text:
    Frank J. Maguire, as Executor of Gertrude B. Zulauf, Deceased, Appellant, v. Nathan E. Blodgett, Defendant, and Puget Sound Company, Inc., Respondent.
    Argued May 18, 1943;
    decided June 18, 1943.

      Edward N. Mills, Jr., for appellant.

      Frank Gibbons for respondent appearing specially.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Will of Rudolph R. Noll, Deceased. Gerda Noll et al., Petitioners-Appellants. Otto Ruprecht et al., Individually and as Executors and Trustees under the Will of Rudolph R. Noll, Deceased, et al., Respondents. National Surety Corporation et al., Respondents. (2 Proceedings) In the Matter of the Estate of Rudolph R. Noll, Deceased. Eleanors G. Noll, an Infant, by Gerda Noll, Her Guardian ad Litem, et al., Petitioners-Appellants. Otto Ruprecht et al., Individually and as Executors and Trustees under the Will of Rudolph R. Noll, Deceased, Respondents. Edward A. Pfeffer et al., Respondents.
    Submitted May 19, 1943;
    decided June 18, 1943.

      Abraham Fishbein and James J. Munro for appellants.

      Edward A. Pfeffer for respondents.
   Appeals dismissed, without costs, on the ground that the orders do not finally determine the proceedings within the meaning of the Constitution. No opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Title Guarantee & Trust Company, as Assignee Trustee of the Rents, etc., of the Premises of the Real Estate Board of New York Building Co., Inc., at 10-12-14 East 41st Street, New York City, Appellant, v. The City of New York, Respondent.
    Argued May 20, 1943;
    decided June 18, 1943.

      Harold J. Treanor, Hugh B. Archer and James W. Scott for appellant.

      Robert H. Schaffer, Acting Corporation Counsel (Raymond Herzog and Sol Charles Levine of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Thacher. J.


text:
    The People of the State of New York, Respondent, v. John Woods, Appellant.
    Argued May 20, 1943;
    decided June 18, 1943.

      Alfred A. Duffy and Benjamin Schifter for appellant.

      Thomas Cradock Hughes, Acting District Attorney (Henry J. Walsh of counsel), for respondent.
   Judgments reversed and indictment dismissed. There is in this record no proof of such conscious, exclusive and personal possession as would warrant the jury in convicting the defendant of larceny. No opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Florence E. Riley, Appellant, v. Charlotte Carlton, Respondent.
    Argued May 18, 1943;
    decided June 18, 1943.

      Esmond Murphy for appellant.

      Frank Gibbons for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    In the Matter of Charles Reschke, Deceased. Anne Dieterich et al., Appellants; Joseph Peck, Respondent.
    Argued May 19, 1943;
    decided June 18, 1943.

      Thomas F. Hyland and William H. Daly for appellants.

      Edward R. Dobson and Anthony A. Cocheo for respondent.
   Order affirmed, with costs to all parties filing separate briefs payable out of the estate; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    In the Matter of Florence B. Ziegler, as Surviving Spouse of Otto H. Ziegler, Deceased, Respondent. Fritz Ziegler, as Executor of Otto H. Ziegler, Deceased, et al., Appellants.
    Submitted May 20, 1943;
    decided June 18, 1943.

      Abraham J. Goldberg for appellants.

      Isidor Tankus and Benjamin Feldman for respondent.
   Order affirmed, with costs to petitioner-respondent payable out of the estate; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    John Randolph, Respondent, v. Royce Haulage Corporation, Appellant.
    Argued May 20, 1943;
    decided June 18, 1943.

      William, C. Morris and Edward M. Fuller for appellant.

      Alfred Weisstein, Samuel Weissiem and Harry Zeitlan for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Marion L. Kirby, Respondent, v. Fred J. Tricker et al., Appellants.
    Submitted March 8, 1943;
    decided June 18, 1943.

      Rudolph Dugan for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant serves and files undertaking on appeal within ten days, in which event the motion is denied.


text:
    Joseph G. Browne, Appellant, v. Fenton G. Hibbets, as President of Local Union No. 584, Unit No. 3, International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Respondent, et al., Defendants.
    Submitted May 17, 1943;
    decided June 18, 1943.
   Motion by respondent for reargument and to amend the remittitur denied. The appeal was determined upon the facts as shown in the record, though the statement in the opinion that a letter was written “ appealing * * * from the Local’s action expelling plaintiff ” may not be entirely accurate and will be corrected. (See 290 N. Y. 459.)


text:
    Hebrew Publishing Company, Respondent, v. Asher Scharfstein, Appellant.
    Submitted May 24, 1943;
    decided June 18, 1943.

      Henry L. Burkitt for motion.
    No one opposed.
   Motion granted.


text:
    Joseph G. Browne, Appellant, v. Fenton G. Hibbets, as President of Local Union No. 584, Unit No. 3, International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Respondent, et al., Defendants.
    Submitted May 24, 1943;
    decided June 18, 1943.
   Motion by plaintiff for reargument and to amend the remittitur denied. (See 290 N. Y. 459.)


text:
    In the Matter of the Estate of Amy J. Evans, Deceased. Janet W. Hill, Respondent; Durward R. Evans, as Executor of Amy J. Evans, Deceased, Appellant.
    Submitted June 7, 1943;
    decided June 18, 1943.

      Howard L. Kuttner and Henry M. Wolfson for motion.

      Janet W. Hill, in person, and William J. Gordon opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Anna Fisher, as Administratrix of the Estate of Albert Fisher, Deceased, Appellant, v. New York Good Humor, Inc., Respondent.
    Submitted June 7, 1943;
    decided June 18, 1943.

      Joseph A. Minch for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs, and ten dollars costs of motion.


text:
    Horn & Hardart Company, Plaintiff, v. 115 East 14th Street Company, Inc., Defendant-Respondent, and Third Holding Corporation, Defendant-Appellant.
    Submitted June 7, 1943;
    decided June 18, 1943.

      Samuel Ross Ballin and William Dean Embree for motion.

      Charles H. Tuttle, Stoddard B. Colby and Charles Fredericks opposed.
   Motion denied, with leave to renew upon the argument.


text:
    Dorothy A. Wolin, Respondent, v. William Wolin, Appellant.
    Submitted June 7, 1943;
    decided June 18, 1943.

      Benjamin Barondess for motion.

      Hyman Grill opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Namstrad, Incorporated, Appellant, v. Olavarria & Co., Inc., Respondent.
    Submitted June 7, 1943;
    decided June 18, 1943.

      Winthrop H. Kellogg for motion.

      Irving J. North opposed.
   Motion granted, and appeal dismissed, with costs, and ten dollars costs of motion, unless appellant serves and files undertaking on appeal and pays ten dollars costs within thirty days,in which event the motion is denied.


text:
    Edward J. Fitzgerald et al., as Executors of Annie Fitzgerald, Deceased, Appellants, v. Title Guarantee and Trust Company, Respondent.
    Submitted June 7, 1943;
    decided June 18, 1943.
   Motion to amend remittitur granted. Return of remittitur requested, and when returned it will be amended to provide as follows: ‘ ‘ Judgment affirmed without costs and with leave to the plaintiff to serve an amended complaint within twenty days after the service of the order of the Supreme Court making "the order of the Court of Appeals the order of the Supreme Court, with notice of entry thereof.” (See 290 N. Y. 376.)


text:
    Ivy Friedman, an Infant, by Mildred Friedman, Her Guardian ad Litem, Appellant, v. Earl Kyle et al., Respondents.
    Submitted June 7, 1943;
    decided June 18, 1943.

      Eric P. Smith for motion.

      Jonas P. Relin opposed.
   Motion denied.


text:
    Richard S. Childs, Appellant, v. Robert Moses et al., Respondents.
    Submitted June 7, 1943;
    decided June 18, 1943.
   Motion to amend remittitur granted. Return of remittitur requested, and when returned it will be amended by providing that the judgment is affirmed “ without costs.” (See 290 N. Y. 828.)


text:
    2018 Seventh Ave., Inc., Respondent, v. Nach-Haus Leasing Corporation, Appellant.
    Submitted June 7, 1943;
    decided June 18, 1943.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 289 N. Y. 490.)


text:
    The People of the State of New York ex rel. William Wurzler, Appellant, against William Hunt, as Warden of Attica State Prison, Respondent.
    Submitted June 14, 1943;
    decided June 18, 1943.

      William Wurzler, in person, for motion.

      Nathaniel L. Goldstein, Attorney-General (Emil L. Cohen of counsel), opposed.
   Motion for leave to appeal from the order of the Appellate Division denying leave to prosecute appeal as a poor person denied, on the ground that it does not finally determine the proceeding within the meaning of the Constitution. We have no power to grant leave to appeal from the order of the County Court because an appeal therefrom is still pending in the Appellate Division.


text:
    Lydia L. Querze, Appellant, v. Raoul Querze, Respondent.
    Submitted June 14, 1943;
    decided June 18, 1943.
   Motion to reargue motion to amend remittitur denied. (See 290 N. Y. 13, 765.)


text:
    Phebe Langrick et al., Plaintiffs, and Mary J. L. Frank, Plaintiff-Appellant, v. Richard Rowe et al., Defendants, Impleaded with Thomas E. Rowe et al., Defendants-Respondents.
    Submitted June 14, 1943;
    decided June 18, 1943.

      Joseph T. Arenson for motion.

      Jay Leo Rothschild and Louis Rivkin opposed.
   Motion denied, with ten dollars costs.


text:
    The People of the State of New York, Respondent, v. Louis Buchalter, Emanuel Weiss and Louis Capone, Appellants.
    Submitted June 14, 1943;
    decided June 18, 1943.
   Motiojn for reargument denied. (See 289 N. Y. 181.)


text:
    The People of the State of New York, Respondent, v. Louis Buchalter, Emanuel Weiss and Louis Capone, Appellants.
    Argued March 2, 1943;
    decided June 18, 1943.

      Thomas Cradock Hughes, Acting District Attorney (Solomon A. Klein and Henry J. Walsh of counsel), for motion.

      I. Maurice Wormser and J. Bertram Wegman for Louis Buchalter, defendant-appellant.

      John Schulman for Emanuel Weiss, defendant-appellant.

      Benjamin J. Jacobson for Louis Capone, defendant-appellant.
   Motion granted and wardens or other officers having custody of defendants directed to produce them before the Court of Appeals at the Court of Appeals Hall in the City of Albany, New York, on the twentieth day of July [1943] at nine o’clock in the forenoon of that day; that they may he dealt with according to. the provisions of the Code of Criminal Procedure of the State of New York.


author: Lewis, J.

text:
    In the Matter of the Will of Morris Roth, Deceased. Jesse Roth, as an Alternate Executor and Trustee of Morris Roth, Deceased, Appellant. Meier Steinbrink, as Executor and Trustee of Morris Roth, Deceased, et al., Respondents.
    Argued May 18, 1943;
    decided July 20, 1943.

      Lloyd B. Kanter and Lewis Singer for appellant.
    A testator has the absolute right to name- the person to administer his estate and such nomination may be conditionally or unconditionally made; and the nominee has the absolute right to refuse to accept any such appointment. (Matter of Healey, 255 App. Div. 361; 33 C. J. S. p. 903, § 22a, p. 907, § 24; Matter of Chapin, 167 Misc. 388.) A testamentary direction to an executor may be a nullity for want of power in the testator to require its performance, but if its performance is made a condition precedent of the acceptance of an executorial or other appointment, the appointment cannot be taken unless the condition be satisfied. (Matter of Caldwell, 188 N. Y. 115; Matter of Olney, 255 App. Div. 195.) The limitation on proponent’s expenditures for counsel fees is a condition precedent of his appointment. Public policy is not contravened by the condition precedent of proponent’s appointment by which the amount of his expenditures for counsel fees are limited. An appointment of an executor upon a condition precedent which violates public policy is invalid in its entirety. (Caw v. Robertson, 5 N. Y. 125; Hogan v. Curtin, 88 N. Y. 162; Oliver v. Wells, 254 N. Y. 451; Scott v. Tyler, 29 Eng. Rep. 253.) If it be held that the limiting condition is such that proponent may only accept the appointment upon his acquiescence in the condition, the allowance to his attorneys was improper.

      John F. Brosnan and Richard S. Ritzel for Meier Stein-brink, respondent.
    A testamentary limitation on the amount to be expended by an executor and trustee for legal services is against public policy. (Matter of Olney, 255 App. Div. 195, 281 N. Y. 98; Matter of Wallach, 164 App. Div. 600, 215 N. Y. 622; Matter of Caldwell, 188 N. Y. 115; Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407.) The limitation as to counsel fees whether or not a condition precedent is void and of no effect. (Matter of Liberman, 279 N. Y. 458.) The allowance to respondent’s attorneys of $2,500 by the Surrogate was proper whether the condition limiting counsel fees was valid or not. (Matter of Reimers, 261 N. Y. 337.)

      Clarence R. Treeger for Jewish Hospital of Brooklyn, respondent.
    The limitation on the amount of the counsel fee is against public policy and void. (Matter of Caldwell, 188 N. Y. 115; Matter of Liberman, 279 N. Y. 458; Matter of Olney, 255 App. Div. 195, 281 N. Y. 98.) The order of the Appellate Division, affirming the Surrogate’s ruling conserves the assets of the estate and carries out the intent of the testator.
   Lewis, J.

When the will of Morris Roth, deceased, was presented for probate in Surrogate’s Court, Kings County, the petitioner, whom the testator nominated conditionally as executor and testamentary trustee, requested the construction of several paragraphs of the instrument. The following paragraph is the only one with which we are concerned upon this appeal:

Second: I hereby nominate, designate and appoint as Executor and Trustee of this my Last Will and Testament, Meier Steinbrink, Esq., who is at present a member of the law firm of J ones, McKinney & Steinbrink, with offices at No. 215 Montague Street, in the Borough of Brooklyn, City of New York, hereby directing that said Executor and Trustee qualify and serve as such without compensation. In all purely legal matters relating to the proving of this Will, the administration of my estate and the execution of the trusts hereinafter created, he is authorized, however to employ counsel at an expense not to exceed the sum of One thousand Dollars, which sum of One thousand Dollars shall be in lieu of all other fees, allowances, or other compensation. Should the said Meier Steinbrink, Esq., refuse to qualify and serve as such Executor and Trustee, upon the conditions herein imposed, I hereby name, designate and appoint my beloved wife Pearl Both and my nephew J esse Both Executors and Trustees of this my Last Will and Testament without any qualifications whatsoever.” (Emphasis supplied.)

In his petition for the probate of the decedent’s will the petitioner advised the Surrogate that although he was willing to serve as executor and trustee without compensation, “ * * * nevertheless, as petitioner is a Justice of the Supreme Court of the State of New York, he cannot in the nature of things give his personal attention to the details of the legal matters involved in this estate, and, therefore, is willing to assume the duties and responsibility of acting as Executor and Trustee if he can retain competent counsel, and submits that he cannot retain such competent counsel if such limitation [as to counsel fees] be a valid one and legally binding upon him.”

The Surrogate admitted the will to probate and ruled, that as to the testamentary nomination of the petitioner as executor and trustee the only condition imposed upon him by the second paragraph, quoted in full above, is that he act without compensation and that the further limitation as to the expenditure of counsel fees in the administration of the estate is not binding upon him. In response to applications for allowances under the Surrogate’s Court Act, §§ 231-a and 278, the Surrogate allowed to counsel for the petitioner for services and disbursements on the probate proceeding the sum of $2,698.42 and to counsel for Jesse Both, who opposed the construction placed upon the will by the Surrogate, the sum of $250.

Such a disposition of the problem presented upon the probate of the decedent’s will disregards, we think, the testamentary plan for the administration of his estate. Under such plan — for reasons not known to us but apparently sufficient to satisfy the testator’s desire in that regard — the nomination of the petitioner as executor and trustee was clearly burdened with conditions. The problem would be different if, without specifying an alternative, the testator had nominated only the petitioner as his executor and trustee and had attempted by his will to dictate the choice of his executor’s counsel and to fix the maximum amount of fees which could be paid for legal services. Such limitations, in cases where the wills involved prescribed no legal alternatives, have met with disapproval when challenged in our courts. (Matter of Caldwell, 188 N. Y. 115,121; Matter of Olney, 255 App. Div. 195.)

In the present case, however, the testator expressly provided otherwise by setting up an alternative plan for the appointment of those who would administer his estate. That alternative plan, as we have seen, was clearly phrased — “ Should the said Meier Steinbrink, Esq., refuse to qualify and serve as such Executor and Trustee, upon the conditions herein imposed, I hereby name, designate and appoint my beloved wife Pearl Roth and my nephew Jesse Roth Executors and Trustees of this my Last Will and Testament without any qualifications whatsoever(Emphasis supplied.)

By the provision last quoted above, the “ conditions herein imposed ”, attaching to the nomination of the petitioner as executor and trustee, are again referred to as if to emphasize the testator’s intent in that respect. The testator thus made it a matter for the petitioner’s choice whether he would qualify and serve as such executor and trustee under conditions expressly imposed by the will which the petitioner might consider to be unreasonable and rigid.

In the absence of proof that the decedent’s will was the product of a mind which lacked testamentary capacity or which was under a malign influence, the testator was free — within legal limitations which do not affect this particular plan — to arrange as he desired for the administration of his estate. In these circumstances the Surrogate’s decree, which has been affirmed by the Appellate Division, authorizes acts' by the petitioner as executor and trustee which are directly opposed to the carefully designed and clearly outlined testamentary plan of the decedent. We may not disregard the alternative nominations which were expressly made a part of that plan and which the testator intended should become effective in the event the petitioner should * * * refuse to qualify and serve as such Executor and Trustee, upon the conditions herein imposed.”

Upon the record at hand the testamentary condition precedent to the petitioner’s qualification and service as executor and trustee of the decedent’s will may not be ignored. To do so would permit the petitioner to serve in that capacity without regard for the conditions expressly imposed by the testator; it would give no effect to the alternative unconditional nominations made by the testator; it would disregard the plan for the administration of his estate as to which his intention was clearly and definitely expressed. Here again —" We have * * * only one rule to follow — it is fundamental. The intention of a will-maker is to be found in the words used in the will, and when these are clear and definite there is no power to change them.” (Matter of Watson, 262 N. Y. 284, 293.)

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

Loughran, Bippey, Conway, Desmond and Thacher, JJ., concur; Lehman, Ch. J., taking no part.

Ordered accordingly.


author: Rippey, J.

text:
    Brighton Operating Corp., Appellant, v. P. Walker Morrison et al., as Trustees, Respondents.
    Argued June 7, 1943;
    decided July 20, 1943.

      Henry Epstein, Victor S. Axelroad and Isaac Ellman for appellant.
    The extension agreement clearly comes within the terms and intent of section 1077-cc of the Civil Practice Act. Where there is no specific and clearly expressed stipulation providing for a rate of interest applicable after the maturity of an extension agreement, interest is payable at the rate specified by law. Section 1077-cc, by both its express terms and its intent, controls the rate of interest which may be charged as a matter of law, after default in the payment of the principal due on the maturity of mortgage obligations. (Title Guarantee & Trust Co. v. 2846 Briggs Ave., 283 N. Y. 512; Mortgage Commission v. Fay, 255 App. Div. 622, 281 N. Y. 637; Klein v. Simons Mfg. Co., 261 App Div. 977, 288 N. Y. 482; Chase Nat. Bank v. Guardian Realties, Inc., 283 N. Y. 350; City Bank Farmers Trust Co. v. Ardlea Corp., 267 N. Y. 224; Delaware & Hudson

      Co. v. Utica C. & B. R. R. Co., 174 Misc. 403; Tiernan Realty Co. v. Title Guar. & Tr. Co., 176 Misc. 1071; Union Trust Co. v. Kaplan, 249 App. Div. 280; Levinson v. Rosovsky, 263 App. Div. 793, 288 N. Y. 559.) Interest at the rate of six per cent cannot be demanded, as a matter of contract, for the reason that there is no express provision in the instant extension agreement stipulating a six per cent interest rate on the unpaid principal remaining after maturity. (Eltan Realty Co. v. Irving Trust Co., 252 App. Div. 282; Royal Court Realty Co. v. Thomas, 259 App. Div. 313; O’Brien v. Young, 95 N. Y. 428; De Clow v. Haverkamp, 198 App. Div. 83; Atwater & Co. v. Panama R. R. Co., 246 N. Y. 519; Clason’s Point Land Co. v. Schwarts, 237 App. Div. 741; Harnickell v. Omaha Water Co., 146 App. Div. 693; Philsim Realty Corp. v. Fulton Trust Co., 136 Misc. 845; Wilson & English Constr. Co. v. N. Y. C. R. R. Co., 240 App. Div. 479; Union Estates Co. v. Adlon Constr. Co., 221 N. Y. 183; Sands Realty Co. v. Schmuck, 90 Misc. 631; Daily Realty Co. v. Schmuck, 90 Misc. 631.) The mortgagor is not estopped from raising the question of the legality of the six per cent interest rate demanded by the mortgagee. (Brown v. Bowen, 30 N. Y. 519; Harbeck v. Pupin, 145 N. Y. 70; Hopwood Plays, Inc., v. Kemper, 263 N. Y. 380; Pagel, Horton & Co., Inc., v. Harmon Paper Co. 236 App. Div. 47; Parsons v. Lipe, 158 Misc. 32; Brewster v. Striker, 2 N. Y. 19; Hungerford Brass & C. Co. v. Brigham, 47 Misc. 240; Sturm v. Boker, 150 U. S. 312; Mutual Life Ins. Co. v. Phinney, 178 U. S. 327; Tiernan Realty Co. v. Title Guar. & Tr. Co., 176 Misc. 1071.) The court has the power to render a declaratory judgment in the instant case. (New York Operators v. State Liquor Authority, 285 N. Y. 272; James v. Alderton Dock Yards, 256 N. Y. 298.)

      David L. Weissman and Barnet Kaprow for respondents.
    The defendants are entitled to interest at the rate of six per cent by virtue of paragraph 15 of the extension agreement. (Title Guaranty & Trust Co. v. 2846 Briggs Ave., 284 N. Y. 685.) To sanction the mortgagees’ charge of six per cent in cases where there is no reverter clause would permit them to increase the interest rate solely by reason of the maturity of the obligation, which the statute condemns; to sanction an interest rate of six per cent in the present case would merely be to enforce the parties’ agreément, which the statute does not and could not condemn. (Royal Court Realty Co., v. Thomas, 259 App. Div. 313; Hammond v. Lawrence Investing Co., 262 App. Div. 900; Insurance Co. v. Dutcher, 95 U. S. 269; Woolsey v. Funke, 121 N. Y. 87; Carthage T. P. Mills v. Vil. of Carthage, 200 N. Y. 1.) The defendants are entitled to interest at the rate of six per cent because section 1077-cc is inapplicable to extension agreements made after its enactment. (Franklin Title & Mortgage Guaranty Co. v. Shernov, 250 App. Div. 267.) Assuming that there is a question whether the defendants are entitled to an interest rate of six per cent, the doctrines of unclean hands and estoppel preclude the plaintiff from raising that question. (Imperator Realty Co. v. Tull, 228 N. Y. 447; Rothschild v. Title Guarantee & Trust Co., 204 N. Y. 458; N. Y. Rubber Co. v. Rothery, 107 N. Y. 310; Steinway v. Steinway, 24 App. Div. 104; Farnsworth v. Boro Oil & Gas Co., 216 N. Y. 40.) Sections 1077-cc and 1077-d would be unconstitutional if applied to the situation presented by the case at bar. (Chastleton Corporation v. Sinclair, 264 U. S. 543; Perrin v. United States, 232 U. S. 478; Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398.) The plaintiff is not entitled to the benefits of sections 1077-cc and 1077-d of the Civil Practice Act because these sections were not intended for persons like the plaintiff. (City Bank Farmers Trust Co. v. Ardlea Corp., 267 N. Y. 224.) In the circumstances of this case, the court was in any event justified in declining to pronounce a declaratory judgment in favor of the plaintiff. (James v, Alderton Dock Yards, 256 N. Y. 298.)
   Rippey, J.

On May 19, 1936, defendants, as trustees duly appointed pursuant to a plan of reorganization for certain mortgage investments, became owners by assignment of a bond and mortgage executed July 17, 1928, by Clover Construction Corporation to the New York Title and Mortgage Company to secure the payment of the sum of $250,000, with interest at the rate of six per cent per annum payable semiannually. The indebtedness originated simultaneously with the mortgage upon real property which was located on Hubbard Street in the Borough of Brooklyn, City of New York.

On September 3, 1936, the defendants and Lenox Properties, Inc., the then owner of the property covered by the mortgage, by authority of the Supreme Court entered into an extension agreement by which the time for the payment of the principal sum then remaining unpaid was extended to June 30, 1939, and the interest rate was reduced from six per cent to five per cent per annum for the extended period. As consideration for the extension, the owner was required to perform various conditions which need not be detailed here. The provision with respect to the reduction of the interest rate provided that the owner agreed “ in consideration of the extension and modification herein granted and the reduction of the interest rate on the bond and mortgage described herein from 6% per annum to 5% per annum, that upon default in the payment of any semiannual instalment of principal as provided for herein, and should such default continue for a period of twenty (20) days, then, in addition to any of the remedies herein granted to the party of the first part by reason of such default, and not in limitation of any of said remedies, the interest rate on the said bond and mortgage shall, at the option of the party of the first part, from and after the expiration of twenty days after such default, revert to the rate of 6% per annum, which the party of the second part covenants and agrees to pay, it being understood and agreed that the extension and modification of the bond and mortgage and the reduction of interest rate herein granted, is conditioned upon the compliance by the party of the second part with the provisions of this agreement on its part to be performed and that the party of the first part has been induced to extend and modify this mortgage and to reduce the interest rate and to ask for and obtain approval of the Court thereto, in consideration of the agreement by the party of the second part to comply with all the terms hereof.”

During the running of the extension agreement there was nc default in the payment of any semiannual installment of principal or in the payment of interest at the rate of five per cent as and when it became due and the mortgagor complied in full with all of the conditions of the agreement on its part to be performed. Accordingly, no default of the owner or mortgagor of the property gave rise to the right of defendants to exact more than five per cent interest prior to June 30, 1939 — the expiration of the extension agreement for payment of the unpaid principal which then became due.

The defendants claimed, however, that the failure of the mortgagor to pay the full amount of the principal sum due on June 30, 1939, according to the terms of the extension agreement and the original bond and mortgage, brought about a reversion of the interest rate from five per cent to six per cent per annum thereafter. On September 30, 1940, the plaintiff acquired title to the property and assumed and agreed to pay the mortgage indebtedness. The interest on the mortgage by the terms of the extension agreement was payable quarterly on the first days of September, December, March and June of each year and the mortgage was not in default in any respect except as to the payment of the principal sum on September 1, 1940. On November 26, 1940, the plaintiff duly tendered to the defendants the. full amount of interest for the three-month period expiring November 30,1940, at the rate of five per cent, which tender the defendants refused to accept.

Upon the foregoing state of facts, the plaintiff brought this action for a judgment declaring that, by virtue of the provisions of section 1077-cc of the Civil Practice Act, the defendants may not legally increase the rate of interest above five per cent per annum, the rate fixed by the extension agreement, during the emergency period fixed by the Legislature, that the tender made was in the proper amount, and that the defendants be enjoined from demanding, during the emergency period as fixed by the Legislature, a rate of interest in excess of five per cent per annum on the principal of said mortgage and from declaring and demanding payment of the entire principal due and commencing an action to foreclose the mortgage .for failure to pay the same or interest on the amount due thereon at the rate of six per cent per annum during the emergency period. The defendants filed their answer admitting the tender as alleged by the plaintiff and their refusal to accept the same and set up various defenses which included, among others, the defense of estoppel by virtue of interest payments at the rate of six per cent subsequent to June 30,1939.

To the time of the commencement of this action, none of the conditions specified in the extension agreement by which it was stipulated that interest should revert from five per cent per annum to six per cent per annum arose except failure by the mortgagor to pay in full the principal sum due at the expiration date of that agreement. Interest on the obligation had been timely paid in full or duly tendered at the rate specified in the extension agreement to its expiration date and thereafter to a date subsequent to the commencement of this action. Accordingly, an increase of the rate of interest beyond five per cent per annum was barred during the emergency period by section 1077-cc of the Civil Practice Act (Mortgage Commission v. Fay, 281 N. Y. 637; Metropolitan Sav. Bank v. Tuttle, 290 N. Y. 497), and no action to foreclose the mortgage for failure to pay the principal indebtedness at maturity could be commenced (Civ. Prac. Act, § 1077-a) or suit brought on the bond (§ 1077-b). Any waiver of the protection of the foregoing sections of the Civil Practice Act was void and unenforcible (Civ. Prac. Act, § 1077-d).

In view of the conclusions above reached wé do not consider or pass upon any other question.

The judgments should be reversed and the case remitted to the Supreme Court for further proceedings in accordance with this opinion, with costs to the appellant in all courts. (See 291 N. Y. 670.)

Lehman, Ch. J., Lotighban, Lewis, Conway, Desmond and Thacheb, JJ., concur.

Judgment accordingly.


author: Desmond, J.

text:
    Coleridge Hart, Respondent, v. Socony-Vacuum Oil Company, Incorporated, Appellant.
    Argued June 10, 1943;
    decided July 20, 1943.

      William T. Gallagher and William D. Cunningham for appellant.
    The original lessee remains liable during the entire period of the lease regardless of any assignments thereof because he so contracted with the owner and as to him there is privity of contract. (Mann v. Munch Brewery, 225 N. Y. 189.) The alleged liability was not assumed expressly and the parties stipulated against the assertion of implied undertakings. (Brainard v. N. Y. C. R. R. Co., 242 N. Y. 125; Codman v. American Piano Co., 229 Mass. 285; White v. Hoyt, 73 N. Y. 505; Gillet v. Bank of America, 160 N. Y. 549; Harris v. Wright, 118 N. C. 422.) The assumption of the alleged liability may not be implied from the general context of the agreement. The assumption of the liability may not be implied from the circumstances. (Outlet Embroidery Co. v. Derwent Mills, 254 N. Y. 179.) The decisions below are erroneous and no other authority sustains respondent’s recovery, (Mohonk Realty Corp. v. Wise Shoe Stores, Inc., 260 App. Div. 64, 286 N. Y. 476.) In no event was plaintiff entitled to judgment, on the pleadings. (Brainard v. N. Y. C. R. R. Co., 242 N. Y. 125; Manson v. Curtis, 223 N. Y. 313; Outlet Embroidery Co. v. Derwent Mills, Ltd., 254 N. Y. 179; Camp v. Treanor, 143 N. Y. 649; White v. Hoyt, 73 N. Y. 505; Kenyon v. Knights Templar, 122 N. Y. 247; Trustees of East Hampton v. Vail, 151 N. Y. 463; U. S. Rubber Co. v. Silverstein, 229 N. Y. 168; Martin v. Crumb, 216 N. Y. 500; Stokes v. Mackay, 140 N. Y. 640.)

      Charles Blank and Edward J. Wilson for
    respondent. The agreement must be construed as contractually obligating the defendant to perform all provisions and covenants of the lease. (Mann v. Munch Brewery, 225 N. Y. 189; Moran v. Standard Oil Co., 211 N. Y. 187; Detroit Trust Co. v. Howenstein, 273 Mich. 309; Schulte, Inc., v. Loft, Inc., 271 N. Y. 420.) Reading the agreement as a whole, as it must be read, and in the light of the attendant circumstances and of the matter with which the parties dealt, it is clear that the parties modified the lease and adopted it as modified for the remainder of its term. {Manson v. Curtis, 223 N. Y. 313.) The .agreement is also instinct with an obligation. (Baldwin v. Humphrey, 44 N. Y. 609; Moran v. Standard Oil Co., 211 N. Y. 187.) Interpretation of the modification agreement is for the court alone, and not for a jury. (Outlet Embroidery Co. v. Derwent Mills, Ltd., 254 N. Y. 179; Kenyon v. Knights Templar, 122 N. Y. 247.)
   Desmond, J.

Plaintiff in 1927 leased certain lands to Lewber Realty Corporation for a term of twenty-one years. In 1928 Lewber assigned that lease to defendant. Defendant occupied the premises until 1941, when it made an assignment to one Stark, and surrendered possession. The suit is for rent for the month of March, 1942, which defendant’s assignee failed to pay. Plaintiff sues on the theory that defendant, although originally an assignee with only the limited liability of an ordinary assignee, became in 1932, through an agreement then made between plaintiff and defendant, absolutely liable, contractually, to perform all the covenants of the lease until its expiration. The courts below, in awarding plaintiff judgment on the pleadings, have held that the 1932 writing contained, as matter of law, a promise by defendant to be thereafter liable on all the covenants of the original lease.

The original lease, annexed to the complaint, called upon the lessee therein named (Lewber) to keep the premises insured against certain perils and in fixed amounts. The 1932 agreement between plaintiff owner and defendant assignee, likewise attached to the complaint herein, eliminated those requirements for insurance coverage and instead bound defendant to assume the role of insurer. There is in that agreement no express statement regarding any assumption by defendant of any liability except in relation to insurance. We are told, however, that an all-inclusive assumption by defendant of the original lease’s burdens was effected by this language found therein: ‘ ‘ It is further mutually understood and agreed thát except as herein expressly modified, all other provisions and covenants contained in said lease shall remain in full force and effect.”

The parties find no difficulty in agreeing as to what were the obligations of defendant, as an ordinary nonassuming assignee, before the 1932 arrangement. “ The rule is that the liability of an assignee grows out of the privity of estate and that only.

. It ceases when that privity ceases to exist and each successive assignee is liable only for such breaches of covenant as occur while there is privity of estate between him and the lessor.” (Mann v. Munch Brewery, 225 N. Y. 189, 195.) Plaintiff says, and the courts below have held, that the above-quoted language of the 1932 writing to the effect that except as modified, the lease shall remain in full force and effect, means, as matter of law, that defendant adopts the lease in all its parts as if defendant were originally a signer thereof. We cannot bring ourselves to agree that such is the only possible or reasonable meaning of the words, either read by themselves or in their setting in the 1932 document. On its face that paper shmvs only an intent to modify the existing arrangements in one particular, that is as to insurance, and the quoted language may well have been added, solely out of caution, to make sure that no other changes resulted. Since that may be all that the parties had in mind, no result so grave as a sweeping assumption of a long-term lease, by one not otherwise liable thereon, should be held to follow automatically and regardless of real intent.

Furthermore, it is doubtful whether the 1932 agreement is susceptible of the meaning ascribed to it below. There is strong authority which says that to hold liable an assignee under a lease, after he has given up the lease and vacated the premises, there must be produced an express promise by him to perform the covenants of the lease. (Dassori v. Zarek, 71 App. Div. 538; 2 McAdam on Landlord & Tenant [5th ed.], pp. 1026, 1027; 1 Tiffany on Landlord & Tenant, p. 989; J ones on Landlord & Tenant, p. 518.) If such an express covenant be made by an assignee, then he is thereafter liable both by privity of estate and by privity of contract with the lessor. But such an express covenant is never assumed to have been made — it must always be proven. (Frank v. N. Y., L. E. & W. R. R. Co., 122 N. Y. 197, 219; 2 Taylor on Landlord & Tenant [9th ed.] p. 14.) It is not every reference to, or mention of, the covenants of a lease, by an assignee, that amounts to an assumption by him. Even where he covenants that his assignment is to be “ subject ” to the terms of the lease, that language, without more definite words of promise, does not make him liable as by privity of contract. (Dassori v. Zarek, supra; Schwarts v. Cahill, 220 N. Y. 174, 178; Wolveridge v. Steward, 1 Crompton & Meeson 644; see Durand v. Curtis, 57 N. Y. 7,11.) Examples of express assumption covenants are found in Mann v. Munch Brewery (supra) and Zinwell Co. v. Ilkovits (83 Misc. 42).

Plaintiff points, as further support for his contention that the 1932 agreement included an assun ion by defendant, to certain other language of that instrument. At the point therein where defendant agrees that, instead of providing public liability insurance, it will indemnify plaintiff against claims for injury or damage, the agreement uses the phrase “ during the term of said lease.” In the very next breath, however, it says that the public liability indemnification shall be only such as plaintiff would have had “ if the insurance had been carried as required by the lease.” The latter clause appears also in that part of the 1932 agreement which makes defendant liable for fire damage, in lieu of carrying fire insurance for plaintiff’s benefit. As to fire damage, however, unlike public liability, there is no reference to “ the term of the lease.” Plaintiff makes some claim also that the provision of the original lease making all its covenants binding upon the parties thereto, “ their respective heirs, executors, successors and assigns ” has a special meaning in this connection. Ordinarily such language is employed not to impose direct contractual liability on “ assigns ” but to make it clear that the lease covenants run with the land (see Mygatt v. Coe, 147 N. Y. 456, 467), otherwise some of those covenants, such as the covenants to keep the premises insured, might be held to be personal engagements of the lessee only. (See Dunlop v. Avery, 89 N. Y. 592, 599; Reid v. McCrum, 91 N. Y. 412, 417.)

Plaintiff may be able hereafter to show in some manner that the parties intended the 1932 agreement to accomplish a compíete assumption by defendant of the whole lease. He has not, however, convinced us that the writing itself, without explanation or supporting proof, has that meaning, necessarily and as a matter of law. “ While the construction of writings is, to be sure, matter of law in the sense that it is an affair for a judge, still the particulars of the process of ascertaining the disclosed intention of a writer are for the most part items of fact.” (Matter of City of New York [Vernon Parkway], 285 N. Y. 326, 331.) We do not know what were the circumstances surrounding the execution of this particular writing or, indeed, whether there were any relevant circumstances.” We hold only that it was erroneous to read the 1932 agreement as containing on its face a flat agreement by defendant to assume the lease.

We have not undertaken herein any discussion as to the propriety of the denial below of defendant’s motion for summary judgment. That denial is not reviewable in this court.

The judgments should be reversed and the plaintiff’s motion for judgment on the pleadings denied, with costs in all courts.

Lehman, Ch. J., Lottghran, Rippey, Conway and Thacher, JJ., concur; Lewis, J., taking no part.

Judgments reversed, etc.


author: Riffey, J.

text:
    Inez Pollard, as Administratrix of the Estate of Amy Garvin, Deceased, Appellant, v. Trivia Building Corp., Respondent.
    Argued June 16, 1943;
    decided July 20, 1943.

      Jay Leo Rothschild and Jacques Isler for appellant.
    The rules governing the maintenance and operation of multiple dwellings, are sui generis. They are not the same as those affecting commercial buildings, not subject to the Multiple Dwelling Law and, accordingly, whatever may be the rule as to commercial buildings, should have no application to apartment dwellings. (Altz v. Leiberson, 233 N. Y. 16; Sticker v. Seril Realty Corp., 256 N. Y. 687; Homin v. Cleveland & White-hill Co., 281 N. Y. 484; Gerber v. Seaich Realty Co., 259 App. Div. 667; Matthews v. Matthews, 240 N. Y. 28; Kavanagh v. Wilson, 70 N. Y. 177.) The fact that the landlord put up notices, constitutes no defense with respect to a statute which imposes an absolute obligation on the landlord, who as a matter of public policy may not even “ permit ” a violation of the statute. (Osborne v. Salvation Army, 107 F. 2d 929; Martin v. Herzog, 228 N. Y. 164; Burris v. American Chicle Co., 120 F. 2d 218; Witkowics v. Amalgamated Properties, Inc., 264 App. Div. 156.) The Industrial Code provision, applicable at the time of this accident, should be construed so as to create liability on the part of the landlord, if its omissions were such as to prevent — at least, as a jury might find the fact to be — performance of the operation of window-cleaning in the manner contemplated by the law. The scope and operation of the law should not be made to depend on the variable factor as to how an individual may choose, recklessly or otherwise, to perform his task. (American Historical Society v. Glenn, 248 N. Y. 445; Archer v. Equitable Life Assur. Society, 218 N. Y. 18; Bohnhoff v. Fischer, 210 N. Y. 172; Federal Deposit Ins. Corp. v. Tremaine, 133 F. 2d 827; Johnson v. United States, 163 F. 30;
      Novitz v. Maine, 273 N. Y. 573.) The rules of the Board of Standards and Appeals should not be so construed that in effect they overrule the provisions of the Labor Law. If so construed they are invalid. (Schumer v. Caplin, 241 N. Y. 346; Gerber v. Seaich Realty Co., 259 App. Div. 671; Matter of Cherry v. Board of Regents, 289 N. Y. 148.) In any event, there was at least a question of fact as to the circumstances under which plaintiff’s decedent was washing the window and, while engaged therein, fell to the ground. (Witkowicz v. Amalgamated Properties, Inc., 264 App. Div. 156; Novitz v. Maine, 273 N. Y. 573; Hart v. Hudson River Bridge Co., 80 N. Y. 622; Warner v. N. Y., O. & W. Ry. Co., 209 App. Div. 211; Marus v. Central R. R. Co., 170 App. Div. 158; Ingersoll v. Liberty Bank, 278 N. Y. 1; Allen v. Stokes, 260 App. Div. 600.)

      'Haniel A. Novok, Louis Helfenstein and Joseph S. Robinson for respondent.
    The defendant violated no law, statutory or otherwise. (Dougherty v. Pratt Institute, 244 N. Y. 111; Homin v. Cleveland & Whitehall Co., 281 N. Y. 484; Lowenhar v. Commercial Outfitting Co., 260 App. Div. 211; Teller v. Prospect Heights Hospital, 280 N. Y. 456.) The proof shows clearly that the defendant did not require, suffer, allow or permit the windows in the apartment to he cleaned from the outside. The failure to erect hooks or other safety devices was not the proximate cause of the accident. (Homin v. Cleveland & Whitehall Co., 281 N. Y. 484.)
   Riffey, J.

On June 15,1940, Amy Gfarvin fell from a window of apartment 5C in an apartment building at 3202-10 19th Avenue, Brooklyn, and received injuries which caused her death. Her administratrix brought this action to recover damages for her death which was caused, it is alleged, by the negligence of the defendant owner of the property in failing to equip the window from which she fell with the safety devices required by section 202 of the Labor Law and by the Industrial Code, to provide required safety appliances for her use and in permitting her to wash the window from the outside without the presence of such safety contrivances for her use.

The affirmance by the Appellate Division was based on two grounds, as appears from the opinion (265 App. Div. 362), (1) that the evidence failed to show that the owner was in charge of the building within the meaning of section 202 of the Labor Law, and (2) that safety belts for window washers as required by the Industrial Code were not required under the facts here presented. In our opinion, the judgment below can be sustained on neither ground.

The plaintiff’s case depends upon stipulations by counsel and the testimony of the superintendent of the building. Since the plaintiff was nonsuited, every reasonable inference that may be drawn from the testimony and stipulations together with such testimony and stipulations must all be considered in aspect most favorable to the plaintiff (Meiselman v. Grown Heights Hospital, Inc., 285 N. Y. 389; African Metals Corp. v. Bullowa, 288 N. Y. 78). In the light of the foregoing rule, it appeared, prima facie, that the owner was in charge of the premises from the time the building was opened, about seven months prior to the time of the accident, down to and including the time of the accident and that the proximate cause of the accident was the failure of the owner to provide required safety devices and the permitting of the cleaning of the windows from the outside without the use of such devices.

The building in question consisted of fifty-three apartments and was owned by the defendant corporation. The president of the corporation and its superintendent in charge of the building lived in the building. One of the apartments was leased to a family by the name of Kriegsman. When the building was turned over to the owner all windows were washed by a contractor. Thereafter, the expense of all window washing was maintained by the several tenant's. The deceased was accustomed to wash windows generally for those tenants. Her practice, as well as that of others, known and permitted by the superintendent, was to wash the large windows of the apartments from the outside while sitting on the window sill. The decedent was admitted to the several apartments for the purpose of cleaning the windows from time to time, as on the occasion of the accident, by the superintendent or his wife under authority from the owner. While performing that service in the manner indicated on a window of the Kriegsman apartment, decedent fell to her death.

Section 202 of the Labor Law, as it was in force at the time of the accident, provided that on every public building where the windows are cleaned from the outside, the owner, lessee, agent, manager or superintendent in charge of such building shall provide, equip and maintain approved safety devices on all windows of such building. The owner, lessee, agent, manager or superintendent in charge of any such public building shall not require, permit, suffer or allow any window in such building to be cleaned from the outside unless means are provided to enable such work to be done in a safe manner in conformity with the requirements of this chapter and the rules of the board of standards and appeals. * * * The board of standards and appeals may make rules supplemental to this section by designating safety devices of an approved type and strength to be installed on public buildings or to be worn by window cleaners or both, but the absence of any such rules shall not relieve any person from the responsibility placed upon him by this section ” (added by L. 1930, ch. 605, and amended). The building on which the accident occurred was a “ public building ” within the meaning of the statute (Labor Law, § 2, subd. 13). The Board of Standards and Appeals had power to provide safeguards for window cleaners supplemental and in addition to the provisions of the statute but had no power to amend or alter express statutory provisions (Cf. Gerber v. Seaich Realty Co., 259 App. Div. 667). Such rules made by that Board were in force at the time of the accident (Industrial Code, Labor Law, § 29; Bulletin No. 21, as amd.). Those rules require safety devices for window cleaners, including ladders, scaffolds, boatswains chairs and safety belts and provide that anchors shall be affixed to the window frames or walls to which safety belt terminals shall be attached and detailed provisions are contained therein as to the construction, capacity and quality of the various safety appliances.

It is stipulated that no safety devices of any kind, whether or not specified in the statute or in the Industrial Code, were provided by the owner or by anyone else. The statute was intended broadly for the protection of window cleaners on public buildings; the particular method used, the particular manner in which the cleaning was done, whether such cleaning was done by a professional or by an amateur, or one temporarily or regularly employed for that purpose does not as matter of law affect the responsibility of the person required to furnish such devices; nor does the fact that the Industrial Code specifies a particular device exclude other devices that might in a particular case be reasonably deemed better adapted for the protection of the window cleaner (Teller v. Prospect Heights Hospital, 280 N. Y. 456, 459, 460; Burris v. American Chicle Co., 33 F. Supp. 104, affd. 120 F. 2d 218).

Since no safety appliances of any kind were furnished and the windows were uniformly cleaned from the outside with the knowledge and consent of the owner, its agents and servants, it became liable for any injuries to a window cleaner which were proximately the result of its failure to provide safety appliances reasonably necessary under the circumstances (Homin v. Cleveland & Whitehill Co., 281 N. Y. 484, 487, 488; Lowenhar v. Commercial Outfitting Co., 260 App. Div. 211, 213, affd. 285 N. Y. 671). The deceased was seen sitting on the window sill with parts of her body inside and outside of the window, washing the window from the outside, immediately prior to her fall to the surface of the court below. The jury might have drawn the inference that the proximate cause of the accident was the failure of the owner to provide safety appliances for her use mandatorily required by law.

The defendant claims protection against the operation of the statute by the fact that it posted notices in the hallways of the building, warning persons against cleaning windows from the outside. It cannot be held, as matter of law, that a person who is required to provide some protection reasonably sufficient according to the circumstances of the particular case for those who work at the highly hazardous business of window cleaning may flaunt, with impunity, the intent, purpose and mandate of the Legislature to provide protection against hazards and absolve himself from responsibility for accidents which may proximately result from the absence of safety devices by the mere expedient of posting notices advising generally against washing windows from the outside.

Since, on the record before us, liability of defendant depends upon violation of the statute, contributory negligence would be no defense (Stern v. Great Island Corp., 250 App. Div. 115; Osborne v. Salvation Army, 107 F. 2d 929).

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

Lehman, Ch. J., Loughran, Lewis, Conway, Desmond and Thacher, JJ., concur.

Judgments reversed, etc.


author: Conway, J.

text:
    Robert D. Miller, an Infant, by Elwood R. Miller, His Guardian ad Litem, Appellant, v. Board of Education, Union Free School, District No. 1, of the Town of Albion, et al., Respondents, et al., Defendants. Elwood R. Miller, Appellant, v. Board of Education, Union Free School, District No. 1, of the Town of Albion, et al., Respondents, et al., Defendants.
    Argued April 13, 1943;
    decided July 20, 1943.

      William J. Darch and George W. Watson for appellants.
    A verdict having been directed in favor of the defendant Board of Education, the plaintiffs, on this appeal, are entitled to the benefit of every fact the jury could have found from the evidence and to every legitimate inference that could have been drawn from all the facts. (LaRose v. Connelly, 219 App. Div. 181.) The questions of negligence on the part of the Board of Education were questions of fact for the jury and the trial epurt erred in directing a verdict. (Carlisle v. Norris, 215 N. Y. 400; McConnell v. Hellwig, 190 App. Div. 244; Vieser v. Bellows, 209 App. Div. 540; Lessin v. Board of Education, 247 N. Y. 503; Herman v. Board of Education, 234 N. Y. 196; Garber v. Central School Dist. No. 1, 251 App. Div. 214; Collentine v. City of New York, 279 N. Y. 119; Parnell v. Holland Furnace Co., 234 App. Div. 567, 260 N. Y. 604; Boylhart v. DiMarco & Reimann, Inc., 270 N. Y. 217; Pinghero v. Queens County Sav. Bank, 260 App. Div. 667; Martin v. Herzog, 228 N. Y. 164.) The verdict in favor of the defendant Pratt, was contrary to the evidence and the weight thereof, and should have been set aside. (Hoose v. Drumm, 281 N. Y. 54.)

      George J. Nier for respondents.
    The order of the trial court, directing a verdict in favor of the defendant Board of Education, was proper. (Herman v. Bd. of Education, 234 N. Y. 196; Hoose v. Drumm, 281 N. Y. 54; Peterson v. City of New York, 267 N. Y. 204.) The verdict that defendant Pratt was free from negligence, is sustained by the evidence. (Thompson v. Board of Education, 280 N. Y. 92.)
   Conway, J.

These actions were brought by the infant plaintiff (hereinafter called plaintiff) and his father to recover damages for personal injuries sustained when the plaintiff fell while playing on a fire escape in a school building. We are concerned here with two defendants: the Board of Education, Union Free School, District No. 1 of Town of Albion, and Carrie P. Pratt.

The infant plaintiff is six years of age. At noon recess he and . his older sister, together with other children, ate their lunch in a room in the school building. After the lunch, Carrie P. Pratt (teacher in charge of the school), told the children, who numbered about twenty-five, to go outside to play. On the playground there was a fire escape, enclosed in wire mesh, the door of which was open by reason of its defective condition. That was in violation of Education Law sections 453 and 868, subdivisions 3 and 9. The infant plaintiff entered upon the fire escape and sustained serious injuries by reason of a fall thereon.

When the infant plaintiff and the other children were sent out to play, no teacher was sent with them. The defendant Pratt had been instructed by the Superintendent of Schools to supervise the noon play of the children and that she did by watching them from windows, in a hall, which gave a view of a portion of the playground. There were windows through which one could see that portion of the playground where the defective fire escape door was located. Those windows, however, were in a grade room which was locked. There was thus no supervision of the children at all when they were at the place where the accident occurred.

The court submitted certain questions to the jury. One of them was: Was the Board of Education negligent in the repair of the door? ” The court charged the jury that in order to answer that question in the affirmative it would have to find: (1) that the door was out of repair, (2) that the lack of repair existed long enough so that the Board had notice or should have known of the condition, (3) that by reason of the door being open children were attracted by the fire escape as a place to play, (4) that it was a dangerous place for them to play and (5) that such an accident as happened to plaintiff was one which reasonably prudent members of the Board would anticipate as likely to happen. The jury thereupon answered the question, namely, “ Was the Board of Education negligent in the repair of the door? ” in the affirmative.

The court also submitted the question “ Was the Board of Education negligent in failing to provide proper supervision? ” and then charged that in order to answer that question in the affirmative the jury would have to find (a) that the door had been allowed to be open frequently over a long enough period so that the Board ought to have known of it, (b) that the Board knew children were playing on that fire escape, (c) that it was a dangerous place for children to play and (d) that such an accident was likely to happen if children played there. The court then charged that if the jury found all of those facts it was for it to say whether or not the supervision which the Board did attempt was adequate. The jury answered the question thus submitted in the aErmative.

At the same time the jury answered another question, “Was the defendant, Carrie P. Pratt, negligent? ” in the negative.

Thereafter the trial court granted the motion of the Board to set aside the findings of the jury charging it with negligence on the ground that there was no evidence to sustain those findings and granted the motion of the Board “ for a general verdict by direction of the Court for no cause of action, upon which decision was reserved.” The trial court also denied plaintiff’s motion “ to set aside the finding of the jury absolving the defendant Carrie P. Pratt of negligence ” and granted the motion of defendant Pratt “ for a general verdict of no cause of action, in accord with the jury’s answer ” to the question: “ Was the defendant, Carrie P. Pratt, negligent? ”. It should be added that the jury in answer to another question submitted to it, found that the infant was not negligent.

There was evidence from which a jury could have found that the Board had been negligent in permitting the door of the fire escape to remain in a defective and dangerous condition, after notice, and that the defective and dangerous condition was the proximate cause of the accident. (Education Law, §§ 453, 868, subds. 3, 9; Lessin v. Board of Education, 247 N. Y. 503; Popow v. Central School District, 251 App. Div. 906, affd. 277 N. Y. 538.)

“ Where the defendant has by his conduct set in motion forces which would not have resulted in harm to another but for the failure of a third person to act or perform some duty which the law imposes upon him the failure on the part of such third person to perform the act does not break the causal relation between the defendant’s conduct and the plaintiff’s damage.” (Harper on Torts, § 115, p. 264. To the same effect, American Law Institute, Restatement of the Law of Torts [Negligence], §§ 431, 432, 433, 452.) See, also, Carlock v. Westchester Lighting Co. (268 N. Y. 345) and American Law Institute, Restatement of the Law of Torts (Negligence), section 439.

In the instant case the failure of the Board to repair the door would not have resulted in harm to plaintiff had' Carrie P. Pratt provided adequate or even some supervision of his play. On the other hand, if the door had been in good repair and locked, plaintiff could not have entered upon and ascended the fire escape and fallen. Under the rule above stated, the Board cannot be relieved of liability for its negligence because defendant Pratt failed to perform her duty. There is a chain of causation between plaintiff’s injury and the negligence of defendant Board. The fire escape, even though in good repair, was a dangerous place for children to play. If the door had been locked, plaintiff could not have entered. The jury found that defendant Board should have foreseen that if children played on the fire escape they might be injured and that it should also have foreseen, that if the door were not locked, children would go on the fire escape.

While the language of the statutes (Education Law, § 310, subd. 15; § 868, subd. 9) is broad in scope it undoubtedly refers to those activities maintained by a Board of Education in its conduct of schools under its control and especially to supervision of children during school hours. The duty is to “ employ such persons as may be necessary to supervise, organize, conduct and maintain athletic, playground and social center activities, or for any one or more of such purposes.” (§ 310, subd. 15.) The Board is also given power to prescribe regulations for the discipline of the schools and all other educational, social or recreational activities. (§ 868, subd. 9.) The rule was correctly stated by the Appellate Division in Graff v. Board of Education (258 App. Div. 813, affd. 283 N. Y. 574): While the defendant is charged with the duty of providing for adequate supervision of activities within the school yard (citing the statute and cases) its obligation was fulfilled when it provided for adequate supervision in the person of one or more competent instructors.” In other words a Board of Education is obligated to supervise activities of children when the Board has care and charge of the children during school hours. That duty is fulfilled when it provides for adequate supervision in the person of one or more competent teachers. It is not responsible for the individual negligence of one of the teachers except as provided in Education Law, section 569-a. (Graff v. Board of Education, supra.) In the instant case the Board was not obligated to keep these children upon school premises during the luncheon hour. It could have required the parents to call for the children and to take charge of them during that period. What the Board could not do under the statutes was to undertake the care and control of the children during the luncheon period and then, after they had lunched, turn them out upon school property upon which there existed a known dangerous and defective condition and provide no supervision at all for them although they were in the school yard or playground, and it was during school hours. If the Board had given the required supervision so that a teacher or teachers were among the children, the dangerous condition of the school property insofar as it affected the pupils so protected by supervision might well have ceased to exist. The statutory duty must be interpreted in accord with the intention of the Legislature which was clearly that the Board of Education should supervise a playground on school property during school hours and provide a proper place to play for school children when it was necessary for them to go out upon school property during school hours. As we have said the children could have been turned back to their parents during the luncheon period. On the contrary the Board saw fit to continue its control over the children during that period. It was not necessary to put them out upon a portion of the school premises where danger lurked, whether we call that place a playground or something else. It was school property. The Board could have permitted these children to remain indoors in a classroom or an auditorium or to play indoors.

The authorities in this State are in accord with the foregoing. In the case of Popow v. Central School District (supra), there was the case of a dangerous condition and no supervision. In Hoose v. Drumm (281 N. Y. 54) we pointed out at page 57 that there was no dangerous condition upon the school premises.

There was evidence which required a finding that defendant Carrie P. Pratt failed in her duty of supervision over the infant plaintiff (Hoose v. Drumm, 281 N. Y. 54, 57), even though the Board would have been obligated to save her harmless from a judgment against her under Education Law, section 569-a. On the contrary, however, a general verdict was directed in her favor after a finding by the jury to the same effect in answer to one of the questions submitted to it. There was no motion, as was quite natural, for a direction of a verdict in favor of plaintiff against the defendant Pratt on the ground that her negligence was established as a matter of law. The judgment in favor of the defendant Pratt has been affirmed by the Appellate Division. As to that judgment in favor of the defendant Pratt, in view of onr limited jurisdiction, and the failure of the plaintiff to move, as indicated, we may not reverse as to her.

The judgments as to the defendant Board of Education should be reversed and a new trial granted, with costs to the appellants to abide the event.

The judgments as to the defendant Pratt should he affirmed, with costs.

Rippey, Lewis and Desmond, JJ., concur; Lehman, Ch. J., and Loughran, J., dissent and vote to affirm.

Judgment accordingly.


text:
    Lawrence K. Schuvart, an Infant, by Casimir M. Schuvart, His Guardian ad Litem, et al., Appellants, v. Walter W. Werner, Respondent.
    Argued June 14, 1943;
    decided July 20, 1943.

      Arthur A. Kaye, John D. Monroe and Sidney Paymer for appellants.
    The decision of the Appellate Division that the infant plaintiff was guilty of contributory negligence as a matter of law is erroneous. (Caldwell v. Nicolson, 235 N. Y. 209; McDougall v. Shoemaker, 236 N. Y. 127; York Mortgage Corp. v. Clotar Constr. Corp., 254 N. Y. 128; Angueira v. Brooklyn & Queens Transit Corp., 263 App. Div. 43; Cherubino v. Meenan, 253 N. Y. 462; Baker v. Close, 137 App. Div. 529, 204 N. Y. 92; Camardo v. New York State Rys., 247 N. Y. 111; Kettle v. Turl, 162 N. Y. 255; Rague v. Staten Island Coach Co., 288 N. Y. 206; Johnson v. Lutz, 253 N. Y. 124; Needle v. New York Rys. Corp., 227 App. Div. 276; Surace v. Ide, 131 Misc. 69; Matter of Toukatley, 122 Misc. 120; McDonald v. Central School District, 179 Misc. 338, 264 App. Div, 943, 289 N. Y. 800.) Instead of directing a new trial, on a reversal here, the Court of Appeals should affirm the judgment of the trial court, as the Appellate Division in fact reversed the judgment of the trial court on an erroneous view of the law. (McDouall v. Shoemaker, 236 N. Y. 127; Bank of United States v. Manheim, 264 N. Y. 45.)

      Harry Krauss and O. Leonard Larsen for respondent.
    The infant plaintiff was guilty of contributory negligence as matter of law. (People v. Razezics, 206 N. Y. 249; Baker v. Close, 137 App. Div. 529, 204 N. Y. 92; O’Reilly v. Davis, 136 App. Div. 386; Knapp v. Barrett, 216 N. Y. 226; Ford v. N. Y. C. Interborough Ry. Co., 236 N. Y. 346; Weigand v. United Traction Co., 221 N. Y. 39; Peterson v. Ballantine & Sons, 205 N. Y. 29; Sylvia v. Eyth, 144 Misc. 316, 236 App. Div. 739; Cherubino v. Meenan, 253 N. Y. 462; Camardo v. New York State Rys., 247 N. Y. 111; Dolfini v. Erie R. R., 178 N. Y. 1; Warshawsky v. Balteransky, 94 Misc. 182.) There is no proof of negligence on the part of defendant. (Patch v. White, 117 U. S. 210.) In the event of a reversal a new trial should be ordered. (Frank v. Von Bayer, 236 N. Y. 473.)
   Rippey, J.

The infant, suing by his guardian ad litem for damages for his own injuries, and his father, claiming compensation for expenses and loss of services, had judgment at Trial Term. Upon reversal of the judgment on appeal, it was held by the Appellate Division that the evidence conclusively established that the boy was guilty of contributory negligence as matter of law.

Plaintiff, Lawrence K. Schuvart, was nine years of age on June 4, 1941. On the afternoon of that day he was returning home from school on a bus from which he alighted at 135th Avenue and Springfield Boulevard in the Borough of Queens. The bus was moving south on the west side of the boulevard. 135th Avenue enters Springfield Boulevard from the east but does not continue to the west. The boy left the standing bus on the west side of the boulevard by the rear door during a severe rainstorm, stepped to the curb, waited for the bus to proceed and then started to cross the boulevard to reach his home when a car driven by the defendant and approaching from the souen on the boulevard struck him, causing his injuries. He testified that he looked to the south before leaving the curb and again after he had passed out into the street and did not see the approaching car which struck him and that he had no notice of its approach. Evidence was presented from which the inference was permissible that the automobile was moving fast in disregard of conditions then obtaining.

Upon the record before us, the degree of care required of the infant under all the circumstances, where, when and whether he looked before crossing the street, and what, if anything, he could see of the approaching car, the speed of the car which struck him, what effort, if any, the defendant made to avoid the accident and what warning the boy had of the approach of the car were, among others, questions of fact to be resolved by the trier of the facts upon conflicting testimony and upon established facts from which differing inferences might reasonably be drawn. Upon such a determination depended the responsibility of the defendant for the consequences of the accident. In those circumstances, the dismissal of the complaint as matter of law cannot be sustained (Thurber v. Harlem Bridge, M. & F. R. R. Co., 60 N. Y. 326; McGovern v. N. Y. C. & H. R. R. R. Co., 67 N. Y. 417, 421; Kettle v. Turl, 162 N. Y. 255; Baker v. Close, 204 N. Y. 92).

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

Lehman, Ch. J., Loughean, Lewis, Conway, Desmond and Thacher, JJ., concur.

Judgments reversed, etc.


text:
    Congregation Anshe Sefard of Keap Street, Inc., Appellant, v. Title Guarantee & Trust Company, Respondent.
    Argued April 21, 1943;
    decided July 20, 1943.

      Maurice Millimet and Samuel J. Nachwalter for appellant.
    Plaintiff’s proof established a prima facie case for the conversion of its personal property by the defendant. (Reich v. Cochran, 114 App. Div. 141.) Plaintiff’s complaint alleged and its proof established that an agreement was made and entered into between the parties and was broken by the defendant. (Crouse v. McVickar, 207 N. Y. 213; Rothschild v. Title Guarantee & Trust Co., 204 N. Y. 458.) The provisions of the final order in the Municipal Court proceeding, with a sixty days’ stay of warrant upon the conditions enumerated therein, became the law of the case and bound both parties. (Stapleton v. Hertz Drivurself Stations, Inc., 129 Misc. 772; People ex rel. Jannicky v. Warden of City Prison, 231 App. Div. 131, 255 N. Y. 623; Crouse v. McVickar, 207 N. Y. 213.) The order of mandamus, directed to the Municipal Court clerk, was not an adjudication against, and is not conclusive upon, this plaintiff. It is not a bar to plaintiff’s cause of action. (Matter of Commercial Casualty Ins. Co. v. Tremaine, 257 App. Div. 536; Masten v. Olcott, 101 N. Y. 152; Collins v. Hydorn, 135 N. Y. 320; Marcus v. Village of Mamaroneck, 283 N. Y. 325; Old Dominion Copper Mining & Smelting Co. v. Bigelow, 225 U. S. 111; Rudd v. Cornell, 171 N. Y. 114; Ashton v. City of Rochester, 133 N. Y. 187; Brownell v. Snyder, 122 App. Div. 246; Mandeville v. Reynolds, 68 N. Y. 528; Johnson v. Girdwood, 143 N. Y. 660; Mayor v. Brady, 115 N. Y. 599; Ward v. Town of Southfield, 102 N. Y. 287; Jasper v. Rozinski, 228 N. Y. 349.) Defendant’s application to the Supreme Court for a mandamus order and the issuance and "execution of the warrant removing the plaintiff from the premises before the expiration of the agreed upon sixty days’ stay and the seizure and retention of plaintiff’s personal property clearly constituted an actionable wrong for which plaintiff is entitled to recover the damages it sustained. (Gutta Percha & Rubber Mfg. Co. v. Holman, 208 N. Y. 583; Keller v. Butler, 246 N. Y. 249; Eno v. Woodworth, 4 N. Y. 249; Pink v. Title Guar. & Tr. Co., 274 N. Y. 167; Hemingway v. Poucher, 98 N. Y. 281; Lurie v. New Amsterdam Casualty Co., 245 App. Div. 710, 270 N. Y. 379; McFarlane v. City of Niagara Falls, 247 N. Y. 340; Rich v. N. Y. C. & H. R. R. Co., 87 N. Y. 382.)

      C. Elmer Spedick and Edward F. Kiernan, for respondent.
    The Municipal Court was without power to grant the stay and mandamus was proper. The mandamus order is not subject to collateral attack in the present action and there is no proof of consent to a stay. (Arcuri v. Arcuri, 265 N. Y. 358.) The practice followed in connection with the mandamus proceeding is regular and proper, and appellant was not a necessary party thereto. (Taussig v. Kantor, 115 Misc. 366; People ex rel. Kilgallon v. Nuhn, 92 Misc. 312; Matter of Clementi v. Jackson, 92 N. Y. 591; People ex rel. Cooper v. Registrar of Arrears, 114 N. Y. 19.)
   Conway, J.

This is an appeal from a judgment of the Appellate Division, Second Department, entered upon a dismissal of the complaint at the close of the plaintiff’s case.

The plaintiff ha& occupied premises on Keap Street in Brooklyn consisting of a synagogue building. The occupation was under a lease from defendant. A summary proceeding was instituted by defendant against the plaintiff because the latter held over after the expiration of the term. We shall disregard all the allegations and proof involving the summary proceeding and a collateral mandamus proceeding which resulted in a direction to the clerk of the Municipal Court to issue a warrant to remove plaintiff from the premises. The mandamus proceeding could not be collaterally attacked in this action. (Haacke v. Marx, 210 App. Div. 248, affd. 240 N. Y. 568; Ashton v. City of Rochester, 133 N. Y. 187.)

Disregarding, then, those allegations, the situation, reduced to its simplest terms, is that plaintiff alleges ownership and possession of personal property of considerable value, of a religious character and used in connection with worship in the synagogue, retention thereof and demand therefor.

Proof of those allegations would establish a conversion. (Lewis v. Ocean Navigation & Pier Co., 125 N. Y. 341; Reich v. Cochran, 114 App. Div. 141; Ide v. Finn, 196 App. Div. 304.)

In Lewis v. Ocean Navigation and Pier Company (supra) the tenant had the right to remove certain buildings after the expiration of his lease. He held over and was evicted through a summary proceeding. He was refused the opportunity to remove the buildings. This court said (p. 352): “ The officers, who had the execution of the warrant of dispossession, refused to permit the plaintiff to remove the building, and this refusal was ratified by defendant, and the defendant still claims the right to retain it. The plaintiff again endeavored, after his dispossession, to remove the building, because of his being prevented by the agents of the defendant from removing it at the time he was dispossessed, 'but he was forbidden by the officers of the defendant from making any such attempt upon pain of instant arrest, and when he still made the attempt he was met and prevented by defendant from effecting the removal. The defendant has thus claimed the property as its own. It has refused to allow the plaintiff or his servants to remove it. The plaintiff was himself removed from the premises against Ms will by an officer with process, who refused to permit him to remove it. The claim and dominión made and exercised over the property by the defendant amounts to a conversion thereof. ’ ’

The rule has also been enunciated in Reich v. Cochran (114 App. Div. 141) where it was pointed out that the landlord had no right to retain the hotel supplies of the tenant after he had dispossessed him. The court said (pp. 142-143): “ The right to take possession under the writ to dispossess the tenant related, of course, only to the real property, and gave the owner no right to exercise dominion over it or to use or retain the personal property on the premises belonging to the tenant. ;

*#*#**#

The goods in question were not abandoned by the tenant. They were not fixtures wMch belonged to the tenant and which he failed to remove. The doctrine of abandonment applies only to fixtures. (Lewis v. O. N. & P. Co., 125 N. Y. 341, 351.) As to ordinary chattels left upon the premises on removal or after eviction, it is the duty of the landlord to notify the tenant to remove them, and in case he does not, to himself cause their removal. (Roberts v. Kain, 6 Robt. 354.) ”

It is true that where a landlord must expend moneys for the removal of the goods of the tenant he may recover his reasonable expenses, on the theory of implied contract, since it is primarily the duty of the tenant to remove his own property (Ide v. Finn, 196 App. Div. 304), but that rule even more clearly indicates that retention by the landlord of goods belonging to the tenant upon dispossession of the latter after demand by the tenant constitutes conversion.

Plaintiff made out a prima facie case of conversion and the judgment entered upon a dismissal of the complaint should be .reversed and a new trial ordered on the issue of conversion only, with costs to appellant to abide the event.

The judgments should be reversed and a new trial granted, with costs to the appellant to abide the event. (See 291 N. Y. 669.)

■Lehman, Oh. J., Loughban, Bippey, Lewis and Desmond, JJ., concur.

Judgments reversed, etc.


author: Rippey, J. Lewis, J.

text:
    Emma Adlam, Appellant, v. Loretto S. Konvalinka et al., Respondents.
    Argued April 21, 1943;
    decided July 20, 1943.

      Edward Friedman for appellant.
    The facts and circumstances related by plaintiff established a common law cause of action in negligence against defendants. The evidence of defendants’ active negligence in probing for steel particles in plaintiff’s fingers and a switch from a proved safe to a proved unsafe article with defendants’ recklessly false assurance of innocuous effects of the latter justifies, in fact impels, submission to a jury. (Hallenbeck v. Wander & Sons’ Chemical Co., 197 App. Div. 855.) Plaintiff in view of all the circumstances was neither contributorily negligent nor assumed the risk and these issues were questions for the jury. (Kain v. Smith, 89 N. Y. 375; Brady v. Pennsylvania Steel Co., 215 N. Y. 456; Maleeny v. Standard Ship Bldg. Corp., 237 N. Y. 250; Kaufman v. Hopper, 220 N. Y. 184; Pelow v. Oil Well Supply Co., 194 N. Y. 64; Hawley v. Northern Central Ry. Co., 82 N. Y. 370; Lynch v. American Linseed Co., 122 App. Div. 428, 194 N. Y. 574; Guann v. Southern Pacific Co., 15 Ariz. 413; Hoogbruen v. Atchison T. & S. F. R. Co., 213 Cal. 582; Finn v. Cassidy, 165 N. Y. 584; Guilmartin v. Solvay Process Co., 189 N. Y. 490; Felcin v. Society of New York Hospital, 155 App. Div. 545; Pellegrino v. Smith Co., 226 N. Y. 165; Bensing v. Steinway & Sons, 101 N. Y. 547; Malukas v. Overseas Shipping Co., 197 App. Div. 224.)

      William L. Shumate for respondents.
    Plaintiff’s proof was insufficient to make out a cause of action and, therefore, the complaint was properly dismissed. The evidence is insufficient to raise any jury issue as to the defendant’s negligence in furnishing plaintiff with the pad. (Maher v. Wagner, 62 S. D. 227; Newbern v. Great Atlantic & Pacific Tea Co., 68 F. 2d 523; Fasani v. N. Y. C. & H. R. R. R. Co., 109 App. Div. 404,190 N. Y. 515; Levine v. Blaine Co., 273 N. Y. 386.) The conduct of the defendants after the accident was not such as to violate any duty which they owed the plaintiff. (Kaster v. Woodson, 123 S. W. 2d 981.)
   Rippey, J.

Plaintiff brought this action to recover damages for injuries and inept and unprofessional medical attention received while engaged in her duties as a domestic servant in the employ of the defendants. She was injured while washing kitchen utensils with a defective wire-mesh soap pad which defendants furnished for her use. On the first occasion she used the appliance, loose ends of wires detached from their fastenings punctured her thumb and fingers, then broke off and remained imbedded therein. Her mistress undertook personally to treat her for her injuries without furnishing medical attention until after a serious infection developed which necessitated operations to remove the wire particles and substantial medical treatment to reduce the infection.

Plaintiff, previous to the occasion of her injury, had been accustomed to use wire mesh pads with handles attached for removing grease from kitchen utensils. She had never seen or previously used an appliance like the one from which she received her injuries. Her mistress furnished the new one without an attached handle to replace one with a handle no longer fit for use. Although there was no obviously defective appearance or loose wires readily apparent, plaintiff objected to using the new appliance, since it was unlike any such appliance that she had seen or used before, but her mistress assured her that it was all right, and safe and suitable for use and directed her specifically to use it. In the absence of knowledge of a defective condition which would warrant a definite choice, plaintiff was bound to use the appliance furnished by her mistress as she was directed to do.

There is no evidence that the article was snch a simple household article in common use as to absolve the mistress from liability for negligence as matter of law. So far as the record discloses, no similar appliance had ever before been used by anyone. These wires were either broken and loose at the time the pad was given to the plaintiff or became broken and loose from use, but there is no evidence as to which happened. Whatever happened occurred on the first occasion of the use of the appliance. Whether the wires broke because the appliance was not suitable for the use to which the plaintiff was required to put it, or whether they were broken when she started to work with it, the result is the same. The fact that the wires broke or came loose during ordinary usage or were loose when she started to do her work is sufficient to raise a question of fact as to whether or not the appliance was unsafe for use when it was delivered to the plaintiff.

Defendants were presumed to know any danger which a reasonable inspection would have disclosed (Kirby v. Montgomery Brothers & Co., 197 N. Y. 27, 31). Although defendants were not required to furnish the newest, the safest or the best appliance or one of a particular kind, they were, at least, required to furnish one reasonably safe and suitable for the use to which it was to be put and whether they complied with their nondelegable duty in that respect on the record now before us was a question of fact (Welle v. Celluloid Co., 175 N. Y. 401, 405).

Whether the defendants exercised such care under all the circumstances in this case as was required of them on the record as we now find it, whether their neglect, if any, in providing and directing the use of the article, or failure, if such there was, to make an adequate inspection was the proximate cause of the accident, whether the servant assumed the risk or was guilty of contributory negligence under the circumstances here disclosed were questions of fact for the jury.

The judgment of the Appellate Division should be reversed and the order of the Trial Term affirmed, with costs to the appellant to abide the event.

Lewis, J.

(dissenting). The plaintiff, employed in domestic work, was injured while cleaning kitchen tinware by the aid of a steel-wool pad. This particular kitchen utensil — known in trade as “ Good Old Soap Pad ” — had no features which were complicated. It had been purchased by the plaintiff’s employer who delivered it to the plaintiff with instructions that it be used. Previously her employer had supplied the plaintiff with a pad similar in type but to which a handle was attached. No evidence was introduced in behalf of the plaintiff to establish the fact that when such kitchen utensils are used it is - common practice to have handle attachments. Nor is there evidence that the pad used by the plaintiff was defective, unless it can be said that a strand of steel wool loosened from the pad is a defect. I find it difficult to conceive of a cleansing utensil more simple than the one here involved. To charge the mistress of a household with actionable negligence in circumstances such as those which gave rise to the present action would require an employer of domestic help to be an insurer against all defects in tools and utensils of the simplest type. The law imposes no duty so drastic. I think that reasonable care — not the highest efficiency which skill and foresight can produce — is the measure of duty owed by such an employer in the selection of the simple articles by which household work is done. (Carlson v. Phoenix Bridge Co. 132 N. Y. 273, 277, 278; Cregan v. Marston, 126 N. Y. 568, 572, 573; Marsh v. Chickering, 101 N. Y. 396, 399, 400.

Accordingly, I dissent and vote for affirmance.

Loughran, Conway and Desmond, JJ., concur with Rippey, J.; Lewis, J., dissents in opinion in which Lehman, Oh. J., concurs.

Judgment accordingly.