text:
    Oscar Jorgensen, Appellant and Respondent, v. Hugo Jaeger, Appellant, and Harry Klein, Respondent, Impleaded with Another.

      (Argued June 11, 1931;
    decided July 15, 1931.)

      Otho S. Bowling and Fred J. Munder for plaintiff, appellant and respondent.
    It was a question for the jury whether defendant-respondent was responsible for the operation of his car. (Grant v. Knepper, 245 N. Y. 158; Ferris v. Sterling, 214 N. Y. 249.) The proof supports a finding that the mechanic was at the time of the accident engaged in a road test. (Drollinger v. McCurdy, 228 App. Div. 664; Psota v. Long Island R. R. Co., 246 N. Y. 388.) The Appellate Division was correct in holding that the amount of the doctor and hospital bills for entire family as shown by the proof should have been inserted in the verdict. The' judgment against defendant-respondent, if it be held that the verdict against him should stand, should be increased accordingly. (Hodgkins v. Mead, 119 N. Y. 166; Tenenbaum v.
      Cohen, 100 Misc. Rep. 360; Fox Co. v. Wohl, 255 N. Y. 268; Abbott’s Civil Jury Trials [4th ed.], 823; Selig v. Alexander, 185 App. Div. 322; Kjerschow v. Daggs, 24 Ariz. 207.)

      Daniel Mungall for defendant-appellant.
    The Appellate Division erred in holding that there was evidence which destroyed the presumption of control as matter of law. (Schultze v. McGuire, 241 N. Y. 460; Chaika v. Vanderberg, 252 N. Y. 101; Drollinger v. McCurdy, 228 App. Div. 64.) The Appellate Division erred in assessing the additional $2,042.80. (Hooper v. Beecher, 109 N. Y. 609; Raymond v. Tiffany, 115 App. Div. 350; McIntyre v. German Savings Bank, 59 Hun, 536; Farber v. Demino, 254 N. Y. 363.)

      Frank J. McMann and Frederick Mellor for defendant-respondent.
    The evidence conclusively shows that defendant-respondent’s automobile was being used and operated without his permission. (Ferris v. Sterling, 214 N. Y. 249; Der Ohannessian v. Elliott, 233 N. Y. 236; Drollinger v. McCurdy, 228 App. Div. 664; Psota v. L. I. R. R. Co., 246 N. Y. 388; Chaika v. Vandenberg, 252 N. Y. 101; Fallon v. Swackhamer, 226 N. Y. 444.)
   Crane, J.

Oscar Jorgensen recovered a verdict against the defendants Hugo Jaeger and Harry Klein for damages sustained in a collision between automobiles on the Jericho turnpike in the town of Huntington, Suffolk county, on the 6th day of October, 1929. By consent of counsel a sealed verdict was ordered to be returned and opened in the absence of the jury. When opened the verdict read as follows: The verdict is for the plaintiff, Oscar Jorgensen, $15,000; $500 for automobile, Mrs. Jorgensen, $2,000; Gunvor Jorgensen, $5,000; also all the doctors’- and hospital bills for entire family, against defendants Hugo Jaeger and Henry Klein.”

On motion to correct the verdict the court struck out the $2,000 and $5,000 provisions and also the allowances for doctors’ and hospital bills for the entire family. The judge had charged the jury, without objection, that they should allow for the doctors’ and hospital bills if they found for the plaintiff. On appeal, the Appellate Division modified the amount of the judgment by increasing it to the extent of $2,042.80, the undisputed total of the doctors’ bills and hospital charges. The evidence, not disputed, shows this total to be correct. Having amended the judgment, the Appellate Division affirmed it as to Jaeger. The appeal, however, of the defendant Harry Klein was sustained; the judgment against him reversed upon the law, and the complaint dismissed.

The plaintiff has appealed to this court from the reversal as to Klein; and the defendant Jaeger has appealed from the modification and affirmance of the judgment against him.

There being sufficient evidence to sustain the verdict against Jaeger, and the expenses not being questioned, we affirm the judgment of the Appellate Division as to this defendant.

We reverse the judgment dismissing the complaint against Klein and reinstate the judgment of the trial court as modified and increased by the Appellate Division. The recovery will be a joint judgment against both Jaeger and Klein for the same amount.

As the reversal by the Appellate Division was upon the law, it has been our duty to examine the record to see whether there was any substantial evidence to sustain the verdict of the jury holding Klein guilty of negligence in connection with this accident. The following recital of the testimony will show that there is evidence from which the jury were justified in inferring that Klein had authorized the use of his car on the night in question. That he was the owner of the colliding car is admitted. Carroll Ruppert was a resident of the Bronx engaged in the trucking business. He was a friend of Harry Klein. On October 4, 1929, Klein turned over his automobile to him, saying that he would not use the car for a few days during the Jewish holidays and requesting Euppert to fix it up for him. He also told Euppert “ to give the car a road test, to bring it in good shape and in perfect condition.” Euppert had no regular repair shop and was not in the automobile repair business. He had driven this car with Klein’s permission on other occasions. “We were always on friendly terms,” said the witness Euppert. “ I done his work. * * * He has asked me on a number of occasions, when little things would go wrong with his car, to take his car out and drive it around and see what was the matter with it, sort of test it out and see if I could find what the trouble was.”

Two days after receiving the car, and on Sunday evening, the 6th of October, 1929, Euppert, with his employee Eeutter, drove down the Jericho turnpike, on which occasion the accident happened through the negligence of Eeutter and Jaeger, resulting in the injury to the plaintiff.

Considering the interest of Klein as the owner of the car and Euppert’s friendship for him, together with the fact that the latter had the Hupmobile with Klein’s permission, with authority to make road tests, can we say as matter of law that Euppert was driving on the Jericho turnpike on this Sunday night without the permission, authorization or consent of the owner? The inference could reasonably be drawn that Klein had loaned his car to his friend Euppert as he had on other occasions for the purpose of use, and that the trip on this Sunday night to Huntington was with the implied authority and consent, even if not with the knowledge of the owner. Whether the story about the repairs was a true version of the transaction was a question for the jury. Even the story as told gives authority to Euppert to make road tests with the car. Where and when were these to be made, and for how far and how long were they to continue? With this uncertainty and indefiniteness regarding the permission given, we cannot say as matter of law that the Jericho turnpike after sundown was not within the domain of the authority bestowed upon Ruppert by Klein.

■ These reasons move us to the above conclusions which, to repeat, are as follows: The judgment against the defendant Jaeger as modified by the Appellate Division should be affirmed, with costs to the plaintiff; the judgment of the Appellate Division dismissing the complaint against the defendant Klein should be reversed, and the judgment of the trial court against said defendant Klein increased to the extent directed by the Appellate Division against the defendant Jaeger, and as thus increased affirmed, with costs to the plaintiff against the defendant Klein in this court and in the Appellate Division.

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

Judgment accordingly.


source: Caselaw Access Project

author: Crane, J.

license: Public Domain

text:
    In the Matter of Charles O. Eaton, Appellant, against Edward C. Sweeny, as Commissioner of Public Safety of the City of Saratoga Springs, Respondent.

      (Argued June 15, 1931;
    decided July 15, 1931.)

      David W. Burke, William E. Bennett and Stephen H. Keating for appellant.
    On the facts shown in the petition and by the issues raised the petitioner was entitled either to a peremptory mandamus order or an alternative mandamus order. (Isenbarth v. Bartnett, 205 App. Div. 845; 206 App. Div. 546; 237 N. Y. 617; Matter of Goldberg v. Walsh, 215 App. Div. 396; 242 N. Y. 346; People v. R., W. & O. R. R. Co., 103 N. Y. 95; People ex rel. Lazarus v. Coleman, 99 App. Div. 88; People ex rel. Clements v. Williams, 100 Misc. Rep. 578; Rexford Flats v. Canal Board, 168 App. Div. 558; Jones v. Willcox, 80 App. Div. 167; Willerup v. Village, 120 Misc. Rep. 485; Prescott v. Pierce, 130 Misc. Rep. 63; Matter of Radcliffe v. Livingston, 223 App. Div. 862; Matter of Isbister v. Isbister, 215 App. Div. 838; Matter of Merritt v. Isbister, 215 App. Div. 838; Matter of Longlast Holding Corp. v. Vrooman, 218 App. Div. 855; Matter of Hillsley v. Vrooman, 218 App. Div. 855; Matter of Williams v. Barrett, 228 App. Div. 668; Foxmeadows Estate v. Livingston, 137 Misc. Rep. 22; Matter of Alexe v. Isbister, 215 App. Div. 838.) Petitioner’s premises fronting on a main business thoroughfare, are adaptable for use and development for business and unfit for future development as residential or hotel property and should, therefore, be zoned for business use. (People ex rel. Sheldon v. Board of Appeals, 234 N. Y. 484; People ex rel. Lankton v. Roberts, 90 Misc. Rep. 439; 171 App. Div. 890.)

      John A. Slade for respondent.
    There are no issues of fact and the court properly denied the application for an alternative order of mandamus. (Matter of Stubbe v. Adamson, 220 N. Y. 459; Matter of Poucher v. Berry, 249 N. Y. 16; People ex rel. Fordham M. R. Church v. Walsh, 244 N. Y. 280; People ex rel. Lieberman v. Vandecarr, 81 App. Div. 128; 175 N. Y. 440; Mayor v. D. D., E. B. & B. R. R. Co., 133 N. Y. 104; City of Brooklyn v. Nassau El. R. R. Co., 38 App. Div. 365.) The defendant was justified in refusing a permit for the erection of a dining car restaurant on petitioner’s property as such a structure thereon was prohibited by the zoning ordinance of the city of Saratoga Springs. (Matter of Empire City Racing Assn. v. City of Yonkers, 132 Misc. Rep. 816; Matter of Jewell v. Murphy, 224 App. Div. 763; Matter of Canberg v. Kleinart, 225 App. Div. 875; Matter of Goldenberg v. Walsh, 215 App. Div. 376; 242 N. Y. 576; Matter of Boyd v. Walsh, 217 App. Div. 461; 244 N. Y. 512; Caponi v. Walsh, 228 App. Div. 86; Fox Lane Corp. v. Mann, 216 App. Div. 813; 243 N. Y. 550; Sagamore Road Corp. v. Lee, 224 App. Div. 744; 250 N. Y. 532.) The ordinance is a valid exercise of the police power and is neither unreasonable, discriminatory nor an invasion of any of the petitioner’s constitutional rights. (Geiger v. City of Saratoga Springs, 227 App. Div. 642; Rice v. Van Vranken, 132 Misc. Rep. 82; 225 App. Div. 179; North Pelham v. Ohliger, 216 App. Div. 728; 245 N. Y. 593; Matter of Falvo v. Kerner, 222 App. Div. 289; Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313; City of Utica v. Hanna, 202 App. Div. 610; Goldenberg v.
      Walsh, 215 App. Div. 396; 242 N. Y. 576; People ex rel. Boyd v. Walsh, 217 App. Div. 461; 244 N. Y. 512; People ex rel. Fordham M. R. Church v. Walsh, 244 N. Y. 280; Matter of Home for Hebrew Infants v. Hand R. Corp., 131 Misc. Rep. 581; Building Inspector v. Stocklosa, 145 N. E. Rep. 262; Magruder v. Redwood City, 265 Pac. Rep. 806; Zahn v. Board of Public Works, 195 Cal. 297; 274 U. S. 325; Spencer-Stula Co. v. City of Memphis, 209 S. W. Rep. 608; City of Aurora v. Burns, 319 Ill. 84.)

      Spencer B. Eddy for Saratoga Springs Commission, amicus curice.

   Crane, J.

Broadway, in the city of Saratoga Springs, New York, runs north and south and is the main street of the city. A zoning ordiance has divided it into four districts which, for the purposes of this case, may be referred to as Zone A,” a residence district for private dwellings; Zone B,” for apartment houses; Zone C,” for hotels, boarding houses, or sanitariums; and “ Zone D,” unrestricted, a business district.

Zone D is north of Congress street, on the northwest corner of which is the Grand Union Hotel. South of Congress street is the C district. The relator, Charles O. Eaton, owns property on the block between Congress and William streets running back from Broadway to Hamilton street on the west. The property is now vacant and he desires to use it for a lunch wagon or restaurant. He applied to the Supreme Court for a mandamus to compel the Commissioner of Public Safety to issue to him a permit for such use. His prayer was for either a peremptory or alternative order. His previous application to the Commissioner was denied.

Section 6 of the ordinance reads as follows:

Section 6. Amendments, Alterations and Changes. The City Council may from time to time, on petition, after public notice and hearing, amend or change the regulations and Zones herein established. Whenever the owners of 50 per cent or more of the frontage on any block front and the block front facing it, shall present a petition duly signed, to the City Council requesting an amendment, alteration or repeal of the regulations prescribed for such block front. It shall be the duty of the Council to vote upon said petition within 90 days after the filing of the same by" the petitioners, with the Council. If, however, a protest against such amendment, alteration or repeal is presented signed by the owners of 20 per cent or more of the frontage in the rear or directly opposite the frontage proposed to be altered, such amendment, alteration or repeal shall not be passed except by the four-fifth vote of the Council.”

No other provision is made in the ordinance for the variation of a use or of the regulations, and no method for review of the action of the City Council or of the Commissioner of Public Safety is prescribed. Section 8 permits the continuation of non-conforming uses in the following words:

“ Section 8. A non-conforming use existing or authorized by a lease in writing duly executed at the time of the passage of this ordinance may be continued. But such non-conforming use shall not be extended, nor shall a structure designed, arranged or intended for a nonconforming use in whole or in a part be enlarged except for a conforming use.”

The relator recognizes that all zoning ordinances inflict a burden or irritating restriction upon some property owner, but he claims that in his case Zone C prevents him from making any profitable use of his property and deprives him of it without due process of law. He cannot build a sanitarium or a hotel, and the location is unsuited for a private dwelling or a boarding house. Business is the only profitable use to which the property can be turned. The situation gives substance to his claim. For twenty-five years the lot was used for business purposes. The Hudson Valley Railway Company and the Delaware and Hudson Company used it as a freight and passenger terminal. Sheds and tracks were on the petitioner’s premises when the Zoning Ordinance was enacted. In 1922 and 1923 a gasoline filling station and a parking stand for automobiles occupied portions of the property. Since the enactment of the ordinance in 1924 the lot has been used at various times for the sale of used automobiles and as a parking space for automobiles for hire and as a taxi stand.

On the west side of Broadway, between William and Congress streets, there is a vacant lot, novelty store and refreshment business, a residence, the ground floor of which is used as an institution giving massage and irrigation treatments, a summer hotel, barber shop, petitioner’s premises, and a trolley station containing a restaurant, cigar and novelty store fronting on Broadway. All the improved property on the south side of Congress street west to Hamilton street, abutting on the north line of petitioner’s premises, is business property, consisting of a restaurant, wall paper and paint store, public garage and machine shop, storage warehouses and laundry. On Hamilton street, which bounds petitioner’s property in the rear, there are two garages, spring water storehouse and a plumbing shop, while directly in the rear is a large building used as headquarters for the colored help of the Grand Union Hotel. Opposite the Eaton property on the east side of Broadway there is a city park, a large public garage, the convention hall, Masonic Association buildings and a hotel.

The petition of the relator states that he was using his property for parking automobiles and for the taxi business until the 19th of July, 1930, when he was ordered by the Commissioner of Public Safety to discontinue the business and to remove the small building which was used for receiving telephone calls of patrons. The public authorities forced him out of business. He further states that he applied to the city council for a re-zoning of the premises so as to permit him to do business on his property, and that his application was denied; that he further applied to the Commissioner of Public Safety for permission to construct and operate a restaurant on the property, and that this application was denied solely on the ground that such use was not permitted by the zoning classification. The relator in his reply affidavit states that his property cannot be used for residence or hotel purposes, that its only available use is for business, and that his investment of 120,000 produces no income because the city authorities by the Zoning Ordinance, have deprived him of any beneficial use of his land.

The affidavits in opposition deny many of the allegations of the petition and particularly that part which states that the property cannot be used for a dwelling or a boarding house. Here is a question of fact which should be determined by the court. The respondents do not deny that the relator’s property has been used for business purposes, but say that under section 8 of the ordinance the relator may use the property for only such business purposes as were in operation at the time the ordinance was adopted in 1924 or prior thereto, to wit, railroad purposes. The restriction to a prior use may or may not be legal, according to circumstances. In this case if the relator has been deprived of all beneficial use of his property, if he cannot use it for business or for dwellings or boarding houses, then the city restriction is unreasonable and arbitrary as to him and should be modified so as to permit some profitable user in conformity to surrounding conditions. (Sundlun v. Zoning Board of Pawtucket, 50 R. I. 108; Anderson v. Jester, 206 Iowa, 452.) Eaton cannot be deprived of his property for the benefit of the city park or to advance the State’s interest in the development of Saratoga. These, of course, are worthy and magnificent causes which do not seek to progress by depriving private citizens of their property without compensation. If the city of Saratoga Springs desires to beautify the property adjoining its park and its entrances thereto, it cannot do so by the mere zoning process, if this results in rendering private property valueless. The division of cities and communities into zoned districts does much to preserve the health, safety and welfare of the community, but the burdens, as far as possible, must be equally distributed. (Anderson v. Jester, 206 Iowa, 452.) Hardships and difficulties there will be and many annoyances; these usually follow any restriction upon the free use of property. When, however, the adjustment becomes so one-sided as to be unreasonable and arbitrary, unnecessary to the preservation of the scheme and purpose as a whole, approaching the point where an owner is deprived of any beneficial or profitable use of his property, then the court should step in and afford relief. (See People ex rel. St. Albans-Springfield Corp. v. Connell, 257 N. Y. 73, and Nectow v. Cambridge, 277 U. S. 183.)

What are the facts in this case? Eaton claims that the uses of district C deprive him of all reasonable and beneficial use of his property. The respondent denies this and says that the property may be profitably used for a private dwelling or a boarding house. These facts must be determined before the court can act intelligently. An alternative order of mandamus should have issued.

The order of the Appellate Division and that of the Special Term should be reversed and the proceeding remitted to the Supreme Court with directions to issue an alternative order of mandamus to determine the questions of fact raised by the petition and the answering affidavits, with costs to abide the event.

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

Ordered accordingly.


author: Kellogg, J.

text:
    J. J. Newberry Company, Respondent, v. Globe and Rutgers Fire Insurance Company, Appellant.

      (Argued June 15, 1931;
    decided July 15, 1931.)

      Robert Kelly Prentice and Myron T. Townsend for appellant.
    Payment by defendant to plaintiff’s brokers of the unearned premium was authorized as matter of law by plaintiff’s letter. (Poel v. Brunswick-BalkeCollender Co., 216 N. Y. 310; Straus v. Ernstein, 232 N. Y. 187; Morriss v. Home Ins. Co., 78 Misc. Rep. 303; Hoffman v. Froma Realty Co., 153 App. Div. 770; Doubleday v. Kress, 50 N. Y. 410.) Since the brokers had by the letter and possession of the policy authority to collect the premium, the defendant might have paid to them the return premium in cash, and the brokers might have immediately repaid to the defendant the commission on the provisional premium. After the payment of the money the defendant was not responsible for its application. (Cohen v. O’Connor, 5 Daly, 28; Abrahamson v. The Canonicus, 65 Fed. Rep. 525; Potter v. Sager, 184 App. Div. 327; 228 N. Y. 526.)

      Edmond B. Butler and Claude V. Pallister for respondent.
    There is no question of law for the court to decide affecting plaintiff’s letter. (Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 210; McKenna v. Firemen’s Ins. Co., 30 Misc. Rep. 727; Hoffman v. Froma Realty Co., 153 App. Div. 770; Smith v. Kidd, 68 N. Y. 130.)
   Kellogg, J.

The defendant, in January, 1927, issued and delivered to the plaintiff a policy of fire insurance, insuring the plaintiff, for a term of one year, against loss or damage by fire, occurring in respect to merchandise situate in its various stores throughout the United States. An advance premium of $37,500 was paid the defendant by the plaintiff, or by brokers on its behalf. The policy provides that it “ shall be cancelled at any time at the request of the insured, in which case the company shall, upon demand and surrender of this policy, refund the excess of paid premium above the customary short rates for the expired time.” On April 25th the plaintiff wrote the defendant directing a cancellation of the policy as of that date, and requesting that a check for the unearned premium be sent directly to it. The excess premium paid, over and above the customary short rate to the date of cancellation, was $9,979.06. Figured on a pro rata basis, the returnable excess would have equalled more than twice that sum. The plaintiff did not return the insurance policy to the defendant when it sent the notice of cancellation. On August 27th, 1927, the defendant wrote the plaintiff requesting that the policy be returned. Instead of complying with the request, the plaintiff, on September 9th, 1927, delivered the policy to Curtis, Hellriegel & Pereyra, Inc., its insurance brokers who had procured the policy to be written. The delivery was accompanied by a letter reading as follows: We are enclosing herewith Globe & Rutgers policy #6396 to be returned to the home office of the company in order to obtain premium due us for the unexpired term of this policy. It is our understanding when this insurance was effected that in the event of us being in a position to obtain a better coverage at more advantageous rates you felt that there would be a possibility of having this contract cancelled on a pro rata basis. We trust that you will be in a position to carry out the original thoughts.” Armed with this letter and the policy itself, Mr. Pereyra of the brokerage firm attended at the offices of the defendant. On delivery of the policy the defendant handed to Mr. Pereyra a check, payable to his firm, for $8,981.15. The firm deposited the check to its credit in its bank of deposit. It thereupon delivered to the plaintiff its check for $1,481.15. The discrepancy of $7,500 between these two checks represents an amount which the brokers claim was owing them by the plaintiff. The following indorsement appears on the back of the check:

“ G & R 6396 R.P—.............. $8,981.15
Balance due on O.P.................. 7,500.00
$1,481.15 ”

The plaintiff retained the check but has never cashed it. Subsequently, the plaintiff brought this action to recover from the defendant, the insurer, the sum of $9,979.06, the agreed amount of the excess premium. The defendant pleaded payment, and now asserts that, as a matter of law, in making payment to the broker, it had fully satisfied its debt to the plaintiff.

We entertain no doubt that, to the extent that the defendant paid the brokers, it satisfied the claim of the plaintiff. The letter of the plaintiff, written on September 9, 1927, and delivered to the brokers, is clear and explicit. The plaintiff writes that it incloses the policy in order to obtain return premium due us for the unexpired term of this policy.” It reminds the brokers that when the insurance was effected they had thought that there would be a possibility of having this oontract cancelled on a pro rata basis.” It concludes We trust that you will be in a position to carry out the original thoughts.” Here are definite instructions given by an assured to a broker to negotiate for a pro rata rather than a short term settlement, if such might be obtained, accompanied by a delivery of the policy, in order that the broker might make delivery to the insurer and “ obtain return premium due us.” Under the express terms of the policy the only returnable premium was that which might be calculated on the short term basis. On this basis a settlement between the insurer and the broker was reached. To the extent of the payment made it was clearly an authorized payment to the plaintiff’s broker. The suggestion that the letter had no force as an authorization of the payment for the reason that it contradicted the plaintiff’s letter of April 25, 1927, by which the defendant was' ordered to make payment directly to plaintiff, is without sense. That the plaintiff was not bound by its unexecuted instructions previously given; that it might change its mind and reinstruct to the contrary; these are self-evident truths. That it did so reinstruct, for reasons of self-interest, is equally clear. Acting upon its own initiative the limit of its recovery would be $9,979.06; acting through its broker, who might procure a settlement on a pro rata, rather than a short term basis, it might.recover $20,987.44. Although the brokers, if they made the collections, might deduct therefrom the sum of $7,500, in satisfaction of their claim against the plaintiff, before making remittance, even then the plaintiff would be better off than if it made a direct collection, thereby avoiding payment to its broker. No doubt these thoughts caused the plaintiff to alter its instructions; but whether they did or not, there can be no doubt that the plaintiff gave new directions that the defendant make payment to the brokers.

The defendant gave its check to the brokers for $8,981.15 rather than for $9,979.06, the amount concededly due for the excess premium. In so doing it credited itself with the sum of $997.91, commissions at ten per cent on $9,979.06, which it had previously paid to the brokers for procuring the risk. Concededly, the plaintiff was not obligated to reimburse the brokers for the amount of the unearned commissions which they were required to refund to the defendant. It is said, however, that the brokers would have been entitled to deduct from the premium collection when made the sum of $7,500, owed to them by the plaintiff; that, therefore, they were entitled, in lieu of receiving payment of $997.91, to credit the defendant with that part of the return premiums to which they were entitled. The argument is subtle but unsound. Certainly the defendant, in satisfying its own claim against the brokers, did not make a payment to the principal of the brokers, the plaintiff, of an equal amount, and yet payment is here the only defense made. The plaintiff is, therefore, entitled to a recovery of $997.91, the balance of the return premium which the defendant has failed to pay.

The judgment of the Appellate Division and that of the Trial Term should be modified by reducing the plaintiff’s recovery to the sum of $997.91, with interest from September 14, 1927, and as modified affirmed, without costs in the Appellate Division or in this court.

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

Judgment accordingly.


author: Cardozo, Ch. J.

text:
    Elizabeth S. Greene, Respondent, v. Sibley, Lindsay and Curr Company, Appellant.
    (Argued June 16, 1931;
    decided July 15, 1931.)

      Charles S. Wilcox for appellant.
    The denials of defendant's motions for a nonsuit and a directed verdict were error. (Pitkin v. N. Y. C. R. R. Co., 94 App. Div. 31; Geohegan v. Fox & Co., 104 Conn. 129; Hart v. Grennell, 122 N. Y. 371; Larkin v. O’Neill, 119 N. Y. 221; Curtis v. Lehigh Valley R. R. Co., 233 N. Y. 554; Pennsylvania R. R. Co. v. 0’Neil, 204 Fed. Rep. 584; Dubois v. Kingston, 102 N. Y. 219; Sparks v. Siebrecht, 19 App. Div. 117; Williams v. Liberty Stores, Inc., 148 La. 450; Seabridge v. Poli, 98 Conn. 297.)

      Eugene Raines for respondent.
    Plaintiff’s contributory negligence and defendant’s negligence were questions of fact for the jury. (Kern v. Great A. & P. Tea Co., 241 N. Y. 600; Peil v. Reinhart, 127 N. Y. 381; Quirk v. Siegel-Cooper Co., 43 App. Div. 464; Graham v. Bauland, 97 App. Div. 141; Williams v. Liberty Stores, 148 La. 450.)
   Cardozo, Ch. J.

Plaintiff, having made a purchase in the defendant’s department store, stood at a counter waiting for her change. While standing there, she turned to her right and saw beside her a mechanic and a floorwalker looking at a cash register which was said to be out of order. Then she turned to her left, and gathered up her change which the shop girl had brought for her. In the meantime, the mechanic had gone down on his knees in order to look up into the mechanism, with the result that his legs stretched back upon the flooring of the aisle. Plaintiff, supposing, so she tells us, that he was standing where he stood before, and meaning to go around him, stumbled over his foot. She suffered injuries for which she sues.

We find no evidence of negligence.

The mechanic had been standing by the plaintiff, busy, as she perceived, in the repair of the machine. She had no thought that he had gone away during the moment or two that had passed in the collection of the change. On the contrary, she supposed, so she says, that he was standing where he was before. " I thought I was making a sweep around him standing there.” The merest glance would have told her that instead of standing there erect, he was down upon his knees. We do not say that there was contributory negligence on her part in the failure to be more observant of the fact that his attitude had changed. It is quite a different thing to say that there was negligence on his part in the failure to foresee how little observant she would be.

The measure of the defendant’s duty was reasonable care (Hart v. Grennell, 122 N. Y. 371, 374; Larkin v. O’Neill, 119 N. Y. 221). Looking back at the mishap with the wisdom born of' the event, we can see that' the mechanic would have done better if he had given warning of the change of pose. Extraordinary prevision might have whispered to him at the moment that the warning would be helpful. What the law exacted of him, however, was only the ordinary prevision to be looked for in a busy world. He was doing a common and simple act in the plain sight of those around him. The act did not involve a continuing obstruction with the indefinite possibilities of mischief that permanence implies (cf. Ginns v. Sherer Co., 219 Mass. 18; Nye v. Liggett Co., 224 Mass. 401). It was a matter of minutes or perhaps seconds. A saleswoman who had knocked a package off a counter or a customer dropping a handbag or a glove might have done the same thing. If the kneeling mechanic gave any thought to the plaintiff standing at his side, he must have known that she had seen him at work upon his job. Was he to suppose that she would act as if he were still standing there erect when to his knowledge a mere glance would have told her something else ?

The judgment of the Appellate Division and that of the County Court should be reversed and the complaint dismissed with costs in all courts.

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

Judgments reversed, etc.


author: Pound, J.

text:
    Florence G. Shaw, Respondent, v. Frank J. Tague, Appellant.
    (Argued June 16, 1931;
    decided July 15, 1931.)

      H. Douglass Van Duser for appellant.
    It was error for the court to submit to the jury, as an element of damage, the alleged change in the color of plaintiff’s hair. (Turner v. City of Newburgh, 109 N. Y. 301; Griswold v. N. Y. C. & H. R. R. R. Co., 115 N. Y. 61; Kurak v. Traiche, 226 N. Y. 266; Newton v. N. Y., N. H. & H. R. R. Co., 106 App. Div. 415; McLaughlin v. Curtis Quillen Co., 223 App. Div. 208; Keefe v. Lee, 197 N. Y. 68.)

      Daniel J. O’Mara for respondent.
    The question as to the change in the color of plaintiff’s hair was one of fact and was properly submitted to the jury. (Turner
      v. City of Newburgh, 109 N. Y. 301; Graham v. Bauland Co., 97 App. Div. 141; Robinson v. St. Louis & S. Ry. Co., 77 S. W. Rep. 493; Garthley v. Seattle Electric Co., 96 Pac. Rep. 155; Booker v. Southwestern Missouri R. Co., 128 S. W. Rep. 1012; Shaw v. Chicago, Rock Island & Pacific Ry. Co., 173 Ill. 107; Griswold v. N. Y. C. & H. R. R. R. Co., 115 N. Y. 61; Kurak v. Traiche, 226 N. Y. 266; Newton v. N. Y., N. H. & H. R. R. Co., 106 App. Div. 415; McLaughlin v. Curtis Quillan Co., 223 App. Div. 208; Keefe v. Lee, 197 N. Y. 68.)
   Pound, J.

This is an ordinary negligence action. The jury was justified in finding that plaintiff, a widow aged fifty-five years, was struck by an automobile owned and operated by the defendant when she was waiting at a regular street car stop in the city of Rochester to board a street car; that she was careful and defendant was careless; that she was rendered unconscious; that she sustained injuries for which a verdict for $2,500 was, to say the least, not excessive.

On the trial, witnesses were permitted to testify that at the time of the accident plaintiff’s chestnut hair was just beginning to turn grey but that in a day or two after the accident it turned snow white. No medical witnesses were called to express an opinion that the accident was an adequate procuring cause of the change. At the close of the plaintiff’s case a motion was made to strike out the testimony in reference to the hair turning from chestnut or brown to white on the ground there is no medical testimony to show in any degree that such a change was occasioned by any injuries sustained in this accident.” No specific ruling was made on this motion but the trial justice in his charge said: She claims that there is a change in her physical appearance. She is entitled to be compensated fairly and adequately for any changes that have come to her person as a result of the accident.” At the conclusion of the charge we find the following: Mr. Van Duser: I desire to except to that portion of your Honor’s charge where you submitted to the jury the proposition that changes of personal appearance are questions of fact for a jury. The Court: You refer to the hair? Mr. Van Duser: As to the hair.”

The only point which this court can. consider on this appeal is whether it was error to permit the jury to consider, on the question of damages, the fact that plaintiff’s hair turned white immediately after the accident, in the absence of evidence tending to show that the change in its color was due to the accident.

It is a matter of common knowledge or belief that hair may grow white in a single night from sudden fears. (Byron, The Prisoner of Chillon.) Müller, in “Hair and its Preservation,” says: “ Gray hair, so long regarded purely as a sign of approaching or premature age, is simply due to the absence or loss of pigment, or the presence of more or less air within the hair, caused either by sickness, worry, shock, severe mental strain long continued, or accidents.” Indeed it is not seriously questioned in this case that grey hair may result from shock. The contention is that a mere sequence of accident and change in color of the hair is an argument of “ post hoc, ergo propter hoc; ” that some medical man should have been called to say that in his opinion the accident was an adequate producing cause of the grey hair.

In many cases jurors might find it difficult, without the aid of medical evidence, to connect conditions complained of with an accident but the results may be of such a character as to enable them to draw their conclusions from their own knowledge or experience. (Benson v. Dean, 232 N. Y. 52, 56.) Thus, if a plaintiff testified that after he was struck in the eye he had what is vulgarly known as-a black eye, it would be unnecessary to produce an expert witness to say that an extravasation of blood resulting in ecchymosis might follow such a blow. On the other hand, remote and unusual effects of physical injuries, such as cancer or tuberculosis, would call for more than a layman’s knowledge of cause and effect. (Hickenbottom v. D., L. & W. R. R. Co., 122 N. Y. 91.)

Here we have no difficulty in surmising that if a medical man had been called by the plaintiff and asked on a hypothetical question, including the facts testified to, what caused the change in the color of the hair, he would have said that in his opinion it was due to the accident. The failure to give professional sanction to a result for which no other adequate cause is remotely suggested ought not to cost the plaintiff her judgment, especially as it appears that the jury did not take seriously the pecuniary loss due to a sudden change in the color of hair which was already beginning to turn grey.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Crane, J. Pound, J.

text:
    The People of the State of New York, Respondent, v. Robert Jennings, Appellant.
    (Argued June 16, 1931;
    decided July 15, 1931.)

      Arthur Rowland for appellant.
    The machine is not a slot machine as defined by section 982 of the Penal Law and does not violate the statute. (People v. Kopper, 253 N. Y. 83; People v. Goodkin, 230 App. Div. 766; People v. Spitzig, 133 Misc. Rep. 508; Byk v. Enright, 240 N. Y. 699; Lyman v. Kurtz, 166 N. Y. 274.)

      Frank H. Coyne, District Attorney (J. Lester Albertson of counsel), for respondent.
    The machine is a slot machine as defined by section 982 of the Penal Law. (People v. Kopper, 253 N. Y. 83; People v. Goodkin, 230 App. Div. 766; Byk v. Enright, 240 N. Y. 699; Lyman v. Kurtz, 166 N. Y. 274; People ex rel. Verchereau v. Jenkins, 153 App. Div. 512; People v. Spitzig, 133 Misc. Rep. 508; Harvie v. Heise, 148 S. E. Rep. 66.)
   Crane, J.

The defendant has been convicted of violating section 982 of the Penal Law for having in his possession a slot machine. The evidence shows that the machine is not one of those covered by the section. It is conceded that in its operation there is no element of chance for the winning or losing of money or any check or memoranda calling for money. By the dropping of a coin in the slot and the pulling of a lever a candy mint falls out of the machine and a witty or funny saying appears in an upper panel. One or more metal rings of no intrinsic value may also fall out, according to combinations formed upon the turn of the lever. These rings or metals have no money value. By their insertion in the slot other bright or witty statements appear in the panel. The only chance connected with the operation of the machine is that wit or humor may momentarily brighten up the vacuous minds hunting amusement. In this machine age even humor is manufactured.

The product, however, is valueless from a monetary standpoint, perhaps, if not from any other. Section 982 of the Penal Law differs from section 970-a in certain particulars. The former section applies to the possession of slot machines, and makes it a misdemeanor to keep or maintain any machine into which may be inserted a piece of money, and from which as a result may issue any piece or pieces of money, or any check or memoranda calling for any money.” The latter section, 970-a, applies to the sale or lease of a slot machine, and this describes the contrivance as one from which may issue any piece or pieces of money, or any check or memoranda calling for any money; or any machine or device of any kind or nature by the use or operation of which there is an element of chance for the winning or losing of money or other things of value.” The words other things of value ” do not appear in section 982. Nothing of value, or at least of money value, came out of the machine in the control and possession of the defendant in this case. The judgment of conviction for the violation of section 982 is unsupported by the evidence and must be reversed.

The District'Attorney introduced in evidence a circular issued by the manufacturer of this machine, the Mills Novelty Company, of Chicago, Illinois, showing how it can be altered and changed so as to be used as a gambling device, that is, one that will emit, with an element of chance, money or things of value by the insertion of a coin and the turn of a handle. The People also introduced expert testimony to show how the particular machine in the possession of the defendant might be thus pláyed if the mechanism were different. Such evidence was entirely incompetent. No changes in the machine had been made while in the possession of the defendant. It discharged only candy mints and rings of no monetary value. The case against him cannot be upheld by evidence of what might have been done. Sufficient unto the day is the evil thereof.

We have had other cases before us involving like machines and the propriety of a court of equity interfering by injunction with the police in seizing such machines as gambling implements. The discretion of the court in such a matter is to be wisely and deliberately exercised. The evidence above referred to, indicating the readiness with which an innocent contrivance may be turned into a gambling device, may be relevant and competent in moving the court not to interfere with the police. Not so in a criminal case charging the defendant with the possession of an instrument already equipped for the nefarious play. Our statutes apparently recognize that the gambler plays for money, not for literature.

The judgment of the County Court and that of the Court of Special Sessions should be reversed and the information dismissed.

Pound, J.

(dissenting). I think the device was a “ slot machine under Penal Law, section 982. It might have issued checks calling for money, as well as the so-called irredeemable disks. This would have been the case if the disks had been redeemable in money.

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

Judgments reversed, etc.


author: Per Curiam.

text:
    Triangle Mint Corporation, Appellant, v. Edward P. Mulrooney, as Commissioner of Police of the City of New York, et al., Respondents.
    (Argued June 15, 1931;
    decided July 15, 1931.)

      Andrew F. Van Thun, Jr., and Abraham E. Kartzman for appellant.
    The reversal by the Appellate Division of certain of the findings of fact and the granting of final judgment dismissing the complaint on the merits upon a new and additional finding of fact are not in accordance with the weight of the evidence. (York Mortgage Corp. v. Clotar Const. Corp., 254 N. Y. 128.) Plaintiff seeks to enjoin the defendants from threatened unlawful interference with its property, business and rights, to its injury and damage, under the guise or pretense of enforcing the criminal law. Under such circumstances a court of equity assumes jurisdiction to grant injunctive relief. (Biddles, Inc., v. Enright, 239 N. Y. 354; People v. Canal Board, 55 N. Y. 390; Star Co. v. Brush, 185 App. Div. 261; McGorie v. McAdoo, 113 App. Div. 271.) The vending machine in question is not what is commonly known and defined by the Penal Law as a slot machine. (Byk v. Enright, 209 App. Div. 823 ; 240 N. Y. 699; People v. Kopper, 253 N. Y. 83.)

      Arthur J. W. Hilly, Corporation Counsel (Joseph P. Reilly of counsel), for respondents.
    The findings of fact and conclusions of law allowed and made by the Appellate Division are sustained by the proof. (Byk v. Enright, 240 N. Y. 699; Carl Co. v. Lennon, 86 Misc. Rep. 255.) The plaintiff is not entitled to an injunction against the defendant. (Delaney v. Flood, 183 N. Y. 323.)
   Per Curiam.

An equity court should exercise its jurisdiction to restrain the police from enforcing a criminal statute, the enforcement of which threatens property damage, only in cases where a clear legal right to that relief is established. The record in this case does not establish such a clear legal right. For that reason the judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    A. M. Hazell, Inc., Appellant, v. The City of Long Beach, Respondent.
    (Argued June 15, 1931;
    decided July 15, 1931.)

      George W. Bristol for appellant.
    The plaintiff is entitled to interest on the sums enumerated in each of the several certificates from the dates they were issued to the dates when said principal was paid, less payments made on account. (Bradley v. McDonald, 218 N. Y. 351; Ryan v. City of New York, 159 App. Div. 105; Mechanics Bank v. City of New York, 164 App. Div. 128; O’Rourke Engineering Constr. Co. v. City of New York, 229 App. Div. 261; Mercantile Factors Corp. v. Warner Brothers Corp., 215 App. Div. 530; 244 N. Y. 504.)

      David B. Tolins, Corporation Counsel, for respondent.
    The plaintiff is entitled to interest only from May 11, 1929, which is thirty days after the issuance of the final certificate of the city engineer. (Bradley v. McDonald, 218 N. Y. 351; Whitmore, Rauber & Vicinus v. Village of Charlotte, 91 Misc. Rep. 584.)
   Per Curiam.

By a fair construction of the contract, article XLIII constitutes an exception to the rule as to the time of payment prescribed by article XLI and imposes on the defendant a duty to make payment from time to time to the extent of eighty-five per cent of the value of the work done and materials furnished as established by intermediate certificates. This reading of the contract is in accord with the practical construction indicated by the conduct of the parties.

Demand for payment was made on November 26, 1928, in respect of the installments then due, and informally thereafter, through correspondence and otherwise, as to installments subsequently accruing.

The debt being established, interest from the date of the demand (Sweeney v. City of New York, 173 N. Y. 414) follows as an incident.

The judgment of the Appellate Division should be modified by striking out the provision that interest on the sum of $135,536.23 shall be computed from May 11, 1929, and by adding interest as follows: on $76,441.44 from November 26, 1928, and on the later installments as prayed for in the complaint, and as so modified the judgment should be affirmed with costs to the appellant.

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

Judgment accordingly.


text:
    Eugene Kade, Appellant, v. Sanitary Fireproofing and Contracting Company, Respondent.
    (Argued June 11, 1931;
    decided July 15, 1931.)

      Frank H. Hiscock, Carroll B. Law and Henry Hoelljes for appellant.
    The appeal brings up for review the complete determination of the Appellate Division on its reversal of the interlocutory judgment so far as such determination involves questions of law. (Gambold v. MacLean, 254 N. Y. 357; Pharis v. Gere, 112 N. Y. 408; Albring v. N. Y. C. & H. R. R. R. Co., 174 N. Y. 179; Sultzbach v. Sultzbach, 238 N. Y. 353; Johnson v. Hudson River R. R. Co., 49 N. Y. 455; Newell Universal Mill Co. v. Muxlow, 115 N. Y. 170; Fire Department v. Stanton, 159 N. Y. 225; People ex rel. N. Y. C. R. R. Co. v. Woodbury, 208 N. Y. 421; Pearson v. Lovejoy, 53 Barb. 407; Victory v. Blood, 93 N. Y. 650.) The Appellate Division erred in requiring the legal representatives of the deceased partner to be brought in as necessary parties to this action. (Matter of New York, L. & W. R. R. Co., 98 N. Y. 447; Hong Kong & Shanghai Banking Corp. v. Cooper, 114 N. Y. 388; Hine v. N. Y. Elev. R. R. Co., 149 N. Y. 154; Civ. Prac. Act, § 278; Hotopp v. Huber, 160 N. Y. 524; Seligman v. Friedlander, 199 N. Y. 373; Kremer v. Kremer, 221 App. Div. 747; Martin v. Barker, 125 Misc. Rep. 486; Jacrov Amusement Co. v. Fischel, 132 Misc. Rep. 529; Pouch v. Prudential Ins. Co., 204 N. Y. 281; Kreiser v. City of New York, 46 App. Div. 16; Hanna v. Manufacturers’ Trust Co., 104 App. Div. 90; Wood Dolson Co. v. Leonett Realty Co., 227 App. Div. 552; Partnership Law, § 51; Williams v. Whedon, 109 N. Y. 333; Stem v. Warren, 227 N. Y. 538; Costello v.
      Costello, 209 N. Y. 252; Daby v. Ericsson, 45 N. Y. 786; Matthews v. Stietz, 5 N. Y. Civ. Proc. Rep. 235; Jackson v. Tallmadge, 246 N. Y. 133; City Equity Co. v. Elm Park Realty Co., 135 App. Div. 856; Osterhoudt v. Board of Supervisors, 98 N. Y. 239.)

      Julian A. Ronan and Earl H. Gale for respondent.
    The appeal brings up for review only that part of the order of the Appellate Division which directed that the legal representatives of the deceased partner be brought in as necessary parties to this action. (Redman v. Verplex Art Co., 237 N. Y. 475; Matter of Budlong, 126 N. Y. 423; Wingert v. Krakauer, 180 N. Y. 265; Landmesser v. Hayward, 157 App. Div. 74; Laforge v. McGee, 127 App. Div. 143; Isham v. New York Assn. for Poor, 177 N. Y. 218; Flagg v. Moses, 248 N. Y. 509; Lane v. Wheeler, 101 N. Y. 17; City of Buffalo v. Sevenson, 207 N. Y. 258; Reichel v. Standard Rice Co., 254 N. Y. 86; Sultzbach v. Sultzbach, 238 N. Y. 353; Gambold v. McLean, 254 N. Y. 357.) The legal representatives of the deceased partner are necessary parties and the Appellate Division properly ordered that they be brought into this action as such. (First Nat. Bank v. Shuler, 153 N. Y. 163; Moulton v. Cornish, 138 N. Y. 133; Galusha v. Galusha, 138 N. Y. 272; Mahr v. N. U. F. Ins. Society, 127 N. Y. 452; Osterhoudt v. Board of Supervisors, 98 N. Y. 239; Peyser v. Wendt, 87 N. Y. 322; Civ. Prac. Act, § 193; Williams v. Whedon, 109 N. Y. 333; Krumbeck v. Clancy, 41 App. Div. 398.)
   Per Curiam.

The personal representatives of the deceased partner are not necessary parties to this action brought by one who claims to be a surviving partner to compel an accounting by a third person in possession of the partnership assets.

The order of the Appellate Division granting a new trial is not subject to review upon this appeal from the-final judgment (Kade v. Sanitary F. & C. Co., 256 N. Y. 371).

The judgment dismissing the complaint for defect of parties should be reversed without costs.

The appeal from the order granting a new trial should be dismissed.

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

Judgment accordingly.


text:
    In the Matter of Tuller Construction Company, Respondent, against William H. Lyon et al., as Sewer Commissioners of the Belgrave Sewer District, Town of North Hempstead, Appellants.
    (Argued June 9, 1931;
    decided July 15, 1931.)

      G. Bur chard Smith and James L. Dowsey for appellants.
    Section 234 of the Town Law does not limit the right to reject any bid, in the event that all are not rejected, to a bid other than the lowest. (Walter v. McClellan, 113 App. Div. 295; 190 N. Y. 505.)

      William J. Morris, Jr., for respondent.
    The appellants did not comply with section 234 of the Town Law respecting the contract for the construction of a sewer system. (Molloy v. City of New Rochelle, 123 App. Div. 642; People ex rel. Coughlin v. Gleason, 121 N. Y. 631; Walsh v. Mayor, 113 N. Y. 142; People ex rel. Coughlin v. Gleason, 121 N. Y. 631; Arensmeyers-Warnock-Zarndt v. Ray, 118 Misc. Rep. 618.) The petitioner was the lowest responsible bidder. (Syracuse Intercepting Sewer Board v. Fidelity & Deposit Co., 255 N. Y. 288; Dickinson v. City of Poughkeepsie, 75 N. Y. 65.) The petitioner, under the statutory provisions, was entitled to the contract, and the order of peremptory mandamus should have been granted. (Molloy v. City of New Rochelle, 198 N. Y. 402.) .
   Per Curiam.

The appellants, sewer commissioners, upon opening the bids for sewer construction work, found the bid of the respondent to be $101,515, and the bid of the Gifford Construction Company to be $102,185, the latter being the higher by .$670. The statute provides: The commissioners may accept or reject any or all proposals, and when the contract is let it shall be let to the lowest responsible bidder.” (Town Law; Cons. Laws, ch. 62, § 234.) The commissioners called for. financial statements from each bidder and they were submitted. After examination of these statements, the commissioners determined that the bid of the petitioner-respondent, Tuller Construction Company, was not a desirable bid to accept for the best interests of the sewer district because the financial statement of the petitioner did not impress the commissioners, favorably,” and let the contract to the Gifford Construction Company. We think that the commissioners, in so finding, in effect determined that the Tuller Construction Company was not a responsible bidder ” and consequently that the Gifford Construction Company was “ the lowest responsible bidder.” We think that they were justified in making that determination and that they should not be directed by the court to decide otherwise and relet the contract to the Tuller Construction Company.

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

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

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. Cuneo Eastern Press, Inc., Appellant.
    (Argued June 5, 1931;
    decided July 15, 1931.)

      Carroll C. Walter for appellant.
    The evidence fails to establish the crime of maintaining a public nuisance. (People v. Rubenfeld, 254 N. Y. 245.)

      William F. X. Geoghan, District Attorney (George F. Palmer, Jr., of counsel), for respondent.
    The evidence showing that a public nuisance was being maintained at the premises in question was more than sufficient to justify the conviction herein. (People v. Cooper, 200 App. Div. 413; Butterfield v. Klaber, 52 How. Pr. 255; Booth v. O. T. R. R. Co., 140 N. Y. 267; People v. Rubenfeld, 254 N. Y. 245; People v. Taylor, 138 N. Y. 398; People v. Shea, 147 N. Y. 78; People v. Katz, 154 App. Div. 44; 209 N. Y. 311; People v. Egnor, 175 N. Y. 419; People v. Rodawald, 177 N. Y. 408; People v. Long, 150 App. Div. 500; 206 N. Y. 693.)
   Per Curiam.

In view of the character of the neighborhood and the manner in which the defendant’s business was conducted, we think the evidence is insufficient to sustain the conclusion that what was done by the defendant amounted to a public nuisance, irrespective of any provisions of the Zoning Resolution.

The judgment of the Appellate Division and that of the Court of Special Sessions should be reversed and the information dismissed.

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

Judgments reversed, etc.


text:
    In the Matter of Silas B. Axtell, an Attorney, Appellant. Association of the Bar of the City of New York et al., Respondents.
    (Argued May 14, 1931;
    decided July 15, 1931.)

      George V. A. McCloskey and Silas B. Axtell for appellant.
    The Court of Appeals may remand the case for a redetermination of the penalty. (Matter of Kaufmann, 245 N. Y. 423.)

      Sidney Handler, James A. Delehanty and Isidor J. Kresel for respondents.
    The Court of Appeals has limited its review in disbarment cases to ascertaining whether there is any evidence to sustain the findings of professional misconduct. (Matter of Flannery, 212 N. Y. 610; Matter of Hawes, 217 N. Y. 602; Matter of Goodman, 199 N. Y. 143.) Petitioners have amply sustained the burden of proof. (Matter of Herrman, 175 App. Div. 310; Matter of Newell, 174 App. Div. 94; Matter of O’ Neill, 184 App. Div. 75; Matter of Rouss, 221 N. Y. 81.)
   Per Curiam.

The acts of solicitation proved against the appellant attorney are extenuated, but not excused, by his relations to the mariners’ union and to foreign consulates.

The sentence of disbarment is a severe one, but misconduct being proved, the punishment to follow was to be determined by the Appellate Division, and is not subject to revision here (Matter of Hawes, 217 N. Y. 602).

The court that pronounced the sentence has jurisdiction exclusive of any other to mitigate its rigor.

The order should be affirmed.

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

Order affirmed.


text:
    In the Matter of the Petition of the Association of the Bar of the City of New York et al., for Amendment of the Rules of the Court of Appeals Relative to the Study of Law.
    (Argued June 5, 1931;
    decided July 15, 1931.)

      John W. Davis, Henry W. Taft, Cornelius W. Wicker-sham, George A. Spiegelberg and Ignatius M. Wilkinson for petitioners.

      George W. Matheson and Leonard Klaher opposed.
   Per Curiam.

These petitions, submitted by the Association of the Bar of the City of New York and the New York County Lawyers’ Association, have in view the amendment of the rules for admission to the bar by distinguishing between training in full-time and in part-time law schools, the proposal being that in the former the period of training shall continue to be three years, consisting of 96 weeks of at least ten hours each, and that in the latter it be extended to four years, consisting of 128 weeks of at least eight, hours each.

A full-time law school is defined as one where the hours of attendance are so arranged that at least two-thirds of the weekly classroom time is scheduled after nine a. m. and before four p. m., and the part-time school is defined as any other.

Roughly spealdng, the distinction corresponds to that between the day law schools on the one hand and the evening law schools on the other.

The proposed change, even if ultimately accepted in principle, must be at least postponed until a more satisfactory definition can be worked out whereby to distinguish between full-time and part-time courses.

A definition based upon a discrimination between evening courses and day courses is unjust to evening students, for the evidence is convincing that many day students are employed in gainful occupations during the night time and during free hours of the day, and that evening students do not fall behind others in their standing at the schools or in their ratings by the examiners for admission to the bar.

A rule extending the course to four years for students in all schools, day or evening, who are engaged for more than a prescribed number of hours a week in other occupations, would have the merit of equality, but would operate harshly on many young men unable to maintain themselves in law schools without gainful employment, and would not, so far as the court is advised, be satisfactory either to the petitioners or to the law schools of the State.

The court feels constrained at this time to deny the applications, but the interesting data submitted will be the subject of reflection, and with the co-operation of the bar and of the faculties of the law schools may lead to action in the future.

Application denied.


author: Lehman, J.

text:
    In the Matter of Alfred H. Newburger et al., Appellants, against Abraham P.. Lubell, Respondent, Impleaded with Another.
    (Argued May 11, 1931;
    decided July 15, 1931.)

      Osmond K. Fraenkel and William Brafman for appellants.
    There is a controversy between petitioners and respondent, within the terms of the arbitration agreement. (Matter of Hosiery Mfrs. Corp. v. Goldston, 238 N. Y. 22; Matter of Wenger v. Propper Mills, 239 N. Y. 199; Matter of Kelley, 240 N. Y. 74; Matter of Buccini v. Paterno Constr. Co., 253 N. Y. 256.)

      Frederick Zorn and Joseph o Kahn for respondent.
    Petitioners are not entitled to arbitration, because they are seeking to enforce rights under an agreement which contains no arbitration clause. (Matter of Hosiery Mfrs. Corp. v. Goldston, 238 N. Y. 22; Matter of Kelley, 240 N. Y. 74.)
   Lehman, J.

The plaintiffs are a firm of stockbrokers having a membership in the New York Stock Exchange. The defendant Abraham P. Lubell bought and sold securities through them, and on June 3d, 1926, signed an agreement governing his relations with the plaintiffs as his brokers in the purchase and sale of securities.” Under the terms of that agreement, the plaintiffs were authorized to close out ” the defendant’s account by purchase or sale of securities whenever the brokers might deem it necessary for their protection. The agreement contained a provision that “ any controversy arising between us shall be determined by arbitration pursuant to the Arbitration Law of the State of New York.” On or about October 25th, 1929, Abraham P. Lubell executed a written guaranty for any debit balance in the account of Jacob J. Lubell with the plaintiffs, and agreed with the plaintiffs that you shall have a lien on and may hold as collateral security for said account or accounts any and all securities and equities you may hold or have in any account for me at any time.” That guaranty contained no provision for the arbitration of any controversy arising between the parties.

In December, 1930, the plaintiffs closed out the account of Jacob J. Lubell and demanded that the defendant Abraham P. Lubell should pay the resultant deficit in said account. Abraham P. Lubell, claiming that his guaranty had been canceled, repudiated any existent obligation. Thereupon the plaintiffs charged the deficit in Jacob J. Lubell’s account to the defendant’s account, and closed out_that account. Holding that the controversy between the parties arises under the guaranty signed by Abraham P. Lubell, the courts below have refused to compel him to submit that controversy to arbitration.

Though the controversy arises under the agreement of guaranty, it is not confined to that agreement. It involves the right of the plaintiffs to hold the securities in Abraham P. Lubell’s account as collateral security for the account of his brother, and to close out the account of Abraham P. Lubell for the protection of the broker. He agreed that all controversies in regard to that account should be determined by arbitration. The courts must enforce that agreement according to its terms. When the agreement was made fixing the conditions upon which the account should be carried by the plaintiffs, the parties did not determine what transactions would thereafter be reflected in the account. They contemplated that orders would be given and accepted from time to time in regard to securities in that account. Though each new transaction might constitute a contract between the parties yet in so far as such transactions were reflected in, or became part of, the defendant’s account with the plaintiffs, they were governed by the original agreement^ so far as applicable. All disputes concerning such transactions must be determined by arbitration.

■ Here, it is true, the controversy concerns no order to buy or sell securities for Abraham P. Lubell’s account. None the less, it concerns a transaction which was intended to be reflected in and become part of his account. So he expressly agreed in his contract of guaranty. Claiming to act under authority conferred upon them by Abraham P. Lubell, the plaintiffs have sold the securities in his account for their protection. Lubell denies that they had such authority. The clear intent of the agreement between the parties was that any controversy concerning the manner in which the plaintiffs dealt with the securities in their customer’s account should be determined by arbitration, and it is immaterial how that controversy arises.

The plaintiffs in their petition have asked that the arbitration should determine any amount owing on the guaranteed account, so that they may have a judgment for the deficiency against the guarantor upon the sale of his securities. Now they concede that they are not entitled to this relief. The controversy concerning the account of the guarantor is confined to the authority of the plaintiffs to dispose of the securities or contracts in his account, and that controversy should be determined by arbitration.

The order of the Appellate Division and that of the Special Term should be reversed and the motion granted to the extent indicated in this opinion, with costs in the Appellate Division and in this court.

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

Orders reversed, etc.


text:
    Arnold R. Hanson et al., Individually, and as Copartners under the Firm Name of Hanson & Hanson, Appellants, v. National Surety Company, Respondent.

      (Argued May 14, 1931;
    decided July 15, 1931.)

      Frank H. Hiscock, C. Arthur Levy and George C. Levin for appellants.
    Plaintiffs’ securities were obtained from its messenger by theft or larceny and the transaction came within the meaning of the bond issued by defendant. (Underwood v. Globe Indemnity Co., 245 N. Y. 111; Ocean Accident, etc., Corp. v. Old Nat. Bank, 4 Fed. Rep. [2d] 753; People v. Miller, 169 N. Y. 339; Ryan v. People, 79 N. Y. 593; Penal Law, § 1290; Kean v. Maryland Casualty Co., 223 N. Y. Supp. 373; 248 N. Y. 534; International Harvester Co. v. Nat. Surety Co., 44 Fed. Rep. [2d] 746; People v. Noblett, 244 N. Y. 355; Hildebrand v. People, 56 N. Y. 394; Justices, etc., v. People. ex rel. Henderson, 90 N. Y. 12; People v. McDonald, 43 N. Y. 61; Smith v. People, 53 N. Y. 111; Bassett v. Spofford, 45 N. Y. 387; Hickory v. United States, 160 U. S. 408; Alberty v. United States, 162 U. S. 499.)

      David Rumsey and Henry Newton Arnold for respondent.
    The company absconded with the securities after plaintiffs’ messenger had surrendered- possession thereof, wherefore the securities were not stolen while in transit, or from the custody of the messenger. (Ocean Accident & Guarantee Corp. v. Old Nat. Bank, 4 Fed. Rep. [2d] 753.)
   Lehman, J.

The plaintiffs are a firm of stockbrokers and dealers in securities. They intrusted certificates of stock to a messenger for delivery to Bar an & Co., Inc., at its office and place of business, 51 Beaver street, New York city. The messenger delivered the certificates, but upon the condition, evidenced by a written receipt, that title to the certificates should remain in the plaintiffs until payment should have been made therefor. Promptly upon receipt of the stock, Baran & Co., Inc., abandoned its office and its officers absconded with the certifi-* cates of stock. The plaintiffs have brought this action to recover the value of the certificates from the defendant company which had issued to the plaintiffs a bond of indemnity, described as a “ Broker’s Basic Bond.”

The defendant’s bond was intended to cover loss of property at stipulated places and through stipulated causes. For loss of property outside of plaintiffs’ office and certain other specified places the defendant’s promise of indemnity is limited to loss through larceny, whether common law or statutory, embezzlement, robbery, holdup or theft by any person whomsoever while the property is in transit * * * in the custody of any of the Insured’s partners or any of the employees or any messenger temporarily employed, or through negligence on the part of any such employee or messenger having custody of the Property while in transit as aforesaid: such transit risk to begin immediately upon receipt of such Property by the transporting employee or employees or partner or messenger temporarily employed and to end immediately upon delivery thereof at destination.” Upon the defendant’s motion for judgment on the pleadings, the complaint has been dismissed upon the ground that the securities were not lost by larceny until after they were delivered “ at destination.”

The defendant expressly waives upon this appeal “ any technical defect or inadvertent omission or misstatement of a fact which might be supplied under an amended pleading.” We read the allegations of the complaint in accordance with the construction placed upon them by both parties in their arguments and briefs. The question so presented is narrow. Baran & Co., Inc., agreed to purchase some shares of stock for the sum of $19,300. The plaintiffs’ messenger was authorized to deliver temporary possession of the stock to the purchaser, but in accordance with the agreement of the parties and the custom of trade, title to the stock was not to pass to the purchaser until a certified check or cash for the amount of the purchase price was delivered to the messenger. Pursuant to his instructions the messenger delivered the stock to the purchaser, upon the condition evidenced by a written receipt “ reserving title to the above securities in the plaintiffs, until payments shall have been made therefor.” The defendant does not contend that the allegations of the complaint are insufficient to admit proof of an intention on the part of Baran & Co., Inc., fraudulently to secure possession of the securities without payment, and with intent to convert them to its own use. It says that even assuming that the plaintiffs lost the securities by larceny, the complaint fails to show that the larceny occurred while the securities were in transit and before the transit risk was terminated by “ delivery thereof at destination.”

In Underwood v. Globe Indemnity Co. (245 N. Y. 111) this court sustained a right of action under a similar, though not identical, bond of indemnity where a messenger, authorized to deliver securities upon receipt of a certified check, was induced by trick and device to deliver possession upon the receipt of a worthless piece of paper which was fraudulently given the appearance of a certified check. There the messenger was tricked into making a delivery not authorized by his principal. Here the messenger delivered the securities at their destination in accordance with the instructions of the principal. Therefore, it is said, the transit risk was terminated by delivery of the securities at destination and the loss is excluded from the protection of the indemnity bond.

The problem presented here is not whether the transit of the securities was terminated by delivery at destination, but whether the transit risk was terminated before the larceny was complete. Even at common law, if a party fraudulently obtains possession of goods from the owner with intent at the time to convert them to his own use, and the owner does not part with the title, the offense is larceny.” (Commonwealth v. Lannan, 153 Mass. 287.) (See People v. Noblett, 244 N. Y. 355.) The original wrongful intent may be inferred from subsequent conduct. (Commonwealth v. Rubin, 165 Mass. 453.) Here we must assume that both before and at the time when the pretended purchaser obtained possession of the securities he had the fraudulent intent to convert them. Purchase and promise to pay and written receipt with reservation of title to the securities were all parts of a fraudulent device to obtain possession of thesecurities. The securities, while in the custody of the messenger, were in the possession of the plaintiffs. Possession was obtained from the plaintiffs by larceny. It is immaterial whether the fraud was exercised upon the mind of the messenger, or upon the minds of those directing his actions. In either event the plaintiffs have been deprived of their property by larceny, and that larceny was consummated while the property was in the custody of their messenger, through a delivery obtained fraudulently and with intent to convert the property. It cannot be said that the larceny occurred after the messenger had ended the transit risk by delivery at destination, when that delivery was itself the consummation of a scheme to obtain possession with larcenous intent. The plain intent of the bond was to furnish protection against loss by larceny through a felonious taking of possession from the messenger. Such loss was incurred in this case, as in the Underwood case, though there the trick was practised upon the messenger, while here it was practised upon the messenger’s principal, who used the messenger only as an instrument to make a physical delivery of possession, with reservation of title.

The judgment of the Appellate Division should be reversed and the order of the Special Term affirmed, with costs in the Appellate Division and in this court. (See 257 N. Y. 555.)

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

Judgment accordingly.


text:
    Corrie M. Dowsey, Respondent, v. Village of Kensington et al., Appellants.

      (Argued June 8, 1931;
    decided July 15, 1931.)

      Edward M. Bassett and August C. Flamman for appellants.
    Plaintiff prior to the commencement of the action, should have filed her plans with the village and requested permission to build and, if permission was denied, exhaust her remedies before the Board of Appeals. (Lang’s Creamery, Inc., v. City of Niagara Falls, 251 N. Y. 343; Central R. R. & Banking Co. v. Pettus, 113 U. S. 127; West v. City of Wichita, 234 Pac. Rep. 978; . Dynzer v. City of Evanston, 319 111. 226; Eaton v. City of Newark, 128 Atl. Rep. 377; Cliff side Park v. Borough of Cliff side, 96 N. J. L. 278; People ex rel. St. Basil’s Church v. Kerner, 125 Mise. Rep. 526; People ex rel. Benedict v. Milleman, 128 Mise. Rep. 367; Mathewson v. Brockett, 127 Mise. Rep. 895; Horwitz v. Schwab, 130 Mise. Rep. 158; People ex rel. Smith v. Walsh, 211 App. Div. 205; 240 N. Y. 606; People ex rel. Sheldon v. Board of Appeals, 234 N. Y. 484; People ex rel. Broadway & 96th Street Realty Co. v. Walsh, 203 App. Div. 468; Southern Leasing Co. v. Ludwig, 217 N. Y. 100; People ex rel. Sondern v. Walsh, 108 Mise. Rep. 193; People ex rel. Werner v. Walsh, 212 App. Div. 635; Goldenberg v. Walsh, 215 App. Div. 396; Fordham Manor Reformed Church v.
      Walsh, 217 App. Div. 177; 244 N. Y. 280; People ex rel. Walsh v. Kleinert, 191 N. Y. Supp. 947; Palmer v. Mann, 237 N. Y. 616; Village of Euclid v. Ambler Realty Co., 272 U. S. 365; Reed v. Board of Standards & Appeals, 230 App. Div. 21; People ex rel. Helvetia v. Leo, 231 N. Y. 619; People ex rel. Facey v. Leo, 230 N. Y. 602.) The zoning ordinance was a proper exercise of the power delegated to the village under article 6-A of the Village Law and was substantially related to the public health, safety and welfare of the village. (Village of Euclid v. Ambler Realty Co., 272 U. S. 365; Wulfsohn v. Burden, 241 N. Y. 288; Isenbarth v. Bartnett, 206 App. Div. 546; 237 N. Y. 617; Matter of Hecht-Dann Construction Co. v. Burden, 124 Misc. Rep. 632; Nectow v. City of Cambridge, 277 U. S. 183.)

      G. Burchard Smith, Lawrence R. Condon and James L. Dowsey .for respondent.
    The zoning ordinance of the village of Kensington, in so far as it affects the plaintiff’s premises, was not substantially related to the public health, safety and' general welfare and is unreasonable, unconstitutional and beyond the exercise of the police power. (Matter of Wulfsohn v. Burden, 244 N. Y. 288; Nectow v. City of Cambridge, 277 U. S. 183; Fox Meadow Estates, Inc., v. Livingston, 137 Misc. Rep. 22.) The plaintiff was not required prior to the commencement of the action to file plans with the village and request permission to build and, if permission were denied, exhaust her remedies before the Board of Appeals. (Village of Euclid v. Ambler Realty Co., 272 U. S. 365; Nectow v. City of Cambridge, 277 U. S. 183; Lathrop v. Town of Norwich, 111 Conn. 616; Ross v. Gonzales, 29 S. W. Rep. [2d] 437; Eaton v. City of Newark, 128 Atl. Rep. 377; West v. City of Wichita, 234 Pac. Rep. 978; People ex rel. Sheldon v. Board of Appeals, 234 N. Y. 494; People ex rel. Bienert v. Miller, 188 App. Div. 113; Matter of Stevens v. Clark, 216 App. Div. 351; Jewish Consumptives Relief

      Soc. v. Town of Woodbury, 230 App. Div. 228; Prescott v. Pierce, 130 Misc. Rep. 63; People ex rel. Fordham M. R. Church v. Walsh, 244 N. Y. 280; Matter of Pounds v. Walsh, 129 Misc. Rep. 676; 223 App. Div. 861; 248 N. Y. 591; Matter of Municipal Gas Co. v. Nolan, 121 Misc. Rep. 606; 208 App. Div. 753.)
   Lehman, J.

The village of Kensington is situated in a territory known as the Great Neck section of Long Island. In that section, contiguous to the city of New York, homes have been built by many who sought there a grace and dignity of life difficult to attain in or near great urban industrial centers. The village communities scattered through that section are almost completely residential. Mercantile, industrial and social activities there serve, almost exclusively, the wants of the residents of the section. The village of Kensington is coterminous with a plot of land which was originally developed as a single residential unit. On the original plan, the streets were laid out in a manner calculated to secure an atmosphere of dignified, quiet retirement, and the lots fronting on those streets were sold subject to drastic restrictions. The village has a frontage of about one-fifth of a mile on one side of Middle Neck road, the most active thoroughfare of that district, and extends from that road nearly a mile to Manhasset bay. Four streets running from east to west converge, or end, at a village street called Park lane, near Middle Neck road, and there is only one entrance to the village from that public thoroughfare. Near the opposite end of the village the streets again converge to form a single entrance from Shore road. On the opposite side of Shore road there is a small plot of land running to the water, which in large part is used for a private park and.swimming pool by some of the village residents. The plaintiff’s land includes the whole Middle Neck frontage of the village south of the entrance to the village and runs back to Park lane, one of the village streets. Its area is about 76,000 square feet.

The village of Kensington in 1926 passed a zoning ordinance. With the exception of the small plot of land at the opposite end of the village, extending from the Shore road to Manhasset bay, the entire village, including the plaintiff’s land, has been placed in one use ” district, and in that district, the ordinance provides, that no buildings shall be erected other than a building with its usual accessories, arranged, intended or designed exclusively for one or more of the following uses: 1. A dwelling for not over one family or for one housekeeping unit only. * * * 2. Churches. 3. Schools, libraries or public museums. 4. Buildings for the Village Fire and Police Departments and such other buildings as may be necessary for Village purposes.” The plaintiff, claiming that the attempted restriction of the use of her land is unreasonable and beyond the power of the village authorities, has brought this action to obtain a declaratory judgment that the zoning ordinance is to that extent ineffective and void. Judgment in favor of the defendant was reversed by the Appellate Division, which adjudged that the zoning ordinance “ in so far as it restricts the use of the premises in the village of Kensington on the easterly side of Middle Neck road to residential purposes only is legally unreasonable and therefore invalid.”

The evidence presented upon the trial leaves no doubt that the market value of the land owned by the plaintiff is greatly diminished by the restrictions upon its use. There are one hundred and seventy-eight one-family detached residences in the village, and very little undeveloped land. The zoning ordinance is intended to prevent the intrusion of business or apartment buildings and to preserve the rural quiet of the village. The plaintiff’s land is at the edge of the village fronting on a frequented highway. The village has no power to restrict the land on the opposite side of that highway, nor the land to the north or south of the narrow strip of land embraced in the village. The township in which the village is situated has adopted zoning regulations for lands not within any incorporated villages. Other villages have also adopted zoning regulations. All these regulations permit the erection of business or apartment buildings, or both, along Middle Neck road. For several years no one-family dwelling has been erected upon that highway. While less frequented roads are suitable for the erection of homes for those who seek seclusion and quiet, the main highway of the section is better suited for the erection of business or apartment buildings. Concededly it is more valuable for,that use and less valuable for use for one-family detached dwellings.

Residence districts into which business may not intrude must have definite boundaries, and the Legislature has left to the local authorities the decision where those boundaries should be placed for the purpose of promoting the health, safety, morals, or the general welfare of the community.” (Village Law; Cons. Laws, ch. 64, § 175.) Business buildings just beyond the residence district may render the land just within the residence district less desirable for residential use. Special hardship to an individual owner must at times be suffered for the general welfare, but neither the Legislature nor the local authorities acting under power delegated by the Legislature, may impose such special hardship unnecessarily and unreasonably. Such special hardship may at times be avoided or mitigated by a special variation of a general zoning regulation. The zoning ordinance which the plaintiff attacks has made provision for such variation in particular cases by the Board of Appeals. The plaintiff has not seen fit to apply for such a variation. The defendant urges that until such an application has been made and refused, the plaintiff has not exhausted the remedies afforded by the ordinance and an action in equity to declare the zoning ordinance unreasonable and void as to her is premature. Until then, it is said, there is no controversy between the parties.

Doubtless it is difficult, perhaps impossible, for a legislative body enacting a zoning regulation to envisage the result of its regulation upon each piece of property which may be affected, or to weigh and adjust each private and public interest that may be involved. The exclusion of business from a particular district may promote the general welfare of the district, yet may destroy the value of a particular plot therein which cannot reasonably be used for residence purposes. In the same statute in which the Legislature conferred upon the Board of Trustees of a village the power to enact a zoning ordinance, it has provided that: “ Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, the board of appeals shall have the power in passing upon appeals, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures, or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.” (Village Law, § 179-b.) The village ordinance now under consideration has expressly conferred the same power upon the Board of Appeals created by the ordinance.

No power has been conferred upon the Board of Appeals to review the discretion of the Board of Trustees in creating a general rule regulating the use, construction or alteration of buildings or structures or the use of land. Its function is to provide a measure of flexibility in the application of a general rule imposed for the general welfare. It cannot act until the owner has applied for permission to erect a building which does not comply with the “ strict letter ” of the zoning ordinance. Then “ upon a showing of unnecessary hardship, general rules are suspended for the benefit of individual owners, and special privileges established.” (People ex rel. Fordham M. R. Church v. Walsh, 244 N. Y. 280, 290.) The plaintiff contends that the rule itself is invalid and that its existence seriously affects the value of her property. She may desire to sell her property rather than to erect a business building on it and the existence of a rule which would require a purchaser to take subject to the risk that a special privilege ” may qot be granted, or if granted may be burdened by onerous conditions, must seriously affect the present market value of her property. Assuming the premises, the existence and maintenance of the ordinance, in effect, constitutes a present invasion of appellee’s property rights and a threat to continue it. Under these circumstances, the equitable jurisdiction is clear.” (Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 386.)

The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. * * * A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities.” (Village of Euclid v. Ambler Realty Co., supra, at p. 387.) In that case, as in several cases decided by this court, the considerations which may justify a zoning ordinance as a valid exercise of the police power have been carefully stated and weighed. (People ex rel. Durham Realty Corp. v. LaFetra, 230 N. Y. 429; People ex rel. Sheldon v. Board of Appeals, 234 N. Y. 484; Matter of Wulfsohn v. Burden, 241 N. Y. 288.) There is no need of restating them here. The plaintiff does not maintain that the village might not exclude apartment houses or business buildings from a district devoted to one-family residences. She maintains only that the inclusion of her property in such a district is so unreasonable that it cannot be supported under even the widest extension of the police power.

In large cities, zoning ordinances provide for the segregation of buildings intended for particular uses in appropriate districts. They make provision for every use except perhaps such use as might reasonably be considered noxious in every district of the city. Delicate problems are often presented in the division of districts that cannot be solved with justice to all by a general inflexible rule. That difficulty is inherent in any general zoning regulation. Where a restriction imposed by a general rule upon the use of property tends to promote the general welfare, the general rule may be reasonable even though its strict enforcement might cause unnecessary hardship or damage to the owner of particular property, provided the rule is made subject to variation in its application in case of such hardship. Then the courts will not refuse enforcement of the general rule, at least until the variatiqn has been refused. In the first instance, the official body intrusted with that function must determine in such case the propriety and the extent of the variation.

Here the situation is different. The village of Kensington is small in area, and the Board of Trustees have not attempted in the zoning ordinance to segregate in appropriate places within the village all- the activities of communal life. They have relegated business and industry to a very small section which the evidence shows is not adapted to business, and have excluded from the main portion of the village even residences excepting one-family detached houses. We are told that apartment buildings or stores on the Middle Neck road frontage, or, indeed, in any other part of the village, might cause traffic congestion, fire hazards and other dangers to the health and safety of the community. In truth, the inference from the evidence is clear that these claims are without' substance and that the zoning- ordinance has been framed for the purpose of excluding such buildings from the village in order to preserve it as a secluded quiet community of one-family detached homes.

From the point of view of the residents of the village who bought property, restricted by deed to such use and laid out in a manner calculated to promote that end, the purpose of the ordinance may be desirable. Upon this appeal we may even assume that it promotes the public welfare. Even then, the ordinance transcends the limits of the power of the Board of Trustees, in so far as it seeks to impose restrictions which are patently unreasonable.

Property fronting on Middle Neck road is peculiarly adapted for apartments or business. Except on the frontage of the village of Kensington, extending on one side of the road for one-fifth of a mile, all property on that road may be used for such purposes. The plaintiff's land is adapted to use for one-family detached dwellings only if the front of such dwellings were placed towards Park lane, which lies wholly within the village, and then its value would be only one-quarter of its value if devoted to other uses. Moreover, testimony given by a witness produced by the defendant shows that the property within the village fronting on Middle Neck road may be used for apartments or stores without substantial detriment to the use of the property in the rear fronting on Park lane. The inference is reasonable that the property fronting on Middle Neck road has been included in the residence district primarily for the purpose of providing a beautiful and dignified village frontage on the public thoroughfare.

.¿Esthetic considerations are, fortunately, not wholly without weight in a practical world. Perhaps such considerations need not be disregarded in the formulation of regulations to promote the public welfare. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330.) Public welfare ” is a concept which in recent years, has been widened to include many matters which in other times were regarded as outside the limits of governmental concern. As yet, at least, no judicial definition has been formulated which is wide enough to include purely aesthetic considerations. Certainly an ordinance is unreasonable which restricts property upon the boundary of the village to a use for which the property is not adapted, and thereby destroys the greater part of its value in order that the beauty of the village as a whole may be enhanced. In such case the owner of the property cannot be required to ask as a special privilege for a variation of the restriction. The restriction itself constitutes an invasion of his property rights.

The judgment should be affirmed, with costs.

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

Judgment affirmed.