author: Per Curiam.

text:
    In the Matter of John G. Lerch, Appellant. Committee on Character and Fitness, Ninth Judicial District, Respondent.
    Argued January 13, 1939;
    decided February 28, 1939.

      Hersey Egginton, Charles E. Bensel and John Ambrose Goodwin for appellant.
    The Appellate Division has denied the appellant’s application for admission to the bar on motion solely as a matter of law and in so doing has exceeded its authority and misconstrued the rule of the Court of Appeals by construing “ practice ” to mean “ residence.” (Matter of Rotolo, 247 App. Div. 724; Matter of Dodds, 250 App. Div. 779.) The applicant has actually practiced at least five years in the District of Columbia within the meaning and intent of the rule. (Matter of Pace, 170 App. Div. 818; Savings Bank v. Ward, 100 U. S. 195.)
    No appearance for respondent.
   Per Curiam.

The rules of the Court of Appeals for the admission of attorneys and counselors-at-law provide for admission without examination of " Any person who has been admitted to practice in the highest law court in any other state or territory of the American Union or in the District of Columbia and who has actually practiced at least five years in such court or in the highest court of original jurisdiction.” (Rule II, § 1.) A person to be admitted under this rule must be a citizen of the United States, over twenty-six years of age, and must show that he is and, for not less than six months immediately preceding the application, has been an actual resident of the State.

The period of five years, during which the applicant must have practiced in another State, assumes that he also resided there during that time. The rule was never intended to cover a resident of this State who, while residing here, practiced elsewhere. A resident of another State practicing for five years in its highest court may, upon coming here to reside, be admitted to practice in our courts upon complying with the other requirements of our rules. Actual practice in the highest court, or the highest court of original jurisdiction, does not mean that the applicant must have been in the courts for the five years; rather, that he has been permitted to practice in such a court for that period of time. While practice in the courts refers to authorization, residence within the State in order to practice, must be actual, and for the duration of five years. Even then the Appellate Divisions are given a discretion in applying tests as to character and qualifications. There is no discretion, however, with reference to residence and the five-year period of practice.

Where the peculiar facts of a case show beyond doubt that it comes within the meaning and purpose of our rules, but lacks strict compliance, this court has at times ordered the applicant’s admission or examination. For instance, if within the five-year period the lawyer was employed in legal capacity by the Federal government away from home, his temporary absence from his State might not count against him. The petitioner here has appealed from the order of the Appellate Division which, as matter of law, denied his admission because he had not lived in Washington, D. C., for five years, while permitted to practice there. The appeal brings up for decision merely the interpretation of our rules and their application by the Appellate Division.

The order below should be affirmed, without costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Bjppey, JJ., concur.

Order affirmed.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Essolene Monnier, Appellant.
    Submitted January 17, 1939;
    decided February 28, 1939.

      Henry Salant for appellant.
    The judgment of affirmance should be reversed and the complaint dismissed. (People v. Perry, 265 N. Y. 362; People v. McCauliff, 267 N. Y. 581.)

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Harris B. Steinberg of counsel), for respondent.
    A conviction under section 722 of the Penal Law is justified if the prohibited acts are committed either with an intent to invoke a breach or if they have a tendency to do so. (People v. Sinclair, 86 Misc. Rep. 426; 167 App. Div. 899; People v. Squires, 135 Misc. Rep. 214; People v. Robinson, 73 Misc. Rep. 343.) The fact that the vile and offensive language of the defendant was communicated by telephone does not change its character as disorderly conduct within the purview of the statute. (People v. Robinson, 73 Misc. Rep. 343; People v. Daly, 154 Misc. Rep. 149; People v. Katz, 135 Misc. Rep. 336; People v. Gertner, 124 Misc. Rep. 114.)
   Finch, J.

Even assuming that this defendant called the complaining witness on the telephone and applied to her certain foul epithets which were overheard by the telephone operator, the defendant is not guilty of the offense of disorderly conduct as defined in section 722, subdivisions 1 or 2, of the Penal Law. Such a person must act or speak either with an intent to provoke a breach of the peace or in such a manner “ whereby a breach of the peace may be occasioned.” In the case at bar there is no evidence of an intent on the part of the defendant to effect a breach of the peace, nor are the circumstances such as could possibly occasion such a breach. The means employed, to wit, the telephone, would seem to indicate a contrary intention.

In People v. Perry (265 N. Y. 362) the proof showed that a restaurant owner and his employee struck with their fists an acquaintance of the employee; that the fight occurred at four o’clock in the morning when no customers were present in the dimly lighted grill which was not open for business; that three witnesses, who saw the fight from the street, testified that they looked on voluntarily to gratify their curiosity. There it was unanimously held that the acts of defendants did not tend to such a disturbance of the tranquillity of the People as to constitute disorderly conduct in violation of the statute. (Penal Law, § 722, subd. 2.) The facts in the case at bar present a weaker case of alleged disorderly conduct than People v. Perry. Since the decision in People v. Perry, it has been settled that acts charged as disorderly conduct must be public in character, and such as actually to tend to disturb the public peace and quiet. If defendant had uttered the words charged to her in the privacy of the office of complainant, no one else being present, defendant would not have committed the offense of disorderly conduct. (People v. McCauliff, 267 N. Y. 581.) The possibility of a breach of the peace being occasioned under the condition here existing is too remote, and the intent to commit such a breach cannot reasonably be inferred from the evidence. The conduct charged must at least be such that a breach of the peace has become imminent or might reasonably be expected or intended to flow from such conduct.

The judgments should be reversed and the information dismissed.

Crane, Ch. J., Hubbs, Loughran and Bippey, JJ., concur; Lehman and O’Brien, JJ., dissent.

Judgments reversed, etc.


author: O’Brien, J.

text:
    Clara W. Ansbacher, Appellant, v. New York Trust Company, Respondent.

      Argued November 21, 1938;
    decided February 28, 1939.

      William S. Bennet, Victor House and Samuel H. Levin kind for appellant.
    The second separate defense is insuf" ficient in law on its face, and should be stricken out. (Doyle v. Chatham & Phenix Nat. Bank, 253 N. Y. 369; Harvey v. Guaranty Trust Co., 134 Misc. Rep. 417; 229 App. Div. 774; 256 N. Y. 526; Conover v. Guarantee Trust Co., 88 N. J. Eq. 450; 89 N. J. Eq. 584.) The exculpatory provisions relied upon in the first separate defense should be denied any effect. (Industrial & General Trust, Ltd., v. Tod, 180 N. Y. 215; Benton v. Safe Deposit Bank, 255 N. Y. 260; Doyle v. Chatham & Phenix Nat. Bank, 253 N. Y. 369; Conover v. Guarantee Trust Co., 88 N. J. Eq. 450; 89 N. J. Eq. 584; Richardson v. Union Mortgage Co., 210 Iowa, 346.) The third separate defense is insufficient in law. (Matter of Hosford, 27 App. Div. 427; Mullen v. Eastern Trust & Banking Co., 108 Me. 498; Doyle v. Chatham & Phenix Nat. Bank, 253 N. Y. 369.) The fourth separate defense is insufficient in law. (Lehman Mfg. Co. v. Jewett, 168 N. E. Rep. 46; Black v. Strang, 167 App. Div. 149.) The fifth separate defense amounts to no more than a denial that the defendant’s unauthorized acts damaged the bondholders. Such a denial cannot support an affirmative defense. (Black v. Strang, 167 App. Div. 149.) The sixth separate defense relies upon a five-year Arkansas Statute of Limitations, and is insufficient in law on its face. (Benton v. Safe Deposit Bank, 255 N. Y. 260; Miller v. Brenham, 68 N. Y. 83; Ward v. Lee, 256 N. Y. 653.) The eighth and ninth separate defenses set up the defense of loches and are insufficient in law on their face. (Pollitz v. Wabash R. R. Co., 207 N. Y. 113.)

      Clifford P. Case, Morgan J. Callahan, Jr., and James P. Murtagh for respondent.
    The first to sixth and the eighth to tenth separate defenses are sufficient in law. (Watson v. Dodge, 187 Ark. 1055; White River Bridge Corp. v. State, 92 S. W. Rep. [2d] 856; Hollenbeck v. Ætna Casualty & Surety Co., 215 App. Div. 609; 243 N. Y. 540; Eissing Chemical Co. v. People’s Nat. Bank, 205 App. Div. 89; 237 N. Y. 532; Portland Gold Mining Co. v. Stratton’s Independence, Ltd., 158 Fed. Rep. 63; Greene v. Continental Bank & Trust Co., 242 App. Div. 626; 267 N. Y. 519; Hollister v. Stewart, 111 N. Y. 644; Browning v. Fidelity Trust Co., 250 Fed. Rep. 321; Home Ins. Co. v. Gillespie Loading Co., 222 App. Div. 67; Irving Trust Co. v. Maryland Casualty Co., 83 Fed. Rep. [2d] 168; Sheldon H. B. Co. v. Eickemeyer H. B. M. Co., 90 N. Y. 607.)
   O’Brien, J.

Questions of pleadings are here involved.

The complaint alleges that in the year 1928 the White River Bridge Company, a Delaware corporation, executed a deed of trust with defendant New York Trust Company whereby it mortgaged to the trust company as trustee for the owners of $500,000 six per cent bonds to be issued by the bridge company certain of its property, including its franchise for a toll bridge in Arkansas and the toll bridge itself and its approaches. Plaintiff is the holder of $10,000 of these bonds.

Section 3 of article V of the deed of trust provides that if any of the mortgaged property be taken by the exercise of the power of eminent domain, the Trustee may release the property so taken * * * and shall be fully protected in doing so upon being furnished with a written opinion of counsel * * * to the effect that such property has been taken by the exercise of the power of eminent domain * * * and upon the receipt by the Trustee of the proceeds of the property so taken * *

In the year 1930 the State of Arkansas by condemnation acquired title to this bridge property. The only parties to that proceeding were the State of Arkansas, as plaintiff, and the White River Bridge Company and the New York Trust Company, as defendants. The judgment in the Arkansas Circuit Court was entered September 18, 1930, by consent of all the parties, recites the existence of the deed of trust and adjudges that the value of the bridge company’s property was $463,000, that the outstanding bonds then amounted to that sum, that the bridge company recover from the State the sum of one dollar damages “ which, together with the assumption by the State of the above mentioned and described bonded indebtedness, shall be in full payment and compensation * * * and that the State of Arkansas shall, in accordance with the terms of the above described deed of trust, assume and pay to the holders of the outstanding bonds, aggregating $463,000 and interest due November 1,1930, and thereafter * *

Plaintiff, suing individually and on behalf of all others similarly situated, alleges in her complaint that defendant trust company’s consent to that judgment was given without the receipt of the proceeds of the trust estate, that its consent to the judgment and its release of the trust estate were grossly negligent, unauthorized and beyond the powers of defendant as trustee under the mortgage, that neither she nor any other bondholder has received interest on their bonds since November 1, 1933, nor ever received any part of the principal.

Defendant’s answer pleads nine separate defenses and a tenth separate defense as a partial defense.

The questions certified by the Appellate Division are whether these defenses (except the seventh) are sufficient in law upon their face.

The first separate defense pleads section 1 of article IX of the mortgage, which provides that the Trustee accepts the trusts hereby created but only upon the terms and conditions set forth in this Article IX.” It also pleads section 4 of article IX of the mortgage, which provides that the trustee shall not be answerable or accountable for any act ” of its attorneys if reasonable care has been exercised in the appointment and retention thereof nor shall the Trustee be otherwise answerable or accountable under any circumstances whatsoever, except for its own gross negligence or bad faith.” This first defense then alleges that the trustee retained the firm of Robinson, House & Moses of Little Rock as counsel in the condemnation proceeding upon the advice of its New York counsel, that this Arkansas firm was competent and highly capable, and that the consent to the entry of the condemnation judgment was given by Robinson, House & Moses in behalf of the trustee. The second separate defense repeats the allegations of the first separate defense and alleges that it was not grossly negligent nor did it act in bad faith. The decision in DoyleY. Chatham & Phenix Nat. Bank (253 N. Y. 369, 380) is based upon the fact that defendant was guilty of negligently making a misrepresentation of fact. There is no such allegation in the complaint before us. The cause of action is based upon the allegation that defendant’s consent to the Arkansas judgment was negligent, unauthorized and beyond defendant’s powers. Our decisions in Benton v. Safe Deposit Bank (255 N. Y. 260) and Greene v. Continental Bank & Trust Co. (267 N. Y. 519) appear to control.

The third separate defense pleads section 7 of article IX of the mortgage, which provides that the trustee may consult with counsel and that “ the opinion of such counsel * * * shall be full and complete authorization and protection in respect of any action taken or suffered and in respect to any determination made by it hereunder in good faith and in accordance with the opinion of such counsel.” -It also pleads that the trustee acted in good faith and in accordance with the opinion of counsel.

The fourth separate defense pleads that the trustee acted within its authority and “ in the exercise of due care and its best business judgment as to the best interests ” of the bondholders. The fifth pleads that the settlement of the condemnation suit prevented irreparable damages to the bondholders. The consent judgment provides for the assumption by the State of the bonded indebtedness as compensation for the taking. The sixth separate defense pleads the five-year Statute of Limitations of Arkansas, which includes actions for negligence. The complaint, without alleging that plaintiffs are residents of this State (Civ. Prac. Act, § 13; Whiting v. Miller, 188 App. Div. 825, 829; Oglesby v. Cranwell, 250 App. Div. 720), base their cause of action upon the fact that defendant’s consent to the entry of the Arkansas judgment and its release of the trust estate was grossly negligent. In the absence of an allegation that plaintiff was a resident of this State, we adopt the rule that the Arkansas statute applies (Civ. Prac. Act, § 13; Whiting v. Miller, 188 App. Div. 825, 829; Oglesby v. Cranwell, 250 App. Div. 720), and that this defense is sufficient in law upon its face.

The eighth and ninth separate defenses allege loches in that plaintiff, with full knowledge of all the facts, refrained from commencing her action until March 2, 1937. The consent judgment had been entered September 18, 1930.

The tenth separate defense is pleaded as a partial defense and alleges an act of the Arkansas Legislature during the session of 1934, which provides for the payment of claims against the State Highway Commission and the pledging of the full faith and credit of the State of Arkansas for payment of these claims.

Merely as pleadings, these defenses appear to be sufficient in law upon their face. What facts a trial of the action might disclose are not before us.

The order should be affirmed, with costs, and the certified questions relating to the first, second, third, fourth, fifth, sixth, eighth, ninth and tenth defenses be answered in the affirmative.

Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Order affirmed, etc.


text:
    In the Matter of the Will of Austin B. Fletcher, Deceased. Charles S. Chadwick, Appellant; Trustees of Fletcher Hospital et al., Respondents.

      Argued January 3, 1939;
    decided February 28, 1939.

      Harold R. Medina, William Russell Bogert and John W. Jordan for appellant.
    The clearly expressed intent of the testator to benefit the appellant, should any of his bequests “ for any reason, be declared illegal or inoperative,” coupled with the conceded fact that the highly particularized charitable bequest in paragraph “ fifth ” failed to operate as he so specifically directed, forbids the application of the cy pres doctrine and requires a construction of the will in appellant’s favor. (Brudewell v. Elwes, 1 East, 442; Bullard v. Shirley, 153 Mass. 559; Larkin v. Wickoff, 75 N. J. Eq. 462 ; 77 N. J. Eq. 589; McCran v. Kay, 93 N. J. Eq. 352; Bowditch v. Attorney General, 241 Mass. 168; Burgess’ Trustees v. Crawford, Session Cases [1912], 387; Saltsman v. Greene, 136 Misc. Rep. 497; 256 N. Y. 636; Matter of Packe, [1918] 1 Ch. Div. 437; Raque v. City of Speyer, 97 N. J. Eq. 447; Bowden v. Brown, 200 Mass. 269.) Since the declaration of illegality or inoperativeness provided for by paragraph “ fourteenth ” speaks as of the date of death at which time the gift over to the appellant took immediate effect, there is no basis for construing paragraph “ fourteenth ” as creating a conditional limitation violative of the rule against the suspension of absolute ownership. (Cruikshank v. Home for Friendless, 113 N. Y. 337.)

      Thomas V. Tozzi and T. Emory Clocke for Trustees of Fletcher Hospital, respondent.
    The bequest to the trustees of the Fletcher Hospital, as set forth in paragraph “ fifth ” of the will, was an absolute charitable bequest and vested in them upon the death of the testator, and, even though the hospital was not established within ten years, this did not destroy the intention of the testator that the fund be used for this charitable purpose nor did it entitle the appellant to the corpus of the fund. (Sherman v. Richmond Hose Co., 230 N. Y. 462; Mott v. Ackerman, 92 N. Y. 539; Matter of Swan, 237 App. Div. 454; 263 N. Y. 638; Bird v. Merklee, 144 N. Y. 544; Matter of Durand, 194 N. Y. 477; Matter of Hart, 205 App. Div. 703; Stewart v. Franchelti, 167 App. Div. 541; Authors Club v. Kirtland, 248 App. Div. 82.) The inadequacy of the fund created under paragraph “ fifth ” for the purposes intended does not make the provisions thereof “ inoperative ” nor does it in any way affect the validity of the gift. (Matter of MacDowell, 217 N. Y. 454; Matter of Swan, 237 App. Div. 454; 263 N. Y. 638; Sherman v. Richmond Hose Co., 230 N. Y. 462; Camp v. Presbyterian Society of Sachet’s Harbor, 105 Misc. Rep. 139; Matter of Nelson, 143 Misc. Rep. 843; Matter of Walter, 150 Misc. Rep. 512; Matter of Gary, 248 App. Div. 373; Associate Alumni v. Theological Seminary, 163 N. Y. 417.) The alleged gift to appellant under paragraph “ fourteenth ” of the will to take effect if paragraph “ fifth ” should be declared illegal or inoperative would be void because it may suspend the absolute ownership of personal property in that it is based upon a contingency which might not occur within two lives in being. (Cons. Laws, ch. 41, § 11; Sherman v. Richmond Hose Co., 230 N. Y. 462; Matter of Wilcox, 194 N. Y. 288; Walker v. Marcellus & O. L. Ry. Co., 226 N. Y. 347; Matter of Trevor, 239 N. Y. 6; Matter of Mayor, 55 Hun, 204; 119 N. Y. 660.) The testator did not by the last clause of paragraph “ fifth ” intend to cut down, diminish or qualify the bequest to the trustees of the Fletcher Hospital nor did he by paragraph “ fourteenth ” intend specifically to benefit the appellant. (Clay v. Wood, 153 N. Y. 134; Tillman v. Ogren, 227 N. Y. 495.)

      John J. Bennett, Jr., Attorney-General (Robert P. Beyer and Henry Epstein of counsel), for respondent.
    The Surrogate correctly applied the cy pres doctrine in the future administration of the trust fund for hospital purposes. (Matter of MacDowell, 217 N. Y. 454; Matter of Gary, 248 App. Div. 373; 272 N. Y. 635; Matter of Judd, 242 App Div. 389; 270 N. Y. 516; Matter of Swan, 237 App. Div. 454; 263 N. Y. 638; Sherman v. Richmond Hose Co., 230 N. Y. 462.)
   O’Brien, J.

July 5, 1923, Austin B. Fletcher died a resident of New York county. His will, admitted to probate January 3, 1924, embraced the following provisions:

“Fifth. I direct that One Hundred Thousand Dollars ($100,000) be set aside for the establishment and maintenance of a hospital, to be located in the Town of Franklin, Massachusetts, and to be known as The Fletcher Hospital; and that said sum shall be turned over to the proper trustees as soon as they shall be legally capacitated to receive it and the previous bequests in this My Last Will and Testament shall have been provided fori I direct that not more than two-fifths (2/5) of the principal be expended for buildings and equipment, and at least three-fifths (3/5) be held as a trust fund and invested in securities, which trustees may purchase with trust funds under the laws of the State of Massachusetts; and I diretit that the income only shall be used for the maintenance of the said hospital. I direct that said Hospital shall be incorporated as soon as may be after my death. It is my Will that this hospital shall be open to all under such terms and conditions as its Board of Directors shall deem wise and prudent; and that it shall be controlled by members or attendants of Protestant Churches. It is my wish that this fund may be allowed to accumulate within the lawful discretion of the Board of Trustees, and that they may buy suitable land, and complete the Hospital building within ten years from the time of my death, it being my purpose that under any circumstances this section of my will shall not be considered as giving directions contrary to law as it is, or as it may be, at the time of the execution of this trust.”
Fourteenth. Should any of the bequests made in this my Will, for any reason, be declared illegal or inoperative, I make a bequest or bequests of the same amount or values to Charles S. Chadwick, to be his and at his disposal.”

The parties stipulate that the cost to construct and equip a modern hospital at Franklin, Mass., would be $320,000 to $360,000, exclusive of land, and that the cost of operation would be $100,000. The opinion of the Surrogate holds that the facts stipulated make it clear that the present fund is insufficient to build, equip, maintain and operate a modern fair sized hospital ” (166 Misc. Rep. 486, 488), and the decree contains the finding that the fund now held by the trustees of the Fletcher Hospital Corporation is insufficient to carry out the precise terms of the conditions of paragraph fifth ” of the will. The courts below have applied the cy pres doctrine and directed the trustees to disburse the net income for hospitalization of needy or deserving people of Franklin in other hospitals, to contribute to the District Nursing Association of Franklin and to pay the expense of transporting needy or deserving people of Franklin for care or treatment at any hospital or other institution. Such a result s directly contrary to the intent of the testator as expressed in his will. Even if we were to assume that, in the absence of paragraph fourteenth,” the provisions of subdivision 2 of section 12 of the Personal Property Law (Cons. Laws, ch. 41) and the recent decision of this court in Matter of Neher (279 N. Y. 370) would authorize the application of the cy pres doctrine, such an assumption would necessarily be rebutted by the explicit provisions of paragraph fourteenth.” The testator, by paragraph fourteenth,” made clear beyond any conceivable doubt that, if the bequest under paragraph fifth ” should for any reason be declared inoperative, the amount therein mentioned should go to appellant Chadwick. He was an attorney, and this provision of his will renders certain that he did not wish the cy pres doctrine to interfere with his determined purpose. The parties stipulate facts which render the bequest inoperative and the opinion and finding in the courts below so declare. Therefore, in view of the testator’s command in paragraph “ fourteenth,” the doctrine of cy pres cannot attach.

Respondents trustees urge that the gift to appellant is void because it may suspend the absolute ownership of personal property in that it is based upon a contingency which might not occur within two lives in being and that the gift to the hospital vested immediately upon the death of the testator. While the trustees obtained possession of the fund it never vested in them, unless the provisions of paragraph fifth ” were operative at the time of the death of testator. At the date of the stipulation the fund, with its accumulations, amounted to $150,000, which was inoperative for the construction, equipment and operation of the hospital. At the date of testator’s death the fund had amounted to only $100,000. There is no finding that the fund at any time was sufficient to render operative the provisions of the fifth paragraph, and the only reasonable inference is that it never was sufficient. That being so, the fund never vested in the trustees. The will provides that the fund be allowed to accumulate and that the trustees may buy suitable land and complete the hospital building within ten years from the time of testator’s death. Nothing in the way of carrying out the provisions of the will has been done by the trustees, and their failure to act can be due only to the fact that the fund never was sufficient to render operative the fifth paragraph of the will. The bequest vested in appellant at the time of the testator’s death.

The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed and the matter remitted to the Surrogate’s Court to proceed in accordance with this opinion, with costs to appellant in all courts, payable out of the estate.

Crane, Ch. J., Hubbs, Loughran, Finch and Rippey, JJ., concur; Lehman, J., concurs in result,

Ordered accordingly.


text:
    Helen Thompson, an Infant, by Lottie C. Thompson, Her Guardian ad Litem, Respondent, Impleaded with Another, v. Board of Education of the City of New York et al., Defendants, and I. Victor Burger, Appellant.
    Argued January 16, 1939;
    decided February 28, 1939.

      Seymour Kempner for appellant.
    As a matter of law there was no proof of negligence on the part of the principal. (Peterson v. City of New York, 267 N. Y. 204; Curcio v. City of New York, 275 N. Y. 20; Fritz v. City of Buffalo, 277 N. Y. 710; Hamburger v. Cornell University, 240 N. Y. 328; Lessin v. Board of Education, 247 N. Y. 503; Garber v. Central School District No. 1, 251 App. Div. 214; Cambareri v. Board of Education, 246 App. Div. 127.)

      Harry N. Rosenfield and Theodore Fred Kuper for Joint Committee of Teachers Associations et al., amici curiæ.

    The principal fully discharged his duty of general supervision. (Peterson v. City of New York, 267 N. Y. 204; Curcio v. City of New York, 275 N. Y. 20; Miller v. Board of Education, 249 App. Div. 738; Kerby v. Elk Grove Union High School District, 1 Cal. App. [2d] 246; Purkis v. Walthamstow Borough Council, 151 Law Times, 30.)

      Michael H. Grae, Solomon R. Agar and Milton S. Klaw for respondent.
    There was ample evidence to support the finding of fact that the principal was negligent in failing to promulgate adequate regulations for the safe discharge of the pupils. (Frankenberger v. Schneller, 258 N. Y. 270; Metzroth v. City of New York, 241 N. Y. 470; Magid v. City of New York, 234 App. Div. 38; 259 N. Y. 618; Fritz v. City of Buffalo, 277 N. Y. 710; Faber v. City of New York, 213 N. Y. 411; Herman v. Board of Education, 234 N. Y. 196; Hamburger v. Cornell University, 240 N. Y. 328; Johnson v. Board of Education, 210 App. Div. 723; Katterschinsky v. Board of Education, 215 App. Div. 695; Lessin v. Board of Education, 247 N. Y. 503; Thurber v. Harlem Bridge, 60 N. Y. 331; Hays v. Miller, 70 N. Y. 112; Parnell v. Holland Furnace Co., 234 App. Div. 567; 260 N. Y. 604.) The failure of the principal to adopt a fair and reasonable degree of supervision and control was the direct and proximate cause of plaintiff’s injuries. (Thurber v. Harlem Bridge, 60 N. Y. 331; Frankenberger v. Schneller, 258 N. Y. 270; Metzroth v. City of New York, 241 N. Y. 470; World Exchange Bank v. Commercial Casualty Ins. Co., 255 N. Y. 1; Williams v. Board of Trustees, 210 App. Div. 161; Parnell v. Holland Furnace Co., 234 App. Div. 567; 260 N. Y. 604; Collentine v. City of New York, 279 N. Y. 119.)
   O’Brien, J.

Plaintiff, a girl fourteen years of age, was a pupil in a public school in New York city of which defendant Burger was principal. While descending an outside stairway of the school with her class, which consisted of twenty-four or twenty-five children, and as she reached the third of fourth step from the yard, one of the boys in the class, running down the stairway, collided with her and caused her to fall and to sustain injury. The complaint is based upon “ defendant’s negligence in allowing overcrowding to take place and to permit roughing by large boys, wholly without any supervision whatsoever.” The girls first descended the stairway and the boys followed, running down and passing the girls. The Appellate Division, in affirming the judgment against this appellant, held that a question of fact was presented whether he was negligent in failing to promulgate more adequate regulations for the safety of the pupils. The teacher who exercised direct supervision over this class at the time of the accident is the defendant Lorretta I. Delaney, concerning whom the Appellate Division holds: There was no proof of negligence on the part of the teacher.” (255 App. Div. 786).

Following is a summary of the evidence of supervision by appellant Burger: “A. In supervising the teachers: 1. He held regular conference with his 34 teachers. Egress and ingress of pupils, dismissal of classes, and safety contrivances were discussed and rules were laid down. Each conference lasted one hour; 2. He established the rule that the teacher was to see to the entire dismissal of her class; 3. He directed teachers to place themselves in ' strategic ’ positions during dismissals; 4. He instructed teachers, in the use of their discretion as to being in the lead, or in the middle or in the rear of the class, according to where she would find the greater control of the class; 5. He instructed teachers to admonish pupils against jostling and any other behavior not conducive to then safety. B. In supervising the school as a whole: He personally observed dismissals; 2. He regularly inspected the stairways and corridors; 3. He shut down stairways he found unsafe until repaired; 4. He directed the children to go down that stairway which gave prompest and safest egress; 5. He forbade the use of outer stairways in inclement weather; 6. He followed the general course of practice in all well regulated schools. C. In supervising the class in which the plaintiff was a pupil: 1. He placed a mature teacher of 29 years’ experience in charge; 2. He limited this class to only 25 pupils whereas the other two classes in the same grade had 37 pupils each; 3. He modified the program of this class to avoid the loss of time because these pupils were behind in their studies, having missed work through absence, illness or change of school; 4. He provided, for this class, almost the private use of a stairway avoiding the heavy traffic on the common inside stairway. D. In supervising the pupils: 1. He personally admonished children whenever he saw any unruliness on exits talking to them in his own office; 2. He spoke to the teacher when he was not satisfied with the dismissal; 3. He sent for the parent to come to his office, whenever any child needed such cooperation.”

There were about fifteen girls and nine boys in the class. Plaintiff testified that there was a double line of girls who first descended and the boys followed. The teacher, the defendant Miss Delaney, testified that she took the girls out to the first landing, looked over the rail of the landing and saw the head of the column reach the ground. Then she walked part way down with the boys who were going down in an orderly way. She noticed that one of the boys was missing and went back to get him. It was while she was thus temporarily absent that the accident occurred. From the evidence in the case the fact seems certain that defendant Burger, the principal, exercised such general supervision as was possible. The teacher was competent and the court below absolved her from the charge of negligence. Appellant could not personally attend to each class at the same time, nor was any such duty imposed upon him. (Peterson v. City of New York, 267 N. Y. 204; Curcio v. City of New York, 275 N. Y. 20; 24.)

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

Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Judgments reversed, etc.


text:
    Robert L. Owen et al., Respondents, v. H. Walter Blumenthal et al., Individually and as Copartners under the Name of Hallgarten & Company et al., Appellants.
    Argued November 22, 1938;
    decided February 28, 1939.

      Allen W. Dulles, Emery H. Sykes and Edward G. Miller, Jr., for appellants.
    The issues may not properly be determined upon summary application pursuant to roles 113 and 114 of the Buies of Civil Practice. (Dwan v. Massarene, 199 App. Div. 872; General Investment Co. v. Inter-borough R. T. Co., 235 N. Y. 133; Gravenhorst v. Zimmerman, 236 N. Y. 22; Curry v. Mackenzie, 239 N. Y. 267; King Motor Sales Corp. v. Allen, 209 App. Div. 281; Munoz & Co. v. Savannah Sugar Refining Corp., 118 Misc. Rep. 24.) A proper determination of the issues may not be reached without the Municipality of Medellin being joined as a party. (Christian v. Atlantic & N. C. R. R. Co., 133 U. S. 233; Baldwin v. Chase Nat. Bank, 16 Fed. Supp. 918; Lament v. Travelers Ins. Co., 254 App. Div. 511; Gallopin v. Winsor, 234 App. Div. 601; Ezra v. Lamont, 149 Misc. Rep. 912; 241 App. Div. 805; 265 N. Y. 635; Minnesota v. Northern Securities Co., 184 U. S. 199; Bradford v. Chase Nat. Bank, 24 Fed. Supp. 28.)

      John Ross Delafield, Wilmurt B. Linker and Leonard L. Barrett, amici curiæ.

    The acts or omissions of a corporate trustee or fiscal agent with respect to funds which it has never received are not the proper subject of an accounting in the absence of the establishment of wrongdoing by the corporate trustee or fiscal agent. (Pybus v. Smith, 1 Ves. Jr. 189; Osgood v. Franklin, 2 Johns. Ch. 1; 14 Johns. 527; Jackson v. Andrews, 98 N. Y. 672; Husted v, Thomson, 158 N. Y. 328; New York, P. & B. R. R. Co. v. Dixon, 114 N. Y. 80.)

      John W. Kelly, Frank J. Podesta and Benjamin Rockmore for respondents.
    The issues may properly be determined upon summary application pursuant to rules 113 and 114 of the Rules of Civil Practice. (Matter of Brunswick, 143 Misc. Rep. 573; Gillies v. Gillies, 239 App. Div. 582; Sayer v. Wynkoop, 248 N. Y. 54; City Bank Farmers Trust Co. v. Charity Organizations Society, 238 App. Div. 720; 264 N. Y. 441; Talmudic Literature Publishers, Inc., v. Lewin, 226 App. Div. 1; Fur & Wool Trading Co. v. Fox, Inc., 245 N. Y. 215; McClelland v. Norfolk Southern R. R. Co., 110 N. Y. 469; Batchelder v. Council Grove Water Co., 131 N. Y. 42; Coutts v. Kraft & Bros. Co., 119 Misc. Rep. 260; 206 App. Div. 625; Second Nat. Bank v. Kean, 203 N. Y. Supp. 909; Frethey v. Durant, 24 App. Div. 58; O'Meara Co. v. National Park Bank, 239 N. Y. 386; Lion Brewery v. Loughran, 223 App. Div. 623; Tilton v. Gans, 155 App. Div. 612; Child v. O’Rourke, 122 App. Div. 325.)
   Per Curiam.

A motion for summary judgment has been granted, and a referee appointed and directed to take testimony and report, not only in connection with taking and stating the accounts, but to ascertain and report concerning all of the acts or omissions of the defendants * * *, which acts or omissions may have affected the failure to receive more, or may have caused a diminution, of the funds and securities now held by the said defendants * * In so far as an accounting is based upon wrongdoing thus alleged, it may not be had unless such wrongdoing is first established. (New York, P. & B. R. R. Co. v. Dixon, 114 N. Y. 80, 85; Husted, v. Thomson, 158 N. Y. 328, 336; Jackson v. Andrews, 98 N. Y. 672, 675; Pybus v. Smith, 1 Ves. Jr. 189; Osgood v. Franklin, 2 Johns. Ch. 1, 27; affd., 14 Johns. 527.) The bondholders are entitled to an accounting, but the extent of the accounting depends not alone upon the so-called Fiscal Agency Agreement, but upon the course of conduct of the fiscal agents and whether the defendants have properly performed their duties as fiduciaries.

The motion for summary judgment should, therefore, have been denied.

Upon the trial of all the issues an opportunity may be afforded to the Municipality of Medellin to be made a party.

The orders should be reversed, without costs, and the motion denied. The first question certified is answered in the negative, and the remaining questions are not answered.

Crane, Ch. J., O’Brien, Hhbbs, Lottghran, Finch and Rippey, JJ., concur; Lehman, J., taking no part.

Ordered accordingly.


author: Finch, J. Lehman, J.

text:
    Grace Latterman et al., Infants, by Bessie Latterman, Their Guardian ad Litem, Appellants, v. Guardian Life Insurance Company of America, Respondent.
    Submitted January 4, 1939;
    decided February 28, 1939.

      Louis Zimmerman for appellants.

      Orville F. Grahame and D. Curtis Robertson for respondent.
    The election of the option would violate the legal provisions for investment of trust funds by guardians. (Cons. Laws, ch. 14, § 85; Cons. Laws, ch. 13, § 111; Matter of Vanderbilt, 129 Misc. Rep. 605; Matter of Rooney v. Wiener, 147 Misc. Rep. 48.) The contract of insurance did not, and could not, enlarge or waive statutory requirements. (Bank of Augusta v. Earle, 13 Pet. 519; Meacham v. Jamestown, F. & C. R. R. Co., 211 N. Y. 346; Crossman Co. v. Rauch, 263 N. Y. 264.) The proceeds of the policy should be paid to and collected by the general guardian in one lump sum. (Terry v. Black, 58 N. Y. 185; Matter of Vanderbilt, 129 Misc. Rep. 605; Matter of Rooney v. Wiener, 147 Misc. Rep. 48.)
   Finch, J.

The infant plaintiffs are the beneficiaries named in a policy of insurance issued by the defendant to their deceased father. This insurance policy differed in important particulars from the ordinary straight life policy. Bound up with the obligation to pay money upon [the] death was, among others, the obligation on the part of the insurer, to arise on the election of either the insured or a beneficiary, to retain the sum during the lifetime of the beneficiary or for a specified period, during which the company would pay thereon interest monthly at such rate as the company may declare for the year, but never less than the equivalent of the yearly rate of three per cent, with the obligation at the death of the payee, or at the end of the specified period, to make payment of the principal as provided in the election of the particular option. The father died without having exercised the option. The infant beneficiaries, as is now also their right, through their guardian, have chosen to take advantage of an option and have named a specified period, namely, until they attain their majority, during which the interest is to be paid as noted above.

This action has been brought to obtain specific performance of the agreement, upon refusal of the defendant to comply therewith. It is sought to use the infancy of the plaintiffs to nullify an integral part of the obligation and to limit such obligation to the mere payment of money, as the option has. become of value to the infants in the judgment of the guardian, and an undesired burden to the defendant. Must the court deprive the infants of the advantage of their right?

As a complete defense the defendant pleads in its answer section 85 of the Domestic Relations Law (Cons. Laws, ch. 14) and section 111 of the Decedent Estate Law (Cons. Laws, ch. 13). On motion of plaintiffs under Civil Practice Rules 109 and 112, this defense has been sustained heretofore and judgment rendered for the defendant. Plaintiffs now appeal from the affirmance of the Appellate Division, one justice dissenting.

The assured had the undoubted right to enter into the contract and to agree with the defendant upon the provisions in question. If these provisions enlarge, in a manner not against public policy, the power of the fiduciaries, effect thereto should be given. Otherwise, the solicitude of the law for the protection of infants is disregarded, and the provision becomes forfeited when the beneficiaries are minors. It cannot be held to have been without the contemplation of the contracting parties that the named beneficiaries might be minors at the death of the assured and that the assured might die without previous exercise by him of such option. The death of the assured while his children were minors was one of the likely happenings. The contract, however, contains no provision indicating that the right of the beneficiary to exercise such option should be lost in the event that the death of the assured occurred during the minority of the beneficiaries. Section 85 of the Domestic Relations Law and section 111 of the Decedent Estate Law limit" the powers of a guardian and other fiduciaries holding trust funds for investment.” These statutes have no application to the facts herein. The guardian does not first obtain funds as such plus the subsequent opportunity to invest, but a bundle of contractual rights, which have certain very valuable options as a component part thereof, all of which vest simultaneously.

By the terms of the insurance policy the beneficiaries acquired a vested interest in the performance of the contract by the defendant. Hence the infants obtained a right in the exercise of the option. Such an interest is in the nature of a property right. Accordingly, the problem at bar is not whether the guardian may invest funds already in the possession of the infants, in a non-legal security, but whether an infant shall be compelled to accept a portion of a gift and forfeit the balance. In other words, assume that the infants may receive by way of interest two per cent or two and one-half per cent upon deposit of a like sum in a savings bank, or a like amount of interest upon the price which must be paid for a security legal for the investment of the funds of infants, instead of three per cent upon this fund with accretions, must a court then compel the infants to sacrifice this difference every year, not only up to the coming of age of the infants, but during their entire lifetime? A guardian for an infant would not be compelled to decline a gift of a non-legal investment given upon condition that it should not be sold. In the case at bar, for the infants to be compelled to accept a lump sum payment would mean a substantial loss of value to them. There is the further factor that the non-legal property, namely, the exercise of the option, is one which cannot be separated from the remainder of the gift or be converted into other property.

It is true that an investment of the funds of an infant held by a guardian in real property would be forbidden, and yet a court would not compel the sale of such real property belonging to an infant except upon a finding by a court that such sale was for the best interest of'the infant. In seeking the best interests of the infant, which has always been the guiding principle for the courts, it must appear that the guardian has exercised his judgment and determined that the action he seeks is for the best interests of the infants. The court looks to this discretion which resides in the guardian and controls his judgment. The court will not substitute its judgment for that of the guardian as to what is for the best interests of the infants unless unusual circumstances are shown. Here the defendant is demanding the sacrifice of a portion of the property of the infants without regard to whether this forfeiture is or is not for the best interests of the infants and against a finding by the guardian that the best interests of the infants are directly to the contrary. The species of property in the case at bar is neither money nor real property, but a contractual obligation. (Compare Crossman Co. v. Rauch, 263 N. Y. 264.) If it were to be treated as an obligation only to pay a sum of money, which it is not, the infants would lose and the defendant gain monetary and other advantages.

The judgments should be reversed and judgment granted in favor of the plaintiffs for the relief demanded in the complaint, with costs in all courts.

Lehman, J.

(dissenting). Under the terms of the policy the assured has agreed to pay to the beneficiaries named in the policy the sum of money stipulated in the policy. No conditions are attached to that promise and the beneficiaries are entitled to demand payment immediately. The policy, however, grants optional methods of settlement ” and provides that if it is so elected the whole or any part of the net proceeds of this policy payable as a claim by death * * * will be retained by the Company and settled in accordance with the provisions stated below. * * * Option 1. The Company will make monthly interest payments on the sum retained during the life time of the payee or for a specified period at such rate as the Company may declare for each year, but never less than the equivalent of the yearly rate of three per cent.; * *

By exercise of that option a beneficiary may obtain an investment which he could obtain in no other way and which in the opinion of the beneficiary may be more advantageous than any other investment which the beneficiary can make. Before determining whether to exercise such an option, a prudent person would weigh the comparative advantages of that investment and investments of other kinds. Larger income return might perhaps be obtained from other investments, but at a risk which a prudent investor might not desire to take. Other investments equally safe might return a smaller income. Choice of investment may depend upon the knowledge and care of the investor and upon the comparative importance to the investor of safety and size of return. A contractual right to make an investment not otherwise obtainable is valuable to an investor who prefers such investment to any other investments that he might make.

In the investment of trust funds a fiduciary is not entirely free to weigh and balance conflicting considerations of safety and size of return. His choice of investments is limited by statute. The Legislature has specified those types of investments which to the Legislature seem to afford a maximum of safety.” Investment of trust funds by a fiduciary in manner not authorized by the statute may be regarded as a devastavit. (Delafield v. Barret, 270 N. Y. 43,48.) Concededly the statute does not permit a guardian to place moneys of an infant on deposit with an insurance company; concededly, if the insurance company had paid the amount of the policy to the guardian of the infant the guardian would not under the statute have been permitted to hand back the moneys to the insurance company to be held upon the terms specified in the option. That would have constituted an unauthorized investment; but it is said that here there has been no investment because the choice or option granted to the beneficiary by contract is whether to receive immediately the amount due under the policy or to direct the company to retain ” the money due at interest. Because there has been no money paid to the guardian there has been, it is said, no investment by the guardian.

A direction to a debtor to “ retain ” at interest for a definite time moneys presently due which the debtor is ready to pay is, aside from purely technical distinctions which carry no practical consequences, an investment of the moneys. The application of safeguards provided by the Legislature for the protection of trust funds should not depend upon technical distinctions without practical consequences. The same considerations which might properly induce the Legislature to limit investment of trust funds to those types of investment which seem to afford a maximum of safety apply with equal force to a direction to a debtor to retain moneys presently payable to a fiduciary as part of a trust fund. There is no analogy here to those cases where a testator or settlor places in a trust fund property which a trustee would not be free to purchase as a proper investment of the trust fund. In such case the powers of the trustee are derived from the trust instrument; the creator of the trust fund has chosen the property which should be held by the trustee. In this case the assured has made no such choice. Under the contract made by the assured the beneficiaries are entitled to payment of a sum of money. Because the beneficiaries are infants the moneys are payable to their guardian. He is under a duty to invest the moneys received in accordance with the statute. The policy confers a right to direct the insurance company to retain the money at interest. Beneficiaries who are free to invest their moneys as they choose can avail themselves of this contractual right. The assured has not expressly or by fair implication indicated that if the beneficiaries should be infants at the time when the moneys become payable their guardian should have the same choice as to the manner in which the trust funds should be invested as adult beneficiaries would have had. The purpose of the statute is to guide a guardian and other fiduciaries in the investment of trust funds. Freedom to reject such guidance may not be conferred by the courts or based upon doubtful implications. The infant beneficiaries are entitled to receive the moneys immediately payable under the policy. Acceptance of an obligation from the debtor to hold at interest for a definite term moneys presently payable in settlement or substitution of an obligation to pay the moneys, is an investment of the fund as much as if the moneys had been paid and then used to purchase a similar obligation. To hold otherwise is to disregard the substance and to give effect to form alone. To hold that the guardian may use his judgment as to whether an obligation by the insurance company to retain at interest moneys due is the most desirable form of investment of moneys belonging to an infant is to reject the command of the Legislature that only specified types of investment, selected because of safety, shall be treated as proper investment of such funds.

The judgment should be affirmed.

Crane, Ch. J., O’Brien, Hubbs, Loughran and Rippet, JJ., concur with Finch, J.; Lehman, J., dissents in opinion.

Judgment accordingly.


text:
    James Morse, an Infant, by Herman Morse, His Guardian ad Litem, et al., Respondents, v. Buffalo Tank Corporation, Appellant.

      Argued January 12, 1939;
    decided February 28, 1939.

      Frederick Mellor for appellant.
    The presence of the can of dirty gasoline on the defendant’s lot was not the proximate cause of the accident. The accident was the result of intervening and unexpected causes which could not have reasonably been anticipated by the defendant and it cannot be found liable on the theory of either negligence or nuisance. (Flaherty v. Metro Stations, Inc., 202 App. Div. 583; 235 N. Y. 605; Hall v. New York Tel. Co., 214 N. Y. 49; Bieckert v. G. M. Laboratories, 242 N. Y. 168; Babcock v. Fitzpatrick, 221 App. Div. 638; 248 N. Y. 608; DeRyss v. N. Y. C. R. R. Co., 275 N. Y. 85; Rolfe v. Hewitt, 227 N. Y. 486;
      Benenson v. National Surety Co., 260 N. Y. 299.) Plaintiffs have failed to prove that the proximate cause of the accident was the violation by defendant of any city ordinance. (Flaherty v. Metro Stations, Inc., 202 App. Div. 583; 235 N. Y. 605; Di Caprio v. N. Y. C. R. R. Co., 231 N. Y. 94; Olsen v. Fennia Realty Co., 246 N. Y. 641; Lang v. N. Y. C. R. R. Co., 227 N. Y. 507; Sarconi v. 122 West 26th St. Corp., 241 N. Y. 340.) The court committed prejudicial errors in charging the jury. (McFarlane v. City of Niagara Falls, 247 N. Y. 340; Sarconi v. 122 West 26th St. Corp., 241 N. Y. 340.)

      Ralph Stout, Stephen Callaghan, Jerome Otis Ellis, Seymour Kempner and Elias Bernstein for respondents.
    It was a question for the jury whether the defendant was negligent and whether its negligence was the proximate cause of the injury to the infant plaintiff. (Parnell v. Holland Furnace Co., 234 App. Div. 567; 260 N. Y. 604; Peirce v. Lyden, 157 Fed. Rep. 552; Sarapin v. S. & S. Corrugated Paper Machinery Co., 209 App. Div. 377; Hunt v. Rundle, 10 La. App. 604; Maloney v. Kaplan, 233 N. Y. 426; Lee v. Van Buren & N. Y. Bill Posting Co., 190 App. Div. 742; Hogan v. Comac Sales, Inc., 245 App. Div. 216; Hartman v. Berlin & Jones Envelope Co., 71 Misc. Rep. 30; 146 App. Div. 926; Payne v. City of New York, 277 N. Y. 393; Travell v. Bannerman, 174 N. Y. 47.) It was a question of fact for the jury whether the defendant maintained a nuisance on its premises to the injury of the plaintiffs. (McNulty v. Ludwig & Co., 153 App. Div. 206; Sarapin v. S. & S. Corrugated Paper Machinery Co., 209 App. Div. 377; Glover v. Holbrook, Cabot & Rollins Corp., 189 App. Div. 328; Wetsell v. Reilly, 159 App. Div. 688; Schuck v. Main, 39 Misc. Rep. 251; Reilly v. Erie R. R. Co., 172 App. Div. 476; 177 N. Y. 547; McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40; Heeg v. Licht, 80 N. Y. 579; Myers v. Malcolm, 6 Hill, 292; Perry v. Rochester Lime Co., 219 N. Y. 60; Prussak v. Hutton, 30 App. Div. 66.) There was no error in the court’s charge. (Fluker v. Ziegele Brewing Co., 201 N. Y. 40;

      Dodican v. Smith, 221 App. Div. 383; Orr v. B. & O. R. R. Co., 168 App. Div. 548; Carlock v. Westchester Lighting Co., 268 N. Y. 345; Khoury v. County of Saratoga, 243 App. Div. 195; McFarlane v. City of Niagara Falls, 247 N. Y. 340; Heeg v. Licht, 80 N. Y. 579; Linzey v. American Ice Co., 131 App. Div. 333; 197 N. Y. 605; Albee v. Chappaqua Shoe Mfg. Co., 62 Hun, 223; Haefeli v. Woodrich Engineering Co., 255 N. Y. 442; Cekala v. Mentzinger, 243 App. Div. 544; Williams v. First Nat. Bank, 167 N. Y. 594; Magid v. City of New York, 234 App. Div. 38; 259 N. Y. 618.)
   Finch, J.

This is an action to recover for personal injuries based upon alleged negligence.

The question presented is whether want of care may be attributed to a business man in the daily conduct of his business under the following circumstances: Upon the premises of defendant a drip can is left under the faucet of a gasoline drum from which gasoline is taken daily for the refueling of gasoline engines. Two boys trespass upon these premises after the close of business and in the.'night time, steal the drip can half full of gasoline, take it away from the property of defendant out into the street, and there attempt to throw it upon a fire theretofore started by these boys and others, causing the ignition of the gasoline. The infant plaintiff, a boy of ten, while walking along the street, stopped to look at the fire and, in attempting to run past the fire, tripped and fell into the fire, thereby sustaining the injuries for which suit is brought. , ,

Defendant is in the business of manufacturing metal tanks. Its premises consisted of a metal one-story shop building and a large yard outside of the shop, in which some of the work was done and in which were empty tanks of various kinds and sizes, a caterpillar tractor crane, an air-operated crane and other things. The yard was not fenced. The premises of defendant are on the southwest corner. On the southeast corner is a foundry plant of the New York Dock Company. There are private houses and a store on the northwest corner, and on the northeast corner is a public school. There is evidence which would warrant a jury'in finding that the boys in the neighborhood would come upon the premises of defendant to the knowledge of the officers of defendant. The workmen of defendant would at times make fires in an empty drum to burn up the waste dirty rags and other discarded material. The children would poke and play around these fires and at times the children would sneak in and steal gasoline in small cans. In the course of its business employees of defendant would soften and clean their paint brushes and wash their clothes and hands in the gasoline which had accumulated in the drip can.

On the night in question, after the close of business and while only a watchman was upon the premises, some boys had started in the street outside the place of business of defendant a bonfire. The infant plaintiff, a boy of about ten, while walking along the street, stopped to watch this small fire. There were seven or eight other boys watching the fire, but they were on the side of the street opposite from plaintiff. As the fire was dying down one of the boys went into the yard of defendant and obtained some tar which was in a gallon can and put it on the fire. As the tar burned down this same boy went back into the yard of defendant and saw a drum, in which was a spigot, standing upon a rack. Underneath this drum was a five-gallon can about half full of gasoline, which was dirty as if it had been used for washing. This boy and another carried the can out to the street. They testified they could tell by the smell that it was gasoline. When they were about six feet from the fire the can with its contents was thrown toward the fire. The can did not reach the fire, but landed about two or three feet away, and the contents spread out towards the fire. Plaintiff stated that he felt some of the gasoline splash upon his legs. A puff was then heard and the fire flared up. Plaintiff started to run past the fire to join the other boys. In so doing he ran towards the fire and fell into the fire. The cause of his fall, according to plaintiff, was that he tripped on something or fell from fright. His clothes caught fire when he fell. One of the boys pulled him. out. He then ran across the street to the candy store, turned on a water spigot, “ got under it and the boys threw water on him. He was then taken home.” There is no evidence that the clothes of plaintiff caught fire until he fell into the fire.

The theory of the action has been two-fold, first, negligence, and, second, nuisance, the latter being based on a failure of defendant to have a permit for the storage of gasoline in violation of a city ordinance.

The case was submitted to the jury and a verdict found for plaintiff on both counts in the sum of $22,500 for the infant plaintiff and $6,000 for his father.

The count based upon negligence has been maintained upon the theory that defendant knew that children were accustomed to play in and about the premises, and that under these circumstances it was negligent for defendant to leave a can exposed underneath the spigot so as to confine the drippings from the faucet.

On the count based on nuisance, the court charged that the jury might take into consideration a violation of the ordinance of the city of New York which requires the defendant to have a permit for the transport, store or use of gasoline in the city. It is conceded that defendant possessed no such permit.

The general rule which has prevailed since the well-known turntable case (Walsh v. Fitchburg R. R. Co., 145 N. Y. 301) is that the so-called doctrine of attractive nuisance does not apply in New York, and that the only duty which an owner of land owes to a trespasser or bare licensee is to abstain from affirmative acts of negligence or not to injure intentionally such person. (Vaughan v. Transit Dev. Co., 222 N. Y. 79; Hall v. International Ry. Co., 184 App. Div. 925; affd., 227 N. Y. 619.) In the turntable case, as in the case at bar, stress was laid upon the fact that defendant was doing, upon its own land, that which was necessary to be done to carry on its business. Under such circumstances defendant is not liable for an injury to a child who came upon the land for play not connected with the business of defendant. It was testified without contradiction that gasoline would drip from the faucet or spigot, and it may be said to be almost a matter of common knowledge that this would happen at least in the act of turning off the faucet. From this it naturally follows that without a drip can under the spigot the ground would become saturated, which might render the defendant liable to its neighbors or otherwise. Gasoline was used by defendant to operate the caterpillar tractor crane, and men filled the tank of the tractor crane by taking gasoline from the drum. While highly inflammable, the use of gasoline does not place the case at bar within the exception concerning the use of inherently dangerous materials. (Travell v. Bannerman, 174 N. Y. 47.) As Justice Sears, now presiding justice, said in the concurring opinion in Flaherty v. Metro Stations, Inc. (202 App. Div. 583, 588; unanimously affd., 235 N. Y. 605): Further I would not be inclined to class gasoline at the present time as a dangerous explosive (like dynamite or powder). Though somewhat volatile and highly inflammable, it has come into such common use as to be classed rather as one of the everyday necessities of modem life, concerning the keeping of which no such high responsibility should be imposed.” The facts in the case of Flaherty v. Metro Stations, Inc. (supra) are strikingly similar to those in the case at bar, as applied to the boys who came upon the premises of defendant and stole the drip can with such gasoline as had accumulated in it. In Flaherty v. Metro Stations, Inc., as in the case at bar, the boys built a bonfire and then went to the premises of defendant and stole some gasoline which had been left in a milk can on a platform. While proceeding with the gasoline from the premises of defendant back to the bonfire they threw some on the clothing of one another. When the gasoline was poured upon the fire it flashed up and burned plaintiff. There, too, the gasoline left in the milk can came from the drippings of a hose used in filling the truck tanks. There, too, the boys were accustomed to overrun the premises of defendant and play around the tanks. Hubbs, J., writing for an unanimous court, said: “ In this case the defendant was storing gasoline in the milk can in the ordinary and regular conduct of its own business upon its own land and the plaintiff was not there for the purpose of transacting business with the defendant but was there for the purpose of unlawfully taking the gasoline. If we apply the reasoning of the opinion in the turntable case, there can be no recovery. (p. 585).

Respondent ruges, however, that the person here injured was not a trespasser and one guilty of stealing materials in daily necessary use from the premises of defendant, but a pedestrian who at all times was rightfully upon the public street. Such facts, however, show the injury to this plaintiff to be the result of intervening and unexpected causes which could not have reasonably been anticipated by this defendant. If defendant, in the proper conduct of its daily business, is not guilty of any negligence to a child who, as a trespasser or bare licensee, is injured in coming upon the private premises of defendant for no purpose connected with the business of defendant but only for the purpose of recreation (Walsh v. Fitchburg R. R. Co., supra), then it is difficult to see how this defendant becomes liable to plaintiff. When materials properly used in its business are stolen by trespassers and transported away from the premises through the unlawful act of others, without the knowledge or consent of defendant, may this transpose an act, otherwise without negligence, into a negligent act of defendant? The acquiescence of plaintiff that these boys were guilty of petty larceny in taking the gasoline negatives any implied consent on the part of defendant. If defendant was free from negligence while the gasoline was properly upon its own premises its acts could riot be transformed into negligence through trespass and the stealing of its material and transportation away from the premises. If the act of the landowner on his own premises would not render him hable to a trespasser or licensee, then to create liability in favor of a member of the public, where the damage is occasioned only through the unlawful intervention of this trespasser or licensee, would impose upon this landowner an additional duty in caring for his own materials upon his own premises, which materials are not inherently dangerous.

Assume that boys were accustomed to playing with pieces of wood scattered about the premises of defendant, and had often stolen such wood to augment fires made away from the premises of defendant, it can hardly be supposed that the failure of defendant to prevent the boys from stealing the wood would impose liability on the defendant to those attending the bonfire.

Let us, however, approach the decision of this case from a different angle. The record contains no evidence that boys had been accustomed to take gasoline to make fires away from the premises. The fact that a pail containing dirty gasoline, left to accumulate the drippings of a faucet, would lead boys to steal the pail and throw the contents at a fire already burning in the public street, into which fire would trip a boy as he attempted to run by and join the others, is a chain of events containing so many new and unexpected causes that the result was not “ within the range of reasonable expectation.” (Perry v. Rochester Lime Co., 219 N. Y. 60, 63, 64; Bieckert v. G. M. Laboratories, Inc., 242 N. Y. 168; Babcock v. Fitzpatrick, 221 App. Div. 638; affd., 248 N. Y. 608.) The common foresight required of business men in the legitimate conduct of their daily business could not reasonably have anticipated such a result.

In the Appellate Division the judgment for plaintiff was affirmed on the authority of Parnell v. Holland Furnace Co. (234 App. Div. 567; affd., 260 N. Y. 604). That case, however, is distinguishable from the case at bar. There an automobile had been abandoned, not only upon a private driveway but upon a portion of the yard used in common by the defendants and other tenants of the common landlord. The plaintiff was rightfully upon the land at the invitation of one of the other tenants. Under such circumstances the law applicable to the duty owed by an owner of property to a person coming on the land either as a trespasser or as a bare licensee, has no application. Furthermore, in the Parnell case plaintiff did not know that there was gasoline in the tank. In the present case the boys who stole knew that the liquid was gasoline and that it would burn, and had taken it for that purpose.

There were also errors at the trial. The trial court committed error when it charged, in the count on negligence, that the lack of a permit by defendant to store and use gasoline might be considered as evidence of the negligence of defendant, and when it charged in the count on nuisance that the storage and use by defendant of gasoline without a permit might be considered evidence of the maintenance of a nuisance. Plaintiffs failed to prove that the proximate cause of the accident was the violation by defendant of any city ordinance. The court read to the jury the provisions which relate to a permit for storing or using gasoline within the city, and also read to the jury another ordinance relating to a permit for the storage of gasoline in a manner satisfactory to the Fire Commissioner. No portion of the ordinances had any application to the facts in the case at bar as showing any evidence that the proximate cause of the accident was the failure of plaintiff to have a permit. At most, these ordinances only show that they are for the prevention of a fire hazard upon the premises. ;.

In Flaherty v. Metro Stations, Inc. (202 App. Div. 583; affd. 235 N. Y. 605), where, as noted, the facts were similar to those in the case at bar, the court said: The trial court submitted to the jury the question of the defendant’s negligence growing out of the violation of section 302 of the General Business Law, which provides for the kind of structure to be used where oil or its products are kept for sale or are stored in a city. I do not think that section has anything to do with this case. The purpose of that section was not to protect one in the position of the plaintiff and there was no causal connection between the violation of the statute and the happening of the accident.” (See, also, Di Caprio v. N. Y. Central R. R. Co., 231 N. Y. 94; Olsen v. Fennia Realty Co., 246 N. Y. 641; Lang v. N. Y. Central R. R. Co., 227 N. Y. 507; Sarconi v. 122 West 26th St. Corp., 241 N. Y. 340.)

The court also committed prejudicial error when it charged the jury that if it found that defendant maintained a nuisance on its premises and that the injuries of plaintiff were caused by such nuisance, the verdict should be for plaintiff. In so charging the court eliminated the question of contributory negligence from the jury. The law is settled definitely that where nuisance arises from negligence, as in the case at bar, contributory negligence is a defense. (McFarlane v. City of Niagara Falls, 247 N. Y. 340.) Counsel for defendant excepted to this elimination and specifically called the attention of the court to the law that in cases of nuisance arising from negligence, contributory negligence is a defense.

These substantial errors of the court, however, become immaterial in view of the failure of plaintiff to prove that defendant was guilty of negligence in the conduct of its business.

It follows that the judgments should be reversed and the complaint dismissed, with costs in all coruts.

Lehman, J.

(dissenting). Though errors in rulings may require a new trial, the evidence establishes, in my opinion, a cause of action for damage resulting from injuries to the plaintiff caused by defendant’s negligence. The defendant conducted its business upon an uninclosed lot abutting upon a street where boys congregated for play. In its business the defendant Used gasoline and naphtha. Employees of the defendant were permitted to wash paint brushes and their clothes and hands in gasoline. The waste gasoline, as it dripped from the spigot of a gasoline tank, was collected in drip cans. Boys playing on the street were suffered to come upon the defendant’s premises and to take away waste gasoline or naphtha. In their play they would at times light bonfires in the street and would throw upon the fires the inflammable liquid so taken. All this was known to the employees and agents of the defendant, yet the defendant continued to leave drip cans of gasoline where boys might take them. Some boys did just what the defendant with that knowledge might have anticipated they would do. They came upon the defendant’s land, took away a drip can of waste gasoline and threw the gasoline upon the fire. The gasoline flared up and severely burned the infant plaintiff who, it appears, had not been a party to the trespass upon the land of the defendant and was an innocent spectator of the fire on the street.

The plaintiff’s cause of action does not depend upon the doctrine of attractive nuisance.” That doctrine has been rejected in this State. Where the doctrine is accepted it serves to excuse the trespass of children attracted by a dangerous nuisance upon private property. The infant plaintiff was not a trespasser. He was injured while lawfully on the street by exposure there to a danger created in part by the defendant’s user of its premises abutting on the street and in part by the wrongful act of other boys in taking the gasoline from the defendant’s premises and their negligent act in throwing it upon the fire.

“ By acquiescence in the misuse1 of his property by others, an owner may become, for practical purposes, a participant in such misuse.” (Ford v. Grand Union Co., 268 N. Y. 243, 251.) Lax control of employees in the conduct of a business on premises abutting upon a public street or of persons suffered to come upon the premises may cause unreasonable risk of bodily injury to others upon the street. Where the owner realizes, or should realize, that persons whom he can control are using his land or his chattels in manner which involves such unreasonable risk of bodily harm to others he may be subject to liability for resultant injury if he fails to exercise reasonable care to prevent such use. (Cf. Fletcher v. Baltimore & Potomac R. R. Co., 168 U. S. 135; Hogle v. Franklin Mfg. Co., 199 N. Y. 388; American Law Institute, Restatement of the Law of Torts, §§ 313, 317, 371.) In such case the owner of the property or the employer is under a duty to exercise reasonable care to prevent injury which, as a reasonably prudent man, he should know may otherwise result. Indeed, the problem presented in each case is not so much whether the duty exists, where the employer has knowledge or notice that lax control may result in injury to others, but whether in the particular case such knowledge or notice was present.” (Ford v. Grand Union Co., supra.)

In this case the evidence supports findings that the defendant knew that boys, at times, would come upon its premises and take away waste gasoline for use in dangerous play upon the street; and that, having such knowledge, the defendant, if it continued to leave gasoline unguarded where boys would be tempted to take it, should have anticipated that injury might follow to persons lawfully upon the street. Temptation to children to trespass may not, in this State, excuse a trespass by children, who succumb to the temptation, or place upon the occupier of land any duty to exercise care for the safety of the youthful trespassers, but where the occupier of land knows that he is creating or maintaining upon his lands a condition which lures children to trespass and through their trespass to endanger the safety of persons lawfully on the street, then the conditions maintained upon the land constitute a proximate cause of injury suffered by the wayfarers on the street. Towards them, at least, the occupier owes a duty of care, and intervening negligence or wrong by third parties breaks the chain of cause and effect, connecting conditions maintained by the occupier of the land with the injury suffered by a wayfarer on the street, only if the occupier of the land, in the exercise of reasonable care, should not have anticipated such intervening wrong.

The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if

(a) the actor at the time of his negligent conduct should have realized that a third person might so act.” (Restatement of the Law of Torts, § 447.)

Natural laws may in some cases directly and inexorably lead from known cause to known effect, while in other cases human action, variable and difficult to predict, intervenes and gives to known cause an effect it would not otherwise have. The test of responsibility for injury caused by act or neglect is always whether a reasonably prudent person would anticipate that from particular act or neglect, injury to another might follow. Where human intervention by third parties, whether by lawful or wrongful act, may be foreseen by the prudent, such intervention must be taken into account. If the course can be charted in advance from cause to injury it is unimportant whether the course is dictated by inexorable natural law or by arbitrary human act.

The judgments should be reversed and a new trial ordered.

Crane, Ch. J., O’Brien, Hubbs and Bjppey, JJ., concur with Finch, J.; Lehman, J., dissents in opinion, in which Loughran, J., concurs.

Judgments reversed, etc.


author: Lehman, J.

text:
    Anna Tedla et al., Respondents, v. Joseph Ellman et al., Appellants. Mary Bachek, as Administratrix of the Estate of John Bachek, Deceased, Respondent, v. Joseph Ellman et al., Appellants.
    Submitted October 24, 1938;
    decided February 28, 1939.

      Hobart R. Marvin and James A. Hughes for appellants.
    Decedent and plaintiff respondant were guilty of contributory negligence as a matter of law and the complaints should have been dismissed. (Martin v. Herzog, 228 N. Y. 164; Concolino v. Kunzelman, 259 N. Y. 602; Rosenberg v. Schwartz, 260 N. Y. 162.)

      Jacob Zelenko and Sidney R. Siben for respondents.
    Plaintiffs are not barred from recovering merely because section 85, subdivision 6, of the Vehicle and Traffic Law (Cons. Laws, ch. 72) prescribes the method of walking upon a highway. (Rabinowitz v. Solomon, 221 App. Div. 366; Martin v. Herzog, 228 N. Y. 164; Kettle v. Turl, 162 N. Y. 255; Boronkay v. Robinson & Carpenter, 247 N. Y. 365; Zurich G. A. & L. Ins. Co. v. Childs Co., 253 N. Y. 324; Anderson v. Calkins, 252 App. Div. 836; Van Brunt v. N. V. Tel. Co., 209 App. Div. 4; Shields v. Consolidated Gas Co., 193 App. Div. 86; Brown v. Shyne, 242 N. Y. 176; Hoffman v. Union Ferry Co., 47 N. Y. 176; Minerly v. Union Ferry Co., 56 Hun, 113; Lewis v. Rowland, 225 App. Div. 25.)
   Lehman, J.

While walking along a highway, Anna Tedla and her brother, John Bachek, were struck by a passing automobile, operated by the defendant Heilman. She was injured and Bachek was killed. Bachek was a deaf-mute. His occupation was collecting and selling junk. His sister, Mrs. Tedla, was engaged in the same occupation. They often picked up junk at the incinerator of the village of Islip. At the time of the accident they were walking along “Sunrise Highway” and wheeling baby carriages containing junk and wood which they had picked up at the incinerator. It was about six o’clock, or a little earlier, on a Sunday evening in December. Darkness bad already set in. Bachek was carrying a lighted lantern, or, at least, there is testimony to that effect. The jury found that the accident was due solely to the negligence of the operator of the automobile. The defendants do not, upon this appeal, challenge the finding of negligence on the part of the operator. They maintain, however, that Mrs. Tedla and her brother were guilty of contributory negligence as matter of law.

Sunrise Highway, at the place of the accident, consists of two roadways, separated by a grass plot. There are no footpaths along the highway and the center grass plot was soft. It is not unlawful for a pedestrian, wheeling a baby carriage, to use the roadway under such circumstances, but a pedestrian using the roadway is bound to exercise such care for his safety as a reasonably prudent person would use. The Vehicle and Traffic Law (Cons. Laws, ch. 71) provides that “Pedestrians walking or remaining on the paved portion, or traveled part of a roadway shall be subject to, and comply with, the rules governing vehicles, with respect to meeting and turning out, except that such pedestrians shall keep to the left of the center fine thereof, and turn to their left instead of right side thereof, so as to permit all vehicles passing them in either direction to pass on their right. Such pedestrians shall not be subject to the rules governing vehicles as to giving signals.” (§ 85, subd. 6.) Mrs. Tedla and her brother did not observe the statutory rule and, at the time of the accident, were proceeding in easterly direction on the east-bound or right-hand roadway. The defendants moved to dismiss the complaint on the ground, among others, that violation of the statutory rule constitutes contributory negligence as matter of law. They did not, in the courts below, urge that any negligence in other respect of Mrs. Tedla or her brother bars a recovery. The trial judge left to the jury the question whether failure to observe the statutory rule was a proximate cause of the accident; he left to the jury no question of other fault or negligence on the part of Mrs. Tedla or her brother, and the defendants did not request that any other question be submitted. Upon this appeal, the only question presented is whether, as matter of law, disregard of the statutory rule that pedestrians shall keep to the left of the center line of a highway constitutes contributory negligence which bars any recovery by the plaintiff.

Vehicular traffic can proceed safely and without recurrent traffic tangles only if vehicles observe accepted rules of the road. Such rules, and especially the rule that all vehicles proceeding in one direction must keep to a designated part or side of the road — in this country the right-hand side — have been dictated by necessity and formulated by custom. The general use of automobiles has increased in unprecedented degree the number and speed of vehicles. Control of traffic becomes an increasingly difficult problem. Rules of the road, regulating the rights and duties of those who use highways, have, in consequence, become increasingly important. The Legislature no longer leaves to custom the formulation of such rules. Statutes now codify, define, supplement and, where changing conditions suggest change in rule, even change rules of the road which formerly rested on custom. Custom and common sense have always dictated that vehicles should have the right of way over pedestrians and that pedestrians should walk along the edge of a highway so that they might step aside for passing vehicles with least danger to themselves and least obstruction to vehicular traffic. Otherwise, perhaps, no customary rule of the road was observed by pedestrians with the same uniformity as by vehicles; though, in general, they probably followed, until recently, the same rules as vehicles.

Pedestrians are seldom a source of danger or serious obstruction to vehicles and when horse-drawn vehicles were common they seldom injured pedestrians, using a highway with reasonable care, unless the horse became unmanageable or the driver was grossly negligent or guilty of willful wrong. Swift-moving motor vehicles, it was soon recognized, do endanger the safety of pedestrians crossing highways, and it is imperative that there the relative rights and duties of pedestrian s and of vehicles should be understood and observed. The Legislature in the first five subdivisions of section 85 of the Vehicle and Traffic Law has provided regulations to govern the conduct of pedestrians and of drivers of vehicles when a pedestrian is crossing a road. Until, by chapter 114 of the Laws of 1933, it adopted subdivision 6 of section 85, quoted above, there was no special statutory rule for pedestrians walking along a highway. Then for the first time it reversed, for pedestrians, the rule established for vehicles by immemorial custom, and provided that pedestrians shall keep to the left of the center line of a highway.

The plaintiffs showed by the testimony of a State policeman that “there were very few cars going east” at the time of the accident, but that going west there was “very heavy Sunday night traffic.” Until the recent adoption of the new statutory rule for pedestrians, ordinary prudence would have dictated that pedestrians should not expose themselves to the danger of walking along the roadway upon which the “very heavy Sunday night traffic” was proceeding when they could walk in comparative safety along a roadway used by very few cars. It is said that now, by force of the statutory rule, pedestrians are guilty of contributory negligence as matter of law when they use the safer roadway, unless that roadway is left of the center of the road. Disregard of the statutory rule of the road and observance of a rule based on immemorial custom, it is said, is negligence which as matter of law is a proximate cause of the accident, though observance of the statutory rule might, under the circumstances of the particular case, expose a pedestrian to serious danger from which he would be free if he followed the rule that had been established by custom. If that be true, then the Legislature has decreed that pedestrians must observe the general rule of conduct which it has prescribed for their safety even under circumstances where observance would subject them to unusual risk; that pedestrians are to be charged with negligence as matter of law for acting as prudence dictates. It is unreasonable to ascribe to the Legislature an intention that the statute should have so extraordinary a result, and the courts may not give to a statute an effect not intended by the Legislature.

The Legislature, when it enacted the statute, presumably knew that this court and the courts of other jurisdictions had established the general principle that omission by a plaintiff of a safeguard, prescribed by statute, against a recognized danger, constitutes negligence as matter of law which bars recovery for damages caused by incidence of the danger for which the safeguard was prescribed. The principle has been formulated in the Restatement of the Law of Torts: “A plaintiff who has violated a legislative enactment designed to prevent a certain type of dangerous situation is barred from recovery for a harm caused by a violation of the statute if, but only if, the harm was sustained by reason of a situation of that type.” (§ 469.) So where a plaintiff failed to place lights upon a vehicle, as required by statute, this court has said: we think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself. Lights are intended for the guidance and protection of other travelers on the highway. (Highway Law, § 329-a.) By the very terms of the hypothesis, to omit, wilfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. That, we think, is now the established rule in this State.” (Martin v. Herzog, 228 N. Y. 164, 168, per Cardozo, J.) The appellants lean heavily upon that and kindred cases and the principle established by them.

The analogy is, however, incomplete. The established rule” should not be weakened either by subtle distinctions or by extension beyond its letter or spirit into a field where by the very terms of the hypothesis” it can have no proper application. At times the indefinite and flexible standard of care of the traditional reasonably prudent man may be, in the opinion of the Legislature, an insufficient measure of the care which should be exercised to guard against a recognized danger; at times, the duty, imposed by custom, that no man shall use what is his to the harm of others provides insufficient safeguard for the preservation of the life or limb or property of others. Then the Legislature may by statute prescribe additional safeguards and may define duty and standard of care in rigid terms; and when the Legislature has spoken, the standard of the care required is no longer what the reasonably prudent man would do under the circumstances but what the Legislature has commanded That is the rule established by the courts and by the very terms of the hypothesis” the rule applies where the Legislature has prescribed safeguards for the benefit of another that he may be preserved in life or limb.” In that field debate as to whether the safeguards so prescribed are reasonably necessary is ended by the legislative fiat. Obedience to that fiat cannot add to the danger, even assuming that the prescribed safeguards are not reasonably necessary and where the legislative anticipation of dangers is realized and harm results through heedless or willful omission of the prescribed safeguard, injury flows from wrong and the wrongdoer is properly held responsible for the consequent damages.

The statute upon which the defendants rely is of different character. It does not prescribe additional safeguards which pedestrians must provide for the preservation of the life or limb or property of others, or even of themselves, nor does it impose upon pedestrians a higher standard of care. What the statute does provide is rules of the road to be observed by pedestrians and by vehicles, so that all those who use the road may know how they and others should proceed, at least under usual circumstances. A general rule of conduct — and, specifically, a rule of the road — may accomplish its intended purpose under usual conditions, but, when the unusual occurs, strict observance may defeat the purpose of the rule and produce catastrophic results.

Negligence is failure to exercise the care required by law. Where a statute defines the standard of care and the safeguards required to meet a recognized danger, then, as we have said, no other measure may be applied in determining whether a person has carried out the duty of care imposed by law. Failure to observe the standard imposed by statute is negligence, as matter of law. On the other hand, where a statutory general rule of conduct fixes no definite standard of care which would under all circumstances tend to protect life, limb or property but merely codifies or supplements a common-law rule, which has always been subject to limitations and exceptions; or where the statutory rule of conduct regulates conflicting rights and obligations in manner calculated to promote public convenience and safety, then the statute, in the absence of clear language to the contrary, should not be construed as intended to wipe out the limitations and exceptions which judicial decisions have attached to the common-law duty; nor should it be construed as an inflexible command that the general rule of conduct intended to prevent accidents must be followed even under conditions when observance might cause accidents. We may assume reasonably that the Legislature directed pedestrians to keep to the left of the center of the road because that would cause them to face traffic approaching in that lane and would enable them to care for their own safety better than if the traffic approached them from the rear. We cannot assume reasonably that the Legislature intended that a statute enacted for the preservation of the life and limb of pedestrians must be observed when observance would subject them to more imminent danger.

The distinction in the effect of statutes defining a standard of care or requiring specified safeguards against recognized dangers and the effect of statutes which merely codify, supplement or even change common-law rules or which prescribe a general rule of conduct calculated to prevent accidents but which under unusual conditions may cause accidents, has been pointed out often. Seldom have the courts held that failure to observe a rule of the road, even though embodied in a statute, constitutes negligence as matter of law where observance would subject a person to danger which might be avoided by disregard of the general rule. In the United States and in England certain rules regarding the rights of vehicles and persons meeting or passing in the public highway have been established by long continued custom or usage, or, in many jurisdictions, by statutory regulation. These rules and regulations are usually spoken of as the law of the road’ or the rules of the road.’ These rules are, however, not inflexible, and a strict observance should be avoided when there is a plain risk in adhering to them, and one who too rigidly adheres to such rules when the injury might have been averted by variance therefrom, may be charged with fault; * * * the exceptions to the rule of the road depend upon the special circumstances of the case, and in respect to which no general rule can be applied.” (13 Ruling Case Law, tit. Highways,” § 222. Cf. Clarke v. Woop, 159 App. Div. 437; 2 Thomas on Negligence [2d ed.], p. 2346; 3 Shearman & Redfield on The Law of Negligence, § 649; Herdman v. Zwart, 167 Iowa, 500, 503; McElhinney v. Knittle, 199 Iowa, 278; Piper v. Adams Express Co., 270 Penn. St. 54; Dohm v. Cardozo, 165 Minn. 193; Snow v. Biggs, 172 Ark. 835, 840. See, also, 24 A. L. R. 1304, note; 63 A. L. R. 277, note.)

The generally accepted rule and the reasons for it are set forth in the comment to section 286 of the Restatement of the Law of Torts: Many statutes and ordinances are so worded as apparently to express a universally obligatory rule of conduct. Such enactments, however, may in view of their purpose and spirit be properly construed as intended to apply only to ordinary situations and to be subject to the qualification that the conduct prohibited thereby is not wrongful if, because of an emergency or the like, the circumstances justify an apparent disobedience to the letter of the enactment. * * * The provisions of statutes, intended to codify and supplement the rules of conduct which are established by a course of judicial decision or by custom, are often construed as subject to the same limitations and exceptions as the rules which they supersede. Thus, a statute or ordinance requiring all persons to drive on the right side of the road may be construed as subject to an exception permitting travellers to drive upon the other side, if so doing is likely to prevent rather than cause the acci dents which it is the purpose of the statute or ordinance to prevent.”

Even under that construction of the statute, a pedestrian is, of course, at fault if he fails without good reason to observe the statutory rule of conduct. The general duty is established by the statute, and deviation from it without good cause is a wrong and the wrongdoer is responsible for the damages resulting from his wrong. (Cf. Dohm v. Cardozo, supra; Heidman v. Zward, supra; Clarke v. Woop, supra.)

I have so far discussed the problem of the plaintiffs’ right to compensation for the damages caused by defendants’ negligence as if it depended solely upon the question of whether the pedestrians were at fault, and I have ignored the question whether their alleged fault was a proximate cause of the accident. In truth, the two questions cannot be separated completely. If the pedestrians had observed the statutory rule of the road they would have proceeded easterly along the roadway on the left of the center grass plot, and then, it must be conceded, they would not have been struck by the automobile in which the defendants were riding, proceeding in the same direction along the roadway on the right. Their presence on the roadway where they were struck was an essential condition of their injury. Was it also as matter of law a proximate cause of the accident? The position of a vehicle, which has been struck by another, may or may not have been one of the causes of the striking. Of course it would not have been struck if it had not been in the place where the blow came. But this is a statement of an essential condition, and not of a cause of the impact. The distinction is between that which directly or proximately produces, or helps to produce, a result as an efficient cause, and that which is a necessary condition or attendant circumstance of it. * * * What is a contributing cause of an accident is usually a question for a jury, to be determined by the facts of the particular case.” (Newcomb v. Boston Protective Department, 146 Mass. 596, 604.) Here the jury might find that the pedestrians avoided a greater, indeed an almost suicidal, risk by proceeding along the east bound roadway; that the operator of the automobile was entirely heedless of the possibility of the presence of pedestrians on the highway; and that a pedestrian could not have avoided the accident even if he had faced oncoming traffic. Under those circumstances the question of proximate cause, as well as the question of negligence, was one of fact.

In each action, the judgment should be affirmed, with costs.

Crane, Ch. J., Hubbs, Loughran and Rippey, JJ., concur; O’Brien and Finch, JJ., dissent on the authority of Martin v. Herzog (228 N. Y. 164).

Judgments affirmed.