text:
    Frank Collentine, Jr., an Infant, by Frank Collentine, Sr., His Guardian ad Litem, et al., Appellants, v. City of New York, Respondent.

      Argued October 18, 1938;
    decided November 29, 1938.

      Frank L. Tyson and I. Sidney Worthman for appellants.
    The testimony presented questions of fact which should have been submitted to the jury. (Augustine v. Town of Brant, 249 N. Y. 198; Van Dyke v. City of Utica, 203 App. Div. 26; Tantillo v. Goldstein Bros. Amusement Co., 248 N. Y. 286; Cowley v. Rochester Fire Works Co., 183 N. Y. 353; Boylhart v. Di Marco & Reimann, 270 N. Y. 217; Long v. City of Dunkirk, 260 N. Y. 599; Kunz v. City of Troy, 104 N. Y. 344; Parnell v. Holland Furnace Co., 234 App. Div. 567; 260 N. Y. 604; Robert v. U. S. Shipping Board Emergency Fleet Corp., 240 N. Y. 474; Condran v. Park & Tilford, 213 N. Y. 341; DeHaen v. Rockwood Sprinkler Co., 258 N. Y. 350; Jewhurst v. City of Syracuse, 108 N. Y. 303; Connell v. Berland, 223 App. Div. 234; 248 N. Y. 641; Jaked v. Board of Education, 198 App. Div. 113; 234 N. Y. 591; Hynes v. N. Y. C. R. R. Co., 231 N. Y. 229; Lessin v. Board of Education, 247 N. Y. 503.) The direction of a verdict for the defendant was improper. (Wynn v. Provident Life & Trust Co., 206 N. Y. 701; Hagan v. Sone, 174 N. Y. 317; McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66; Askelsen v. Delaware, L. & W. R. R. Co., 224 App. Div. 750; Greeff Engineering & Mfg. Co. v. Scourene Mfg. Co., 182 App. Div. 311; Sokoloff v. Wapnick, 149 Misc. Rep. 535.)

      William C. Chanter, Corporation Counsel (Arthur H. Goldberg and Paxton Blair of counsel), for respondent.
    Plaintiff was a trespasser or bare licensee. An owner of property is under no duty to make trespassing impossible by erecting impassable barriers. (Johnson v. City of New York, 208 N. Y. 77; Vaughan v. Transit Development Co., 222 N. Y. 79; Mendelowitz v. Neisner, 258 N. Y. 181; Walker v. Bachman, 268 N. Y. 294; Murphy v. City of Brooklyn, 118 N. Y. 575; Kafline v. Brooklyn Eastern District Terminal Co., 180 App. Div. 858; 228 N. Y. 521; Olsen v. Fennia Realty Co., 246 N. Y. 641; O’Callahan v. Commonwealth Engineering Corp., 247 N. Y. 127; Breeze v. City of New York, 249 App. Div. 856; 275 N. Y. 528.) Even if plaintiff was an invitee, no breach of duty by the defendant was established. The condition of the platform was obvious. There was no negligent failure to warn or guard against such a condition. (Garthe v. Ruppert, 264 N. Y. 290; Johnson v. City of New York, 208 N. Y. 77; Powers v. Montgomery, Ward & Co., 251 App. Div. 120; 276 N. Y. 600; Fishman v. Brooklyn Jewish Center, Inc., 234 App. Div. 319; Lindsley v. Stern, 203 App. Div. 615; De Negro v. Christman, 77 Misc. Rep. 147; Metcalfe v. Cunard S. S. Co., 147 Mass. 66; Cusick v. Adams, 115 N. Y. 55; Losie v. Frisk, 243 App. Div. 825; Cote v. Boston & Maine Railroad, 278 N. Y. 78; Fox v. Warner-Quinlan Asphalt Co., 204 N. Y. 240.)
   Rippey, J.

This is an action to recover damages from the city of New York for injuries received by the plaintiff Frank Collentine, Jr., a boj ten years of age, allegedly due to the negligence of defendant, when he fell from the roof of a building located in DeWitt Clinton Park. The accident happened at about 7:30 p. m., June 20, 1932. His father also sued for the loss of services, companionship and prospective earnings of the boy and for moneys expended and to be expended for medical care, nursing and hospitalization. At the close of the case the trial judge directed a verdict for the defendant on the ground that the boy was a trespasser on the premises and that the defendant, therefore, owed him no duty of care. From the judgment entered upon the verdict, plaintiffs appealed to the Appellate Division where it was affirmed by a divided court.

DeWitt Clinton Park is a public park owned, maintained and supervised by the defendant and located between Eleventh and Twelfth avenues on the east and west ends and between Fifty-second and Fifty-fourth streets on the north and south sides. It had been used for many years, among other things, as a playground for large numbers of children of the neighborhood during the summer months. A large athletic field, embracing nearly one-half of the entire park area, was located on the east end of the tract. Immediately to the west of the athletic field was a pavilion, a children’s playground and a wading pool. Immediately to the west of these facilities was an open space adjoining which, on the west, was a building over 200 feet long north and south, 34 feet 6 inches wide and 7 feet high. There was a basement area along each side of the building about 34 feet long and approximately 6 feet below the street level. The boy, with two companions, was on top of the roof of the building above described near one of the edges when he turned to speak to one of his companions and stubbed his foot on one of the iron bars on the edge of the roof of which, he claims, he was unaware. He plunged over the side into the areaway some 15 feet below and received severe and, he claims, permanent injuries. There were some thirty other children playing on the roof when the accident happened.

In the year 1917 and prior thereto, a superstructure or pagoda had existed on top of the building with posts around the sides to hold it in position. The posts were moored to the building by three-quarter inch iron rods about ten inches in length above the floor surface. The superstructure was torn away from the iron bars and blown down by a storm that occurred in 1917, leaving the iron bars protruding all around and above the cement floor. All or a part of these bars were at the time or subsequently bent over so that at the time of the accident they extended varying distances above the floor. What had been the floor of the pagoda became and remained the roof of the building. It consisted of a concrete slab extending, on all sides, to and flush with the outside walls of the building. No railing or fence was constructed nor any means whatever maintained by the city to protect children or others using the roof from falling off. The city asserts that nothing of the sort was necessary because after the pagoda had been removed the floor was no longer used for park purposes and entrance thereto had been closed.

The evidence indicates that there was a walk fifteen feet in width extending along the north side of the athletic field, children’s playground and the building in question which opened at the southwest corner of Twelfth avenue and Fifty-fourth street and a similar walk along those designated portions of the park on the southerly side emerging at the northeast corner of Twelfth avenue and Fifty-second street, both of which were open to and used by any and all persons desiring to use them. In fact, they were the only entrances to the park from Twelfth avenue. Persons entering the park from Twelfth avenue or leaving the park at the west end necessarily passed along the north and south ends of the building. Leading from these walks on each end of the building was a flight of concrete steps, a “ grand staircase,” about ten feet in width leading upwards to the cement floor. Evidence was introduced to indicate that from 1917 to the time of the accident there was a barricade about six feet high at the top of the stairway leading from the walk to the northerly end of the building. A number of witnesses testified that there was no barricade to the entrance from the stairway located at the southerly end and had been none for a number of months prior to the accident. Whether either one of those barricades existed and, if they or either of them existed, whether access to the roof was adequately closed to the public by such contrivances or by other means were sharply contested questions of fact. Evidence was introduced which, if credible, indicated that there was no line of demarcation between the playground proper and the building and that there was nothing to indicate that the building and its top surface did not constitute a part of the park facilities available to anyone who might desire to use it and that the flat cement roof had been used continously by the injured boy and by large numbers of other children as a playground and by adults for recreation purposes for many months prior to the accident. Thus it might be found that adequate notice was brought home to the city of its use.

There was evidence from which it might be found that there was a clear invitation, either express or implied, to children playing in the park and rightfully there to run up the steps of the building where the accident occurred and play on the roof. Neither the injured boy nor those children could be deemed trespassers or mere licensees as matter of law. The mere fact that there were no playground facilities maintained on the roof" or that the iron bars extended above the roof and could be seen and did not constitute a hidden trap does not change the result. The jury might find that the bars constituted an unwarranted obstruction to a place where children were invited or might reasonably be expected to be. In the matter of the construction of facilities for public use within the park and in the operation, maintenance and supervision of the park and of the facilities provided, the city was not exercising a governmental function and the duty devolved upon it to exercise ordinary care (Van Dyke v. City of Utica, 203 App. Div. 26; Edinger v. City of Buffalo, 213 N. Y. 674; Peterson v. City of New York, 267 N. Y. 204; Curcio v. City of New York, 275 N. Y. 20, 23; Fritz v. City of Buffalo, 277 N. Y. 710). As to those rightfully in the park and upon the building in question, the defendant was bound to exercise reasonable care to see that the building was safe for their use and to exercise suitable supervision over its use (Curcio, v. City of New York, supra). In deciding what would be reasonable care under the circumstances, the jury were entitled to take into consideration the well-known propensities of children to climb about and play (Parnell v. Holland Furnace Co., 234 App. Div. 567; affd., 260 N. Y. 604). That rule applies even though a child might be deemed technically a trespasser (Connell v. Berland, 223 App. Div. 234; affd., 248 N. Y. 641). Assuming that the jury should find as a fact that the defendant undertook to notify persons in the park that the roof was not available for use, whether such notice was adequate under all the circumstances and whether defendant had performed its duty of ordinary care would still be questions of fact which the court was unauthorized to settle as matter of law.

It might be found that, to all intents and purposes, the building was part and parcel of the playground. If not, it was in immediate proximity to it. It was part of the park proper. Even though the building was not part of the playground and park facilities, if there was no visible line of demarcation between the two or reasonably adequate barricades to the roof and the city had notice of and failed to remedy its defective condition if any such existed, in view of the location of the building and its nearness to the playground and the propensity of children to roam and climb and play, the city would be liable to one rightfully using the park and injured through the defect in the building if he, himself, were free from contributory negligence (Jewhurst v. City of Syracuse, 108 N. Y. 303; Lessin v. Board of Education, 247 N. Y. 503, 508). The city knew of and recognized the danger of any one using the roof after the superstructure had been blown off, for it excluded everyone from the roof by adequate barricades at the entrances for the period of fifteen years to some six months before the accident. Whether the action could be maintained on the basis of nuisance as well as under the theory of negligence would depend upon the facts adduced at the new trial and is a matter upon which we need not pass at this time. The defendant might reasonably anticipate the happening of an accident such as the one that happened in this case.

The park together with the land on which the building in question was located was originally included under the jurisdiction of the Park Department of the City of New York. It appears in the record that, by Local Law No. 9 for the year 1931 (Local Laws, 1931, p. 107), the Municipal Assembly authorized the transfer of jurisdiction of the land on which the building was located together with the building as a part thereof from the Park Commission of the Borough of Manhattan to the Commissioners of the Sinking Fund and from them to the President of the Borough of Manhattan for street purposes. Therefrom might arise the inference that the jurisdiction of such property was in the office of the Borough President at the time of the accident. Upon the record before us I am unable to see what difference it would make in the degree of care which the city might be required to exercise with reference to the injured boy whether the building was under the supervision of the Park Department or under the supervision of the office of the Borough President. If of any importance or materiality, the question, as the evidence now stands, was one of fact for the jury.

There are many facts in dispute in the case at bar which are material to a correct decision of the issues raised by the pleadings all of which should have been submitted to the jury for determination. We do not attempt to name them all. The record does not disclose a case where a direction of verdict was proper. The question of plaintiff’s freedom from contributory negligence and of the defendant’s negligence were questions of fact for the jury.

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

Crane, Ch. J., Lehman, O’Bbien, Hubbs, Lotjghban and Finch, JJ., concur.

Judgments reversed, etc.


source: Caselaw Access Project

author: Crane, Ch. J.

license: Public Domain

text:
    Isador Weiner, Appellant, v. Leroco Realty Corporation, Respondent.
    Submitted October 18, 1938;
    decided November 29, 1938.

      Edward A. Shandell, Morris L. Wolf and Desmond T. Barry for appellant.
    The duty of repair is primarily fixed upon the owner by section 78 of the Multiple Dwelling Law (Cons. Laws, ch. 61-A) and he is not absolved from liability by leasing to another. (Altz v. Leiberson, 233 N. Y. 16; 3175 Holding Corp. v. Schmidt, 150 Misc. Rep. 853; Villa Victoria, Inc., v. Fanning, 157 Misc. Rep. 280; W. & B. Hosiery Corp. v. Kapplow, 158 Misc. Rep. 872; Lebright v. Gentzlinger, 232 App. Div. 274; Slater v. Barnes, 207 App. Div. 413; Sticker v. Seril Realty Corp., 256 N. Y. 687; Williams v. Ut, 122 Misc. Rep. 787; Tenement House Department v. Weil, 76 Misc. Rep. 273; Lantry v. Hoffman, 55 Misc. Rep. 261; 124 App. Div. 937; Morris v. City of New York, 146 Misc. Rep. 36.) The owner had reserved the right to enter and repair the demised premises and, having failed to do so, is liable to plaintiff. (Appel v. Muller, 262 N. Y. 278; Cullings v. Goetz, 256 N. Y. 287.)

      Clarence S. Zipp, Daniel R. Harvey and Daniel Miner for respondent.
    Defendant, having leased the premises in their entirety at a time prior to the accident, cannot be held liable for the happening thereof. (Altz v. Leiberson, 233 N. Y. 16; Rohlfs v. Weil, 271 N. Y. 444; King v. Six Ninety & Two Realty Corp., 153 Misc. Rep. 619; McGowan v. Morgan, 160 App. Div. 588; Miller v. Smith, 248 App. Div. 762; Cullings v. Goetz, 256 N. Y. 287; Trustees of Canandaigua v. Foster, 156 N. Y. 354; Sacks v. Sunset Hill Realty Corp., 250 App. Div. 778; 276 N. Y. 668.) Reservation by defendant of the right to enter and make repairs did not constitute control by it. (Lafredo v. Bush Terminal Co., 261 N. Y. 323; Elefante v. Pizitz, 182 App. Div. 819; 230 N. Y. 567.)
   Crane, Ch. J.

The plaintiff operated a tailor shop in a store on premises No. 2304 Amsterdam avenue, in the city of New York. The building was a multiple dwelling within the meaning of section 4, subdivision 3, of the Multiple Dwelling Law (Cons. Laws, ch. 61-A). This was admitted by the pleadings. There were apartments above the store. There was a stairway immediately in front of the plaintiff’s store window which led from the sidewalk down to the basement. It was constructed entirely of wood. It was an exposed outside stairway, subject to the elements, and was used by the people in general, including the superintendent of the building, the iceman and other tradesmen.

On the 22d of June, 1934, the plaintiff, in descending this stairway to go from his store to the cellar or basement, fell on a defective step and was injured. The evidence shows that the step had been broken for some time and left in a defective condition. The defense to the action brought by the plaintiff against the owner, Leroco Realty Corporation, was that the owner was out of possession in that it had leased the entire premises to Hedwig Grenz by written lease February 1, 1934, for the period of two years, at a rental of $350 a month. The courts below have sustained the dismissal of the complaint upon this ground. We take a different view of the owner’s responsibility and do not think that he can escape the obligations placed upon bim by the Multiple Dwelling Law by making a lease of the entire building.

Section 78 reads as follows:

“ § 78. Repairs. Every multiple dwelling and every part thereof shall be kept in good repair, and the roof shall be kept so as not to leak and all rain water shall be so drained and conveyed therefrom as to prevent its dripping to the ground or causing dampness in the walls, ceilings, yards or areas. The ■ owner of such multiple dwelling shall be responsible for compliance with the provisions of this section; but the tenant also shall be liable for every violation of the provisions of this section if such violation is caused by his own wilful act or negligence or that of any member of his household or his guest.” (Cf. Altz v. Leiberson, 233 N. Y. 16.)

Section 325 of the Multiple Dwelling Law requires every owner of a multiple dwelling and every lessee of the whole house to file in the department charged with the enforcement of the law a notice containing his name and address and also a description of the property. In passing this law, it is evident that the one who drafted it had in mind the lessee of the whole building, and it may well be reasoned that when in the prior section the owner alone was made responsible for repairs, and nothing was said about the lessee, that the responsibility continued even after a lease had been made. If a lessee of an entire building was to be considered the owner, there would have been no occasion to add “ every lessee of the whole house ” in section 325. It may be that the lessee of the whole house, as well as the owner, is bound to keep the premises in repair. However this may be, the owner does not escape liability by making a lease. By leasing the premises to some irresponsible person, owners could very readily shift the burden-and nullify the purposes of the law. By the lease in question the tenant agreed that the landlord should have the right to enter the premises at all reasonable hours for the purpose of examining the same and making such repairs and alterations as might be necessary for the safety thereof. The lease indicated that the owner in this case made no attempt to evade its responsibility.

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

Lehman, O’Brien, Hltbbs, Loughran, Finch and Rippey, JJ., concur.

Judgments reversed, etc.


author: Loughran, J.

text:
    In the Matter of the Accounting of Fifth Avenue Bank of New York, as Executor of Nellie V. Thompson, Deceased. Fifth Avenue Bank of New York, as Executor, et al., Appellants; John Thompson et al., Respondents, Impleaded with Others.
    Argued October 20, 1938;
    decided November 29, 1938.

      William Macy, Arnold Lichtig and Herbert A. Mossier for appellants.
    Testatrix’s will contained words of limitation and not words of substitution, and the residuary bequest lapsed when the legatee predeceased testatrix. (Matter of Tamargo, 220 N. Y. 225; Van Beuren v. Dash, 30 N. Y. 393; Thurber v. Chambers, 66 N. Y. 42; Matter of Wells, 113 N. Y. 396; Matter of Allen, 151 N. Y. 243; Matter of Barrett, 141 Misc. Rep. 637; Matter of Steimes, 150 Misc. Rep. 279; Matter of Gosden, 158 Misc. Rep. 99; Matter of Jenkins, 161 Misc. Rep. 359; Matter of Denari, 300 N. Y. Supp. 1279; Wood v. Mitcham, 92 N. Y. 375; Matter of Wells, 113 N. Y. 396; Matter of Watson, 262 N. Y. 284; Sun P. & P. Assn. v. Remington P. & P. Co., 235 N. Y. 338.) Appellants are parties aggrieved and entitled to appeal. (Isham v. N. Y.

      Assn. for Poor, 177 N. Y. 218; Matter of Irving Nat. Bank, 203 App. Div. 863; 204 App. Div. 889.)

      Charles H. Ellner and Beatrice Rosenberg for James Boland, respondent.
    The appeal from the order denying the motion to amend the record and remittitur by adding the O’Haras as respondents below must be dismissed. (Matter of Small, 158 N. Y. 128; Van Arsdale v. King, 155 N. Y. 325; City of Johnstown v. Wade, 157 N. Y. 50; Matter of Sack, 257 N. Y. 534; Matter of Robitscher, 216 N. Y. 665; Markantonis v. Madlan Realty Corp., 262 N. Y. 354; Doyle v. Hamilton Fish Corp., 207 N. Y. 751; Depew v. Dewey, 56 N. Y. 657; Matter of Baldwin, 158 N. Y. 713; Matter of Bohnet v. Mayor, 150 N. Y. 279; Gittleman v. Feltman, 191 N. Y. 205; Weir v. Slocum, 3 How. Pr. 397; Matter of Spicer, 1 Tuck. 80; Colton v. Oshrim, 155 Misc. Rep. 383; Matter of Kaplan v. Berman, 37 Misc. Rep. 502; Newburger v. Campbell, 58 How. Pr. 313; Aberdeen Bindery, Inc., v. Eastern States P. & Pub. Co., 166 Misc. Rep. 904.) The appeal from the order of reversal must be dismissed for want of a party entitled to appeal. (Metzendorf v. Town Improvement Assn., 243 App. Div. 712; Matter of Kanouse, 2 Abb. Pr. 390; Bryant v. Thompson, 128 N. Y. 426; Isham v. N. Y. Association for Poor, 177 N. Y. 218; Matter of Co-operative Law Co., 198 N. Y. 479; Matter of Heldman, 151 App. Div. 234; Matter of Mayer, 84 Hun, 539; St. John v. Andrews Institute, 192 N. Y. 382.) Effect must be given to the manifest intent of testatrix expressed in the residuary clause, to make a substitutional disposition, by words of purchase. (Matter of Tamargo, 220 N. Y. 225; Matter of Sargent, 125 Misc. Rep. 498; Matter of Briggs, 131 Misc. Rep. 720; Waterman v. New York Life Ins. & Trust Co., 237 N. Y. 293; Meeks v. Meeks, 161 N. Y. 66; Matter of Albro, 165 Misc. Rep. 486; Matter of Burrows, 259 N. Y. 449; Matter of Murphy, 165 App. Div. 783; 215 N. Y. 707; Waxson Realty Corp. v.
      Rothschild, 255 N. Y. 332; Matter of Evans, 234 N. Y. 42; Matter of Meahl, 241 App. Div. 333; Matter of De Puy, 194 App. Div. 796; Wetmore v. Peck, 66 How. Pr. 54; Wright v. Trustees of Methodist Church, 1 Hoff. Ch. 202; Hawn v. Banks, 4 Edw. Ch. 664; Drake v. Pell, 3 Edw. Ch. 251; Matter of Dean, 166 Misc. Rep. 499.)

      William M. Kilcullen and John B. Kelly for John Thompson et al., respondents.
    That part of the order of April 22, 1938, denying the motion for a reargument is clearly not appealable and cannot be reviewed in the Court of Appeals. (Doyle v. Hamilton Fish Corp., 207 N. Y. 751; Hooper v. Beecher, 109 N. Y. 609; White v. Benjamin, 150 N. Y. 258; Fleischmann v. Stern, 90 N. Y. 110.) That part of the order of April 22, 1938, denying the motion to amend the record on appeal and remittitur is not appealable, not only because such an order is, in its nature, a discretionary order, but for the further reason that the court specifically stated that the motion was denied in the exercise of discretion. (White v. Benjamin, 150 N. Y. 258; Matter of Westerfield, 163 N. Y. 209; Matter of Baldwin, 158 N. Y. 713; Sherman v. Page, 85 N. Y. 123; Haydorn v. Carroll, 225 N. Y. 84; Matter of Sherrill v. O’Brien, 186 N. Y. 1; Richards v. Wells Fargo Express Co., 215 N. Y. 351; Gittelman v. Feltman, 191 N. Y. 205; O’Neill v. West Side Sav. Bank, 194 N. Y. 594; Fisher v. Bullock, 237 N. Y. 542; Matter of Bohnet v. Mayor, 150 N. Y. 279; Matter of City of New York, 196 N. Y. 565; Percival v. Percival, 124 N. Y. 637; Matter of Viglione, 264 N. Y. 597; Matter of Small, 158 N. Y. 128.) While the executor was a party to the appeal at the Appellate Division, the executor is not a party aggrieved within the statutory meaning of that expression and the appeal taken by the executor from the order of reversal must be dismissed. (Bryant v. Thompson, 128 N. Y. 426; Isham v. N. Y. Assn. for Poor, 78 App. Div. 396; 177 N. Y. 218; Taggert v. Fowler, 200 App. Div. 878; Matter of Hodgman, 140 N. Y. 421; Matter of Hart, 239 N. Y. 511; Matter of Fleming, 223 App. Div. 849.) The words “ heirs, executors, administrators and assigns ” in the will are words of substitution and not words of limitation. (Matter of Murphy, 165 App. Div. 783; 215 N. Y. 707; Matter of Moore, 11 Misc. Rep. 436; Union Trust Co. v. Boardman, 215 App. Div. 73; Johnson v. Brasington, 156 N. Y. 181; Schult v. Moll, 132 N. Y. 122; Matter of Evans, 234 N. Y. 42; Matter of Burrows, 259 N. Y. 449.)
   Loughran, J.

This is a proceeding brought by an executor for settlement of its account and for the construction of a will.

Nellie V. Thompson directed that her residuary estate be divided into two equal portions. One portion she gave to her sister, Hannah W. O’Hara. The other she gave in equal shares to her brother, Bryan W. O’Hara, and to her husband’s sister, Elizabeth Thompson. These two portions,” says the will, “ are given absolutely and in fee simple to these legatees, their heirs, executors, administrators and assigns forever.” Elizabeth Thompson predeceased the testatrix and was survived only by a brother and nephews and nieces. The Surrogate ruled that the words we have quoted were to be construed as words of limitation, with the result that the gift to Elizabeth Thompson lapsed. The Appellate Division held that the words were to be construed as words of substitution, with the result that a lapse was prevented and the gift went to Elizabeth Thompson’s distributees.

The foregoing provisions of the will stand quite apart. We find nothing elsewhere in the instrument that colors them or suggests a special purpose in their use. The gift is “ to these legatees, their heirs, executors, administrators and assigns.” The disjunctive word “ or ” is no part of the context. In such circumstances, as orneases plainly say, the words can be construed only as mere words of limitation. (Matter of Wells, 113 N. Y. 396; Matter of Tamargo, 220 N. Y. 225. Cf. Matter of Evans, 234 N. Y. 42; Decedent Estate Law [Cons. Laws, ch. 13], § 29.) The ruling of the Surrogate must, therefore, be upheld.

A question of practice remains. Under the ruling of the Surrogate, the legatees Hannah W. O’Hara and Bryan W. O’Hara take the whole residuary estate. They have not themselves appeared in this proceeding. Before the Surrogate, the executor contended that the gift to Elizabeth Thompson had lapsed. On the appeal by Elizabeth Thompson’s distributees to the Appellate Division, the executor, as respondent, maintained that the ruling of the Surrogate was right. As appellant here, the executor takes the same stand. Elizabeth Thompson’s distributees, as respondents here, move to dismiss its appeal on the ground that the executor is not a party aggrieved by the result in the Appellate Division.

We agree that the executor has no interest in the issue sufficient to entitle it to be heard in this court solely upon its own account. (Bryant v. Thompson, 128 N. Y. 426; Isham v. N. Y. Assn. for Poor, 177 N. Y. 218; Matter of Chapal, 278 N. Y. 495.) It appears, however, that throughout this proceeding the executor undertook to represent the legatees Hannah W. O’Hara and Bryan W. O’Hara and that this appeal was taken by it at their request. We see no reason for denying the competency of the executor so to act in their behalf. The consequence of a contrary view would be that any party to a fiduciary’s accounting would be at the peril of a technical default unless he made an independent appearance at every stage of the proceeding. We are not prepared to impose so rigorous a requirement — at least where, as in this instance, only questions of law were involved.

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division payable out of the estate to all parties appearing separately and filing briefs. The motion to dismiss the appeal from the order of reversal should be denied, without costs. The appeal from the order of the Appellate Division denying a motion to bring in parties, for a reargument, and to amend the record on appeal and the remittitur, should be dismissed.

Lehman, Hubbs and Finch, JJ., concur; Crane, Ch. J., O’Brien and Rippey, JJ., dissent on the question of the construction of the will. All concur as to denial of motion to dismiss appeal from order reversing decree of Surrogate and as to dismissal of appeal from order denying motion to bring in parties, for a reargument and to amend the record on appeal and the remittitur.

Ordered accordingly. (See 279 N. Y. 789.)


author: O’Brien, J.

text:
    The People of the State of New York ex rel. Trustees of the Masonic Hall and Asylum Fund, Appellant, against William S. Miller et al., Constituting the Board of Taxes and Assessments of the City of New York, Respondents.

      Argued October 17, 1938;
    decided November 29, 1938.

      John A. Dutton for appellant.
    Chapter 249 of the Laws of 1871 was intended to and did, in fact, exempt the property involved herein from taxation. (People v. Supervisors of Columbia County, 43 N. Y. 130; Tonjes v. Tonjes, 14 App. Div. 542; Matter of Whitman, 225 N. Y. 9; Grimmer v. Tenement House Dept., 205 N. Y. 549; Matter of City of New York, 217 N. Y. 1.) Even if relator’s property had not been exempt from taxation under chapter 249 of the Laws of 1871, or had been exempt thereunder, but the act had been repealed by implication by the enactment of the General Tax Law (L. 1896, ch. 908), nevertheless, it is entitled to exemption under the General Tax Law as amended by chapter 203 of the Laws of 1903. (Matter of Syracuse Masonic Temple, 270 N. Y. 8; People ex rel. Masonic Hall Assn. v. White, 218 App. Div. 38; 244 N. Y. 564; People ex rel. N. Y. Lodge No. 1 v. Purdy, 179 App. Div. 805; 224 N. Y. 710; People ex rel. Mizpah Lodge v. Burke, 228 N. Y. 245.)

      William C.oChanler, Corporation Counsel (Edward J. McGratty, Jr., and Arthur A. Segall of counsel), for respondents.
    No part of the property herein involved was ever exempt from taxation under tbe special act of 1871, since that act by its express terms exempted only real estate owned or acquired for the construction and maintenance of an asylum. (Young Women’s Christian Assn. v. City of New York, 217 App. Div. 406; 245 N. Y. 562.) The property is not exempt under the provisions of the General Tax Law. (People ex rel. German Masonic Temple Assn. v. Goldfogle, 136 Misc. Rep. 100; 229 App. Div. 863; 255 N. Y. 586; People ex rel. Syracuse Masonic Temple v. Ostrander, 105 Misc. Rep. 405; People ex rel. N. Y. Lodge No. 1 v. Purdy, 179 App. Div. 805; 224 N. Y. 710; People ex rel. Mizpah Lodge v. Burke, 228 N. Y. 245; People ex rel. Schenectady Odd Fellows Temple Assn. v. McMillan, 199 App. Div. 268; People ex rel. Perry Lodge v. Clark, 125 Misc. Rep. 618; People ex rel. Silver Lake Mutual Assn. v. Clark, 125 Misc. Rep. 622; People ex rel. Manhattan & Bronx Councils, Inc., v. Miller, 167 Misc. Rep. 497; B’Nai B’Rith Club, Inc., v. City of New York, 270 N. Y. 12.)
   O’Brien, J.

Real property owned by appellant located at Sixth avenue and Twenty-third street and Twenty-fourth street in the city of New York has been assessed for the year 1935. This appeal brings up for review the assessability of this real estate.

Appellant, a fraternal corporation, was organized pursuant to chapter 272 of the Laws of 1864. Section 4 of that statute provides: It shall be the object of the corporation hereby created to build and maintain a masonic hall in the city of New York, for the meetings of the grand lodge or general assembly of masons, and for the ■ accommodation of other masonic bodies or associations; and out of the funds derived from the rent or income thereof, or other sources, to build, establish and maintain an asylum or asylums, school or schools, for the free education of the children of masons, and for the relief of worthy and indigent masons, their widows and orphans.”

In the year 1868 appellant purchased the premises at Twenty-third street and Sixth avenue and in the year 1875 a Masonic Hall was completed on the premises. In subsequent years, 1905, 1908, 1912, contiguous parcels were purchased and structural alterations, demolition and additions made. On October 1,1934, certain portions of the building were used for commercial purposes and appellant derived revenue therefrom.

Chapter 249 of the Laws of 1871 provides: “ The real estate now owned, or which may hereafter be acquired, for the construction and maintenance of an asylum by the trustees of the Masonic Hall and Asylum Fund, a corporation created for benevolent purposes, so long as the entire income from the same shall be exclusively used for benevolent and charitable purposes, shall be and remain exempt from taxation.” Chapter 503 of the Laws of 1873 amended the original act of 1864 and in section 3 authorized appellant to rent for mercantile or other purposes such parts of the Masonic Hall then in course of erection at Sixth avenue and Twenty-third street and such parts of other buildings to be erected as shall not be required for actual use and occupancy for Masonic objects and to use for the benevolent, educational and charitable purposes mentioned in the act of 1864 the funds so derived. Chapter 410 of the Laws of 1882, the Consolidation Act, applicable exclusively to the city of New York, in section 824, subdivision 2, specifically exempted from all taxation any real estate now owned or hereafter acquired for the construction and maintenance of an asylum by the trustees of the Masonic Hall and Asylum Fund, but such exemption shall continue only so long as the entire income from the same shall be exclusively used for benevolent and charitable purposes.”

In the year 1889 appellant purchased land and in subsequent years erected buildings at Utica for the maintenance and care of indigent Masons, their wives, widows and orphans. The parties to this litigation stipulate that all the net income from the property in the city of New York has been used for the maintenance of the home at Utica. Such is also the finding of fact at Trial Term which stands unreversed and the opinions in both the courts below concede it. Even if the effect of these various enactments could be deemed ambiguous, the practical construction placed upon them by failure to assess a tax against this property for more than sixty years would be most significant. Concededly, appellant is a fraternal corporation and as such comes squarely within the intent of this language embraced within section 4, subdivision 6, of the present Tax Law (Cons. Laws, ch. 60)the real property of any fraternal corporation, association or body created to build and maintain a building or buildings for its meeting or meetings of the general assembly of its members, or subordinate bodies of such fraternity and for the accommodation of other fraternal bodies or association, the entire net income of which real property is exclusively applied or to be used to build, furnish and maintain an asylum or asylums, a home or homes, a school or schools, for the free education or relief of the members of such fraternity or for the relief, support and care of worthy and indigent members of the fraternity, their wives, widows or orphans, shall be exempt from taxation.” This statute does not require the real property to be used exclusively for fraternal purposes but has reference to the application of the entire net income to the exclusive purpose of building, furnishing and maintaining an asylum, home or school. Concededly the entire net income of appellant’s real property in New York city is applied to such a use. In this respect the facts differ from those in Matter of Syracuse Masonic Temple (270 N. Y. 8) and B’ Nai B’Rith Club, Inc., v. City of New York (270 N. Y. 12). In the first case, the fact is that no income was applied to any of the purposes required by the statute. In the second case, the plaintiff was a membership not a fraternal organization and the net income was not used exclusively for those purposes.

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

„ Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Ordered accordingly.


author: Per Curiam.

text:
    In the Matter of the Estate of Dorothea B. Harding, Deceased. State Tax Commission, Appellant. Charles B. Harding et al., as Executors of Dorothea B. Harding, Deceased, Respondents.

      Argued October 3, 1938;
    decided November 29, 1938.

      Mortimer M. Kassell and Harry T. O’Brien, Jr., for appellant.
    Section 249-p of the Tax Law (Cons. Laws, ch. 60) does not impose a tax on the intangibles of a nonresident; it taxes only his real and tangible personal property situated in this State. (Matter of Fearing, 118 Misc. Rep. 595; 206 App. Div. 657; 237 N. Y. 528; Matter of Nesbitt, 204 App. Div. 504; 237 N. Y. 527; Matter of Wilson, 215 App. Div. 202; 243 N. Y. 581; Matter of Lagergren, 276 N. Y. 184.)

      Sidney W. Davidson and McDonald E. Wrenn for respondents.
    The Tax Law, properly construed, does not impose an estate tax on the estate of the decedent herein. (Matter of Rueff, 157 Misc. Rep. 680; 249 App. Div. 617; 273 N. Y. 530; Matter of McAlpin, 166 Misc. Rep. 333; First Nat. Bank v. Maine, 284 U. S. 312;
      Baldwin v. Missouri, 281 U. S. 586; Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204; Worcester County Trust Co. v. Riley, 302 U. S. 292.)

      Walter D. Fletcher, William M. Hobson and John M. Polk for executors of Emma R. McAlpin, deceased, amici curios.

    The estate of a non-resident in which the deductions authorized by section 249-s of the Tax Law exceed the value of the property subject to tax in this State is not taxable. (Matter of Rueff, 157 Misc. Rep. 680; 249 App. Div. 617; 273 N. Y. 530; Matter of McAlpin, 166 Misc. Rep. 333.) A State may not tax intangibles of a non-resident decedent. (First Nat. Bank v. Maine, 284 U. S. 312; Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204; Beidler v. South Carolina Tax Comm., 282 U. S. 1; Baldwin v. Missouri, 281 U. S. 586; Worcester County Trust Co. v. Riley, 302 U. S. 292.)
   Per Curiam.

In Matter of Lagergren (276 N. Y. 184) we held that the tax imposed by section 249-p of the Tax Law (Cons. Lawá, ch. 60) upon the estates of nonresident decedents was constitutionally valid. That case did not present the question whether such a tax is payable where the deductions allowed by section 249-s exceed the value of the tangible property in this State. This case presents that question of construction.

“It is true that the statute does not say that the deductions allowed by section 249-s are limited by the formula prescribed by section 249-p or that only such portion thereof shall be made as will leave a taxable net estate. The statute directs that such deductions shall be made.” (Matter of Lagergren, supra, p. 191.) It is also true, however, that section 249-s directs that the deductions shall be made from the “ gross estate ” which, as defined by section 249-r, includes not only a decedent’s tangible real and personal property within this State, but also his intangibles. When all these provisions are taken together, it cannot be said that the statute imposes no tax where the value of the tangible property within this State is less than the deductions allowed. Rather it was plainly the purpose of the Legislature that in that case the deductions shall be prorated in the proportion that the value of the tangible property in this State bears to the value of the gross estate. We think the statute sufficiently gives effect to that purpose.

The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed and the matter remitted to the Surrogate’s Court for further proceedings in accordance with this opinion, without costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Ordered accordingly.


text:
    Louise M. Fredendall, Respondent, and Beverly Fredendall, Plaintiff, v. Abraham & Straus, Inc., Appellant.
    Submitted October 14, 1938;
    decided November 29, 1938.

      Walter G. Evans, H. Bradley Moore and James F. Clarity, Jr., for appellant.

      Myron Sulzberger, Jr., and David Fogel for respondent.
    Whether plaintiff exercised reasonable care in using the cleaning fluid was a question of fact for the jury to determine and sufficient evidence to raise such question was submitted to the jury at the trial. (Bernstein v. Kritzer, 253 N. Y. 410; People v. Rosenzweig, 265 N. Y. 323; City of New York v. Wilson & Co., 278 N. Y. 86; Henry v. Crook, 202 App. Div. 19; G. C. P. Fire Relief Assn. v. Sonneborn Sons, 263 N. Y. 463; Nelson v. Nygren, 259 N. Y. 71; Brinkerhoff v. Pennsylvania R. R. Co., 245 App. Div. 561; Torgesen v. Schultz, 192 N. Y. 156.)
   Per Curiam.

Plaintiff bought from defendant a gallon container of “ Globe Quick-Dry Fluid for Dry Cleaning.” A “ caution ” displayed thereon announced that “ the fluid contains ingredients which produce vapors, which if inhaled in large amounts, may cause discomfort and distress ” and that “Lwith reasonable care it can be used with absolute safety.” Among other “ precautions ” suggested were the following: “Always clean and dry the garment outdoors or in a room well ventilated by a cross draft. The room should be as cool as possible. After cleaning, garments should be hung outdoors or in a well ventilated room with cross draft until thoroughly dry.” Plaintiff read and understood these instructions.

She used nearly all the contents of the container in cleaning eight dresses. The cleaning was done in a small bathroom where the temperature was 83 degrees and there was no cross-draft. As each dress was cleaned, it was hung up in the same room to dry. Plaintiff’s husband, who was in an adjacent room, called out to her that the odors were very strong and disagreeable.” After she had been so engaged for forty-five minutes, plaintiff was made sick by the fumes of the fluid. A judgment against defendant for the consequent damages has been affirmed as modified. The action is in form one for breach of an implied warranty of merchantability.

We think the evidence conclusively shows that the plaintiff failed to use reasonable care in the use of the fluid and that this default was an essential cause of her illness. We do not pass upon any other question.

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

Crane, Ch. J., O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur; Lehman, J., taking no part.

Judgments reversed, etc.


text:
    In the Matter of C. G. Gunther’s Sons, Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant.
    Argued October 20, 1938;
    decided November 29, 1938.

      William C. Chanler, Corporation Counsel (Meyer Bernstein, Arthur A. Segall and Sol Charles Levine of counsel), for appellant.
    The transaction or sale upon which the Comptroller imposed the tax, i. e., the transfer of title or possession, was consummated within the city of New York. Delivery was effected when the garment was stored with the petitioner, as bailee for the customer. The subsequent shipment to the address designated by the customer cannot affect the previous transfer of title or possession. (Van Brocklen v. Smeallie, 140 N. Y. 70; Hurd v. Cook, 75 N. Y. 454; Groat v. Gile, 51 N. Y. 431; Bradley v. Wheeler, 44 N. Y. 495; Sanitary Carpet Cleaner v. Reed Mfg. Co., 159 App. Div. 587; Boiko & Co. v. Atlantic Woolen Mills, Inc., 195 App. Div. 207; 234 N. Y. 583; Hier v. Wightman, 197 App. Div. 214; 233 N. Y. 646; Bank of Italy v. Merchants Nat. Bank, 113 Misc. Rep. 314; 197 App. Div. 150; Ferry v. South Shore Growers & Shippers Assn., 189 App. Div. 542; Sanger v. Waterbury, 116 N. Y. 371; Bristol Mfg. Co. v. Arkwright Mills, 213 Mass. 172; Frey Co. v. Silk, Inc., 245 Mass. 534; Atherton v. Beaman, 264 Fed. Rep. 878.) The Enabling Act (L. 1934, ch. 873) does not forbid the taxation of the transactions involved. These transactions are not related to interstate commerce, being separate and distinct from the later shipments. Hence, the tax was imposed upon local transactions occurring long before movement across State lines had begun. (Henneford, v. Mason Co., 300 U. S. 577; Matter of National Cash Register Co. v. Taylor, 252 App. Div. 90; 276 N. Y. 208; 303 U. S. 656; Matter of American League Baseball Club of New York v. Taylor, 248 App. Div. 873; 274 N. Y. 475; Heisler v. Thomas Colliery Co., 260 U. S. 245; American Mfg. Co. v. St. Louis, 250 U. S. 459; Bacon v. Illinois, 227 U. S. 504; Coe v. Errol, 116 U. S. 517.)

      R. L. yon Bernuth and John F. Boyer for respondent.
    Petitioner’s sales of merchandise involving future delivery without the city of New York were not taxable. (Bready v. Wechsler Co., 200 App. Div. 78; 235 N. Y. 539; Smiley Steel Co. v. Schmoll, 200 App. Div. 655; 235 N. Y. 520; Conroy v. Barrett, 95 Misc. Rep. 247; Cochran v. Friedman, 191 N. Y. Supp. 729; Matter of United Artists Corp. v. Taylor, 273 N. Y. 334; Matter of National Cash Register Co. v. Taylor, 276 N. Y. 208; Matter of West Pub. Co. v. Taylor, 276 N. Y. 535; East Ohio Gas Co. v. Tax Comm., 283 U. S. 465; Furst v. Brewster, 282 U. S. 493; Texoma Natural Gas Co. v. Railroad Comm., 59 Fed. Rep. [2d] 750; Bell Tel. Co. v. State Board of Taxes, 280 U. S. 338; Western Union Tel. Co. v. Kansas, 216 U. S. 1.)
   Per Curiam.

Chapter 873 of the Laws of 1934 (in effect August 18, 1934), so far as material, provided as follows:

Notwithstanding any other provision of law to the contrary, any city of the state having a population of one million inhabitants or more acting through its local legislative body, is hereby authorized and empowered until December thirty-first, nineteen hundred thirty-five to adopt and amend local laws imposing in any such city any tax and /or taxes which the legislature has or would have power and authority to impose to relieve the people of any such city from the hardships and suffering caused by unemployment and make provision for the collection thereof by the chief fiscal officer of any such city. * * * A tax imposed hereunder shall have application only within the territorial limits of any such city and shall be in addition to any and all other taxes.

This act shall not authorize the imposition of a tax on any transaction originating and /or consummated outside of the territorial limits of any such city, notwithstanding that some act be necessarily performed with respect to such transaction within such limits.”

Under the authority thereby conferred, the Municipal Assembly of the city of New York enacted local laws imposing a tax upon the amount of receipts from every sale in the city of New York of tangible personal property sold at retail, with certain exceptions which do not embrace property sold by the petitioner, for the purposes referred to in the legislative act, containing provisions that they should be construed in conformity with chapter eight hundred seventy-three, laws of nineteen hundred thirty-four,” pursuant to which they were enacted (Local Laws of City of New York Nos. 20, 21, 24 and 25 of 1934 [published, respectively, as Nos. 21, 22, 25 and 26]; Local Law of City of New York No. 23 of 1935).

No tax could be imposed under the local laws upon sales at retail unless the transactions were consummated within the territorial limits of the city of New York. The facts here are not in dispute. The contracts for the sale of the goods in question, expressly in some cases and otherwise by implication or by the usages of the trade, required delivery by the seller at his own expense at points outside the territorial limits of the city of New York. Delivery was, in fact, so made in each case. Since the transactions were not consummated until such deliveries were made at the place and time and in the manner provided for, the transactions were not taxable under the above acts by the city of New York.

The order appealed from should be affirmed, with costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Order affirmed.


text:
    Simon R. Kaplan, Respondent, v. City of Poughkeepsie, Appellant.
    Argued October 14, 1938;
    decided November 29, 1938.

      Paul A. Bieser, Corporation Counsel (James E. Carroll of counsel), for appellant.
    The city was justified in abating the nuisance and charging the cost to the contractor. (Ford v. Grand Union Co., 268 N. Y. 243; Norske Ameriekalinje v. Sun P. & P. Assn., 226 N. Y. 1; Spence v. Ham, 163 N. Y. 220; Kelsey v. Ward, 38 N. Y. 83; Speare’s Sons v. Casein Co., 122 App. Div. 22; Graves v. White, 87 N. Y. 463.) Non-compliance with the charter provision regarding presentation of claim bars recovery. (Reining v. City of Buffalo, 102 N. Y. 308.)

      Edward K. Haas for respondent.
    The findings of the Appellate Division that there is no provision in the contract for defendant to make arbitrary charges for the extinguishment of fires by defendant’s fire department operating at the dump and beyond defendant’s corporate limits and] that the charges made by defendant for extinguishing fires at said dump were arbitrary and unauthorized by the contract, and its conclusions of law, are justified by the evidence and are decisive of the action. (Churchill Evangelistic Assn. v. Columbia B. S., Inc., 142 Misc. Rep. 210; 236 App. Div. 624; Friedman & Co. v. Newman, 255 N. Y. 340; Woolsey v. Funke, 121 N. Y. 87; Nicoll v. Sands, 131 N. Y. 19; Knickerbocker Metallic Bed Co. v. Newman, 174 N. Y. Supp. 651; Sarachan & Rosenthal, Inc., v. Wilson & Co., 207 App. Div. 768: Taber v. First Citizens B. & T. Co., 247 App. Div. 580; City of New York v. New York City Ry. Co., 193 N. Y. 543; Carthage T. P. Mills v. Village of Carthage, 200 N. Y. 1; Matter of Wilaka Constr. Co. v. McAneny, 265 N. Y. 43.) The plaintiff was not required to verify and present claims for the amounts illegally deducted by the defendant. (City of Forsyth v. Crellin, 210 Fed. Rep. 835; Werner v. City of Rochester, 149 N. Y. 563; Dodge v. Cornelius, 168 N. Y. 242; Nod-Away Co. v. Carroll, 240 N. Y. 252; Quinlan v. Welch, 141 N. Y. 158; Kramer v. Brooklyn Heights R. R. Co., 190 N. Y. 310; N. Y. Bank Note Co. v. Hamilton Bank Note, E. & P. Co., 180 N. Y. 280; Brinckerhoff v. Farias, 170 N. Y. 427; Smith v. Smith, 125 N. Y. 224; Adams v. Irving Nat. Bank, 116 N. Y. 606.)
   Per Curiam.

Section 26 of title III of the Charter of the City of Poughkeepsie (Laws of 1896, ch. 425, as amd. by Laws of 1910, ch. 632, and Laws of 1911, ch. 685) provides: All accounts and claims against the city * * * shall be duly verified. * * * and the common council shall hear and determine the same. No action upon any account or claim shall be brought against the city until it shall have been rejected by the common council.” The complaint does not allege compliance with the charter provision. The answer alleges non-compliance as a defense. The burden of proof to establish compliance with the provision of the charter rested on the plaintiff. Plaintiff was bound to allege and prove compliance as a condition precedent. (Reining v. City of Buffalo, 102 N. Y. 308.)

The official referee before whom the case was tried found as a fact that the plaintiff made no claim or demand ” on the city “ except the present action.” It is apparent that the question was called to the attention of the Appellate Division, as it reversed that finding of fact although the record does not contain evidence justifying such reversal. In fact, it is conceded in this court that no claim was filed by the plaintiff as required by the city charter.

The judgment of the Appellate Division should be reversed and that entered upon the decision of the referee affirmed, as the complaint should have been dismissed for the reason stated, with costs in this court and in the Appellate Division. We do not pass upon the construction of the contract.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Bjppey, JJ., concur.

Judgment accordingly.


author: Hubbs, J.

text:
    Rose Lampke, as Administratrix of the Estate of Veronica Schumacher, Appellant, v. Metropolitan Life Insurance Company, Respondent.

      Argued October 24, 1938;
    decided November 29, 1938.

      Manly Fleischmann, Adalbert Fleischmann and Joseph A. Marion for appellant.
    Breach of the conditions of the policies on the part of the insured was a question of fact which was properly submitted to the jury. (Independent Life Ins. Co. v. Butler, 221 Ala. 501.) The plaintiff established a clear case of waiver, and the case was properly submitted to the jury upon that issue. (Bible v. John Hancock Mut. Life Ins. Co., 256 N. Y. 458; Salamida v. John Hancock Mut. Life Ins. Co., 148 Misc. Rep. 702; 241 App. Div. 636; Bank of United States v. Davis, 2 Hill, 451; Murphy v. Colonial Life Ins. Co., 83 Misc. Rep. 475; 163 App. Div. 875; Archer v. Equitable Life Assur. Soc., 218 N. Y. 18; Axelroad v. Metropolitan Life Ins. Co., 267 N. Y. 437.)

      Roy P. Ohlin and Mason 0. Damon for respondent.
    The Appellate Division properly held that the conditions of the policies had been broken and that there was no question for the jury on this issue. Insured was not in sound health on the policy dates. (Rudolph v. John Hancock Mut. Life Ins. Co., 251 N. Y. 208; Kipp v. Metropolitan Life Ins. Co., 41 App. Div. 298; Holloway v.

      Metropolitan Life Ins. Co., 90 Misc. Rep. 697; Matejunas v. Prudential Ins. Co., 244 App. Div. 802; Rohr v. Metropolitan Life Ins. Co., 226 App. Div. 715; Butkevicus v. John Hancock Mut. Life Ins. Co., 228 App. Div. 501; Atlantic Life Ins. Co. v. Hoefer, 66 Fed. Rep. [2d] 464; Cinquino v. Metropolitan Life Ins. Co., 239 App. Div. 765; Volker v. Metropolitan Life Ins. Co., 1 Misc. Rep. 374.) The evidence was insufficient as a matter of law to sustain a verdict on the issue of estoppel. (Brown v. Bowen, 30 N. Y. 519; Globe Mut. Life Ins. Co. v. Wolff, 95 U. S. 326; Axelroad v. Metropolitan Life Ins. Co., 267 N. Y. 437; Levic v. Metropolitan Life Ins. Co., 242 App. Div. 595; Maloney v. Masonic Aid Assn., 8 App. Div. 575; Gutman v. U. S. Casualty Co., 241 App. Div. 752; American Surety Co. v. Patriotic Assur. Co., 242 N. Y. 54.) Plaintiff cannot claim the-benefit of an estoppel because the facts as to insured’s medical history were concealed from the medical examiner. (McCormack v. Security Mut. Life Ins. Co., 220 N. Y. 447; Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613; Hurley v. John Hancock Mut. Life Ins. Co., 247 App. Div. 547; National Life Ins. Co. v. Minch, 53 N. Y. 144; Offerding v. Metropolitan Life Ins. Co., 286 N. Y. Supp. 654; Axelroad v. Metropolitan Life Ins. Co., 267 N. Y. 437; Fortunato v. Metropolitan Life Ins. Co., 160 Misc. Rep. 918; 248 App. Div. 680; Bonaccio v. Prudential Life Ins. Co., 242 App. Div. 475.) Insured is chargeable with notice that the agent had no authority to waive the conditions of the policy. (Russell v. Prudential Ins. Co., 176 N. Y. 178; Axelroad v. Metropolitan Life Ins. Co., 267 N. Y. 437; Euto v. American Lumbermens Mut. C. Co., 247 App. Div. 613 Metzger v. Ætna Ins. Co., 227 N. Y. 411.)
   Hubbs, J.

Plaintiff is the administratrix of the deceased insured, Veronica Schumacher. The action was brought to collect on two industrial life insurance policies issued by the defendant. The policies contained the following provisions: If, (1) the insured is not alive or is not in sound health on the date hereof; * * * or has, within two years before the date hereof, been attended by a physician for any serious _ disease or complaint * * * the Company may declare this policy void.” The insurance company defended on the ground that it is admitted that within two years of the dates of the policies the deceased had been attended by a physician for high blood pressure which, it contends, was a serious disease or complaint.” The reply of the plaintiff was that the insured’s condition did not constitute a serious disease or complaint ” and' that the insurance company had waived or was estopped to set up the defense stated.

The trial court submitted to the jury the issue whether the condition in the policy had been breached and whether there had been a waiver or estoppel. The jury found for the plaintiff. The Appellate Division at first unanimously affirmed, then granted a reargument, and after reargument unanimously reversed on the law on the authority of Fortunato v. Metropolitan Life Ins. Co. (248 App. Div. 680, which affirmed 160 Misc. Rep. 918).

The basis of the Appellate Division’s decision was that since in the applications the deceased had stated that she was in good health there was no estoppel as a matter of law and no question for the jury was presented.

The notice to the insurance company upon which the plaintiff relies as constituting evidence of estoppel is contained in several conversations had between the deceased and Colichia, the insurance company’s agent. He appears to have been an agent to sell policies, deliver them and collect the premiums. The most direct evidence of notice to the company is contained in the testimony of Mrs. Tollner who testified that the deceased told the agent: Why, she said she had high blood pressure and she was subject to dizzy spells; that if she worked hard it excited her quite a bit and she had to take a rest during the day.” This conversation took place about a year before the agent finally persuaded the deceased to take out the policies. However, there is evidence to the effect that on several occasions thereafter he had his attention called to the question of insured’s condition of health. The day he persuaded her to apply for the insurance she again told him that she was afraid that she would not pass the doctor’s test, and the agent told her to " just try.” Thus there is evidence upon which the jury could have found that the agent had knowledge of the insured’s condition of health. In the application the deceased stated that she was in sound health and had not been under the care of a physician for three years. This was the fact upon which the Appellate Division relied to hold, as a matter of law, that the insurance company was not estopped. We believe that holding to be erroneous.

Prior to the enactment of section 58 of the Insurance Law (Cons. Laws, eh. 28), a policy might, by stipulation or reference therein, make a part of itself statements of the assured which were not embodied in the policy and such material statements were warranties the falsity of which avoided the policy. The insured, as a part of his contract, did not have a copy of such statements. He could not, by reading his policy, know what the statements were. He had no opportunity to correct any error in the statements. By the enactment of section 58 the Legislature intended to and did change the situation by providing that the policy should contain the entire contract and that nothing could be incorporated therein by reference. Section 58 provides: "Any waiver of the provisions of this section shall be void.” After the enactment of section 58 the defense that the insured made false statements inducing the issuance of the policy ceased to constitute a valid defense unless such statements were made a part of the policy as provided in the section. The decisions previously made, holding such defense to be valid, no longer represented the law of the State. By many decisions the law has been definitely settled to the effect that false material statements made to induce a company to issue its policy, whether made orally or in writing, no longer constitute a defense unless such statements are attached to or indorsed upon the policy. Not constituting a defense, no evidence can be received of such material false statements. (Archer v. Equitable Life Assur. Society, 218 N. Y. 18.) Since that decision a defense based upon alleged false statements, not made a part of the policy as required by section 58, no longer has existed in this State. It makes no difference whether such false statements be called representations or warranties.

Undoubtedly the insured had been attended by a physician within two years before the date of the policies. Her statement in the applications, standing alone, that she had not been under the care of a physician within three years, was false. It was not a warranty as the provision was not contained in the policies and the applications were not attached to the policies as required by section 58 of the Insurance Law. (Minsker v. John Hancock Mut. Life Ins. Co., 254 N. Y. 333.) If the application had been attached to the policies the false statement would have made them void within the decision last cited. In Fortunato v. Metropolitan Life Ins. Co. (supra) the application was not attached to or indorsed upon the policy; therefore, the false statements of the insured did not constitute a defense to the policy. The decision in that case is, therefore, disapproved.

We now consider another question — whether, under the express terms of the policies, an issue of fact was presented by the evidence to the effect that the agent knew the condition of the insured’s health at the time the applications for the policies were executed. The defendant relied upon the provision of the policies that they might be declared void if the insured had been attended by a physician for a serious disease or complaint ” within two years and if she was not in sound health at the date of the issuance of the policies. Under those defenses the burden of proof was upon the defendant. Unless it established one of those defenses as a matter of law a question of fact existed for the determination of the jury.

What constitutes a serious disease or sound health is ordinarily a matter of opinion. A condition which in one person might constitute a serious disease or complaint ” in another person might not be considered serious.

It appeared that the insured, some time before she applied for the policies in question, had suffered from what she characterized as high blood pressure and had dizzy spells. A physician who attended her four months prior to the date of the policies testified that at intermittent periods she had systolic blood pressure between 190 and 200. She was forty-seven years of age. A witness testified that she seemed well. She did her own housework and the company physician who examined her before the policies were issued reported her in good health. The physician who attended her and testified to her blood pressure did not testify that she was suffering from a “ serious disease or complaint ” or that she was not in sound health as that term is generally understood and as the defendant’s examining physician reported. It cannot be decided as a matter of law that insured was not in sound health at the date of the policies. (Cf. Independent Life Ins. Co. v. Butler, 221 Ala. 501.)

It is urged by the respondent that by reason of the conditions in the policies, presumably known to the insured, the agent had no authority to change such conditions; that he could not invest himself with such authority; that the doctrine of equitable estoppel has no application; and that the paroi evidence rule prevents the introduction of oral evidence to establish the knowledge of the agent. True it is that such contentions find support in decisions in some jurisdictions. (Cf. Batchelder v. Queen Ins. Co., 135 Mass. 449; Dewees v. Manhattan Ins. Co., 35 N. J. L. 366.) There are also opinions in the United States Supreme Court to the same effect. (Cf. Northern Assur. Co. v. Grand View Building Assn., 183 U. S. 308.) Those cases, however, are directly contrary to a long line of decisions in this jurisdiction which definitely establish the doctrine that where an insurance company has by its conduct induced a person to enter into a contract of insurance, thereby giving it an advantage it would be against equity and good conscience to permit it to assert, the company cannot, in a court of law, assert such advantage. To permit an insurance company to accept the payment of premiums on a policy which it knew when issued was void from its inception would constitute a fraud on the policyholder. (Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13, 23; Bible v. John Hancock Mut. Life Ins. Co., 256 N. Y. 458, 462.) Repeatedly we have held that the knowledge of an .agent with the authority of the agent here involved constitutes knowledge on the part of the company. (McClelland v. Mutual Life Ins. Co., 217 N. Y. 336, Bible v. John Hancock Mut. Life Ins. Co., supra.)

It is urged by the respondent that such principle is not applicable in the case at bar, because the insured must have known that the agent did not have authority to bind the company. We cannot say as a matter of law that she had such knowledge. The fact that the policies contained provisions to the effect that the agent could not bind the company by waiver charged the insured with notice upon the acceptance of the policies that the agent could not thereafter waive a breach of a condition of the policies. It did not, however, nullify a waiver or estoppel which had prior thereto come into effect. (Whipple v. Prudential Ins. Co., 222 N. Y. 39; Drilling v. N. Y. Life Ins. Co., 234 N. Y. 234.)

Finally it is contended by the respondent that there is no evidence of waiver or estoppel, as a result of the information given by the insured to the agent, as the company thereafter required the insured to take a medical examination and she did not inform the medical examiner of the facts which she had stated to the agent. The contention cannot be sustained as a matter of law. It might very well be that she thought that the medical examination was required because of the information which she had given to the agent.

If the jury found that the defendant had failed to establish that the insured was not in sound health, or had been attended by a physician within two years before the date of the policies for any serious disease or complaint, the question of waiver or estoppel would be unimportant, and the trial court so instructed the jury.

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.

Crane, Ch. J., Lehman, O’Brien, Loughran, Finch and Rippey, JJ., concur.

Judgment accordingly.


author: Rippey, J. Loughran, J.

text:
    Marie K. Baddour, as Administratrix with the Will Annexed of Raschid S. Baddour, Deceased, Appellant, v. City of Long Beach, Respondent.

      Argued May 26, 1938;
    decided November 29, 1938.

      Charles C. Clark and Winifred Sullivan for appellant.
    The defendant had no power to adopt a zoning regulation which would deprive plaintiff of the right to use the property as a rooming or boarding house. (Matter of McAneny v. Board of Estimate, 232 N. Y. 377; Coley v. Campbell, 126 Misc. Rep. 869; Matter of Barker v. Switzer, 209 App. Div. 151; City of Utica v. Hanna, 202 App. Div. 610; Village of Euclid v. Ambler Realty Co., 272 U. S. 365; People v. Cohen, 272 N. Y. 319; Dowsey v. Village of Kensington, 257 N. Y. 221; People ex rel. Wineburgh v. Murphy, 195 N. Y. 126; Gallon v. Hussar, 172 App. Div. 393.) The zoning regulation attempting to restrict plaintiff’s property against use as a boarding or rooming house, being without authority of law, arbitrary, unreasonable and confiscatory, deprives plaintiff of her property without due process of law. (Dowsey v. Village of Kensington, 257 N. Y. 221; People ex rel. Durham Realty Corporation v. La Fetra, 230 N. Y. 429; People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126; Matter of Stubbe v. Adamson, 220 N. Y. 459; Matter of Jacobs, 98 N. Y. 98; Village of Euclid v. Ambler Realty Co., 272 U. S. 365; Matter of Wulfsohn v. Burden, 241 N. Y. 288; People v. Dr. Scholl’s Foot Comfort Shops, Inc., 277 N. Y. 151; Liggett Co. v. Baldridge, 278 U. S. 105; Pratter v. Lascoff, 261 N. Y. 509; Maxwell v. Miami, 87 Fla. 107; Matter of Isenbarth v. Bartnett, 206 App. Div. 546; 237 N. Y. 617; Cordts v. Hutton Co., 146 Misc. Rep. 10; 241 App. Div. 648; 266 N. Y. 399; City of Buffalo v. Kellner, 90 Misc. Rep. 407.) The defendant’s 1922 zoning ordinance was on its face illegal; the premises in question were, on the uncontradicted evidence, used as a boarding and rooming house prior to the adoption of the 1930 zoning ordinance, so that even if a zoning ordinance could prohibit such use the property had, prior to 1930, acquired a vested right which the Constitution protects. (Matter of Kensington-Davis Corp., 239 N. Y. 54; Harris v. Village of Dobbs Ferry, 208 App. Div. 853; City of Olean v. Conkling, 157 Misc. Rep. 63; Matter of Longley v. Rumsey, 130 Misc. Rep. 492; Matter of Barker v. Switzer, 209 App. Div. 151; Actlaw Realty Corp. v. Wilkus, 220 App. Div. 720.)

      Bernard H. Reich, Corporation Counsel {Louis A. Friedman of counsel), for respondent.
    The Council of the city of Long Beach was duly clothed with legislative authority to enact the ordinances. (Village of Carthage v. Frederick, 122 N. Y. 268; Bacon v. Miller, 247 N. Y. 311.) The zoning legislation of the city of Long Beach was a constitutional exercise of the police power. (Biggs v. Steinway & Sons, 229 N. Y. 320; Lincoln Trust Co. v. Williams Building Corp., 229 N. Y. 313; Matter of Wulfsohn v. Burden, 241 N. Y. 288.) The zoning ordinances prohibit boarding or rooming houses in the district where appellant’s property is located. (Mischlich v. Lubin, 182 App. Div. 703; Village of Euclid v. Ambler Realty Co., 272 U. S. 365.) The plaintiff never acquired any legal right to use her property as a rooming or boarding house, hence there never was a legally existing use at the time of the adoption of the zoning ordinances. (Premium Bond Corp. v. City of Long Beach, 249 App. Div. 756.) The zoning ordinances do not interfere with any property right of appellant. (Dowsey v. Village of Kensington, 257 N. Y. 221; Perlmutter v. Greene, 259 N. Y. 327; Matter of Midstate Advertising Corp. v. Bond, 274 N. Y. 82; Matter of Danniels, 74 Misc. Rep. 485; Barnham v. City of Rochester, 246 N. Y. 140.)
   Rippey, J.

Plaintiff asks for judgment in this action declaring that the zoning ordinances of the city of Long Beach do not prohibit the use of the premises at 116 Magnolia boulevard as a rooming and boarding house, but, if they do, that the ordinances are beyond the power of the city to enact and enforce. The expressly declared and ultimate purpose of the action is to restrain the city from interfering with the use of the premises in question for the purpose of operating thereon a rooming and boarding house as a business. We limit our decision, as we must, to the issue as framed and to the relief desired.

The territory now embraced within the city of Long Beach, a well-known and popular summer resort, was laid out in 1907 and developed by two real estate development corporations known as The Estates of Long Beach and West End Seashore Bungalows, Inc. It is recited in the zoning ordinance adopted by the city on August 18,1922, to which later reference is made, that “ a uniform scheme and plan of development and beautification of said properties was adopted and adhered to by said companies, with wide Boulevards running North and South from the Channel to the Ocean, in which said Boulevards parkings were provided for grass and flowers and shrubs, and uniform East and West Streets were laid out, with thoroughfares approximating a City block in width, similarly parked and beautified,” and that “ said development companies in sales of lots and plots in said properties to individual purchasers restricted certain sections and streets and portions of streets to residential structures of high class and costly type and other sections and streets and portions of streets to residences of a less costly type and other sections and streets and portions of streets to business structures and uses.” A boardwalk many miles in length was constructed along the ocean front. All apartments, hotels, places of amusement, boarding houses and business establishments of every nature were generally and principally limited to an area immediately adjacent to this boardwalk along Broadway and facing the ocean and to both sides of another street (Park avenue) several blocks to the north. The territory between the rear line of lots facing on Broadway and West Park avenue to the north was limited to highly restricted residential use. There single-unit one-family detached dwellings were constructed, each for one housekeeping unit only, ranging in cost from twelve thousand to twenty-five thousand dollars each.

The property in question is located within that highly restricted residential area. It was originally conveyed from the Estates of Long Beach to one Gillespie on July 28, 1908. The deed contained, among other restrictions relating to location, size, character and cost of buildings, a covenant. binding upon the heirs and assigns of the grantee and similar in wording to similar covenants in all deeds to property within this area, reading as follows: “That neither the said party of the second part nor his heirs or assigns shall or will manufacture or sell or cause to be manufactured or sold on any portion of the premises hereby conveyed any goods or merchandise of any kind and will not carry on, or permit to be carried on, on any part of said premises any trade or business whatsoever or any boarding house.” This covenant, it was provided, should run with the land until January 1, 1930, although it might be annulled by agreement between the grantor and the grantee, his heirs or assigns, prior to that time.

On August 18, 1922, in accordance with chapter 635, section 74, subdivision 3, of the Laws of 1922, a zoning ordinance for the city of Long Beach was duly adopted. The ordinance recites that the original owners of the property embraced within the territory of the city had ceased to be the owners of any property within such territory and that the ordinance was adopted to maintain the beauty and symmetry of development of business and residential properties within the City of Long Beach, and in order to protect the citizens of the City of Long Beach who have invested in substantial homes and in business properties on the faith of the maintenance and control over thejestrictions hereinbefore referred to and the control of said development companies over the character and form of residential and business structures to be erected within the City and in order to protect the City of Long Beach and its inhabitants against the hazards of fire, and in order to provide for the health, comfort and welfare of the people of the City of Long Beach.” It was an interim ordinance supplemental to the covenants contained in the deeds to the property and designed to effect compulsory obedience to the restrictive covenants in the grants from the original owners ordained to be in the interests of the health, safety and the general welfare, convenience and common good of the people and to make permanently effective the design and purpose with which the whole area of the city was laid out and developed. Restrictive covenants in grants as to use may be enforced (Baumert v. Malkin, 235 N. Y. 115; Levy v. Schreyer, 177 N. Y. 293). Ordinances to compel obedience to such covenants, when non-discriminatory and applicable to all alike within a given area, even though they involve incidental aesthetic considerations, may be adopted and enforced. (Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313; Matter of Wulfsohn v. Burden, 241 N. Y. 288, 299-302.)

On July 8, 1930, the city adopted a permanent zoning ordinance in which was carried forward the substance of the provisions of the interim ordinance. The territory was divided, according to the ordinance and the zoning map attached, into nine residential districts, three business districts, and industrial districts. The property in question was located in Residence A ” district, which has the highest restrictions of all districts shown on the zoning map. The ordinance restricts the use of buildings in this district, so far as material here, to a one-family detached house for one housekeeping unit only ” with accessory uses customarily incident to any use permitted by the provisions of this section,” but such accessory uses referred to in the section had to do entirely with a garage located at the rear of the principal building. The building on the land in which plaintiff is interested was designed, used and occupied exclusively as a one-family private residence from the time of its construction to the time of the adoption of this ordinance. It never had been used for a boarding or rooming house. Plaintiff’s use of the property is subject to any applicable restriction. Baddour acquired the property which is the subject-matter of this action on January 26, 1934. Whatever may be the form of conveyance by which he acquired title, it was acquired subject to the restrictions as to use contained in the Gillespie deed and carried forward in the interim and subsequent zoning ordinances adopted by the city. (Lincoln Trust Co. v. Williams Bldg. Corp., supra.)

Fundamentally, zoning ordinances arise out of and are sustained by considerations of the health and welfare of the community. On that basis we have sustained use regulations for the segregation in residential districts of detached, one-family houses from multi-family houses and dwellings (Matter of Fox Meadow Estates, Inc., v. Culley, 233 App. Div. 250; affd., 261 N. Y. 506) and of business from residential districts. If the zoning regulations are reasonable and substantially related to the health, safety, morals, the common good and general welfare of the community, they will be upheld (Lincoln Trust Co. v. Williams Bldg. Corp., supra; Village of Euclid v. Ambler Realty Co., 272 U. S. 365), but the police power for the enactment of zoning regulations has been extended beyond strict considerations of health and safety (Matter of Wulfsohn v. Burden, 241 N. Y. 288) and aesthetic considerations are, fortunately, not wholly without weight in a practical world ” (Dowsey v. Village of Kensington, 257 N. Y. 221, 230). No question is here raised as to the regularity of the adoption of the zoning ordinances. The power to adopt them, within constitutional limitations, cannot be questioned (Gen. City Law [Cons. Laws, ch. 21], art. 2-A; Long Beach City Charter, art. 5, § 74 [Laws of 1922, ch. 635]; Village of Carthage v. Frederick, 122 N. Y. 268; Bacon v. Miller, 247 N. Y. 311). The city had power to restrict the use of the building on the property in question to a single housekeeping unit and to exclude therefrom any business use. The ordinance is applicable to the use of plaintiff’s property. It is not unreasonable to prohibit its use as a boarding or rooming house as a business. There is nothing in the ordinance that specifically, in words, prohibits the use of the property for the keeping of roomers and boarders. But there is nothing vague or indefinite in its purpose or meaning. It prohibits the use of the property for business purposes. Construed in the light of its history, it excludes the use of the property for a boarding or rooming house. Provisions for the exclusion of business enterprises from residential zones are now generally found in zoning ordinances. If it be a fact that the limitation on the use of the property will make it more difficult for the plaintiff to sell or dispose of the same or otherwise entail hardship, it does not necessarily follow that the constitutionality of the ordinance may be questioned. (Matter of Wulfsohn v. Burden, supra.)

The fact that the property may not be used for the business of keeping roomers and boarders does not bar the occupant from occasionally taking roomers or boarders, upon special considerations, where the practice is merely incidental and accessory to the principal use of the house as a home by the family of the occupant. The ordinance does not apply to accessory use by a private housekeeper who might occasionally keep one or more boarders, but who did not make it a business,” but rather to the principal use of the house as a boarding or rooming house, which is defined as “ a sort of public house, partaking in some degree of the character of an inn, or restaurant, but differing from either, where the business of entertaining persons for certain periods, and at fixed or agreed prices, was carried on.” (Cody v. McDowell, 1 Bans. [N. Y.] 484, 487.) More fully defining a boarding house, the court in the Cady case said (p. 486): “ A boarding house is not in common parlance, or in legal meaning, every private house where one or more boarders are kept occasionally only, and upon special considerations. But it is a quasi public house, where boarders are generally and habitually kept, and which is held out and known, as a place of entertainment of that kind. * * * A boarding house is as well known, and as distinguishable from other houses, in every city and village in the country, as an inn or a tavern. It is a house where the business of keeping boarders generally is carried on, and which is held out, by the owner or keeper, as a place where boarders are kept.” To like effect are Commonwealth ex rel. Smith v. Cuncannon (3 Brewst. [Pa.] 344); Stewart v. McCready (24 How. Pr. 62); Robbins v. Bangor Ry. & Elec. Co. (100 Me. 496); Friedrich Music House v. Harris (200 Mich. 421); and see Ballentine’s Law Dictionary (p. 159) and Black’s Law Dictionary (3d ed., p. 230).

In Robbins v. Bangor Ry. & Elec. Co. (supra) the court has collected the decisions as to the difference between a family ” house and a boarding house. Concluding, it said (at p. 506): If the foregoing definitions gathered from the cases give a correct view of the various phases of a family relationship as applicable to this case, from the judicial point of view, as we think they do, it is clear that boarders do not constitute the family or a part of it. A family living together in a house as a home is none the less a family, because incidentally there are boarders in the same house, and perchance eating at the same table. But a boarding house is none the less a boarding house, when used as such, because the boarding house keeper and his wife and children live in it while the business of keeping a boarding house is being carried on. The Laughton & Clergue contract limited the rates for ‘ a dwelling house containing a family ’ to annual flat rates for specified amounts. It contemplated as we think a dwelling house containing a family living together in domestic and social relations in the house as a home, and not a place of carrying on the business of keeping boarders. The test is whether the petitioner’s tenant occupied the house as a home for himself and his wife and children, and incidentally kept boarders also, or whether he occupied it as a place for carrying on the business of keeping boarders, although while prosecuting the business, and as a means of prosecuting the business, he and his wife and children live in the house also. Under this test, neither the size of the house, nor the number of the boarders are of importance, except as evidence that may have weight in determining which is the principal use for which the building is occupied.”

Using the dwelling as a rooming or boarding house within the above definitions is not a proper accessory use within the residential district and is prohibited by the ordinance.

A test of the constitutionality of the ordinance is not barred by the proceedings authorized by the zoning laws. Proceeding under the ordinances, plaintiff applied to the Zoning Board of Appeals of the City of Long Beach for a variation of the ordinance to permit her to operate a rooming and boarding house on the premises which, after due notice and hearing, was denied. By the express terms of section 81 of article 5-A of the General City Law, and of section 24 of the zoning ordinance, the Board of Appeals had jurisdiction to entertain and pass on the application and to grant the variance sought. Certiorari is the sole method of reviewing its decision (Gen. City Law, art. 5-A, §§ 81, 82; Matter of Beckmann v. Talbot, 278 N. Y. 146). Jurisdiction of the Board of Appeals is confined, however, to providing a measure of flexibility in the application of a general rule imposed for the general welfare,” leaving to the courts in other proceedings (such as an action for a declaratory judgment) a determination of the constitutionality of the ordinance (Dowsey v. Village of Kensington, supra, p. 227).

The constitutionality of the ordinances being sustained, resort need not be had to sustain the decisions of the lower courts to the ground that plaintiff had not complied with requirements preliminary to the operation of a boarding house. The Sanitary Code of the city of Long Beach provides that every boarding house must obtain a license and permit from the Board of Health and pay a fee therefor before it can operate, and it has been found, as a fact, that no license was applied for or obtained. The power to make and enforce such a requirement is confirmed by legislative grant. (Gen. City Law, § 20, subd. 13.) Additionally, such a requirement is clearly within the police powers of the city and is reasonable and necessary in the interest of public health, safety and the general public welfare. No boarding house should be permitted to operate until inspection has been made by the city authorities and the building has been found to conform to the building code and has been found suitable and safe for the proposed use.

The judgment appealed from should be affirmed, with costs.

Loughran, J.

(dissenting). The action is one for a declaratory judgment.

Among the assets of an estate represented by the plaintiff is a parcel of real property in the city of Long Beach. This property is located in a Residence A District ” as established by the zoning ordinance of the city. There stands upon it a detached building designed for occupancy by one family. The question is whether use of that structure as a boarding house or rooming house would violate a provision of the ordinance that “ a one-family detached house ” within a Residence A District ” can be used “ for one housekeeping unit only.”

This provision of the ordinance does not ban boarding houses or rooming houses as such. It does not attempt to limit the number of persons who may occupy “ a one-family detached house.” It does not attempt to confine membership in a one housekeeping unit ” upon any basis of relationship by blood or marriage or dependence. Nor does it say that such a unit may not be organized or managed for profit. The word “ family ” has a wide signification and may include boarders or lodgers. (See Matter of Shedd, 60 Hun, 367, 369; 133 N. Y. 601.) One housekeeping unit ” means a single household existing under one head. The circumstances that bring the members together can have no bearing on the meaning of the phrase.

It is thus clear enough to me that the ordinance does not proscribe the use of plaintiff’s property as a boarding house or rooming house (though conducted as a business), provided the occupants use the house in common under a single domestic government. All valid regulations respecting the prosecution of that sort of undertaking (and as to signs and the like) are, of course, to be obeyed.

The restriction that but one housekeeping unit shall occupy a one-family residence doubtless has an admissible relation to the public welfare. But the mere quality or composition of such units could not reasonably have been defined or limited by a requirement that members must be united by particular motives or relationships. Had this ordinance declared a discrimination of that kind, it would, in my opinion, have been constitutionally invalid.

The judgments should be reversed and judgment directed for the plaintiff in accordance with this opinion, with costs in this court and in the Appellate Division.

O’Brien, Htjbbs and Finch, JJ., concur with Rippey, J.; Loughran, J., dissents in opinion in which Crane, Ch. J., and Lehman, J., concur.

Judgment affirmed. (See 279 N. Y. 794.)


text:
    Elizabeth Bachand et al., Respondents, v. Daniel Reeves, Inc., Appellant, Impleaded with Others.

      Submitted October 24, 1938;
    decided November 29, 1938.

      II. Bradley Moore for appellant.
    The plaintiffs failed to prove that the injuries alleged to have been sustained were either wholly' or in part caused by the negligence of the defendant appellant. (Searles v. Manhattan Ry. Co., 101 N. Y. 661; Digelormo v. Weil, 260 N. Y. 192; Ruback v. McCleary, Wallin & Crouse, 220 N. Y. 188; Laidlaw v. Sage, 158 N. Y. 73; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90.)

      Isidore Siegeltuch, Myron Butler and Nathan F. Lazarus , for respondents.
    The respondent Elizabeth Bachand was an invitee on the premises of the appellant and entitled to a reasonably safe place to transact her business; appellant was negligent as a matter of law in permitting the truckman to obstruct the floor by bringing into its small store heavy boxes of merchandise which were placed on the crowded floor at the direction of appellant’s store manager. (Higgins v. Ruppert, 124 App. Div. 530; Weiner v. Scherer, 64 Misc. Rep. 82; McNally v. Oakwood, 210 App. Div. 612; 240 N. Y. 600; Wentz v. Newberry Co., 152 Misc. Rep. 392.) The trial court committed no reversible error in not permitting the appellant to question a witness concerning a letter he wrote to the Motor Vehicle Commissioner, for the reason that the error was harmless and not prejudicial to appellant. (Post v. Brooklyn Heights R. R. Co., 195 N. Y. 62.)
   Crane, Ch. J.

The plaintiff Elizabeth Bachand and her husband sued the defendant for negligence in that while in the defendant’s store, located at 44 West Ford-ham road, in the borough of the Bronx, city of New York, a box was dropped or fell on her foot. The defendant claimed that the accident was due to the negligence of a truckman delivering goods, not in the employ of the defendant. The recovery below was affirmed by a divided court.

The other defendants in the case were truckmen, and the question arising in the evidence is whether Thomas Kelly, one of these truckmen, in delivering goods at the store, carelessly dropped the package or box on the defendant’s foot, or whether the boxes had been piled so near to the plaintiff by the direction of Reeves’ manager that she hit them in turning around from the counter. The plaintiff testified that there were no boxes near her when she was at the counter at the rear of the store; that as she turned around she struck something and a box fell on her foot. If Tierney, Reeves’ manager, told Kelly to put the boxes on the floor right behind the customer standing at the counter, and so near that she was apt to strike them in turning around, there would be a question for the jury as to the defendant’s negligence. On the other hand, if the independent contractor, Kelly, in carting these goods from the warehouse to the defendant’s store, carelessly let one fall as he was bringing them into the store, the defendant would not be hable, for it is evident from the testimony that the KeUys were cartmen or truckers, and not in the employ as servants or agents of the defendant Reeves.

The testimony supporting the plaintiff’s version of the accident is very meagre. Mrs. Bachand testified: “ I know I brushed something that was placed really in back of me. It was really in back of me because otherwise I could have turned without its striking me. * * * As the box fell on my foot, I looked up and I did see a man about halfway to the door. I think he was going out.” She did not see any boxes in the rear when she came in, but says there were quite a few boxes back of her at the time she was hurt.

Other witnesses for the plaintiff testified that at the time the plaintiff was hurt a man was within five or six feet of her, going out. Mrs. Catherine Gorman, a witness for the plaintiff, heard the plaintiff scream, turned around andjsaw the box on her foot. She was asked this question: “And did you notice how many boxes there were? A. I really had not. They were just piled practically up to our knee, knee-high. About the height of two ordinary boxes. About a foot or a foot and a half away from the counter.”

The defendant Thomas Kelly was called by the defendant Reeves, and stated that he was delivering canned goods as a truckman from the warehouse at No. 44 West One Hundred and Forty-third street to the defendant Reeves’ store on West Fordhamroad; that he was taking in packages of canned goods and assorted groceries, different kinds of packages. He said: “I was taking in the packages and the store was crowded and I was going to set down the packages when somebody bumped into me and the top case fell to the floor. I picked it up, put it back on the pile and went about bringing in more packages, and that is all I know. Q. When it slipped to the floor, did it strike the plaintiff’s foot? A. That I couldn’t tell you. I picked up the case that fell on the floor. Whether she bumped into the case, I don’t know. It fell on the floor by the pile. I picked up the case, put it back on' the pile, walked out and brought in more stuff.” This witness had written the following letter to the Commissioner of Motor Vehicles in making his report of the accident:

“ Commissioner of Motor Vehicles, Albany, N. Y.

“ Dear Sir : Relative to your communication of the 27th of November, in which you state that an Automobile operated by me was involved in an accident on March 9th, 1934, at 44 West Fordham Road, N. Y., which resulted in injuries; I herewith inform you that the accident which occurred on said date did not involve an automobile at all.

I was inside the store of the said address with two cases of goods and I was pushed by one of the customers and one of the cases fell out of my hand and struck one of the customer’s feet.

“ Yours truly,

“ THOMAS KELLY.”

The counsel for Reeves on the trial asked of Thomas Kelly the following: “ Q. Did you ever give anyone a different explanation as to how this accident occurred from that which you have given on the witness stand here today? A. It is the same, so far as_I can see. Q. Is not it a fact that the explanation given in this letter to the Motor Vehicle Commissioner is slightly different [handing witness letter]? ” This was excluded by the court on the ground that the counsel was attempting to impeach his own witness. It will be noted that Kelly in his testimony said that he did not know whether the plaintiff bumped into the case and could not say whether the case that he let fall struck the'plaintiff’s foot. In this letter he states positively that all this did happen. This was the vital point in the case, and the letter should have been received. No longer is it the law that a party may not contradict his own witness. Section 343-a of the Civil Practice Act relating tojmpeachment of witnesses, added by Laws of 1936, chapter 191, and amended by Laws of 1937, chapter 307, permits the impeachment of one’s own witness by a statement inconsistent with his testimony, provided the statement was made in any writing by him subscribed. Such an inconsistent statement was this letter, and, in view of the conflict in the testimony, and the meagre evidence sustaining the plaintiff’s claim, .we are of the opinion that it was error to exclude it.

For the reasons here stated, the judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.

Lehman, O’Brien, Hubbs, Loughran, Finch and Rippet, JJ., concur.

Judgments reversed, etc.