author: Htjbbs, J.

text:
    Thompson-Starrett Company, Inc., Respondent, v. Otis Elevator Company, Appellant.

      (Argued March 17, 1936;
    decided April 15, 1936.)

      Joseph M. Proskauer, J. Alvin Van Bergh and Albert L. Solodar for appellant.

      J. G. Fink and Harry N. French for respondent.
   Htjbbs, J.

The respondent’s predecessor, Thompson-Starrett Company, Inc., was the general contractor engaged in the construction of a forty-two story building in the city of New York. Since respondent as successor of Thompson-Starrett Company, Inc., assumed the rights and liabilities of that company, respondent will hereafter be referred to as the contractor. It entered into a subcontract with the appellant for the furnishing and installation of elevators and elevator equipment. As an incident of that subcontract, the appellant agreed to indemnify the respondent “ against all claims for damages to persons growing out of the execution of the work.”

The appellant further agreed to maintain compensation insurance covering employees as required by law and liability insurance against all claims for damages for personal injury or death suffered by persons other than employees and growing out of the execution of the work.”

The word “ work ” was defined in the contract as the work, materials, matters and things required to be done and furnished by subcontractor under this contract.”

Two men, employees of appellant, were injured and recovered large judgments against the respondent. Respondent paid the judgments and brought this action to recover the amount paid, claiming liability therefor on the part of the appellant under the indemnity clause above quoted.

Upon the trial of this action the facts were admitted, the respondent expressly stipulating as follows: "The injuries sustained by Hopkins and Dragnet were caused by a falling piece of iron which belonged to the plaintiff’s predecessor herein, and was to be used by it in the framework of the building, and the accident occurred solely by reason of the negligence of the said predecessor in causing or permitting the said object to fall and/or in failing to properly guard the elevator shaft in which the injured men were working.”

The courts below have construed the contract to require the appellant subcontractor to indemnify the respondent general contractor against injuries occasioned solely through the negligence of the respondent. The injuries sustained by the workmen cannot properly be said to be injuries “ growing out of the work ” within the meaning and intent of the agreement. Such a construction of the contract is unwarranted and places upon the appellant a burden which under the express terms of the contract it did not agree to assume and liability for which is not to be implied from the language used.

The contract is not primarily one of indemnity, an agreement to procure for the respondent indemnity against " all claims for damages to persons ” growing out of the work of the general contractor. The primary purpose of the contract was to provide for elevator construction work by the appellant as subcontractor and the indemnity agreement was an incident of the contract intended to afford to the respondent protection against such claims for damages as might grow out of damages to persons resulting from the prosecution of that part of the work embraced in the general contract to be undertaken by appellant as subcontractor. Viewed in this light, the indemnity was clearly intended 'to extend to damages to persons resulting from the prosecution of work under the subcontract and not to damages to persons resulting from negligent prosecution of work remaining under the exclusive jurisdiction of the respondent as general contractor or by it contracted to persons other than the appellant. The injuries sustained by appellant’s employees were not injuries growing out of any work undertaken by appellant. Under the facts as stipulated, they grew out of work which was no part of appellant’s contract. They were sustained solely through the invasion by respondent into an area in which appellant and its workmen were by contract entitled to be and as to which the respondent owed the duty of providing safeguards which it neglected to provide and of refraining from increasing hazards by its own negligence.

It is a general rule long established that contracts will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms. (Employers’ Liability Assur. Corp. v. New York Linen Supply & Laundry Co., 239 N. Y. 560; Manhattan Ry. Co. v. Cornell, 54 Hun, 292; affd., 130 N. Y. 637.)

That such is the rule in this State has been recognized alike by the Federal courts as well as courts of other states, the decision in Manhattan Ry. Co. v. Cornell (supra), being cited in support thereof. (Cf. Wallace v. United States, 16 Fed. Rep. [2d] 309; affd., 18 Fed. Rep. [2d] 20; Perry v. Payne, 217 Penn. St. 252.)

It is the contention of respondent that such rule has been abrogated by the decisions in Post & McCord v. N. Y. Municipal Ry. Co. (187 App. Div. 167; affd. without opinion, 230 N. Y. 540); Long Island R. R. Co. v. American Bridge Co. (175 App. Div. 170; affd. without opinion, 225 N. Y. 692), and Westinghouse, Church, Kerr & Co. v. Long Island R. R. Co. (160 App. Div. 200; affd. without opinion, 216 N. Y. 697), all of which were relied upon by the trial court. In each of these cases the indemnitor was a general contractor who had charge of and responsibility for all the work connected with the erection of the structure. In the first case, Post & McCord v. N. Y.Municipal By. Co. (supra), the indemnitor was constructing the foundations of an elevated railway for defendant, the owner. A passenger was injured when a trolley car collided with a crane operated by the general contractor. Under such facts it was held that the defendant was entitled to enforce its indemnity agreement. There the accident did not result from negligence on the part of the defendant, the indemnitee. The claim was so clearly within the express terms of the contract as to make inapplicable the general rule above stated.

In Long Island R. R. Co. v. American Bridge Co. (supra, p. 173) a contractor was engaged in construction work on plaintiff’s line and assumed the obligation of maintaining an efficient flagman to watch and flag approaching trains at a point at which work was in actual progress. The indemnity provided by the contract was against all claims “ on account of any injuries or damages received or sustained by any person or persons, by or from the contractor, his agents or servants in the prosecution of this work, or by or in consequence of any negligence in prosecuting or guarding the same.”

An employee of a subcontractor was injured by a train operated by the plaintiff, and alleging negligence on the part of the plaintiff railroad, recovered a judgment. The railroad thereupon brought suit on the indemnity agreement and a recovery was had. It was recognized in the opinion below that the defendant contractor had specifically assumed the duty of guarding against injury to workmen, a duty in which it failed. The claim came, therefore, within the express terms of the contract of indemnity and its enforcement was proper, despite negligence on the part of the indemnitee.

In Westinghouse, Church, Kerr & Co. v. Long Island R. R. Co. (supra) the owner had made a construction contract on a cost plus basis,” the cost being specifically defined to include “ cost of accidents.” An accident having occurred, the court held that the damages paid as a result thereof were a proper cost under the specific language of that contract.

None of those three cases has the effect of overruling the general rule that a contract will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal language. On the contrary, each is illustrative of the exception indicated in the rule as quoted. In construing a contract there must be taken into account the intent of the parties, as expressed in the contract and as indicated by the nature and extent of the work to be performed under the contract. The contract here has for its primary purpose not indemnification but construction of an integral part of a larger undertaking. To say that in contracting to construct such integral part, the appellant, by such general language as was here used, assumed the obligation of indemnifying respondent for claims resulting from accidents to persons caused by the negligence of respondent, especially in view of the duty resting upon respondent to provide safeguards against accidents of the nature of that which occurred is to place upon appellant an unreasonable burden, a burden not to be deemed to have been within contemplation of the parties as indicated by their contract.

The mere fact that the accident occurred while the employees of appellant were engaged in work as defined in the contract is not sufficient to impose liability under the indemnity agreement. While it is true that the accident would not have occurred had they not been so engaged, the work was not the cause of the accident. It was respondent’s own negligence which was the cause, and ■under such circumstances the language of the indemnity agreement was far too general in its nature to impose liability upon the appellant.

Here there was not merely passive negligence on the part of the respondent. The stipulation discloses active negligence on its part. The question stated but not decided in Dudar v. Milef Realty Corp. (258 N. Y. 415) is not presented.

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

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

Judgments reversed, etc.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Farmer Miller, Appellant. The People of the State of New York, Respondent, v. Charles Cranides, Appellant. The People of the State of New York, Respondent, v. Joseph Kiley, Appellant.
    (Argued March 16, 1936;
    decided April 15, 1936.)

      Melvin A. Albert and Milton C. Weisman for appellants.

      William F. X. Ceoghan, District Attorney (George F. Palmer, Jr., of counsel), for respondent.
   O’Brien, J.

Defendants operate a motion picture theatre in Brooklyn and have been convicted of maintaining a lottery therein. Section 1370 of the Penal Law contains this definition: “A ‘ lottery ’ is a scheme for the distribution of property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a lottery, raffle, or gift enterprise or by some other name.” Section 1376 provides, “A person who offers for sale or distribution, in any way, real or personal property, or any interest therein, to be determined by lot or chance, dependent upon the drawing of a lottery within or without this state, or who sells, furnishes, or procures, or causes to be sold, furnished, or procured, in any manner, a chance or share, or any interest in property offered for sale or distribution, in violation of this article, or a ticket or other evidence of such a chance, share, or interest, is guilty of a misdemeanor.”

The procedure whereby one becomes entitled to share in a chance to win a sum of money in the enterprise conducted by these defendants is thus described: A patron of the theatre buys a ticket of admission which entitles him to witness a motion picture. The holder of this ticket draws another ticket which one of the defendants tears in half, putting one-half into a box and returning the other half to the patron. Another defendant goes upon the theatre stage with a wheel, explains its operation, and when the wheel stops at a certain name he picks out a ticket with a number on it and announces that the holder of that ticket is the winner. The third defendant hands the money prize to the winner. The game is concededly one of chance. Defendant’s argument is that no valuable consideration has been paid for the chance- and, therefore, the game is not a lottery. The question is whether, under these sections of the Penal Law, the process practiced by defendants whereby the purchaser of a ticket of admission to their theatre obtains with that ticket a chance to win a sum of money constitutes the offense of maintaining a lottery and whether defendants’ conduct was in violation of these provisions.

Defendants offered evidence tending to show the possibility of participation in the chance by those who bought no ticket of admission to the theatre and in no way paid any valuable consideration for the opportunity to share in the chance, but the trial court rejected the credibility of such testimony. In view of this rejection our decision in People v. Mail & Express Co. (231 N. Y. 586) has no application. The issue of law, theiefore, is whether a payment which entitles one to a ticket of admission to the theatre plus a chance to win a prize constitutes payment of a valuable consideration for the chance. The language of section 1370 of the Penal Law and its predecessor has received the broadest interpretation. The sale of a piece of chewing gum for a penny which secured a chance to draw a prize in value according to the number on the package constitutes a lottery (People v. Runge, 3 N. Y. Crim. Rep. 85). This court has held that when a pecuniary consideration is paid and the return for that consideration — what and how much he who pays the money is to have for it ” — - is determined by chance, the scheme constitutes a lottery (Hull v. Ruggles, 56 N. Y. 424, 427). The patron of these defendants’ theatre paid his money at the box office and, in return for that consideration, received a ticket entitling him to witness a motion picture and a chance to win a money prize. He paid a valuable consideration for something determinable by chance. What was he to receive, merely a right to view a picture or that right in addition to a sum of money? The principle of this case is no different from the scheme described in People ex rel. Ellison v. Lavin (179 N. Y. 164, 168), where the purchaser of cigars, upon presentation of cigar bands, became entitled to a chance to win a sum of money. We held in that case that persons among whom the distribution was to be made paid a valuable consideration for the chance when they purchased the cigars, the bands on which entitled them to compete for prizes. In neither case was an additional sum of money exacted for the chance to win. Here the theatre patlon paid only the regular price of admission; there the purchaser of cigars paid no more than the usual price. The Austrian bond which was the subject of litigation in Kohn v. Koehler (96 N. Y. 362, 368) was not raffled nor distributed by lot or ‘ chance and' under the Revised Statutes (1 R. S. p. 665, § 22) the scheme was not illegal (People v. Wolf, 14 App. Div. 73, 79; affd., 152 N.Y. 640).

As to each defendant the judgment should be affirmed.

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

Judgment affirmed.


author: Finch, J.

text:
    James I. Morrall, as County Treasurer of the County of Monroe, Appellant, v. County of Monroe et al., Respondents.

      (Argued March 18, 1936;
    decided April 16, 1936.)

      J. Emmett O’Brien for appellant.

      Harry Rosenberg and Adolph J. Rodenbeck for respondents.
   Finch, J.

A submission upon an agreed statement of facts was presented to the Appellate Division, fourth department, for the purpose of obtaining a judicial construction of the new amendment to the County Law (Cons. Laws, ch. 11, art. 2-A) in so far as it affects the office of County Treasurer.

The present County Treasurer of the county of Monroe was duly elected in 1932 for a term ending October, 1936. At the general election held in 1935 the county of Monroe adopted a County Manager form of government known as plan B, pursuant to the County Law (Art. 2-A; Laws of 1935, ch. 948). Following the election the Board of Supervisors appointed Clarence A. Smith County Manager for a term of four years and directed him to serve also as Director of Finance. The latter demanded that the plaintiff County Treasurer turn over the books, papers, records and moneys of the county. He refused, with the result that both claim to be the official entitled to perform the duties of County Treasurer. In this connection the statute provides that if at the election a majority vote in favor of the adoption of the plan, then it goes into effect upon the date designated in the petition or resolution, which in this case was January, 1936. The statute further expressly prescribes that no elective official in office, “ whose office will no longer be filled by election, shall be retired prior to the expiration of his term of office, but during his unexpired term shall perform such duties as may be assigned to him by the county * * * manager.” .(§ 7-b.)

The office of County Treasurer not being an office created or provided for by the State Constitution, it is well settled that such office is within the control of the Legislature which may limit its tenure, abolish it altogether, change the method whereby it shall be filled or the amount of compensation which shall attach thereto. (Koch v. Mayor, 152 N. Y. 72; People ex rel. Ward v. Scheu, 60 App. Div. 592; affd., 167 N. Y. 292.) No benefit can come from tracing at length the office of County Treasurer in connection with the Constitution of the State. Suffice it to say that the office of County Treasurer was first mentioned in the Constitution of 1777 and was omitted from the Constitution of 1821 and thereafter. Sheriffs, Clerks of counties, District Attorneys and Registers are the only county officers referred to in the State Constitution (Art. X, § 1). Even in the Constitution of 1777, which mentioned County Treasurers, it was therein provided that they should " continue to be appointed in the manner directed by the present or future acts of the Legislature ” (Art. XXIX).

No provision for the office of County Treasurer appearing in the present State Constitution, the office of Monroe County Treasurer is not a constitutional office but a legislative one, As a legislative office there is nothing to prevent its abolishment by the Legislature or the diminution of its duties or their transfer in whole or in part to another officer. In the United States a public office is not property (Smith v. City of New York, 87 N. Y. 518), nor is the right to fees or compensations based on Contract but only arises from a rendition of services so that the Legislature may diminish or change the mode of payment from fee to salary or vice versa in its discretion. (Trustees of Dartmouth College v. Woodward 4 Wheat. [U. S.] 518; Koch v. Mayor, 152 N. Y. 72.)

The parties have stipulated that no question is raised regarding the constitutionality of article 2-A of the County Law. No question of constitutionality, therefore, now arises.

We are thus brought to a consideration of the intention of the Legislature as expressed in the language of the amendment to the County Law. The new amendment to the County Law provides a new plan for the government of the counties in this State. Heretofore counties in. general were governed by Boards of Supervisors with the help of certain elected and appointed officials. Comprised within the new amendment are two optional plans offered for adoption, one known as the county president plan and the other, the county manager plan. Three main departments are provided: Finance, Public Works and Public Welfare.

On this appeal we deal only with the office of County Treasurer and its duties. The office of County Treasurer was not abolished but the duties conflict with the duties conferred on the Department of Finance. Statutes both State and local inconsistent with the new amendment are expressly repealed (L. 1935, ch. 948, § 2). Even if there were no express repeal provision still we would have a general scheme for the government of counties which aims to cover the whole subject and prescribe the duties applicable. In such circumstances it is well settled as a principle of statutory construction that the later statute repeals by necessary implication the earlier acts which are inconsistent therewith. (City of Buffalo v. Lewis, 192 N. Y. 193; Heckmann v. Pinkney, 81 N. Y. 211.)

The duties of the County Treasurer have been transferred to the Director of Finance because the former office is inconsistent with the latter, but lest a dispute should arise as to the division of duties thus hindering performance against the best interests of the public, the Legislature has been careful to prescribe that, although the elective officers should not be ousted prior to the expiration of their terms of office, nevertheless, they may only perform during the unexpired term such duties as may be assigned to them by the County Manager (Art. II-A).

The judgment of the Appellate Division should be affirmed, with costs.

Crane, Ch. J., Lehman, O'Brien, Hubbs, Crouch- and Loughran, JJ., concur.

Judgment affirmed.


text:
    George J. Keyes, Individually and as County Auditor of the County of Monroe, Appellant, v. County of Monroe et al., Respondents.
    (Argued March 18, 1936;
    decided April 15, 1936.)

      J. Emmett O’Brien for appellant.

      Harry Rosenberg and Adolph J. Rodenbeck for respondents.
   Finch, J.

This is a companion case to that of Morrall v. County of Monroe (271 N. Y. 48), handed down herewith. All that has been said in that case applies here with equal force. In this case we are not concerned with a constitutional or even a legislative officer. The office of County Auditor was created by the Board of Supervisors of Monroe county pursuant to permissive authority granted by the Legislature. There is, therefore, not only no reference in the Constitution to the office of County Auditor but this office was not even created by the Legislature. All that the Legislature did was to grant permission to the Board of Supervisors to create in their discretion such office and to fix the term thereof and the compensation therefor. (County Law [Cons. Laws, ch. 11], §§ 215, 216; Laws of 1910, ch. 152.)

The creation of the office of Monroe County Auditor being permissive, the Board of Supervisors after the creation of the office had the power to abolish it at any time. (Smith v. City of New York, 37 N. Y. 518; People ex rel. Taylor v. Dunlap, 66 N. Y. 162; Koch v. Mayor, 152 N. Y. 72; Matter of Allison v. Welde, 172 N. Y. 421.)

The Board of Supervisors was not hampered in its power to abolish the office by any provision of the Civil Service Law (Cons. Laws, ch. 7). The resolution of the Board of Supervisors creating the position of auditor placed it in the exempt class. (Civil Service Law, §§ 9 and 13.)

The County Auditor not being an elective officer did not have the benefit of the provision in the County Law which continued elective officials in office until the expiration of their terms. (County Law, art. 2-A, § 7-b.)

The office of Monroe County Auditor was abolished by inconsistent legislation providing for the new county form of government. This act covered the whole subject of the earlier statutes and rendered the office of County Auditor unnecessary. (City of Buffalo v. Lewis, 192 N. Y. 193.) Moreover, the Board of Supervisors acting within their right and duty abolished the office of County Auditor.

It follows that the judgment of the Appellate Division should be affirmed, with costs.

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

Judgment affirmed.


author: Loughran, J. Crane, Ch. J.

text:
    William J. Hood, Respondent, v. Howard A. Webster et al., Appellants.
    (Argued March 12, 1936;
    decided April 21, 1936.)

      Carrollton A. Roberts for appellants.

      William MacFarlane for respondent.
   Loughran, J.

Florence F. Hood owned a parcel of farm land in the town of Phelps, Ontario county. This property had been devised to her by her husband, whose will said that, should she predecease him, he wanted his estate to go to his brother, the plaintiff here. In 1913 Mrs. Hood executed a deed of the farm to the plaintiff and delivered it to his attorney as an escrow to take effect on her death. The Appellate Division has confirmed a finding of the Equity Term that this delivery was subject to no other condition. A majority of this court has come to the conclusion that the contrary of the fact so found may not be declared as matter of law on this record.

Having all along occupied the property, Mrs. Hood in 1928 granted it to the defendants (her brother and a nephew) by a deed then recorded. She died in 1933. The prior deed held as an escrow was thereupon delivered over to the plaintiff who had it recorded. In this action to annul the subsequent deed to the defendants, it has been held that on the foregoing facts the plaintiff was entitled to prevail.

On this appeal by the defendants, the parties concede that the case made by the findings depends for its solution upon the force and effect of section 291 of the Real Property Law (Cons. Laws, ch. 50). It is thereby provided that every conveyance of real property not recorded “ is void as against any subsequent purchaser in good faith and for a valuable consideration, from the same vendor, his heirs or devisees, of the same real property or any portion thereof, whose conveyance is first duly recorded.”

Did the single circumstance that the subsequent deed to the defendants was first on record establish, in the absence of evidence to the contrary, the matters thus essential to avoid the prior deed to the plaintiff?

; We think this question of burden of proof as fixed by the recording act is not for us an open one. The defendants were bound to make out by a fair preponderance of evidence the affirmative assertion of their status as purchasers in good faith and for a valuable consideration. (Westbrook v. Gleason, 79 N. Y. 23; Ten Eyck v. Witbeck, 135 N. Y. 40; Lehrenkrauss v. Bonnell, 199 N. Y. 240, 243.)

Brown v. Volkening (64 N. Y. 76) and Constant v. University of Rochester (111 N. Y. 604; 133 N. Y. 640), as read by us, are not authorities to the contrary. In those cases the court did say that the party who claimed under an unrecorded conveyance was required to prove that the subsequent record purchaser took with notice. But here, as elsewhere, it must be kept in mind that the phrase “ burden of proof ” may stand in one connection “ for the never changing burden of establishing the proposition in issue,” and in another “ for the constantly changing burden of producing evidence.” (Thayer, Preliminary Treatise on Evidence, pp. 353-389.) In the Brown and Constant cases the controlling factor was that substantial value had been paid for the subsequent conveyance. That fact was more than evidence of consideration. It was further the basis for the auxiliary inference that there was also good faith in the transaction, and what was said respecting the burden of proof had reference to the duty of adducing evidence to repel that inference. For the same reason, the burden of proof (in the same sense) is upon the holder of an unrecorded conveyance when a subsequent deed first recorded acknowledges receipt by the grantor of a consideration sufficient to satisfy the statute. (Wood v. Chapin, 13 N. Y. 509, 518; Page v. Waring, 76 N. Y. 463, 469; Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 82 N. Y. 476, 483; Ward v. Isbill, 73 Hun, 550.)

We have a different case here. Under their defense of purchase for value without notice the defendants offered no evidence of actual consideration given. The subsequent deed to them expressed their payment of One Dollar and other good and valuable consideration.” This recital was not enough to put them into the position of purchasers for a valuable consideration in the sense of the statute. (Ten Eyck v. Witbeck; Lehrenkrauss v. Bonnell, supra.) The duty of maintaining the affirmative of the issue, and in a primary sense the burden of proof, was cast upon the defendants by the recording act. They failed to discharge that burden.

The judgment should be affirmed, with costs.

Crane, Ch. J.

(dissenting). I cannot agree with Brother Loughran’s view of the law nor with his conclusion on the evidence in this case.

The Real Property Law, section 291, provides: “A conveyance of real property, within the state, on being duly acknowledged by the person executing the same, * * * may be recorded in the office of the clerk of the county where such real property is situated, * * *. Every such conveyance not so recorded is void as against any subsequent purchaser in good faith and for a valuable consideration, from the same vendor, his heirs or devisees, of the same real property or any portion thereof, whose conveyance is first duly recorded.”

It is conceded that the holder of a prior unrecorded deed has the burden of proving the lack of good faith in the holder of a subsequent recorded deed. The burden is upon him to prove notice or such circumstances as would give notice to a reasonable man. (Brown v. Volkening, 64 N. Y. 76; Constant v. University of Rochester, 133 N. Y. 640; Kirchhoff v. Gerli, 171 App. Div. 160.) I can see no reason for complicating this rule by shifting the burden of proof when it comes to valuable consideration. It is just as easy to prove lack of consideration in this day when parties may be witnesses and examined before trial as it is to prove notice or bad faith. We should not impair the force and efficacy of the recording statutes upon which it has become a habit and custom to rely in the transfer of real property. A deed or mortgage on record is good as against prior unrecorded deeds or incumbrances until notice or bad faith or a lack of consideration is proven. The burden of proof should rest with the person who asserts the invalidity. Such ' was the view expressed in Gratz v. Land & River Improvement Co. (82 Fed. Rep. 381, 385; writ dismissed, 173 U. S. 705 [Circuit Court of Appeals, Seventh Circuit]). It was there stated: “It is further objected that the deed from Herbert to Mitchell, being prior in point of time, although subsequent in point of record, was effectual to pass the title of the premises, and was valid against the whole world, except bona fide purchasers for value, without notice, and that the burden of proof with respect to the bona fides of the deeds subsequent in date, but prior of record, is cast upon those claiming under them. This presents a question not altogether without difficulty, and in respect to which the authorities, are not wholly at agreement. Jackson v. M’Chesney, 7 Cow. 360; Wood v. Chapin, 13 N. Y. 509; Shotwell v. Harrison, 22 Mich. 410; Hoyt v. Jones, 31 Wis. 389, 404; Lampe v. Kennedy, 56 Wis. 249; 14 N. W. 43; Cutler v. James, 64 Wis. 173, 179; 24 N. W. 874; Prickett v. Muck, 74 Wis. 199, 206; 42 N. W. 256. In the state of New York it is ruled that under the recording act the junior purchaser, whose deed is first recorded, is presumptively a bona fide purchaser for a valuable consideration, without notice, and that the burden of proof to the contrary rests upon the senior purchaser, whose deed has not been recorded.”

Naturally this burden of proof readily shifts and where fraud is shown or circumstances which cast suspicion upon the transactions the defendant — subsequent vendee — 'may be called upon to show or prove his good faith and the consideration. Such were the cases of Ochenkowski v. Dunaj (232 App. Div. 441); Flickinger v. Glass (222 N. Y. 404), and Seymour v. McKinstry (106 N. Y. 230), upon which the Flickinger case was decided.

I go still further, however, and hold that the plaintiff is not entitled to recover on the evidence. Florence F. Hood was a widow of about fifty-five years of age, living alone on a small farm, which is the subject of this action. The plaintiff, William J. Hood, is her brother-in-law. She married his brother. The defendant Almon B. Far-well is her brother, and the defendant Howard A. Webster her nephew. Mrs. Hood was left by her husband with this farm and no money with the exception of a mortgage of $1,200 upon property in Nebraska. She was desirous and anxious to get enough money to live on the farm and the plaintiff proposed to give it to her during her natural life in exchange for the farm. She was brought in January of 1913 to the office of the plaintiff’s lawyer, at which time she executed a deed of the farm to the plaintiff and also an agreement, which was part and parcel of one transaction, wherein the plaintiff agreed to pay her $200 a year as long as she lived. The deed was not given to the plaintiff; it was given to the lawyer to hold in escrow for no other purpose that can be imagined except to insure the plaintiff’s paying the $200 a year and keeping his agreement. The delivery of the deed in escrow and the promise of the plaintiff were all one and the same transaction, and the payment .of the money by the plaintiff was clearly a condition precedent to be fulfilled before he was entitled to the deed. Florence Hood lived for twenty years thereafter and died on the 29th day of January, 1933. The plaintiff broke all his promises and agreements. He never paid her a dollar, so far as this record shows. He owed her at the time of her death $4,000, not counting simple interest, and the courts below, dealing in equity, have turned over to him the farm, without requiring the plaintiff to do equity and pay to the estate the money he owes.

The agreement drawn by the plaintiff’s lawyer went so far as to require Florence Hood, during all the years that she lived, to work the farm and to pay out of its produce all the taxes and upkeep, and this she did. Florence Hood repudiated the plaintiff, no doubt because of his failure to pay her any money or to keep his agreement, and in 1928 executed and delivered a deed of the farm to Howard A. Webster, her nephew, who had come to five with her and help her on the farm. This deed has been recorded and is the one which the plaintiff seeks to set aside and which the courts below have set aside in the face of the plaintiff’s default. In this I think the courts were clearly in error as there is no evidence to justify the conclusion that the farm was to be given or the deed to it turned over to the plaintiff without any ^ consideration or regard whatever to his obligations, acts or responsibilities. Even the $1,200 mortgage on the Nebraska property was given to the plaintiff in 1913 on the understanding and agreement that he was to support and care for his sister-in-law by paying $200 a year. This apparently he still keeps or has disposed of.

The plaintiff’s lawyer became a witness and testified as to the transaction in his office when the deed and agreement were drawn up: “ She also stated in substance, I can’t give her exact words, ‘ that she was not well off, financially/ and ' that she wanted to be certain of some income during her fife; that certain loans had been made by her, and her husband, to members of her own family, which had not turned out well, and that she felt that she could rely upon William J. Hood.’ * * * During the conversation, as I say, Mrs. Hood said ' that she wanted to be assured of some income during her life/ and it was stated that she had a mortgage on some property in Nebraska for $1,200, which she was going to turn over to William J. Hood, and that she was also going to agree to pay to William J. Hood at any time which he might demand it, an additional sum of $500, and that William J. Hood was going to pay her $200 per year during her lifetime * *

Martha T. Hood, the wife of the plaintiff, became a witness for him and testified that Mrs. Hood said the following: “ Why, she didn’t know what she was going to do if she used her money. She would soon be out of money, and her agreement with Mr. Will Hood was that she would be assured of an income each year which would reduce her worries a great deal.”

With this attitude and fear of poverty Mrs. Hood on January 22, 1913, executed a deed of the farm to William J. Hood, which was not delivered to him or given to him, but was put by his lawyer in the lawyer’s safe and kept in escrow for no other purpose or reason that I can see except to bind and hold William to the fulfilment of his agreement executed at the same time. The instrument is dated January 22d, and William J. Hood of Rochester becomes party of the first part, and Florence Hood of the town of Phelps, Ontario county, party of the second part. It recites that “ Whereas ” a deed of even date has been delivered in escrow to be delivered to William J. Hood upon the death of Florence J. Hood, that “ Now, therefore, for and in consideration of the making and delivery in escrow of said deed, and of the covenants and agreements herein expressed, the said party of the first part in consideration thereof and a further sum to be agreed upon by the parties hereto, not to exceed however the sum of Five Hundred Dollars ($500.00) in addition to the property above transferred, to be paid to him by the said party of the second part, does hereby agree that he will pay or cause to be paid to the said party of the second part during the term of her natural life the sum of Two Hundred Dollars ($200.00) per year or more at his option, to be paid quarterly, the said sum to be paid in addition to any income derived by said party of the second part from the use of said farm. * * *

“It is mutually agreed that the party of the second part shall- pay all taxes, necessary repairs and operating expenses of said farm out of the income therefrom.”

When we consider that this elderly widow had nothing but a farm which had to be worked, and was in fear and dread of financial distress, there is only one possible conclusion, in my judgment, to be drawn from the execution of these instruments. Florence Hood was to give the farm to William Hood at her death in consideration for his paying to her $200 a year for her to live on; and that it was never her intention or any part of the transaction that he should have the farm for nothing or in default of his obligation. The courts below have given him the farm for nothing, so far as this record shows, instead of to the nephew who helped his aunt work the farm in order to meet taxes, upkeep and a living.

The record is none too full, so that the conclusions which I have drawn are based entirely upon the evidence or lack of evidence which appeared on the trial. As a matter of law, therefore, on this evidence, the plaintiff failed to make out a case entitling him to equitable relief and the removal .of the defendants’ deed from the record.

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

Lehman, O'Brien, Crouch and Finch, JJ., concur with Loughran, J.; Crane, Ch. J., dissents in opinion in which Hubbs, J., concurs on the second ground stated.

Judgment affirmed.


author: Loughran, J.

text:
    Springfield, L. I., Cemetery Society, Appellant, v. The City of New York, Respondent.
    (Argued March 18, 1936;
    decided April 21, 1936.)

      Daniel Day Walton for appellant.

      Paul Windels, Corporation Counsel (Frances W. Lehrich, Paxton Blair and Oscar S. Cox of counsel) for respondent,
   Loughran, J.

The question is whether land owned by a cemetery corporation is subject to taxation and assessment.

Plaintiff is a domestic cemetery corporation. It was organized in 1908 under the Membership Corporations Law (Cons. Laws, ch. 35) and then acquired for cemetery purposes real property in the borough of Queens, city of New York. That property is used for the interment of the dead and is not taxed or assessed.' This controversy has no relation to that property.

In 1924 the plaintiff at a cost of $57,000 acquired eighty additional acres of land contiguous to its burial ground by a conveyance which recited that the plaintiff hereby acquires and takes by this deed the property herein described for the purposes of the convenient transaction, of its general business.” No interment bas been made in this land which, without profit to the plaintiff, is used for the parking of motor vehicles, the cultivation of sod and shrubbery, the manufacture of materials for monument foundations, the housing of workmen, and the stabling and feeding of horses. It is this accessory tract that is here involved and what follows refers only to this property.

From 1924 to 1927, inclusive, the defendant city of New York imposed taxes upon the property, but in 1928 declared it exempt from taxation and did not tax it thereafter until 1932. Since then the city has levied taxes against it and in 1929 assessed it for a sanitary sewer improvement. In this action judgment is demanded declaring that the city is without power to subject the property to the burdens that have been laid upon it.

The Special Term dismissed the complaint for failure of the plaintiff to show that the property had been acquired with the consent of the municipal authorities as prescribed either by section 1539-a of the Greater New York Charter (Laws of 1901, ch. 466, as amd.), or in any case by section 451 of the Real Property Law (Cons. Laws, ch. 50) and sections 62 and 65 (now §§73 and 75) of the Membership Corporations Law. The Appellate Division affirmed on the ground that the property was not by law tax exempt in any event.

Since we are in agreement with the view of the Appellate Division, we find it unnecessary to pass upon the ruling of the Special Term.

Authority to a cemetery corporation to hold real estate for the convenient transaction of the general business of the corporation ” was first conferred by the Laws of 1892, chapter 498. Section 1 of that statute provided that such real estate shall not be exempt from public taxes, rates and assessments.” That provision was repealed by the Laws of 1895, chapter 559, which enacted in place thereof what then became a part of section 45 of the Membership Corporations Law as follows: “ A cemetery corporation may acquire, otherwise than by condemnation * * * additional real property * * * for the purposes of the convenient transaction of its general business, no portion of which shall be used for the purposes of a cemetery.” Except for omission of the word “ general ” this provision of the Membership Corporations Law is now a part of section 75 of that statute (Laws of 1926, ch. 722).

Plaintiff’s main position can be stated in a sentence. It is that when in 1895 the Legislature thus substituted the phrase, “ such real estate shall not be exempt from public taxes, rates and assessments,” by the phrase, “ no portion of which [real property] shall be used for the purposes of a cemetery,” the public policy of the State was declared to be that land held by a cemetery corporation “for the convenient transaction of its general business ” shall be exempt “ from public taxes, rates and assessments.” We think plaintiff’s presentation of the problem by no means comprehends all the factors entering into it.

In 1895 there was in our statutes the provision, now found in section 450 of the Real Property Law, that No land actually used and occupied for cemetery purposes shall be sold under execution or for any tax or assessment, nor shall such tax or assessment be levied, collected or imposed * * * so long as it shall continue to be used for such cemetery purposes.” This text was first enacted by chapter 310 of the Laws of 1879. “ The purpose of that act was to secure to cemeteries not established under the act of 1847, exemption from taxation and other immunities which they did not before possess.” (People ex rel. Oak Hill Cemetery Assn. v. Pratt, 129 N. Y. 68, 75.) The act of 1847 was chapter 133 of the Laws of that year:. “ An act authorizing the incorporation of rural cemetery associations.” It provided for the formation of associations “ for the purpose of procuring and holding lands to be used exclusively for a cemetery, or place for the burial of the dead ” (§ 1). Any such association was, within limits, thereby empowered to take by purchase or devise land “to be held and occupied exclusively for a cemetery for the burial of the dead ” (§ 4), and to take and hold any property, real or personal, bequeathed or given upon trust, to apply • the income thereof * * * for the improvement or embellishment of subh cemetery, * * * or any of the lots or plats * * * ” (§9). These provisions of the act of 1847 have been replaced by article IX of the Membership Corporations Law (Laws oM895, ch. 559, art. 3, as amd.). Section 10 of the act of 1847 provided: The cemetery lands and property of any association, formed pursuant to this act, shall be exempt from all public taxes, rates, and assessments.” That section was repealed by chapter 40 of the Laws of 1909, after the courts had decided that the act of 1879 was intended to be and is applicable to all cemeteries or lands actually used and occupied for cemetery purposes.” (Oakland Cemetery v. City of Yonkers, 63 App. Div. 448, 451; 182 N. Y. 564.) (See, also, Tax Law [Cons. Laws, ch. 60], §>.)

Against this background; what is now section 75 of the Membership Corporations Law is to be construed in its setting as part of a general system of legislation dealing with the acquisition of real property by cemetery corporations. In that view it is clear to us that the exemption from taxation or assessment of “ land actually used and occupied for cemetery purposes ” (Real Property Law, § 450) does not extend to “ additional real property ” held by a cemetery corporation “ for the purposes of the convenient transaction of its business, no portion of which shall be used for the purposes of a cemetery ” (Membership Corporations Law, § 75).

The judgment should be affirmed, with costs.

Crane, Ch. J., Lehman, O’Brien, Htjbbs, Crouch and Finch, JJ., concur.

Judgment affirmed-.


author: Per Curiam.

text:
    Empire Trust Company, as Committee of the Property of Mildred K. E. Fell, an Incompetent Person, Appellant and Respondent, v. Herbert N. Fell, Respondent and Appellant.
    (Argued March 4, 1936;
    decided April 21, 1936.)

      Joseph R. Kelley, S. F. Sendrowski and Joseph B. XJniacke for plaintiff, appellant and respondent.

      Hartwell Cabell and Joseph S. Catalano for defendant, respondent and appellant.
   Per Curiam.

The following questions are certified:

On motion of plaintiff:

Are the facts alleged by the defendant in the first partial defense contained in the answer to the complaint herein sufficient in law to constitute a partial defense to the cause of action alleged in the complaint herein? ”

On motion of defendant:

“ 1. Are the facts alleged by the defendant in his second partial defense in his answer sufficient in law to constitute a partial defense to the cause of action alleged in the complaint herein?
“ 2. Are the facts alleged by the defendant in his third partial defense in his answer sufficient in law to constitute a partial defense to the cause of action alleged in the complaint herein?
“3. Are the facts alleged and incorporated by the defendant in his fourth separate and complete defense in his answer sufficient in law to constitute a complete defense to the cause of action alleged in the complaint herein?

The fourth separate and complete defense alleges that if the incompetent were of sound mind and had knowledge of the facts alleged in paragraphs 6, 18, 19, 20, 30 and 31 of the answer she would not have brought this action. The allegations of fact in those paragraphs set forth that a substantial part of the property of the incompetent became part of her separate estate by reason of contributions made by defendant, that prior to the appointment of the committee all of the separate estate of the incompetent as well as the separate estate of the defendant was used jointly by both for their common benefit and for that of their children, that during the years 1919 to 1924 defendant at great expense provided for the maintenance of his wife, the incompetent, but that since the year 1924 his financial resources have been greatly reduced and the use of the income from the separate estate of the incompetent for her maintenance became necessary. Although this is an action at law for a sum of money only, the rules prevailing in equity in relation to the power of the Supreme Court to direct a committee to act in accordance with the probable desire of an incompetent (Matter of Lord, 227 N. Y. 145; Matter of Brown, 212 App. Div. 677; affd., 240 N. Y. 646; Matter of Flagler, 248 N. Y. 415; Matter of Hills, 264 N. Y. 349) apply. In an action at law, equitable defenses may be interposed. (Susquehanna S. S. Co. v. Anderson & Co., 239 N. Y. 285.) The allegations in this defense may properly be considered by the court on the trial. That part of the order of the Appellate Division striking out the fourth complete defense should be reversed.

The order appealed from should be modified in accordance with this opinion and as so modified affirmed, without costs; the question certified at the request of the plaintiff and third question certified at the request of the defendant should be answered in the affirmative and the first and second questions certified at the request of the defendant should be answered in the negative.

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

Ordered accordingly.


text:
    Interstate Tea Co., Inc., Appellant, v. Al A. Alt, Respondent.
    (Argued March 10, 1936;
    decided April 21, 1936.)

      Irving I. Hartman for appellant.

      Joseph F. Finkelstein and Abraham Fishbein for respondent.
   Loughran, J.

This is an action for specific performance of an employee’s promise not to compete with his employer after termination of their relationship.

Plaintiff is a domestic corporation that supplies a variety of commodities to the homes of consumers. It had two sets of employees: one for soliciting trade; the other to make deliveries and receive payments. On June 6, 1932, the defendant joined the latter group under a written contract made by him as party of the second part with the plaintiff as party of the first part.

So much of that agreement as is here important is in these words:

“ The party of the second part hereby expressly covenants and agrees that he will not, during the term of this agreement or at any time thereafter, directly or indirectly, for himself, or as employer, employee, stockholder or officer of a corporation or otherwise, sell, or solicit business from any person or persons or corporation or business to whom he sold and/or delivered or shall sell and/or deliver merchandise of any kind whatsoever on behalf of the party of the first part; nor will he any time, in any way, manner or form whatsoever disclose or furnish to any one, other than the officers of the party of the first part, the names or addresses of any of the customers of the party of the first part, nor disclose nor divulge any information whatsoever of any kind pertaining to the business of the party of the first part, nor solicit nor canvass the customers of the party of the first part for orders for tea, coffee and/or any of the.other articles of merchandise carried and sold by the party of the first part, nor will he accept orders for any of such articles from or deliver merchandise to the customers of the party of the first part, for himself or for any person, firm or corporation other than the party of the first part.
“It is also understood and agreed that all persons, firms and corporations, and each and every one of them, to whom the party of the first part sells or shall sell any of its merchandise, are and shall be the customers of the party of the first part, as well after the termination of, as at all times during the employment of the party of the second part, notwithstanding that some or all of said persons, firms or corporations, may have been induced to give their patronage to the party of the first part by the solicitation of the party of the second part, .or of someone on his behalf, either during the usual hours of employment of the party of the second part or otherwise, and notwithstanding that all or some of such persons may have previously been customers of the party of the second part or others.
“ The foregoing covenants and agreements shall be binding upon the party of the second part whether he shall leave the employ of the party of the first part voluntarily or by discharge by the party of the first part. * * * * * * *
Either of the parties hereto shall have the privilege of termination of the within agreement upon giving written or actual notice upon either of the parties. Such notice must be given at least fifteen days before the desired date of termination.”

On April 14, 1934, the contract was terminated by the plaintiff in the manner therein provided. In this action thereafter brought, an injunction was sought in accordance with the full scope of the foregoing covenants.

By judgment of the Special Term the defendant was restrained from establishing any trade relationship * * * in competition with the * * * plaintiff * * * [with] such persons, firm or corporation who were customers of the plaintiff on or about the 6th day of June, 1932 [the date of the contract], and who since that date have been and now are, and who, prior to the 14th day of April, 1934 [the date of defendant’s discharge], have been customers of the plaintiff.” On appeal by the defendant to the Appellate Division, the judgment was reversed on the law and the complaint dismissed. As read by that court, the contract was designed to constrain the defendant not to solicit at any future time persons who should then be customers of the plaintiff (245 App. Div. 818).

We are inclined to accept the narrower construction adopted by the Special Term, that is to say, that the defendant agreed not to interfere with .trade connections of the plaintiff that had existed during the contract term. The question, then, is whether an employee’s stipulation so confined should be enforced without other limitation in respect of time or area of operation. We think the answer to be made here should be in the negative.

Defendant did not canvass patronage. His was work that one man of average address could do about as well as another. As delivery man, his wage was twenty dollars a week. As collector, he was paid commissions on moneys turned in. Plaintiff is described by the findings as doing “ a large and extensive business in the sale of coffee, tea, cocoa, spices, general merchandise, household furnishings and other commodities.” The sphere of its enterprise is not otherwise indicated. In that state of the record, the relief granted by the Special Term doubtless went beyond what was reasonably necessary to protect the business of the plaintiff from wrongful exploitation by the defendant.

How far the contract may be divisible in point of space we are unable to determine, for the evidence does not reveal the location or extent of the territory covered by the defendant while he was in the service of the plaintiff. (Cf. Edgecomb v. Edmonston, 257 Mass. 12.) It does not appear that the defendant has any means of injuring the plaintiff other than the favor he may have found with those to whom he made deliveries in the course of his employment. On the findings, the plaintiff cannot validly claim more than protection against unfair competition. (See Kaumagraph Co. v. Stampagraph Co., 235 N. Y. 1; People’s Coat, Apron & Towel Supply Co. v. Light, 171 App. Div. 671; 224 N. Y. 727.)

The judgment of the Appellate Division should be reversed, and that of the Special Term modified so as to restrain the defendant from establishing any trade relationship in competition with the plaintiff with customers of the plaintiff served by the defendant or whose names were learned by him during his employment by the plaintiff, and, as so modified, affirmed, without costs.

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

Judgment accordingly.


author: Hubbs, J. Lehman, J.

text:
    John V. Schaefer, Respondent, v. City of Long Beach, Appellant.

      (Argued March 11, 1936;
    decided April 28, 1936.)

      David B. Tolins, Corporation Counsel (M. Carl Levine of counsel), for appellant.

      Sidney Newborg and David Cohen for respondent.
   Hubbs, J.

The charter of the city of Long Beach (Laws of 1922, ch. 635) provides for the appointment of a City Engineer by the Mayor. His term of office is to be fixed by the City Council. The charter provides that the City Engineer is a city officer and he is required to take the constitutional oath of office. His duties are prescribed by the charter which also provides that he shall receive such compensation for services rendered as may be approved by the council.” (§ 24.) The City Engineer is an officer and not an employee of the city. (Thompson v. Hofstatter, 265 N. Y. 54.)

The respondent was duly appointed City Engineer and the City Council fixed his salary or compensation by a resolution which reads:

“ Besolved that the compensation to be paid to the City Engineer of the City of Long Beach,
“1. Shall be at the rate of 5% of the total cost of the various improvements or work supervised by him, which compensation shall be paid as follows: (a) 20% thereof upon completion of preliminary studies, which 20% shall be computed upon the reasonable estimated cost of such work or improvements; (b) 40% upon the completion of specifications, and general working drawings, said 40% likewise to be computed upon the reasonable estimated cost of such work or improvements; (c) 40% from time to time as the work progresses, and' as said City Engineer shall certify as to the progress of the work.
2. Should the City Engineer be employed on work as a consulting Engineer, but not to draw plans, specifications or supervise the work, then he shall be compensated as may be approved by the Council for each such particular service.
“ 3. For such service as may be rendered in the matter of issuing permits or licenses, such compensation shall be paid to the City Engineer as may be provided for in the Resolution or Ordinance dealing with such permits or license fees.
4. Without cost or expense to him, and without any charge therefor against him, the City shall provide the City Engineer with a private office and drafting room, with the use of all necessary furniture and equipment, in the City Hall of the City of Long Beach.”

He resigned as City Engineer after serving about twenty-two months. During that time he was paid by the city over $135,000. This action was brought to recover additional compensation to the amount of $50,577.46, and judgment has been awarded in his favor for $51,771.42, including interest and costs.

The fact that an officer of a small city should receive as compensation for twenty-two months’ services such a large sum is remarkable. The question presented is whether it is legal. That depends upon whether the City Council had authority in law to fix his compensation in the manner in which it attempted to do by the resolution which it adopted. Article III, section 28, of the Constitution of the State provides: “ The Legislature shall not, nor shall the common council of any city, nor any board of supervisors, grant any extra compensation to any public officer, servant, agent or contractor.”

The Public Officers Law (Cons. Laws, ch. 47), section 67, subdivision 2, reads: "An officer or other person, to whom a fee or other compensation is allowed by law, for any service, shall not charge or receive a greater fee or reward, for that service, than is so allowed.”

Section 13 of the city charter reads: “ No officer or employee shall solicit or receive any pay, commission, money or thing of value, or derive any benefit, profit or advantage, directly or indirectly, from any contract with the city or supplies sold to the city or by reason of any improvements, alterations or repairs required by authority of the city, except his lawful compensation or salary as such officer or employee.”

Section 100 of the city charter provides:

§ 100. Levy of taxes by council; tax rolls. The council must annually cause t© be levied and raised by general tax upon all taxable property, real and personal, in the city according to the valuation upon the assessment roll for the current year corrected as herein provided:
"3. The amount necessary to defray the expenses for the next fiscal year as authorized and provided by this act.”*

Section 101, subdivision 2, reads:

§ 101. Maximum amount of annual city tax levy. The council may raise by tax upon the real and personal property assessable in the city in each year certain amounts which shall be estimated and designated for the following purposes:
* ifc * ‡ * * *
2. For paving, repairing and keeping in order the streets, crosswalks, gutters, lands, public places and grounds of said city, for the service of the city engineer.”

The services performed by the respondent were those which the charter specified should be performed by the City Engineer, and in performing such services he acted as a city officer. It has long been settled that a public officer cannot receive additional compensation for services rendered in his office even though such services are greatly in excess of those required when he received his appointment. The Constitution wisely so provides. (Art. Ill, § 28.)

A person who accepts a public office for which no salary or compensation is provided by law cannot recover for services as upon a quantum meruit. If a salary or compensation is fixed without any authority in law, a public officer cannot recover for services rendered as he cannot base his claim upon any valid provision of law awarding him a salary or compensation. The resolution which attempted to fix the compensation of the City Engineer is indefinite, uncertain and without any fixed basis upon which the compensation can be computed. In effect, it enables the incumbent of the office to fix the amount which he shall receive. The more he can induce the city to spend, the larger his compensation will be. In fact, under the findings in this case, he would be entitled to the same compensation for the study which he made and for plans which he drew which were never used by the city. If this case can be sustained and the resolution adopted by the City Council approved, the door is open by which a city may become legally obligated to pay an officer an indefinite, uncertain amount in the way of salary or compensation without any fixed estimate by which the amount can be determined in advance. In fact, the amount may be determined to a large extent by the mere whim of the official. Such was never the intention of the Legislature. It is contrary to the whole history of enactments affecting municipal goverment in this State. For many years the Legislature by various enactments affecting municipal governments has endeavored to provide checks upon the expenditure of the taxpayers’ money. This is well illustrated by the provisions of the Second Class Cities Law (Cons. Laws, ch. 53), Laws of 1909, chapter 55.

It is provided in section 17: “ Compensation of all the officers, clerks and subordinates in the several departments shall not exceed in the aggregate the appropriation made by the board of estimate and apportionment for that purpose.”

Section 36: “ No appropriation of money shall be made for any purpose except by ordinance specifying each item, the amount thereof, and the department or specific purpose for which the appropriation is made.”

Section 75 requires that the Board of Estimate and Apportionment shall make an itemized statement of the expenditures of the city for the fiscal year which shall include an estimate of the amount of money deemed necessary to provide for the expenses of conducting the business of the city in each board, department and office thereof and it is provided that the common council shall not increase any item contained in the estimate for any purpose.

Section 77 requires the .Common Council to levy and cause to be raised by tax the amount of the budget and section 79 requires that no officer, board or department shall expend or enter into any contract involving the expenditure of money for any of the purposes for which provision is made in the annual estimate in excess of the amounts appropriated in such estimate for such officer, board, etc., and any contract made in violation of the section shall be null and void.

It is thus seen that the Legislature has used extreme care to place a check upon city officials and to require information as nearly exact as possible as to the necessary expenses of the city for the year after the making up of the city budget.

In various forms, the same principle has been carried into the County Law (Cons. Laws, ch. 11) and many city charters. By such enactments the public policy of the State has been clearly expressed. (Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407.)

Under the resolution adopted by the City Council, it would be absolutely impossible to determine the amount of compensation of the City Engineer in advance so that it could be included in the city budget. As stated by Chief Judge Crane in the case of Thompson v. Hofstatter (supra, p. 64): “ The salary of a public official cannot be left in this indefinite and uncertain way. * * *. The law does not permit any such evasion; the fixing of a Salary would have no meaning.”

While the language there used applied to a different state of facts, it is applicable to the situation disclosed by the record in this case.

The respondent, by accepting the appointment of City Engineer, became the trusted agent of the city, bound by an obligation of absolute loyalty to its interests and prohibited from becoming a party to any agreement or arrangement direct or indirect by which his personal interests could come into conflict with the interest of the city. Under the resolution of the council fixing his compensation, his personal interest and the interest of the city were in conflict. It was the interest of the city to have the work of the City Engineer done at as small a sum as possible or at least at a reasonable price. It was to the financial interest of the respondent to increase the work done for the city and its cost, thereby increasing his own compensation. He was placed in a position where his own financial interest and the interest of the city were necessarily in conflict. That the law will not permit. The dictates of sound public policy intervene to prevent municipal officers from creating such a condition. (Smith v. City of Albany, 61 N. Y. 444.)

The question here involved arose in the case of Koons v. Richardson (227 Ill. App. 477). In that case the statutes involved were substantially the same as in this case. There, as in this case, a City Engineer’s compensation was fixed by ordinance at certain percentages upon the engineering work performed. The court held the ordinance absolutely void and decided that the engineer could not recover compensation thereunder. It said:

“ It is very evident, from the provisions of the statute, that the city council is required to fix fees, salary or compensation of city officers at a definite sum. It will not do to fix it on a percentage basis or upon the basis of the usual and customary charges for such services. It must be fixed by ordinance and included in the annual appropriation ordinance. If not definitely fixed it could not be known how much should be raised by taxation for that purpose. Where the salary of a city attorney wao fixed by ordinance at a certain sum with a proviso that for services in court he should be paid the usual and customary fees for such work in addition to his fixed salary, it was held that he was entitled to nothing more than his fixed salary. McGovney v. Village of Melrose Park, 145 Ill. App. 329.
“ It necessarily follows that the contract cannot be sustained on the theory that it simply fixed the compensation of the city engineer. Neither can it be sustained on the theory that it was an allowance of extra compensation for additional services. Gage v. Village of Wilmette, 230 Ill. 428-435. No appropriation was made to pay appellant for services under the contract. It was impossible, therefore, for city- officials to create a liability against the city for work done under the contract. Gathemann v. City of Chicago, 263 Ill. 292; May v. City of Chicago, 222 Ill. 595.”

Respondent has attempted to justify the payment of the large amount which he has received and been awarded in this action on the ground that he personally paid his office force. If a city can enter into an arrangement by which a city officer can be paid a large sum for his services upon an understanding that he will hire and personally pay his office force, a new way has been found to defeat the Civil Service Law (Cons. Laws, ch. 7).

The question involved is not one of good faith and honest dealing or of business efficiency. It is simply a question whether, as a matter of law, a municipality may compensate a city officer in the manner attempted by the resolution of the City Council. We have reached the conclusion that the resolution of the City Council is void and that respondent cannot receive compensation thereunder.

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

Lehman, J.

(concurring). Two questions are presented upon this appeal. First, whether the Council of the city of Long Beach had authority to fix the compensation to be paid to the City Engineer in the manner it attempted to do by its resolution and, second, whether the plaintiff has established that, under the terms of the resolution, he is entitled to further payments.

As Judge Htjbbs has pointed out, the plaintiff is an officer not an employee of the city and can recover no compensation for services rendered other than the salary, or compensation, which is affixed by law to his office. There the public policy of the State is embodied in article III, section 28, of the Constitution of the State, which provides that “ the Legislature shall not, nojr shall the common council of any city, nor any board of supervisors, grant any extra compensation to any public officer, servant, agent or contractor.” The resolution of the Council attempted to fix the compensation of the City Engineer and the compensation to which the plaintiff is entitled must be measured by that resolution. The Mayor, and even the members of the Council, had no authority to enter into a contract with the plaintiff to perform any services as City Engineer, for compensation, other than that attached to the office. The resignation of the plaintiff could not be accepted subject to a proviso that the plaintiff should continue to perform some of the duties of his office and receive for such services the compensation which he would have received if he had continued to hold the office of City Engineer. The resolution of the Common Council would, I agree, be invalid if, under a proper construction, it authorized the payment to the plaintiff of the compensation which has been awarded to him. In my opinion the resolution is not, however, open to such construction and I disagree with the majority opinion only in so far as it challenges the authority of the Council to fix compensation of the City Engineer, at the rate of 5% of the total cost of the various improvements or work supervised by him, which compensation shall be paid as follows: (a) 20% thereof upon completion of preliminary studies, which 20% shall be computed upon the reasonable estimated cost of such work or improvements; (b) 40% upon the completion of specifications, and general working drawings, said 40% likewise to be computed upon the reasonable estimated cost of such work or improvements; (c) 40% from time to time as the work progresses, and as said City Engineer shall certify as to the progress of the work.”

It is to be noted that the compensation there is measured by a percentage of the “ total cost of the various improvements or work supervised by him.” A “ public improvement ” can be initiated only by the Council itself and the City Engineer can supervise no work which is not undertaken by the city in accordance with the provisions of the charter. Therefore, under no fair construction of the resolution can the City Engineer claim compensation for the preparation of plans or specifications where no public improvement or public work, supervised by him, has been undertaken by the city of Long Beach. The provision of the resolution that part of the compensation of the City Engineer shall be paid to him upon completion of preliminary studies ” and another part “ upon the completion of specifications ” merely fixes the time for payment of compensation earned. It does not enlarge the measure of the compensation and, for the preparation of plans or specifications, except in connection with a public improvement or work supervised by the City Engineer, he is entitled to no compensation. When the resolution is so construed, the plaintiff has failed to establish his cause of action, but under that construction —■ and no other construction is permissible —■ I cannot see any valid ground for challenge of the power of the Common Council to adopt the resolution.

It is said that such a resolution would contravene the public policy of the State. Except in so far as the public policy of the State is embodied in constitutional provisions, limiting the legislative power, the Legislature is the supreme judge of the public policy of the State. No statute adopted by the Legislature which does not trans-tifend the constitutional limitations upon the legislative power may be set aside because the court does not believe that the statute accords with public policy. The validity of the resolution of the Council depends solely upon the question of whether the Legislature has conferred upon the Council power to fix the compensation of a public officer in that manner.

The charter of the city of Long Beach provides for a salary fixed in advance at a specified sum in the case of all officers of the city except the Corporation Counsel and the City Engineer. There the charter allows scope to the discretion of the Council. It expressly provides that the City Engineer shall receive such compensation for services rendered as may be approved by the Council. There is no express limitation there upon the discretion of the Council to approve compensation measured by the work which may be required in any year of the City Engineer, and no such limitation can be read into the statute by implication, at least unless such a measure of compensation to be paid would be clearly unreasonable or a cloak for the violation of other provisions of law. The burden of service of a City Engineer of Long Beach, or, indeed, of any officer of a small city where the duties require professional skill, may vary greatly with the nature of the work required of such officer in any particular year. Ordinarily an engineer receives compensation for his professional services measured by the cost of the work which he supervises or for which he prepares plans. It would be unreasonable, I think, to expect a small city to maintain a permanent department which would be able to perform the work ordinarily performed by an engineer and his staff and which would be adequate to take care of large projects or improvements. Variations in the amount of work to be done must reasonably require flexibility in provisions for compensation for such work, and also a practical solution of the problem of maintaining a staff adequate to perform such work expeditiously and efficiently. Then it would seem wise that a small city should have power to fix the compensation of its City Engineer at a sum which is measured in the same manner as such compensation of other engineers, performing similar work, would be measured, and out of such compensation to bear the expense of such assistants as may be necessary for the performance of the work.

It is said that such a provision would be an easy method of evading the provisions of the Constitution and the Civil Service Law in regard to the appointment of officers and employees in the civil service. When not used for a legitimate purpose, the courts will doubtless find no difficulty in curbing such practice. A decision that even when used for a legitimate purpose the practice is illegal will compel small cities either to maintain a permanent staff which will be idle at times and at other times compelled to work at inefficient speed, or to contract for the services which this plaintiff has performed instead of appointing a public officer to perform the work There is nothing in the statute that indicates that the Legislature intended to impose these alternatives upon the city of Long Beach.

We are told that compensation so fixed in effect enables the incumbent of the office to fix the amount which he shall receive. The more he can induce the city to spend, the larger his compensation will be.” In truth, the statute gives the City Engineer no power to determine what work shall be undertaken. Discretion there rests solely with the Council, and the influence of the City Engineer to induce the Council to spend more money than is wise is no greater than the influence which an engineer, retained by contract, would be able to exercise. In any event, such considerations concern only the wisdom of the Council, not its power.

Crane, Ch. J., O’Brien and Loughran, JJ., concur with Hubbs, J.; Lehman, J., concurs in result in separate opinion in which Crouch and Finch, JJ., concur.

Judgments reversed, etc.


author: Crane, Ch. J.

text:
    In the Matter of The Towers Management Corporation, Respondent, against Edwin H. Thatcher, as Commissioner of Buildings of the Borough of Brooklyn in the City of New York, et al., Appellants.
    (Argued April 13, 1936;
    decided May 19, 1936.)

      Paul Windels, Corporation Counsel (Edmund L. Pair mieri and Paxton Blair of counsel), for appellants.

      B. Meredith Langstaff for respondent.
   Crane, Ch. J.

The petitioner is the operating lessee of the Towers Hotel, a fifteen-story hotel located at Clark, Willow and Pineapple streets in the borough of Brooklyn, New York city. It is located in a residence district, a district zoned for residential purposes under the Building Zone Resolution of the city. The lessee desires to erect on the hotel an electric sign bearing the words Towers Hotel.” The sign is thirty feet long by twelve to fifteen feet high, the letters illuminated by electricity being from twelve to fifteen feet tall. Attached to a wall or stand on the roof about fourteen feet back from the building line it would operate as a flash sign, one word being superimposed upon the other, and one word displacing the other when in operation. Thus the word “ Towers ” is extinguished when the word Hotel ” is flashed in the same space, the change taking place at certain marked intervals.

The Building Zone Resolution passed by the Board of Estimate and Apportionment, pursuant to section 242-b of the Greater New York Charter (Laws of 1901, ch. 466, as amd.) provides in article 2, section 3, as follows: “ § 3. Residence Districts. In a residence district no building shall be erected other than a building, with its usual accessories, arranged, intended or designed exclusively for one or more of the following specified uses: (1) Dwellings, which shall include dwellings for'one or more families and boarding houses and also hotels which have thirty or more sleeping rooms.” (New York Code of Ordinances, Appendix B.)

In 1932 the petitioner applied to the Board of Standards and Appeals for a variation from the requirements of the Building Zone Resolution because of peculiar and unnecessary hardship. (Section 21 of the Resolution.) The application was denied. Later the petitioner came to the conclusion that the proposed sign was permitted within a residence district and that no variations were needed. Article 2, section 3, above quoted, permitted a hotel within the residence district “ with its usual accessories ” and the petitioner claimed this sign to be of that nature.

In 1935, therefore, the petitioner applied to the Commissioner of Buildings for a permit to erect the sign. This was in accordance with the requirements of chapter 23, article 16, section 1215 (subd. 2) of the Code of Ordinances of the city of New York reading: “All permits for illuminated signs shall be issued by the city clerk, upon application therefor, approved by the * * * superintendent of buildings in the case of electric signs * * (The Superintendent of Buildings became the Commissioner of Buildings by chapter 764 of the Laws of 1933 amending the Greater New York Charter.)

Again the petitioner suffered defeat for the Commissioner refused to approve of any such permit, as the proposed sign was not usual for hotels in residential districts.

An appeal could have been taken from the Commissioner’s ruling to the Board of Standards and Appeals. The charter prescribes:

“§719. 1. What appealable. An appeal may be taken to the board of appeals from any order, requirement, decision or determination made by any superintendent of buildings under the authority of title two of chapter nine of this act or of any ordinance (except an order requiring an unsafe building, staging or structure to be made safe, and except an order punishing, removing or dismissing an employee, inspector or other subordinate) * * (Added L. 1916, ch. 503, § 6, as amd.)

The decision of the Board of Standards and Appeals made under the above section may be taken for review by petition to a justice of the Supreme Court or the Special Term thereof within thirty days after it has been filed or has been published in the bulletin. The petition must set forth that the decision is illegal in whole or in part and specify the grounds of illegality. (Charter, § 719a.)

Instead of pursuing this remedy the lessee of the Towers Hotel instituted this mandamus proceeding to compel the Commissioner of Buildings to issue to it a permit for the hotel sign. This time the petitioner was successful, as the Special Term of the Supreme Court granted a peremptory mandamus ordering Edwin H. Thatcher, as Commissioner, to grant a proper permit for the erection of a neon illuminating sign as above described. The order was unanimously affirmed by the Appellate Division. This was error. Mandamus will not issue where another remedy is available or provided by law. (People ex rel. Broadway & 96th Street Realty Co. v. Walsh, 203 App. Div. 468; leave to appeal to the Court of Appeals denied January 16, 1923; Matter of Greene v. Dorman, 229 App. Div. 743.)

The opinion in the Walsh case expresses clearly the point of the decisions: “ The procedure of appeal within the line of administrative officials before allowing recourse to the courts, insures the benefit of trained and competent expert opinion and judgment, applied to the facts of each particular case by an experienced tribunal, which is not limited to an affirmance or reversal of the action of the superintendent of buildings, but may use its judgment in making such modification in his action as in its opinion should be made, and to that end is vested with his powers, in order that the spirit of the law shall be observed, public safety secured and substantial justice done ” (p. 474).

As the petitioner failed to first exhaust its remedy by appeal to the Board of Appeals, the peremptory order of mandamus was improperly granted.

The orders should be reversed and the petition dismissed, with costs in all courts.

Lehman, O’Brien, Htjbbs, Crouch, Loughran and Finch, JJ., concur.

Orders reversed, etc.


author: Hubbs, J.

text:
    The People of the State of New York, Respondent, v. Joseph Rao and Joseph Paterra, Appellants.

      (Argued March 18, 1936;
    decided May 19, 1936.)

      James D. C. Murray for appellants.

      Willia?n Copeland Dodge, District Attorney (LeRoy Mandle of counsel), for respondent.
   Hubbs, J.

On an indictment charging the crime of assault, second degree, the defendants were placed on trial in the Court of General Sessions of the County of New York, before Judge Corrigan and a jury. On January 4, 1935, the jury rendered a verdict of guilty. The court set January 15th as the day for the imposition of sentence, and defendants reserved all motions until that day. Six days before the day so set for sentence, Judge Corrigan died. Thereafter the District Attorney moved for judgment before Judge Nott, presiding in the Court of General Sessions, Part II. The defendants moved before Judge Nott for a mistrial and their motion was denied on March 8, 1935. The defendants also applied to the Supreme Court for a writ of prohibition on the ground that Judge Nott was without power to entertain a motion for a new trial and that they could not be sentenced as they had been deprived by the death of Judge Corrigan of the right to make a motion for a new trial. The application for the writ of prohibition was denied. On the 13th day of March, the day of judgment, defendants moved for a new trial before Judge Nott. Thereafter, the motion was denied and, on March 21, 1935, the defendants were sentenced.

The only question presented on this appeal is whether a defendant in a criminal case is entitled as a matter of law to a new trial where the trial judge dies after the return of a verdict of guilty and before passing on a motion for a new trial.

It is conceded by counsel that a court has no inherent power to grant a new trial in a criminal case and that its sole authority for granting a new trial must be found in some statute. {People v. Schmidt, 216 N. Y. 324, 328.) It follows that the authority of Judge Nott, presiding in Part II, to entertain a motion for a new trial must now be found in the Code of Criminal Procedure, which contains all of the statutory law on the subject.

There was no power in the Court of Oyer and Terminer prior to 1876 to grant a new trial in criminal cases. (Appo v. People, 20 N. Y. 531.) In that year chapter 295 of the laws was enacted, which provided: The presiding justice or judge of any court of oyer and terminer held in this State, shall possess the power to grant a new trial on motion of the prisoner after conviction before or after sentence, on exceptions taken on the trial, or on the ground of newly discovered evidence.”

While the Court of Oyer and Terminer prior to the enactment of that statute was without jurisdiction to grant such a motion, the Courts of Sessions possessed that power, as chapter 339, section 4, of the Laws of 1859 expressly granted that power to such courts. By chapter 442 of the Laws of 1881 the Code of Criminal Procedure was adopted. The purpose of adopting that Code was to embody in one statute the whole system of criminal practice to govern all criminal cases in all of the courts of the State. (People v. Hovey, 92 N. Y. 554, 558.) Section 22, subdivision 7, of the Code grants jurisdiction to the Supreme Court to grant new trials in all cases tried therein.”

Section 39, subdivision 14, of the Code grants the same jurisdiction to County Courts, and section 51, subdivision 2, grants to the Court of General Sessions of the County of New York the same jurisdiction as is granted to County Courts in other counties, thereby giving the Court of General Sessions the power to grant new trials in all cases tried therein.”

It thus appears that the Supreme Court, County Courts and the Court of General Sessions have the right and power to grant motions for a new trial. Section 463 of the Code provides: “A new trial can be granted by the court in which the former trial was had, only in the cases provided in section 465.”

Section 465 provides: “ The court in which a trial has been had upon an issue of fact has power to grant a new trial, when a verdict has been rendered against the defendant, by which his substantial rights have been prejudiced, upon his application ” in the cases therein enumerated.

Section 466 provides that the application for a new trial must be made before judgment, except an application for a new trial on the ground of newly-discovered evidence and except in cases of sentence of death. It will be observed that in all the sections granting this power the language used is by the court.”

The appellants contend that the words by the court ” mean by the judge who presided at the trial. They find some support for that argument in certain expressions used in the opinions in the following cases: Sawyer v. People (27 Hun, 286); People v. Seidenshner (152 N. Y. Supp. 595); People v. Spiegel (267 N. Y. Supp. 512).

The People contend that the words by “ the court ” and “ the court in which the former trial was had ” refer to the tribunal before which a defendant was tried and do not refer to the individual judge who presided at the trial. It is conceded that the death of a judge presiding at a trial does not prevent any judge of the court in which the trial was held from imposing sentence. (People v. Bork, 96 N. Y. 188.)

The distinction between the words “ the court ” and “ the judge ” needs no elucidation. That the Legislature thoroughly understood the distinction is illustrated by section 549, Civil Practice Act, which provides: “ The judge, presiding at a trial by a jury, in his discretion, may entertain a motion, made upon his minutes, at the same term, to set aside the verdict * * *.”

It must be presumed, therefore, that the Legislature, when, in the various provisions of the Code of Criminal Procedure referred to, used the words by the court ” and “ court in which the former trial was had,” thoroughly understood that those words did not mean the judge who presided in a court at a particular term. ' Should the contention of the appellants prevail and it be decided that a conviction must be set aside whenever the judge before whom the trial was held dies before entertaining a motion for a new trial, the result would be most unfortunate. Section 466 gives the right to make a motion for a new trial under subdivision 7 of section 465 at any time within one year from the date of imposing sentence. Under appellants’ construction of the statute, should a trial judge die any time during that one year, a defendant who had been sentenced could make a motion for a new trial which would have to be granted.

As to each defendant the judgments should be affirmed.

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

Judgments affirmed.


text:
    In the Matter of The New York Edison Company et al., Respondents, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, et al., Appellants.
    (Argued March 5, 1936;
    decided May 19, 1936.)

      Charles C. Blakeslee, John J. Donohue and John T. Ryan for appellants.

      Alvin C. Reis, Clyde S. Bailey and John D. Benton for National Association of Railroad and Utilities Commissioners, amicus curise.

      Joseph M. Proskauer and J. Alvin Van Bergh for The New York Edison Company et ah, respondents.

      Jackson A. Dykman, Sigourney B. Olney and George A. Wood for The Brooklyn Union Gas Company, respondent.

      William M. Wherry, James C. Forsyth and Russell H. Neilson for New York Water Service Corporation et al., respondents.

      Jacob H. Goetz, William L. Ransom, Henry S. Reeder, Richard Joyce Smith, Edward J. Crummey, Henry R. Frost and Elmer B. Sanford for Consolidated Gas Company of New York et al., respondents.

      Neile F. Towner for Consolidated Water Company of Utica, respondent.

      Edmund B. Naylon and Jesse J. Holland for New York State Electric and Gas Corporation et al., respondents.

      Elton H. Beals for Rockland Light and Power Company, respondent.

      Edward S. Pinney and Herbert J. Jacobi for Binghamton Gas Works et al., respondents.

      Oliver H. Payne for Spring Valley Water Works and Supply Company, respondent.

      Earl L. Dey for Rochester Gas and Electric Corporation, respondent.
   Per Curiam.

We agree with the Appellate Division in its construction of the orders of the Public Service Commission. On that construction, the orders were more than general administrative or legislative rules. They directly interfered with private property rights of these respondents. Such an order may be made only after a hearing and, since it involves a judicial act, is subject to review on certiorari.

Nothing here decided limits the power of the Commission to prescribe uniform methods of keeping accounts, records and books. (Public Service Law [Cons. Laws, ch. 48], § 66, subd. 4.) Under that power, all the information here sought could have been elicited from the respondents by directions of the Commission that would have been open to none of the objections to its present orders.

The order of the Appellate Division should be affirmed, without costs. The first question certified is answered in the affirmative and the others in the negative.

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

Order affirmed, etc.


text:
    In the Matter of the Claim of the Commissioner of Taxation and Finance, Respondent, against Nu-Art Advertising Company et al., Respondents. State Industrial Board, Appellant.

      (Argued April 15, 1936;
    decided May 19, 1936.)

      John J. Bennett, Jr., Attorney-General (Boy Wieaersum and Henry Epstein of counsel), for appellant.

      Alfred T. Tompkins and Charles J. Gardella for Nu-Art Advertising Company et al., respondents.
   O’Brien, J.

While Charles A. Baker was employed as a plate resurfacer by the Nu-Art Advertising Company in September, 1931, he contracted benzol poisoning, which is an occupational disease enumerated in section 3, subdivision 2, of the Workmen’s Compensation Law (Cons. Laws, ch. 67). He became disabled in June, 1932, as a result of that disease and died in January, 1933. He had ceased to be an employee of Nu-Art in November, 1931, but became a partner in the firm of Parazin Printing Plate Company for which he performed the same kind of work. On the dates of his disablement and death he. was not employed by any one but was a member of a partnership. The State Industrial Board, acting under the provisions of section 44 and section 15, subdivisions 8 and 9, of the Workmen’s Compensation Law, made an award against Nu-Art Advertising Company and the insurance carrier. The Appellate Division, by a divided court, reversed the award and dismissed the claim.

Section 3, subdivision 2, provides that compensation shall be payable for disabilities sustained or death incurred by an employee resulting from any of the occupational diseases listed in the statute, and section 38 provides that the disablement of an employee resulting from any of these occupational diseases shall be treated as the happening of an accident within the meaning of the statute except as specifically otherwise provided therein. This is the language of section 44: The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. * * The majority of the Appellate Division decided that this section is applicable only to one who at the time of his disablement was an employee and that, inasmuch as Baker at such a time had ceased to be an employee of Nu-Art or any other employer and had become a partner in Parazin Printing Plate Company, there was no employer liable. An argument in support of that decision is not without considerable force, but viewing the Workmen’s Compensation Law as a remedial statute and entitled as such to a liberal interpretation, we adopt the principle that a person who has been employed in an occupation in which he was subject to contraction of a disease described in the statute and who, while so' employed has contracted the disease but does not become disabled until a time when he is no longer an employee, is entitled to recover compensation from the employer who last employed that person in the employment to the nature of which the disease was due. Otherwise there would be no remedy and we are reluctant to believe that the Legislature contemplated such a result. The word “ employee ” as used in section 44, we think was intended to describe a person who was employed at the time he contracted the disease rather than at the time he became disabled.

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

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

Order reversed, etc.