author: Desmond, J. ■ Conway, J.

text:
    Dominick Muscelli, Respondent, v. Frederick Starr Contracting Company, Appellant.
    Argued February 18, 1947;
    decided May 22, 1947.

      J. Charles Weschler and Walter T. Kohn for appellant.
    I. The construction of the charter party is for the court. If by its terms, there was a complete demise of the vessel the charterer became its owner pro hac vice for the period of the service and became liable for all claims ex contractu or ex delicto and the general owner was freed of all responsibility. The same rule is applicable to charters of nonpower boats. (The Allianca, 290 F. 450, 294 F. 1020, 264 U. S. 593; Leary v. United States, 81 U. S. 607; Auten v. Bennett, 183 N. Y. 496;
      Hagar v. Clark, 78 N. Y. 45; Graves v. Davis, 235 N. Y. 315; United States v. Cornell Steamboat Co., 267 U. S. 281; Brooklyn Ash Removal Co. v. Connell, 225 N. Y. 503; Dailey v. Carroll, 248 F. 466; Ira S. Bushey & Sons v. W. E. Hedges & Co., 40 F. 2d 417; O’Boylé v. McGirr Bros., 39 F. 2d 637; The Nat E. Sutton, 42 F. 2d 229; Monk v. Cornell Steamboat Co., 198 F. 472.) II. Plaintiff’s employer being in complete and exclusive control of the derrick at the time of the accident and for five months prior thereto as the result of a demise under a charter party, defendant owner is not responsible in this action to an employee of the charterer for the derrick’s condition nor for any defects thereon at the time it was chartered. (Scarff v. Metcalf, 107 N. Y. 211; Anderson v. Boyer, 156 N. Y. 93; Dooley v. Healey, 95 App. Div. 271; Naposki v. McAllister Lighterage Line, Inc., 232 App. Div. 802, 257 N. Y. 611; Kohrn v. Boyer Lighterage Corp., 262 App. Div. 762; Barbaro v. Auditore Contracting Co., 215 App. Div. 595; Barnevo v. Munson S. S. Line, 239 N. Y. 486; Lloyd v. Hedger Transportation Corp., 270 N. Y. 617, 302 U. S. 762; Kuhn v. City of New York, 274 N. Y. 118; Murrain v. Wilson Line, 270 App. Div. 372; Seas Shipping Co. v. Sieracki, 328 U. S. 85; The Spokane, 294 F. 242, 264 U. S. 583.) III. Liability in tort is an incident to occupation and control and even if defendant had notice of defects in the vessel at the time it chartered it to “ Colonial ”, it was exempt from liability. (The Allianca, 290 F. 450, 294 F. 1020; Caldarola v. Moore-McCormack Lines, 295 N. Y. 463; Cullings v. Goetz, 256 N. Y. 287; Lafredo v. Bush Terminal Co., 261 N. Y. 323; Campbell v. Holding Co., 251 N. Y. 446; Kilmer v. White, 254 N. Y. 64; Bruszaczynaska v. Ruby, 267 App. Div. 540; Antonsen v. Bay Ridge Savings Bank, 266 App. Div. 164; Kushes v. Ginsberg, 99 App. Div. 417, 188 N. Y. 630; Sterger v. Van Sicklen, 132 N. Y. 499; Reynolds v. Van Beuren, 155 N. Y. 120.) IV. Breach of a warranty of seaworthiness does not operate to create a cause of action against an owner for personal injuries »to the employees of a charterer pro hac vice. (Maleeny v. Standard Shipbuilding Co., 237 N. Y. 250.)

      John J. Welsh and Thomas J. Gonsalves for respondent.
    I. The complaint states a good cause of action against defendant owner on account of its breach of its requisite warranty of seaworthiness at the time of the charter. (De Pinto v. O’Donnell Transportation Co., 293 N. Y. 32; Cullings v. Goetz, 256 N. Y. 287; Socony-Vacuum Co. v. Smith, 305 U. S. 424; The Arizona Anelich, 298 U. S. 110; The Max Morris, 137 U. S. 1; Mahnich v. Southern S. S. Co., 321 U. S. 96; The Osceola, 189 U. S. 158; Rainey v. N. Y. & P. S. S. Co., 216 F. 449; Connors v. King Line, Limited, 98 App. Div. 261.) II. The fact that the charter constitutes a demise does not interfere in any respect with the obligation of the owner to furnish a seaworthy boat at the time of the chartering. A demise does not* extinguish the owner’s duty to warrant seaworthiness. (Seas Shipping Co. v. Sieracki, 328 U. S. 85; Work v. Leathers, 97 U. S. 379; Haulenbeek v. Hunt, 49 App. Div. 47; Auten v. Bennett, 88 App. Div. 15; Wilson v. Griswold, 30 Fed. Cas. No. 17,806, 9 Blatchf. 267; Cullen Fuel Co. v. Hedger Co., 290 U. S. 82; .The Sagamore, 300 F. 701; New York, N. H. & H. R. R. v. Delaware, L. & W. R. R. Co., 23 F. 2d 487; Dempsey v. Downing, 11 F. 2d 35; Penn Builders Supply Co. v. Braeburn Steel Co., 274 F. 794; The Harper, 42 F. 2d 161.) III. The complaint states a good cause of action on common-law liability. (MacPherson v. Buick Motor Co., 217 N. Y. 382; Cahill v. Inecto, Inc., 208 App. Div. 191; Ultramares Corp. v. Touche, 255 N. Y. 170; Seas Shipping Co. v. Sieracki, 328 U. S. 85; Connors v. King Line, Limited, 98 App. Div. 261; Cook v. N. Y. Floating Dock Co., 1 Hilton 436; Coughtry v. Globe Woolen Co., 56 N. Y. 124; Priolo v. Southard W. & T. Co., 198 N. Y. 528; Devlin v. Smith, 89 N. Y. 470; Murphy v. Rochester Tel. Co., 208 App. Div. 392; Swords v. Edgar, 59 N. Y. 28; Junkermann v. Tilyou Realty Co., 213 N. Y. 404.)
   Desmond, J.

Plaintiff’s complaint alleges that he, while employed by a corporation other than defendant and while boarding, by defendant’s invitation, a derrick boat owned by defendant but chartered to plaintiff’s employer, was injured when part of the deck or side of the craft gave way. The part of the boat which collapsed had been, according to the complaint, allowed by defendant to be and remain in an unsafe condition for a long time before the accident. Defendant served its answer, then moved on affidavits for summary judgment dismissing the complaint. The motion was denied. The Appel-. late Division affirmed the order but granted defendant leave to appeal to this court, certifying questions which call for a decision from us as to whether or not defendant was, as matter of law, entitled to judgment of dismissal.

From the pleadings, the moving affidavits and the countering affidavits,- there emerges a picture, complete and undisputed for present purposes, of the relation between, the parties and the cause of this injury. Plaintiff, employed by a sand and gravel company, had gone to work on the vessel when his employer chartered it from defendant, about five months before the accident. The “ wearing strip ” which broke or collapsed when plaintiff stepped upon it, was a sort of outside planking around the craft and was in bad condition when plaintiff’s employer took possession under the charter.

The charter, which was in writing, recited that the hiring was on a “ daily bare boat ” basis. It required the charterer (plaintiff’s employer) to make at its expense “ all repairs and changes both to hull and machinery ” and, at the end of the charter period, to return the craft to defendant in as good condition as when taken, ordinary wear and tear excepted. The derrick boat had no motive power (see Brooklyn v. Connell, 225 N. Y. 503, 505). . It is entirely clear, if not conceded, that this was a demise charter, one where.the entire control and possession of the vessel, and subsequent control over her navigation is surrendered to the charterer ” who thus becomes her “ special owner ” (Leary v. United States, 14 Wall. [U. S.] 607, 611). Such a charterer is clothed with “ the character or legal responsibility of ownership ” (Reed v. United States, 11 Wall. [U. S.] 591, 601) and is the owner for the voyage without any sale or purchase of the ship (United States v. Shea, 152 U. S. 178, 186, cited in Auten v. Bennett, 183 N. Y. 496, 501). Such a pro hac vice ownership, we think,, casts all responsibility onto the charterer, and makes it impossible to hold defendant, the actual owner, liable here.

It is clear that if we were governed by common-law rules defendant, as an owner long out of possession, would have no legal responsibility for the perilous condition (Mayor of Albany v. Cunliff, 2 N. Y. 165, 181; Kilmer v. White, 254 N. Y. 64; Culling s v. Goetz, 256 N. Y. 287; see Caldarola v. Moore-McCormack Lines, 295 N. Y. 463). Plaintiff, however, seeks support in the law maritime, for his theory of action. “ The complaint ” argues plaintiff’s brief, states g good cause of action * * * on account of its [defendant’s] breach of its requisite warranty of seaworthiness at the time of the charter.” There is, of course, no question but that, at" maritime law, the owner ” of a ship impliedly but absolutely covenants that she is seaworthy for her intended voyage (Scarf v. Metcalf, 107 N. Y. 211; The Osceola, 189 U. S. 158). But it does not follow that the actual owner, hiring out his ship and surrendering all possession and control, remains, nonetheless, liable on that implied covenant to third parties, with whom he is not in privity. None of the cases go nearly that far and there is much authority, direct or suggestive, the other way.

The cases pressed upon us by plaintiff deal with other situations. Seas Shipping Co. v. Sieracki (328 U. S. 85), while it enlarged the category of those to whom an owner owes the duty, had to do with the liability of an owner actually operating the vessel, not an owner out of possession, like defendant. Work v. Leathers (97 U. S. 379), Cullen Fuel Co. v. Hedger Co. (290 U. S. 82) and Pendleton v. Benner (246 U. S. 353) were suits by charterers against actual owners, on the latter’s implied contract with the former to furnish ships seaworthy for the intended voyages or services. De Pinto v. O’Donnell Transportation Co. (293 N. Y. 32) is not in point since there the owner apparently abandoned, on the trial, its contention that it was free from liability because the charter amounted to a demise. A probable reason for that change of position in the Be Pinto case is found in the proof in that record that the actual owner, though out of possession, was still under an express contractual duty to inspect and repair. Nor are the in rem cases (such as The Spokane, 294 F. 242, certiorari denied 264 U. S. 583, or The Arizona v. Anelich, 298 U. S. 110) helpful, since it is undisputed that the personified- ship itself, as distinguished from her owner remains liable in rem regardless of ownership, possession or charter.

So much is said in the briefs about Seas Shipping Co. v. Sieracki (supra) that we add a further comment thereon. The Supreme Court’s opinion carefully pointed out (328 U. S. at p. 89) that the precise question was “ whether the shipowner’s obligation of seaworthiness extends to longshoremen injured while doing the ship’s work aboard but employed by an independent stevedoring contractor whom the owner has hired to load or unload the ship.” The court announced that the humanitarian policy of the unseaworthiness rule is not to be “ confined to seamen who perform the ship’s service under immediate hire to the owner, but extends to those who render it with his consent or by his arrangement.” In the present case there was no relationship whatever between plaintiff and defendant. Plaintiff rendered no service, direct or indirect, to defendant, and defendant had nothing to do with plaintiff’s presence on the derrick boat (the allegation in the complaint that plaintiff “ was invited ” by defendant to go upon the boat does not mean, it is conceded, an actual or express invitation). Further on in the opinion in the Sierachi case, the Supreme Court said that the seaworthiness guaranty extends to persons like stevedores, intermediately employed ” to do the traditional work of seamen, and that the owner’s “ consent to performance of the service ” defines the boundary of the class to whom the duty is owed. The only “ owner ” in our case who consented to plaintiff’s presence on the ship, or employed him, directly or “ intermediately ”, was the pro hac vice owner, the demise charterer, not defendant. Finally, at page 97 of its opinion, the Supreme Court held that the liability for Sieracki’s accidental injuries arose as an incident of performing the ship’s service with the owner’s consent. ’ ’ That could not validly be applied to defendant here.

A charterer under a demise charter, that is, a charterer who is in full command and custody of the ship, is the owner pro hac vice with all the rights and obligations of an owner (Leary v. United States, supra; Scarf v. Metcalf, 107 N. Y. 211, 217, supra; see Hagar v. Clark, 78 N. Y. 45, 50). Such a charterer is the u owner of the ship for all intents and purposes ” (see Auten v. Bennett, supra, 183 N. Y. at p. 503). Liability for unseaworthiness is imposed upon the “ owner ” but in the case of a demise charter, it is the charterer who is the owner. That was the view taken in Bárbaro v. Auditore Contracting Co. (215 App. Div. 595, 601) where the court said, discussing liability to an injured longshoreman, for an unsafe winch, that the “ duty [to keep the appliance safe] cannot, in my opinion, be upon both the owner and the charterer.” The court, in Barbaro v. Auditor e Contracting Co. (supra), went on to say that if this charter was a demise, then the liability was the charterer’s only, otherwise it was the actual owner’s responsibility. The Barbaro ease was cited with approval in Kuhn v. City of New York (274 N. Y. 118, 131) where a charterer was absolved from responsibility for a ship’s condition, because that particular charterer lacked full possession and control. Presumably if that charterer had had such possession and control under its contract with the true owner, then it and not the true owner would have been answerable. The same idea is at least suggested in Judge Pound’s opinion in Barnevo v. Munson Steamship Lime (239 N. Y. 486,490) and by our decision in Lloyd v. Hedger Transportation Corp. (270 N. Y. 617).

. The English authorities, too, say that a chartering owner, divesting himself of control, divests himself also of liability (see Baumwoll v. Furness, 62 L. J. [Q. B.] 201, [1893] A. C. 8, and comment thereon at page 275 of the seventh edition of Maclaehlan on Merchant Shipping).

Very much in point, we think, is Matter of New York Dock Co. (61 F. 2d 777) where a claimant’s injury resulted from an unseaworthy condition which had existed before the pile driver had been chartered to one Converse by New York Dock Company. Said the Second Circuit Court of Appeals: “ Whatever the legal obligations of the New York Dock Company, under the charter or otherwise, may be to Converse, this claimant must look for indemnity solely to his employer, Converse, who had the entire control of the pile driver.” The Circuit Court noted that the defect there was not a hidden one, and that the charterer was under a contractual obligation to put the pile driver in shape for use, and so the court did not find it necessary to say whether or not, under other circumstances, it would adopt the rule of MacPherson v. Buick Motor Co. (217 N. Y. 382) as to “ liability at large for latent defects which make things dangerous instrumentalities which one supplies to be used without test or change * * * ”. A more recent decision in another circuit is Vitozi v. Balboa Shipping Co. (69 F. Supp. 286 [District of Massachusetts]). The holding of that case was that the general or actual owner of a vessel was not liable to a longshoreman for injuries caused by the unseaworthy condition of the ship, since the obligation of seaworthiness was on the charterer, who, under charter party provisions, was the apparent or special owner. Discussing Seas Shipping Co. v. Sieracki {supra) the District Judge in the Vitozi case said that nothing in the Sieracki opinion “ intimates that the obligation of seaworthiness of a ship is imposed on anyone except the owner in control of the ship.”

In all of the above we have been treating the present case as one brought under the “ Osceola ” doctrine for unseaworthiness, not in tort for negligence. The maritime law, of course, gives recovery for negligence in appropriate cases. But, looking at the facts in the light most favorable to plaintiff, we find here no breach of duty by defendant and so there was no negligence (see Flat-Top Fuel Co. v. Martin, 85 F. 2d 39, 41, certiorari denied 299 U. S. 585 and Cullen Fuel Co. v. Hedger Co., 62 F. 2d 68, affd. 290 U. S. 82; see, also, the discussion in the New York Dock Co. case, supra, as to negligence as distinguished from unseaworthiness).

The orders should be reversed and the motion for summary judgment dismissing the complaint granted, with costs in all courts. The first certified question should be answered in the negative, the second certified question in the affirmative.

■ Conway, J.

(dissenting). The question presented involves an oral demise charter, confirmed by letter, of a nonpower boat in New York Harbor while in an unseaworthy condition and as a result thereof, the injury of a seaman employed by the charterer. The demise was on a daily bare-boat basis with all repairs to be made by the charterer. The seaman sued the owner alone and it is urged in defense that under a doctrine akin to our decision in Cullings v. Goetz (256 N. Y. 287) liability for the injury suffered may be imposed only upon the charterer since he had become the owner pro h-ac vice for the term of the charter. There is no question here of any negligence by the charterer in the handling of the boat or its equipment. The unseaworthiness had existed for a period of approximately one year prior to the charter and continued until plaintiff’s resultant injury.

In The Osceola (189 U. S. 158, 175) the rule as to unseaworthiness was clearly stated: “ That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship. Scarff v. Metcalf, 107 N. Y. 211.” (Emphasis supplied.) For a long period courts proceeded upon the basis that liability for unseaworthiness flowed from contract but it has now been authoritatively settled in the recent case of Seas Shipping Co. v. Sieracki (328 U. S. 85) that it is absolute and nondelegable. Even prior to that -time the Supreme Court of the United States in Cullen Fuel Co. v. Hedger Co. (290 U. S. 82, see, also, opinion of Swan, C. J., below in 62 F. 2d 68) had held that the OAvner might not limit liability on his personal Avarranty of seaworthiness of a deck scow as against the charterer. .In other words that his liability to the charterer was in personam and unlimited. The facts in that case are very similar in some respects to those in the instant one. The petitioner there was the owner of a scow which it chartered at a fixed daily rate of hire arranged orally by telephone. , The scow was chartered by the respondent to lighter ore from shipside in New York harbor to the plant of the consignee of the ore. The day following the demise, while being loaded from the ship, £he scow capsized, dumped her cargo, and damaged an adjacent wharf and vessel. Suits ensued, one of them by the respondent as bailee of the cargo, against the petitioner as owner of the scoav. Limitation of liability Avas sought by the petitioner, but the district court refused a decree for limitation, finding that the scow was unseaworthy at the time of the demise.” (290 U. S. at p. 87.) Three points Avere there decided: 1. That the owner’s contract of warranty was personal; 2. that the respondent was entitled to recover as bailee of the cargo although the owner had made no contract and had no contract relations whatsoever with the cargo owner and although there was no allegation by the respondent of liability over to the cargo owner, and 3. that the warranty of seaworthiness was implied from the circumstances of the parties and the subject matter of the contract and could only be negatived by express covenant — that it was as much a part of the contract as any express stipulation (p. 88). The briefs in that case show that it was urged unsuccessfully by the petitioner that it had made no contract for the carriage of the cargo and that the charter was a demise whereby the charterer became the owner pro hac vice of the boat. It was likewise argned unsuccessfully (1) that the warranty was only as to the seaworthiness of the boat at the time of its delivery and was not continuous, and (2) that there was no implied warranty by the owner of the boat to the owner of the cargo but that there was an implied warranty of seaworthiness to the cargo owner by the charterer.

It must be noted that the Sieracki case (supra) involved a stevedore and not a seaman and therefore went further than is necessary here where a seaman is involved. Neither reason nor cited authority requires us to hold that the liability of an owner for unseaworthiness exists in favor of the charterer and even of a bailee of a cargo and yet does not extend to a seaman in the employ of the charterer. As was said in the Sieracki case, the warranty of seaworthiness imposes an absolute duty, and thus absolute liability, to all who come within the range of its humanitarian policy. It seems to me that the seaman is more within the range of that policy than the charterer and cargo bailee in the Cullen Fuel Co. case (supra). The following from the Sieracki case (pp. 93-94) well expresses the reason for and the scope of this policy: “ Because rationalizing the liability as one attached by law to the relation of shipowner and seaman, where this results from contract, may have been thought useful to negative the importation of those common-law tort limitations does not mean, however, that the liability is itself contractual or that it may not extend to situations where the ship’s work is done by others not in such am immediate relation of employment to the owner. That the liability may not be either so founded or so limited would seem indicated by the stress the cases uniformly place upon its relation, both in character and in scope, to the hazards of marine service which unseaworthiness places on the men who perform it. These, together with their helplessness to ward off such perils and the harshness of forcing them to shoulder alone the resulting personal disability and loss, have been thought to justify and to require putting their burden, in so far as it is measurable in money, upon the owner regardless of his fault. Those risks are avoidable by the owner to the extent that they may result from negligence. And beyond this he is in position, as the worker is not, to distribute the loss in the shipping community which receives the service and should bear its cost.

These and other considerations arising from the hazards which maritime service places upon men who perform it, rather than any consensual basis of responsibility, have been the paramount influences dictating the shipowner’s liability for unseaworthiness as well as its absolute character. It is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by conceptions of negligence nor contractual in character. Mahnich v. Southern S. S. Co., supra [321 U. S. 96] ; Atlantic Transport Co. ,v. Imbrovek, 234 U. S. 52 [34 S. Ct. 733, 58 L. ed. 1208, 51 L. R. A. (N. S.) 1157] ; Carlisle Packing Co. v. Sandanger, supra [259 U. S. 255]. It is a form of absolute duty owing to all within the range of its humanitarian policy.”

It seems clear from that and other language in the' opinion in the Sieracki case that this humanitarian policy of the law is not to be confined to seamen or stevedores who perform the ship’s service under immediatae hire to the owner but extends to those who render it with his consent or by his arrangement or to intermediary employers such as charterers or master stevedores. This is made more clear when we consider that the owner of a vessel who charters her “ is bound to see that she is seaworthy and suitable for the service in which she is to be employed. If there be defects known, or not known, he is not excused.” That is his obligation to the charterer. (Work v. Leathers, 97 U. S. 379, 380.) The liability under the warranty is thus clearly not dependent on the owner’s occupation and control but upon the existence of unseaworthiness at the time of the charter. This differs from our State court rules applicable to a lease or demise of real property. This is„ not to say, of course, that there was not liability here also to the seaman on the part of the charterer. The liability was several. (Seas Shipping Co. v. Sieracki, supra, at p. 89.)

The cases decided prior to the Sieracki and the Cullen Fuel Go. cases (supra) are not very helpful. However, no case has been cited to us in this State which holds the law to be as the defendant here contends. On the. contrary, the matter came before us in De Pinto v. O’Donnell Transportation Co. (293 N. Y. 32). In that case the owner had chartered a nonpower boat to one Dwyer. De Pinto, a stevedore, while working on the boat, stepped on a hatch cover which became displaced causing him to fall into the hold. His widow brought action against the owner and charterer Dwyer and the matter of the warranty of seaworthiness was litigated as between the defendants and submitted to the jury. The jury rendered a verdict against the .owner and in favor of the charterer. In our opinion we said (p. 36): 11 The evidence amply supports the finding by the jury that there was negligence on the part of the defendant-appellant and freedom from contributory negligence on the part of the deceased.”

In Caldarola v. Moore-McCormack Lines (295 N. Y. 463), the plaintiff, a longshoreman, sued a defendant which had neither ownership, possession nor control of the vessel. The case is not applicable here and the question of unseaworthiness was not presented to us.

The judgment should be affirmed and the first question certified answered in the affirmative and the second in the negative.

Loughran, Ch. J., Lewis, Thacher, Dye and Fuld, JJ., concur with Desmond, J.; Conway, J., dissents in opinion.

Orders reversed, etc.


source: Caselaw Access Project

author: Fuld, J.

license: Public Domain

text:
    John Flaherty, an Infant, by Delia Flaherty, His Guardian ad Litem, et al., Respondents, v. State of New York, Appellant.
    (Claim No. 26139.)
    Argued April 9, 1947;
    decided May 22, 1947.

      Nathaniel L. Goldstein, Attorney-General (John R. Davison and Wendell P. Brown of counsel), for appellant.
    I. The assault was beyond the realm of risk reasonably to be perceived and the State should not be held liable therefor. (Excelsior Ins. Co. v. State of New York, 296 N. Y. 40; Calabria v. State of New York, 289 N. Y. 613; Hall v. New York Telephone Co., 214

      N. Y. 49; Flaherty v. Metro Stations, Inc., 202 App. Div. 583, 235 N. Y. 605; Beickert v. G. M. Laboratories, 242 N. Y. 168; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339.) II. The proximate cause of claimant’s injuries was an intervening, vicious and criminal assault. (Saugerties Bank v. Delaware & Hudson Co., 236 N. Y. 425; Ragone v. State of New York, 123 Misc. 48, 211 App. Div. 573, 243 N. Y. 607; Ring v. City of Cohoes, 77 N. Y. 83.)

      Esther R. Brause and Leonard Acker for respondents.
    I. Claimant established by a fair preponderance of the proof that the school authorities failed properly to protect him. (People v. Pikunas, 260 N. Y. 72; People v. Lewis, 260 N. Y. 171; Garthe v. Ruppert, 264 N. Y. 290; Shannahan v. Empire Engineering Corp., 204 N. Y. 543; Mink v. Keim, 291 N. Y. 300; Sadowski v. Long Island R. R. Co., 292 N. Y. 448; Schwier v. New York Central & H. R. R. Co., 90 N. Y. 558; Parkas v. Parkas, 265 App. Div. 521; Vollmer v. Automobile Fire Insurance Co., 207 App. Div. 67; Jarcho Bros., Inc., v. State of New York, 179 Misc. 795; Day v. Johnson, 265 App. Div. 383; Tierney v. New York Dugan Bros., Inc., 288 N. Y. 18; Gerbino v. Greenhut-Siegel-Cooper Co., 165 App. Div. 763.) II. The State is liable for its failure to provide adequate supervision to safeguard claimant. (Bloom v. Jewish Board of Guardians, 286 N. Y. 349; Sheehan v. North Country Community Hospital, 273 N. Y. 163; Jackson v. State of New York, 261 N. Y. 134; Martindale v. State of New York, 269 N. Y. 554; Callahan v. State of New York, 179 Misc. 781, 266 App. Div. 1054; Luke v. State of New York, 253 App. Div. 783; Curley v. State of New York, 148 Misc. 336; Wilcove v. State of New York, 146 Misc. 87; Gould v. State of New York, 181 Misc. 884; Jones v. State of New York, 267 App. Div. 254; Weihs v. State of New York, 267 App. Div. 233; Joachim v. State of New York, 180 Misc. 963; Herman v. City of Buffalo, 214 N. Y. 316.) III. The acts of supervision in the cottage at night were not unauthorized. IV. The State’s negligence was the cause of claimant’s injuries. (Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Dillon v. Rockaway Beach Hospital, 284 N. Y. 176; Cornbrooks v. Terminal Barber Shops, Inc., 282 N. Y. 217.) V. The school authorities should have anticipated the assault. (Zurich General Accident & Liability Ins. Co. v. Childs Co., 253 N. Y. 324; Robert v. United

      States Shipping Board Emergency Fleet Corp., 240 N. Y. 474; Hogan v. Comack Sales, Inc., 245 App. Div. 216, 271 N. Y. 562; Slavin v. State of New York, 249 App. Div. 72.) VI. Because there had been no previous assault like that committed is of little import. (Barrett v. Lake Ontario Beach Improvement Co., 174 N. Y. 310; Cleveland v. New Jersey Steamboat Co., 125 N. Y. 299; Reid v. New York & New Jersey Telephone Co., 151 App. Div. 96.) VII. Because the assault was a criminal act does not relieve the State of liability. (Ring v. City of Cohoes, 77 N. Y. 83; Saugerties Bank v. Delaware & Hudson Co., 236 N. Y. 425; Ragone v. State of New York, 123 Misc. 48, 211 App. Div. 573, 243 N. Y. 607; Green Bus Lines v. Ocean Accident & Guaranty Corp., 287 N. Y. 309; Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347; Putnam v. Broadway & Seventh Ave. R. R. Co., 55 N. Y. 108; Kearns v. Brooklyn & Queens Transit Corp., 254 App. Div. 779; De Haen v. Rockwood Sprinkler Co., 258 N. Y. 350; Clark v. New York Hotel Statler Co., 223 App. Div. 237.)
   Fuld, J.

Claimant and one Anthony Sarrentino were inmates of the New York State Training School for Boys at Warwick, New York, a rehabilitation institution to which are committed delinquents not over the age of sixteen years (Social Welfare Law, §§ 411-440). The two boys, who were housed in the same cottage dormitory, had originally been friends, but, with the passage of time, they had become involved in a series of quarrels with each other. Ultimately, goaded by the taunts of his fellows, Sarrentino challenged claimant to a fight with boxing gloves, in accordance with the usual custom at the school. Sarrentino did not appear at the time and place appointed for the bout but, instead, apparently busied himself with the task of removing from the fire extinguisher located in the cottage a vial containing acid. During the same day he poured some of that acid on claimant’s pillow, evidently under the belief that claimant would suffer by simply coming in contact with the substance on the pillow. Claimant observed the hole, but did not know its source or cause. With the consent and knowledge of a cottage master, he substituted another pillow. Some hours later, at about half past one in the morning, while all in the dormitory slept, Sarrentino stole from his bed, obtained the cylinder from the place where he had concealed it, and poured the acid over the sleeping claimant’s face and head. Serious and painful injuries naturally ensued.

Asserting that the State had failed to take steps to protect him against Sarrentino and had been lax, generally, in its supervision over the institution’s inmates, claimant sued in negligence. The Court of Claims, finding for defendant, dismissed the claim. The Appellate Division reversed and held the State liable. That judgment may not stand. The case falls squarely within our decision in Excelsior Ins. Co. of N. Y. v. State of New York (296 N. Y. 40).

The law is clear; it is only in its application that difficulty is encountered. The State — just as any other party (Court of Claims Act, § 8; L. 1939, ch. 860) —is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived. (See Excelsior Ins. Co. of N. Y. v. State of New York, supra; Calabria v. State of New York, 289 N. Y. 613; Martindale v. State of New York, 269 N. Y. 554; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 344.) Here, as in the Excelsior Insurance Co. case Csupra, at p. 45), “ we fail to find basis for the imposition of liability upon the State. The authorities * * * could not reasonably have anticipated ” — from their past experience — an act so diabolical in its viciousness as that which Sarrentino perpetrated upon Flaherty.

Although undoubtedly aware of the presence of acid in the fire extinguisher, the school authorities had no reason to anticipate its use as an instrumentality of assault for it had never before been so used. Neither the inmates nor the employees — save only the official charged with the care of the extinguishers — had ever been advised either as to their contents or as to the method of refilling them. The presence of a hole in his pillow was no warning that someone intended to injure claimant. Sarrentino’s failure to appear for the fight was no indication that he planned to harm him. Nor is there basis for concluding that the State was derelict in its supervision of the school or of the inmates. Indeed, this particular institution, the record indicates, has a higher ratio of “ supervisors to boys ” than any other training school in the United States. Short of constant guarding and watching — unreasonable under the circumstances— the authorities could not have prevented so furtive and secret a deed. As we said in the Excelsior case, the State is held only to a duty of taking precautions against those risks 6 reasonably to be perceived ’ ”, and, since here no hazard was apparent, Sarrentino’s act cannot give rise to liability against it (296 N. Y., at p. 46).

A contrast most apt is furnished by Scolavino v. State of New York (297 N. Y. 460), which we also decide today. In that case, a vicious assault by one inmate of a mental hospital upon another was — against the background of the institution’s experience — reasonably to be foreseen. The duty being thus defined, the failure to take the precautions dictated by reason rendered the State liable for the resulting injury.

The judgment of the Appellate Division should be reversed and that of the Court of Claims affirmed, with costs in this court and in the Appellate Division.

. Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb and Dye, JJ., concur.

Judgment accordingly.


author: Desmond, J.

text:
    In the Matter of Herman Friedel, Respondent, against The Board of Regents of the University of the State of New York, Appellant.
    Argued April 18, 1947;
    decided May 22, 1947.

      Nathaniel L. Goldstein, Attorney-General {Henry 8. Manley and Wendell P. Brown of counsel), for appellant.
    There was no abuse of discretion in the limitations imposed upon cross-examination of the paid investigators. (Matter of Epstein v. Board of Regents, 295 N. Y. 154.)

      Harris B. Steinberg and R. L. Cherurg for respondent.
    I. Respondent was deprived of substantial and fundamental rights by reason of the improper restrictions placed on his cross-examination of the paid investigators. Cross-examination is a fundamental right and not merely a rule of evidence which may be disregarded in administrative hearings. (Matter of Hilfer v. Board of Regents, 283 N. Y. 304; Edwards v. United States, 312 U. S. 473; Alford v. United States, 282 U. S. 687; Interstate Commerce Comm. v. Louisville & Nashville R. R. Co., 227 U. S. 88; Matter of Heaney v. McGoldrick, 286 N. Y. 38; Matter of Greenebaum v. Bingham, 201 N. Y. 343; Ott v. Board of Reg’n in Medicine, 276 Mass. 566; Ex Parte Ung King Ieng, 213 F. 119; O’Callahan v. Dermedy, 197 Iowa 632; Wichita R. &. Lt. Co. v. Court of Industrial Rel’ns, 113 Kan. 217; Powhatan Mining Co. v. Ickes, 118 F. 2d 105.) II. The excluded cross-examination consisted of proper and important lines of inquiry, and the Appellate Division correctly held that its exclusion was prejudicial error. (Shuttleworth v. Shuttleworth, 255 App. Div. 440; People v. Marano, 192 App. Div. 432, 232 N. Y. 569; People v. Conroy, 153 N. Y. 174; People v. Webster, 139 N. Y. 73; People v. Eckert, 2 N. Y. Crim. Rep. 470; Shepard v. Parker, 36 N. Y. 517; People v. Blakeley, 4 Park. Cr. Rep. 176; Alford v. United States, 282 U. S. 687; Edwards v. United States, 312 U. S. 473; People ex rel. Packwood v.
      Riley, 232 N. Y. 283; People ex rel. Fallon v. Wright, 7 App. Div. 185, 150 N. Y. 444; Rex v. Anderson, 3 D. L. R. 317.)
   Desmond, J.

Petitioner, a physician, was, after a trial conducted under the procedures described in section 1265 of the Education Law, found guilty of two violations of subdivision 2 of section 1264 of that Law (undertaking or engaging to perform criminal abortions), and suspended from the practice of medicine for six months. The hearings in the matter were held, pursuant to statute, before a subcommittee of the Committee on Grievances, a body of physicians (see § 1265) and the suspension was by the respondent Board of Regents, which approved the report and findings of the committee. On appeal to the Appellate Division, Third Department, that court reversed the determination and remitted the matter to the Board of Regents. The Appellate Division’s Per Curiam opinion, and the concurring memorandum of one of the justices, : how that the reversal was because of alleged illegal restriction, by the subcommittee, of the cross-examination by petitioner’s counsel of the board’s paid investigators, who were the principal witnesses against petitioner. The Board of Regents appealed to this court, stipulating for order absolute in the event of affirmance, under subdivision 3 of section 588 of the Civil Practice Act. (See Matter of Fpstein v. Board, of Regents, 295 N. Y. 154, 157.)

No assertion is made here that the proof was inadequate to support the determination of guilt. The whole question is as to the legality of rulings made by the subcommittee, which rulings had the effect of preventing or restricting cross-examination of the investigators, in certain particulars. The Appellate Division opinions do not disclose just which ruling of the subcommittee that court considered erroneous. However, counsel in their briefs here list for us the objections to cross-examination which were sustained at the hearings, and we take it that the Appellate Division found material error in some of those rulings.

The curtailed cross-examinations were those in which petitioner attacked the evidence given by four women, part-time employees of the State Education Department, who testified to two instances in which petitioner, according to the witnesses, agreed to perform illegal abortions. Their versions of the facts were, at the hearings before the subcommittee, strongly attacked by contrary proof and by extended and searching cross-examination. In the course of that cross-examination the chairman of the subcommittee sustained objections to questions which sought to elicit from one or the other of the investigator-witnesses answers to the following:

1. Whether the witnesses went to petitioner’s office and made the alleged arrangement with him in order to “ trap ” petitioner or to get him to “ commit himself with respect to an abortion ”? The witnesses had testified in great detail as to their employment by the State Education Department, their instructions from their superiors, the methods they used, and their purposes in approaching petitioner. Answers to the stricken questions would merely have put labels on conduct already sufficiently described, and so would have added nothing to the record.

2. Whether the witnesses knew that if they brought in such evidence there would be a likelihood of punishment to be meted out to the Doctor ”? We make the same comments as in No. 1 above.

3. What were the names of three physicians, not connected with this case, who had been investigated by one of the witnesses in 1943? The triers of the fact were well within their rights in preventing any such disclosure (see Great Western Turnpike Co. v. Loomis, 32 N. Y. 127; La Beau v. People, 34 N. Y. 223).

4. Who was the physician (not otherwise connected with the case) who furnished one of the investigators with a urine sample used by the investigator as part of the deception practised by her on petitioner? We think this effort to get the name of that other physician was properly thwarted by the subcommittee, for the reasons given in No. 3 above, and under the subcommittee’s discretionary power to limit cross-examination, to which power we shall refer below.

5. Whether one of the witnesses had been engaged to be married to her present husband before her divorce from her former husband, and as to whether the husband of another witness knew that she permitted the physicians under investigation to make examinations of her person? The first question was properly stricken under the rule of the La Beau case {supra) as being cross-examination on matters degrading to the witness. We think both questions were attempted incursions into the marital relations of the witnesses, matters surely not so material to the transactions under investigation as to make it error of law to exclude the questions.

We think there was no error of law in any of the above-listed rulings of the subcommittee. Therefore, there could be no reversal by the Appellate Division, which, under the oft-repeated rule, may annul such an administrative determination for errors of law only (Matter of Epstein v. Board of Regents, supra; Matter of Miller v. Kling, 291 N. Y. 65, 69). The disputed rulings by this subcommittee were all within that body’s discretion, and the Appellate Division may not overrule the exercise of such administrative discretion (Matter of Grade Crossings [N. Y. C. R. R. Co.], 255 N. Y. 320). We do not mean to hold (and did not hold in Matter of Epstein v. Board of Regents, supra) that the right to cross-examine is less when the hearing is before such a board than when it is before a court (see Matter of Greenebaum v. Bingham, 201 N. Y. 343, 347). Cross-examination of adverse witnesses is a matter of right in every trial of a disputed issue of fact (Alford v. United States, 282 U. S. 691). That right has always been enforced by this court, and by its predecessors, from earliest times (Greene v. Willis, 1 Wend. 78; Kissam v. Forrest, 25 Wend. 651). That right, of course, can be exercised before administrative fact-finding tribunals, and denial thereof by such a tribunal is error of law (People ex rel. Mayor v. Nichols, 79 N. Y. 582, 588; Matter of Greenebaum v. Bingham, supra; Matter of Pachwood v. Riley, 232 N. Y. 283; Int. Commerce Comm. v. Louisville, 227 U. S. 88). But once the right has been accorded, the extent of cross-examination rests largely in the discretion of the tribunal, whose exercise thereof is not reviewable unless abused (White v. McLean, 57 N. Y. 670, 671; Rehberg v. Mayor of City of N. Y., 91 N. Y. 137; McGuire v. People, 48 How. Prac. 517; Langley v. Wadsworth, 99 N. Y. 61, 63; People v. Braun, 158 N. Y. 558, 569). Such is the general rule throughout the United States (see American Law Institute’s Model Code of Evidence, rule 105; 32 C. J. S., Evidence, § 548), although the English rule seems to allow the trial tribunal less leeway (Regina v. Overton, Car. & Mar. 655, cited in Rex v. Anderson, [1938] 3 D. L. R 317, 320). It is clear, in any event, that, before administrative tribunals as before courts, in the State, the right of the party is no more than “ to cross-examine * * * to a reasonable extent ” (Matter of Greenebamn v. Bingham, supra, 201 N. Y. 343, 347). Unless there is a plain abuse of discretion, limitation is for the quasi-judicial tribunal, and the courts may not revise such a reasonable limitation, any more than they can revise any other such discretionary doings.

The record before us of the hearings before the subcommittee, in this case, show that there was lengthy cross-examination as to the facts of the alleged illegal conduct of the petitioner, and further lengthy cross-examination, intended to test and attack the credibility of the witnesses, as to collateral matters. The subcommittee, as the record shows, was not impatient or arbitrary. It did not so much cut short the inquisition, as try to keep it out of arid areas, unlikely to produce anything helpful. Its rulings, complained of here, were such as any careful judicial officer might make, in order to keep out of the case information as to the private lives of the witnesses, scandalous or embarrassing matter about other persons not involved in the case, and mere characterizations of facts already abundantly displayed. So to confine cross-examination is the prerogative of the Trial Judge or hearing officer. We see no abuse thereof in this record.

The order of the Appellate Division should be reversed and the determination of the Board of Regents confirmed, with costs in this court and in the Appellate Division.

Lottghran, Oh. J., Lewis, Conway, Thacheb, Dye and Ftjld, JJ., concur.

Order reversed, etc.


text:
    In the Matter of John Clausi, Appellant. Rose A. Fuscardo, Respondent.
    Submitted April 14, 1947;
    decided May 22, 1947.

      John E. Egan and Chris J. Flanagan for appellant.

      Frederick H. Stang for respondent.
    In this proceeding of a criminal nature, one appeal has been had, and, since no certificate pursuant to subdivision 3 of section 520 of the Code of Criminal Procedure, permitting a further appeal has been obtained, the appeal to the Court of Appeals does not lie. (Commissioner of Public Welfare v. Jackson, 265 N. Y. 469; Matter of Kane v. Necci, 269 N. Y. 13; Commissioner of Public Welfare v. Simon, 270 N. Y. 188; Matter of Drake v. Horan, 173 Misc. 424; Hodson v. Hoff, 291 N. Y. 518; People v. Geffin, 245 N. Y. 75; People v. De Laney, 244 N. Y. 529; People v. Green, 137 App. Div. 763.)
   Fuld, J.

Charging that defendant was the father of her child, complainant instituted filiation proceedings against him, pursuant to the Domestic Relations Law and the Children’s Court Act (L. 1922, ch. 547, as amd.), in the Children’s Court of Ulster County. An order was entered adjudging defendant to be the father and-directing him to pay $5 a week for the child’s support. Upon appeal to the Appellate Division, that court affirmed, one justice dissenting on the ground that certain evidence had been improperly rejected. From that nonunanimous affirmance, defendant has appealed to this court without permission.

Contrary to defendant’s assumption, the appeal does not lie as of right; accordingly, it must be dismissed. That being so, it becomes pertinent to inquire whether leave to appeal must be obtained from a court or from a judge — whether the appeal is controlled by provisions applicable to civil or criminal proceedings, by Civil Practice Act or Code of Criminal Procedure.

A filiation proceeding initiated — as the present was — in a children’s court, pursuant to the Domestic Relations Law, is civil and noncriminal in nature. Confirmation is furnished by the definition of a “ crime ” as well as by the inherent character of a criminal prosecution (Penal Law, § 2; see, also, Hodson v. Hoff, 291 N. Y. 518). Although we have held that a paternity suit is criminal in form (Commissioner of Public Welfare v. Simon, 270 N. Y. 188, 191; Hodson v. Hoff, supra), it must he observed that such statements were made, such rulings announced, in cases brought in the Court of Special Sessions of the City of New York tinder the Inferior Criminal Courts Act — now known as the New York City Criminal Courts Act (L. 1910, ch. 659, as amd.) —and were regulated by the Code of Criminal Procedure. Civil in essence, the proceeding assumes a “ criminal ” form from its surroundings— from the fact that it is tried in a court of criminal jurisdiction. (Cf. People v. Lewis, 260 N. Y. 171.) The Lewis case is illuminative. We there held that, while a juvenile delinquency proceeding commenced, in a children’s court under the Children’s Court Act is noncriminal, it is to be regarded as criminal ” if instituted in a tribunal vested with “ criminal jurisdiction” — such as, for example, the Buffalo City Court or the New York City Special Sessions Court. (See People v. Lewis, supra, pp. 174-176, 177, 178; People v. Fitzgerald, 244 N. Y. 307, 309-311.)

It follows from what we have said that, while a defendant would be required to procure permission from a judge — in accordance with the provisions of the Code of Criminal Procedure (§ 520, subd. 3) —if the filiation proceeding were tried in a court of criminal jurisdiction, defendant in the present case was called upon to obtain leave from the Appellate Division— in compliance with the Civil Practice Act (§ 589, subd. 1, cl. [b]) — because the proceeding had originated in the children’s court. The circumstance that it was the county judge who presided does not render the children’s court a county court, or a part thereof — in which case there could be an appeal as of right (Civ. Prac. Act, § 588, subd. 1, cl. [b]) — for, in Ulster County, the Children’s Court was established, under Constitution and by statute, as a separate and distinct tribunal. (N. Y. Const., art. VI, § 18; Children’s Court Act, §§ 3, 4.)

The appeal should be dismissed, with costs.

Loughkan, Ch. J., Lewis, Conway, Desmond, Thacher and Dye, JJ., concur.

Appeal dismissed.


author: Thacher, J.

text:
    Esta Sidrane, Appellant, v. F. D. R. Realty Corporation, Respondent, et al., Defendants.
    Submitted February 19, 1947;
    decided May 22, 1947.

      Leonard Acker and Emanuel Thebner for appellant.
    I; The letter of October 18, 1938, was an offer looking to a unilateral contract, and could be withdrawn at any time until acceptance by full performance of all acts called for, and the offer was so withdrawn on February 21, 1945. (Persky v. Bank of America National Assn., 261 N. Y. 212; Barber-Greene Co. v. Dollard, Inc., 239 App. Div. 655, 267 N. Y. 545; Machinery Utilities Co., Inc., v. Fry, 224 App. Div. 392; Evans v. 2168 Broadway Corp., 281 N. Y. 34; Agawam Bank v. Strever, 18 N. Y. 502; Picker v. Fitzelle, 60 App. Div. 451; Petterson v. Pattberg, 248 N. Y. 86; M. V. T. Corporation v. Mount Vernon Lodge No. 842, 263 App. Div. 849; Quincy & Co. v. Cities Service Co., 156 Misc. 83, 253 App. Div. 719; Farago v. Burke, 262 N. Y. 229; Mechanics National Bank v. Jones, 76 App. Div. 534,175 N. Y. 518; Ferlazzo v. Riley, 278 N. Y. 289.) II. Defendant defaulted in payment of taxes and so failed to comply with the bank’s offer. (Delaware Trust Co. v. Calm, 195 N. Y. 231; Bailly v. Betti, 241 N. Y. 22; Tobias v. Lissberger, 105 N. Y. 404.; Doxey v. Coates, Bennett & Reidenbach, Inc., 181 App. Div. 207.) III. There is no basis for any estoppel against the bank. (Matter of Guernsey Breeders Co-Op. v. Noyes, 260 App. Div. 240, 284 N. Y. 197; Matter of Wadhams, 249 App. Div. 271; Pagel, Horton & Co., Inc., v. Harmon Paper Co., 236 App. Div. 47.) IV. The bank’s voluntary acceptance of less than that to which it was entitled on some installments of interest did not fix a new rate of interest which controlled future payments. (Guggenheimer v. Geiszler, 81 N. Y. 293; Chelsea Exchange Bank v. Warner, 202 App. Div. 499; Title Guarantee & Trust Co. v. 2846 Briggs Avenue, 283 N. Y. 512; McKenzie v. Harrison, 120 N. Y. 260; Auswin Realty Corp. v. Kirschbaum, 270 App. Div. 334.)

      Solomon Millendorf for respondent.
    Plaintiff failed to establish the allegation of the complaint that defendant was in default. (Moran v. Standard Oil Co., 211 N. Y. 187; Ehren

      worth v. Stuhmer & Co., 229 N. Y. 210; Grossman v. Schenker, 206 N. Y. 466; White v. Hoyt, 73 N. Y. 505; Gillet v. Bank of America, 160 N. Y. 549; Simon v. Etgen, 213 N. Y. 589; Brighton Operating Corp. v. Morrison, 291 N. Y. 6; Gorschen v. Ivan-Reen Realty Corp., 293 N. Y. 794.)
   Thacher, J.

By a series of amendments to the Civil Practice Act beginning August 26,1933 (L. 1933, ch. 793), foreclosure of mortgages for principal defaults was suspended during the emergency. These laws did not impair the mortgagee’s right to foreclose for default in the payment of interest. In this foreclosure action the alleged default upon which foreclosure was sought was nonpayment of interest. The owner of the property interposed a separate defense predicated upon a letter written to it by Brooklyn Trust Company, plaintiff’s assignor, on October 18, 1938, reading as follows:

“ Gentlemen:
Enclosed herewith please find your receipt for the August 1, 1938 principal installment of $175.00 in reduction of the first mortgage covering your property at 4319 13th Avenue, Brooklyn, New York. According to our agreement we shall expect to receive the sum of $275.00 on October 30th, 1938 representing the balance of the August 1, 1938 interest. Also, by the end of this month the second half 1938 taxes are to be paid and the receipted bill exhibited. During the month of November the quarterly interest and the November quarterly principal installments are also to be paid.
"When these terms have been met, the rate of interest will be changed on our records to 4% per annum effective as of August 2nd, 1938. The reduced rate of interest will continue provided the regular $175.00 quarterly installments on the principal are maintained and further provided interest and taxes are paid promptly when due.
Very truly yours,
Johh E. Mohr Vice-President ”.

It was alleged that the defendant paid the installments of principal and interest at 4% up to February 1, 1945, and thereafter tendered to the plaintiff on April 30,1945, $175 on account of principal and mortgage interest at 4% and made a similar tender on July 31,1945, but that the plaintiff refused to accept these tenders and returned the remittances to the defendant. These allegations were established upon the trial, but it also appeared that before the tenders were made the Brooklyn Trust Company on February 21, 1945, had written the Realty Corporation as follows i

11 Gentlemen:
The present arrangement for payment of interest at 4% and $700 per year amortization are hereby cancelled, and we advise that effective .from February 1st, 1945 the interest on the mortgage affecting the captioned premises will be payable at the rate of 6% per annum.
Amortization under Section 1077G of the Civil Practice Act — Laws of the State of New York, will be payable at the rate of 2% per annum quarterly, beginning April 1st, 1945.
You will be billed accordingly.”

By chapter 782 of the Laws of 1941, which became a law on April 27, 1941, amortization at the rate of 1%, payable October 1,1942, and quarterly thereafter, was permitted under the mortgage moratorium statutes, and by chapter 562 of the Laws of 1944 the permissible rate of amortization was increased to 2% after June 30, 1944, which has since been raised to 3% (Civ. Prac. Act, § 1077-g).

Presumably, in writing its letter of February 21, 1945, the mortgagee considered it fair and equitable to ask only what the law allowed on this defaulted mortgage insofar as future payments were concerned, namely interest at 6% and amortization at 2%, but was met with the claim that its leniency in the past had ripened into a binding contract permanently to reduce the interest rate from 6% to 4%.

At Special Term it was held that the bank’s conditional promise to reduce the interest rate “ provided the regular $175.00 quarterly installments on the principal are maintained and further provided interest and taxes are paid promptly when due ” was in effect a continuing offer or series of offers which were to be successively accepted and could be revoked at any time before acceptance. This determination was reversed in the Appellate Division, where it was held that the offer of the bank to accept a reduced rate of interest became a binding contract which the mortgagee could not cancel so long as the owner paid interest and amortization at the reduced rates.

The letter of October 18, 1938, was never acknowledged by the Realty Corporation nor did the Realty Corporation bind itself by any mutual promise at any time. In effect the bank stated its willingness to accept for a time 2% on the face of the mortgage as amortization instead of as interest, interest at 6% having been payable under the terms of the mortgage. This was merely a favor to the debtor. The fact that no time was specified for its continuance confirms mutual understanding that it could be withdrawn at any time the mortgagee chose to withdraw it. Under these circumstances there was no mutuality of obligation which committed the Realty Corporation in any way, (Smith v. Diem, 223 App. Div. 572, affd. 249 N. Y. 590; 1 Restatement, Contracts, §§ 44, 31; 1 Williston on Contracts, §58.) A different phase of the same problem involving a claim that the maturity of a mortgage had been extended by letters written by a mortgagee was presented in Dry Dock Sav. Inst. v. 103 E. 75th St. Apartments, Inc. (296 N. Y. 280).

Conclusion follows that the separate defense interposed to this action of foreclosure was bad as matter of law.

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

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

Judgment accordingly.


author:
      Per Curiam.
     Conway, J.

text:
    In the Matter of the Claim of William Dyviniek, Respondent, against Buffalo Courier Express Company, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued February 25, 1947;
    decided May 22, 1947.

      Morgan F. Bissellé and Warren G. Tucker for appellants.
    I. Contraction of the disease of typhoid fever is not an accidental injury within the purview of the Workmen’s Compensation Law. (Matter of Connelly v. Hunt Furniture Co., 240 N. Y. 83; Matter of Richardson v. Greenberg, 188 App. Div. 248; Matter of Donovan v. Alliance Electric Co., 195 App. Div. 678; Matter of McDonald v. Belle Terre Lodge, 268 N. Y. 663.) II. The award is based solely on conjecture, surmise and speculation. (Matter of McDonald v. Belle Terre Lodge, 268 N. Y. 663; Matter of Hansen v. Turner Construction Co., 224 N. Y. 331.)

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    Claimant sustained an accidental injury arising out of and in the course of his employment which resulted in the disability for which the award was made. (Matter of Connelly v. Hunt

      Furniture Co., 240 N. Y. 83; Matter of Gaites v. Society for Prevention of Cruelty to Children, 251 App. Div. 761, 277 N. Y. 534; Matter of Lepow v. Lepow Knitting Mills, Inc., 288 N. Y. 377; Matter of Roos v. Loft, Inc., 247 App. Div. 842; Matter of McInerney v. Buffalo & Susquehanna R. R. Corp., 225 N. Y. 130; Matter of O’Neil v. Carley Heater Co., 218 N. Y. 414; Fitzpatrick v. Postal Restaurant Co., 208 App. Div. 822; Matter of Horrigan v. Post-Standard Co., 224 N. Y. 620; Matter of Sanantonio v. Schussler, 232 App. Div. 861; Matter of Frescatore v. General Electric Co., 234 App. Div. 643; Matter of Ingelfinger v. Jacob Dold Packing Co., 235 App. Div. 754; Matter of Douglass v. Franklin Mfg. Co., 235 App. Div. 882.)
   Per Curiam.

There was no evidence to support the findings of the Workmen’s Compensation Board that the claimant contracted typhoid fever or suffered any accidental injury from which typhoid fever naturally or unavoidably resulted in the course of his employment from food and drink consumed in the flood area to which he was assigned. The lack of any evidence connecting the disease with accidental injury in the course of employment may not be supplied by the statutory presumption (Workmen’s Compensation Law, § 21; Matter of Daus v. Gunderman & Sons, Inc., 283 N. Y. 459, 466; Matter of Lorchitsky v. Gotham Folding Box Co., 230 N. Y. 8, 12).

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

Conway, J.

(dissenting). On Sunday, July 19, 1942, ,the claimant was sent by his city editor to photograph flood conditions in the city of Olean, N. Y. Several feet of water were in the streets, and emergency measures had been adopted for the handling and preparation of all water for drinking purposes and the inoculation of thousands with antityphoid serum. Claimant remained in the city over Sunday night and on Monday until 5 o’clock in the afternoon. He then returned to Buffalo. There he resumed work and continued to work until July 28th when he became ill and developed typhoid fever.

The record discloses that one other person contracted typhoid fever in the flood area at or about the time that it was contracted by the claimant.

The Cattaraugus County Commissioner of Health testified that a serious flood condition existed in the vicinity of Olean on July 18th and that he established and maintained headquarters there by reason of the emergency from July 18th to the 20th. During the emergency period the city water supply was practically unavailable as the result of a large break in a main and the Commissioner gave notice to the public by press and radio that water was to be boiled or treated with chemicals before consumption. Under his supervision 13,000 of the inhabitants of Olean and the vicinity were inoculated against typhoid fever, and certain water supplies were treated and chlorinated so as to preclude a possible epidemic. He testified further that the incubation period of typhoid fever ran from nine to fourteen days with extremes from four to thirty days.

In response to hypothetical questions the doctor who treated claimant expressed the opinion that if claimant had drunk any 'contaminated milk he could contract typhoid fever if susceptible to it and that if he partook of such milk on July 18th or 19th he could say with reasonable certainty that claimant could have developed typhoid fever on the date claimed.

Turning now to section 21 of the Workmen’s Compensation Law, we find that it provides in part: In any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed in the absence of substantial evidence to the contrary

1. That the claim comes within the provision of this chapter * #

There was no substantial evidence produced to rebut that presumption. On the contrary, the board found that the evidence which was produced was sufficient to sustain a direct finding by it that the claimant contracted typhoid fever in the regular course of his employment at the Bed Cross Canteen. We quote the following two findings of the board:

“ 3. On or about the 19th day of July, 1942, while the said William Dyviniek was working for his employer as a photographer at Olean, N. Y., to which he had been sent by his employer for the purpose of taking pictures of the flood district, and while engaged in the regular course of his employment, and while at the Bed Cross Canteen where food, sandwiches, drinking water and raw milk were served with no washing facilities, he contracted typhoid fever.”
9. The reasonable import of all attending circumstances disclosed in the proof in this case can be used as a basis for assuming a reasonable connection between a set of provocative conditions and a not inconsistent result, when no other more consistent or clearly defined basis is presented.”

Section 20 of the Workmen’s Compensation Law expressly provides: “ * * * The decision of the board shall be final as to all questions of fact, and, except as provided in section twenty-three, as to all questions of law. * # * ” The findings have been affirmed by the Appellate Division and while we have power to set aside a finding without any facts to support it we cannot set aside one which is based upon a conflicting state of facts. The facts already referred to constitute ample evidence that defendant was sent to work in a flood area where a substantial danger existed of contracting typhoid fever by" reason of drinking contaminated water or milk, eating contaminated food, or using contaminated utensils. He testified that he had “ some water and some milk and a couple of sandwiches ” at the Bed Cross Canteen. That was the only food or drink which he had at Olean; he had none enroute from Buffalo to Olean. The water and milk were served from open cans and pitchers. Sandwiches, already made up, were stacked on a table unwrapped. Claimant drank the water and milk out of glasses. The County Health Commissioner testified that as far as he knew the water brought to the canteen had been boiled or chemically treated. However, tap water was not turned off in the city, including the canteen, until Monday, July 20th. The Health Commissioner had directed that tap water be boiled before consumption. The reason for that was probably because, as he testified concerning the reason for the mass inoculation, 11 floods * * * are accompanied by disturbances at ground water levels, washing off hillsides presumably polluted by human excretions and because there had been a serious disruption of the water supply in Olean and also in Portville.” Claimant did not see any washing facilities in the canteen for the people handling the food or for washing the glasses; he assumed the glasses were washed. If they were washed it was possible for them to have been washed in the tap water before it was turned off on Monday.

It was also possible that all the milk served at the canteen was not pasteurized. The Health Commissioner testified that although all the milk used in Clean during the emergency did not come from Kent’s Dairy, all the milk which came into the canteen was from that dairy, where his department inspected and supervised the pasteurization process. He based his conclusion on the fact that cans belonging to the Kent Dairy were in the canteen and from statements of personnel of the dairy. He stated that it was possible although not probable that the Kent cans contained milk from other dairies.

The medical testimony referred to above was to the effect that if claimant consumed contaminated food or drink when he was in Clean it was “ perfectly possible ” for him to have developed typhoid fever when he did.

In Matter of Lorchitsky v. Gotham Folding Box Co (230 N. Y. 8,12) we said that the mere proof of an accident without other evidence does not create the statutory presumption that the accident arose out of and in the course of the employment, but that there *1 must be some evidence from which the conclusion can he drawn that the injuries did arise out of and in the course of the employment.” (Emphasis supplied.)

While there is no direct evidence that claimant consumed contaminated food or drink in Clean, there was abundant indirect evidence from which that conclusion could reasonably be drawn by the board. There was certainly “ some evidence ” within the meaning of the Lorchitsky case. Claimant was sent into a flood area where there was special danger of typhoid infection as evidenced by the extraordinary precautions being taken by the medical authorities to prevent an epidemic. While on his employer’s mission he partook of food and drink which might reasonably be found to have been contaminated, and he then developed the disease within the time which one so infected would have developed it. In the absence of “ substantial evidence to the contrary ” (Workmen’s Compensation Law, § 21), that was sufficient to “ create ” or call into effect the statutory presumption that the disability arose out of and in the course of the employment.

Concerning the second question in this case, we are of opinion that an employee suffers an “ accidental * * * injury ” within the meaning of the Workmen’s -Compensation Law (§ 48; § 2, subd. 7) when he is sent into a place of special danger and there contracts typhoid fever under the circumstances disclosed. Here the inroads of the germs were assignable to a determinate act identifiable in space and time. (Matter of Connelly v. Hunt Furniture Co., 240 N. Y. 83, 85.) Thus we held in Lepow v. Lepow Knitting Mills, Ino. (288 N. Y. 377) that death benefits should be awarded under the Workmen’s Compensation Law where decedent, a salesman on a business trip to South Africa, contracted malaria from' a mosquito sting and died. In Matter of Gaites v. Society for Prevention of Cruelty to Children (251 App. Div. 761, affd. 277 N. Y. 534) we affirmed an award of compensation to a matron who contracted scarlet fever while taking care of-children in a children’s shelter which was under quarantine. In both cases claimant was required to work in a place of special danger and that fact was recognized by the court in both decisions. The chain of circumstances composed of acts of nature and of man which brought claimant to the point in time and place of danger where he ingested the germ was abnormal. It was something catastrophic or extraordinary, a mishap or an accident (cf. Lewis v. Ocean A. & G. Corp., [224 N. Y. 18] supra, at p. 21), though very likely a disease also. ‘ A common sense appraisement of every day forms of speech and modes of thought must tell us when to stop ’ (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 51).” (Matter of Connelly v. Hunt Furniture Co., 240 N. Y. 83, 86.)

The order should be affirmed.

Loughran, Ch. J., Lewis, Thachee, Dye and Fuld, JJ., concur in Per Curiam opinion; Conway, J., dissents in opinion in which Desmond; J., concurs.

Order reversed etc.


author: Lewis, J.

text:
    The People of the State of New York, Respondent, v. Benjamin Rockower, Appellant.
    Argued April 8, 1947;
    decided May 22, 1947.

      Joseph Lonardo for appellant.
    I. Defendant’s attendance and testimony in Kings County was compulsory as a matter of law, and the reception of testimony by defendant during the prosecution’s case in chief, violated the constitutional right against self-incrimination. (People v. Ferola, 215 N. Y. 285; Counselman v. Hitchcock, 142 U. S. 547; People ex rel. Lewisohn v. O’Brien, 81 App. Div. 51, 176 N. Y. 253; People v. Gillette, 126 App. Div. 665; People v. Cummins, 153 App. Div. 93; People ex rel. Coyle v. Truesdell, 259 App. Div. 282; People v. Bermel, 71 Misc. 356.) II. The trial court erred in its rulings concerning the Kings County District Attorney’s promise that defendant’s testimony in Kings County would not be used, in excluding testimony concerning the making of the promise, and in the instructions. (People v. Reilly, 224 N. Y. 90; Matter of Greenleaf, 176 Misc. 566; People ex rel. Coyle v. Truesdell, 259 App. Div. 282; Matter of Snitkin v. Taylor, 276 N. Y. 148.) III. If the Assistant District Attorney of Kings County made the promise, the State was bound to enforce it in all its courts, on principles of honor. (People v. Reilly, 224 N. Y. 90.) IV. If the Assistant District Attorney of Queens County made the promise, it was binding and operated to make defendant’s testimony in Kings County incompetent. (People v. Elmore, 277 N. Y. 397.) V. Over defendant’s claim of privilege against self-incrimination, the court directed defendant to answer whether his Kings County testimony was the truth. This was error. (Matter of Siegel v. Crawford, 266 App. Div. 878, 292 N. Y. 651.)

      Charles P. Sullivan, District Attorney (Henry W. Schoher of counsel), for respondent.
    I. Defendant’s testimony in Kings County was properly admitted. (Wigmore on Evidence, § 2268; United States v. Price, 163 F. 904; People v. Buffalo Gravel Corp., 195 N. Y. S. 940; People v. Cummins, 153 App. Div. 93; People v. Reilly, 224 N. Y. 90; People v. Tru-Sport Publishing Co., 160 Misc. 628; People v. Neff, 191 N. Y. 286; People ex rel. Gardenier v. Board of Supervisors, 134 N. Y. 1; People v. Ferola, 215 N. Y. 285.) II. Defendant was not improperly required to testify. (Connors v. People, 50 N. Y. 240; People v. Brown, 203 N. Y. 44; People v. Webster, 139 N. Y. 73; People v. Trybus, 219 N. Y. 18.)
   Lewis, J.

An indictment by a grand jury of Queens County accused the defendant Rockower of the crimes of burglary in the third degree and grand larceny in the second degree committed on June 13,1941, when, according to the charge, he broke into a store in Elmhurst with intent to commit larceny and there stole property of the value of $362. The defendant’s first trial in the County Court of Queens County resulted in a judgment convicting him as a fourth offender, which judgment was subsequently reversed on errors of law and a new trial was ordered. (People v. Rockower, 266 App. Div. 781, affd. 292 N. Y. 655.) At the close of evidence on the second trial and prior to submission of the case to the jury, the charge of grand larceny was dismissed on. motion by the District Attorney. Following affirmance by the Appellate Division of the judgment of conviction, the record of the second trial comes to us on appeal by the defendant upon a certificate by a member of this court that a question of law is involved which ought to be reviewed. (Code Crim. Pro., § 520, subd. 3.)

The burglary alleged to have been committed by the defendant on June 13,1941, led to his arrest on July 8,1941. On the latter date three men were being held in custody in Kings County charged with being receivers of stolen property including items which the defendant was charged with having stolen on June 13th in Queens County. It was in those circumstances that the defendant, while under arrest and prior to his indictment, was questioned by a representative from the office of the District Attorney of Queens County relative to his knowledge as to the disposition made of the property which had been stolen on June 13th. According to testimony given by the defendant on the present trial it appears that there was also an occasion, prior to his own first trial, when he told an Assistant District Attorney of Queens County that his testimony was wanted in connection with the prosecution in Kings County of the receivers of the stolen property. Thereupon, according to the defendant’s testimony, the Queens County Assistant District Attorney said to him — You go ahead and testify and I will promise you that this testimony will not be used against you at this time or your trial ”. In connection with that testimony the defendant also stated — without objection by the prosecution — that if he had not received the promise ” which he asserts was made by the Assistant District Attorney of Queens County he would not have testified in the Kings County trial. Thereafter, the defendant testified at a trial in Kings County as a witness for the People against three men who. were accused of being the receivers of property stolen in Queens County. At that time he gave evidence which implicated himself in the burglary which had occurred in Queens County on June 13th. The fact is noted that the testimony given by the defendant in the Kings County trial was not offered by the prosecution as evidence against him on his first trial in Queens County. However, upon his second trial — which is the case now before us — the testimony given by the defendant in the Kings County trial was received in evidence, despite appropriate objections and exceptions interposed in behalf of the defendant.

It should be said at this point that when the Assistant District Attorney of Queens County, from whom the defendant claimed to have received the “ promise ” quoted above, was called as a witness for the prosecution in the present case, he denied that he ever made a statement from which the defendant could infer a promise that if the defendant testified in the Kings County trial his testimony would not be used by the prosecution upon the trial of an indictment against him in Queens County.

That denial by the Assistant District Attorney of testimony previously given by the defendant was a challenge to the defendant’s veracity. The credibility of his testimony upon an important phase of the People’s case thus became a question which was exclusively within the scope of the jury’s function. However, in presenting the case to the jury the Trial Judge failed in his main charge to mention either the defendant’s testimony concerning the promise upon which he claimed he had relied when he testified in the Kings County trial or the testimony by the Assistant District Attorney who denied that he had made such a promise. Thereupon counsel for the defendant requested the Trial Judge to charge — “ That if the jury find that the testimony in Kings County was given by defendant upon a promise of Assistant District Attorney Short of Queens County that it would not be used against him anywhere, that the whole of the testimony must be excluded from the jury’s consideration ”. Billing upon that request the Trial Judge stated —“ That I refuse to charge, ladies and gentlemen. On the contrary I charge you that that is not the law.”

We think the defendant’s exception to the ruling last quoted above was well taken. In People v. Reilly (224 N. Y. 90) this court — when dealing with a like problem — had occasion to say, per Hisoock, Ch. J., (pp. 94-95): Instances are constantly occurring where a district attorney in the interest of justice and for the purpose of detecting crime has made and carried out some promise of immunity or favor to a person suspected of or charged with crime. * * * Nothing was lost and no principle of public policy was violated by the promise of the district attorney that if he would talk, what he said should not be used against him. And of course power to make the stipulation involved the duty to observe it, In fact we think it would be extremely detrimental to the administration of justice if it should be established that a district attorney need not keep with an accused person such an agreement as was made in this case, and that such a rule ought not to be established unless compelled. We do not think that there is any statute which forbade the stipulation or which overrides it.”

As we view the present record the ruling was prejudicial error which withdrew from the jury’s consideration the question whether, when the defendant testified in the Kings County trial and there implicated himself in the burglary for which he had previously been indicted in Queens County, he did so, in truth, relying upon a promise by an Assistant District Attorney of Queens County that any testimony given by him in the Kings County trial would not be used against him when his own trial in Queens County should occur. We also find prejudicial error in the ruling by the Trial Judge that “ Any promise made by Mr. Rooney of the District Attorney’s office in Kings County may have no effect here.”

The judgments should be reversed and a new trial ordered.

Loughean, Ch. J., Conway, Desmond, Thacheb, Dye and Fuld, JJ., concur.

Judgments reversed, etc.