author: Gardozo, J.

text:
    The City of New York, Appellant, v. Emma M. H. Wright et al., Respondents, Impleaded with Another.
    Real property — title — constitutional law — jurisdiction — ejectment — registration of title to land — proceedings under article 12 of Real Property Law — no denial of due process by reason of statutory provisions for service of notice — requirements of notice by publication and registered mail reasonably adapted to end in view — compliance with statutory provisions sufficient to confer jurisdiction — omission of official examiner to discover and report that plaintiff had interest in land under water, of itself, neither actual nor constructive fraud — action for ejectment — defense that title to land in suit had been registered in one of defendants — complaint properly dismissed.
    1. There is no denial of “ due process ” in proceedings conducted under article 12 of the Real Property Law to secure registration of the title of land, by reason of the statutory provision for service of notice. All that is required when the subject-matter is land within the State is that the service shall be reasonably adequate to assure notice of the proceeding to those whose rights are to be affected and the statutory requirements of notice by publication and by registered letter, demanding a return, to all parties interested, are reasonably adapted to the attainment of the end in view.
    (Argued May 12, 1926;
    decided June 1, 1926.)
    2. An argument that the signer of the return card may have signed without authority is without weight. The requirements of the law were satisfied when the notice, duly registered, with due demand for a return, was deposited in the mails, and there was jurisdiction to proceed to judgment.
    3. Nor can it be successfully argued that the proceeding is voidable for fraud by reason of the failure of the official examiner to discover and report that the plaintiff herein had an interest in land under water as well as in the abutting streets. There is no suggestion that the error was willful or dishonest, and the omission in and of itself is not fraud, either actual or constructive. Furthermore the plaintiff was not misled or is not shown to have been misled by the description of its interest in the examiner’s report.
    4. In an action in ejectment, therefore, where the city of New York sought to obtain possession of land now or formerly under water, defended upon the ground that, by a final order in proceedings under article 12 of the Real Property Law, title to the land in suit had been registered in one of the defendants, the complaint was properly dismissed.

      City of New York v. Wright, 214 App. Div. 775, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 1, 1925,. affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial without a jury

      George P. Nicholson, Corporation Counsel (John J. Mead of counsel), for appellant.
    The certificate of registration cannot be “ final ” and unassailable under our system of jurisprudence. The Legislature has no power to declare what shall be conclusive evidence. (Cooley on Const. Lim. [5th ed.] 454, 455; Chicago, Mil. & S. P. Ry. v. Minnesota, 134 U. S. 418; State v. Monnett & Guilbert,
      56 Ohio, 575; Barkenthien v. People, 213 N. Y. 554; Partenfelder v. People, 211 N. Y. 355; City & Suburban Homes Co. v. People, 157 App. Div. 124.) The provisions of article 12 of the Real Property Law as to service of original process on a person claiming title to real property are invalid and void because not “ due process of law ” within the meaning of the Fourteenth Amendment to the Constitution of the United States, and of section 6 of article 1 of the Constitution of the State of New York. (Lachman v. People, 127 N. Y. Supp. 912; Dartmouth College v. Woodward, 4 Wheat. 519; Pennoyer v. Neff, 95 U. S. 714; Hurtado v. California, 110 U. S. 516; McMillen v. Anderson, 95 U. S. 37; Pearson v. Yendall, 95 U. S. 294; Davidson v. New Orleans, 96 U. S. 97; Westervelt v. Gregg, 12 N. Y. 202; Wynehamer v. People, 13 N. Y. 378; People v. O’Brien, 111 N. Y. 1; Barkenthien v. People, 212 N. Y. 36; Partenfelder v. People, 211 N. Y. 355.) Even assuming that the provisions of section 385 of the Real Property Law, for the service of “ notice ” are constitutional, the attempted service and alleged proof thereof in this instance are wholly defective, insufficient and void. (Matter of Fetzer, 104 Misc. Rep. 442; Matter of Harper, 106 Misc. Rep. 517.) The judgment for registration of title in Emma M. H. Wright of March 20, 1922, and the certificate of registration issued in pursuance thereof dated March 21, 1922, are invalid and void because obtained by fraud. (Barkenthien v. People, 213 N. Y. 554; Hamilton v. Morris, 7 Paige, 39; Sheridan v. Cardwell, 141 App. Div. 854; Costello v. Costello, 209 N. Y. 252; Spalhors v. Shelbourne, 158 App. Div. 367; 216 N. Y. 205; Forker v. Brown, 10 Misc. Rep. 161; 159 N. Y. 540; Bystrom v. Villard, 175 App. Div. 433; 220 N. Y. 765; Craig v. Ward, 36 Barb. 377; Atkins v. Elwell. 45 N. Y. 753; Meighan v. Rohe, 166 App. Div. 175.)

      J. Sidney Bernstein for respondents.
    The order or judgment of registration of the property in the defendant Wright and the issue to her of a certificate of title thereto* is final and conclusive on the question of title and constitutes a bar to the claim of the plaintiff in the present action, (Barkenthien v. People, 212 N. Y. 36; Parten-felder v. People, 211 N. Y. 357; Meighan v. Rohe, 166 App. Div. 175.) The provision of the Real Property Law for service of process on a party to the registration proceeding by registered mail is both legal and constitutional. (Barkenthien v. People, 212 N. Y. 36; Partenfelder v. People, 211 N. Y. 355; Sunderman v. People, 148 App. Div. 124; Sherman v. Kalman, 169 App. Div. 17; Hawes v. U. S. Trust Co., 142 App. Div. 789; City & Suburban Homes Co. v. People, 157 App. Div. 124; Voorhees v. Voorhees, 66 Misc. Rep. 78; Smith v. Martin, 69 Misc. Rep. 108; Matter of Fetzer, 104 Misc. Rep. 442; Matter of Harper, 106 Misc. Rep. 514; Rubin v. Smith, 122 Misc. Rep. 6; 210 App. Div. 876.)
   Gardozo, J.

The action is ejectment.

Plaintiff, the city of New York, alleges that it is the owner, and entitled to the possession, of land now or formerly under water, forming part of Cromwell’s creek in the borough of The Bronx. For answer, the defendant Wright sets up a final order made in proceedings under article 12 of the Real Property Law (the so-called Torrens Law, Cons. Laws, ch. 50), whereby title to the land in suit was registered in her. The city urges that the proceedings are ineffective, first, for lack of jurisdiction, and second, for fraud.

Lack of jurisdiction results, it is said, from inadequacy of notice. The statute provides for the filing of a petition (§ 379); for a reference to an official examiner who is to make a preliminary report as to the title and as to any interests therein (§ 380); and for a hearing thereafter at which adverse claimants shall have an opportunity to assert their rights (§ 385). Notice of this hearing is to be given by publication in a newspaper, and by registered letter, demanding a return, to every party to the proceeding whose address is known, and so far as possible to all other persons appearing to have any interest therein as well as to adjoining owners. Notice of the proceeding and hearing is also to be posted in a conspicuous place upon the land (§ 385). The final order when duly enrolled is to be “ forever binding and conclusive upon the State of New York and- all persons in the world, whether mentioned and served with the summons and said notice specifically by name, or included in the description, ' all other persons, if any, having any right or interest in, or hen upon, the property affected by this action, or any part thereof ’ ” (§ 391).

The official examiner by his preliminary report included the city of New York as one of the interested parties, describing the nature of the interest as “ possible rights in abutting, street.” Pursuant to this report, notice by registered mail was duly transmitted to the city of New York at the office of the corporation counsel. In due course there was returned a receipt bearing the words Office of the Corporation Counsel ” with the signature thereunder Mary Neary,” described as the addressee’s agent. The city made default upon the hearing, though it does not say even now that it failed to receive the notice. An order of registration was thereafter made and filed in accordance with the statute.

We see no merit in the city’s argument that there is a denial of “ due process ” in proceedings so conducted. The grievance seems to be that the statute makes provision for service by publication in k newspaper and by transmission through the mails. There is no doubt as to the validity of such a provision when the subject-matter of the controversy is land within the State. All that is then required is that the service shall be reasonably adequate to assure notice of the proceeding to those whose rights are to be. affected. The authorities to that effect are convincing and decisive (American Land Co. v. Zeiss, 219 U. S. 47; Security Sav. Bk. v. California, 263 U. S. 282, 287; Tyler v. Ct. of Registration, 175 Mass. 71; Matter of Empire City Bank, 18 N. Y. 199, 215; Continental Nat. Bank v. Thurber, 74 Hun, 632; affd., on opinion below, 143 N. Y. 648; Campbell v. Evans, 45 N. Y. 356). “As it is indisputable that the general welfare of society is involved in the security of the titles to real estate, * * * it is obvious that the power to legislate as to such subjects inheres in the very nature of government ” (Am. Land Co. v. Zeiss, supra). The case is even clearer where the defendant, as here, is a resident of the State (Continental Nat. Bank v. Thurber, supra), and clearer "still, if possible, where it is a municipal corporation (cf. City of Trenton v. New Jersey, 262 U. S. 182, 188). Our inquiry, therefore, is limited to this: whether the provisions in respect of notice are reasonably adapted to the attainment of the end in view. The answer is not doubtful (Tyler v. Ct. of Registration, supra). Some point is made that the signer of the return card may have signed without authority. The requirements of the law were satisfied when the notice duly registered, with due demand for a return, was deposited in the mails. The statute would be unworkable if the petitioner were under a duty to supplement the proof of mailing by proof that the signature to the receipt is authorized or genuine. The city does not even suggest that the notice did in fact miscarry. The statute was obeyed, and there was jurisdiction to proceed to judgment.

Equally without substance is the argument that the proceeding is voidable for fraud. Actual fraud is disclaimed. The argument is, however, that there were omissions or misstatements by the official examiner which are to be characterized as constructive fraud. The fraud is said to consist in the failure of the examiner to discover and report that the city had an interest in the land under water as well as in the abutting streets. But, of course, that omission in and of itself is not fraud of any kind, either actual or constructive. Conceivably the examiner may have made a mistake. There is no suggestion that the error was willful or dishonest. Certificates of registration would be worthless if their effect could be undone by evidence that an outstanding right or interest had been misapprehended or omitted. The very purpose of the proceeding is to set such controversies at rest. We add that the city was not misled or is not shown to have been misled by the description of its interest in the examiner’s report. Neither in the published nor in the registered notice was there any statement that the right or claim of right to be divested was less than ownership in-fee. The notice, published and registered, described the land by metes and bounds, accurately and fully. If the city claimed an interest in the whole or in any part, there was warning, ample and unequivocal, to come forward with its proofs.

' The judgment should be affirmed with costs..

Hiscock, Ch. J., Pound, McLaughlin, Crane and Lehman, JJ., concur; Andrews, J., absent.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of the Application of Edward J. O’Connell, as Chairman of the Democratic General Committee of the County of Albany, against Felix Corscadden et al., Constituting the Board of Elections of the County of Albany, Respondents; Edward Easton, as Chairman of the Republican County Committee of the County of Albany, et al., Intervenors, Respondents.
    Second class cities — Albany (city of) — elections — upon death of mayor of city of Albany successor must be elected at next succeeding election — president of common council to act as mayor only to January first after such election.
    By section 51 of the Second Class Cities Law providing that “ whenever there shall be a vacancy in the office of mayor * * * the president of the common council shall act as mayor * * * until noon of the first day of January next succeeding the election at which the mayor’s successor shall be chosen,” the Legislature meant the next election day at which, under the Election Law, a successor can be chosen, and not that the president of the common council should serve for the unexpired term. A vacancy in the office of the mayor of the city of Albany, therefore, occasioned by the death of the incumbent on the fourth day of March, must be filled by the election of a successor at the election in the following November.
    (Argued May 24, 1926;
    decided June 1, 1926.)

      Matter of O’Connell v. Corscadden, 217 App. Div. 709, affirmed.
    Appeal, by permission, from an order of the Appellate Division "of the Supreme Court in the third judicial department, entered May 13, 1926, which affirmed an order of Special Term denying a motion for an order to. restrain the board of elections of the county of Albany from including the office of mayor of the city of Albany in the notice to be published pursuant to section 72 of the Election Law specifying the public offices to be voted for at the November election, 1926.

      Robert E. Whalen for appellant.
    The Second Class Cities Law leaves undetermined the question in what year shall be held the election at which the mayor’s successor shall be chosen. (People ex rel. Weller v. Townsend, 102 N. Y. 430.) In the absence of constitutional or statutory authority, no election for mayor can be held before November, 1929. (People ex rel. Woods v. Crissey, 91 N. Y. 616; Cooley on Cons. Lim. [6th ed.] 747; People ex rel. Canning v. Shaw, 25 App. Div. 147; People v. Fitzgerald, 180 N. Y. 269; People v. Wilson, 72 N. C. 155.)

      Dennis S. Dawson for defendants, respondents.
    The vacancy in the office of mayor must be filled by the electors of the city of Albany at the general election to be held November 2, 1926. (New York Constitution, art. 12, § 6; Matter of Schwab v. Boyle, 174 App. Div. 442; 219 N. Y. 561; Mitchell v. Boyle, 219 N. Y. 245; Matter of Mitchell v. Prendergast, 178 App. Div. 690; Public Officers Law, §§ 28, 30, subd. 1.) The president of the common council may act as mayor until January 1, 1927. (Public Officers Law, § 38; Second Class Cities Law, §51.)

      Robert H. McCormic for interveners, respondents.
    Running through all these provisions of the Constitution, charter and other statutes, there is apparent an intention to create a comprehensive and concrete method of filling vacancies in city offices by election at as early a period as practicable. (Mitchell v. Prendergast, 178 App. Div. 690; Weller v. Townsend, 102 N. Y. 439; People v. Albertson, 55 N. Y. 50; People v. Pelham, 215 N. Y. 374; Fronnstine v. Britt, 212 N. Y. 421; Deitz v. Hogan, 214 N. Y. 217; Schwab v. Boyle, 174 App. Div. 442; 219 N. Y. 561.)
   Per Curiam.

William S. Hackett, mayor of the city of Albany, died on March 4, 1926, and on the next day John Boyd Thacher, 2d, president of" the common council, became acting mayor pursuant to section 51 of the Second Class Cities Law. (Cons. Laws, ch. 53.) The courts have been moved to determine whether Mr. Thacher continues to serve as acting mayor during the unexpired term of Mayor Hackett, or only until the first of next January. In the latter case an election of a successor to Mayor Hackett must be held this coming November. The courts below have held that the president of the common council acts as mayor until January next.

Section 51 of the Second Class Cities Law reads as follows:

Sec. 51. Acting Mayor. Whenever there shall be a vacancy in the office of mayor, or whenever by reason of sickness or absence from the city the mayor shall be prevented from attending to the duties of the office, the president of the common council shall act as mayor and possess all the rights of mayor during such period of disability or absence. In case of a vacancy in the office of mayor he shall so act until noon of the first day of January next succeeding the election at which the mayor’s successor shall be chosen.”

It is the claim of the appellant that this provision does not refer to the next succeeding election day after the vacancy occurs but does refer to the election day at which a mayor can be elected under the charter as now existing. This would be the last election day of the term and enable the acting mayor to serve the full unexpired term of Mayor Hackett. We think this is not and could not have been the intention of the Legislature in enacting this section. Such an unnecessary and clumsy way of expressing such an intention would not have ■ been used. Throughout the provisions of law when a successor or an appointee is to fill an unexpired term the Legislature specifically says so. It leaves no doubt about it. . Under the former charter of the city of Albany in effect before the enactment of the Second Class Cities Law, it was provided:

Whenever there is a vacancy in the office of mayor the president of the common council shall hold such office for the remainder of the term of office of said mayor.” (Laws of 1883, chap. 298, sec. 7 of title 4, as amended by chap. 806 of the Laws of 1895, sec. 7.)

Also in section 15 of the Second Class Cities Law, article III, relating to vacancies in office it is provided:

“ If a vacancy shall occur, otherwise than by expiration of term, in an elective office of the city, including that of supervisor, the mayor shall appoint a person to fill such vacancy. The person so appointed to such vacancy, if the office be not made elective by the constitution, shall hold office for the balance of the unexpired term.”

The Legislature was quite familiar with the language to be used when a vacancy was to be filled for an unexpired term. It said so in those words. When, therefore, in section 51, the Legislature stated that in case of a vacancy in the office of mayor, the president of the common council shall act until noon of the 1st day of January next succeeding the election at which the mayor’s successor shall be chosen, it meant the next election day at which tinder the Election Law a successor can be chosen. It 'never intended to say in this round-about way that the president of the common council should serve for the unexpired term.

This section then harmonizes with the provisions of law for filling vacancies occurring in all constitutional elective offices (Constitution, art. X, § 5), and in offices to which sections 38, 42 and 43 of the Public Officers Law (Cons. Laws, ch. 47) apply. Whether any of these sections of the Public Officers Law apply here, we need not now determine.

For these reasons the order appealed from should be affirmed, without costs.

His cock, Ch. J., Cardozo, Pound, McLaughlin. Crane, Andrews and Lehman, JJ., concur.

Order affirmed.


author: Cardozo, J;

text:
    Carl Hinz, Appellant, v. Eighth Avenue Railroad Company, Respondent.
    Negligence — railroads — pedestrian struck by street car while crossing plaza — inference permissible that motorman was negligent where it appeared that without warning he doubled the speed of the car when plaintiff started to cross track — pedestrian not a trespasser, even between blocks, and motorman not at liberty to be heedless of his presence — contributory negligence of plaintiff question for jury.
    1. Where, in an action to recover for personal injuries received by plaintiff through his being struck by a street car while he was crossing from west to east an open space or plaza traversed by defendant’s tracks, the jury might have found that plaintiff, when about to step from the west rail, saw the ear slowly approaching through traffic at his left, to give crossing cabs the right of way, and that suddenly the motorman doubled the speed of the ear in an effort to cut off another cab approaching from the west, thereby running down the plaintiff, where there is nothing to show that he could not have seen the plaintiff if he had been watchful and alert, the inference is permissible that the motorman was negligent. He was not at liberty to quicken the speed of the car, without warning, with the plaintiff so near at hand that injury was probable.
    (Argued May 14, 1926;
    decided June 1, 1926.)
    2. An argument that the vigilance exacted at such a point is something less than is exacted where an avenue is intersected by a street does not help the defendant. There was an intersection at the point in question, though wider than is usual, and a jury might determine that there was warning in the layout of the land that pedestrians were to be looked for. Nor would the result be altered if the rule that governs between ordinary city blocks were to be applied in all its fullness, for, even at such points, a pedestrian is not a trespasser, and motormen are not at liberty to be heedless of his presence.
    3. Whether there was contributory negligence in the conduct of the plaintiff was also a question for the jury, it being for them to say whether a traveler of ordinary caution would have foreseen the danger of sudden increase in the speed of the car and avoided it.

      Hinz v. Eighth Avenue Railroad, Co., 215 App. Div. 189, modified.
    Appeal from a judgment, entered February 8, 1926, upon an order of the Appellate Division of the Supreme Court in th'e first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.

      George F. Hickey and Thomas E. Flynn for appellant.
    The evidence warranted the finding that the collision was brought about solely by reason of the negligent increase of the speed of the car by the motorman. (Fandel v. Third Ave. R. R. Co., 15 App. Div. 426; 162 N. Y. 598; Costello v. Third Ave. R. R. Co., 26 App. Div. 48; 161 N. Y. 317; McDade v. International Ry. Co., 235 N. Y. 11; Moebus v. Herman, 108 N. Y. 349; Baker v. Close, 204 N. Y. 92; Benjamin v. Fonda, J. & G. R. Co., 205 App. Div. 384; Brass v. Met. St. R. Co., 66 App. Div. 554; Guinaw v. Garrison, 212 App. Div. 824; Davis v. New York State Railways, 210 App. Div. 316; Knapp v.
      Barrett, 216 N. Y. 226; Buhrens v. D. D., etc., R. Co., 53 Hun, 571; 125 N. Y. 702.) The plaintiff was not chargeable with contributory negligence. (Costello v. Third Ave. R. Co., 26 App. Div. 48; 161 N. Y. 317; Salm v. Bleau, 240 N. Y. 614; Shirley v. Larkin, 239 N. Y. 94.)

      William J. Curtin and Michael Kirtland for respondent.
    There is no evidence of negligence on the part of defendant. (Stabenau v. Atlantic Ave. R. R. Co., 155 N. Y. 511; Jackson v. Union R. R. Co., 77 App. Div. 161; Casper v. Met. St. R. R. Co., 84 App. Div. 639; Albrecht v. Rochester R. R. Co., 205 N. Y. 230; Madigan v. Third Ave. R. R. Co., 68 App. Div. 123; Baker v. Eighth Ave. R. R. Co., 62 Hun, 39; Dansky v. S. I. M. Ry. Co., 186 App. Div. 101; McEntee v. Met. St. Ry. Co., 110 App. Div. 673; Belton v. Baxter, 54 N. Y. 245; Byrnes v. Brooklyn Hts. R. R. Co., 148 App. Div. 794; Zenner v. Brooklyn Hts. R. R. Co., 173 App. Div. 194.) The place where plaintiff was crossing the plaza was not a street crossing. (Zenner v. Brooklyn Hts. R. R. Co., 173 App. Div. 194; Fenton v. Second Ave. R. R. Co., 126 N. Y. 625; Thompson v. Buffalo R. R. Co., 145 N. Y. 196; Barney v. Metropolitan St. R. R. Co., 94 App. Div. 398.) Plaintiff was guilty of contributory negligence. (Furlong v. Met. St. Ry. Co., 103 App. Div. 215; Reed v. Met. St. R. Co., 180 N. Y. 315; Little v. Third Ave. R. R. Co., 83 App. Div. 330; 178 N. Y. 591; Thompson v. Met. St. R. R. Co., 89 App. Div. 10; McEntee v. Met. St. R. R. Co., 110 App. Div. 673; Wecker v. Brooklyn & Queens County R. R. Co., 136 App. Div. 340; Foley v. N. Y. C. & H. R. R. R. Co., 197 N. Y. 430; Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 133; Capitulu v. N. Y. C. R. R. Co., 200 App. Div. 247; Matutinovich v. N. Y. C. R. R. Co., 182 App. Div. 451; Goldstein v. Union R. R. Co., 180 App. Div. 417.)
   Cardozo, J;

The action is for personal injuries.

At Central Park West or Eighth avenue in the city of New York between One Hundred and Ninth and One Hundred and Eleventh streets there is an open space or plaza. Eighth avenue, when projected through the center of the plaza, crosses it north and south. Cathedral Parkway, similarly projected, crosses it approximately east and west. The tracks of the defendant’s street railway, running north and south along Eighth avenue, bisect the plaza in their course. Traffic posts near the center, inclosing a small zone, divide the traffic east and west.

On November 1, 1924, at about 7.30 p. m., plaintiff, a man 62 years of age, left Cathedral Parkway, and proceeded to cross the plaza to the east. Three taxicabs going in the same direction were crossing at the same time. The plaintiff, when about a step from the west rail, saw the second of these taxicabs immediately to his left. Farther on to the left, was one of the defendant’s cars, moving south through the traffic zone, and crawling along cautiously to give the cabs the right of way, The width of the zone was 35 feet, or about the length of a car. Plaintiff, then 15 or 20 feet away from the southerly side of the zone, started to cross the tracks in the wake of the passing cab. The defendant’s motorman suddenly doubled the speed of the defendant’s car in the effort to cut off a third cab approaching from the west. His movement was so rapid that the latter cab, then a few feet from the tracks and entitled to the right of way, was halted in its course, and swung sharply to the south. Plaintiff, thus surprised, was run down by the defendant’s car and suffered injuries resulting in the amputation of a leg. We do not mean that these happenings were established beyond controversy. The facts as we have stated them are those that the jury might have found if they credited the plaintiff’s version of the casualty and the version of his witnesses. They did credit that version, and gave the plaintiff damages. The Appellate Division reversed, and dismissed the complaint.

Upon the facts stated, we think the inference is permissible that the motorman was negligent. His car was creeping along at a rate that would have enabled the plaintiff to pass in safety. He was not at liberty to quicken its pace without warning, with the plaintiff so near at hand that injury was probable. Quicken it he did by his own admission, and this to the extent of doubling his rate of movement through the zone. There is nothing to show that he could not have seen the plaintiff if he had been watchful and alert (McDade v. Int. Ry. Co., 235 N. Y. 11). The defendant argues that the vigilance exacted at such a point is something less than is exacted where an avenue is intersected by a street. But there was an intersection here, though wider than is usual. The plaintiff was following a direct course from Cathedral Parkway at the west of the'plaza to the continuation of the same parkway at the east. He traversed the broadening roadway instead of skirting the plaza and traveling a circuit. There was warning in the layout of the land that pedestrians were to be looked for, or so a jury might determine. If, however, the rule that governs between ordinary city blocks were to be applied in all its fullness, the result would not be altered. Even at such points, a pedestrian is not a trespasser, and motormen are not at liberty to be heedless of his presence (Baker v. Close, 204 N. Y. 92; Moebus v. Herrmann, 108 N. Y. 349). The vigilance that is due will vary with the place and the occasion. Neither in place nor in occasion here was there excuse as a matter of law for sudden change of power to a traveler’s destruction (Costello v. Third Ave. R. R. Co., 161 N. Y. 317, 322).

Whether there was contributory negligence in the conduct of the plaintiff was again a question for the jury. He was only a step from the rail, and there is no suggestion in the evidence that in the absence of the sudden spurt which brought the car upon him, he would have been unable to cross unharmed. He had no reason to assume, or so a jury might say, that such a spurt would be made, and least of all that it would be made without warning of the onset. There is no dispute that the car had been going very slowly through the zone. This the motorman admits. There is no dispute that the speed was doubled all of a sudden to get ahead of an approaching cab. A jury should say whether a traveler of ordinary caution would have foreseen these dangers, and avoided them (Costello v. Third Ave. R. R. Co., supra).

The judgment of the Appellate Division should be modified so as to grant a new trial, with costs to abide the event.

Hiscock, Ch. J., Pound, McLaughlin, Crane and Lehman, JJ., concur; Andrews, J., absent.

Judgment accordingly.


author: Cardozo, J.

text:
    Interstate Ice and Power Corporation, Respondent, v. United States Fire Insurance Company, Appellant.
    Contract — writing constituting contract of conditional sale — insurance (fire) — action to recover on policy insuring vendor’s interest in property sold under contract of conditional sale — retaking of property by vendor not a rescission of contract —■ reasonableness of delay in resale — delay insufficient to evidence election of vendor to keep property retaken — insurer not entitled to credit for salvage value of property ■ — ■ upon payment of money due on sale insurer may be subrogated to remedies against conditional vendee — interest of vendee in property not divested by contract for its sale which was abandoned after fire.
    1. A writing stating that the price of machinery, payable in installments, was to be a certain sum with interest on the deferred payments and that “ it is understood that we are to retain title to all of the above equipment until same has been fully paid for,” is not a contract for a chattel mortgage but a contract of conditional sale.
    2. In an action to recover upon a policy of insurance whereby defendant insured plaintiff’s assignor against loss or damage by fire on their unpaid interest in such machinery, a contention that before the fire the unpaid debt was extinguished by a seizure of the chattels cannot be- sustained. A retaking of the property by a conditional vendor is not a rescission of the contract. The. vendor after retaking may resell and hold the vendee for any deficiency resulting (Pers. Prop. Law, §§ 80-b, 80-d; Cons. Laws, eh. 41) and there is nothing in the record to justify a finding that the privilege of resale was abandoned or lost.
    (Argued May 14, 1926;
    decided June 1, 1926.)
    3. Nor can it be said as matter of law that there has been such unreasonable delay in exercising the privilege of resale as to evidence an election by the vendor to keep what it has retaken and thus relieve the vendee as to chattel mortgages. The amount unpaid exceeded fifty per centum of the purchase price of the machinery and under such circumstances resale is not a duty unless written notice demanding a resale has been given by the buyer. (Pers. Prop. Law, §§ 79, 80.) Furthermore the vendor, might not unreasonably await the outcome of the seizure proceeding, which had been accompanied by an undertaking whereby a duty was imposed to return what had been seized if return should be adjudged, and for all that appears such proceeding is still pending undetermined.
    4. The machinery having been damaged by the fire that occurred two weeks after its seizure, the right to indemnity accrued at the expiration of the sixty days allowed for payment after service of proofs of loss, and the debt on the machinery not having at that time been extinguished, there can be no force in the contention that the form of the policy, insuring the unpaid interest and not in terms the property itself, exacts a credit for the salvage value of the machinery as measured by the appraisal. No one can be sure that such value will be realized when the time to resell arrives. The defendant should, consequently, pay to the plaintiff what is still due upon the sale. It will then succeed, by subrogation, to the remedies available against the conditional vendee.
    5. An argument that by force of an agreement between the plaintiff and the conditional vendee, by the terms of which the vendee was to sell to the plaintiff certain real property and the machinery in suit which had been installed therein, the interest of the vendee in the machinery was divested and his obligation to pay for it released, cannot be sustained. The agreement read in its entirety looks wholly to the future, and the fire having occurred before the closing day and the contract thereupon abandoned, the title to land and machinery remained where it would have been if no such contract had been made.

      Interstate Ice & Power Corp. v. U. S. Fire Ins. Co., 215 App. Div. 768, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 23, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.

      Joseph Thurlow Weed for appellant.
    The plaintiff had no “ unpaid interest ” in the property at the time of the fire. (Rivara v. Stewart & Co., 241 N. Y. 259; Harrison v. Hall, 235 N. Y. 51; Kiser v. Blanton, 123 N. C. 404; Stuyvesant Ins. Co. v. Reid, 171 N. C. 513; Lancaster v. Southern Ins. Co., 153 N. C. 285; Griswold v. American Cent. Ins. Co., 1 Mo. App. 97; Almo Fire Ins. Co. v. Davis, 60 S. W. Rep. 802; People’s St. Ry. Co. v. Spencer, 156 Penn. St. 85; Reynolds v. Lanc. Fire Ins. Co., 128 Cal. 16; Smith v. Col. Ins. Co., 17 Penn. St. 253; Jordan v. Ins. Co., 151 N. C. 343; Warehouse Co. v. Warehouse Corp., 195 N. C. 578.) The failure of the plaintiff to sell the chattels which it had retaken and its election to retain" possession and procure a release of the debtor’s rights, coupled with an agreement for the entry of a formal judgment of absolute ownership, did two things: It paid Brady’s debt and canceled the plaintiff’s “ unpaid interest,” and it deprived the defendant of its right to subrogation provided for in the policy of insurance. (Phoenix Ins. Co. v. Parsons, 129 N. Y. 86; Left v. Guardian Fire Ins. Co., 125 N. Y. 83.)

      Woolsey A. Shepard for respondent.
    At the time of the fire the indebtedness from Brady to the plaintiff was unpaid and the defendant was liable for the injury to the security for the debt up to the amount insured under its policy. (Kaiser v. Blanton, 123 N. C. 404; Duden v. Waitzfelder, 16 Hun, 337; Excelsior Fire Ins. Co. v Royal Ins. Co., 55 N. Y. 343; Smith v. Col. Insurance Company, 17 Penn. St. 253.) The contract made with Brady, after default on his notes, was executory, and never having been completed, Brady was never discharged from his debt. (Clinton v. Home Insurance Company, 45 N. Y. 454; Browning v. Home Ins, Co., 71 N. Y. 508.)
   Cardozo, J.

The action is brought upon a policy of insurance whereby the defendant insured Machinery Utilities Company, Inc., plaintiff’s assignor, against loss or damage by fire in the sum of $13,000 “ on their unpaid interest in the. complete machinery installed in ice-making plant of C. S. Brady ” at Rocky Mount, North Carolina.

The machinery covered by the policy was sold to Brady by Machinery Utilities Company, Inc., in 1923, under a contract of conditional sale. The price, payable in installments, was to be $15,560, with interest on the deferred payments. “ It is understood that we are to retain title to all of the above equipment until same has been fully paid for.” This is not a contract for a chattel mortgage as the defendant would have us say. Its provisions stamp it .unmistakably as a contract of conditional sale.

There was default by the vendee in the payment of installments of the price. Thereupon, in September, 1923, plaintiff, which had succeeded to the rights of the conditional vendor, began a proceeding known as a claim and delivery proceeding in the courts of North Carolina. Upon process issued in that proceeding, the sheriff made return that he had seized the machinery therein described and delivered it to the plaintiff. The affidavit upon which he acted was to the effect that plaintiff was entitled to the possession by virtue of “a certain chattel mortgage or instrument retaining title.”

The seizure of the property was followed by an agreement between plaintiff and Brady for the settlement of their differences. By this agreement, made in October, 1923, plaintiff was to buy and Brady to sell the real property at Rocky Mount and all its machinery and appurtenances, the conveyance to be delivered December 1, 1923. Upon the closing of title, plaintiff was to surrender the notes received from Brady under the contract of conditional sale, and Brady released the plaintiff from any and all claims, and consented that judgment be entered in its favor in the proceeding then pending. Before this agreement could be carried out, a fire destroyed the building and damaged the machinery which, despite the levy by the sheriff, had been left in its old location. By agreement, there was an appraisal of the loss under the policy in suit. The sound value of the property was fixed at $20,517, and the damage at $12,165, with the result that the salvage value was $8,352. At the time of the fire, the balance due upon the contract of conditional sale was $11,987. The trial court gave judgment for that amount, and the Appellate Division unanimously affirmed. The defendant insists that credit should have been given for the full value of the property retaken, which would wipe out the loss altogether, or in any event for the salvage value, $8,352, which would reduce the loss to $3,635.

We find no error in the judgment. The point is made that before the fire the unpaid debt was extinguished by the seizure of the chattels. We think the debt was still alive. A retaking of property by a conditional vendor is not a rescission of the contract. If this may once have been doubtful (Bogert, Commentaries on Conditional Sales, pp. 166, 169, 170, 171, collating the decisions), the doubt has been dispelled by the Uniform Conditional Sales Act, which became part of the law of New York in 1922. The vendor after retaking may resell, and hold the vendee for any deficiency resulting (Pers. Prop. Law [Cons. Laws, ch. 41], §§ 80-b, 80-d; L. 1922, ch. 642). Nothing in this record justifies a finding that the privilege of resale was abandoned or lost. We may assume, without deciding, that unreasonable delay in exercising the privilege of resale is evidence of an election by the vendor to keep what it has retaken, and thus release the vendee (Pers. Prop. Law, § 80-c; cf. as to chattel mortgages Harrison v. Hall, 239 N. Y. 51). Delay, unless forbidden by statute, may not be found to be unreasonable without reference to the circumstances. Here, the seizure under provisional process was accompanied by an undertaking whereby a duty was imposed to return what had been seized if return should be adjudged. Not unreasonably the vendor before reselling would await the outcome of the suit. Within a fortnight following the seizure, a fire had occurred. What was left was not the completed machinery, but only dismembered parts. Proof of loss was served November 27, 1923, and the sixty days allowed for payment expired January 26, 1924. Then, if not before, the right to indemnity accrued. The defendant refers to section 65 of the statute governing conditional sales as exacting resale within a period of thirty days. The fact seems to be overlooked that section 65 as it once stood (L. 1909, ch. 45) has been superseded by sections 79 and 80 (L. 1922, ch. 642). Under the present act, which was in force in 1923, resale is not a duty if at the time of the retaking less than fifty per centum of the purchase price has been paid under the contract unless written notice demanding a resale has been given by the buyer (§ 80). The purchase price of this machinery was $15,560, and the amount unpaid $11,987.53. In such circumstances resale was not required within any determinate time in order to relieve the vendor from the inference of an election (under § 80-c) to keep the chattels as its own. At most, such an inference would arise when delay became unreasonable. We cannot say as matter of law that this limit has been exceeded. For all that appears the claim and delivery proceeding is still pending and undetermined. Still less can we say that the limit had been exceeded when the right of action for indemnity matured under the policy. (Insurance Co. v. Stinson, 103 U. S. 25, 27, 28).

If the debt had not been extinguished when indemnity was due, there can be no force in the contention that the form of the policy, insuring the unpaid interest, and not in terms the property itself, exacts a credit for the salvage value of the machinery as measured by the appraisal. No one can be sure that such value will be realized when the time to resell arrives. Before the fire, the vendor’s unpaid interest was secured by- complete machinery appraised at $20,000 and more. As a consequence of the fire, there remains the precarious security of separate or dismembered parts. The case in this aspect is ruled by Excelsior Fire Ins. Co. v. Royal Ins. Co. (55 N. Y. 343, 353, 359). When an appreciable loss has occurred to the property from fire, its capacity to pay the mortgaged debt has been affected; it is not so well able to pay the debt which is upon it ” (55 N. Y. at p. 359). Here the capacity has been impaired to the extent of $12,165, if not more. The defendant is amply protected by the right of subrogation. Let it pay to the vendor what is still due upon the sale. It will then succeed by subrogation to the remedies available against the conditional vendee.

There remains a final point which deserves a word of notice. The defendant argues that by force of the agreement of October, 1923, the interest of the conditional vendee in the machinery conditionally sold was presently divested, and the obligation to pay for it released. The October agreement, read in its entirety, looks wholly to the future. The machinery is to go back to the vendor and the notes are to be surrendered, upon the conveyance and not before. When the closing day arrived, the fire had occurred, and the buyer, rightly or wrongly, refused to accept the title. The seller did not elect to sue for specific performance. He treated the contract as abandoned, sued at law for damages, and thereafter recovered judgment. The title to land and machinery remained where it would have been if no such contract had been made.

The judgment should be affirmed with costs.

His cock, Ch. J., Pound, McLaughlin, Crane and Lehman, JJ., concur; Andrews, J., absent.

Judgment affirmed.


author: Pound, J. Lehman, J. (dissenting).

text:
    William J. Schieffelin, Respondent, v. William J. Lahey et al., Appellants.
    Taxpayer’s action — New York city — police — civil service — captain of police vacates his office on acceptance of office of deputy police commissioner — not disqualified for restoration to original position — reinstatement in office authorized by municipal civil service rules — neither purpose nor language of Civil Service Law contravened by rule — words “selected from ” in section 288 of the charter relate only to classes eligible for promotion, from which original appointments must be made — not intended to prohibit reinstatements — complaint in taxpayer’s action to restrain payment for services of captain of police, restored to duty after service as deputy police commissioner, dismissed.
    1. Under the provisions of either or both sections 291 and 1549 of the charter of the city of New York (L. 1901, oh. 466) the defendant, a captain of police, vacated his office as a member of the police force when he accepted appointment and performed duties as deputy police commissioner and the statutory effect of his acceptance was not changed by lack of intention to vacate the first office or his motive for accepting the second. He was not, however, separated from the civil service and Ms temporarily holding an exempt position in the police department in no sense disqualified Mm for restoration to Ms position as captain.
    2. By force of the provisions of sections 283 and 288 of the charter defendant thereafter was ineligible for original appointment to Ms former office of captain of police, but he might be reinstated in that office under the municipal civil service rule providing that a person permanently appointed to a position in the competitive class, who has been appointed to a position in the exempt class and served continuously therein, “ may be restored * * * to the position originally held by Mm.” By section 11 of the Civil Service Law (Cons. Laws, ch. 7) power was conferred upon the commission to make rules, and neither the purpose of the Civil Service Law nor the language of that statute was contravened by the rule permitting reinstatement of defendant without further examination or new proof of fitness, in an office for wMch Ms fitness had already been demonstrated.
    3. The words “ selected from,” in section 288 of the charter, providing that “ captains shall be selected from lieutenants of police,” are not all-inclusive but relate only to classes eligible for promotion from which original appointments must be made. They have no necessary relation to and are not intended to prohibit reinstatements, for which the charter makes no provision, the omission being remedied by the rule.
    (Argued March 30, 1926;
    decided June 8, 1926.)
    4. The complaint, therefore, in a taxpayer’s action to restrain officers of the city of New York from certifying payrolls containing the name of defendant as a member of the uniformed police force or paying any moneys to him for services as such, should be dismissed, where the pleadings show that though defendant had accepted appointment and performed his duties for over two and a half years as second deputy police commissioner, at the end of that time he was restored to duty as a captain of police by the police commissioner, which restoration was duly authorized and approved by the municipal civil service commission.

      Schieffelin v. Lahey, 213 App. Div. 865, reversed
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 1, 1925, unanimously affirming a judgment in favor of plaintiff entered upon an order of Special Term granting a motion by plaintiff for judgment on the pleadings.

      George P. Nicholson, Corporation Counsel (Edmund L. Mooney, John F. O’Brien, Arthur Sweeny and Wither W. Chambers of counsel), for' appellants.
    The police commissioner of the city of New York had power to assign or detail Captain Lahey to perform police duty in the position of deputy police commissioner, and when so performing the duties of deputy police commissioner, he was still a member of the police force of the city. (People ex rel. Daly v. Greene, 91 App. Div. 58; 178 N. Y. 617; McAvoy v. Press Publishing Co., 114 App. Div. 540; People ex rel. O’Connor v. Girvin, 227 N. Y. 392; Philips v. Leary, 114 App. Div. 871; Matter of Fay v. Partridge, 174 N. Y. 526; Matter of Ryan, 228 N. Y. 16; Matter of Sugden v. Partridge, 174 N. Y. 87.) The defendant Lahey did not “ accept ” any additional place of public trust or civil emolument as defined in section 291 of the Greater New York charter, or any other office connected with the government of the city of New York under section 1549 of the charter, within the fair and reasonable intendment of those sections. (Schieffelin v. Enright, 200 App. Div. 312; Dillon on Mun. Corp. [5th ed.] § 417.) The defendant Lahey was properly restored to the position of captain in the police force, pursuant to the provisions of rule XIY, subdivision 3, of the Municipal Civil Service Rules. (People ex rel. Davis v. Lynch, 164 App. Div. 517; Hale v. Worstell, 185 N. Y. 247; People ex rel. Kelly v. Milliken, 140 App. Div. 762; 201 N. Y. 545; De Turk v. Commonwealth, 129 Penn. St. 151.)

      Leonard M. Wallstein and Ralph M. Frink for respondent.
    The defendant Lahey automatically and immediately vacated his office as a captain of police when on January ' 24, 1918, he was appointed second deputy police commissioner and accepted such appointment. (Hulbert v. Craig, 124 Misc. Rep. 273; 213 App. Div. 865; 241 N. Y. 525; Schieffelin v. Enright, 200 App. Div. 312; People ex rel. Ward v. Drake, 43 App. Div. 325; 161 N. Y. 642; People ex rel. Kelly v. City, 77 N. Y. 503; Davenport v. Mayor, 67 N. Y. 456; People ex rel. Ryan v. Green, 5 Daly, 254; People ex rel. Henry v. Nostrand, 46 N. Y. 375; Matter of Gilroy, 11 App. Div. 65; People ex rel. Russell v. Commissioners, 76 Hun, 146; Attorney-General v. Council, 112 Mich. 145; State ex rel. Metcalf v. Goff, 15 R. I. 505; State ex rel. Clawson v. Thompson, 20 N. J. L. 689; 1 Dillon on Mun. Corp. [5th ed.] § 417.) The operation of the statutory rule of incompatible offices could not be withheld, suspended or evaded by the grant of a leave of absence to Lahey as captain, or by an intention, agreement or understanding by the commissioner or by Lahey or by both that Lahey’s captaincy should not be vacated on his appointment as deputy commissioner, or that Lahey’s tenure as deputy commissioner should be only brief or temporary and followed by a resumption of his captaincy. (People ex rel. Ward v. Drake, 43 App. Div. 525; 161 N. Y. 642; People ex rel. Kelly v. City, 77 N. Y. 503; Adams v. Roscoe, 159 N. Y. 176.) Civil Service rule XIV, subdivision 3, does not aid the appellants, because it is inconsistent with mandatory provisions of law and, therefore, is void and of no effect. '(People ex rel. Pettit v. Kane, 70 N. Y. Supp. 982; People ex rel. Fleming v. Dalton, 158 N. Y. 175; People ex rel. Franklin v. Fetherston, 168 App. Div. 416; People ex rel. Leet v. Keeler, 157 N. Y. 90; People ex rel. Durie v. Lynch, 164 App. Div. 517; Schieffelin v. Enright, 200 App. Div. 312; Dillon on Mun. Corp. [5th ed.] § 417; People v. Metropolitan Police Board, 26 N. Y. 316.)
   Pound, J.

The plaintiff has brought a taxpayer’s action to restrain the appropriate officers of the city of New York from “ certifying any payrolls containing the name of defendant William J. Lahey as a member of the uniformed police force of the police department of the city of New York, or for the payment of any moneys to said defendant Lahey for services as a member of said uniformed police force.” Prior to January 24, 1918, the defendant Lahey was and had been for many years a member of the uniformed police force of the police department of the city of New York, and on that date held the rank or grade of captain in that force. He was granted leave of absence as a captain in such police force for six months, and on the same day he was appointed second deputy police commissioner of the city of New York and he acted as second deputy police commissioner until the 4th day of September, 1920. During this period his leave of absence was periodically extended. It was revoked on that day and on the same day he was restored to duty by the police commissioner as a captain of police and assigned and detailed to duty as chief inspector of the police department of the city of New York. Since that date he has continuously acted as, and performed the duties of, such chief inspector. The plaintiff claims that under the provisions of sections 291 and 1549 of the Greater New York charter the defendant Lahey vacated his office in the uniformed police force by accepting the office of second deputy police commissioner, and that the police commissioner could not thereafter restore him to the position he had previously held. Judgment on the pleadings has been granted which sustained the plaintiff’s contention.

The defendant contends that a second deputy police commissioner, like a captain of police, holds a position in the police force or police department of the city, and that the two positions do not constitute separate offices within the meaning of the sections of the charter on which the plaintiff relies, and that in any event the defendant did not “ accept ” the office of second deputy police commissioner within the meaning of the charter provision, though he admits that he acted as second deputy police .commissioner for more than two and a half years. Upon a motion for judgment on the pleadings by the plaintiff we must give full force to all the allegations of the answer. Doubtless these allegations are sufficient to show that the defendant Lahey never sought the office of deputy police commissioner, and that he performed the functions of that office only because he believed that it was his duty to perform these functions when the police commissioner directed him to do so. We may assume that he acted under a sense of duty and in ignorance of the effect of his acceptance of a new position upon his right to continue to hold his previous position. • Doubtless both the commissioner and he believed that when he left the office as second deputy police commissioner he could be restored to duty in his former position. That neither the police commissioner nor defendant Lahey intended that by acceptance of the new office Lahey should vacate his position of police captain is conclusively shown by simultaneous grant of leave of absence to him as police captain. Grant of leave of absence as captain does not, however, show that when the defendant acted for more than two years under an appointment as deputy police commissioner, he did not accept the office. On the contrary, if an inference of fact may be drawn upon a motion of this kind it would seem that since Lahey knew that he had a leave of absence as police captain he must have known that he was acting under appointment as deputy police commissioner. The statute gives to acceptance of new office the effect of vacating office previously held. Lack of intention to vacate the first office does not change the statutory effect of the acceptance of the second office, and the motive for accepting office, however laudable, and the hardship which the courts might well desire to find ground for avoiding, do not justify the creation of a judicial exception to a general statutory rule to which the Legislature has provided no exception either expressly or by reasonable implication. The pleadings show that the defendant Lahey has accepted appointment and performed his duties for over two and a half years as second deputy police commissioner. We must give to his acts the effect which the Legislature has decreed they shall have.

Technically, it may be that the office of commissioner or deputy commissioner in the police department is a different office from that held by a member of the uniformed police force. Differentiation between the offices or positions is shown in numerous sections of the Greater New York charter. The police commissioner is by section 270 made head of the police department. The police force consists of certain groups or persons provided for by section 276 of the charter, and the police commissioner is not included in such groups. The police commissioner, subject to limitations described in the charter, has power to appoint and remove members of the police force, under section 283 of the charter. No such limitations apply to his power to appoint and at pleasure remove his deputies.. The method of promotion of officers and members of the police force so that it may be based on merit is carefully safeguarded in section 288. Though by section 292 of the charter it is provided that “ the police commissioner shall be the chief executive officer of the police force,” it is clear that in no other sense is he a member of the police force. Because he is head of the police department he may direct performance by members of the police force of the duties imposed upon them by law. He is not otherwise a member of the force, and in all other respects the office of police commissioner or a deputy is inconsistent with the office of a member of the police force. If doubt were otherwise at all possible, it would be removed by the language of section 291 of the charter, which provides that “any police commissioner, or any member of the police force, who shall, after qualifying in office, accept any additional place of public trust * * * shall be * * * deemed thereby to have resigned his commission and to have vacated his office * * The provisions of law expressly made applicable to a “ police commissioner or any member of the police force ” shows that the Legislature recognized that a police commissioner is not a member of the police force. It follows that either under the provisions of that section or of section 1549 of the charter, or both, the defendant Lahey vacated his office as a member of the police force when he accepted and performed the duties of a deputy police commissioner.

By force of the sections of the statute we have referred to, the defendant Lahey was for two and a half years not a member of the uniformed police force although he was holding an executive position in the police department. Under section 283 of the charter, appointment as patrolman may be made only of men under twenty-nine years of age. Such appointment may be made only in accordance with the constitutional provisions, and the Civil Service Law (Cons. Laws, ch. 7) and rules, and after a preliminary period of probation. Under section 288 of the charter promotion must be made in similar manner. Sergeants shall be selected from among patrolmen of the first grade. Lieutenants of police shall be selected from among sergeants who shall have served at least one year continuously as such. Captains shall be selected from among lieutenants of police who shall have served at least one year as such.” Original appointment to that position under the circumstances would now be illegal, because Lahey has passed the statutory age for appointment as patrolman, and captains of police must be selected from among lieutenants of police who shall have served at least one year as such. But authority to reinstate Lahey to the position temporarily vacated by him is to be found elsewhere. The answer shows that the municipal civil service commission adopted a rule which provides that “A person who has been permanently appointed to a position in the competitive class in any department, and who was separated from his position in that class by appointment to a position in a non-competitive or exempt class, or to a position in another group of the competitive class, and who has served continuously therein from the date of such separation, may be restored without the application of the foregoing restrictions, either to the position originally held by him, or to any position to which transfer could be made therefrom.” The answer further alleges that the municipal civil service commission duly authorized and approved the restoration or transfer of said defendant Lahey from the position of second deputy commissioner in the exempt class to the position of captain in the competitive class, pursuant to the provisions of the above rule, and duly issued a certificate of transfer.

Section 16 of the Civil Service Law provides that promotion, transfer and reinstatement from a position in one class to a position in another class shall be made only as authorized by the State or municipal commission. Section 10 of the Civil Service Law confers upon the commission power to make rules for the classification of the officers, places and employments in the classified service of the State * * * and for appointments and promotions therein and examinations therefor, not inconsistent with the Constitution and the provisions of this chapter.” Section 11 of the Civil Service Law authorizes the municipal civil service commission to prescribe, amend and enforce rules for appointments and promotions subject to the approval of the mayor and the State Civil Service Commission.

The restoration of the defendant Lahey to his former position as captain in the police force comes within the language of the rule above quoted. He was separated from that position in the competitive service by appointment to office as deputy police commissioner in the non-competitive service. At no time had he left the service of the city, and at all times he remained in the police department. He had obtained his original position by merit demonstrated according to provisions of the charter, and the Civil Service Law. Neither the purpose of the Civil Service Law nor the language of that statute was contravened by rule giving the commissioner the right to reinstate him without further examination or new proof of fitness in an office for which his fitness had already been demonstrated.

The New York Constitution provides (Art. V, § 9): Appointments and promotions in the civil service of the State, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive; * * *. Laws shall be made to provide for the enforcement of this section.”

The Civil Service Law refers to four distinct methods by which a position in the State or municipal service may be filled; i. e., by original appointment, by promotion, by transfer and by reinstatement (Civil Service Law, § 16). While the city charter (§§ 283, 288, supra) provides how sergeants, lieutenants and captains of police shall be selected, we are persuaded that the words selected from,” comprehensive as they are, are not all-inclusive; that they relate only to the classes eligible for promotion from which original appointments must be made; that they have no necessary relation to reinstatements and are not intended to prohibit reinstatements, and that the civil service rule covers a field not covered by the charter. Lahey was promoted in proper form to the position of captain. His original selection to fill the post was under the charter. His merit and fitness have been determined by competitive tests. The only question is whether he is eligible to reinstatement. He is so eligible under the rule. It is said that he has lost his right to reinstatement because he has separated himself from the uniformed force and the place he held may be filled only by selection under the provisions of the charter. But reinstatement is casus omissus so far as the charter is concerned and the omission is remedied by the rule. The language of the charter is thus given fair and liberal construction and the rule becomes operative. However broad the language of the statute may be, the letter does not govern unless the intention of the Legislature is thereby given effect (Riggs v. Palmer, 115 N. Y. 506; People ex rel. Hunt v. Lane, 132 App. Div. 406; affd., 196 N. Y. 520), and the intention of the Legislature is shown by the provisions of the Civil Service Law relative to reinstatements.

It is urged that it follows that the municipal civil service commission might adopt, with the approval of the State Civil Service Commission, a rule which would permit reinstatement for any person who had ever held a position in the municipal civil service although he had been separated from such service for a long period of time. Not so. Lahey was not separated from the civil service; he temporarily held an exempt position in the police department which in no sense disqualified him for restoration to his position as captain. We hold merely that the rule applies to the case we are now considering. The presumption is that the civil service commission will keep within its powers and will not attempt to evade the Constitution by insidious exceptions to the rule of merit and fitness therein laid down.

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

Lehman, J. (dissenting).

The defendant Lahey has vacated his office as captain in the police force of the city of New York. Unless and until the police commissioner has reappointed or reinstated him to the office he has previously held the defendant has no claim or title to it. Power of appointment to the police force is expressly conferred upon the police commissioner by the charter of the city of New York. That power is not unlimited. Those appointed must possess certain qualifications. The defendant Lahey possessed those qualifications at the time of his original appointment. He no longer possessed them at the time of his attempted reinstatement. The rules of the civil service commission may provide the method by which appointment may be made in accordance with the mandate of the Constitution; they cannot confer power of appointment where none has been granted by the Legislature. They cannot enlarge power that has been granted where express limitation has been imposed by statute. Attempted restoration of the defendant Lahey to his office by the police commissioner is effectual only if the statute as well as the rules of the municipal civil service commission authorizes a restoration to office where new appointment could not be made. Such authority is not expressly given and there is nothing in the charter from which it might be implied. On the contrary, it appears that when the Legislature intended that the police commissioner should have power to reinstate, it gave such power expressly. (See section 1543 of the charter.) Argument that such power should be vested in the police commissioner should be addressed to the legislative body which under recent amendment to the Constitution has power to confer it and not to the municipal civil service commission.

The judgments should, therefore, be affirmed.

His cock, Ch. J., Crane and Andrews, JJ., concur with Pound, J.; Lehman, J., dissents in memorandum with which Cardozo and McLaughlin, JJ., concur.

Judgments reversed, etc.


author: Crane, J.

text:
    Louis Weingast, Appellant, v. Rialto Pastry Shop, Inc., et al., Respondents.
    (Argued April 2, 1926;
    decided June 8, 1926.)
    Commissions — brokers —• Real Property Law —■ statute requiring real estate brokers to be licensed not applicable to one who negotiates sale of business although including lease — complaint erroneously dismissed in action for commissions.
    1. Article 12-A of the Real Property Law, requiring real estate brokers to procure a license, is not intended to cover every transaction in which an interest in real estate may be part of the subject of transfer. It does not apply to one who exercises the calling of selling or exchanging businesses as going concerns although, as part of the good will, such sales may include the lease of a store or building. As failure to procure a license is made a crime the statute must not be extended by implication. (Reichardt v. Hill, 236 Fed. Rep. 817, approved.)
    2. In an action, therefore, to recover commissions for negotiating the sale of a restaurant business, including the store, lease, good will, fixtures and merchandise, a dismissal of the complaint, on the ground that plaintiff had not procured a license as a real estate broker, was erroneous. He was not obliged to take out a license and was not barred from maintaining an action to recover compensation if he had earned it.

      Weingast v. Rialto Pastry Shop, Inc., 214 App. Div. 659, modified.

      Appeal from a judgment, entered December 23, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.

      Harry Lesser and William M. Stockbridge for appellant.
    A broker who procures a customer for the sale of a going business, in order to recover compensation for his services, need not be licensed as a real estate broker, although the transfer of a lease of the premises where the business to be sold is carried on is a part of the transaction. (Reichardt v Hill, 236 Fed. Rep. 817; Hamilton v. Harvey, 33 Ill. App. 499.)

      Alexander Rosenbaum, Maud Haas and Lester M. Friedman for respondent.
    The plaintiff, not having been a duly licensed real estate broker when he undertook to sell the interest in real estate, cannot bring or maintain this action to recover compensation therefor. (People ex rel. Elias Brewing Co. v. Gass, 120 App. Div. 147; Reich v. Cochrane, 162 App. Div. 619; Tamarin v. Fitzpatrick, 125 Misc. Rep. 823; Hazelton v. Scheckells, 202 U. S. 71.)
   Crane, J.

Our decision in Roman v. Lobe (243 N. Y. 51) held that section 440-a of the Real Property Law (Cons. Laws, ch. 50), requiring real estate brokers to procure a license, is constitutional. That decision, however, does not settle this case. The plaintiff does not claim to be a real estate broker. He is a business broker, buying and selling restaurants as places of business or going concerns of which the trade and good will form the subject-matter. The lease or real estate connected with such business is an element going to make up the value of the whole. He does not claim to be a broker for the purchase or sale of real estate and leases.

The question presented on this appeal is whether such a business falls within the above provision of the Real Property Law and requires the plaintiff to take out a license. If so, any broker or business man who negotiates for the sale or transfer of any business enterprise or the consolidation of corporations which may involve the transfer and sale of real estate or an interest in real estate will be a real estate broker, unable to receive compensation unless licensed.

Louis Weingast, the plaintiff, testified that he was a business broker and entered into an agreement with a corporation known as the Rialto Pastry Shop, Inc., to sell their restaurant business at 1052 Southern boulevard in The Bronx, New York city, as a business, a going concern. The shop took in about $2,000 a week. The plaintiff introduced to the officers of the company proposed purchasers who subsequently bought the place.

The sale included the store, the lease, the good will, tables and everything that went with the place. The lease had about six years longer to run and was of course considered of value to the purchaser. The restaurant or pastry shop had to be carried on in some store building or appropriate structure. Tenure for a definite period necessarily adds to the value of the good will of a restaurant or eating house where the customers may come because of the locality as well as the proprietorship.

Weingast testified that the main thing in a restaurant or any other business is the lease, i. e., the place where the business is being conducted and can be conducted. The lease, however, formed but one element in the value of this eating house as a going concern. It was a part of the good will. The defendant corporation had built up a trade which as a business enterprise it was willing and prepared to sell, and did sell through the plaintiff’s efforts.

The purchasers were in the market for a pastry shop business. It was a business which they desired to buy, not merely a lease of a place in which they could start up or carry on their own business.

The memorandum or agreement of sale made the 17th day of May, 1923, between the Rialto Pastry Shop, Inc., and Priluk and Dworetsky, the purchasers, provided:

The party of the first part agrees to sell and the parties of the second part agree to buy the restaurant and lease belonging to the party of the first part on premises 1052-1056 Southern Boulevard, in the Borough of Bronx, City of New York, including fixtures and merchandise on hand as of May 18th, 1923, and of good will appertaining to said business, free and clear of any and .all debts on the following conditions —
“ ‘ The sale of restaurant including fixtures and all merchandise and assignment of lease including security for $26,150 to be sold as of May 18th, 1923.’ ”
It further contained a covenant indicating that it was the business and not merely the lease or interest in real estate which was being sold. The provision reads:
The bill of sale to include a provision that neither Rothschild nor Schneider, both interested in the Rialto Pastry Shop, Inc., will engage in a similar business for a radius of ten blocks for a period of ten years.”

Section 440 of the Real Property Law reads as follows:

Whenever used in this article Real estate broker ’ means any person, firm or corporation, who, for another and for a fee, commission or other valuable consideration, lists for sale, sells, exchanges, buys or rents, or offers or attempts to negotiate a sale, exchange, purchase or rental of an estate or interest in real estate, or collects or offers or attempts to collect rent for the use of real estate, or negotiates, or offers or attempts to negotiate, a loan secured or to be secured by a mortgage or other incumbrance upon or transfer of real estate.”

We do not think this provision broad enough to cover, or was intended to cover, every transaction in which an interest in real estate may be part of the subject of transfer. It does not apply to one who exercises the calling of selling or exchanging businesses as going concerns although, as part of the good will, such sales may include the lease of a store or building. One who makes a specialty of procuring purchasers for restaurants, drug stores, grocery stores and the like as going concerns, where a lease simply goes with the place.as a part of the good will, does not become, within this law, a real estate broker. As failure to procure a license is made a crime the statute must not be extended by implication.

These views find support in Reichardt v. Hill (236 Fed. Rep. 817) where a similar ordinance was under discussion.

The plaintiff was not in the business of procuring leases or in buying and selling leases or interests in real estate as such. He was engaged in negotiating as a broker the sale of pastry shops or restaurants as going concerns and places of business. On the evidence, therefore, as presented it cannot be said as matter of law that he was violating, or had violated, these provisions of the Real Property Law. He was not obliged to take out a license and was not barred from maintaining this action to recover his compensation if he had earned it.

The complaint, therefore, should not have been dismissed, but as the Appellate Division also reversed upon the facts, the judgment should be modified so as to grant a new trial to the defendant corporation and as so modified affirmed, with costs to abide the event. As to the individual defendants the judgment of the Appellate Division should be affirmed, with costs.

His cock, Ch. J., Cardozo, Pound, Andrews and Lehman, JJ., concur; McLaughlin, J., dissents and votes for affirmance.

Judgment accordingly.


text:
    William Metzger, an Infant, by Frederick Metzger, His Guardian ad Litem, Respondent, v. Cushman’s Sons, Inc., Appellant. Frederick Metzger, Respondent, v. Cushman’s Son’s, Inc., Appellant.
    (Argued May 12, 1926;
    decided June 8, 1926.)
    Negligence — motor vehicles — collision at street intersection — right of way •— erroneous charge eliminating from jury city ordinance regulating right of way at street intersections.
    1. The question of negligence and contributory negligence, in street intersection cases, depends upon speed and distance, together with the respective rights and duties of the parties as declared by city ordinance. The law does not undertake to say at what particular point or at what particular distance one vehicle may proceed in front of another. The right of way depends upon all the circumstances in light of the duties imposed by the ordinance. {Ward v. Clark, 232 N. Y. 195; Shirley v. Larkin Co., 239 N. Y. 94, followed.)
    2. In an action to recover for injuries received by the infant plaintiff as the result of a collision at a street intersection in the city of New York, between a motorcycle on which he was riding and defendant’s motor truck which approached from his right, it was error for the court to charge “ that if the jury finds, from all the evidence, that the infant plaintiff driving east on Belmont avenue going at the rate of eight to, ten miles an hour, between the building fine and the curb, when the truck was ninety feet away going at the rate of seventeen to twenty-five miles an hour, then the ordinance that vehicles to the right have the right of way has no application.” It was for the jury to say, considering and applying the ordinance, whether or not the plaintiff had the right of way under the circumstances and exercised reasonable care in proceeding across the intersecting street.

      Metzger v. Cushman’s Sons, Inc., 215 App. Div. 829, reversed.
    Appeal in each of the above-entitled actions, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 12, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

      Theodore H. Lord and Alfred W. Andrews for appellant.
    Serious prejudicial error was committed by the trial court in charging the requests at the instance of the plaintiff’s counsel. (Shirley v. Larkin, 239 N. Y. 96; Brillinger v. Ozias, 186 App. Div. 221; Woodward v. New York Railways Co., 164 App. Div. 658; 221 N. Y. 659; Ford v. N. Y. City Interborough Co., 236 N. Y. 346; Kellegher v. 42nd Street Crosstown Ry. Co., 171 N. Y. 309; Goodkind v. Metropolitan Street Ry. Co., 93 App. Div. 155; Fiori v. Metropolitan Street Ry. Co., 98 App. Div. 49; Ward v. Clark, 232 N. Y. 195.)

      James A. Gray, William S. Butler and Sidney Gondelman for respondent.
    The exceptions presented by appellant are entirely without merit. (Shipman v. Whalen, 234 N. Y. 283; Murray v. Rosenheim, 241 N. Y. 562; Schumer v. Caplin, 241 N. Y. 346; Salm v. Bleau, 241 N. Y. 614; Rounds v. Fitzgerald, 207 App. Div. 534; 239 N. Y. 568; Petring v. Albers, [Mo. App.] 241 S. W. Rep. 452; Esmark v. Tandler, 204 App. Div. 554; Bramley v. Dilworth, 274 Fed. Rep. 267; Salmon v. Wilson, 227 Ill. App. 286.)
   Crane, J.

The charge of the court in this case regarding the rights of vehicles approaching intersecting street crossings must have left the jury in some doubt as to the application to be made by them of the ordinances of the city of New York. Section 15 of chapter 24 of the Code of Ordinances directs:

Every driver of a vehicle approaching the intersection of a street or public road shall grant the right of way at such intersection to any vehicle approaching from his right; provided, that wherever police .officers are stationed, they shall have full power to regulate traffic.’

William Metzger on the 16th day of August, 1924, was crossing Bradford street on Belmont avenue in the borough of Brooklyn, city of New York, when he was run into by or collided with the defendant’s motor truck coming through Bradford street. He was very severely injured.

As in so many of these street intersection cases the question of negligence and contributory negligence depended upon speed and distance, together with the respective rights and duties of the parties as declared by the ordinance. The law does not undertake to say at what particular point or at what particular distance one vehicle may proceed in front of another. The right of way depends upon all the circumstances in light of the duties imposed by this ordinance. The plaintiff on a motorcycle was going east on Belmont avenue approaching Bradford street. The motor truck was coming from his right going north on Bradford street. The plaintiff says he was proceeding at about eight miles an hour. The truck was-coming at eighteen or twenty-five miles, an hour. These speeds are at best approximations. Jurors might differ as to the respective speeds. As the motorcycle got beyond the building fine on the west side of Bradford street, the plaintiff could see to his right and did see the motor truck coming up.' Exactly where the plaintiff was must also be a question of fact dependent upon the accuracy of statement and the conclusion to be drawn from the testimony of the witnesses. He was somewhere between the building fine and the curb when he saw the truck ninety feet away, and proceeded across the intersection until he was struck. The defense claimed that the plaintiff ran into the side of the truck.

The main charge to the jury accurately stated in substance the law as laid down by us in Ward v. Clark (232 N. Y. 195) and Shirley v. Larkin Co. (239 N. Y. 94). If counsel for the plaintiff had left his case to the judge’s charge the error now "complained of would not have occurred.

Certain requests, however, were made which, as we have said, must have left the jury in doubt as to what was meant by the judge in his charge, or else have given them a wrong impression regarding the way in which they could and should apply the above ordinance to the facts as they might find them. The court was requested to charge:

By Mr. Rees: I ask your Honor to charge the jury that if the jury finds, under the circumstances, at the time of this collision, and just before the collision, when the two vehicles were approaching the point of collision, the defendant had the right of way, if they determine that the defendant did have the right of way, then it was plaintiff’s duty to stop his motorcycle if necessary to avoid a collision.
The Court: I so charge.
By Mr. Butler (Plaintiff’s counsel): In view of the last request of Counsel, I ask your Honor to charge the jury that if the jury finds, from all the evidence, that the infant plaintiff driving east on Belmont avenue going at the rate of eight to ten miles an hour, between the building fine and the curb, when the truck was ninety feet away going at the rate of seventeen to twenty-five miles an hour, then the ordinance that vehicles to the right have the right of way has no application.
“ The Court: I should say so, gentlemen.
By Mr. Rees: Exception.”

As bearing upon the question of the plaintiff’s contributory negligence or the defendant’s negligence, the court eliminated altogether the ordinance from the consideration of the jurors if they should find that the plaintiff, traveling eight or ten miles an hour, was between the building line and the curb when the truck was ninety feet away, traveling at the rate of seventeen to twenty-five miles an hour. This was in effect saying that under such conditions the plaintiff as matter of law had the right of way. Whether it were seventeen or twenty-five miles an hour, or eight or ten miles an hour might have made considerable difference with the jurors in determining the right of way if they were also to consider and apply the ordinance. It is not the law that the ordinance has no anplication to the circumstances assumed in the request. The jurors were obliged to consider the ordinance. It could not be ehminated from the case by the court as matter of law merely because the vehicles were the given distance apart. Even if the distances were as stated in the request and the speed of the truck were twenty-five miles an hour and that of the motorcycle eight miles an hour, it* would still be for the jury to say, considering and applying the ordinance, whether or not the plaintiff had the right of way under the circumstances, and exercised reasonable care in proceeding across Bradford street.

What we have said in the cases above referred to indicates that the plaintiff was not obliged to wait and give way to a vehicle coming from his right no matter how fai away it was. The limitations of the ordinance and the way in which it should be applied were stated by us in these cases and were also fairly stated by the court in its charge. However, the last thing stated to the jury was this erroneous request which cannot be considered a harmless error.

It is our duty, therefore, to reverse these judgments and send the cases back for a new trial, with costs to abide the event.

His cock, Ch. J., Pound, McLaughlin, Andrews and Lehman, JJ., concur; Cardozo, J., dissents and votes to affirm under provisions of section 106 of the Civil Practice Act.

Judgments reversed, etc.


author: Pound, J.

text:
    Hamilton Ward, Appellant, v. Nick Orsini et al., Respondents.
    (Argued May 26, 1926;
    decided June 8, 1926.)
    Attorney and client — contract of retainer — agreement that if settlement is made without consent of attorney his compensation shall be equal to amount received by client, not on its face unconscionable — action to enforce lien — rule of fairness and reasonableness should be applied — where defendant offers no evidence as to value of services and court makes no finding that amount demanded is excessive, plaintiff entitled to recover amount of claim.
    Where an attorney has contracted to prosecute a cause of action for a client and in consideration thereof the client has agreed that in the event of a settlement without the attorney’s consent, if the defendant agrees to pay for the services of said attorney, the amount to be paid him shall be equal to the amount paid to the client, and thereafter such a settlement was made, in an action to enforce the attorney's hen, the basic question is whether under all the circumstances of the case the attorney by his contract obtained an undue advantage over his client as applied to the settlement made. The agreement is not on its face unconscionable and where the defendant, in the action to enforce the hen, offered no evidence as to the nature of the claim or the value of the services rendered by the attorney to his client and the trial court has made no finding that the compensation demanded is extortionate or excessive, or out of proportion to the value of the services, plaintiff is entitled to recover the amount of his claim. Such a contract does not hinder a settlement, for it is always open to the settler to defend itself from extortion on the part of the attorney. {Matter of Snyder, 190 N. Y. 66, distinguished.)

      Ward v. Orsini, 215 App. Div. 795, modified.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 23, 1926, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term.

      Hamilton Ward, Dana L. Spring and Julius A. Schreiber for appellant.
    The plaintiff was entitled to judgment against the defendant New York Central Railroad Company in the sum of $300 and the taxable costs and disbursements. (Ward v. Donovan, 202 App. Div. 65; 235 N. Y. 240; Dougherty v. N. Y. C. R. R. Co., 187 App. Div. 966; Matter of Friedman, 136 App. Div. 750; Martin v. Camp, 161 App. Div. 610; Morehouse v. Brooklyn Heights R. Co., 123 App. Div. 680; 185 N. Y. 520; Serwer v. Serwer, 91 App. Div. 538; Davis v. N. Y. C. & H. R. R. R. Co., 233 N. Y. 242.)

      Howard R. Sturtevant for respondents.
    The contract herein sought to be sustained is clearly contrary to public policy, unconstitutional eand void. (Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N. Y. 492; Matter of Snyder, 190 N. Y. 66; Conklin v. Conklin, 201 App. Div. 170; Robinson v. Rogers, 237 N. Y. 467; Corcoran v. Kellogg Structural Co., 179 App. Div. 396; Lee v. Vacuum Oil Co., 126 N. Y. 579; Machinski v. L. V. R. R. Co., 272 Fed. Rep. 920; Martin v. Camp, 219 N. Y. 170; Matter of City of New York, 219 N. Y. 192; Matter of Board of Water Supply, 179 App. Div. 877; Matter of Reisfeld, 227 N. Y. 137.)
   Pound, J.

The action is brought to enforce an attorney’s lien in an action brought by defendant Orsini against the defendant New York Central Railroad Company. Plaintiff, relying on the Judiciary Law (§ 474) (Cons. Laws, ch. 30) which provides: “The compensation of an attorney or counsellor for his services is governed by agreement, express or implied, which is not restrained by law,” made a contract with Orsini which' reads as follows:

“ This Agreement, made this 5th day of April, 1923, by and between Nick Orsini hereinafter referred to as client, of the city of........party of the first part, and Hamilton Ward, of the City of Buffalo, N. Y., party of the second part,
Witnesseth,
Whereas, the said Nick Orsini was injured March 12th, 1923, while repairing a car containing corn meal at the Y. I. repair yard tracks of the N. Y. C. R. Co. and desires to employ an attorney to prosecute claim and cause of action against any person who may be responsible therefore,
“Now, Therefore, the said client agrees to and hereby does retain the said Hamilton Ward to act as his attorney to prosecute his claim and cause of action and agrees to pay the said Hamilton Ward twenty-five per cent, (25%) in case settlement is effected before any testimony is taken or before the case goes upon the Ready calendar; thirty-five per cent, (35%) in case said cause of action is settled after any testimony is taken or after it' goes upon the ready calendar, or is tried and forty-five per cent. (45%) in case an appeal is taken, or a new trial had by either party, of the amount or received or recovered in such settlement or litigation, in addition to the taxable costs and disbursements.
“And it is further agreed that in case said cause of action is settled by the first party without the consent of the second party, then, and in that case the said first party agrees to pay said second party fifty per cent. (50%) of the amount of such settlement, and if by the terms of such settlement it is agreed by the party making the same that they will pay for the services of said attorney, then, it is agreed that such percentage shall be computed on the amount of the money paid first party and the amount to be paid second party added together and that the sum to be paid second party shall be equal to the sum paid first party, and that second party shall have in addition thereto his taxable costs and disbursements; and it is further agreed that if the said cause of action is settled by the first party after the verdict is rendered without the consent of said second party, then the compensation of the second party shall be computed as if the verdict had been collected in full, in accordance with the provisions of this contract.
“And it is further agreed:
And the said Hamilton Ward agrees to act as attorney for said client and cause to be performed all services necessary to prosecute said claim and cause of action, without any other charge for said service than as above set forth, no charge being made unless a recovery or settlement is had.
In Witness Whereof, the parties hereto have hereunto set their hands and seals the day and year first above written.
“ NICK ORSINI. [l. s.]
“ HAMILTON WARD. [l. s.]
“ Hicks.”

The railroad company on the day the summons was served made a settlement with Orsini without the knowledge or consent of the attorney, whereby it paid him $300 and agreed to pay Mr. Ward whatever sum it might be legally liable to him by reason of the settlement, with full knowledge of the terms of the contract. It then offered to pay the attorney twenty-five per cent of the amount received by the client together with the taxable costs. Mr. Ward asserted that under the terms of the contract he was entitled to $300, or an amount equal to the amount paid Orsini, together with $20.50 taxable costs, and brought this action to enforce his hen for that amount.

The question is whether the agreement to pay that amount in the event of a settlement with the client without the consent of the attorney is legal as applied to this' settlement. The trial court held that as an agreement between attorney and client which prohibited a settlement of the litigation without the consent of the attorney is void as against public policy (Matter of Snyder, 190 N. Y. 66) so this agreement was void because it imposed a penalty upon the client in case he exercised bis right to settle the action without the consent of his attorney, and thereby, in effect, deprived him of the control of his own case and compelled him to seek the consent of the attorney in order to make a settlement. It granted judgment establishing the lien at $75 and interest together with $25 taxable costs, amounting in all to $140.75. The Appellate Division unanimously affirmed the judgment entered on the decision of the trial court but allowed an appeal to this court.

In Morehouse v. Brooklyn Heights R. R. Co. (185 N. Y. 520) it was held that a contract of retainer giving the attorney fifty per cent of the recovery was not unconscionable as a matter of law; that the question was one of fact depending upon the character of the claim and the amount of services to be rendered in prosecuting it to judgment, and that the mere fact that the attorney under the agreement was to receive one-half does not render the agreement unconscionable, unless it appears from the evidence that it was induced by fraud, or, in view of the nature of the claim, that the compensation provided for was so excessive as to evince a purpose on the part of the attorney to obtain an improper or undue advantage over his client.” The defendant in this action interposed the defense that the agreement was unconscionable and void as it had a right to do (Morehouse v. Brooklyn Heights R. R. Co., supra) but it offered no evidence as to the nature of the claim or the value of services rendered by Mr. Ward to his client. The trial court has made no finding that the compensation demanded by the attorney is extortionate or excessive, or out of proportion to the value of the attorney’s services.

The parties were free to make their own contract as to compensation. The basic question is whether under all the circumstances of the case Mr. Ward thereby obtained an undue advantage over his client as applied to the settlement made in this case. If the parties might have agreed on a compensation of fifty per cent on all moneys received by the client and if fifty per cent was a fair and reasonable sum for the services rendered, the contract would be upheld and enforced. It is difficult to see why any different rule than that of fairness and reasonableness should be applied when the attorney by agreement with his client seeks to provide that his compensation shall be equal to the amount received by the client if the client settles without the attorney’s consent. At the present standard of professional compensation $300 would not as matter of law be excessive compensation for the services of a reputable and experienced attorney in taking the case and beginning the action. It may well be that in a supposed case the amount received by the client would be so completely out of proportion to the value of the attorney’s services that it would be unconscionable as matter of law to permit him to enforce his contract. Clearly such would be the fact in a case suggested by the respondent’s attorney where the total sum to be paid to attorney and client would be in excess of the’amount demanded in the complaint. But we may not close our eyes to the fact that the agreement before us is for all practical purposes intended to safeguard the attorney against settlements for small sums made behind his back whereby he would be deprived of just compensation for services rendered. Such intent, when the result is reasonable, does not bring the contract under the condemnation of the Snyder Case (supra) of contracts which seek absolutely to prevent settlements without the consent of the attorney.

If the proposed settlement were for a substantial sum it would in all probability be negotiated under the advice and supervision of the attorney, and the question here presented would not arise.

As the case presents itself, no unjust burden is imposed on the client or the railroad. The railroad satisfied the client and agreed to pay his lawyer the amount due him. It may on its defense against the attorney’s demand attack the agreement as unconscionable but it is not on its face unconscionable. No evidence has been offered to establish the fact that it is unconscionable. It does not hinder settlements, for it is always open to the railroad company to defend itself from extortion on the part of the attorney.

The defendant places itself in the attitude of refusing to pay Mr. Ward $300 for the services rendered by him to his client without regard to the value of such services. It has by its own attitude made this litigation necessary. The client sought to protect his attorney by disclosing to the defendant the terms of his contract. The defendant does not question the reasonableness of the fee. It questions only the manner in which the amount is arrived at. No claim is made that the client is imposed on or that the result sought by the attorney is inequitable. Applying the test of reasonableness to the settlement in question it follows that Mr. Ward is entitled to recover the amount of his claim without regard to abstractions which are inapplicable thereto.

The judgments should be modified by providing that plaintiff have a lien for the sum of $325 with interest from April 10, 1923, and as so modified affirmed, with costs to appellant in all courts.

His cock, Ch. J., Cardozo, McLaughlin, Crane and Andrews, JJ., concur; Lehman, J., absent.

Judgment accordingly.