author: Per Curiam.

text:
    Elsa B. Geitner, Appellant, v. United States Fidelity and Guaranty Company, Respondent.
    (Argued May 31, 1929;
    decided June 11, 1929.)

      La Fay C. Wilkie for appellant.
    The driver of the car was using it at the time of the accident in the ordinary course of the partnership. If he was not, he was certainly using it with the authority of his copartner, so that the partnership is liable for the damage, and the liability exists under the policy of insurance for the judgment obtained by them. (Stroher v. Elting, 94 N. Y. 102; Matter of Peck, 206 N. Y. 55.)

      S. H. Millener for respondent.
    No cause of action has accrued in favor of the plaintiff and against this defendant under section 109 of the Insurance Law. The assured named in the policy is a copartnership. No judgment has been entered against any member of the copartnership based on a partnership tort. No execution has been issued against the copartnership. (Schoenfield v. N. J. Fidelity & P. G. Ins. Co., 203 App. Div. 796; Hartigan v. Casualty Company of America, 227 N. Y. 175; Jacobs v. Maryland Casualty Co., 198 App. Div. 470; Davis v. President, etc., 109 N. Y. 47; Saunders v. Reilly, 105 N. Y. 12.)
   Per Curiam.

The insurance policy sued on insures Charles Harms and Paul F. Rehberg as a copartnership. The complaint in the action in which judgment was recovered by plaintiff against Harms and Rehberg, does not allege a cause of action against the defendants as partners. It alleges that the automobile was being operated by the defendant Harms for and on behalf of the defendant Rehberg. This allegation does not import a partnership use of the automobile by the defendant Harms at the time of the accident. The policy protects Harms and Rehberg from loss by reason of automobile accidents for which their partnership is liable and protects them to that extent individually as members of the firm but not otherwise. (Hartigan v. Casualty Co. of America, 227 N. Y. 175.) As no judgment has been obtained against the insured on a partnership hability, the plaintiff may not recover under Insurance Law (Cons. Laws, ch. 28), section 109.

We deem it unnecessary to decide whether execution may be levied on the partnership property on a judgment, recovered against all the partners jointly on a non-partnership debt or hability. Section 51 (c) of the Partnership Law (Cons. Laws, ch. 39) provides merely that a partner’s interest (not' the interest of all the partners) in specific partnership property is not subject, to attachment. or execution, except on a claim against the partnership. (Cf. Davis v. Pres., etc., D. & H. Canal Co., 109 N. Y. 47.) The judgment should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ., concur; Hubbs, J., not sitting. Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Marion G. Murphy, Appellant, v. John G. Murphy, Respondent.
    (Submitted June 3, 1929;
    decided June 11, 1929.)

      Peter W. Quinn for appellant.
    A new trial should be granted as a matter of law. (Boss v. Caywood, 162 N. Y. 259; Mirizio v. Mirizio, 248 N. Y. 175; Hofmann v. Hofmann, 232 N. Y. 215; Waltermire v. Waltermire, 110 N. Y. 183; Caldwell v. Lucas, 233 N. Y. 248.) The judgment of the Appellate Division required a new trial. (Bonnette v. Molloy, 209 N. Y. 167; Matter of Muller, 96 App. Div. 619; Caldwell v. Nicholson, 235 N. Y. 209.)

      Francis X. Dineen and Theodore P. Feury for respondent.
    The judgment of the Appellate Division did not require new findings of fact or conclusions of law nor a new trial. (Bonnette v. Molloy, 209 N. Y. 167.)
   Per Curiam.

The judgment should be reversed and a new trial granted, with costs to abide the event, upon the ground that the evidence presented by she plaintiff established a prima facie case, and it was so held at Special Term. That court made findings of fact and conclusions of law in favor of the defendant and dismissed the complaint upon the merits. The Appellate Division reversed all the findings made by the Special Term and struck out of the judgment the words on the merits,” and affirmed the judgment as modified. It did not make new findings. Its judgment is not, therefore, based upon any findings. Without findings in favor of the defendant it should have reversed the judgment and ordered a new trial as plaintiff had made out a prima facie case.

The judgment should be reversed and a new trial granted, with costs to abide the event upon the grounds stated in this memorandum.

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

Judgment reversed, etc.


author: O’Brien, J. Hubbs, J.

text:
    Mary Rudolph, Respondent, v. The John Hancock Mutual Life Insurance Company, Appellant.

      (Argued April 18, 1929;
    decided June 11, 1929.)

      William O. Gennert and Frederick C. Tanner for appellant.
    The physician’s certificate having been filed with defendant by plaintiff, the beneficiary, as part of her proofs of claim under the policy, it became through such filing admissible in evidence as an admission against plaintiff’s interest; the objections of hearsay and privilege did not apply and were improperly sustained, and the exclusion of this evidence duly excepted to was substantial and reversible legal error. (Buffalo Loan, Trust & S. D.

      Co. v. Knights Templar, etc., 126 N. Y. 450; Spencer v. Citizens M. I. Co., 142 N. Y. 505; Vechio v. Met. Life Ins. Co., 224 App. Div. 301; Cirrincioni v. Met. Life Ins. Co., 223 App. Div. 461; Hanna v. Conn. Mut. Life Ins. Co., 150 N. Y. 526; Barnett v. Prudential Ins. Co., 91 App. Div. 435; Kipp v. Met. Life Ins. Co., 41 App. Div. 298; Trudden v. Met. Life Ins. Co., 50 App. Div. 473; Leonard v. John Hancock M. L. Ins. Co., 76 Misc. Rep. 529; Fay v. Met. Life Ins. Co., 119 Misc. Rep. 715; Carmichael v. John Hancock M. L. Ins. Co., 45 Misc. Rep. 597; Hoffman v. Met. Life Ins. Co., 135 App. Div. 739; Ins. Co. v. Newton, 22 Wall. 32.) Plaintiff failed to prove performance of the contract as to filing proofs of claim and defendant’s motion to dismiss for this reason should have been granted. (Hoffman v. Met. Life Ins. Co., 135 App. Div. 739.)

      John J. Finn for respondent.
    The plaintiff made out a full and complete prima facie case. (Glaser v. Home Ins. Co., 190 N. Y. 10; Bushaw v. Ins. Co., 55 Hun, 607; Groghan v. Ins. Co., 90 Hun, 521; Titus v. Ins. Co., 81 N. Y. 410; Jones v. Ins. Co., 117 N. Y. 103; De Van v. Ins. Co., 92 Hun, 256; Miglier v. Ins. Co., 102 Misc. Rep. 461; Martin v. Ins. Co., 151 N. Y. 92; Keeney Case, 71 N. Y. 396; Paltrovitch v. Ins. Co., 143 N. Y. 73.) The certificate of Dr. Furedi was pure hearsay. (Kaufman v. Metropolitan L. Ins. Co., 200 N. Y. Supp. 559; Maher v. Empire Life Ins. Co., 110 App. Div. 723; Klein v. Prudential Ins. Co., 221 N. Y. 454.) The involuntary act of the plaintiff, in supplying to the insurer the certificate of Dr. Furedi, did not constitute an admission by her of the truth of the facts stated in such certificate. (Acee v. Met. Life Ins. Co., 219 App. Div. 246; Helwig v. Met. Life Ins. Co., 58 Hun, 366; Redmond v. Industrial Benefit Society, 78 Hun, 104; 150 N. Y. 172; Holden v. Met. Life Ins. Co., 165 N. Y. 13; Archer v. Equitable, etc., Society, 218 N. Y. 18.) The certificate of Dr. Furedi was privileged under sections 350-354 of the Civil Practice Act. (Klein v. Prudential Ins. Co., 221 N. Y. 454; Davis v. Supreme Lodge, 165 N. Y. 163; Westover v. Ætna lns. Co., 99 N. Y. 57.)
   O’Brien, J.

March 3, 1926, plaintiff caused the life of her son, aged fifteen years, to be insured by defendant. The application is not made part of the policy nor was any medical examination had. The policy, by its terms, is not to take effect unless, at the time of its issue, the insured is in sound health, and it is declared to be void, if, within two years prior to its date, he has been attended by a physicain for any serious disease, complaint or operation, or if, before such date, he has had any disease of the heart. It also provides: “ Proof of claim. In case of death of the insured, proofs of claim shall be made on blanks to be provided by the Company and shall contain full answers of the claimant, physician and other persons to all the questions asked therein and shall conform to all the requirements thereof.” On June 3, 1926, exactly three months after the date of the policy, the insured died, and plaintiff filed with defendant proofs of death prepared on forms provided by defendant. These documents in part consist of an undertaker’s certificate and the claimant’s certificate in which she states that the insured first complained of illness four weeks before his death, that such illness consisted of swelling of the feet, that the cause of death was hydrops and that the duration was only four weeks. She delivered another document to defendant as part of the proofs of claim. It is the attending physician’s certificate prepared upon defendant’s form. She introduced in evidence the undertaker’s certificate and her own, but she marked only for identification that of the attending physician. Upon her objection the court refused to admit it. The error assigned in this judgment is the rejection of this document. If competent evidence, it would raise the most serious issues of fact whether, at the time of the writing of the policy, the insured was in sound health, whether, within two years prior to its date, he had been attended by a physician for a serious disease and whether, before such date, he had any disease of the heart. In his certificate, the physician states that his first visit or prescription in the last illness of the insured was January 3, 1926, two months before the date of the policy and five months before the death of the insured, that health had been impaired two years before death, that he had attended the insured during the year 1924 for grippe and weak heart, that the cause of death was oedema, with “ insufjicientia valv. mitr. et aortae ” as a contributory cause and that such condition had existed for two years. Attached to the certificate is a statement signed by plaintiff as claimant agreeing that the certificate shall be considered a part of the proofs of death under the policy in accordance with its conditions. After this document had been rejected, testimony was admitted to the effect that it had been read to plaintiff prior to the trial and that she had conceded its correctness. Plaintiff seeks to support this judgment upon the theory that the certificate was hearsay, that her act in supplying defendant with it was involuntary and, therefore, does not constitute an admission by her of the facts therein stated and that it is privileged.

The statements in the certificate do not constitute hearsay. Rather, the paper must be viewed as prima facie evidence of a voluntary admission by the claimant that such statements are true. (Buffalo, L. T. & S. D. Co. v. Knights Templar, etc., 126 N. Y. 450; Hanna v. Conn. M. L. Ins. Co., 150 N. Y. 526; Leonard v. John Hancock M. L. Ins. Co., 76 Misc. Rep. 529, per Lehman, J.; Wigmore on Evidence [2d ed.], § 1073.) The physician’s certificate was one of three papers submitted as proof of loss. The whole admission should have been taken together. If it was sufficient to establish the death of the insured,

as plaintiff admits, it was also sufficient to show that death was occasioned in such a manner as to relieve defendant from responsibility. (Ins. Co. v. Newton, 22 Wall. [U. S.] 32,) Plaintiff made the physician her agent in respect to reporting dates and duration and nature of previous illnesses. She may not be held to a personal knowledge of the cause of death as described in abbreviated medical Latin, but she must be assumed to understand the statement that the insured had been attended for two weeks in the year 1924 for grippe and weak heart, an illness which is described by the physician in plainly written English, and the statement that the first visit or prescription during the last illness was in January, 1926, as well as the statement that health had been impaired two years prior to death. These expressions of fact she made her own. Indeed there is testimony which, if credited, proves that she conceded the contents of the certificate to be correct. Very different in principle is the decision in Goldschmidt v. Mut. L. Ins. Co. (102 N. Y. 486), where proofs furnished by a claimant were accompanied by a protest that the facts therein alleged were untrue. Here, plaintiff gave no expression of dissent. This paper unexplained by her and admitted by her to be part of the proofs of death is as much hers as if she had orally related their contents as facts. Its production by her is, prima facie, admission that the facts therein recited are true. (Buffalo, L. T. & S. D. Co. v. Knights Templar, etc., supra; Spencer v. Citizens M. L. Ins. Assn., 142 N. Y. 505, 509.) How claimant’s act in supplying defendant with this certificate can be regarded as involuntary is difficult to discover. The attending physician was referred to defendant as one authorized to answer for her. She saw the answer in the form of a certificate, for she herself took that certificate to the physician and requested his answers to the questions. (Aldridge v. Ætna L. Ins. Co., 204 N. Y. 83.) She acted under no coercion.

The reception in evidence of the certificate for the purpose of proving an admission of facts by the claimant would not constitute a violation of the provisions of sections 352 and 354 of the Civil Practice Act which relate to privileged communications. In the absence of-express waive at the trial, the attending physician could not be allowed orally to testify to the facts as stated in the certificate (Redmond v. Industrial Benefit Assn., 150 N. Y. 167; Holden v. Met. L. Ins. Co., 165 N. Y. 13; Meyer v. Knights of Pythias, etc., 178 N. Y. 63), nor is that paper competent original evidence. It operates, however, as an admission by claimant that the facts are as stated. Its reception would violate no confidence for, as observed by Chief Judge Andrews in a similar case, the confidence had already been violated by the conjoint action of the physician and the claimant. (Buffalo L.,T. & S. D. Co. v. Knights Templar, etc., supra, at p. 456.) Of course it is not conclusive against her but is binding until corrected or explained. (Ins. Co. v. Newton, supra; Goldschmidt v. Mut. L. Ins. Co., supra; Spencer v. Citizens M. L. Ins. Assn., supra; Hanna v. Conn. M. L. Ins. Co., supra.)

The judgment of the Appellate Division and that of the trial court should be reversed and a new trial ordered, with costs to abide the event.

Hubbs, J.

(dissenting). I am unable to agree with the conclusion reached in the prevailing opinion.

The policy provides: “ Proof of claim. In case of death of the Insured, proofs of claim shall be made on blanks to be provided by the Company and shall contain full answers of the claimant, physicians and other persons to all the questions asked therein and shall conform to all the requirements thereof.”

That clause distinguishes this case from all those cited in Judge O’Brien’s opinion to the effect that a doctor’s affidavit served upon an insurance company as a part of the proofs of death constitutes an admission against interest by the beneficiary of the facts stated in such affidavit. In none of the cases cited was the beneficiary bound by the contract of insurance to furnish a physician’s affidavit upon a blank to be furnished by the insurance company requiring the physician to make full answers to all the questions asked; It appears from the opinion in Buffalo Loan, Trust & S. D. Co. v. Knights Templar, etc. (126 N. Y. 450) that the certificate of insurance required only “proof of death.” The furnishing of a doctor’s affidavit was a gratuitous act, voluntary and unnecessary. Under those circumstances the plaintiff in that case vouched for the truth of the doctor’s affidavit, and it was held to constitute an admission against interest upon his part. The case of Spencer v. Citizens Mut. L. Ins. Assn. (142 N. Y. 505) is of the same nature, and in that case the record discloses that no objection was made at the trial to the receipt in evidence of the doctor’s affidavit. To the same effect is the case of Hanna v. Conn. Mut. Life Ins. Co. (150 N. Y. 526). The other cases cited belong in the same class and rely upon the Spencer and Hanna cases as authority for the general statement that a physician’s affidavit, forming part of the proofs of death, is properly received in evidence as an admission against interest.

In Helwig v. Mutual Life Ins. Co. (58 Hun, 366) it was said: “ Ordinarily, it may be said that a party who makes use of an affidavit thereby holds it forth as truthful, but we think the present case is an exception to the general rule, for it was a condition of the policy that the proofs of loss should be accompanied by the statement of the physician who attended the deceased in the last illness. The questions were upon a printed blank furnished by the company. It is not to be supposed that the claimant could control the responses or was in any degree responsible for their correctness. Had the forwarding of the physician’s affidavit been a matter of choice with the claimant, it might well be argued that the statement was put forward as truthful and was evidence against the party using it. But as the claimant had no option and was compelled by the contract to forward the statement, it cannot be used as evidence against her.” When that case was passed on in this court in 132 New York, 331, this court reversed upon the express ground that the policy did not require the plaintiff to furnish the doctor’s affidavit. All that the beneficiary was required to do was to furnish proof of death.

In Redmond v. Industrial Benefit Association (150 N. Y. 167) the true rule was announced, although the statement was not necessary to the decision. Judge Bartlett wrote, all the members of the court concurring: It would seem that the attending physician of the insured did not represent the plaintiff, and the furnishing of his sworn statement was in no sense the voluntary act or admission of the plaintiff, but was made a condition precedent to his recovery on the policy by the contract of insurance.” In that case the by-laws of the defendant required that the proofs of death shall contain, among other things, a statement under oath of the attending physician made upon a blank furnished by the company.” It will be noted that the requirement is very much like the one contained in the policy in this case.

The question is open in this court, and may be considered upon principle. The proofs of death must be furnished upon blanks provided by the company and must contain full answers by the physician to all the questions asked thereon. The claimant has no option. The physician’s affidavit is a statement extracted from the claimant by the terms of the policy. How can it be held that she vouches for the truth of each statement therein? How can it reasonably be said that she adopted the statement of the physician as her own, especially in view of the fact that her own sworn statement, filed as a part of the proof of death, stated the facts, in so far as they are in issue here, directly contrary to the statement contained in the physician’s affidavit?

The claimant did not agree to adopt the statement of the physician; she did agree to furnish it. It may be of use to the company in determining its attitude in the adjustment of the claim. Ordinarily when a person tenders or serves an affidavit of a third person in support of a claim, he is held to approve the contents of the affidavit of which he thus makes use. There can be no question about the general principle. In the case at bar the policy provides that in consideration of the premium and on satisfactory proof of the death of the insured the company will pay the amount due. That is the primary contract. As a part of the policy it is further provided that the beneficiary shall furnish to the company certain information upon blanks furnished by it, containing questions to be answered by certain persons, among others by the physician. The claimant cannot know how the physician will answer those questions or whether she can agree that the answers are true. Neither can she control the answers to the questions. Still, she is bound by the terms of the policy to furnish a physician’s affidavit. Under such circumstances it is a misuse of the word admission ” to say that by filing the affidavit which she was obliged to file she admitted the truth of the statements which it contains.

The judgment should be affirmed, with costs.

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

Judgments reversed, etc.


author: Pound, J.

text:
    Valentine Encarnacion, Appellant, v. Inez M. Jamison et al., as Executors of William A. Jamison, Respondents, Impleaded with Another.
    (Argued February 19, 1929;
    decided March 19, 1929;
    decision vacated May 29, 1929;
    resubmitted July 11, 1929;
    decided July 11, 1929.)

      James A. Gray for appellant.
    Gabrielson v. Waydell (135 N. Y. 1) does not express the latter-day view of the law and should not now be followed. (Kennedy v. Cunard SS. Co., Ltd., 197 App. Div. 459; 235 N. Y. 604; Panama R. R. Co. v. Johnson, 264 U. S. 375; Warren v. Morse Dry Dock & Repair Co., 235 N. Y. 445; New

      England R. R. Co. v. Conroy, 175 U. S. 325; International Stevedoring Co. v. Haverty, 272 U. S. 56.) Plaintiff’s complaint brings him within the purview of the Merchant Marine Act as construed in International Stevedoring Co. v. Haverty (272 U. S. 50), and he is entitled to all the benefits thereof. (The “ Calusa,” 241 Fed. Rep. 968; Panama R. R. Co. v. Johnson, 264 U. S. 375; Roebuck v. Atchison, etc., R. Co., 99 Kan. 544; Reeve v. N. P. R. Co., 82 Wash. 268; Cincinnati, etc., R. R. Co. v. Wilson, 161 Ky. 640; Girvin v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 289; Curley v. Electric Vehicle Co., 68 App. Div. 18; Grand Trunk Western R. Co. v. Lindsay, 233 U. S. 42; Int. Stevedoring Co. v. Haverty, 272 U. S. 50; Yaconi v. Brady & Gioe, Inc., 246 N. Y. 300; Sullivan v. Dunham, 161 N. Y. 290; Central Vermont Ry. Co. v. White, 238 U. S. 507; Southern Ry. v. Derr, 240 Fed. Rep. 75; Cott v. Erie R. R. Co., 231 N. Y. 67.) Under the Maritime Law the rule of fellow-servant does not apply in cases of assault. (Memphis & Newport Packet Co. v. Hill, 122 Fed. Rep. 246; Gabrielson v. Way dell, 67 Fed. Rep. 342; “ Marion Chilcott,” 95 Fed. Rep. 688; The “ A. Heaton,” 43 Fed. Rep. 592; The “ Lizzie Burrell,” 115 Fed. Rep. 1015; Desty on Shipp. & Adm. § 156; The “ Sinaloa,” 292 Fed. Rep. 640.) The case was properly disposed of in the trial court. (Mott v. Consumers Ice Co., 73 N. Y. 543; Girvin v. N. Y. Central & H. R. R. R. Co., 166 N. Y. 289; Magar v. Hammond, 183 N. Y. 387; Craven v. Bloomingdale, 171 N. Y. 439; Richard v. Amoskeag Manufacturing Co., 109 Atl. Rep. 88; Avondale Mills v. Bryant, 10 Ala. App. 514; Jabeles Colias Conf. Co. v. Booze, 181 Ala. 459; Hudson Bay Co. v. Vaillancourt, 2 Dom. L. R. [N. S.] 1008; Raolaslovic v. N. Y. C. R. R. Co., 245 N. Y. 91.)

      Theodore H. Lord, Daniel Miner and James B. Henney for respondent.
    As the issue alleged and submitted to the judge is confined to assault and no issue of negligence is presented by the record, the complaint was properly dismissed. (Gabrielson v. Waydell, 135 N. Y. 1; Muller v. Hillenbrand, 227 N. Y. 448; Girvin v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 289; Cameron v. N. Y. C. & H. R. R. R. Co., 145 N. Y. 400; Wittaker v. D. & H. C. Co., 126 N. Y. 544; Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y. 557.) The Jones Act only applies where the action is based on negligence. (Davis v. Green, 260 U. S. 349; Muller v. Hillenbrand,, 227 N. Y. 445.)
   Pound, J.

Defendants’ testator was an employing stevedore. Plaintiff was one of his employees who was assaulted by the foreman or gang boss in charge of a gang engaged in loading a barge in the East river. The evidence justifies the inference that the foreman, in an effort to carry out his orders to keep the men busy and in furtherance of the employer’s work, assaulted plaintiff, an employee subject to his orders, to make him hurry up with the work in which he was engaged. No question of negligence is in the case. The trial judge allowed a recovery if the jury found that the assault was committed in the furtherance of the master’s work.” (Mott v. Consumers Ice Co., 73 N. Y. 543, 547.) The jury so found. The Appellate Division reversed, applying the fellow-servant rule and holding that there was no liability on the part of the employer even though the foreman inflicted the injuries when he was engaged in hurrying up the work in obedience to the employer’s orders.

The cause of action having arisen upon the navigable waters of the United States, is to be disposed of under the principles of maritime law. (International Stevedoring Co. v. Haverty, 272 U. S. 50; Northern Coal & Dock Co. v. Strand, 278 U. S. 142; Resigno v. Jarka Co., Inc., 248 N. Y. 225.) The foreman, in the management of the work intrusted to him by his employer, is a fellow-servant of the members of the gang under his direction and control in the performance of the work. (Crispin v. Babbitt, 81 N. Y. 516.) For injuries suffered by the men placed under the authority of such a one as the result of his negligence or misconduct in the furtherance of the employer’s business, it has been held that the employer is not liable to indemnify the injured employee. (Gabrielson v. Waydell, 135 N. Y. 1.) Such was the rule of the common law and of the admiralty law as defined by this court.

The learned counsel for the appellant with admirable candor concedes that no fault can be found with the court below for adhering to the rule as thus stated, but he asks this court to change the law to establish a better rule of conduct and give place to a higher degree of justice.” Long and firmly established doctrines are not so easily disposed of, although the authority of recent cases of first impression has at times been disregarded in order to conform the decisions of the court to the actualities of industrial and business life. (Fitzwater v. Warren, 206 N. Y. 355; Klein v. Maravelas, 219 N. Y. 383.) The Gabrielson case was decided by a divided court with a strong dissent. It has been subjected to much adverse criticism. While it may no longer be regarded as authority for the proposition of general maritime law that the misconduct of the captain of a ship in his care of the seamen under him is a risk assumed by the seamen for the consequences of which the owners are not responsible (Gabrielson v. Waydell, 67 Fed. Rep. 342; The Osceola, 189 U. S. 158, 175),.there remains in it a vestigial remnant of the once all-comprehensive fellow-servant rule, which was in its fullest glory in the year 1892, to wit, the rule of non-liability of the employer for assaults committed by a superior employee upon bis inferior in the performance of the employer’s work. To this extent it may be controlling upon this court if it remains in harmony with recent legislation on the subject.

The admiralty and maritime law is subject to change by Congress. Congress has acted and the Supreme Court of the United States has said broadly (International Stevedoring Co. v. Haverty, supra) that .the statutes do away with the fellow-servant rule ” as applied to longshoremen engaged in stowing freight in the hold of a ship within the admiralty and maritime jurisdiction of the United States. We would be content to give this declaration its full face value were it not for the fact that the case was one of the negligence, rather than the misconduct, of a foreman. It thus becomes necessary to examine the course of legislation on the subject to determine its bearing on our decisions.

The fellow-servant rule is generally stated in terms of negligence only, although misconduct of a co-employee is also” within its scope. By the Seamen’s Act of March 4, 1915 (38 Stat. ch. 153, § 20), it was provided that “ in any suit to recover damages for any injury sustained on board vessel or in its service seamen having command shall not be held to be fellow-servants with those under their authority.” This language proved to be inadequate to substitute the common-law measure of liability for personal injuries for the maritime rule of limited liability in the case of seamen (Chelentis v. Luckenbach S. S. Co., 247 U. S. 372), and was probably appropriate only to the relief of seamen in any event. (Yaconi v. Brady & Gioe, Inc., 246 N. Y. 300.) It was, however, a gesture in the direction of wider responsibility on the part of the master for the negligence of his servants. It was succeeded by the Jones Act (Merchant Marine Act of June 5, 1920; 41 Stat. ch. 250, § 33; 3 Mason’s U. S. Code, tit. 46, ch. 18, § 688, p. 3273), which extends to seamen who shall suffer personal injury in the course of their employment, the rights and remedies given by Congress to railroad employees (Panama R. R. Co. v. Johnson, 264 U. S. 375, 389; Baltimore S. S. Co. v. Phillips, 274 U. S. 316, 324; Pacific S. S. Co. v. Peterson, 278 U. S. 130) by providing that they may maintain actions against their employers for damages and that in such actions all statutes of the United States modifying or extending the common-law right or remedy in cases.of personal injury to railway employees shall apply ” to them. The reference is to the Federal Employers’ Act of April 22, 1908 (35 Stat. ch. 149, § 1; 3 Mason’s U. S. Code, tit. 45, ch. 2, § 51, p. 3064) and its amendments which is thus incorporated into the maritime law of the United States. That act, wherever applicable, read literally, imposes liability on the employer for the acts of a fellow-servant only in cases of personal injury to an employee resulting from negligence. Misconduct is not in terms included. (See, also, N. Y. Employers’ Liability Law, ch. 121, L. 1921, which applies the vice-principal rule only to cases of negligence.) Nevertheless, Mr. Justice Holmes, writing for the United States Supreme Court in the Haverty Case (supra), reads the act as doing away with the fellow-servant rule as freely as he reads the word seamen ” so as to include stevedores.” This, it would seem, is its popular interpretation. As the word seamen ” in the act includes “ stevedores,” so the word negligence ” should, in view of the broad field in which Congress has disapproved and changed the [fellow-servant] rule introduced into the common law within less than a century,” include “ misconduct.” Reading Gabriel-son v. Waydell (supra) in the light of the Merchant Marine Act and its history, we do not hesitate to say that the authority of the case as a rule of maritime law has been largely, if not fully spent; that we should not waste time in pointing out distinctions between negligence and misconduct in this connection in order to defeat plaintiff’s recovery but should hold broadly that Congress, in doing away with the fellow-servant rule in cases of negligence coming within the scope of its legislation, has left neither substance nor reason to our earlier decision and that it is no longer controlling. We cannot, with a fair countenance, say that the master is now hable to his servants for personal injuries due to a careless foreman but is not liable for personal injuries inflicted on them by a brutal foreman in directing the performance of the work and intended and believed to be for the interest of the master. (Mott v. Consumers Ice Co., supra.)

This case differs materially from Davis v. Green (260 U. S. 349). In that case the engineer had received an order from the conductor which it was his duty to obey. Out of personal rancor, he killed the conductor. Neither allegations nor proof present the killing as having been done to further the master’s business

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

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

Judgment accordingly.


author: O’Brien, J.

text:
    Philip Ballen et al., Appellants, v. E. Clifford Potter et al., Respondents.

      (Argued April 25, 1929;
    decided July 11, 1929.)

      Harold, R. Medina and William Gilbert for appellants.
    The circumstances surrounding the execution of the contract, the nature of the subject-matter and the object of the contract inevitably establish that time was intended to be the essence of the agreement. Smith v. Browning, 171 App. Div. 278; affd., 225 N. Y. 358; Gale v. Archer, 42 Barb. 320; Hun v. Bowden, 57 App. Div. 351; Fordham Triangle Realty Co. v. Boyle, 125 Misc. Rep. 324; Lese v. Lamprecht, 196 N. Y. 32.) The finding by the trial court that the plaintiffs had given the defendants notice on May twenty-first that further adjournments could not be had after May twenty-eighth was in all respects in accord with the weight of evidence and should not have been disturbed. The notice was moreover a reasonable notice, entirely competent to make time of the essence even assuming, though not conceding, that it was not originally so. (Schmidt v. Reed, 132 N. Y. 108; Taylor v. Joelet, 208 N. Y. 352; Darrow v. Cornell, 30 App. Div. 115; Pratt v. Clark, 118 App. Div. 633; Kahn v. Chapin, 152 N. Y. 305; Myers v. De Mier, 52 N. Y. 647; Schiffer v. Dietz, 83 N. Y. 300; Lawson v. Hogan, 93 N. Y. 39.) Under no circumstances can the decision of the Appellate Division granting specific performance as against the plaintiffs, who are merely assignees under the contract, be sustained. (Langel v. Betz, 250 N. Y. 159.)

      C. Alexander Capron, Arthur L. Marvin and David Kelly for respondents.
    The judgment appealed from is fully supported by the findings of the Appellate Division and by the findings of the trial court. (Jenkins v. Fahey, 73 N. Y. 355; Pakas v. Clarke, 136 App. Div. 492; 203 N. Y. 534; Strasbourger v. Hesu Realty Co., 198 App. Div. 805; Begen v. Pettus, 223 N. Y. 662; Myers v. De Mier, 52 N. Y. 647; Schiffer v. Dietz, 83 N. Y. 300; Foland v. Italian Savings Bank, 123 App. Div. 598.) The new findings made by the Appellate Division are amply supported by the evidence. (Lese v. Lamprecht, 196 N. Y. 32.) The judgment of specific performance as against the plaintiffs is valid and should be affirmed. (Langel v. Betz, 250 N. Y. 159.)
   O’Brien, J.

Defendants, other than Payne, held title to a tract of forty-five acres in Easthampton. March 1, 1926, they agreed in writing to convey it to him. He assigned the contract to plaintiffs but retained an interest in it. The date for closing title was designated in the contract as May 14 but written stipulations were exchanged whereby it was adjourned to May 21 and again to May 28. Plaintiffs were then able and willing to perform but the vendors were unable to pass a marketable title. Defendants requested but were refused another adjournment to June 11. Before that day, they succeeded in clearing the title and they so informed plaintiffs and have since been able and willing to perform. Plaintiffs refused to take title after May 28 and sued to recover the down payment. The answer demanded specific performance. The Special Term found the facts as above stated and also found that on May 21 plaintiffs had notified defendants that no other adjournment would be granted after May 28. It found as additional facts that the contract did not provide that the time of closing title was of the essence and that neither of the stipulations for adjournment provided that time was of the essence. No finding or conclusion was made by the trial court in relation to any issue whether time was or was not of the essence, but judgment was given for plaintiffs. The Appellate Division reversed, as against the weight of evidence, the finding that plaintiffs on May 21 notified defendants that May 28 would be the last adjournment, but it affirmed those concerning the absence in the contract and in the stipulations of any provisions making time of the essence. It made new findings to the effect that no notice was ever given which was sufficient to make time of the essence and that the request for adjournment to June 11 was reasonable and was unreasonably refused. It drew conclusions of law holding that defendants were entitled to a reasonable time in which to remedy defects ir> title and to prove marketability, dismissed the complaint and decreed specific performance as demanded in the answer. Plaintiffs ask for a reversal because, as they argue, the nature and object of the contract and the circumstances surrounding its execution establish that time was intended to be of its essence and that the trial court’s finding that plaintiffs had notified defendants on May 21 concerning a refusal to grant an adjournment beyond May 28 is in accord with the weight of evidence and should not have been disturbed. They argue, also, apparently as an extremely incidental and subordinate point, that the part of the judgment granting specific performance cannot be sustained.

We are asked, in effect, to draw an inference which in its nature must necessarily constitute one of fact, that, from all the circumstances, the parties originally intended time to be of the essence or, in any event, that, by notice subsequently given by one and accepted by the other, they later indicated such an intention. The complaint does not allege time as an essential element of the contract nor does either of the stipulations adjourning the date of closing suggest such an idea. No finding on this subject has been made either at Special Term or the Appellate Division and this court is without power to make an original one. Probably both parties sought to eliminate unnecessary delay. In nearly all instances after contracts have been signed, buyer and seller act to their mutual advantage when they refrain from postponement of performance. Generally neither will gain by deferring the transfer of title. All that is found by the Appellate Division to have been said and done by these parties is consistent with the ordinary procedure by which land is bought and sold. No finding before us removes this contract outside the operation of the rule that the mere designation of a particular date upon which a thing is to be done does not result in making that date the essence of the contract. (Day v. Hunt, 112 N. Y. 191; Schmidt v. Reed, 132 N. Y. 108, 113; Hun v. Bourdon, 57 App. Div. 351; Pomeroy Spec. Performance, § 392.) One claiming that element to be essential is bound, before he can support such a claim, to serve a clear, distinct and unequivocal notice fixing a reasonable time within which the thing must be done. (Myers v. De Mier, 52 N. Y. 647; Schiffer v. Dietz, 83 N. Y. 300, 312; Pomeroy Spec. Performance, § 396.) The Appellate Division, in reversing the finding that on May 21, 1926, plaintiffs orally notified defendants that no adjournment would be granted after May 28, did not, in our opinion, appraise the evidence as contrary to its weight. The testimony was conflicting, but one circumstance of extraordinary significance is so impressive as to warrant triers of facts in regarding it as decisive. On May 28, when the parties met for the last time, a record was kept of statements made by the attorneys for the respective parties. Counsel for plaintiffs assigned several reasons for their refusal to take title, but not once did he make reference to any notice nor did he then claim that any had been previously delivered. He said: My clients decline to grant any further adjournments as in this entire transaction they have felt that the question of time was very material.” No stronger characterization than this description of the element of time was ever made by either of the plaintiffs or by their attorney. Even this was not made until they had definitely decided to withdraw. This is far from the unequivocal notice exacted by the law. We agree with the finding that plaintiffs’ refusal to extend the time for closing to June 11 was unreasonable, and we are of the opinion that it was the duty of the vendees to accept the vendor’s tender on that date. The title was then perfect and no substantial prejudice to plaintiffs would have resulted.

A majority of the judges of the court are of the opinion that under our rulings in Crowley v. Lewis (239 N. Y. 264) and Langel v. Betz (250 N. Y. 159), the remedy of specific performance should have been confined fro the defendant Payne, and that the relief as to the plaintiffs should be limited to a dismissal of the complaint. As to this the writer of this opinion holds a different view.

The judgment should be modified in accordance with this opinion and as modified affirmed, with costs to respondents.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and Hubbs, JJ., concur.

Judgment accordingly.


author: Hobbs, J. O’Brien, J.

text:
    Joseph J. Lee, Respondent, v. Hamilton Fire Insurance Company, Appellant.

      (Argued May 1, 1929;
    decided July 11, 1929.)

      Frank Sowers and George Richards for appellant.
    Under the clear provisions of the policy on an automobile truck, a machine presumed to depreciate in value from use on the roads, and thus subject not only to losses caused by perils insured against but also to losses from causes not insured against, where a dispute exists as to the amount of loss by fire insured against, an appraisal and award if demanded are peculiarly appropriate and must always be had, being expressly made a condition precedent to any right of recovery under the policy. (Simpson on the Law of Automobile Insurance [2d ed. 1928], § 78; Cooley’s Briefs on Ins. [2d ed.] 6137; Soelberg v. Western Assur. Co., 119 Fed. Rep. 23; Swan v. Union Ins. Co., 3 Wheat. 168; Farcus v. Sarsfield, 6 El. & Bl. 192; New Orleans T. & M. Ry. Co. v. Union Marine Ins. Co., 286 Fed. Rep. 32; Rockwood Co. v. Northwestern F. & M. Ins. Co., 26 Fed. Rep. [2d] 824; Zillah Trans. Co. v. Ætna Ins. Co., 221 N. W. Rep. 529; Am. Central Ins. Co. v. District Court, 125 Minn. 374; Itasca Paper Co. v. Niagara Fire Ins. Co., 220 N. W. Rep. 425; Littwell v. Allemannia Fire Ins. Co., 222 App. Div. 302; Yendel v. Western Assur. Co., 21 Misc. Rep. 348; Gasser v. Sun Fire Office, 42 Minn. 315.) The unanimous award of the appraisers and umpire finally and conclusively determines that prior to the loss by fire the car had sustained a substantial depreciation in value and that the loss by fire alone was a partial loss. (Remington v. London Assur. Corp., 12 App. Div. 218; Mayer v. Phoenix Assur. Co., 124 App. Div. 241; Commercial Union Assur. Co. v. Dalzell, 210 Fed. Rep. 605; Caledonian Ins. Co. v. North Dutch Church, 95 N. J. Eq. 496; 96 N. J. Eq. 342; Doherty v. Phoenix Ins. Co., 224 Mass. 310; Union Inst. v. Phoenix Ins. Co., 196 Mass. 230; Phoenix Ins. Co. v. Everfresh Food Co. 294 Fed. Rep. 51.) The trial court, having found as a fact that the parties, after the loss and disagreement as to the amount thereof, entered into a written agreement providing that the amount of the loss by fire alone should be determined by appraisers, and such determination having been made, erred in finding that the written agreement entered into by plaintiff and defendant insurer on November 4, 1921, did not preclude plaintiff from seeking to recover the stipulated value of the truck as a total loss. (Silver v. Western Assur. Co., 164 N. Y. 381; Broadway Ins. Co. v. Doying, 55 N. J. L. 569; Montgomery v. American Central Ins. Co., 108 Wis. 146; Hall v. Norwalk Fire Ins. Co., 57 Conn. 105; Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N. Y. 435; Security Printing Co. v. Ins. Co., 209 Mo. App. 422; London & L. Fire Ins. Co. v. Storrs, 71 Fed. Rep. 120; Vincent v. German Ins. Co., 120 Iowa, 272; Bangor Sav. Bank v. Niagara Fire Ins. Co., 85 Me. 68.) The insurance being for a year upon an automobile subject to the usual depreciation and wastage of value, and the loss having occurred after seven months’ use, the trial court erred in finding that the policy issued by defendant was a valued policy for $5,720 as stipulated damages in the event of total loss. (Norwich Union F. Ins. Soc. v. Bainbridge Grocery Co., 16 Ga. App. 432; Ins. Co. of North Am. v. Willey, 212 Mass. 75; McAnarney v. Newark F. Ins. Co., 247 N. Y. 176; Lewis v. Rucker, 2 Burr. 1167; Gulf Refining Co. v. Atlantic Mut. Ins. Co., 27 Fed. Rep. [2d] 678; Haven v. Gray, 12
      Mass. 71; Wolcott v. Eagle Ins. Co., 4 Pick. 429; 2 Phillips on Ins. § 1196; Forbes v. Aspinall, 13 East, 327; Joyce v. St. Paul F. & M. Ins. Co., 211 S. W. Rep. 390; Aron & Co. v. U. S. Lloyds, 275 Fed. Rep. 442; Gibson v. Glens Falls Ins. Co., 111 Neb. 827; Center Garage Co. v. Columbia Ins. Co., 96 N. J. L. 456.)

      Ernest Angell and Irving I. Goldsmith for respondent.
    The insured discharged fully the burden of establishing that the loss was due to fire alone and was not due to perils not insured against, such as depreciation from use. (Edwards v. Maryland Motorcar Ins. Co., 204 App. Div. 174.) The purpose and effect of a “ valued ” policy is to fix conclusively in advance of total loss the value of the property insured and thus establish the extent of the insurer’s liability in the event of total loss. (Michael v. Prussian Nat. Ins. Co., 171 N. Y. 25; Columbia Trust Co. v. NorskeLloyd Ins. Co., Ltd., 100 Misc. Rep. 550; 183 App. Div. 896; 186 App. Div. 897; 229 N. Y. 556; Sturm v. Atlantic Mutual Ins. Co., 63 N. Y. 77; Empire Development Co. v. Title Guarantee & Trust Co., 225 N. Y. 53; New York & Cuba Mail SS. Co. v. Royal Exchange Assur., 154 Fed. Rep. 315; Providence & Stonington SS. Co. v. Phoenix Ins. Co., 89 N. Y. 559; O’Brien v. North Biver Ins. Co., 212 Fed. Rep. 102; Luce v. Springfield Fire & Marine Ins. Co., 15 Fed. Cas. 1071.) The award of the appraisers finding a partial loss only and fixing the “ sound value ” at the time of loss to be less than the agreed value fixed by the policy is not binding on the insured. Upon due proof of total loss, insured may recover for the full agreed value of the property. (Steinberg v. Boston Ins. Co., 144 App. Div. 110; Broadway Ins. Co. v. Doying, 55 N. J. L. 569; Montgomery v. American Central Ins. Co., 108 Wis. 146; Hall v. Norwalk Fire Ins. Co., 57 Conn. 105; Bosenwald v. Phoenix Ins. Co., 50 Hun, 172; Lang v. Eagle Fire Ins. Co., 12 App. Div. 39; Elliott v. Fidelity-Phoenix Fire Ins. Co., 267 S. W. Rep. 441; Pennsylvania Fire Ins. Co. v. Drackett, 57 N. E. Rep. 962; Queen Ins.

      Co. v. Leslie, 24 N. E. Rep. 1072; Springfield Fire & Marine Ins. Co. v. Homewood, 32 Okla. 521; Joyce v. St. Paul F. & M. Ins. Co., 194 S. W. Rep. 745; 211 S. W. Rep. 390.)
   Hobbs, J.

The plaintiff insured his new automobile truck with the defendant insurance company for $5,720. The trial court has decided that the policy covering the truck is a valued policy, that there was a total loss of the truck by fire, and has awarded judgment to the plaintiff for the amount of the policy. Before this action was commenced, appraisers selected by the parties had fixed the sound value of the truck at the time of the fire at $3,700 and the loss and damage at $2,700.

A valued policy is one in which the words “ valued at appear and the amount at which the property insured is valued at definitely fixes the liability of the insurer and is conclusive on the parties. (Michael v. Prussian Nat. Ins. Co., 171 N. Y. 25; Phoenix Ins. Co. v. McLoon, 100 Mass. 475.) The policy in question fixes the amount at which the property was insured or valued at as $5,720. It is, therefore, a technical valued policy.

In case of a total loss under a valued policy the amount to be recovered is the amount of the policy without regard to depreciation or other elements entering into the market value of the property at the time of the loss. The appraisal clause in a valued policy is inoperative when there is a total loss. (Empire Development Co. v. Title G. & T. Co., 225 N. Y. 53., 58; Penna. Fire Ins. Co. v. Drackett, 63 Ohio St. 41.)

Consent to an appraisal does not constitute a waiver of claim to a total loss. (Penna. Fire Ins. Co. v. Drackett, supra; Seyk v. Millers Nat. Ins. Co., 74 Wis. 67.)

An appraisal clause does not permit appraisers to determine whether a loss was in fact total, as an appraisal is to determine the amount of damage only. (Hartford Fire Ins. Co. v. Bourbon County Court, 115 Ky. 109.)

The question to be determined under the appraisal in this case was, what was the loss or damage.” The words “ loss or damage ” as used in the policy are explained and limited by the policy which reads: " In the event of loss or damage under this policy, this Company shall be hable only for the actual cost of repairing or, if necessary, replacing the parts damaged or destroyed.” It also provides that in case of loss or damage ” the policy shall be reduced by the amount of such loss or damage.” Such provisions can only refer to a “ loss or damage ” less than a total loss. The provision of the policy for an appraisal reads: In the event of disagreement as to the amount of loss or damage,” an appraisal shah be had, etc.

It seems clear that the appraisal was to cover only loss or damage ” less than a total loss. If the insured under such a policy claims a total loss and the insurer a partial loss, and the latter insists on an appraisal, the granting of the appraisal by the insured cannot estop him from litigating the question of a total loss. If it be decided that the loss was not total, then the appraisal stands, but if it be decided that the loss was total, then under the valued policy the plaintiff would be entitled to receive the amount of the policy. Any other construction disregards the fact that the policy is a valued policy and treats it as an open policy.

The judgment should be affirmed, with costs.

O’Brien, J.

(dissenting). Assume that the policy is a valued one and that, in the event of total loss, the full value as therein stated is recoverable. Assume also that when property insured under a valued policy is 'Conceded to have been completely destroyed and to have passed out of existence, appraisal may not be enforced. (Rosenwald v. Phoenix Ins. Co., 50 Hun, 172; Lang v. Eagle Fire Co., 12 App. Div. 39.) When, however, the parties to an insurance contract disagree respecting the fact whether damage is partial or loss is total that rule does not apply, In such circumstances an appraisal provision in a policy controls. (Williamson v. Liverpool & London & Globe Ins. Co., 122 Fed. Rep. 59; Littrell v. Allemannia Fire Ins. Co., 222 App. Div. 302.) This policy provides for an appraisal “in the event of disagreement as to the amount of loss or damage.” The parties disagreed, one asserting that the loss was total, the other that the damage was only partial. After such disagreement, they contracted by formal written instrument, pursuant to the terms of the policy, to submit to appraisers for determination concerning the amount of loss or damage. Such a determination necessarily includes ascertainment whether the loss is total or the damage partial. If a total loss is concluded by the appraisers, the amount payable is the sum at which the property is valued in the policy; if a partial damage is decided, then the amount is “ the actual cost of repairing or, if necessary, replacing the parts damaged or destroyed.” A loss is total only when the property has sustained such extensive damage that repairs would not be reasonably practicable. (Corbett v. Spring Garden Ins. Co., 155 N. Y. 389, 394; Slocum v. Saratoga & W. Fire Ins. Co., 149 App. Div. 867, 870.) Since no charge of fraud, corruption or obvious mistake is made, the appraiser’s determination of a loss or damage less than total seems to me to be conclusive. In the prevailing opinion three cases in other States are cited with approval. (Penna. Fire Ins. Co. v. Drackett, 63 Ohio St. 41; Seyk v. Millers Nat. Ins. Co., 74 Wis. 67, and Hartford Fire Ins. Co. v. Bourbon County Court, 115 Ky. 109.) All those decisions are based upon statutes the operation of which is of course limited to their respective States. Believing that the true rule in New York is announced in Littrell v. Allemannia Fire Ins. Co. (supra), I vote for reversal.

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

Judgment affirmed.


author: Cardozo, Ch. J.

text:
    Isidore Foreman, Appellant, v. Myron Foreman, an Infant, by James J. Conroy, His Guardian ad Literri, Respondent.

      (Submitted May 2, 1929;
    decided July 11, 1929.)

      Charles Saleson for appellant.
    The trial court erred in disregarding the uncontradicted testimony of disinterested witnesses. (Lomer v. Meeker, 25 N. Y. 361; Bryan v. Lawatschek, 191 N. Y. Supp. 317; Block v. Galitzka, 114 App. Div. 799; Walbaum v. Heaney, 104 App. Div. 412; McKeon v. Van Slyck, 223 N. Y. 392.) A court of equity should invest plaintiff with title to the property. The Statute of Frauds is not operative as an instrument of depriving one of his property. (Gage v. Gage, 31 N. Y. Supp. 903; Carr v. Carr, 52 N. Y. 251; Whitaker v. Westberg, 124 Misc. Rep. 556; Waters v. Hall, 218 App. Div. 149; Weigert v. Schlesinger, 150 App. Div. 765; 210 N. Y. 573; Wood v. Rabe, 96 N. Y. 414; Graham v. Graham, 134 App. Div. 777; Gallagher v. Gallagher, 135 App. Div. 457; 202 N. Y. 575; Goldsmith v. Goldsmith, 145 N. Y. 313.) An oral agreement between husband and wife whereby the husband purchases property in the name of the wife upon her agreement to hold the same in trust for him is enforceable. (Tiedemann v.
      Tiedemann, 115 Misc. Rep. 782; 201 App. Div. 614; 236 N. Y. 534; Edelman v. Edelman, 232 N. Y. Supp. 288; Gallagher v. Gallagher, 135 App. Div. 457; 202 N. Y. 572; Goldsmith v. Goldsmith, 145 N. Y. 314.) The acts of part performance by the plaintiff in reliance upon the agreement are sufficient to take the case out of the operation of the Statute of Frauds. (Burns v. McCormick, 233 N. Y. 232; Woolley v. Stewart, 222 N. Y. 347; Smith v. Smith, 125 N. Y. 224; Wheeler v. Reynolds, 66 N. Y. 227; Waters v. Hall, 218 App. Div. 149.)

      Thomas F. Thornton and James J. Conroy for respondent.
    The fact that there was no contradictory testimony did not compel the trial court to adopt the statements of the witnesses for the plaintiff. (Lomer v. Mecker, 25 N. Y. 361; Tousey v. Hastings, 194 N. Y. 79; McKeon v. Van Slyck, 223 N. Y. 392; Ward v. N. Y. Life Ins. Co., 225 N. Y. 314; Koehler v. Adler, 78 N. Y. 287.) The defendant’s title is not subject to any trust by virtue of the provisions of section 94 of the Real Property Law. (Wiegert v. Schlesinger, 150 App. Div. 765; 210 N. Y. 573; McCartney v. Titsworth, 119 App. Div. 547; Wood v. Robe, 96 N. Y. 414; Goldsmith v. Goldsmith, 145 N. Y. 313; Gage v. Gage, 83 Hun, 362.) The alleged agreement, if any, not being in writing is void under section 242 of the Real Property Law. (Burns v. McCormick, 233 N. Y. 232; Woolley v. Stewart, 222 N. Y. 347.)
   Cardozo, Ch. J.

A house and lot in the city of New York was conveyed to Edith Foreman in January, 1924. The purchase price, $25,500, was paid by her husband, the plaintiff. There is testimony that he asked her to take the contract and conveyance in her name because he wished to keep his real estate separate from the property that was used in his business. There is testimony that she promised to give him a deed upon demand and to dispose of the land or the proceeds in accordance with Ms wishes. After the purchase had been made, he collected the rents and used them as his own. He paid the taxes, the insurance premiums, the interest on the mortgages, and the cost of improvements and repairs. The dommion that goes with ownership was continuously Ms.

The wife died intestate in 1925, leaving as her sole heir an infant son, the defendant, to whom the legal title has descended, subject to a life estate in the plaintiff as tenant by the curtesy. TMs action is brought to compel a conveyance to the plaintiff in fulfillment of the oral trust. Judgment has gone for the defendant on the ground that the trust is unenforcible under the Statute of Frauds (Real Prop. Law [Cons. Laws, ch. 50], § 242).

■ The rule is now settled by repeated judgments of this court that the statute does not obstruct the recogmtion of a constructive trust affecting an interest in land where a confidential relation would be abused if there were repudiation, without redress, of a trust orally declared (Sinclair v. Purdy, 235 N. Y. 245, 253; Gallagher v. Gallagher, 135 App. Div. 457; 202 N. Y. 572; Leary v. Corvin, 181 N. Y. 222, 229; Goldsmith v. Goldsmith, 145 N. Y. 313; Wood v. Robe, 96 N. Y. 414; cf. Scott, Conveyance upon Trusts not Properly Declared, 37 Harv. L. Rev. 653, 661, 669; Scott, Resulting Trusts, 40 Harv. L. Rev. 669; Costigan, Constructive Trusts, 28 Harv. L. Rev. 237, 256, 266, 374; Ames, Lectures on Legal History, 425, 432). Criticism of the rule as involving a partial repeal of the proMbition of the statute is heard from time to time in commentary and treatise. Whatever force the criticism may have had while the rule was in the maMng, has vaMshed with the years. By long acquiescence, the exception, if such it be, has wrought itself by construction into the body of the statute as if written there from the beginmng. “ It is not the promise only, nor the breach oMy, but unjust enrichment under cover of the relation of confidence, which puts the court in motion ” (Sinclair v. Purdy, supra,).

The husband paid for the land and managed and improved it. The wife, far from attempting to rid herself of the trust because orally declared, submitted to it as completely as if seals and parchments had perfected the evidence of duty (cf. Bork v. Martin, 132 N. Y. 280). No objection was heard from her, or none that has been disclosed, when the husband gathered in the rents and used them for himself. In its origin the trust was dependent for proof of its existence on nothing better than word of mouth. In the end, at her death, what was oral in its beginnings, had been confirmed by part performance, with the result that conduct as well as words had become the signs of its creation (Jeremiah v. Pitcher, 26 App. Div. 402; affd., 163 N. Y. 574; McKinley v. Hessen, 202 N. Y. 24; Burns v. McCormick, 233 N. Y. 230). The wife would have been guilty of an abuse of confidence by disclaimer during life. Her heir will not be suffered to nullify her submission to the call of equity and honor by disclaimer after death.

Nothing in the statute as to the implication of resulting trusts is at war with this conclusion (Real Prop. Law, § 94). The statute has put an end to the rule at common law that where a grant is made to one for a consideration paid by another a trust results inevitably and always, by force merely of the payment, irrespective of intention (Garfield v. Hatmaker, 15 N. Y. 475, 477; Scott, Resulting Trusts in Purchase of Land, 40 Harv. L. Rev. 675). The conveyance is operative according to its terms if nothing else is proved. The statute has no effect, however, on trusts constructively imposed as a consequence not of payment alone, but of payment in combination with other or extrinsic equities. As to this the decisions are uniform and ample. “ It is only the common-law trust for the benefit of an individual from whom the consideration for a grant issues, and resulting from the fact of payment of the consideration, and having no other foundation, that the statute abolishes ” (Carr v. Carr, 52 N. Y. 251, 260; Gage v. Gage, 83 Hun, 362; Jeremiah v. Pitcher, supra; Leary v. Corvin, supra; Wood v. Rabe, supra; Scott, Conveyances upon Trusts not Properly Declared, 37 Harv. L. Rev. 653, 661, 669; Costigan, The Classification of Trusts, 27 Harv. L. Rev. 437; cf. as to resulting trusts, Perry on Trusts, § 124, and as to constructive trusts, the same author, § 166).

Enough and ample there is here to put the case for the plaintiff in the field uncovered by the statute. His equity does not grow out of payment and nothing more. It is reinforced* by words of promise, by the relation of man and wife, and by unequivocal acts of confirmation and performance. In such circumstances, the plastic remedies of the chancery are moulded to the needs of justice. Where, as in Leary v. Corvin (supra), the one whose confidence has been abused, has paid part of the consideration, and part only, a hen proportioned to the value thus contributed will be charged upon the land. Where, as in the case at hand, the full price has been paid by the victim of the wrong, unjust enrichment will ensue if the holder of the legal title retains for his own use any portion of the purchase, and the trust will reach the whole (Scott, 40 Harv. L. Rev. 673).

What has been written assumes that the testimony of the plaintiff’s witnesses is truthful and accurate. As to this there is a question of credibility which the trier of the facts, and not this court, must resolve. True, the testimony is uncontradicted, and to some extent, besides, has corroboration in the circumstances, yet in view of the death of the wife, with direct contradiction difficult, if not impossible, a question of fact remains (Tousey v. Hastings, 194 N. Y. 79; McKeon v. Van Slyck, 223 N. Y. 392, 398). The trial judge did .not decide it either one way or the other (Galle v. Tode, 148 N. Y. 270, 277; Morehouse v. B. H. R. Co., 185 N. Y. 520, 527, 528; Alcock v. Davitt, 179 N. Y. 9). He placed his ruling on the ground that the trust, if declared, was void under the statute. There is need of a new trial.

The judgment of the Appellate Division and that of the Special Term should be reversed and a new trial granted, with costs to abide the event.

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

Judgments reversed, etc.


text:
    Frenkel & Co., Inc., Appellant and Respondent, v. L'Urbaine Fire Insurance Company of Paris, France, Respondent and Appellant, Impleaded with Others.

      (Argued May 27, 1929;
    decided July 11, 1929.)

      Ralph Earl Prime, Jr., and W. C. Prime for plaintiff, appellant and respondent.
    The first separate defense is insufficient in law. {Lawrence v. Fox, 20 N. Y. 268; James v. Second Russian Ins. Co., 239 N. Y. 248; Russian Reinsurance Co. v. Stoddard, 240 N. Y. 149.) The second separate defense is palpably insufficient. (St. John v. Fowler, 229 N. Y. 270; Bigelow v. Old Dominion Co., 225 U. S. 220; Alaska Commercial Co. v. Debney, 2 Alaska, 303; U. S. Life Ins. Co. v. Hellinger, 130 App. Div. 415; Farrell v. Farrell, 122 App. Div. 605; Matter of Neidnig, 123 App. Div. 894; Cook v. Conners, 215 N. Y. 175.)

      Hartwell Cabell and Blaine F. Sturgis for defendant, respondent and appellant.
    The first defense is sufficient in law on its face and was properly sustained by both lower courts. (Stoehr v. Wallace, 255 U. S. 239; Schrijver v. Sutherland, 19 Fed. Rep. [2d] 688; Brown v. United States, 8 Cranch, 122; Conrad v. Waples, 96 U. S. 279; Miller v. United States, 11 Wall. 268; Hilton v. Guyot, 159. U. S. 113; Johnston v. Comp. Generate Transatlantique, 242 N. Y. 381.) The second separate defense pleads a French judgment as res adjudicola, and is sufficient in law on its face. (Ter Knile v. Marsland, 81 Hun, 420; Deagen v. Weeks, 67 App. Div. 410; State v. Torinus, 28 Minn. 175; McArthur v. Moffett, 143 Wis. 564; Munich Reinsurance Co. v. First Reinsurance Co., 300 Fed. Rep. 345; Disconto-Gesettschaft v. U. S. Steel Co., 267 U. S. 22; Risley v. Phenix Bank, 83 N. Y. 318; Broadway C. S. Corp. v. Buchanan Rest. Co., Inc., 218 App. Div. 594; Mutzenbecher v. Ballard, 16 Fed. Rep. [2d] 173; Miller v. Rouse, 276 Fed. Rep. 715; Matter of Bendheim, 124 Misc. Rep. 424; 214 App. Div. 716; Matter of Bendit, 214 App. Div. 446; Gould v. Gould, 235 N. Y. 14; Russian Republic v. Cibrario, 235 N. Y. 255; Johnston v. Compagnie Generate, etc., 242 N. Y. 381.)
   O’Brien, J.

Alfred and Robert Scharnberg are German nationals and, as partners, conducted an insurance business in Paris. Defendant L’Urbaine Compagme Anonyme d’Assurances contre l’lncendie is a French corporation and has its principal office in that city. On December 10, 1913, at Paris, they executed a written contract, confirming a previous oral agreement whereby the partnership, in consideration of services which it had then fully performed in procuring representation by an agent for the corporation in the United States, became entitled to commissions on premiums to be collected in dollars by that agent in this country during the fifteen years to ensue from January 1, 1913. The Scharnbergs’ services for defendant were rendered with .the assistance of and in collaboration with plaintiff, a New York corporation. Since the year 1910 a written agreement has existed between plaintiff and the Scharnbergs for an equal division of all net profits arising from their joint transactions. The declaration of war between the French Republic and the Imperial German Government occurred August 3, 1914, and on August 27, Scharnberg & Company, for value, assigned its interest in the contract to plaintiff. The place where this assignment was made does not appear. The French corporation is alleged to have collected more than twenty million dollars in premiums on insurance effected by its American agent during the years 1920 to 1926, inclusive. No commission has been paid on these premiums either to Scharnberg & Company or to its assignee. Plaintiff, as assignee for value, demands an accounting for those years. Two separate defenses are pleaded in the answer. By certified questions we are asked to decide their sufficiency.

The first separate defense quotes the French statute enacted September 27, 1914, which is declared by its terms to be retroactive to August 4, 1914. Article 2 of this act provides: "Any agreement or contract drawn in any and every place between French citizens * * * and subjects of the Empire of Germany * * * is null and void as contrary to public policy. The annulment provided for in the foregoing paragraph will commence on the date of August 4, 1914 * * * and shall have force and effect during the whole period of hostilities and up to and until the date which shall be declared later by further decree.” Article 3 provides: “ During the same period it is forbidden and declared void and as contrary to public order to carry out for the benefit of subjects of the Empire of Germany * * * monetary obligations or other obligations arising out of any agreement or contract entered into prior to the date stated in paragraph 2 of Article 2 hereof either on French territory or on territory under French protection by any person whatsoever and in whatsoever place, by French citizens or persons under the French Protectorate.” The later statutes, decrees, ordinances, administrative acts and treaty provisions which are also pleaded in the first separate defense add nothing to the effect produced by this statute. If its intent has been correctly interpreted by the courts below and if comity requires us to enforce that intent against our own citizen who, before the enactment .of the law, became an assignee for value, then the case has been rightly decided.

The literal terms of the first paragraph of article 2, standing alone, might be read as sufficiently comprehensive to include the annulment and avoidance of every contract which had ever been drawn anywhere between French and German nationals, but hardly conceivable is it that a modern civilized government would undertake the task of enforcing a law so sweepingly confiscatory and certain to encounter bitterest opposition and obstruction from every neutral nation whose citizens, before the declaration of war, had acquired substantial rights under some of those contracts. In all probability no such scope was designed: The range of operation must be gauged as far less extensive than a literal interpretation of the first paragraph might perhaps justify. The two articles read together in their entirety may be taken to display an intent that the statute should be prospective as of the date of the declaration of war. Every contract between French and German nationals drawn after that date was made null and void. Every contract between those nationals executed prior to that date was forbidden to be carried out, after that date, for the benefit of German subjects. The contract in suit was made between Frenchman and German long before the declaration of war and consequently it does not come within the condemnation of article 2. The assignment of that contract after August 4 was by a German to a citizen of this State but the facts as pleaded in the answer do not take it within the operation of article 3. The prohibition of this article is directed against contractual performance for the benefit of German .subjects. It does not assume to deal with performance which can be beneficial only to others. When the complaint alleges an assignment for value to one who is not a German subject, the special defense, as far as article 3 is concerned, is defective for failure to allege an intention to leave the beneficial ownership in the German. The purpose of this article is doubtless similar to that of our own war-time statute which was interpreted in Stoekr v. Wallace (255 U. S. 239). This plaintiff has always owned a half interest in this contract and by the assignment for value of the Scharnbergs’ half, it .acquired the whole. In view of the pleading, we do not need to decide the nature of plaintiffs’ rights, if any, in the event that the answer should allege that the assignment was a cover or a sham and that plaintiff holds the cause of action to the use of its German assignor. Apparently the French Republic never attempted to assert the far-reaching power to confiscate contracts made before the war, especially those in which friendly neutrals were interested. A learned author who has studied the French decisions concludes that the decree “ did not annul any existing contracts, not even those the execution of which would inure to the benefit of the enemy; it went no further than to suspend performance of the stipulations during the existence of the war.” (1 Garner on International Law and the World War, § 173.)

If, however, the decree were to be read as intended to include the contract in suit and its assignment, to the plaintiffs, we think there is no principle of private or public international law that imposes on our courts a duty to enforce it. We would depart from our settled rule if we were to hold that either comity or public policy would require us to give effect to a confiscatory mandate of a foreign power against our own citizen. (James & Co. v. Second Russian Ins. Co., 239 N. Y. 248, 257; Russian Reinsurance Co. v. Stoddard, 240 N. Y. 149, 163.) The moneys for which this action is brought did not fall due while hostilities were in progress. They accrued after the peace. Since April, 1922, defendant has paid nothing to the French liquidator and the record does not indicate that that official now makes any claim to them. Certainly they have not been seized and sequestered. Assuming that the war power includes the right to confiscate a debt due to an enemy national, confiscation is not consummated by mere declaration. The debt does not automatically become vested in the government. It seems that actual payment must be exacted. (Ware v. Hylton, 3 Dallas [U. S.], 199, 226.) Plaintiff in its brief disclaims any intention of an attempt to require double payment. The original contract was valid. The assignment for value is not shown to have been infected by any fraud nor even by a secret intent to leave the actual beneficial interest in the assignor; it was not forbidden by any law when it was made nor does its subject-matter consist of tangible property the situs of which is within a foreign jurisdiction. (Direction Der Disconio-Gesellschaft v. U. S. Steel Corp., 267 U. S. 22; Schrijver v. Sutherland, 19 Fed. Rep. [2d] 688.) This intangible property right is a chose in action and is the outgrowth of business transacted in this country through defendant’s American agent. Since the year 1910, plaintiff has possessed a half interest in it. We think, therefore, that the first defense on its face is not sufficient in law.

In respect to the second separate defense, we agree with the reasoning and result at the Appellate Division. Accordingly, the order should be modified by reversing so much thereof as sustains the first defense and, as so modified, affirmed, with costs to the plaintiff in the Appellate Division and in this court. The certified questions should be answered “No.”

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and HuBBSj JJ., concur.

Ordered accordingly.


author: Crane, J.

text:
    Florence E. Ben-Oliel, Appellant, v. The Press Publishing Company, Respondent.
    (■Argued June 3, 1929;
    decided July 11, 1929.)

      E. Jean Nelson Penfield for appellant.
    The article is libelous per se. (Cropp v. Tilney, 3 Salk. 226; Sydney v. MacFadden Newspaper Pub. Corp., 242 N. Y. 208; Morrison v. Smith, 177 N. Y. 366; Triggs v. Sun P. & P. Co., 179 N. Y. 144; Bennett v. Commercial Ad. Assn., 230 N. Y. 125; Morey v. Morning Journal Assn., 123 N. Y. 207; Bergmann v. Jones, 94 N. Y. 51; Adirondack Record v. Lawrence, 202 App. Div. 251; d’Altomonte v. N. Y. Herald, 154 App. Div. 453; 208 N. Y. 596; Snyder v. N. Y. Press, 137 App. Div. 291; Hart v. Woodbury, etc., 113 App. Div. 281.) The form of the publication cannot be relied upon to relieve defendant of liability. (Sanderson v. Caldwell, 45 N. Y. 398; Sydney v. MacFadden Newspaper Pub. Corp., 242 N. Y. 208; Witterman Bros. v. Witterman Co., 88 Misc. Rep. 266; Corrigan v. BobbsMerrill Co., 228 N. Y. 58; Husted v. Husted Co., 193 App. Div. 493; Klaw v. N. Y. Press Co., 137 App. Div. 686; Bresslin v. S. P. & P. Assn., 177 App. Div. 92; Lawyers’ Co-operative v. West Pub. Co., 32 App. Div. 585.) It is not necessary to plead special damage in order to charge the defendant with liability as for libel. (Triggs v. Sun P. & P. Assn., 179 N. Y. 144; Van Heusen v. Argenteau, 194 N. Y. 309; Carr v. Sun P. & P. Assn., 177 N. Y. 131; Fleischman v. Bennett, 87 N. Y. 231; Caldwell v. Raymond, 2 Abb. Pr. 193; Blaisdell v. Raymond, 4 Abb. Pr. 446; Fry v. Bennett, 5 Sandf. 54; Stephens v. Patton, 208 App. Div. 63; Sydney v. MacFadden Newspaper Pub. Corp., 242 N. Y. 208.) The facts as alleged in the second cause of action herein pleaded fully and adequately state a cause of action under section 51 of the Civil Rights Act for defendant’s infringement of plaintiff’s right of privacy. (Rhodes v. Sperry-Hutchinson, 193 N. Y. 223; Ellis v. Hurst, 70 Misc. Rep. 122; Meser v. Press Pub.

      Co., 59 Misc. Rep. 78; Colyer v. Fox Pub. Co., 162 App. Div. 297; Jeffries v. N. Y. Eve. Journal Pub. Co., 67 Misc. Rep. 570; Almind v. Sea Beach Railway, 157 App. Div. 230; Binns v. Vitagraph Co. of America, 147 App. Div. 783.).

      Charles B. Brophy for respondent.
    The article complained of is not libelous per se. (Corr v. Sun P. & P. Assn., 177 N. Y. 131; Van Heusen v. Argenteau, 194 N. Y. 309; Crashley v. Press Publishing Co., 179 N. Y. 27; Reporters’ Association v. Sun P. & P. Assn., 186 N. Y. 437; McNamara v. Goldan, 194 N. Y. 315; O’Connell v. Press Pub. Co., 214 N. Y. 352; Cole v. Levy, 212 App. Div. 84; Triggs v. Sun P. & P. Assn., 179 N. Y. 144.) The second count of the complaint does not set forth a cause of action under the Civil Rights Law. (d' Altamonte v. New York Herald Company, 208 N. Y. 596; Binns v. Vitagraph Co., 210 N. Y. 51.)
   Crane, J.

This is an action for libel. The amended complaint has been dismissed for failure to state a cause of action. It alleges the following:

First. It alleges the plaintiff’s occupation and profession. She is a professional lecturer, writer and teacher, specializing on the life and social customs of Palestine and Mosaic symbolism, sometimes designated, The Symbolism of the Tabernacle.” Out of this work she makes her living. Her livelihood is dependent upon her reputation as an authority on these subjects. In other words, this allegation in the complaint has the same legal force and effect as if it alleged that the plaintiff was a lawyer or a physician or scientist whose livelihood depended upon his standing in the community for skill, ability and integrity.

The complaint alleges in connection with the plaintiff’s profession as a lecturer and writer on these subjects that she enjoyed a wide reputation for learning, historical integrity, accuracy, and for trustworthiness in the presentation of facts. She is a Chautauqua lecturer on the life in Palestine. She lectures in the churches throughout this country and Canada on the customs and the social practices, and spiritual teaching under the Mosaic law. Her lectures and writings embody the result of personal, scientific research and study.

Second. The defendant, a newspaper corporation, so the complaint alleges, published on the 15th day of April, 1923, an article in its paper purporting to have been written by the plaintiff. It states that the article is her article, which is false •— she never wrote it. This article states her views upon the social customs of Palestine under the Mosaic law, which the plaintiff also alleges are false. The statement written by her is more than an expression of her views and opinions; it contains her assertion of scientific or sociological facts, statements of customs and habits which the plaintiff says are false and untrue and known to every person familiar with the life in Palestine or with the Mosaic law as being false and untrue. These habits and customs which the defendant has published as facts stated by this plaintiff, relate to the Hebrew marriage and divorce, and the preparation or examination of the man and woman about to be united in wedlock. The article also contains a statement as a fact given by the plaintiff in relation to the ease with which divorce may be obtained. The plaintiff is published as having said, “After living many years in the Near East for the purpose of studying the real meanings of the Old Testament, and learning while there the customs and ideals and language of Palestine, I again affirm that they know perfect marriage and that we do not.” There follows a statement regarding “ The Symbolism of the Tabernacle ”— “ true and yet idealistic teaching of social hygiene that makes marriage in the Holy Land perfect.” There then follows a statement of how the young Jewish boy of thirteen or fourteen who has amassed a little money is prepared and examined for his bride, and likewise the methods of examination conducted upon the young girl who is about to take the young man for her husband. The description and wisdom of the matchmaker in Palestine in the examination of youths and maidens, that they may be properly mated, is then set forth: He wants, perhaps, a slender little girl with black hair. The matchmaker searches her out and presenting her to the boy is able with a few skilled words to show him this is the very girl he has always visioned.” In this fashion the article continues. Without quoting more, the complaint alleges in substance that the plaintiff has stated as of her knowledge, social customs and conditions regarding the ideal marriage and divorce in Palestine. She alleges in the complaint that these facts are absolutely false, ridiculous and grotesque; that such customs and habits do not exist; that she never made such statements or wrote such an article; and that the matters stated as facts are grossly false, and known to the defendant to be false.

Third. We now have in this complaint the plaintiff alleging herself to be a teacher and lecturer on life in Palestine and under Mosaic law; we have the defendant publishing an article “ by Florence Ben-Oliel ” which refers to her experience in the Holy Land, and represents her as stating facts about life and customs there which are absolutely false and untrue; that no such social customs exist. AND:—

We now have the damage. The statement of these facts as coming from a skilled traveler and observer makes her out ridiculous, a fraud, a deceiver and a charlatan. Everybody acquainted with life in Palestine knows that such customs do not and have not existed, and that the plaintiff, who represents herself in her profession as being historically accurate and learned on these subjects, is ignorant as well as stupid. In other words, the complaint alleges that the plaintiff makes her livelihood through her reputation as a writer and lecturer on the life in Palestine under the Mosaic law; that the defendant has falsely printed an article by her which makes her out a deceiver, a falsifier, and holds her up to ridicule and derision in the eyes of all those in any way acquainted with the land, its people and its past.

In order to constitute a libel, it is not necessary for the defendant in its paper to directly attack the plaintiff as an ignorant imposter. The same result is accomplished by putting in her mouth or attaching to her pen words which make self-revelation of such a fact. One may say of a physician that he is an ignorant quack, or he may print a statement by the physician regarding some operation performed by him or some treatment of a disease which shows him to the profession to be an ignoramus and a bungler. Both of these publications would be libelous. This publication regarding the plaintiff is an attack upon her profession and livelihood, and is libelous without plea or allegation of special damage.

Suppose the defendant had published of the President or of the Governor of this State an article purporting to have been written by him, in which his views therein expressed were false and contrary to his avowed principles theretofore made known to the public, and further, that it contained statements of fact regarding public finances or prohibition or the tariff, which were grossly inaccurate and absurd and ridiculous in the eyes of those acquainted with governmental matters. Would not such an article be libelous?

The law of libel is very simple, and, briefly, is this: “ ‘ Whatever words have a tendency to hurt, or are calculated to prejudice a man who seeks his livelihood by any trade or business, are actionable.’ When proved to have been spoken in relation thereto, the action is supported, and unless the defendant shows a lawful excuse, the plaintiff is entitled to recover without allegation or proof of special damage, because both the falsity of the words and resulting damage are presumed.” (Moore v. Francis, 121 N. Y. 199, 204.) To the same effect, Cruikshank v. Gordon (118 N. Y. 178); Krug v. Pitass (162 N. Y. 154); Triggs v. Sun Printing & Pub. Assn. (179 N. Y. 144); d’Altomonte v. New York Herald Co. (154 App. Div. 453; affd., 208 N. Y. 596); Sanderson v. Caldwell (45 N. Y. 398, 405); Gatley on Libel & Slander ([2d ed.], pp. 33-36). To publish in the name of a well-known author any literary work, the authorship of which would tend to injure an author holding his position in the world of letters, has been held to be a libel. (Lee v. Gibbings, [1892] 67 L. T. 263; Newell Slander & Libel [4th ed.], p. 39, note, p. 42.)

We are dealing here solely with the sufficiency of the complaint. All of the things above stated the plaintiff has put in her complaint. To make these allegations and to prove them are two separate and distinct things. It remains for the plaintiff to prove them. We now are bolding that if the complaint be true, and these allegations established, then and only then does the plaintiff make out a cause of action. The courts below have held that the complaint did not contain an actionable cause; we hold that it does.

The judgments should be reversed and defendant’s motion denied with leave to defendant to answer within twenty days after service of a copy of the. order to be entered upon the decision of this court.

Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.


text:
    In the Matter of the Estate of Mary J. S. Taylor, Deceased. Edward W. Larkin, Appellant; Benjamin Starr et al., as Executors, Respondents.

      (Argued May 27, 1929;
    decided July 11, 1929.)

      Joseph Besch, Jr., and L. R. Chase for appellant.
    The two notes in question show upon their faces they are attempted testamentary gifts, and are consequently unenforcible. (Matter of James, 146 N. Y. 78; Whitaker v. Whitaker, 52 N. Y. 368; Dodge v. Pond, 23 N. Y. 69; Goshen Turnpike Co. v. Hurtig, 9 Johns. 217; Hatcher v. Lewis, 4 Rand. [Va.] 152.)

      Henry D. Lucey for respondents.
    The $500 note to the Preble church was a legal binding obligation and the executors acted properly in paying it. (Keuka College v. Ray, 167 N. Y. 96; Allegheny College v. National Chautauqua County Bank, 246 N. Y. 369; Barnes v. Perine, 12 N. Y. 18.) The appellant failed to prove that the executors acted negligently in paying the claim of the Homer Baptist Church. (Matter of Fitz Patrick’s Estate, 206 N. Y. Supp. 496; Matter of Warrin, 56 App. Div. 414; Beebe v. Prime, 99 Misc. Rep. 668; Matter of Dale, 168 App. Div. 253.)
   Pound, J.

Mary Jane Sheldon Taylor, a resident of Cortland county, died on the 23d day of January, 1926, leaving a last will and testament and codicil thereto. Benjamin Starr and William G. Crandall were named in the will and codicil as executors thereof. The will and codicil were duly admitted to probate by the Surrogate’s Court of Cortland county on the 10th day of March, 1926.

On the 27th day of April, 1927, the executors presented to the Surrogate their petition asldng for a decree finally and judicially settling their account and discharging them as executors. Upon the hearing of this petition the appellant, Edward W. Larkin, and Mary Ann Palmer, an incompetent, appeared and filed objections to three items of payment of money, for which the executors sought credit, viz.: An item of $6,000 paid as the principal sum due on a note given by decedent to the First Baptist Church of Homer, N. Y.; a further item of $434 for interest paid thereon; and a further item of $500 in payment of a note given by decedent to the Methodist Episcopal Church of Preble, N. Y. The two notes referred to are non-negotiable in form and read as follows:

“ Preble, New York, ¡
“ $6000.00 January 6, 1922.
“ For value received I hereby promise to pay at my decease, to the First Baptist Church of Homer, New York, its successors or assigns the sum of Six Thousand and no /100 Dollars, without interest, And I do hereby direct the executors named in my will and testament to pay the said sum of $6000.00 to the Trustees of said church, or to their successors, in office, in the due course of the settlement of my estate and I hereby direct that said debt shall draw interest at the legal rate from and after the date of my decease.
"M. JANE SHELDON TAYLOR.”

January 6, 1922, is the date of the codicil of the will as well as the date of the $6,000 note.

“ Preble, New York,
“ $500.00 July 7, 1917.
“At my decease, for value received, I hereby promise to pay to the Methodist Episcopal Church of Preble, Cortland County, New York, by whatsoever corporate or other name the same may be known or have a legal existence the sum of Five hundred and no/100 Dollars, without interest. It being my intention that the aforesaid sum shall be payable to the aforesaid church or society for the purpose of building its church edifice but that it shall not be payable to any other church or society in which the aforesaid church or society shall or may merge, and that in the event of the said church or society ceasing to have a legal existence, then this note shall become null and void.
“ Mrs. M. JANE SHELDON TAYLOR.”

The executors, during the course of their administration of the estate, were presented with claims based upon these notes. They paid them and now seek credit for such payments on their final accounting. The Homer church has not mingled the money paid to it with its general funds but holds the same in a certificate of deposit.

The objector-appellant was a legatee and one of the next of kin of the testatrix. The grounds of his objections to the allowance by the Surrogate of credit for the payments are: That the alleged notes were attempted testamentary gifts and hence void and unenforcible; that no consideration existed for the promise of the maker in the case of each note; and that the executors had been guilty of negligence in making the payments.

The objections came on for a hearing before the surrogate. At the close of the objectors’ evidence, he held that a prima facie case had been made out although evidence tending to show lack of consideration was rejected. The executors being thus obliged to go on with the proofs, offered no evidence in their behalf as to the $6,000 note, and as to the $500 note they made proof simply that a new church edifice had been built at a time not specified and that the church had not merged with any other church or society.

Thereupon both parties rested. Later the Surrogate made his decision. He directed a decree dismissing the objections on the grounds that there had been a failure of proof on the part of the objectors; failure to sustain the burden of proof under section 210 of the Surrogate’s Court Act; that the evidence did not overcome the presumption of consideration flowing from the use of the words “ for value received” in the notes; and that the executors had not been negligent in making the payments.

The assets of the estate amounted to about $10,000. The payment of the notes would absorb practically the entire estate after payment of necessary charges thereon.

Section 210 of the Surrogate’s Court Act, which is relied on to sustain the decision below, provides:

§ 210. Effect of admission and allowance of claim or debt by representative. Whenever upon any accounting or judicial settlement of an account, the executor or administrator admits and allows a claim or debt against the deceased, other than his own claim, * * * the validity of such claim or debt shall be thereby established.
“ Y/hen such a claim or debt has been so admitted or allowed, * * * any party adversely affected thereby may file objections thereto and may show that the claim or debt was fraudulently or negligently allowed, or paid. * *

This is a new section having its source in Laws of 1914,' chapter 443. It makes the allowance or payment of a claim of some value and fixes its standing as a valid claim unless proof is made from which fraud, negligence or collusion may be inferred.

The primary question in the case is whether the notes were executed and delivered as gifts to take effect at death, or because of an indebtedness on the part of the testatrix to the several religious societies therein named. As attempted gifts they would be void. If sustained by a consideration they would be upheld. (Dodge v. Pond, 23 N. Y. 69, 78; Whitaker v. Whitaker, 52 N. Y. 368; Matter of James, 146 N. Y. 78, 94; Dougherty v. Salt, 227 N. Y. 200, 202.)

The executors have proceeded on the theory that as the two non-negotiable notes in question contain a recital of value received,” which implies that they were given for a consideration sufficient to support a simple contract (California Packing Corp. v. Kelly S. & D. Co., 228 N. Y. 49), they were justified without further inquiry in drawing the conclusion that at some time value was given for the instruments by the payees; that they were not negligent in paying the notes on the advice of counsel, acting on this presumption, without further inquiry; and that they have thereby shifted to the qbjectors the burden of establishing the invalidity of the claims.

The duty of executors clearly does not permit them merely by allowing or paying claims against the estate without regard to their character to shift the burden of proof upon objectors. They are still bound to the exercise of proper care. They must act on satisfactory proofs that the claim is justly due. (Surrogate’s Court Act, § 207.) What is satisfactory proof depends upon the nature of the claim. If its nature is equivocal or suspicious, payment may be withheld until the claim is tried. (Surrogate’s Court Act, § 211.) The payees in both instruments in question are religious corporations and the notes are payable at death without interest. Obviously the transactions represented by the notes were not commercial transactions. But if a thing is to be done by the promisee, be it ever so small, this is & sufficient consideration to sustain ■ the promise. Was there a promise on the part of the churches or either of them to do something in return for which the notes were given? (Allegheny College v. Nat. Chautauqua Co. Bank, 246 N. Y. 369.)

Outside of the recital of “ value received ” in the notes, the case is destitute of proof of consideration. No request to build a church edifice can be implied from the form of the $500 note payable to the Preble church. Nor can it be inferred that the church society was induced by the note to preserve its legal existence. If either of these inferences could be drawn, it might be claimed that the note could be upheld under the doctrine of promissory estoppel. (Allegheny College v. Nat. Chautauqua Co. Bank, supra.) But for all that appears, aside from the recital of value received, the note was given as a conditional gift to the building fund. The instrument is equivocal in form. The inference of consideration from the recital of value received is in these circumstances slight. Possibly it may be effectually repelled by evidence of the circumstances surrounding the giving of the note. (Dodge v. Pond, supra.) Or it may appear that value was given by the church. A church was built at some time not specified and the church society has not merged with any other society. The question remains whether the church, after the note was given, altered its position to the knowledge of the promisor and in the reasonable belief that the promise would be kept. (Allegheny College v. Nat. Chautauqua Co. Bank, supra.) As to the $6,000 note to the Homer church no proof was offered of the facts surroundings its inception. While the words “value received” prima facie imply a consideration, for all that appears the note may be a gift in disguise. A reasonable suspicion is at least suggested by the form of the note and its execution contemporaneous with the execution of the codicil.

As the evidence of the notes themselves is not of sufficient weight and character conclusively to establish their validity, the question remains as to the duty of the executors to investigate before paying. While it cannot be said that any suspicion of fraud or bad faith in fact attached to the giving of the notes, the conclusion seems irresistible that the executors may not escape responsibility for inquiry into their validity by relying on the words “ for value received.” Reasonable diligence and intelligence on their part were called for. An elderly lady of modest means might desire to give her funds to religious corporations and it might be suggested to her that a form of note would be a proper method of accomphshing the purpose, yet, with the best of intentions on the part of herself and her advisers, the notes might be invalid. The executors were under a duty to resist the payment of moral obligations which did not impose legal liability. The validity of the notes was legally questionable on their face. The executors made no investigation to ascertain why they were given. William G. Crandall, one of the executors, testified that the executors and their attorney had some discussion about the payment of the $6,000 note and that it was “ okayed ” by the attorney before they paid it, but he does not indicate what statements they made to their attorney on which his approval of such payment was based. That is not enough. Such evidence is meaningless unless we know what facts the executor stated to counsel when they asked his advice. Crandall, one of the executors, was one of the trustees of the Homer church and Starr, the other executor, was a member. They must have known whether the $6,000 note was given for a promise on the part of the church. Yet they chose to pay the note although its validity might have been litigated on the accounting without a shifting of the burden of proof under section 210 of the Surrogate’s Court Act. They should have been indifferent as between the churches and the legatees.

The executors have failed to establish their freedom from negligence in paying the notes. It seems a reasonable and necessary inference from the evidence that the notes were paid without inquiry as to their true character in order to impose the burden of proof of their invalidity upon the objectors and that counsel advised their payment to accomplish that end. This is not the exercise of care and solicitude for the rights of all interested in the estate which the law imposes on the executors of a will.

The appellant should have an opportunity to offer evidence of lack of consideration to rebut the presumption arising from the words for value received.”

The order of the Appellate Division and the decree of the Surrogate’s Court, so far as appealed from, should be reversed and a new hearing granted, with costs to abide the event.

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

Ordered accordingly.