text:
    Abraham D. Cohen et al., Respondents, v. E. & J. Bass, Inc., Appellant.
    Landlord and tenant — lease — provision that lessee wil1 comply with all orders of city departments covers installation of sprinkler system — judgment by landlord against lessee for cost of installing sprinkler system in “basement of demised premises as ordered by fire department — action by lessee to recover amount of judgment from sublessee of basement, under lease containing identical provisions — “vouching in” issue whether safety of entire premises required installation material — intention of parties sought from reasonable construction of agreement — defendant not bound by determination of action against its lessor until it be determined that duty to install sprinklers rested primarily on it.
    1. Provisions in a lease, by the terms of which the lessee agrees to execute and comply with all orders of the city or its governmental departments which are “ applicable to the demised premises,” cover the installation of a sprinkler system ordered by the fire department. A further provision relative to repairs, alterations and modifications of the sprinkler system, ordered by the Board of Fire Underwriters or the Fire Insurance Exchange, does not become operative until the system is installed. The two clauses relate to two' distinct situations and are to be read disjunctively and not as excepting the sprinkler system from the operation of the first clause.
    2. In an action to recover from the sublessee of a portion of premises leased by plaintiffs the amount of a judgment recovered by the landlord against them for the cost of installing a sprinkler system in the subleased premises as ordered by the fire department, it being alleged that the sublessee had been properly “ vouched in ” and was bound by the judgment in the action by the landlord, the provisions of the plaintiff’s lease and of the sublease to defendants being identical in regard to the obligation to comply with the orders of city authorities, it cannot be said that an issue in the action as to whether the sprinkler system was ordered because the character of defendant’s occupancy of the premises made them more dangerous or because the safety of the entire premises required such installation, is immaterial and that as matter of law the order of the fire department was “ applicable to the demised premises ” alone, merely because the sprinkler system was there installed. Location is not the governing consideration. The order may be applicable to the entire premises when fairly considered. The intention of the parties should be sought from a reasonable construction of their agreement, having in mind the rent payable, the terms of the lease, the nature of the construction required, the relative benefit to the respective parties and what they had in contemplation when they executed the agreement.
    3. The action is on a judgment. Plaintiffs have been held liable to their landlord for the cost of installing the sprinkler system. Defendant, if liable over to the plaintiffs therefor, should be concluded by the judgment in the action of which it had notice and an opportunity to defend. The court must determine in this action, however, whether, as between the parties hereto, the duty of installing the sprinkler system rests primarily on defendant before it can be held bound by the determination of the action against the plaintiffs.

      Cohen v. Bass, Inc., 220 App. Div. 705, reversed.
    (Argued October 7, 1927;
    decided October 28, 1927.)
    Appeal from a judgment, entered April 11, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which modified and affirmed as modified an order of Special Term granting a motion by plaintiffs for judgment on the pleadings.

      Jonas J. Shapiro and Lawrence S. Greenbaum for appellant.
    The general provision to comply with all orders is limited by the particular provision relating to sprinklers. (City of New York v. U. S. Trust Co., 116 App. Div. 349; Holden v. O’Brien, 209 App. Div. 266; 240 N. Y. 560; O’Keeffe v. City of New York, 173 N. Y. 474; Bers v. Erie R. R. Co., 225 N. Y. 543; Krulewitch v. Nat. Importing & Trading Co., 195 App. Div. 544.) The cost of installation being wholly disproportionate to the rent reserved and to the duration of the lease, and involving structural changes, does not come within the general provision. (Second U. C. R. Corp. v. Price & Schumacher Co., 242 N. Y. 120; Holden v. O’Brien, 209 App. Div. 266; 240 N. Y. 560; Herald Sq. Realty Co. v. Saks & Co., 215 N. Y. 427; Younger v. Campbell, 177 App. Div. 403; City of New York v. United States Trust Co., 116 App. Div. 349.) In any event summary judgment should not have been granted. (First National Bank v. Dana, 79 N. Y. 108; Gardner v. Clark, 17 Barb. 538; Leinkauf v. Lombard, Ayres & Co., 112 App. Div. 302; People v. Walker, 198 N. Y. 329; People v. Reynolds, 214 App. Div. 21; Hanna v. Mitchell, 202 App. Div. 504; 235 N. Y. 534; Gen. Investment Co. v. Interborough R. T. Co., 235 N. Y. 133.)

      Louis H. Levin and Joseph Steinberg for respondents.
    The defendant was obligated to install an automatic sprinkler system under the terms of its lease made with plaintiffs. (Gould v. Springer, 206 N. Y. 641; Deutsch v. Hoe Estate Co., Inc., 174 App. Div. 684; Frank v. Bowman Automobile Co., 195 App. Div. 377; 233 N. Y. 548; Cohen v. Margolies, 192 App. Div. 217; 232 N. Y. 584; Melcher v. Sober, 120 Misc. Rep. 378; 208 App. Div. 799.) The defendant was duly “ vouched in ” in the Tanenbaum action and is bound by the judgment rendered therein. (Olmstead v. Rawson, 188 N. Y. 517; Moretti v. Bostwick, 127 App. Div. 701; City of Rochester v. Campbell, 123 N. Y. 405; Nat. Metal Edge Box Co. v. Gotham, 125 App. Div. 101; Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550; Fulton v. Hudson, 200 N. Y. 297; City of New York v. Lloyd, 148 App. Div. 146; Lord Electric Co. v. Barber, 165 App. Div. 399.) The plaintiffs are entitled to judgment in any event. (Goldblatt v. Sherman, 123 Misc. Rep. 222; Sutton v. Duntley, 205 App. Div. 662; Coutts v. Craft, 119 Misc. Rep. 260; Rotenbach v. Young, 119 Misc. Rep. 267; 237 N. Y. 620; Peabody v. Interborough R. T. Co., 212 App. Div. 502.)
   Pound, J.

The action is brought on a judgment recovered against plaintiffs by their landlord, Johanna Tanenbaum, for the cost of installing a sprinkler system in the basement of the premises 25-27 West Houston street, in the borough of Manhattan, city of New York, pursuant to an order made by the fire department, bearing date December 31st, 1920.

The complaint contains the following allegations:

That on the 16th day of October, 1919, plaintiffs entered into a lease with Johanna Tanenbaum, covering the store and basement of premises 25-27 West Houston street, for a term of three years commencing February 1st, 1920; that on December 31st, 1919, plaintiffs entered into a lease with the defendant covering the basement portion of the premises referred to, for the term of three years, commencing February 1st, 1920; that the two leases, the one made to the plaintiffs, and the one to the defendant, are identical in form, each containing provisions which read as follows:

(a) “ The lessee agrees to execute and comply with promptly, at his own expense, all present or future rules, regulations, requirements, notices, laws, orders and ordinances of the City of New York, the State of New York, the United States of America and all other governmental authorities, and any and all of their departments, bureaus, commissions,' and subdivisions, which are or may be or become applicable to said demised premises or any part thereof, or require or direct anything to be done or omitted in or upon said demised premises or any part thereof during said term, whether the change or expense involved in such compliance is ordinary or extraordinary, of the sort commonly imposed or not of that sort. * *

(b) “ The lessee further agrees to make promptly, at his own expense, all repairs, alterations and modifications of the automatic sprinkler system and (or) automatic fire alarm, if there he either or both in the demised premises, which may be directed to be made by the New York Board of Fire Underwriters, or the New York Fire Insurance Exchange, or the successors of either or both of said bodies, or any board or body hereafter exercising functions similar to those of either of said bodies, by reason of partitions or obstructions erected or maintained, by the lessee, or by reason of the manner of placing merchandise, machinery, or other things in the demised premises; that the lease between the parties contained an agreement not to use the premises for any purpose more injurious thereto than the storage of metal goods, glass, etc., but defendant suffered the premises to be used for the sale and storage of paper boxes and excelsior; that on or about December 31st, 1920, the fire department of the city of New York issued an order requiring the installation of a sprinkler system in the basement portion of the premises above referred to; that the plaintiffs refused and failed to comply with the order, claiming that it was the duty of the defendant under its lease to comply therewith; that the defendant failed and refused to comply with the order; that Johanna Tanenbaum, the owner, complied with the order at an expense of $2,360 and instituted an action against the plaintiffs to recover the cost thereof, together with interest thereon from the date of payment; that the plaintiffs herein caused an answer to be interposed in the Tanenbaum action; caused a notice to be served upon the defendant herein to the effect that the plaintiffs claimed to be entitled to recover from defendant, to the same extent as Tanenbaum would recover against the plaintiffs; and requested the defendant herein to defend the Tanenbaum action and to take such proceedings in connection therewith that the defendant might see fit and proper, and stated therein the position of the Tanenbaum action upon the calendar; that on November 23d, 1925, a further notice was served upon the defendant notifying it that the Tanenbaum action was about to be reached for trial; that on January 14th, 1926, the Tanenbaum action came on for trial and was defended by the plaintiffs herein, resulting in a directed verdict in favor of Johanna Tanenbaum, and against the plaintiffs herein, for the amount claimed with interest aggregating the sum of $2,789.52. Judgment was entered thereon; that defendant herein refused and failed to defend the Tanenbaum action; that plaintiffs instituted this action to recover the amount of the judgment recovered against them by the landlord, Johanna Tanenbaum, for the cost of installing the sprinkler system, together with a reasonable counsel fee incurred by the plaintiffs in defending the Tanenbaum action.

The answer puts in issue the allegations in the complaint that defendant was obligated by the terms of its lease to install the sprinkler system; that it made the place more injurious by the conduct of its business; and that it was bound by the Tanenbaum judgment.

Plaintiffs moved to strike out the defendant’s answer and for summary judgment on the pleadings, which motion was granted at Special Term, the order directing, however, the assessment of plaintiffs’ damages by a jury. Both the plaintiffs and defendant appealed from the order of the Special Term, and the Appellate Division modified it by granting judgment for the plaintiffs for the amount of the judgment recovered against them in the Tanenbaum action.

The respondents contend that the defendant was obligated to install the sprinkler system under the terms of its lease with the plaintiffs and was bound by the judgment in the Tanenbaum action on being properly " vouched in,” and that the question as to whether the defendant was using the premises for purposes more dangerous than those stipulated in the lease, is immaterial.

Appellant first contends the defendant’s lease does not cover the installation of a sprinkler system in any event; that the specific reference to a sprinkler system in clause (b) above, by implication excludes such system from the operation of clause (a). On the question of the proper construction of the lease in this regard, we are in accord with the decision below in including such system in paragraph (a). By its terms, the defendant lessee agrees to execute and comply with all orders of the city of New York or its governmental departments which are applicable to the demised premises ” whether the charge or expense is ordinary or extraordinary. Nothing suggests that this agreement applies to all orders except an order requiring the installation of an automatic sprinkler system. The clause (b) relative to repairs, alterations and modifications of the sprinkler system ordered by the New York Board of Fire Underwriters or the New York Fire Insurance Exchange does not become operative until the system is installed. The two clauses relate to two distinct situations and are to be read disjunctively and not as excepting the sprinkler system from the operation of the first clause. Words of general description do not follow words of particular description in relation to the same subject-matter and the rule of ejusdem generis has no application.

The question remains, however, whether the order is applicable to the demised premises ” (the basement) within the reasonable construction of the lease. Parties may make their own bargains and they should be held to the terms of their agreement, but in ascertaining the fair intent and meaning of the lease we may not overlook the fact that the entire rental of the basement for the short term of three years is $4,500, and that the cost of installation is more than one-half of that amount; that it is alleged that plaintiffs had been notified to install the sprinkler system prior to the time when defendant took possession of the premises; that the complaint itself contains an allegation from which it may be inferred that the order was due to defendant’s more hazardous use of the premises and that defendant denies this allegation.

Whether the sprinkler system was ordered because the character of defendant’s occupancy of the premises made them more dangerous or because the safety of the entire premises required such installation is thus at issue in this action. We cannot say that this is an immaterial question and that as a matter of law the order of the fire department was applicable to the demised premises ” alone, merely because the sprinkler system was installed in the basement. Location is not the governing consideration. It may be that the order is applicable to the entire premises when fairly considered. We seek the intention of the parties, not as . much from the letter of the lease as from a reasonable construction of their agreement, having in mind the rent payable, the terms of the lease, the nature of the construction required, the relative benefit thereof to the respective parties, and what the parties had in contemplation when they executed this agreement. (Second U. C. R. Corp. v. Price & Schumacher Co., 242 N. Y. 120.) If the order is applicable to the safety of the entire premises defendant ought not to pay therefor. If it is applicable to conditions existing in the basement alone defendant should be held hable.

This is an action on a judgment. Plaintiffs have been held liable to their landlord for the cost of installing the sprinkler system. Defendant, if liable over to the plaintiffs therefor, should be concluded by the judgment against plaintiffs of which it had notice and an opportunity to defend. If it is not thus , liable over to the plaintiffs herein, the question of its liability was not adjudicated in the former action and it is not concluded by the judgment.

The rule which governs liability where a third party has been vouched in ” is thus stated:

“ * * * The theory of the rule that a party who is liable over and has notice and an opportunity to defend an action is bound by the judgment is not limited to cases of direct liability or suretyship, or those where the liability is predicated upon the same contract or duty. The rule is based on sound public policy in order that different judicial decisions may not be made on the same state of facts, and to prevent the same questions being Htigated over and over in different suits, and it applies where any privity exists between the parties by which one is liable over to another. It is not essential that the party who is ultimately liable shall be Hable on the same contract or could have been held liable in the former action, or that he shall be directly a party to the transaction by which the person to whom he is Hable over becomes obHgated; it is sufficient that between him and the party sued, the duty for a violation of which the action is brought rests primarily upon him, and that the material facts have been Htigated in the former action of which he had notice and an opportunity to defend.” (Prescott v. LeConte, 83 App. Div. 482, 490; affd., 178 N. Y. 585.)

The question whether the provision of defendant’s lease is appHcable to the basement as distinguished from the entire premises leased by plaintiffs was not litigated and determined in the previous action. The court must determine in this action whether, as between the parties hereto, the duty of instaHing the sprinkler system rests primarily on defendant before defendant can be held bound by the determination of the Tanenbaum action.

The judgment of the Appellate Division should be reversed and plaintiffs’ motion denied, with costs in all courts.

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

Judgment accordingly.


source: Caselaw Access Project

author: Pound, J. Kellogg, J.

license: Public Domain

text:
    In the Matter of Ermelinda Giliotti, Appellant, against Hoffman Catering Co., Inc., et al., Respondents. State Industrial Board, Appellant.
    Workmen’s compensation — master and servant — chef employed for definite term at weekly wage with room and board suffocated from fire in hotel after retirement to room — death due to injury arising out of and in course of employment.
    An award under the Workmen’s Compensation Law is properly made for the death of a chef employed for a definite term at a weekly wage together with room and board, who, at the end of the day’s work, had retired to his room in a section of the hotel provided for the help and, while there, was suffocated to death by a fire which occurred in the hotel. The relation of employer and employee did not cease because the employee was off duty. There was a continuity of employment. Sleeping on the premises in a room provided by the employer in the servants’ quarters was an incident of the employment, mutually beneficial to employer and employee, not a temporary suspension of it. And death arose out of the" employment. The danger from fire to which the employee was exposed attached specially to the premises where he was employed; it was peculiar to the situation, and a risk to which his employment exposed him.

      ^Matter of Giliotti v. Hoffman Catering Co., 221 App. Div. 205, reversed.
    (Argued October 4, 1927;
    decided October 28, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 17, 1927, reversing an award of the State Industrial Board made under the Workmen’s Compensation Law and dismissing the claim.

      Lyman Stansky for claimant, appellant.
    The accident resulting in the death of the claimants’ decedent arose out of and was in the course of his employment. (Heitz v. Ruppert, 218 N. Y. 148; Allied Mutual Ins. Co. v. De Jong, 209 App. Div. 505; Rheinward v. Builders’ Brick, etc., Co., 168 App. Div. 425; Waters v. Taylor Co., 218 N. Y. 248; Sturm v. Boker, 150 U. S. 312; Prince Mfg. Co. v. Prince Metallic Bed Co., 135 N. Y. 24; State Treasurer v. Cohen, 195 N. Y. Supp. 82; Pope v. Merritt, 177 App. Div. 69; Bylow v. St. Regis Paper Co., 179 App. Div. 555; Marlin v. Metropolitan Life Ins. Co., 197 App. Div. 382; 233 N. Y. 653; Lynch v. City of New York, 242 N. Y. 115; Matter of Devoe v. New York State Railways, 218 N. Y. 318.)

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for State Industrial Board, appellant.
    The accident to the employee arose out of and in the course of his employment. (McCarter v. La Rock, 240 N. Y. 382; Roberts v. Newcomb & Co., 234 N. Y. 553; Filitti v. Le Rode Homes Corp., 244 N. Y. 291; Bandassi v. Molla, 200 App. Div. 206; 234 N. Y. 554; Ross v. Howieson, 198 App. Div. 674; Martin v. Metropolitan Life Ins. Co., 197 App. Div. 382; 233 N. Y. 653; Moore v. Lehigh Valley R. R. Co., 169 App. Div. 177; 217 N. Y. 627; Domres v. Syracuse Safe Co., 211 App. Div. 823; 240 N. Y. 611; Cudahy Packing Co. v. Parramore, 263 U. S. 418; Kowalek v. New York Constr. R. R. Co., 229 N. Y. 489; Lynch v. City of New York, 242 N. Y. 115.)

      T. Carlyle Jones and William A. Earl for respondents.
    The accident did not arise out of and in the course of his employment. (Daly v. Bates & Roberts, 224 N. Y. 126; Davidson v. Pansy Waist Co., 240 N. Y. 584; Kass

      v. Hirschberg, Schutz & Co., 191 App. Div. 300; Fraher v. Hotel McAlpin, 210 App. Div. 817.)
   Pound, J.

Michele Giliotti was employed as chef by the Hoffman Catering Co., Inc., which operated Hoffman’s Inn at Valley Stream, N. Y., at a weekly wage of $50 together with room and board. He was engaged, not as workmen often are, from day to day but for a definite term. His status was practically that of a domestic servant in whose case it is an implied part of the contract of the employment that the employee shall sleep on the premises. He slept in a special section of the hotel provided for the help in a room that was solely his. In the early morning of Monday, October 26, 1925, a fire occurred in the hotel from causes unknown. Giliotti had retired to his room at the end of the day’s work and while there was suffocated to death by the fire. Monday was his day off and he was at liberty to leave when his work on Sunday night was finished, but he might and often did remain in his room for the night.

The accident happened during the period of his employment but that is not enough. The question is whether his death was due to an injury arising out of and during the course of his employment. (Matter of Heitz v. Ruppert, 218 N. Y. 148.)

Much stress is laid on the fact that the condition of his clothing and of the bed indicated that he was dressing himself to leave the premises when the fire occurred and that under the rule laid down by this court in Matter of Lynch v. City of New York (242 N. Y. 115) his employment continued as long as he was preparing to leave the premises of his employer. The case does not rest on so narrow a foundation. The relation of employer and employee did not cease because the employee was off duty. There was a continuity of employment. Sleeping on the premises in a room provided by the employer in the servants’ quarters was an incident of the employment, mutually beneficial to employer and employee, not a temporary suspension of it. The parties contemplated that Giliotti when not engaged in work should occupy his room because he was an employee. He was reasonably exercising a right which his contract of service authorized him to exercise. He did not become a boarder when he ceased to cook. Lord Dunedin in Davidson & Co. v. M’Robb ([1918] A. C. 304, 321) said: “It [in the course of employment] connotes, to my mind, the idea that the workman or servant is doing something which is part of his service to his employer or master. No doubt it need not be actual work, but it must, I think, be work, or the natural incidents connected with the class of work — e. g., in the workman’s case the taking of meals during the hours of labor; in the servant’s, not only the taking of meals, but resting and sleeping, which follow from the fact that domestic servants generally live and sleep under the master’s roof.” And Lord Atkinson in the same case said (p. 327): “ In the case of a sailor who lives on board his ship, or an indoor servant who fives in his master’s house, these words would of course cover and include things necessarily incidental to his service there— such as taking his meals, sleeping, resting, etc.” The accident which resulted in Gifiotti’s death, therefore; arose during the course of his employment. The case is plainly distinguishable from Philbin v. Hayes (11 B. W. C. C. 85). There the employee was a common laborer, paid by the hour. He rented sleeping accommodations in a hut provided by his employer. There was no continuity in the course of his employment. When his day’s work ended it was a matter of indifference to his employer where he lodged. It was held that he was not like a domestic servant, living in the hut upon any terms of contract for his employer’s benefit that he should be there.

The more serious question is: Did the death arise out of his employment? He was injured not because he was engaged in some personal act, some private service to himself, like taking a bath (Davidson v. Pansy Waist Co., 240 N. Y. 584), or doing his washing (Matter of Daly v. Bates & Roberts, 224 N. Y. 126), or changing his clothes, but because a fire broke out in the place where he was employed. Neither was the danger one common to all, shared by anybody and everybody in the vicinity of the fire, as in the case of the exploding shell and thfalling bomb. (Matter of McCarter v. La Rock, 240 N. Y. 282.) The danger from fire to which Giliotti was exposed attached specially to the premises where he was employed; it was peculiar to the situation and a risk to which his employment exposed him, in no way differing from the risk of injury from the collapse of the building. (Matter of Filitti v. Lerode Homes Corporation, 244 N. Y. 291.) If he had been on duty, no doubt could arise on this point. An accident due to fire springs from a risk peculiar to the particular locality of the work. If the employee were not in the burning building he would not be within the zone of danger. It follows that his employment called him into a place of potential danger from that source.

Other jurisdictions have held that when an accident happens under such circumstances, it arises out of and during the course of the employment. (Holt Lumber Co. v. Industrial Comm., 168 Wis. 381.) It is of little consequence whether Giliotti had his trousers on or off or was preparing for bed or to leave the premises. He was where his employment took him at the time, and was exposed to a risk arising out of such employment.

The order of the Appellate Division should be reversed and the award of the State Industrial Board reinstated, with costs in this court and the Appellate Division.

Kellogg, J.

(dissenting). In the course of employment ” is a different thing from “ during the period of employment.” It connotes the idea that the employee is doing something which is part of his service to his employer, or incidental thereto. (Davidson & Co. v. M’Robb ([1918] A. C. 304.) Ordinarily, sleeping upon the premises of the employer, in a house or room furnished or leased by him, forms no part of such service. In Philbin v. Hayes (11 B. W. C. C. 85) the employer furnished huts, with sleeping accommodations, for his employees, at a nominal charge per night. During a severe wind storm a hut, in which an employee was sleeping, was blown down and the employee was injured. It was held that he was not in the course of his employment. In Murphy v. Ludlum Steel Co. (182 App. Div. 139; affd., 227 N. Y. 634) an employee was supplied with a house, upon the premises of his employer, in which he lived and for which he paid rent. He was killed while going from the house to the factory of his employer upon the same premises. It was held that he was not in the course of his employment. It can make no difference that in these cases the employee was not given the use of his house as a part of his compensation. Clearly, the enjoyment of compensation by a servant does not involve a service performed for the master. If it were otherwise, a servant would be in the course of his employment ” when drinking intoxicating liquors purchased with his wages or attending at a theatre upon a ticket so purchased. Whether an employee receives money from his employer with which to rent a house from him, or, in lieu of moneys, receives the use of the house and a diminished wage from his employer, the case must be the same. In either event the enjoyment of the use is the enjoyment in part of the wage, a personal privilege rather than a servant’s duty. It has been so held in two cases decided at the Appellate Division. (Matter of Lauterbach v. Jarett, 189 App. Div. 303, and McQuivey v. International Railway Co., 210 App. Div. 507.) In the former, a janitress of an apartment building, who received the free use of an apartment therein, as a part of her compensation, was injured by the falling of plaster from her kitchen ceiling. In the latter, an employee was burned to death while sleeping in the paint shop of his employer, the use of which was furnished free of charge. In each case it was held that the employee was not in the course of his employment. Of course a contract of employment may require the presence of the employee upon the premises at all times, in which case a service to the master is involved whenever the servant is present. The question must always be: Was the servant enjoying a privilege or performing a required service by remaining upon the premises? Thus, in the McQuivey case the court said: Moreover, sleeping in the paint shop, whether permitted or not, was a mere privilege extended, and did not involve a service to the employer.” In the case of a domestic servant, such as a waitress, a butler, a valet, a ladies’ maid, it may be inferred from the well-known nature of the employment, without a special contract term so providing, that the employee is required to live upon the premises, in order that at all times he or she may be subject to call to perform some household duty, whether in the middle of the day or in the middle of the night. In the case of a hotel chef it seems to me that no such inference can be indulged. His place of work is in the kitchen. His service begins when he goes to the kitchen in the morning and ends when he leaves it at night. It does not appear in the case at bar that the employee, a chef in a restaurant, was subject to call or required to cook, when called, during the night. Yet to cook was his sole duty. Even the appellant, in his brief, says of this employee: On each one of these nights, when he crossed the threshold of his room, after his day’s work was done, he ceased to be covered by the act, as he had retired to his temporary home.” For the reasons stated, I do not agree that the employee was in the course of his employment by reason of his presence in a bedroom furnished by the master when the accident occurred.

An accident does not arise out of the employment ” merely because the presence of the employee at the scene of an accident is occasioned thereby. (Matter of McCarter v. La Rock, 240 N. Y. 282; Allcock v. Rogers, 11 B. W. C. C. 149.) An accident which occurs must spring from one of the risks peculiar to the particular locality of the work. “ An injury does not arise out of the employment unless the hazard causing it is, within rational apprehension, an attribute of or peculiar to the.specific duties of the employment.” (By Collin, J., in Matter of Kowalek v. N. Y. Consol. R. R. Co., 229 N. Y. 489.) Of an employee injured by the falling of a cornice of a building adjoining a pit where he was digging, it was said by Judge Crane in Matter of Filitti v. Lerode Homes Corp. (244 N. Y. 291): “ The danger from the falling cornice attached to the spot where the claimant was at work; it was peculiar to the situation, and a risk which arose from working alongside or underneath a building.” Of an employee who had been struck in the eye by an apple thrown in fun by a fellow-employee, it was said by Cardozo, J., in Matter of Leonbruno v. Champlain Silk Mills (229 N. Y. 470): “ He was brought by the conditions of his work ' within the zone of special danger.’ ” Again, it was said: “ Whatever men and boys will do, when gathered together in such surroundings, at all events if it is something reasonably to be expected, was one of the perils of his service.” In Matter of McCarter v. La Rock (supra) this court said that it was thoroughly committed “to an interpretation of our present statute which requires as the basis for an award a causal connection, apparent to a reasonable mind upon consideration of all the circumstances, between the conditions under which the work is required to be performed and the resulting injury; injury from an accident which need not have been foreseen or expected but which after i ie event must appear to have had its origin in a risk incidental to the employment and to have flowed from that source as a rational consequence, and that there must be more than a mere location of the employee in the pathway of an accident entirely disconnected from his employment.” In the case at bar the employee was killed by the binning of a building in a room in which he was present at the time of the fire. The cause of the fire is unknown. It does not appear that the building was of á peculiarly inflammable nature or that the fire arose from a defective stove, furnace, chimney, electric wire or other device, which subjected the building to a peculiar fire risk. The fire may have come from a spark alighting on the roof, or a lighted match or cigarette left upon the premises, or from many other causes not involving a risk inherent in the building. It did not appear after the event ” that the fire “ had its origin in a risk incidental to the employment ” or that it flowed from that source as a rational consequence.” It would be otherwise in the case of an injury from a falling building. In such a fall there is necessarily involved a structural weakness inherent in and peculiar to the building. It cannot be said, without proof, that a building which burns necessarily catches fire through some fire hazard inherent therein and peculiar thereto. For this reason I do not think that the accident was one which arose out of the employment.

I, therefore, favor an affirmance.

Cardozo, Ch. J., Crane, Lehman and O’Brien, JJ., concur with Pound, J.; Kellogg, J., dissents in opinion in wliich Andrews, J., concurs.

Ordered accordingly.


author: Cardozo, Ch. J.

text:
    In the Matter of William E. Shaddock, Appellant, against William F. Schwartz, Commissioner of Finance and Accounts of the City of Buffalo, et al., Defendants. William G. Fraser, Respondent.
    Municipal corporations — BuSalo (city of) — equity — taxpayer’s action — injunction — -statute authorizing cities to pay equitable claims does not limit compensation to outlay, excluding profit —■ measure of compensation — burden on one assailing award to show' that it was made without reference to value — presumption of regularity — contract let on erroneous bid — moral obligation to pay reasonable value of work performed.
    1. Under subdivision 5 of section 20 of the General City Law (Cons. Laws, eh. 21) authorizing cities to pay or compromise equitable claims, there is no basis for a holding that compensation is to be limited to the claimant’s outlay, excluding the customary profit. Rather is it measured by the fair and reasonable value of his material and labor, which includes such profit as would be due him in an action on a quantum meruit.

    2. The agreed price, if excessive, is not the measure of the payment, but the burden is on one assailing an award to show that the city authorities gave effect to the promise without reference to value. In the absence of such a showing, the allowance of the claim must be given the support of those presumptions of regularity that protect official action.
    3. A contention that acceptance by a municipality of the fruits of an illegal contract does not supply the basis for a moral obligation, cannot be upheld, where there was advertisement and public bidding, and a slip by the successful bidder in making his bid, but the finding is that he acted without guile, in the genuine, if mistaken, belief that the bid was regular and valid. Upon acceptance of the work performed under these conditions there arose a moral obligation to pay its reasonable value, which might be converted into a legal obligation in the discretion of the city authorities.

      Matter of Shaddock v. Schwartz, 220 App. Div. 470, reversed.
    (Argued October 10, 1927;
    decided November 22, 1927.)

      Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 7, 1927, which reversed an order of Special Term granting a motion for a peremptory order of mandamus and dismissed the petition.

      Frank J. Fitzpatrick and William P. Brennan for appellant.
    A moral or equitable claim arises where money or other property of a party is received under such circumstances that the General City Law, independent of express contract, imposes the obligation upon the city to do justice with respect to the same. (Williamsburg Savings Bank v. State, 243 N. Y. 231; U. S. v. Realty Co., 163 U. S. 427; Cole v. State, 102 N. Y. 48; O’Hara v. State, 112 N. Y. 146; Cayuga County v. State, 153 N. Y. 279; Munro v. State, 223 N. Y. 208; Oswego & Syracuse R. R. Co. v. State, 226 N. Y. 351; Trustees v. Roome, 93 N. Y. 326; Gaynor v. Vil. of Port Chester, 230 N. Y. 210; W. I. B. Co. v. Attica, 119 N. Y. 204; Town of Guilford v. Supervisors of Chenango Co., 13 N. Y. 143; Mayor v. Bank, 111 N. Y. 459; People v. Westchester Bank, 231 N. Y. 465; Matter of Kendall, 85 N. Y. 306; Brown v. Mayor, etc., 63 N. Y. 239.) The State may authorize and sanction payment of a just and equitable obligation. It may dispense with such limitation as it has itself imposed, if in furtherance of justice. (Williamsburg Sav. Bank v. State, 243 N. Y. 231; Dady v. Prendergast, 144 App. Div. 308; 203 N. Y. 1; Matter of Green, 166 N. Y. 485.) The appellant’s claim is an equitable claim within the contemplation of the statute. Tested in whatsoever way, it fulfills every requirement. The unquestioned receipt of a benefit by the city and the utter freedom from culpability of the appellant fulfill the most exacting test. (Trustees v. Roome, 93 N. Y. 326; Matter of Kendall, 85 N. Y. 308; Brown v. Mayor, etc., 63 N. Y. 239; Ward v. Kropf, 207 N. Y. 478; Munro v. State, 223 N. Y. 208; O. & S. R. R.

      Co. v. State, 226 N. Y. 351; Cayuga Co. v. State, 153 N. Y. 279; Mayor v. Bank, 111 N. Y. 459; O’Hara v. State, 112 N. Y. 146; Bridge Co. v. Attica, 119 N. Y. 204; Gaynor v. Vil. of Port Chester, 230 N. Y. 210; U. S. v. Realty Co., 163 U. S. 427.)

      Henry Adsit Bull for respondent.
    The injunction in the taxpayer’s action should be construed to prevent any further payment whatever to the petitioner for work done or materials furnished under the illegal contract. (Brady v. Mayor of New York, 20 N. Y. 312; Hart v. City of New York, 201 N. Y. 45.) Even the Legislature would not have power to authorize payment of the claim and in effect overrule the judgment in the taxpayer’s action, to which both the city and the petitioner were parties. (Greene v. Niagara County, 55 App. Div. 475; 166 N. Y. 485; Hart v. City of New York, 201 N. Y. 45.)
   Cardozo, Ch. J.

The city of Buffalo advertised for bids for the plumbing work at a hospital. The plans and specifications provided that the bid for the main work be stated separately from bids for six additional items. Shaddock, the present appellant, without separating the items, put in a gross bid for $45,246. Other contractors put in bids separating the items, but higher in their totals. Thus, the bid of the Power Efficiency Corporation, represented by the respondent Fraser, was $38,900 for the main work and $8,973 for the additional items, a total of $47,873, and the bids of others were still higher. The council awarded the contract to Shaddock, who went forward with the work.

Before the contract was awarded, Fraser, the next bidder, lodged a protest vith the council against the acceptance of Shaddock’s bid because of its defective form. When his protest was overruled, he began a taxpayer’s suit. He failed to obtain a temporary injunction, and when the case came on for trial, the work was almost finished. The trial judge held that the variance between the bid and the requirements of the plans and specifications had a tendency to impair the opportunity for free and equal competition between bidders on the job (Charter of city of Buffalo, L. 1914, ch. 217, § 50), and that the contract was illegal, but that in view of the small amount of work that then remained to be done, an injunction should be refused. The Appellate Division modified the judgment by granting an injunction (215 App. Div. 861). It held, however, with the trial judge that Shaddock had acted without fraud, collusion or bad faith. Upon appeal to this court, the judgment was affirmed (243 N. Y. 554).

The work was almost done, as we have seen, when the taxpayer’s action was decided by the trial judge. It had been finished altogether when the injunction was granted by the Appellate Division, though there was nothing in the record at that time to show that this was so. Upon the affirmance by this court, the contractor sought relief in new directions. The balance unpaid under the contract was then about $7,500. There was also an unpaid item of $319.12, the cost of extra work. Shaddock filed with the council a petition under General City Law, section 20, subdivision 5 (Cons. Laws, ch. 21), that the sum unpaid under the contract be allowed accordingly. He submitted at the same time an opinion of the corporation counsel reciting the facts and supporting the petition. The council referred the petition to the committee on claims to investigate and report. Thereafter a resolution was adopted directing that a warrant issue in favor of the petitioner for $7,837.12, the unpaid balance. Fraser again protested. The city auditor, yielding to the protest, refused to draw the warrant. There followed a proceeding for mandamus, in which Fraser intervened. The Supreme Court at Special Term held that the claim had been properly allowed and ordered that a mandamus issue. The Appellate Division took the ground that the payment should have been restricted to such a sum as would repay the petitioner without profit for any expense he had incurred. Payment of the full amount called for by the contract was held to be equivalent to a breach of the injunction. The order of mandamus was reversed, and the proceeding dismissed.

Section 20, subdivision 5, of the General City Law (Cons. Laws, ch. 21) provides that subject to the constitution and general laws of this state,” every city is empowered to pay or compromise claims equitably payable by the city, though not constituting obligations legally binding on it, but it shall have no power to waive the defense of the statute of limitations or to grant extra compensation to any public officer, servant or contractor ” (cf. Greater N. Y. Charter, § 246). We find no basis for a holding that compensation under this statute is to be limited to the claimant’s outlay, excluding the customary profit. Rather is it measured by the fair and reasonable value of his material and labor, which includes such profit as would be due him in an action on a quantum meruit (Vickery v. Ritchie, 202 Mass. 247, 250, 252; 2 Sedgwick, Damages, § 650). To that extent the city has been enriched at his expense. True, of course, it is that the agreed price, if excessive, is not the measure of the payment. What was promised is no longer payable by force of any obligation inherent in the promise. It is payable, if at all, by force of the equivalence between the promise and the value (Keener, Quasi Contracts, p. 22).

We are told that the council gave effect to the promise without reference to value. The burden is on Fraser, assailing the award, to show that this was done. Nothing in the record supplies a sufficient basis for a holding that the burden was sustained. We must presume in the absence of any showing to the contrary that the council made appropriate investigation and was satisfied that the claim had support in equity and justice. The form of the petition is criticized as emphasizing the obligation of the promise to the exclusion of any other. No doubt its form could be improved. We think that, taken as a whole, it fairly apprised the council of a claim by the contractor that the money was equitably due irrespective of the bargain. The council is not a court, and petitions for the allowance of moral obligations are not required to be phrased with the nicety of pleadings. The very fact that the claimant’s bid was lower than that of any other contractor, lower even than Fraser’s, was evidence that it did not exceed the reasonable value, evidence rebuttable, of course, but persuasive in the absence of any showing to the contrary. Examination of the record in the taxpayer’s action would have tended to sustain that inference rather than to repel it. The taxpayer, Fraser, knew the value of the work for he was by occupation a contractor and himself a bidder on the job. He testified at the trial without hint of a belief that the price was in excess of what was reasonably due. Upon the surface of the transaction these evidences of value were apparent to the council when the petition was submitted. If other evidences were needed, they must be presumed to have been uncovered and considered. We are to give to the allowance of the claim the support of those presumptions of regularity that protect official action. This does not mean that the taxpayer is helpless against waste. His remedies are ample if he can show that the award exceeds the value. No such showing is attempted in the record now at hand.

The award is assailed, however, upon grounds more fundamental. In the view of the protesting taxpayer, the claim for reimbursement is lacking altogether in equity and justice, though it be limited to the value of benefits conferred. There are decisions to the effect that at common law, in the absence of any statute to the contrary, acceptance by a municipality of the fruits of an invalid contract will not supply" the basis for a legal obligaron on the footing of aquantum meruit (Hart v. City of New York, 201 N. Y. 45, 55). The taxpayer insists that it does not supply the basis for a moral obligation. The argument in his behalf has been pressed with sir cerity and vigor, but we are unable to uphold it. His conception of equity and fairness, the thing demanded by good conscience, is one of a justice unrelieved by tenderness or charity. Such at least is the goal to which his argument would lead us. We think the council was not limited in its estimate of moral obligation to this Draconian severity. An act is to be viewed, not singly and in vacuo, but in the setting of the whole occasion, if we would judge its moral quality. So viewed, what was done and suffered by the claimant may reasonably be held in a forum of conscience to have clothed him with a title not wholly fanciful or illusory to restitution or an equivalent. We are nbt dealing with a case where city and contractor, indifferent to the law, or with conscious disregard of its requirements, have improved a public building without notice to the public of the letting of the contract. If such a case arises, there will be need to determine whether a moral obligation can be built upon so flagrant a default. We are dealing with a case where there was advertisement and public bidding and a slip by the successful bidder in making up his bid. The finding is that he acted without guile, in the genuine, if mistaken, belief that the bid was regular and valid. There is not even the element of injury to the city’s purse. On the contrary, the city would have been the loser if the bid had been rejected, for the contract must then have gone to Fraser, the bidder next above. We think the adjudged cases supply ample basis for the conclusion that upon acceptance of the work performed under these conditions there arose a moral obligation to pay its reasonable value, which might be converted into a legal obligation in the discretion of the council (People ex rel. Dady v. Prendergast, 144 App. Div. 308; 203 N. Y. 1; Williamsburgh Sav. Bank v. State, 243 N. Y. 231; O. & S. R. R. Co. v. State, 226 N. Y. 351; U. S. v. Realty Co., 163 U. S. 427).

Assent to this conclusion does not mean that the remedy of injunction at the instance of a taxpayer is reduced to mere futility. The injunction destroys the obligation of the contract. If work is still unfinished, the contractor must desist. The halt is peremptory and final. If work has been done, there can be no claim for reimbursement beyond the reasonable value, nor even this unless the council shall find an equity sufficient to abate the rigor of the law.

The order of the Appellate Division should be reversed and that of the Special Term affirmed with costs in the Appellate Division and in this court.

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

Ordered accordingly.


author: Kellogg, J.

text:
    Kataryna Lotocka, as Administratrix of the Estate of Alex Lotocka, Deceased, Respondent, v. Elevator Supplies Company et al., Appellants, Impleaded with Another.
    Negligence •— building — elevators — duty of owner of building in course of construction, if in possession and control, to guard elevator shafts — liable for death of workman who falls through unguarded opening — contractor for portion of work; whose workmen broke and removed elevator door, but who was not in possession or control of building, not liable.
    1. Under section 241 of the Labor Law (Cons. Laws, ch. 31) the owner of a building in course of construction, who is in possession and control thereof, is required to guard openings to elevator shafts. Such an owner, therefore, is, liable for the death of a workman, who, stumbling over a pile of rubbish in the dark, falls through an unguarded opening in an elevator shaft from which the door, broken by employees of a contractor, had been removed by them fifteen days before, immediate notice having been given to the owner that the door was broken.
    2. No statutory duty to guard the opening rested upon the contractor, whose employees removed the door, where its contract was simply for the installation of signals and door closers. It was not engaged in constructing and did not have possession and control of the building. It was, therefore, improper to hold it jointly liable.

      Lotocka v. Elevator Supplies Co., 220 App. Div. 705, modified.
    (Argued October 29, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 14,1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

      John F. Loughran and Robert H. Charlton for Elevator Supplies Company, appellant.
    The trial court erred in directing the jury that any duty was imposed by subdivision 5 of section 241 of the Labor Law upon defendant, Elevator Supplies Company, a subcontractor. (Rooney v. Brogan Constr. Co., 194 N. Y. 32; McNamara v. Eastman Kodak Co., 220 N. Y. 180.)

      Theodore H. Lord and James B. Henney for appellant.
    The court erred in charging the jury that it was the duty of this appellant, the owner, to make this place safe. (Dinghy v. Starr Knitting Co., 134 N. Y. 552; Harley v. Buffalo Car Mfg. Co., 142 N. Y. 31; Citrone v. O’Rourke, 188 N. Y. 338.)

      Leonard F. Fish and Moses Feltenstein for respondent.
    The defendant Geo-Ted Realty Corporation is clearly liable to the plaintiff in this case under common-law principles and under the provisions of section 241 of the Labor Law and section 196 of the Building Code. (Peloso v. City of New York, 210 App. Div. 265; Kenny v. Hall Realty Co., 85 Misc. Rep. 439; Imaley v. Thatcher,
      144 App. Div. 710; Bohnhoff v. Fisher, 210 N. Y. 172; Parker v. Baimont, 135 Mass. 116; Racine v. Morris, 136 App. Div. 474; Stevenson v. Wilson Co., 102 App. Div. 477; McRickard v. Flint, 114 N. Y. 222; Houston v. Dobson, 138 App. Div. 810; McEwen v. Bordon, 154 App. Div. 185; Kemmirle v. Carey Printing Co., 160 App. Div. 893; Porcella v. Mutual Res. Fund, 50 App. Div. 158; Ford v. Wanamaker, 165 App. Div. 284; Smith v. N. Y. & Queens Co. E. L. & P. Co., 166 App. Div. 888.)
   Kellogg, J.

This action was brought by the administratrix of Alex Lotocka to recover damages for his death. Lotocka, while at work on the ninth floor of a building, which was in process of erection, fell through an open and unguarded doorway of an elevator shaft, and, dropping to the bottom of the shaft, sustained such injuries that he died. The defendant Geo-Ted Realty Corporation- was erecting the building upon premises owned by it. It had parcelled out the work of construction to various contractors. It had assigned to the Gurney Elevator Company, named but apparently not prosecuted as a defendant, a contract for the installation of elevators in five elevator shafts of the building. That company had completed its work, including the installation of all the doors to the elevator openings in the five shafts. There had been awarded to the defendant Elevator Supplies Company a contract for the installation of elevator signals and door closers for the various elevators in the building. In making its installation that company used the installed elevators as movable scaffolds from the top of which its men might work. On or about November 13, 1925, it was causing the elevator in shaft No. 5 to be moved to floor number nine when the top of the elevator struck the door to the opening at that floor and broke it from one of its hangers. An employee of Elevator Supplies Company removed the door and placed it on its side across the opening. Immediate notice was given by that company to the defendant Geo-Ted Realty Corporation that the door to shaft No. 5 had been broken from its hanger. There had been awarded to the Greenfield Iron Works, the employer of Lotocka and his fellow workman, Janowsky, a contract for the installation of iron plates in the elevator shafts. On November 28, 1925, at about two o’clock in the afternoon, Lotocka and Janowsky went to work for their employer on floor nine. At this time the door, which had blocked the opening to shaft No. 5, had been removed. According to some of the proof the opening had been unguarded by any barrier for more than ten days. Lotocka and Janowsky ^pngaged themselves in the work of placing iron sheeting In shafts Nos. 3 and 4. When it became dark they obtained light for their work from electric bulbs attached to extension wires running from a wall fixture. They worked until about 9:30 p. m., when they got ready to leave for the night. They placed their tools in the toilet which was within three feet of shaft No. 5. Lotocka detached one of the electric wires from the fixture, rolled it up and started for the toilet for the purpose of storing the wire for the night. There was a pile of rubbish in front of shaft No. 5, which was about eighteen inches high and three feet wide. Lotocka, in the course of his journey, tripped on the rubbish pile, and, falling to the floor, rolled over through the unguarded opening to shaft No. 5. Neither Lotocka nor Janowsky had performed any work on shaft No. 5. There is proof that the elevator in that shaft had been used for bringing up tools and materials for work to be done in the several shafts. A verdict in favor of the plaintiff, on account of the death of Lotocka, against the defendants Geo-Ted Realty Corporation and Elevator Supplies Company was returned. The two defendants have each appealed from the judgment against them entered upon the verdict.

It is provided in section 241 of the Labor Law (Cons. Laws, ch. 31) as follows: “Protection of employees on building construction work. All contractors and owners, when constructing buildings, shall comply with the following requirements: * * * 6. If elevators, elevating machines or hod-hoisting apparatus are used within a building in the course of construction, for the purpose of lifting materials to be used, the shafts or openings in each floor shall be inclosed or fenced in on all sides by a barrier of suitable height, except on two sides which may be used for taking off and putting on materials, and those sides shall be guarded by an adjustable barrier not less than three nor more than four feet from the floor and not less than two feet from the edges of such shafts or openings.” It is undisputed that the opening to shaft No. 5, through which Lotocka fell, was not guarded by a barrier, as required by the provision cited. The Geo-Ted Realty Corporation was the owner of the premises, and was in possession and control of the building thereupon which was in the course of erection. It employed a construction superintendent to see that the contractors did the work they were required to do under the direction of the architect ” and to see that the work was properly performed according to the Building Code and Labor Law.” Under these circumstances it was the clear duty of the Geo-Ted Realty Corporation, under the statute, to guard the opening to the shaft. (McNamara v. Eastman Kodak Co., 220 N. Y. 180.) It seems equally clear that no such duty rested upon the Elevator Supplies Company. That company was not engaged in constructing ” buildings. It did not have possession and control of the building. It had no authority or control over elevator shaft No. 5. In Rooney v. Brogan Construction Co. (194 N. Y. 32, 36) /this court said that “ the statutory duty was imposed only upon the person, who had the possession and control of the building, and that the duty was jointly imposed, only, where both owner and contractor could exercise control.” Under the authorities cited the Geo-Ted Realty Corporation was properly held hable for the death of Lotocka, whereas the Elevator Supplies Company, which was blameless, was improperly held liable. The erroneous rulings of the trial judge did' not affect the substantial rights of the Geo-Ted Realty Corporation, and should, therefore, be disregarded.

The judgment should be affirmed with costs as to the defendant Geo-Ted Realty Corporation, and reversed as to the defendant Elevator Supplies Company, as to which defendant the complaint should be dismissed, with costs in all the courts.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ., concur.

Judgment accordingly.


text:
    Guiseppe Yaconi, Respondent, v. Brady & Gioe, Inc., Appellant, Impleaded with Another.
    Negligence — master and servant — ships and shipping — stevedores — duty of employer to cover up greasy spot on floor of vessel which stevedores were engaged in loading ■ — • negligence of fellow-servant no defense to action for injury — assumption of risk • — • promise of fellow-servant to remedy defect ineffective to lay burden of risk on master — defense of assumption of risk good against stevedore.
    1. Oil or grease scattered over the floor for a space about a yard square, in the hold of a vessel, which stevedores were engaged in. loading, may fairly be found to be a danger which should have been corrected with promptness by a diligent employer.
    2. An argument that failure to get sawdust, kept on the pier about five minutes walk from the vessel, to cover up the spot, was the result of negligence of fellow-servants for which the employer was not responsible in the absence of a statute, cannot be sustained, where there is no basis for a finding that the correction of the danger was merely a detail of the work or that the danger was one incidental to the progress of the work itself. The duty to use" reasonable care in supplying a servant with a safe place in which to work is one resting on the master and may not be shaken off by delegation to another.
    3. In an action, however, by a stevedore against his employer to recover for personal injuries received from slipping on the grease, where it appears not only that the danger was obvious but that plaintiff marked and understood it and called out to the man at the gangway that the grease must be covered, it must be held that in going on with the work, on the promise of the gangway man that he would notify the boss and that the sawdust would be brought, plaintiff assumed the risk. The promise of a mere fellow-servant was ineffective to lay the burden of the risk on the master between the time of making the promise and the time for fulfillment.
    4. The defense of assumption of risk is good against a stevedore. He is not a seaman under the rule of the general maritime law specially exempting those subject to the power of the master from that defense, and the Federal Employers’ liability Act, if applicable, does not change the law of assumption of risk, except where the injury is the result of failure to comply with a specific statutory duty.

      Yaconi v. Brady & Gioe, Inc., 220 App. Div. 705, reversed.
    (Argued October 28, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 18,1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

      H. H. Brown and E. C. Sherwood for appellant.
    Section 33 of the Merchant Marine Act of 1920, commonly known as the Jones Act, is not applicable to this ease, since at the time of the accident the plaintiff was working on a foreign vessel. (Clark v. Montezuma Transportation Co., Ltd., 217 App. Div. 172; The Pinar Del Rio, 16 Fed. Rep. [2d] 984; Resigno v. Jarka Co., Inc., 221 App. Div. 214; Rainey v. N. Y. & P. S. S. Co., 216 Fed.,Rep. 449; The Navarino, 7 Fed. Rep. [2d] 743.) If there was any negligence herein, it was that of a fellow-servant concerning a detail of the work. (McConnell v. Morse I. W. D. D. Co., 187 N. Y. 341; Madigan v. Oceanic Steam, Navigation Co., 178 N. Y. 242; Dair v. N. Y. & P. R. S. S. Co., 204 N. Y. 341; De Pirro v. Robins Co., 210 N. Y. 93; Dailey v. Stoll, 211 N. Y. 74; Vogel v, American Bridge Co., 180 N. Y. 373; Kreigh v. Westinghouse, Church, Kerr & Co., 214 U. S. 249; Perry v. Rogers, 157 N. Y. 251; Russell v. Lehigh Valley R. R. Co., 188 N. Y. 344; La Marca v. Atlantic Stevedoring Co., 164 App. Div. 490.) Plaintiff assumed, as matter of law, the risks incident to his employment. (The Scandinavia, 156 Fed. Rep. 403; Delaware, L. & W. R. R. Co. v. Tomasco, 256 Fed. Rep. 14; McAdoo v. Anzellotti, 271 Fed. Rep. 268; Cunard S. S. Co. v. Smith, 255 Fed. Rep. 846; The Saratoga, 94 Fed. Rep. 221; The Serapis, 51 Fed. Rep. 91.)

      Thomas A. McDonald and William F. Purdy for respondent.
    The verdict of the jury is amply supported by evidence of negligence on the part of the defendant. (Durkin v. Sharp, 88 N. Y. 225; Fuller v. Jewett, 80 N. Y. 46; Steiner, v. Steamer “Spokane,” 294 Fed. Rep. 242.) The common-law defenses of contributory negligence, assumption of risk and fellow-servant doctrine are not defenses to this action, since the Jones Act is applicable. (International Stevedoring Co. v. Haverty, 272 U. S. 50; Nox v. U. S. Shipping Board E. F. C., 103 N. Y. Supp. 340; Chesapeake, etc., R. Co. v. DeAtley, 241 U. S. 310; Central Vermont Ry. Co. v. White, 238 U. S. 507; Patrone v. Howlett, Inc., 237 N. Y. 394; Coast Steamship v. Brady, 8 Fed. Rep. [2d] 16; Robert v. U. S. S. B. Emergency Fleet Corp., 240 N. Y. 474; Larson v. Nassau Elec. R. R. Co., 223 N. Y. 14.) The defendant herein not only received actual notice, but was charged with notice of the unsafe condition of the hold of the vessel. (Larson v. Nassau Elec. R. R. Co., 223 N. Y. 14.)
   Cardozo, Ch. J.

Plaintiff, a longshoreman, was employed by Brady & Gioe, Inc., a corporation engaged in the business of master stevedores, to do work in the loading of the Kingsholm, a vessel owned and operated by the Swedish-American Line, a Swedish corporation. While carrying a heavy bar of copper, he slipped upon some grease and fell, suffering injuries for which he sued. The trial judge dismissed the complaint against the owner of the vessel. He left to the jury the question whether there had been a breach of duty by the employer. A judgment entered on a verdict for $2,010.17 has been unanimously affirmed.

Plaintiff with other men was sent down into the hold about one o’clock in the afternoon. He found some spots of grease or oil scattered over the floor for a space about a yard square. He called to the gangway man to notify the boss ” who was at the dock, and have some sawdust or a piece of wood supplied to cover the slippery parts. He had been told to send word in this way whenever he had need of anything in the doing of his work. The gangway man thus notified, shouted: “ Go on working, I will notify the boss, and the sawdust will come after.” An hour passed, but the sawdust did not come. The plaintiff fell and broke his leg.

The case went to the jury to say whether there had been a negligent failure by the master to make the place of work safe. So large a spot of oil might fairly be found to be a danger which should have been corrected with promptness by a diligent employer (The Spokane, 294 Fed. Rep. 242). Indeed, the danger is not disputed. The defendant says, however, that means to correct it were at hand, and that the use of these means was a mere detail of the work. - The evidence is that there was a shanty on the pier where sawdust was kept. It was distant about five minutes’ walk from the place where plaintiff was at work. From this the argument is made that the failure to get the sawdust was the result of the negligence of fellow-servants for which the defendant is not liable in the absence of a statute.

We find no basis for a holding that the correction of this danger was merely a detail of the work (cf. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52). The duty to use reasonable care in supplying a servant with a safe place in which to work is one resting on the master, and may not be shaken off by delegation to another. Occasions arise, however, when the progress of the work itself develops incidental dangers though the place is safe at the beginning. In such a situation the master may fulfill his duty if he furnishes his men with proper means or facilities to obviate these dangers as they emerge from time to time (Madigan v. Oceanic Steam Nav. Co., 178 N. Y. 242; Vogel v. Am. Bridge Co., 180 N. Y. 373; Dailey v. Stoll, 211 N. Y. 74). There is nothing in the evidence to bring this case within the orbit of that principle. We have no reason to believe that the danger was one incidental to the progress of the work itself. On the contrary, one finds it difficult to see how oil could have come into the hold as the result of anything incidental to the loading of copper bars. Not only that, but we have no reason to believe that the hold had been made safe at the beginning of the job, and had become unsafe thereafter. On the contrary, the oil was visible to the plaintiff and those with him when first they went below. Even if we should assume that the defendant was not remiss in failing to observe it sooner, there was at least a duty to use reasonable diligence in removing the danger after notice of its presence. The jury might find upon the evidence that this duty was ignored.

The question remains whether there was an assumption of the risk. The danger was obvious. Not only was it obvious, but the plaintiff marked and understood it. He called out to the man at the gangway that the grease must be covered or the men would slip on it. He knew that there was no pathway to his work except across the spot of danger. The situation was much the same as in Jacobs v. Southern Ry. Co. (241 U. S. 229). In going on with the work, he made the risk his own (Crown v. Orr, 140 N. Y. 450; Colleli v. Turner, 215 N. Y. 675; Larson v. Nassau Electric R. R. Co., 223 N. Y. 14, 20; Butler v. Frazee, 211 U. S. 459).

A different question would be here if the employer or an authorized representative had promised to remove the danger, and had asked the servant in the interval to continue at the job (Rice v. Eureka Paper Co., 174 N. Y. 385; Seaboard Air Line v. Horton, 239 U. S. 595,600; Pellegrino v. Smith Co., 226 N. Y. 165). In such a case the master and not the servant, assumes the risk between the time of the promise and the time for its fulfilment ” (Rice v. Eureka Paper Co., supra, at p. 392). A promise is ineffective to lay that burden on the master unless made by some one with authority (4 Labatt, Master & Servant, 1342, 1344, and cases there cited). The gangway man, so called, was not such a person. He did no more than guide the draft and signal the winchman when to lower and hoist the load. His promise had no greater significance than that of any other fellow-servant (United Zinc Co. v. Wright, 156 Fed. Rep. 571). If some one in authority had been present with opportunity to mark the risk, he might have told the men to stop till they were able to go on in safety. The plaintiff did not stop, but, knowing all the chances, was willing to go on in danger. The delay of a few minutes would have been enough, for if another did not bring the sawdust, he could have gone for it himself. The alternative was his, either to stop for this brief time, or to go on at his own risk. To his undoing he chose the risk.

The case was tried upon the theory that the defendant’s liability, if any, was governed by the general maritime law unaffected by a statute (Robins Drydock Co. v. Dahl, 266 U. S. 449). The question has been argued whether it might properly have been tried under the act of Congress of June 15, 1920, known as the Jones Act (41 Stat. ch. 250, p. 988). The Supreme Court has held that the act puts a stevedore within the zone of its protection. “ It is true that for most purposes, as the word is commonly used, stevedores are not seamen.’ But words are flexible ” (Int. Stevedoring Co. v. Haverty, 272 U. S. 50). The point is made, however, that the act is not to be extended to seamen upon foreign vessels. There are decisions in the Appellate Divisions refusing that extension (Clark v. Montezuma Transp. Co., 217 App. Div. 172; Resigno v. Jarka Co., Inc., 221 App. Div. 214). The question is an important one, but not for this appeal. Upon the facts before us, the plaintiff would gain nothing if the statute should be held to cover him. All that the Jones Act does is to give the benefit of the Employers’ Liability Act of Congress (35 Stat. 65) to those within its purview. The Employers’ Liability Act, however, does not change the law of assumption of risk, except where the injury is the result of the failure to comply with a specific statutory duty (Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 503; 239 U. S. 595, 600; Jacobs v. Southern Ry. Co., 241 U. S. 229). The distinction between contributory negligence and assumption of risk was always a close one. The two concepts seemed often to overlap, and often it did not become necessary to discriminate between them. But whenever discrimination between them became necessary, the use of defective ways or works with notice of the defect and appreciation of the danger was held to be an assumption of the risk and not contributory negligence ” (Maloney v. Cunard S. S. Co., 217 N. Y. 278, 282, and cases there cited; cf. Seaboard Air Line v. Horton, supra).

The plaintiff is thus remitted to the common law of the sea. No claim is made in his behalf that under the maritime law the defense of assumption of risk is excluded against one in his position. The defense is not a good one under that law when a seaman, in the ordinary sense, one subject to the authority and discipline of a master of a vessel, is injured aboard ship (Lynott v. Great Lakes Transit Corp., 202 App. Div. 613; affd., 234 N. Y. 626; Cricket S. S. Co. v. Parry, 263 Fed. Rep. 523; cf. Chelentis v. Luckenbach S. S. Co., 247 U. S. 372). There are many decisions that it is good against a stevedore (Cunard S. S. Co. v. Smith, 255 Fed. Rep. 846; D., L. & W. R. R. Co. v. Tomasco, 256 Fed. Rep. 14; cf. Maleeny v. Standard S. Carp., 237 N. Y. 250, 255; Holmes, J., in Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 167). A stevedore, however styled under the Jones Act, is not a seaman under the rule of the general maritime law with its special exemption to those subject to the power of the master (Int. Stev. Co. v. Haverty, supra). One might as well bring within that class a laborer employed by a contractor to repair a vessel in a dry dock (Butler v. Robins Dry Dock & Repair Co., 240 N. Y. 23). Such a laborer is subject to the general maritime law, but not to the distinctive features of that law which apply to seamen and no others. No one would think of saying that his damages would be measured by maintenance, cure and wages (Chelentis v. Luckenbach S. S. Co., supra; Carlisle Packing Co. v. Sandanger, 259 U. S. 255). “ Words,” as we are told, “ are flexible ” (Int. Stev. Co. v. Haverty, supra).

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

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

Judgments reversed, etc.


text:
    In the Matter of the Claim of James H. Norris, Appellant, against The New York Central Railroad Company, Respondent. State Industrial Board, Respondent.
    Workmen’s compensation— master and servant — workman killed during temporary cessation of work — assumption that he was killed by an accident arising out of and in course of employment.
    The fact that an employee was not actually at work when an accident occurred does not impugn a finding by the State Industrial Board that he was in the course of his employment when injured, where due to the nature of his employment there was a temporary cessation of work. During the interim the workman was not obliged to remain a prisoner in the place where he was working, and, where it appears that he may have been at the place of the accident for legitimate purposes of the employment and there was no proof that he was there for a contrary purpose, the Industrial Board was justified in assuming or inferring that he continued in his employment and was killed by an accident arising out of and in the course of his employment.

      Matter of Norris v. N. Y. C. R. R. Co., 220 App. Div. 359, reversed.
    (Argued October 4, 1927;
    decided November 22, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 7, 1927, reversing an award of the State Industrial Board, made under the Workmen’s Compensation Law, and directing a dismissal of the claim.

      Frederick J. Flynn and Charles R. Mullin for appellant.
    The Appellate Division erred in reversing, the decision and award of the State Industrial Board and in dismissing the claim as there was evidence to sustain the findings that the injuries and death of the decedent were the result of an accidental injury arising out of and in the course of his employment. (Workmen’s Compensation Law, § 20; Benjamin v. Rosenberg Bros., 180 App. Div. 234; Cohen v. Ashford Plumbing Co., 216 App. Div. 263; Di Salvio v. Menihan Co., 225 N. Y. 123; Heitz v. Ruppert, 218 N. Y. 148; Noble v. N. Y. C. & H. R. R. R. Co., 20 App. Div. 40; 161 N. Y. 620; Fordham v. Gouverneur, 160 N. Y. 541; Mullen v. Schenectady R. Co., 214 N. Y. 300; Smith v. Oesterheld & Sons, 189 App. Div. 384; 229 N. Y. 525; Driscoll v. Gillen & Sons, 187 App. Div. 908; 226 N. Y. 568; Chludzinski v. Standard Oil Co., 176 App. Div. 87; Graffee v. Art Color Printing Co., 191 App. Div. 669; Smith v. Bartle Corp., 189 App. Div. 426; 228 N. Y. 564.)

      Robert E. Whalen for respondent.
    Norris’ accident did not arise out of and in the course of his employment. (Matter of Glatzl v. Stumpp, 220 N. Y. 71; Matter of Saenger v. Locke, 220 N. Y. 556; Matter of Scholtzhauer v. C. & L.

      Lunch Co., 233 N. Y. 12; Matter of McCarter v. La Rock, 240 N. Y. 282; Markowitz v. Nat. Hardware Co., 213 App. Div. 461; Matter of Di Salvio v. Menihan Co., 225 N. Y. 123; Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470; Matter of Clark v. Voorhees, 231 N. Y. 14; Matter of McInerney v. B. &S. R. R. Corp., 225 N. Y. 130; Heater v. Brie R. R. Co., 210 App. Div. 497.)
   Kellogg, J.

The workman, James H, Norris, for whose death this claim was filed, was employed to unload cans of milk from railway cars, placed in the yard of his employer, the New York Central Railroad Company, and to deliver the same on, board motor trucks of consignees. The yard was situated in New York city between Twelfth avenue on the west and Eleventh avenue on the east, and was bounded on the north by Thirty-fourth street and on the south by Thirty-second street. Two private roadways, designated respectively “A” and “ B,” crossed the yard from east to west, connecting Eleventh and Twelfth avenues. Roadway A was about one hundred feet to the north of roadway B and was separated therefrom by six lines of tracks, running easterly and westerly. Roadway A swung down to meet roadway B at Eleventh avenue. At about the point of convergence, on the edge of Eleventh avenue, stood a flag shanty. This shanty was warmed by the heat from a stove. A short distance to the south, on the westerly edge of Eleventh avenue, was a yardmaster’s office. In this building there was a toilet. On the night of October 1st, 1925, the workman Norris was assigned to unload milk cans from a car placed on a railway track just north of roadway A and about 500 feet west of Eleventh avenue. Norris came to work at about eleven o’clock p. m. He first checked up on the number of cans, as was his duty, and reported the count correct to his foreman. He then proceeded to deliver cans on board a consignee’s motor truck. It is conceded that he made one delivery of cans; that other deliveries remained to be made; that he could make no more until the motor trucks of other consignees arrived. • At about one o’clock a. m. Norris was seen walking on roadway A easterly toward Eleventh avenue. Shortly afterwards his body was discovered on roadway B, about 500 feet west of its convergence with roadway A. Norris was in a dying condition and shortly afterwards died. The proof justified the conclusion that ’ Norris had been struck at Eleventh avenue, where the two roadways converged, by a fast-moving motor truck going west on roadway B; that his body had been carried on the fender of the truck until, when the truck circled back, it was deposited on roadway B at the point where it was found. The question arises whether the State Industrial Board justly found, under the circumstances stated, that Norris was in the course of his employment when the motor truck ran him down.

The fact that Norris was not actually at work when the accident occurred does not impugn the finding; nor does the fact that he was, at the time, absent from the precise spot where his work must have been performed. Due to the nature of his employment, there was a temporary cessation of the work. Norris was obliged to suspend until such time as further motor trucks, to which he could make delivery, might arrive. During the interim he was not required to remain a prisoner caged in the freight car containing the cans to be unloaded. It has been held that a laborer sitting in the doorway of his employer’s plant during the idle noon hour is in the course of his employment. (Matter of Domres v. Syracuse Safe Company, 240 N. Y. 611.) The same holding has been made in the case of a night watchman who leaves his box and retires to a shanty to cook and eat his food (Morris v. Lambeth Borough Council, 8 W. C. C. 1); of a lighter-man employed to pump out a stranded barge who, while waiting for the tide to float the barge, that he may embark upon it, attempts to board a nearby boat, in order to obtain a rest, and is thereby injured (May v. Ison, 7 B. W. C. C. 148); of a workman, employed to reconstruct telegraph lines, who takes refuge from a storm under railway oars standing on a siding, and is injured when a freight engine moves the cars (Matter of Moore v. Lehigh Valley R. R. Co., 169 App. Div. 177; affd., 217 N. Y. 627); of a locomotive engineer who temporarily leaves his engine to go to his boarding house nearby and is killed while crossing the railway tracks (North Carolina R. R. Co. v. Zachary, 232 U. S. 248). The workman Norris, when struck by the motor truck, may have been on his way to the flag shanty, to warm himself before the stove, or to the yardmaster’s office, to use the toilet. Again, he may have gone to the place where lie was hit in order to watch and wait for the trucks of consignees, upon the arriyal of which the resumption of his work depended. This was the common practice of milk handlers ” and was known to be such by their superintendent. Under the cases cited, upon any of the assumptions made, Norris would have been in the course of his employment when hit by the truck.

Was the Industrial Board justified in finding that Norris journeyed to Eleventh avenue animated by one of the purposes indicated, rather than by a purpose personal to himself? There is a well-recognized common-law rule that a relationship, such as that of principal and agent, once shown to have existed, may be inferred or presumed to have continued until its non-existence has been established. (1 Greenleaf on Evidence [16th ed.], secs. 41, 42; Wigmore on Evidence, sec. 2530.) The presumption has been applied to the relationship of master and servant in two well-considered English cases (Astley v. Evans & Co., Ltd., 4 B. W. C. C. 209, and Rigling v. Minister of Munitions, 14 B. W. C. C. 1). In the Asiley case a train of freight cars, pushed by an engine, overtook another train on the same rails, and the two trains ran buffer to buffer. A brakeman on the rear train tried to get aboard the train ahead, but stepped between the buffers and was killed. There was no evidence as to his purpose in trying to board the forward train. However, there was proof that the cars on that train had steps from which to alight, while the cars on the rear train had none, and that by alighting the brakeman might have been enabled to turn a switch, as was his duty. An award for the death of the brakeman was upheld. It was there said by Fletcher Moulton, L. J., that where the workman is engaged in his master’s work up to his death, and the last acts that are known are consistent with the continuance of that work, it is for the person who alleges a cessation of his working for his master to prove it.” The facts of the Rigling case are very similar to those in the case at bar. Rigling was a workman in the employment of a railroad. He was engaged at work on the south side of four sets of railway tracks running from east to west. On the north side of the tracks there was a mess room and a lavatory. Rigling was entitled to go to either of these places during the noon hour. During that hour he did cross the tracks for some purpose unknown. On his return he was struck by a passing train and killed. An award for his death was sustained." Lord Sterndale, M. R., said that he was troubled by the question whether it was not for the claimant to show that Rigling was making the crossing for some purpose arising out of his employment; that, on the whole, he thought it was not; that under the circumstances “ although there may be a gap between that and his death which is not filled up, it should be inferred that he met his death in doing something arising out of the course of his employment.” The case of Smith v. Oesterheld & Son (189 App. Div. 384; affd., 229 N. Y. 525) closely resembles the case at bar. In that case it was the duty of a workman to unload lumber from a railroad car and deliver the same upon motor trucks. He loaded one motor truck and was waiting for other trucks to arrive. During the interim the workman crossed several railway tracks, going in the direction of a railroad office where there was a telephone. It may have been his purpose to telephone his employer to hurry along the trucks. In the course of his journey he was struck by a train and killed. The award was upheld. The court below said: There being no substantial evidence to indicate the contrary, it must be presumed that his journey was made to serve his master, and that he was killed by an accident arising out of and in the course of his employment.” In our case, the significant points are: Norris was killed during the hours of his working day; there was a temporary cessation of work; the last work performed by Norris was for his master; he was killed in the vicinity where further work by him was to have been performed; he was killed during a recess period; during this period he was within the protection of the law if he had not stepped out of his employment; he may have been at the place of the accident for legitimate purposes of the employment; there was no proof that he was there for a contrary purpose. Under these circumstances, we think the Industrial Board was justified in assuming or inferring that Norris continued in his employment and was killed by an accident arising out of and in the course of his employment.

The order of the Appellate Division should be reversed and the award of the State Industrial Board affirmed, with costs in this court and in the Appellate Division.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ., concur.

Ordered accordingly.