray to rise in the vicinity of the bridge. This mist and spray settles upon the bridge and its approaches and, when the temperature is low, forms ice thereon. Thus, at times, there will be ice on the bridge when the surrounding roads and highways are clear of ice. It is not seriously disputed that the dam as presently maintained is dangerous because of the spray therefrom which, at times, freezes upon the bridge. Defendant takes the position that the blame for that condition is upon the State highway authorities. Thus, defendant argues: “ So, in the instant case, the dam was dangerous only when the bridge was not sanded by the highway authorities ’ ’ and urges that the proximate cause of the nuisance was the independent action or omission of a third party over whom the defendant had no control. Defendant contends that “ the undisputed proof is that the dam was no source of danger to anyone prior to 1929. It was the action of the state highway authorities, of that year, in replacing the old bridge by a new one, of colder road surface, that created the icy condition which caused the accident in question. Also ⅜ ⅜ * this was an action which the defendant was £ legally powerless to prevent, and which it was without authority to supervise and ”

The action here is brought by decedent’s widow as adminis-tratrix to recover damages for his wrongful death. Her complaint alleges in substance that the maintenance of the dam by defendant in such close proximity to the bridge and under such circumstances that spray fell and formed ice upon the bridge and highway, constituted a nuisance which caused the death of her husband. The complaint states a cause of action. In Khoury v. County of Saratoga (267 N. Y. 384), the local governmental authorities built and maintained a bridge near a natural waterfall. The county was held to be liable to plaintiffs who sustained injury when the automobile in which they were riding skidded on ice formed on the bridge by spray from the falls. We said (pp. 389-390): “ * ⅜ ⅞ The continued gathering of ice from spray, not rain or snow, so that this was the only dangerous spot on the highway, was a condition the authorities had faced for some years and had done nothing about it. That it was dangerous to the public at such times is evident and amply proved. Was it a public nuisance¶ This was a question of fact for the court or jury.” (Emphasis supplied.) The trial court submitted the instant case to a jury upon this basis and there were no exceptions to the charge and no requests to charge were made. Thus, if a prima facie case was established there must be a new trial.

We return now to the contention of the defendant that it 'was the action of the State highway authorities in replacing the old bridge with a new one, which defendant was without power to prevent, to supervise or to direct, that created the icy condition which resulted in the accident. We find that position untenable.

In the first place, it is the continuing duty of the defendant so to operate its dam that it does not make dangerous or obstruct the public highway of which the bridge is a part. It is one of the fundamental principles of the common law that no private interference with or purpresture in or upon the public highway will be tolerated. The continuing duty is placed upon abutting and adjacent landowners so to use their property as not to impair the free and safe passage of the road. The defendant in the instant case has here been found to have violated that duty by maintaining its dam in such a way that spray therefrom forms ice upon the bridge and the approaches thereto and creates a dangerous condition for users of the highway. It matters not if the dam, when it was originally constructed, was not as dangerous as it is now or that the action of the State in building a new bridge has increased the danger. Nor would it matter if the dam, when it was originally constructed had been no source of danger to persons using the adjacent highway. Even if we assume arguendo that the defendant’s dam at the time of its erection was not dangerous in relation to the highway, it may have become dangerous by reason of the changing circumstances in the development of the locality. The right and duty of the State to improve the public highway may not be questioned, and, with the advent of motor cars and trucks, such improvements obviously became a vital and imperative necessity for the people of the State. No adjacent or abutting owner by building a dam with or without the approval of a State agency may fix as of that time, for all time, the method of constructing State highways and bridges adjacent thereto. In the instant case, the substitution of a steel bridge with a concrete deck for an iron truss bridge with wood plank flooring was without doubt in response to the growing need and demand of the users of the public highway. The defendant had always been under the duty t© maintain its dam in such a manner that it would not interfere with or endanger safe passage on the adjacent highway. It was not permanently relieved of that duty by the construction of the new highway bridge. After 1930, defendant’s duty had to be discharged in the light of the changed conditions. No landowner may expect the area surrounding his property to remain in a static condition. Times change and responsibilities change with them. The extent of defendant’s duty increased with the development of the community, but the duty itself was always present and may not be shifted to the State.

inadequate or dangerous no act or default on the part of the railroad, hut through the action of the State in widening the road. We held that the burden upon the defendant to maintain useful and safe overpass under the Eailroad Law “ is a continuing duty of restoration, maintenance and care and within limits requires railroad corporations to make such alterations of their highway appurtenances as from time to time become necessary to the public safety and convenience in keeping with regional developments and growth of traffic.” (P. 61, emphasis supplied.) The same continuing duty is upon the defendant in the instant case by common law.

In the second place, the evidence upon which the defendant bases its conclusion that the dam was not dangerous prior to 1929, is slim. The only testimony on the point was given by defendant’s witness, Wilsey, as follows:

“ Q. Now on those occasions when there was freezing weather arid there was spray and mist from the stream and falls, did you ever see any ice on the floor of the bridge? A. Not as I recall, no.

Q. Now after this bridge [the old bridge] was removed and the new bridge was constructed there did you have occasion to cross that? A. Oh, yes.

“ Q. How often? A. Well, the same, maybe about two, three times a day.

‘ ‘ Q. And did you observe whether or not in cold weather during freezing weather there would be ice upon the bridge ? A. Oh. yes.

“ Q. There would be from the spray that arose from th« stream and falls, is that right? A. Yes.

“ Q. You didn’t see that condition before the new brid.ae# A. No.

“ Q. And mist? A. Yes.

“ Q. And you have seen it form ice upon the floor of tb« bridge, is that right? A. Yes.” (Emphasis supplied.)

The defendant proceeds from the fact that Wilsey did not see ice form on the old bridge to the inferred fact that the structure and location of the old bridge were such that the spray and mist from the dam did not freeze thereon. We doubt that such testimony on behalf of defendant, standing alone, is sufficient to support such an inference, even though the testimony is uncon-tradicted. There is no proof that ice would form less readily upon a wood planking floor than on a concrete floor, but the defendant assumes that to be the case. Moreover, there was evidence that the spray and mist from the dam formed ice upon the highway off the bridge as well as upon the highway on the bridge itself. The dangerous condition that existed because of this ice upon the highway off the bridge must obviously have existed even before the present bridge was constructed in 1929-1930. Ice upon the highway off the bridge is just as dangerous and just as great a nuisance as ice upon the highway on the bridge. The defendant cannot shift the responsibility to another for its conduct in depositing freezing spray and mist on the highway off the bridge, since that violation of its duty is clear, irrespective of the bridge’s location and mode of construction.

The defendant also contends that its dam is authorised by governmental authority, in its present location, and cannot, without proof of negligence, be deemed a public nuisance. It is a sufficient answer to this contention that the record nowhere indicates that defendant’s dam was ever inspected or approved by any governmental authority, that its plans and specifications were ever submitted such approval, or that it has received specific authorization to locate the dam in that particular position or to raise it. However, even if the dam and its site had been so approved, the defendant company would not be relieved thereby of liability for maintaining a public nuisance. (McGettigan v. New York Central R. R. Co., 268 N. Y. 66.) There, the plaintiffs were injured when their automobile struck the base of a signal apparatus which the defendant had placed in the center of the road adjacent to its railroad tracks at a grade crossing. The defense was that the particular position and structure of the signal had been authorized and approved by an order of the Public Service Commission. We held the defendant liable, saying (p. 71): “ The problem, it may be observed again, is to settle by construction the limits of the orders of the Public Service Commission. The doctrine that what the law specially sane-tions cannot itself be wrongful been narrowly applied in this court: ‘ We need not discuss the cases, or consider how broadly the doctrine should be permitted to operate, since one condition or limitation has been firmly grafted upon it, which raises the final and ultimate question in the case before us. That limitation is that the authority which will thus shelter an actual nuisance must be express, or a clear and unquestionable implication from powers conferred, should be certain and unambiguous, and such as to show that the legislature must have contemplated the doing of the very act in question.-’ (Hill v. Mayor of City of New York, 139 N. Y. 495, 501, 502.) . (See 1 Street on The Foundations of Legal Liability, pp. 41-45.) ”

The judgments of the Appellate Division should be reversed and a new trial granted, with costs to the appellant to abide the event.

Lewis, DesmoNd, Dye and Fuld, JJ., concur; LougheaN, Ch. J., taking no part.

Judgments reversed, etc.


author: LougheaN, Ch. J.

text:
    The People of the State of New York, Appellant, v. Peter E. Potskowski, Pasquale M. Capuano and Carl H. LaDue, Respondents.
    Argued October 4, 1948;
    decided December 2, 1948.

      Daniel T. Manning, District Attorney (Harold B. Soden of counsel), for appellant.
    I. The crime of assault, second degree, was proven beyond a reasonable doubt. (People v. Tomlins, 213 N. Y. 240; People v. Fransone, 211 N. Y. 284; People v. Taylor, 177 N. Y. 237; People v. Bosino, 168 App. Div. 920; People v. Kennedy, 159 N. Y. 346; People v. Constantino, 153 N. Y. 24; People v. Johnson, 139 N. Y. 358; People v. Martin, 77 App. Div. 396, 175 N. Y. 315.) II. Defendants Potskowski and Capuano committed the crime of assault in the second degree. (People v. Bytel, 284 N. Y. 242.) III. Defendant LaDue committed the crime of assault in the second degree. (People v. Martin, 77 App. Div. 396, 175 N. Y. 315; People v. Vollero, 108 Mise. 635; People v. Steppello, 235 App. Div. 240.) IV. The verdict of the Essex County Court, convicting all defendants of assault in the second degree, should he reinstated and the respective sentences of the Essex County Judge should be upheld.

      James A. Leary, Walter A. Fullerton, Michael E. Sweeney and B. Gregory Brewster for respondents.
    I. As to defendant LaDue, the evidence was clearly insufficient. (Tagg v. Senner, 277 N. Y. 692; People ex rel. Hirschberg v. Orange County Court, 271 N. Y. 151; Sackheim v. Pigueron, 215 N. Y. 62.) II. The evidence was legally insufficient as to defendants Pots-kowski and Capuano. (People v. Watkins, 23 App. Div. 253; People v. Strewl, 246 App. Div. 400; People v. Galbo, 218 N. Y. 283; People v. Owens, 148 N. Y. 648; People v. Ledwon, 153 N. Y. 10; People v. Gluck, 188 N. Y. 167; People v. Farmer, 196 N. Y. 65; People v. Cashin, 259 N. Y. 434; People v. Deschessere, 69 App. Div. 217.) III. Defendants Potskowski and Capuano committed the crime of assault in the third degree. (People v. Gerdvine, 210 N. Y. 184; People v. Van Zandt, 224 N. Y. 354; People v„
      Cummings, 274 N. Y. 336; People v. Qaynor, 33 App. Div. 98.) IV. The judgment of the Appellate Division was right and should in all things he affirmed. (People v. Samuels, 292 N. Y. 632; People v. Allen, 266 App. Div. 670; People v. McDermott, 267 App. Div. 968.)
   LougheaN, Ch. J.

After trial in the County Court of Esses County the three defendants — Potskowski, Capuano and LaDue —were convicted of assault in the second degree. Each was sentenced to imprisonment for not less than one year and three months nor more than two years and a half, and Potskowski was also fined a thousand dollars. On appeals by all three defendants to the Appellate Division an order was entered in the following form:

“ Ordeeed, that said judgment of conviction as to Carl Harry Laclue be reversed on the law and facts and the indictment dismissed, and it is further

Ordered, that the said judgment of conviction as to the defendants Peter Edward Potskowski and Pasquale Martin Capuano be modified, on the law and facts, and the judgment of conviction in each case is reduced from the crime of assault in the second degree to the crime of assault in the third degree, and it is further

Ordered, that the judgment of conviction as to these two defendants be that the sentence in each case be reduced to the time which they have already served in Clinton Prison at Danne-mora, New York, and each of the defendants is discharged from further imprisonment, and it is further

Ordered, that, in the ease of the- defendant Peter Edward Potskowski, the fine is reduced from the sum of $1,000.00 to the sum of $500.00 and upon non-payment of such fine that said defendant is directed to serve one day for each one dollar of the fine unpaid in the County Jail of Essex County.”

This order is now before us for review on a certificate which was validly granted ex parte to the People by the Presiding Justice of the Appellate Division (see Code Crim. Pro., § 520, subd. 3; People v. McCarthy, 250 N. Y. 358).

There was evidence that on the occasion in question the three defendants, acting in concert, had inflicted upon the complainant a number of “ lacerated, jagged and bleeding ” wounds in consequence of which he was confined to his room for several weeks. There was also medical expert testimony which characterized the complainant’s injuries as “ severe ” and grievous ” and not minor in nature ”. In that state of the proof a jury could readily and fairly say that the three defendants by their concerted action had wilfully and wrongfully wounded or •inflicted grievous bodily harm upon another, either with or without a weapon ” and thus were guilty of assault in the second degree under section 242 of the Penal Law.

Hence the Appellate Division erred when it dismissed the indictment in the case of the defendant LaDue and in his case there must be a new trial (see People v. Bellows, 281 N. Y. 67; People v. Scheinman, 295 N. Y. 142). Whether the Appellate Division also erred when it modified the judgments against the defendants Potskowski and Capuano is a closer question.

The appeals that here were heard by the Appellate Division were appeals from judgments of conviction of a felony (see People v. Rytel, 284 N. Y. 242, 246). Upon hearing such an appeal the appellate court, where, in its opinion, the record "does not sustain the judgment with respect to the degree of the crime found but does warrant a judgment of conviction of a lesser degree of such crime, or of a misdemeanor # * * may modify and correct the judgment in accordance with its opinion, in whole or in part, and affirm the judgment as so modified and corrected ” (see Code Crim. Pro., § 543, subd. 2).

The statutory words just quoted do not, however, authorize any appellate court to extend mercy to an accused by finding a lesser degree of crime than is established by the evidence, and, that being so, the reduction of the grade of the offense in the cases of the defendants Potskowski and Capuano from assault in the second degree (a felony) to assault in the third degree (a misdemeanor) was unwarranted, for the evidence herein, as we have seen, sustained the jury’s finding of guilt of the higher degree of the crime (People v. Rytel, supra, 245-246). Of course, the Appellate Division has jurisdiction to extend mercy to a defendant by a reduction of sentence within limits fixed by statute (Code Crim. Pro., § 543, subd. 1; People v. Speiser, 277 N. Y. 342). Assault in the second degree, to be sure, may be punished by imprisonment in a State prison, and, where such imprisonment is imposed, a minimum term of one year is mandatory (Penal Law, § 2182, subd. 2). Even so, snch punishment is not dictated by the applicable statute, which says: Assault in the second degree is punishable by imprisonment in a penitentiary or state prison for a term not exceeding five years, or by a fine of not more than one thousand dollars, or both ” (Penal Law, § 243). These words, it will be observed, prescribe no minimum term of sentence. Consequently a modification operating only as a mitigation of a sentence for assault in the second degree would be within the power of the Appellate Division (see People v. Speiser, supra).

But in the present case the reduction of the sentences of the defendants Potskowski and Capuano does not appear to have been an exercise by the court of its discretionary power merely to mitigate the punishment. As we read its order, the court reduced the sentences only as an incident of its reduction of the grade of the offense. In that view, the case against the defendants Potskowski and Capuano must be remitted to the Appellate Division for reconsideration of the sentences in accordance with this opinion (see People v. Rytel, supra, Y. at p. 247).

In short, we dispose of these appeals as follows: As to the defendants Potskowski and Capuano, the order of the Appellate Division should be modified by reinstating the convictions of assault in the second degree and the case remitted to the Appellate Division for consideration of the fitness of the sentences imposed by the trial court. As to the defendant LaDue, the order of the Appellate Division should be reversed, the indictment reinstated and a new trial ordered. A motion to dismiss the appeals has been denied.

Lewis, Cobtway, DesmoND, Dye and Ftjld, JJ., concur.

Ordered accordingly.


author: Conway, J.

text:
    Sam Birnbaum, Appellant, Jamestown Mutual Insurance Company, Respondent.
    Argued October 11, 1948;
    decided December 2, 1948.

      Gilbert Goldstein, George A. Grabow and Charles E. Bernstein for appellant.
    I. The damages sustained by plaintiff as a result of the accident are within the coverage of the policy issued by defendant. The provisions of the policy and those of the indorsement are not repugnant or mutually exclusive. (Thompson-Starrett Co. v. American Mut. Liability Ins'. Co., 276 N. Y. 266; Poel v. Brunswich-Balke-Collender Co., 216 N. Y. 310; Hartol Products Cor<p. v. Prudential Ins. Co., 290 N. Y. 44; Mansbacher
      v. Prudential Ins. Go., 273 N. Y. 140; Burr v. Commercial Travelers Mut. Accident Assn, of America, 295 N. Y. 294; Tonkin v. California Ins. Co., 294 N. Y. 326; Leiuis v. Ocean Accident & Quar. Corp., 224 N. Y. 18; Abrams v. Great American Ins. Co., 269 N. Y. 90; Bloch v. Standard Ins. Co. of N. Y., 292 N. Y. 270; Whiteside v. Insurance Co. of State of Pennsylvania, 274 App. Div. 36.) II. The Appellate Division erred in granting summary judgment to the defendant dismissing the complaint. (Kenyon v. Knights Templar & Masonic Mut. Aid Assn., 122 N. Y. 247; Italian Benevolent Inst. v. Elaine Co., 240 App. Div. 196; Outlet Embroidery Co. v. Derwent Mills, 254 N. Y. 179; Minnesota Mut. Life Ins. Co. v. Marshall, 29 F. 2d 977, 279 II. S. 851; Wenig v. Glens Falls Ind. Co., 294 N. Y. 195.)

      Thomas A. Clarke for respondent.
    The policy in express terms did not cover the use of the truck at the time of the accident. (Euto v. [American] Lumberman’s Mut. Cas. Co. of Illinois, 247 App. Div. 613; Kearns Coal Corp. v. United States Fidelity & Guar. Co., 118 F. 2d 33; Hartigan v. Casualty Co. of America, 227 N. Y. 175; Poet v. Brunswick-Balke-Collender Co., 216 N. Y. 310; General Tire Co. v. Standard Accident Ins. Co., 65 F. 2d 237; Carnes & Co. v. Employers’ Liability Assur. Corp., 101 F. 2d 739; Farm Bureau Mut. Automobile Ins. Co. v. Daniel, 104 F. 2d 477; Myers v. Standard Accident S Guar. Corp., 99 F. 2d 485; Devitt v. Continental Cas. Co., 269 N. Y. 474; Coleman v. Keiv Amsterdam Cas. Co., 247 N. Y. 271; Lavine v. Indemnity Ins. Co., 260 N. Y. 399; Bakker v. Aetna Life Ins. Co.-, 264 N. Y. 150; Brustein v. Neiv Amsterdam Cas. Co., 255 N. Y. 137.)
   Conway, J.

In September of 1944, one Anthony De Lillo of Yonkers, N. Y., obtained from the defendant an automobile liability policy insuring each of his three automobile trucks for $50,000 liability for bodily injury to each person ” and $100,000 liability for each accident ” and $5,000 property damage for each accident. Thereafter an accident occurred and the defendant has disclaimed liability upon the ground that an indorsement attached to the policy excluded the peril through which plaintiff suffered the loss of his leg. The plaintiff recovered judgment against De Lillo, following a jury verdict, and has now brought this action against the insurer under section 167 of the Insurance Law to collect it. The question presented-therefore, involves the extent of the coverage furnished to De Lillo by the contract of insurance as evidenced by the policy and indorsement.

The case reaches us on an appeal from a judgment entered pursuant to an order of the Appellate Division which reversed an order of Special Term denying summary judgment dismissing the complaint and which granted such motion. The reversal is stated in the order to be upon the law and the facts, but may be sustained only if correct as a matter of law.

In order properly to construe the indorsement, and it was based upon that that summary judgment was granted, it is necessary first to examine the policy. Both policy and indorsement were dated upon the same day and issued as a part of one transaction.

Item 1 of the ‘ Declarations ’ ’ in the policy after naming the insured and his address reads: “ The occupation of the named Insured is — Delivery of Coal — Hudson Fuel Co.”

Item 3 recites in three columns respectively the “ Coverages ”, i.e., Bodily Injury ” and “ Property Damage,” the “Limits oe Liability”, i.e., $50,000/$100,000 as indicated, supra, and $5,000 for property damage for each accident, and the “ Premiums ”, i.e., six separate premiums, one for each automobile for “ Bodily Injury ” and one for each automobile for “ Property Damage ”.

Item 4 lists the three automobile trucks owned by De Lillo and opposite the description of each truck under a column headed “ Use ”, is the letter B ”.

Item 5 of the ‘ ‘ DeclaratioNS ’ ’ states that “ B ” indicates “ Commercial ” use and defines that term as follows:

“ Item 5 The purposes for which the automobile is to be used are:

‘ A ’ Pleasure and Business, or ‘ ’ Commercial, as indicated under Column headed Use ’ Item 4.

(a) The term Pleasure and Business ’ is defined as personal, pleasure, family and business use. (b) The term ‘ Commercial ’ is defined as use principally in the business occupation of the named Insured as stated in Item 1, including occasional use for personal, pleasure, family and other business purposes. # * * ” (Emphasis supplied.)

Attached to the policy is the indorsement, already referred to, which is partly typewritten and partly printed and is, so far as material here, as follows:

“ TRUCKMEN (Hauling Exclusively for One Concern)

It is agreed that such insurance as is afforded by the Policy for Bodily Injury Liability and for Property Damage Liability applies with respect to the automobile classified as ' commercial (local truckman) ’ provided:

1. The regular and frequent use of the automobile is confined to the area within a fifty mile radius of the limits of the city or town where the automobile is principally garaged as stated in the Declarations; and

2. No regular or frequent trips are made by the automobile to any location beyond such radius; and

3. All commercial automobiles owned and operated by the named Insured are to be used in hauling exclusively for Hudson Fuel Co., Yonkers, N. Y.” (Emphasis supplied.)

Then follows the printed sentence:

“ All other terms and conditions of this Policy remain unchanged.” (Emphasis supplied.)

It is undisputed that at the time of the accident the insured’s truck was being used to transport lumber for one Harry Watson. However, plaintiff contends and has submitted affidavits alleging facts which, if proved, establish that the truck was principally used to transport coal for the Hudson Fuel Company and that the use at the time of the accident was merely “ occasional use ”. In his own affidavit. De Lillo stated:

“ On the date of the accident, deponent was requested by a friend, one Harry Watson, to transport some lumber from Yonkers, New York to the Botanical Gardens, Prospect Park, Brooklyn, New York. In compliance with this request, deponent instructed his driver and employee, Archie Spence, to make the delivery of said lumber. * * * ”
“ * * * This was the first occasion on which this truck was used for any purpose such as above described. On the day previously, it had been used to haul coal for the Hudson Fuel Co. and for about a year and a half before the accident, it was exclusively used daily for the purpose of hauling coal for the Hudson Fuel Co. However, on the day of the occurrence, there was no coal to be hauled by this truck. ⅝ ⅜ (Emphasis supplied.)

In his brief plaintiff admits, as alleged in one of defendant’s affidavits, that Watson paid De Lillo “ ‘ $3.00 an hour for 7 hours or a total of $21 ’ ” on this occasion. If it be proved, therefore, that the use by Watson was an “ occasional use ” made by De Lillo, the fact of payment indicates that hauling for Watson was an occasional “ business ” purpose within the terms of the policy or a court or jury might so find. In view of the dismissal of plaintiff’s complaint, the facts stated therein and in plaintiff’s affidavits, together with all favorable inferences therefrom, must be taken to be true. Thus, although defendant alleges facts in its affidavits which may indicate that the hauling of lumber for Watson on the day of the accident was not “ occasional ”, we must for the purpose of this appeal assume that on the trial plaintiff can the facts which he alleges and asserts.

We do not think that it may be said as a matter of law that the typewritten portion of the indorsement superseded the printed provisions of the policy defining the term “ Commercial ” as “ use principally in the business occupation of the named Insured as stated in Item 1, including occasional use for * * * other business purposes.” In Thompson-Starrett Co. v. American Mut. Liability Ins. Co. (276 N. Y. 266, at pp. 270-271) we said (Hubbs, J.):

“ It is a familiar rule that in construing an indorsement to an insurance policy the indorsement and policy must be read together and that the policy remains in full force and effect except as altered by the words of the indorsement. (Matter of Garelick v. Rosen, 274 N. Y. 64.) If an indorsement extends the term of a policy beyond the expiration day or hour specified in the policy, the time of expiration specified in the policy must1 give way to the stated time of expiration contained in the indorsement, as the indorsement has. the effect of expressly changing that provision of the policy. That and nothing more was decided in Matter of Garelick v. Rosen (supra).

“It is equally true that if an indorsement attached to a policy expressly provides that it is subject to ‘ all the terms, limitations and conditions of the policy, ’ the policy and indorsement must be read together and an indorsement in such a case does not abrogate or nullify any provision of the policy unless so stated in the indorsement.” (Emphasis supplied.)

Here, the indorsement expressly stated that “ all other terms and conditions of this Policy remain unchanged ”, and it did not state that the “occasional use ” provision in Item 5 of the “ DeclabatioNS ” was abrogated or nullified. It did not mention or refer to Item 5 in any way.

The average, ordinary businessman, and there is no suggestion that Anthony De Lillo was more, would find great difficulty in reconciling the indorsement and Item 5 of the “ Declarations ”. The indorsement as we have seen, commences as follows : “ It is agreed that such insurance as is afforded by the Policy for Bodily Injury Liability and for Property Damage Liability applies with respect to the automobile classified as ‘ commercial (local truckman) ’ provided: ” etc. There is no automobile classified in the policy as “ ‘ commercial (local ”.

While there is no express provision in the indorsement abrogating or nullifying any provision of the policy it is urged by the insurer that the typed portion of the indorsement concerning “ exclusive ” use is repugnant to the printed provision in Item 5 of the “ Declarations ” concerning “ occasional ” use. In Kratzenstein v. Western Assur. Co. (116 N. Y. 54, 57, 59) we stated the following rules:

“ Where a contract contains two repugnant provisions, the one printed and the other written, it is well settled that the latter must control the interpretation of the instrument, as it is presumed to express the latest intention of the parties. [Cases cited.] Unless the conflict is irreconcilable, however, this rule does not apply, but the principle prevails that contracts should be so construed as to give effect to every word and expression contained therein. [Cases cited.] * * ” (Emphasis supplied.)

<£ # # ⅝ Where an insurance contract is so drawn as to be manifestly ambiguous, so that reasonable and intelligent men on reading it would honestly differ .as to its meaning, the doubt should be resolved against the company, because it prepared and executed the agreement, and is responsible for the language used and the uncertainty thereby created. [Cases cited.] If the defendant intended that the risk should not cover goods in transit, except by such conveyances as should be mentioned in the indorsement, it should have said so in clear and unmistakable terms so that no one could be misled.” (See, also, Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310, 322.)

Thus, unless the typewritten provisions of the indorsement must be considered to be “ repugnant ” and in “ irreconcilable conflict ” with the printed provisions in Item 5, we cannot say that the former “ superseded ” the latter as a matter of law. It may well be that the expectation and purpose of the ordinary business man ” (Burr v. Commercial Travelers Mut. Accident Assn., 295 N. Y. 294, 301; Bird v. St. Paul Fire & Marine Ins. Co., 224 N. Y. 47) in entering into the contract of insurance was that he was to be permitted an “ occasional use for personal, pleasure, family and other business purposes ” and that he understood and intended that he was to be covered under the contract when one of his trucks was being so used. Defendant argues that the purpose of the indorsement was to eliminate the provision for ‘ ‘ principal ’ ’ and ‘ occasional ’ ’ use and that there would be no no need for the indorsement if the defendant was to be liable when the truck was used “ principally ” for the Hudson Fuel Company and for other “ occasional ” use. Qn the contrary, it may be as likely that the main purpose of the indorsement was to limit De Lillo to the work of a local truck-man, an important insurance classification. Again, it must be remembered that the policy and indorsement were issued together on the same date, September 14, 1944. This is not a situation where an indorsement is added some time after the issuance of the policy and the premium increased or decreased accordingly. Consequently the indorsement may not be considered clearly to evidence a later or different intention from that expressed in the body of the policy.

Receiving the policy with the indorsement attached, De Lillo, as an average businessman, might well have understood the indorsement to have restricted his coverage merely from that of trucking generally for the public to that of trucking within a fifty-mile radius and for one concern, but not that it necessarily eliminated coverage for “ occasional use for personal, pleasure, family and other business purposes ” when paragraphs 1 and 2 of the indorsement each used the words regular and frequent ”. Under those paragraphs the ordinary businessman might certainly assume that he had the right to make an occasional trip outside the fifty-mile radius prescribed.

If the defendant intended to limit its liability as drastically as it now claims it did, it should have done a more workmanlike job. When a by an ordinary businessman of an exclusory provision of an indorsement attached to a policy of insurance means substantial injury to his business, as it does by reason of the recovery of the $30,000 judgment here, the provision must be drawn in such clear and unmistakable terms so that no one could [may] be misled.” (Kratzenstein v. Western Assur. Co., supra, at p. 59.) Here the defendant could have deleted some of the provisions of Item 5, or expressly can-celled them in the indorsement or at least referred in some manner to Item 5. As a matter of fact the indorsement made no mention by reference or number to either Item 4 or Item 5 so as to indicate that there was an amendment or change in either of them. On the contrary it provided that “ all other terms and conditions of the Policy remain unchanged.” Defendant may not now he permitted as matter of law to cancel the express provisions of Item 5 by inference.

The judgment entered upon the order of the Appellate Division should he reversed and the order of the Special Term affirmed, with costs in this court and in the Appellate Division.

LoughraN, Ch. J., Lewis, Desmoud, Dye and Fuld, JJ., concur.

Judgment accordingly.


text:
    Isidore Koenig, Appellant, v. Patrick Construction Corp., Respondent.
    Argued October 12, 1948;
    decided December 2, 1948.

      Bernard Meyerson and Herman B. Zipser for appellant.
    I. The trial court erred in refusing to charge that the plaintiff’s contributory negligence was not a defense where violation of a statute was concerned. (Karpeles v. Heine, 227 N. T. 74; Ur go v. Coles & Co., 226 App. Div. 610; Smith v. Variety Iron Steel Works Co., 147 App. Div. 242, 208 N. Y. 543; Stern v. Great Island Corp., 250 App. Div. 115; Pollard v. Trivia Bldg. Corp., 291 N. Y. 19; Weber v. State of New York, 53 N. Y. S. 2d 598.) II. The trial court’s error in charging that the contributory negligence of the plaintiff, even in the slightest degree, must result in a verdict for the defendant is patent and reversible. (Lcmrin v. Patrick Constr. Corp., 263 App. Div. 1013.)

      Albert P. Thill, John P. Smith, and Thomas P. Keane for respondent.
    The trial court’s charge contains no reversible error. (Poole v. American Linseed Co., 119 App. Div. 136; lacono v. Frank & Frank Contr. Co., 259 N. Y. 377; Anderson v. 143 Linden Blvd. Corp., 258 App. Div. 887; Gombert v. McKay, 201 N. Y. 27; Griffin v. Pennsylvania Steel Co., 171 App. Div. 675; Shovan v. Lozier Motor Co., 158 App. Div. 487; Stuart v. Costello, 204 App. Div. 574, 236 N. Y. 616; Ericius v. Brooklyn Heights B. B. Co., 63 App. Div. 353; Martin v. Herzog, 228 N. Y. 164.)
   Fuld, J.

We are called upon to determine whether, in an action for damages brought by an injured worker on the strength of section 240 of the Labor Law, a defendant may assert the worker’s contributory negligence as a defense.

Plaintiff, a window cleaner, had been hired as an independent contractor hy defendant to do the work necessary on the windows of a school which defendant was engaged in constructing. On the day of the accident, February 7,1941, plaintiff was atop a ladder, some 16 or 17 feet above the floor, scraping and removing paint from one of the large windows in the auditorium. While plaintiff was thus engaged, the ladder, which had been placed by him against the wall, with its base some 4 feet from the wáll, slipped ont and bnrled him to the floor. It was plaintiff’s claim that, in spite of bis protests, be bad been directed by defendant’s employees to nse the ladder in order to reach the windows; that the ladder, a straight, wooden, rung-type affair about 20 feet long, was without the usual devices at the bottom — called safety shoes ” — to prevent slipping when the ladder was in use; and that it likewise lacked notches to which such safety shoes could be fitted.

■ Plaintiff, seriously injured, commenced this suit for damages predicated primarily upon defendant’s asserted failure to comply with the requirements of section 240 of the Labor Law. That statute provides, in part, that a person employing or directing another to perform labor of any kind in the erection ⅜ # # repairing * * * painting, cleaning or pointing of a building or structure shall furnish * # * or cause to be furnished # scaffolding * ⅜ * ladders,” or any other safe equipment required for the worker’s protection.

Upon the trial, the court charged, that under section 240, plaintiff could recover only if he proved (1) that defendant assumed to furnish this ladder to the plaintiff to be used under the circumstances under which it was used, and that those circumstances were such that the danger of an accident was foreseeable by the defendant (2) that defendant “ failed in its duty ”, and (3) that plaintiff had not “ contributed any negligence to the accident himself.”

The jury returned a verdict in favor of defendant, and because of the last noted item of instruction, the possibility is present that that verdict in defendant’s favor was predicated upon a finding that plaintiff had been guilty of contributory negligence. In the view which we take of the law, that would be an erroneous basis for the verdict. That error in the charge requires reversal, despite the fact that it is quite likely, considering the entire record, that the jury found that defendant did not violate section 240, and, accordingly, did not even reach the question of plaintiff’s contributory negligence.

Though defendant was also charged with common-law negligence, the gravamen of the complaint, as indicated, was that defendant was liable for having violated its statutory duty to furnish plaintiff safe equipment. Of course, if defendant did actually direct the work, it is of no moment — we simply note in passing — that plaintiff happened to be an independent contractor rather than an ordinary employee. (See, e.g., Sdoia v. Cawley, 290 N. Y. 847; Weber v. State of New York, 53 N. Y. S. 2d 598.) Plaintiff, being thus included within the class protected, is entitled to the full benefit of the statute.

Firmly established is the principle of law that a plaintiff’s carelessness is no bar to his recovery under a statute which imposes liability “ regardless of negligence ”. (See Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287, 305-306.) Obviously, not every statute which commands or prohibits particular conduct is within this principle. Only when the statute is designed to protect a definite class of persons from a hazard of definable orbit, which they themselves are incapable of avoiding, is it deemed to create a statutory cause of action and to impose a liability unrelated to questions of negligence. This rule is based upon the view that, not being dependent upon proof of specific acts of negligence on defendant’s part, the cause of action may not be defeated by proof of plaintiff’s want of care. Thus, it has been said, “ If the defendant’s negligence consists in the violation of a statute enacted to protect a class of persons from their inability to exercise self-protective care, a member of such class is not barfed by his contributory negligence from recovery for bodily harm caused by the violation of such statute ” (Restatement, Torts,

Irrespective of how the courts may once have viewed the question (cf., e.g., Maloney v. Standard Shipbuilding Corp., 237 N. Y. 250; Maloney v. Cunard S. S. Co., 217 N. Y. 278; Gombert v. McKay, 201 N. Y. 27), it is our judgment that both sound reason and persuasive decisions, involving statutes whose content and purpose are similar to those of section 240, require the conclusion that that statute does not permit the worker’s contributory negligence to he asserted as a defense. (See, e.g., Pollard v. Trivia Bldg. Corp., 291 N. Y. 19; Teller v. Prospect Heights Hosp., 255 App. Div. 488, revd. on other grounds, 280 N. Y. 456; Lowenhar v. Commercial Outfitting Co., 260 App. Div. 211, affd. 285 N. Y. 671; Stern v. Great Island Corp., 250 App. Div. 115; Osborne v. Salvation Army, 107 F. 2d 929 [Labor Law, § 202]; Karpeles v. Heine, 227 N. Y. 74 [Labor Law, § 93]; Schmidt v. Merchants Desp. Transp. Corp., supra, 270 N. Y. 287, 303-304, 306 [Labor Law, § 299].) For example, in construing a statute of nearly identical import — section 202 of the Labor Law which requires that safe devices be supplied to window washers who work on public buildings from the outside — this court observed not long ago that ‘ ‘ Since * * * liability of defendant depends upon violation of the statute, contributory negligence would be no defense (Stern v. Great Island Corp., 250 App. Div. 115; Osborne v. Salvation Army, 107 F. 2d 929).” (See Pollard v. Trivia Bldg. Corp., supra, p. 24.) And in the Stern case {supra), the court had written (p. 116): “ Since the plaintiff’s cause of action does not rest on negligence, contributory negligence does not constitute a defense. Indeed, the very purpose of the statute was to protect plaintiff’s intestate and others in like position from the consequences of their own negligence. It would be strange, therefore, if the same negligence could defeat the operation of the statute. (Karpeles v. Heine, 227 Y. 74; Corwin v. N. Y. & Erie R. R. Co., 13 id. 42.) ”

The safe-ladder provision of section 240 comes squarely within this doctrine. By its force, certain safeguards have been legislatively commanded for the safety of those engaging in the work described. Instead of simply defining the general standard of care required and then providing that violation of that standard evidences negligence, the legislature imposed upon employers or those directing the particular work to be done, a flat and unvarying duty. This the language of the section makes crystal clear: the employer or one directing the work “ shall furnish ” or cause to be furnished equipment or devices “ which shall be so constructed, placed and operated as to give proper protection ” to the one doing the work (émphasis supplied). For breach of that duty, thus absolutely imposed, the wrongdoer is rendered liable without regard to his care or lack of it.

And what the statute declares, its reason confirms. Workmen such as the present plaintiff, who ply their livelihoods on ladders and scaffolds, are scarcely iii a position to protect themselves from accident. They usually have no choice but to work with the equipment at hand, though danger looms large. The legislature recognized this and, to guard against the known hazards of the occupation, required the employer to safeguard the workers from injury caused by faulty or inadequate equipment. If the employer could avoid this duty by pointing to the concurrent negligence of the injured worker in using the equipment, the beneficial purpose of the statute might well be frustrated and nullified. That possibility we long ago perceived and provided for, declaring that “ this statute is one for the protection of workmen from injury and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed ”. (See Quigley v. Thatcher, 207 N. Y. 66, 68.) Such an interpretation manifestly rules out contributory negligence as a defense to an action predicated upon violation of the statute to the injury of one in the protected class. (See, e.g., Laurin v. Patrick Constr. Corp., 263 App. Div. 1013; Weber v. State of New York, 53 N. Y. S. 2d 598, supra.)

A different case would be before us if the injured person were a passerby or a workman struck by a falling ladder; as to them — persons outside the class for whose special benefit the statute was designed — a violation might do no more than evidence negligence. That, however, is not this case. Here, to recapitulate, we have an action based upon a statute whose cardinal purpose was to protect plaintiff and others in his calling, without reference to questions of negligence, from the occurrence of just such an accident as befell him. In spite of this, the trial court left the jury free to bring in a verdict against plaintiff if it found him guilty of contributory negligence. Such instructions were in open conflict with the purpose and aim of the statute, and, since they may have improperly influenced thé result, there must be a new trial.

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

LoughraN, Ch. J., Lewis, CoNway, DesmoNd and Dye, JJ.. concur.

Judgments reversed, etc.


text:
    Margot Loughran, Appellant, v. City of New York, Respondent.
    Argued November 22, 1948;
    decided December 3, 1948.

      Herman Kahn for appellant.
    I. The accident occurred at Washington Square Park, which is a public park, established and maintained by defendant City of New York, and over which it had and maintained exclusive and undivided supervision and control. The accident and plaintiff’s resulting injuries were caused by a defective condition in one of the pathways in the park. II. The jury was well warranted in finding that defendant was culpably negligent, in knowingly permitting the defective condition in the pathway to continue, for more than a year and a half, without repair, even though the hole in the center of the defects had attained a depth of only three inches, at the time of the accident. (Collentine v. City of New York, 279 N. Y. 119; Augustine v. Town of Brant, 249 N. Y. 198; Pitman v. City of New York, 141 App. Div. 670; Roberton v. Mayor, 7 Mise. 645; Gicht v. City of New York, 220 App. Div. 813; Ehrmann v. City of New York, 273 App. Div. 818; Carr v. City of New York, 281 N. Y. 469; Hamer v. Village of Whitesboro, 287 N. Y. 816.)

      John P. McGrath, Corporation Counsel (Seymour B. Quel of counsel), for respondent.
    The complaint was properly dismissed on the proof that the hole in the park pavement which caused plaintiff to fall was less than four inches deep and not a trap of any kind. Moreover, the trial court erred in refusing to charge that they must find for the city if the hole was less than four inches deep and not a trap of any kind. (Hamilton v. City of Búfalo, 173 N. Y. 72; Butler v. Village of Oxford, 186 N. Y. 444; Gastel v. City of New York, 194 N. Y. 15; Terry v. Village of Perry, 199 N. Y. 79; Lalor v. City of New York, 208 N. Y. 431; Eger v. City of New York, 206 App. Div. 718, 239 N. Y. 561; Bryant v. Village of Potsdam, 253 N. Y. 524; Griffin v. Town of Harrison, 268 N. Y. 238; Boyne v. City of Buffalo, 269 N. Y. 657; 'Dowd v. City of Buffalo, 263 App. Div. 932, 290 N. Y. 895; Lynch v. City of Beacon, 269 App. Div. 757, 295 N. Y. 872; Keener v. Tilton, 283 N. Y. 454; Carson v. City of New York, 267 App. Div. 993; Giaimo v. City of Neto York, 268 App. Div. 853.)
   Per Curiam.

Plaintiff, while walking at night along the paved pathway of Washington Square Park, a small' public park established and maintained by the City of New York, stepped into a hole and fell. For the consequent injuries suffered, suit was brought against the city; there was a verdict in plaintiff’s favor. In the Appellate Term and in the Appellate Division, the city has prevailed in its contention that the complaint should be dismissed on the ground that there was no evidence that the hole was four inches in depth or that it constituted a “ trap.”

For the past twenty years at least, this court has declined to recognize any such principle as that urged by the city. On the contrary, we have held that there is no rule that the liability of a municipality in a case of this sort turns upon whether the hole or depression, causing the pedestrian to fall, is four inches — or any other number of inches — in depth or constitutes “ a trap.” (See, e.g., Norbury v. City of Buffalo, 246 N. Y. 605; Wilson v. Jaybro Realty & Development Co., 289 N. Y. 410; Dowd v. City of Buffalo, 290 N. Y. 895; Lynch v. City of Beacon, 295 N. Y. 872; Pratt v. Village of Seneca Falls, 295 N. Y. 690.) As we but recently observed, there is no requirement that a hole in a public thoroughfare * * * be of a particular depth before its existence can give rise to a legal liability.” (Wilson v. Jaybro Realty & Development Co., supra., p. 412.) A municipality’s liability depends on whether or not, having in mind the circumstances of each case, it has neglected and failed to keep its public thoroughfares — whether the sidewalk of a street or the pathway in a park — in a condition reasonably safe for pedestrians.

In our view, the evidence contained in the record before us was sufficient to warrant submission of the case to the jury. The determination dismissing the complaint was, therefore, erroneous and must be reversed. Since, however, the affirmance by the Appellate Division of the Appellate Term’s decision reversing the judgment of the City Court was on the law alone, the Appellate Division was not called upon to, and did not, pass upon the facts and, accordingly, we are required to remit the case to that court for determination upon any questions of fact there raised (Civ. Prac. Act, §§ 606, 626).

The judgments of the Appellate Division and of the Appellate Term should be reversed, and the case remitted to the Appellate Division for determination upon the questions of fact raised in that court, with costs to abide the event.

LougheaN, Ch. J., Lewis, CoNway, DesmoNd, Dye and Fued, JJ., concur.

Judgments reversed, etc.