text:
    Guiseppe Nalli, as Administrator of the Estate of Silvester Nalli, Deceased, Appellant, v. John Peters, Respondent, Impleaded with Another.
    Negligence — motor vehicles — liability for acts of another not dependent upon strict relationship of master and servant — owner of automobile liable for negligence of driver, not in his employ, if car at time of accident was being driven on owner’s business at his request.
    1. Liability for the acts of another is not dependent upon the strict relationship of master and servant, but upon relationship of similar nature, where one acts for another, at his request, express or implied, for his benefit, and under his direction. Under such circumstances, the negligence of the agent is the negligence of the master or the principal.
    2. Where, in an action to recover for the accidental killing of a passenger in an automobile, there is evidence to show that the accident was due to the negligence of the driver, who, although not in the employ of the owner, was driving the ear at his request for the purpose of taking decedent and others on a pleasure trip, a dismissal of the complaint as to the owner is error. The jury might find or reasonably infer that at the time of the accident the driver was engaged on the owner’s business or undertaking, in which event the owner would be liable, and whether or not he was to receive pay would merely be evidence bearing upon the question.

      Nalli v. Peters, 213 App. Div. 735, modified.
    (Argued October 16, 1925;
    decided October 27, 1925.)
    Appeal from a judgment, entered July 10, 1925, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff and directing a dismissal of the complaint as to the defendant, respondent.

      Walter A. Fullerton for appellant.
    Defendant Peters was responsible for Mondrone’s acts. (Ferris v. Sterling, 214 N. Y. 249; Orlando v. Pioneer B. T. Supply Co., 239 N. Y. 342, 343; Gulliver v. Blauvelt, 14 App. Div. 523; McCann v. Davison, 145 App. Div. 522; Cowell v. Saperston, 149 App. Div. 373, 377; 208 N. Y. 619; McHarg v. Adt, 163 App. Div. 782; 221 N. Y. 510; McCrossen v. Moorhead, 202 App. Div. 560; Bolton v. Madsen, 205 App. Div. 180; Wilmes v. Fournier, 111 Misc. Rep. 9; 194 App. Div. 950; Lowell v. Williams, 183 App. Div. 701; 228 N. Y. 592.)

      Arthur S. Golden and Robert H. Woody for respondent.
    The acts or omissions of Mondrone were not the acts and omissions of Peters unless Mondrone was a servant and Peters was his master. Peters had no personal interest in the trip, nor had he any control over the operation of the car. He did not accompany the party, nor were the members of the party on any business or errand for him. (Wylie v. Palmer, 137 N. Y. 257; Thorpe v. N. Y. C. R. R. Co., 76 N. Y. 406; Dwinelle v. N. Y. C. R. R. Co., 120 N. Y. 117.)
   Crane, J.

Defendant John R. Peters lived at Rotterdam Junction, where he kept a store. He was the owner of a Hudson car. Silvester Nalli lived with the defendant. Nalli had a brother who lived in Amsterdam. The week before November 11, 1923, Peters had promised Nalli and his brother to take them for a ride in his car to St. Johnsville — an outing for Armistice Day. As the time approached, Peters discovered that he could not go on account of his wife’s illness, and he thereupon asked Antonio Mondrone to take his place, and to drive these people to St. Johnsville in his, Peters’, car. Mon-drone lived at Rotterdam Junction, was a laborer working in the roundhouse for the railroad company. He was also a licensed chauffeur, and on other occasions, at Peters’ request, had driven his car for him.

On the trip the car was overturned, and Silvester Nalli killed. There was evidence to show that the accident was due to Mondrone’s negligence.

The judgment entered on the verdict of the jury in favor of the administrator of Nalli’s estate, and against Peters and Mondrone, was reversed by the Appellate Division. A new trial was granted to Mondrone, but the complaint dismissed as to Peters.

If Mondrone were driving Peters’ car at his request, on his, Peters’, business, or enterprise, acting in this particular as his servant or agent, Peters would be liable for his negligence. Whether or not he was to receive pay would merely be evidence bearing upon the question. Peters might be hable even though Mondrone was to .receive no compensation. (Althorf v. Wolfe, 22 N. Y. 355; Wyllie v. Palmer, 137 N. Y. 248.) We think that there was evidence in this case from which the jury might find, or reasonably infer, that Mondrone was driving for the defendant, at his request, and for his benefit; that at the time of the accident he was engaged on the defendant’s business, or undertaking. Even one acting under such circumstances as a volunteer, might render the owner of the car liable. (See Althorf v. Wolfe, supra.) The liability for the acts of another is not dependent upon the strict relationship of master and servant, but upon relationship of similar nature, where one acts for another, at his request, express or implied, for his benefit, and under his direction. Under such circumstances, the negligence of the agent is the negligence of the master or the principal. (Lowell v. Williams, 183 App. Div. 701; affd., 228 N. Y. 592; Orlando v. Pioneer Barber Towel Supply Co., 239 N. Y. 342; Ferris v. Sterling, 214 N. Y. 249.)

The judgment of reversal must be modified in so far as it dismisses the complaint against John Peters; and a new trial granted, with costs to abide event.

His cock, Ch. J., Cardozo, Pound, McLaughlin, Andrews and Lehman, JJ., concur.

Judgment accordingly.


source: Caselaw Access Project

author: Cardozo, J.

license: Public Domain

text:
    In the Matter of the Application of Roger J. Blankford et al., Respondents. James Finch et al., Constituting the Board of Inspectors of Election for the Third Election District of the Town of Hyde Park, Appellants.
    Constitutional law — elections — domicile — residence in seminary does not effect change of domicile for purpose of voting — notification to commissioners of election of former domicile of abandonment insufficient to effect change — affidavits that inmate intends to reside indefinitely at seminary insufficient — evidence must be presented that place has been adopted as home irrespective of residence in seminary.
    1. Students at a seminary of learning who on entrance, in accordance with its rules, renounced their family connections and former homes, but who, at the close of their course of study, are to be sent elsewhere, are not thereby qualified as voters in the election district wherein the seminary is located. Mere residence in a seminary during the continuance of a course of study does not effect a change of domicile for the purpose of voting. (Const, art. 2, § 3.)

      2. The fact that such residents notified the commissioners of election in their domicile of origin that such domicile had been abandoned and a new one established in the location of the seminary, without more, does not work such a change. Renunciation of one home is not sufficient without the acquisition of another.
    3. Nor is the filing of affidavits with the inspectors of election of the district wherein the seminary is located, to the effect that such residents intend to reside indefinitely at the seminary sufficient. Presence in the seminary without more does not work a change of domicile. An intention to continue such presence to the end of the prescribed course is equally ineffective. There must be evidence that irrespective of residence, present or expected, in a seminary of learning, the place in which the seminary is located has been adopted as a home.

      Matter of Blankford, 215 App. Div. 681, reversed.
    (Argued October 29, 1925;
    decided October 30, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 28, 1925, which affirmed an order of Special Term granting a motion for an order to compel the inspectors of the third election district in the town of Hyde Park to enroll the names of petitioners upon the register of voters.

      W. E. Hoysradt for appellants.
    The petitioners were not entitled to register and vote in the third election district of the town of Hyde Park, (Silvey v. Lindsay, 107 N. Y. 55; Matter of Barry, 164 N. Y. 18; Matter of Goodman, 146 N. Y. 284; Matter of Gardiner, 101 Misc. Rep. 414; 183 App. Div. 491; Matter of McCormack, 86 App. Div. 362.)

      Joseph A. McCabe for respondents.
    Section 3 of article 2 of the State Constitution does not act as a bar to the acquisition by a student of a domicile at the place where his seminary of learning is located. (Matter of Ward, 20 N. Y. Supp. 610; Silvey v. Lindsay, 107 N. Y. 61; Matter of Barry, 164 N. Y. 20; Matter of Goodman, 146 N. Y. 287; Matter of Gardiner, 101 Misc. Rep. 423.) The petitioners sufficiently evidenced by their acts their intention to change their residence to the third election district of the town of Hyde Park. (Matter of Garvey, 147 N. Y. 120; Matter of Foster, 123 Misc. Rep. 852.)
   Cardozo, J.

The petitioners, seventeen in number, are students at a seminary of learning. The seminary, conducted by the Society of Jesus, is known as St. Andrews on the Hudson, and is situated in the town of Hyde Park, Dutchess county, New York. The petitioners have obtained an order directing the inspectors of the third election district of that town to register them as voters. The question is whether they have acquired the requisite domicile.

Constitution (art. II, see. 3) providesFor the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence, while employed in the service of the United States; nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse, or other asylum or institution, wholly or partly supported at public expense or by charity; nor while confined in any public prison.”

By the rules of this religious order, students entering the seminary renounce their family connections and former homes. The course of study varies from two to six years depending upon individual capacity. At its close, the students are sent to other institutions at other places for a higher order of work. As many as fifteen years may elapse before their admission into the priesthood. These petitioners took the vow prescribed by their religious order. Their case in that respect does not differ from Matter of Barry (164 N. Y. 18). There also the rules of the order prescribed a renunciation of former homes. .We held, none the less, that residence in the seminary did not work a change of domicile.

Two circumstances are relied upon to distinguish that case from the one before us now.

(1) In October, 1924, the petitioners notified the commissioners of election in their domicile of origin that such domicile had been abandoned and a new one established at the location of the seminary. We cannot find in such a notice without more a basis of distinction. Renunciation of one home is not sufficient without the acquisition of another. The domicile of origin continues until displaced and superseded by a domicile of choice (Dicey on Conflict of Laws [3d ed.], pp. 121, 122).

(2) In October, 1924, and again in October of this year, the petitioners filed affidavits with the inspectors of elections at Hyde Park that they intended to reside indefinitely at St. Andrews on the Hudson, and they repeat that statement now. They do not say that they intend to reside indefinitely “at Hyde Park,” or maintain it as their home irrespective of their presence as students in the seminary. They say that they intend to reside indefinitely at St. Andrews,” which is merely equivalent to a statement that they intend to remain at the seminary and complete their course of study. This is not enough. Presence in the seminary without more does not work a change of domicile. An intention to continue such presence to the end of the prescribed course is equally ineffective. There must be evidence that irrespective of residence, present or expected, in a seminary of learning, the place in which the seminary is located has been adopted as a home (Matter of Garvey, 147 N. Y. 117).

We do not need to determine whether aside from the provisions of the Constitution, a domicile in Hyde Park might be found at common law upon the facts established by petitioners (Opinion of the Justices, 5 Metc. 590; Welsh v. Shumway, 232 Ill. 54, 86, 87). The Constitution, superseding the rule at common law, whatever that may be, eliminates from our consideration the fact of presence in the seminary (Silvey v. Lindsay, 107 N. Y. 55, 61), and requires us to find elsewhere, if at all, the evidence of a change of domicile. The intention to change is not alone sufficient. It must exist, but must concur with and be manifested by resultant acts which' are independent of the presence as a student in the new locality.” (Matter of Goodman, 146 N. Y. 284, 288).

We think that the petitioners have failed to establish their intention to maintain a residence in the town of Hyde Park, Dutchess county, except by presence in a seminary during the continuance of their course of study, and that under controlling adjudications, a residence so limited does not qualify them as voters (Matter of Barry, supra; Matter of Garvey, supra; Matter of Goodman, supra; Silvey v. Lindsay, supra; Matter of McCormack, 86 App. Div. 362; Matter of Gardiner, 183 App. Div. 491; cf. People v. Osborn, 170 Mich. 143).

The order of the Appellate Division and that of the Special Term should be reversed and the application denied without costs.

His cock, Ch. J., Pound, McLaughlin, Andrews and Lehman, JJ., concur; Crane, J., concurs in result.

Orders reversed, etc.


author: Andrews, J.

text:
    In the Matter of the Accounting of the United States Trust Company of New York, as Trustee under the Will of Clinton W. Bird, Deceased, Respondent. Lena Bird, Appellant; Wallace C. Bird et al., Respondents.
    Trust—extraordinary dividends apportioned between life tenant and remaindermen as of date of creation of trust—■ date of creation of trust depends upon intention of testator —■’’death of testator fixes time of creation in absence of indication of contrary design.
    1. The apportionment of extraordinary dividends as between life tenants and remaindermen is to be made as of the time of the creation of the trust.

      2. As to when a trust is created depends upon the intentions of the testator as expressed in his will. Where there is nothing to indicate a contrary design it is created upon the testator’s death and is certainly created from the date when the cestui becomes entitled to its benefits. The testator may postpone the creation of the trust but its creation is never dependent upon the action or non-action of executor or trustee nor upon their caprice or diligence.
    3. Where testator devised and bequeathed the residue of his estate in trust, directed the disposal of the income by the trustee and at the termination of the trust provided for the distribution of the principal, and directed the executor, to whom was given a power of sale, to turn- over to the trustee any of the property, securities or investments of which testator died seized or possessed, there is no indication of an intention to postpone the creation of the trust to a future date, but there is a clear intent that the beneficiaries should receive the income from the testator’s death. The trust, therefore, was created as of that time and the apportionment of extraordinary dividends should be made as of the same day. (U. S. Trust Co. v. Heye, 224 N. Y. 242; Macy v. Ladd, 227 N. Y. 670, distinguished.)

      Matter of Bird, 213 App. Div. 303, modified.
    (Submitted October 5, 1925;
    decided November 24, 1925.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 6, 1925, which reversed a decree of the New York County Surrogate’s Court, in a proceeding for the settlement of the accounts of a trustee, in so far as it decreed that the apportionment of extraordinary dividends should be determined as of the date of the testator’s death.

      John J. Robinson for appellant.
    Stock dividends must be apportioned between life tenants and remaindermen on the basis of the date of decedent’s death. (Matter of Osborne, 209 N. Y. 450; Cragg v. Riggs, 5 Redf. 82; Matter of Kernochan, 104 N. Y. 618; Matter of Harteau, 204 N. Y. 292.)

      George F. Canfield and Frederick C. Bangs for trustee, respondent.
    The trust of the entire residuary estate under the terms of the will of Clinton W. Bird, deceased, was created and came into being on the date of the testator’s death, namely, December 23, 1916, from which date the life beneficiaries are entitled-to all income thereafter earned, declared and paid. (Matter of Osborne, 209 N. Y. 450.) It was the intention of the testator that his widow and son, the life beneficiaries named in his will, should receive all income from his residuary estate earned subsequent to the date of his death. (Cooke v. Meeker, 36 N. Y. 15; Matter of Stanfield, 135 N. Y. 292; Barrow v. Barrow, 55 Hun, 503; Matter of Baker, 57 App. Div. 44; Bank of Niagara v. Talbot, 110 App. Div. 519; Matter of Kings County Trust Co., 141 App. Div. 43; Matter of Parkin, 190 App. Div. 875; Matter of Carey, 200 App. Div. 344; Matter of McGowan, 124 N. Y. 526.) There is no reason why the testator’s intention with reference to the disposition of extraordinary income should not prevail the same as in the case of ordinary income. The physical delivery of securities by the executor to the trustee does not of itself, without other controlling facts and circumstances, determine the date of the creation of the trust, as of which the apportionment of extraordinary income should take place. (Matter of Osborne, 209 N. Y. 450; Matter of Roberts, 117 Misc. Rep. 794; Matter of Balch, 98 Misc. Rep. 510; Matter of Bemis, 123 Misc. Rep. 255; Matter of Megrue, 170 App. Div. 653.)

      Irwin Untermyer for Wallace C. Bird, respondent.

      (United States Trust Co. v. Heye, 224 N. Y. 242; 181 App. Div. 544.) The correct date to be taken in making the calculation where an apportionment is necessary is the date when the securities were received by the trustee. (Marcy v. Ladd, 227 N. Y. 670.)

      Arthur B. Smith for Ada V. Bird et al., individually and as executors, respondents.
    The phrase, “ the time of the creation of the trust,” used in Matter of Osborne
      has been judicially interpreted by the Appellate Division, first department, in United States Trust Co. v. Heye (181 App. Div. 544) to mean the date when the particular securities came into the hands of the trustee. (Marcy v. Ladd, 227 N. Y. 670.)

      J. Daniel Dougherty for Willard Fisher, as executor of Marie L. B. Fisher, respondent.
    The date upon which the particular securities came into the hands of the trustee has been judicially interpreted by the Appellate Division, first department, in United States Trust Co. v. Heye, and affirmed by the Court of Appeals as “ the time of the creation of the trust.” (Marcy v. Ladd, 227 N. Y. 670.)

      Andrew S. Hamersley for Florence B. Ford, respondent.
    The date upon which the particular securities came into the hands of the trustee, namely, June 24, 1918, is to be taken as the date of the creation of the trust. (United States Trust Co. v. Heye, 181 App. Div. 544.)

      John V. Downey and James J. Walker for Walter G. Bird et al., respondents.
    The proper date for making the apportionment herein is when the securities were delivered by the executor to the trustee. ( United States Trust Co. v. Heye, 181 App. Div. 544; 224 N. Y. 242.)
   Andrews, J.

The apportionment of extraordinary dividends as between life tenants and remaindermen is to be made as of the time of the creation of the trust. (Matter of Osborne, 209 N. Y. 450.) When is a trust created? The answer depends upon the intentions of the testator as expressed in his will — not upon the action or non-action of executor or trustee — not upon their caprice or diligence. It may be upon the testator’s death. It is if there is nothing to indicate a contrary design. Where a sum is left in trust with the direction that the income be paid to A, then A is entitled to income from the death of the testator. (Cooke v. Meeker, 36 N. Y. 15; Matter of Ben son, 95 N. Y. 503, 511; Matter of Stanfield, 135 N. Y. 292.) The trust certainly is created from the date when the cestui becomes entitled to its benefits. Being so able to claim the income from the testator’s death it is immaterial whether this income earned after that date be large or small; whether the trustee receives it by way of ordinary or extraordinary dividends. Such was the situation in Matter of Osborne (209 N. Y. 450); in Matter of Megrue (217 N. Y. 623); in Matter of Schley (234 N. Y. 616), and in Bourne v. Bourne (240 N. Y. 172).

The testator, however, may expressly postpone the creation of a trust to a later date as “ when my youngest child becomes twenty-one.” Here that date governs, not the date a year or so later when the trust securities are actually segregated. (Macy v. Ladd, 227 N. Y. 670.)

Again, at times, we may discover an intention not stated in so many words to postpone the creation of the trust as when executors and trustees are directed to do some act upon which the principal of the trust estate depends — such for instance as the selection in their discretion of the securities of which it is to consist. This was the situation in U. S. Trust Company v. Heye (224 N. Y. 242). Mr. Heye gave his residuary estate to a trustee who was to divide it into three equal parts, appraising the value of the various items according to its own judgment and selecting the securities to compose each share. Its action was to be conclusive and each of said shares shall be constituted accordingly.” Obviously the creation of the trust was here to be postponed beyond Mr. Heye’s death, which occurred on February 8, 1899. But as soon as the securities came into the hands of the trustee on May 10th of the same year it was called upon to act promptly and we fixed upon that day as the date of the creation of the trust.' We certainly did not hold or intend to hold that in all cases the date of the creation of the trust was fixed by the time the executors actually delivered the trust funds to the trustee or if executors and trustees were one, the time when they segregated the trust funds or made appropriate entries on their books. (Matter of Kohler, 231 N. Y. 353, 373.)

Mr. Bird, after various bequests devised and bequeathed the residue of his estate to the United States Trust Company in trust. He directed the disposal of the income by the trustee and at the termination of the trust provided for the distribution of the principal. The executor was told to turn over to the trustee any of the property, securities or investments of which Mr. Bird died seized and possessed, but he was given the power to sell the same. We fail to find in this will any indication such as existed in the Ladd and Heye cases of an intention to postpone the creation of the trust to some future date. On the other hand, the clear intent was that the beneficiaries should receive the income from the testator’s death. Therefore, the trust was created as of that time and the apportionment should be made as of the same day.

The order of the Appellate Division in so far as it modifies the decree of the Surrogate’s Court should be reversed and the decree of such Surrogate’s Court affirmed, with costs in this court and the Appellate Division to the appellants payable out of the estate.

His cock, Ch. J., Caedozo, Pound, . McLaughlin, Crane and Lehman, JJ., concur.

Ordered accordingly.


text:
    Lillian G. Keys, Respondent, v. James M. Leopold et al., Appellants.
    Limitation of actions — equitable remedy under same statutory bar as legal where both remedies exist as to same subject-matter — complaint stating cause of action in equity and also one at law controlled by statute applicable to latter.
    1. When a legal and an equitable remedy exist as to the same subject-matter, the latter is under the control of the same statutory bar as the former.

      2. Assuming that a complaint states a cause of action in equity for an accounting, where it also states facts on which a recovery might be had at law upon a contract obligation or liability express or implied or damages for an injury to property, it is controlled by the six years’ Statute of Limitations under section 48 of the Civil Practice Act.

      Keys v. Leopold, 213 App. Div. 760, reversed.
    (Argued October 6, 1925;
    decided November 24, 1925.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 12, 1925, which reversed an order-of Special Term granting a motion by defendant for a dismissal of the complaint, and denied said motion.
    The question certified is stated in the opinion.

      Outerbridge Horsey for appellants.
    The Appellate Division erred in deciding that the ten years’ Statute of Limitations applies to plaintiff’s cause of action. (Kane v. Bloodgood, 7 Johns. Ch. 90; Brown v. Brown, 83 Hun, 160; Matter of Accounting of Neilley, 95 N. Y. 382; Rundle v. Allison, 34 N. Y. 180; Mason v. Henry, 152 N. Y. 529; Scott v. Stebbins, 27 Hun, 335; 91 N. Y. 605.)

      Allen Caruthers for respondent.
    The relation which existed between the parties to this action was not'that of debtor and creditor, but of trustee and cestui que trust. (Orton v. Tannenbaum, 194 App. Div. 214; Matter of Carpenter, 131 N. Y. 86; Goldsmith v. Goldsmith, 145 N. Y. 313; Klinzing v. Blauw Bros., Inc., 160 N. Y. Supp. 631; Zebley v. Farmers’ L. & T. Co., 139 N. Y. 461; 63 Hun, 541; Matter of Camp, 126 N. Y. 377; Lammer v. Stoddard, 103 N. Y. 672; Reitz v. Reitz, 80 N. Y. 538; Barker v. White, 58 N. Y. 204; Greenly v. Shelmidine, 83 App. Div. 559; Hutton v. Smith, 74 App. Div. 284; Davis v. Davis, 86 Hun, 400; Post v. Benchley, 48 Hun, 83; Morgan v. Turner, 35 Misc. Rep. 399; Decouche v. Savetier, 3 Johns. Ch. 190.) Where there is a trust in which the trustee had authority to use the fund for the benefit of the trust created, then the statute did not begin to run until the trust was terminated, or a demand and refusal to account. (Matter of Waite, 43 App. Div. 296; Brown v. Brown, 83 Hun, 16; 146 N. Y. 385; Mills v. Mills, 115 N. Y. 80; Sheldon v. Sheldon, 133 N. Y. 1; Adams v. Olin, 140 N. Y. 150; Roberts v. Ely, 113 N. Y. 128; Middleton v. Twombly, 125 N. Y. 520; Diefenthaler v. Mayor, 111 N. Y. 331; Jex v. Mayor, 111 N. Y. 339; Matter of Cole, 34 Hun, 320.)
   Andrews, J.

The complaint alleges that the defendants and their predecessors, whose obligations they have assumed, are copartners and members of the New York Stock Exchange. Between May, 1903, and July, 1908, relying upon their statement that the plaintiff “ would make great profits upon her investment with them,” she paid them the sum of $12,550 to be invested by said copartners for her account ” and constituted them her true and lawful agents in the premises.” Since 1916. she has repeatedly demanded an accounting of this principal and of any profits of her said investments as aforesaid ” but her demand has been refused. Therefore, in 1924, she brought this action in equity to compel the defendants to account and to pay over to her such amount as might be found due. This complaint was dismissed by the Special Term. The Appellate Division reversed such order but permitted an appeal to this court certifying the question Did the cause of action alleged * * * accrue within the time limited by law for the commencement of an action thereon? ”

The answer depends upon the meaning to be given the complaint. Clearly it does not allege the creation of an express trust. Neither actually nor impliedly is it stated that the moneys were given to the brokers for investment, they to purchase securities in their own name, sell, reinvest, deal with them as they might think proper, and at the termination of the trust deliver such securities as remained, with any profits that had been gained to the plaintiff, or anything substantially to that effect. Rather the picture presented is that of an ordinary transaction between customer and brokers. The money was given to the defendants for investment. They were to use it for the purchase of stocks or bonds, either (for this is not stated in the complaint) particular securities specified by the plaintiff, or such securities as the brokers chose. In either case, when the investments were once made, the powers of the brokers ceased. Their only duty then was to deliver the securities to the plaintiff or possibly to hold them, and any interest or dividends received therefrom, until a demand by her. That this was the construction placed by her on the arrangement appears by a letter written by her attorney to the defendants three days before the action was begun, and used by her in opposition to the motion to dismiss the complaint. “ Now my position is simply this,” he says. “ If you will satisfy me that these moneys — $12,550 — were actually invested by you for her and that she received the securities in which such moneys were invested, the matter will be ended.”

For the purposes of this case we shall assume that the complaint states a cause in equity for an accounting. We shall assume also that, as respondent claims, the action is governed by section 15, subdivision 2, of the Civil Practice Act and that the time within which it must be begun is to be computed from 1916 when a demand was actually made. The question still remains, however, whether the basis of the action is to recover upon a contract obligation or liability express or implied, or damages for an injury to property controlled by the six years’ statute under section 48, or whether this is an action the limitation of which is not specifically prescribed and, therefore, one that must be commenced within ten years under section 53. The mere fact that this is an action for an accounting is not determinative of this question. When a legal and an equitable remedy exists as to the same subject-matter, the latter is under the control of the same statutory bar as the former. (Rundle v. Allison, 34 N. Y. 180.) Nor is the fact that the defendants received this money in a fiduciary capacity and may, therefore, hold it under such a trust as the law may imply for the purposes of justice. (Mills v. Mills, 115 N. Y. 80.)

Our construction of the complaint answers the question. It states facts on which a recovery might be had at law. That the plaintiff was ignorant of what precisely she was entitled to claim is immaterial. There are remedies provided for such a situation. We hold that under Civil Practice Act, section 48, this action should at least have been begun within six years after 1916.

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

His cock, Ch. J., Caedozo, Pound, McLaughlin, Crane and Lehman, JJ., concur.

Ordered accordingly.


author: McLaughlin, J.

text:
    Emily R. Moller, as Ancillary Administratrix of the Estate of Harold G. Moller, Deceased, Respondent, v. Maud E. W. M. Paulivico, Appellant.
    Vendor and purchaser — real property—conveyance of land by brother to sister for nominal consideration — no implied promise to pay its value — action by administratrix to recover value of land cannot be maintained.
    There is no rule of law which reads into a conveyance of land by the owner to his sister, subject to the dower interest of his wife and in consideration of one dollar and other good and valuable considerar tions, an implied promise to pay its value. He had a right to convey to his sister the land in question. Nor may a letter written by defendant to plaintiff stating, “ I bought from my brother * * * before his death the farm,” be properly construed into an implied promise to pay what the farm was worth. An action, therefore, by his administratrix to recover the alleged value of the land conveyed upon the ground that there was an implied promise on the part of the sister to pay its reasonable value cannot be maintained.

      Moller v. Paulivico, 212 App. Div. 394, reversed.
    (Argued October 13, 1925;
    decided November 24, 1925.)
    Appeal from a judgment, entered May 20, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendant entered upon a verdict directed by the court and directing judgment in favor of plaintiff.

      Arthur M. Silber for appellant.
    No promise on the part of the defendant to pay the reasonable value of the premises can be implied from the fact that said premises were conveyed to her by a bargain and sale deed. (Turner v. Howard, 10 App. Div. 555; Wood v. Chapin, 13 N. Y. 509; Bucklin v. Bucklin, 1 Abb. Ct. App., Dec. 242; Lynch v. Livingston, 6 N. Y. 422; Jackson v. Beach, 1 Johns. Cas. 399; Bank of the United States v. Housman, 6 Paige, 526; Cunningham v. Freeborn, 11 Wend. 241; Gerard on Titles to Real Estate [5th ed.], 536.) The use by defendant of the word “ bought ” in her letter of December 1, 1915, is not sufficient to establish that she did not receive the premises as a gift from her brother. (Ten Eyck v. Witbeck, 135 N. Y. 40; Adee v. Hallett, 3 App. Div. 308.)

      E. E. Hoenig and E. C. Crowley for respondent.
    The plaintiff is entitled to recover the fair and reasonable value of the premises. The undisputed testimony shows that the defendant purchased said premises instead of merely receiving them as a gift. (Lockhart v. Hamlin, 190 N. Y. 132; Bauman v. Manhattan Consumers B.

      Co., 97 App. Div. 470; Shirk v. Brookfield, 71 App. Div. 295; Sussdorf v. Schmidt, 55 N. Y. 319; Rubin v. Cohen, 129 App. Div. 395; Worthington v. Worthington, 100 App. 332; Goodman v. Alexander, 165 N. Y. 289; Bowen v. Bell, 7 Johns. 328; Shepard v. Little, 14 Johns. 210; Bowen v. Bell, 20 Johns. 338; Thomas v. Dickinson, 12 N. Y. 364.)
   McLaughlin, J.

On the 23d of November, 1915, Harold G. Moller died, leaving him surviving a widow, the plaintiff in this action. A short time prior to his death he was the owner of a farm consisting of about 288 acres located at Bayville, N. J. This he conveyed to his sister, the defendant in this action. At the time of the conveyance Moller and his wife were, and for some time had been, living separate and apart. The consideration of the conveyance, which was made subject to the dower right of the wife, was one dollar and other good and valuable considerations. The widow was appointed administratrix in the State of New Jersey and subsequently ancillary letters were issued to her in the State of New York. After she had been appointed ancillary administratrix, she brought this action to recover the alleged value of the land conveyed, upon the ground that there was an implied promise on the part of the defendant to pay the reasonable value of the same. The answer put in issue the material allegations of the complaint and alleged that the defendant was the owner of the farm, she having purchased it from her brother, paying a good consideration therefor.

The trial judge, a jury having been waived, rendered a decision in "favor of the defendant and dismissed the complaint. An appeal was taken to the Appellate Division by the plaintiff where the judgment was reversed (one of the justices dissenting) and a judgment rendered in favor of the plaintiff for an amount which the court found to be the value of the land.

The reversal, as appears from the opinion of the Appellate Division, was upon the ground that the deed of conveyance recited only a nominal consideration and there was read into it an implied promise upon the part of the defendant to pay what the land was worth. I know of no rule of law which reads into a conveyance of this character an implied promise to pay. The brother had a right to convey to his sister the land in question. Upon the face of the conveyance a good consideration is expressed. The letter which the defendant wrote to the plaintiff states: I bought from my brother * * * before his death the farm.” How this statement can be tortured into an implied promise to pay what the farm was worth is beyond my comprehension. If the conveyance were without consideration and there were debts for which the brother was liable at the time of his death, then the conveyance could be set aside on the ground that it was given with the intent to hinder, delay and defraud creditors. But this is not a creditors’ action. Before such an action could be maintained judgment would have to be obtained or it would have to be made to appear that there were not sufficient assets to pay the debts and that an adequate remedy at law did not exist for the payment of the same. . Such facts do not here appear. On the contrary, the plaintiff not only has sufficient funds in her hands to pay the debts, but she has already paid and discharged the same.

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

His cock, Ch. J., Cardozo, Pound, Crane, Andrews and Lehman, JJ., concur.

Judgment accordingly.


author: Crane, J.

text:
    Aktiebolaget Malareprovinsernas Bank, Respondent, v. American Merchant Marine Insurance Company, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. Federal Insurance Company, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. Ætna Insurance Company of Hartford, Connecticutt, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. National Fire and Marine Insurance Company, Appellant.
    Insurance (marine) — deviation — question whether voyage on which vessel was lost was a “ deviation ” one of law reviewable by Court of Appeals — meaning of word “ deviation ” as used in marine insurance — question of liability determined by language used in policy—“ deviation ” sufficient to relieve insurers of liability under reasonable interpretation of policies — rule of “departure from necessity”—departure to be excused must be necessary to preserve ship or cargo from imminent peril — words “ direct or otherwise ” permit stops at usual ports but not a separate and distinct voyage back to point of departure — applicability of clause of self-insurance.
    1. In an action to recover upon policies of marine insurance for the loss of a vessel, defended upon the ground of “ deviation,” the question whether the voyage, during which the vessel was lost, was covered by the policies or whether it was a “ deviation ” which relieved the insurers from liability, is a question of law, which is to be determined by applying the terms of the policies to the facts and which the Court of Appeals may review.
    2. A “ deviation,” as the term is applied in marine insurance, means that the ship has made a departure from the stated route not contemplated by the parties to the contract, and not rendered necessary to save the ship or cargo. As in every other case of contract, the question of liability depends upon the terms used by the parties in connection with the nature of the voyage. The question is determined by the language used in the policy.
    3. Where the policies in suit insured the ship against war risks “ From New York to Gothenberg, whilst there and return to United States Atlantic port or ports, Direct or otherwise,” a reasonable interpretation of the policies would make of a return trip to Gothenberg, after the ship had left there to return to New York and reached a port in England, a “ deviation ” which relieved the insurers of liability.
    4. The natural consequences of such return trip may not be escaped under the rule of “ departure from necessity,” where it appears that the ship was safe in the English port but her owners agreed with the British authorities to discharge her cargo, carry a cargo to Gothenberg and from thence to an English port, in order to obtain from such authorities, who controlled the supply, coal necessary to carry the vessel to New York. It is not every necessity that excuses a departure. The departure from the contemplated voyage, to be excused, must be one necessary to preserve the ship or cargo from imminent peril or danger, and, where there is nothing to show that the vessel could not remain where she was in safety, in going on a separate and distinct voyage back across the danger zone, for which an additional freight was received, and other insurance procured, the owners and the master acted voluntarily, and not from that necessity which permitted such a trip to be considered within and a part of the original voyage.
    5. The words “ direct or otherwise ” permitted the ship to stop at the usual and customary ports in going from New York to Gothenberg, but did not cover a separate and distinct voyage back through the danger insured against simply for the purpose of getting coal.
    6. A claim that the second voyage was occasioned by the British government; that the voyage was not voluntary; that it was forced upon the master and thus became necessary, if so, makes applicable a clause contained in all the policies except one warranting “ free from any claim arising from capture, seizure, arrests, restraints, preemption or detainments by the British Government or their allies,” and the insurance companies whose policies contained such clause are relieved from liability.

      Aktiebolaget M. Bank v. American M. M. Ins. Co., 211 App. Div. 608, reversed.

      Aktiebolaget M. Bank v. Federal Ins. Co., 211 App. Div. 608, reversed.

      Aktiebolaget M. Bank v. Mtna Ins. Co., 211 App. Div. 608, reversed.

      Aktiebolaget M. Bank v. Nat. F. & M. Ins. Co., 211 App. Div. 608, reversed.
    (Argued October 14, 1925;
    decided November 24, 1925.)
    Appeal, in each of the above-entitled actions, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 7, 1925, affirming a judgment in favor of plaintiff entéred upon a decision of the court at a Trial Term without a jury.

      D. Roger Englar, Vincent L. Leibell and Henry B. Potter for appellants.
    The intermediate voyages from Swansea to Gothenberg and return to Hull were voluntary deviations from the voyage insured, which rendered the policies void as a matter of law, regardless of the purpose for which the voyages were made. (Audenreid v. Mercantile Mutual Ins. Co., 60 N. Y. 482; Snyder v. Atlantic Mutual Ins. Co., 95 N. Y. 196; Stevens v. Commercial Mutual Ins. Co., 26 N. Y. 397; Fernandez v. Great Western Ins. Co., 48 N. Y. 571; 3 Kent Comm. [4th ed.] 313; Stevens v. Commercial Mutual Ins. Co., 6 Duer, 594; Hearne v. New England Mut. Mar. Ins. Co., 20 Wall. 488; Oliver v. Maryland Ins. Co., 7 Cranch, 487; The Indrapura, 171 Fed. Rep. 929; Amsinck v. American Ins. Co., 129 Mass. 185; Mount v. Larkins, 8 Bing. 108; Elliot v. Wilson, 4 Bro. P. C. 470.) If the intermediate voyages to and from Sweden be regarded as' compulsory, the warranty against British capture affords a complete defense under all of the policies excepting that of the National Fire and Marine Insurance Company. (Roget v. Thurston, 2 Johns. Cas. 248; Standard Oil Co. v. United States, 267 U. S. 76; Anderson v. Marten, [1908] A. C. 334; Stevens v. Commercial Mutual Ins. Co., 6 Duer, 594; Muller v. Globe & Rutgers Fire Ins. Co., 246 Fed. Rep. 759; Magoun v. New England Marine Insurance Company, 16 Fed. Cas. 483; Schieffelin v. New York Ins. Co., 9 Johns. 21; Matter of Glatzl v. Stumpp, 220 N. Y. 71; Bird v. St. Paul Fire & Marine Ins. Co., 224 N. Y. 47.)

      J. B. Engel and J. G. Engel for respondent.
    The Ada did not deviate from her voyage; the main voyage was not abandoned; the intermediate trip was in furtherance of the main voyage. (Robinson v. Marine Ins. Co., 2 Johns. 88; Post v. Phœnix Ins. Co., 10 Johns. 79; Savage v. Pleasants, 5 Binn. [Penn.] 403; Lawrence v. Ocean Ins. Co., 11 Johns. 241; Lawrence v. Fireman’s Ins. Co., 14 Johns. 46; Hughes v. Union Ins. Co., 3 Wheat. 185; Kittel v. Wiggins, 13 Mass. 268; Stevens v. Commercial Ins. Co., 26 N. Y. 401; Snyder v. Atlantic Ins. Co., 95 N. Y. 203, 204; Fernandez v. Great Western Ins. Co., 48 N. Y. 573; North British Ins. Co. v. Baars, 255 Fed. Rep. 625; Audenreid v. Mercantile Ins. Co., 60 N. Y. 482; Maryland Ins. Co. v. Leroy, 11 U. S. 26; Coffin v. Neuberry Port Ins. Co., 9 Mass. 436.) The ship was lost by .a peril against which she was insured. (Bradhurst v. Columbia Ins. Co., 9 Johns. 9, 17; Schieffelin v. New York Ins. Co., 9 Johns. 20; Patrick v. Commercial Insurance Co., 11 Johns. 9; North British & Mercantile Ins. Co. v. Baars, 255 Fed. Rep. 625; Gates v. Madison Co. Mut. Ins. Co., 5 N. Y. 469; Mathews v. Howard Ins. Co., 11 N. Y. 9; Saugerties Bank v. Del. & Hud. Co., 236 N. Y. 425; McCahill v. New York Trans. Co., 201 N. Y. 221.)
   Crane, J.

The plaintiff has recovered four judgments upon four marine insurance policies issued respectively by the American Merchant Marine Insurance Company, the Federal Insurance Company, the .¿Etna Insurance Company, and the National Fire and Marine Insurance Company. The four actions were tried together with five others before the court, without a jury. The policies covered the steamship Ada against war risks, and are substantially similar in' form. The issues in all the actions are the same, with the exception of the one against the National Fire and Marine Insurance Company. The policy in that case did not contain the warranty clause against capture and detention by the British government.

The judgments have been unanimously affirmed by the Appellate Division so that we must take the facts as they are stated in the findings. It is the claim of the appellants that these facts show a deviation relieving the insurers from liability. The Ada was insured for a voyage from New York to Gothenberg and return. It was while making a fourth trip across the North Sea that she was torpedoed by a German submarine and sunk. The defendants say they insured for two trips across the sea but not for a third and fourth, and that these were not within the terms of the policies.

A question has arisen as to the plaintiff’s insurable interest. The facts regarding this are set forth in the opinion below (211 App. Div. 608) and need not be repeated here. We will assume for the purposes of this appeal that the plaintiff may recover if the loss comes within the policies.

Turning now to the findings, we have these events and circumstances. At the times mentioned herein the steamship Ada hailed from the Kingdom of Sweden and sailed under the Swedish flag; that on or about the 26th day of September, 1916, while the steamship Ada was at the port of New York, the defendants insured the ship by the policies in question at and from New York to Gothenberg, whilst there and return to the United States, Atlantic port or ports, direct or otherwise, against risk of capture, seizure or destruction, or damage by man-of-war, letters of marque, by takings at sea, arrests, restraints, detainments and acts of kings, princes and people, authorized by and in the prosecution of hostilities between belligerent nations.

On or about the 30th day of September, 1916, the Ada sailed from New York bound for Gothenberg, Sweden, on the voyage described in the policy, and arrived safely, in due course.

On the twenty-fifth of November following, the Ada having discharged her cargo at Gothenberg, Sweden, and having taken on a cargo, duly sailed on her return trip to New York.

After leaving Gothenberg, she was hailed by a British man-of-war and directed by the officer in command to proceed to the port of Stornoway, Scotland, where on or about December 5, 1916, she arrived in company of said British man-of-war. She' remained there until about December 23, 1916, when she was directed by the British authorities to proceed to Bristol, England. She arrived there in due course, and remained under the direction of the British government until April 21, 1917.

On that date the owners of the Ada finally prevailed upon- the British authorities to permit her to sail from Bristol, England, upon her voyage to New York, but at that time she was unable to commence said voyage by reason of having insufficient coal aboard to safely undertake it. On leaving Gothenberg, the steamer had sufficient coal to take her to New York, but by reason of the detention by the British government, her coal supply had given out, 'so that she had to have more coal to cross the Atlantic. The British government controlled the coal supply required by ships sailing from Scandinavian ports.

How was the Ada to get her coal? The findings continue. The owners of the steamship Ada continuing their efforts to replete the supply of bunker coal sufficient to enable the ship to safely make the voyage to New York finally succeeded, so that at or about that time (April 21, 1917) the British authorities agreed to furnish the steamship Ada with a supply of bunker coal sufficient to enable her to complete her voyage, upon condition, however, that the said steamship Ada first discharge the cargo she had taken aboard at Gothenberg, carry a cargo to Gothenberg and from thence to an English port, having done which the British authorities agreed to allow the steamship Ada to procure sufficient bunker coal to carry her to New York. Under these circumstances the steamship Ada discharged at warehouse in Bristol the cargo she had taken aboard at Gothenberg, took on a cargo of coal at Bristol, which was the cargo directed by the British authorities to be loaded aboard her, and carried same to Gothenberg, Sweden. This cargo she discharged at Gothenberg, Sweden, and pursuant to the direction of the British authorities took on another cargo, and with it sailed from Gothenberg, Sweden, to Hull, England. For the carriage of the coal back to Gothenberg, the owners of the vessel received freight in the sum of $80,361.90. For her voyage from Gothenberg back to Hull, the freight moneys amounted to $85,942.50. On this voyage of the vessel from England back to Sweden and return, the vessel was insured by the owners, which is not the insurance here in question.

On the ninth day of June, 1917, as the Ada was thus sailing from Gothenberg, Sweden, back to Hull, England, she was sunk by a German submarine, and totally lost.

The other findings bearing upon the question of deviation, so far as they are findings of fact and not conclusions of law, are to the effect that from the time the steamship Ada was hailed by the British man-of-war, the master was unable to continue the voyage to New York, because the supply of bunker coal had become insufficient to complete the trip; that it was the intention of the steamship Ada and her owners to take up her cargo again after she had returned from Gothenberg on her second trip, and which cargo she had discharged at Bristol, and to carry such cargo to New York, being the voyage she had originally undertaken when she had sailed from Gothenberg, Sweden, to New York on the voyage described in the insurance policies. It is also found that the only way open to the Ada to procure a sufficient supply of bunker coal to enable the ship to steam to New York was to make the trip back to Gothenberg as agreed with the British government.

Having all these facts, the statement made in finding 23 that the trip back to a Swedish port was not an independent voyage, but subordinate to, and in furtherance of the main voyage, is a conclusion of law which we are permitted to review upon this appeal.

The finding that the proximate cause of the loss of the steamship Ada was a torpedo discharged by the German submarine, in the course of the prosecution of the war then waging between Great Britain and Germany, was made in view of the clause stamped on the policies, with the exception of that issued by the National Fire and Marine Insurance Company, reading as follows:

Warranted free from any claim arising from capture, seizure, arrests, restraints, preemption or detainments by the British Government or their Allies.”

The conclusion reached by the trial justice in his 23rd finding of fact, above referred to, is the point involved in these cases. Was the voyage back to Gothenberg the voyage covered by the policies, or was it a deviation which relieved the insurers from liability? This is a question of law which is to be determined by applying the terms of the policies to the facts. A “ deviation,” as the term is applied in marine insurance, means that the ship has made a departure from the stated route not contemplated by the parties to the contract, and not rendered necessary to save the ship or cargo. As in every other case of contract, the question of liability depends upon the terms used by the parties in connection with the nature of the voyage. The cases which have been brought upon marine insurance policies turn upon the intent of the parties and the voyage contemplated, as expressed in the contract. (The Willdomino, 300 Fed. Rep. 5, 18; Seccomb v. Provincial Ins. Co., 10 Allen [92 Mass.], 305, 315; Phillips on Insurance [5th ed.] vol. 1, p. 555.) “A deviation from the described course or employment of an insured vessel, unless compelled by necessity, * * * constitutes a defense to an action thereon for a subsequent loss, however slight or harmless the deviation may appear to be.” The question is determined by the language used in the policy. (Snyder v. Atlantic Mutual Ins. Co., 95 N. Y. 196.) Arnould on Marine Insurance (Vol. 1 [11th ed.], 558) puts the question this way: “ Was the port one which, on the true construction of the policy, was within the course of the voyage as contemplated by the parties? ” And again, in section 411:

“1. That the extent of the powers they confer on the ship is to be judged of, not so much by verbal criticism on the terms employed (such as to call/ to touch/ or ' to touch and stay ’), as by reference to the true scope and nature of the adventure contemplated by the policy.

“2. That, however extensive the language of these clauses may be, they can never confer a power of visiting ports out of that which, upon a fair construction of the whole policy, appears to have' been the course of the voyage insured as contemplated by the parties; nor can they justify the ship in visiting any port, even though within the local limits of the voyage insured, for any purpose unconnected with the main object of the adventure.”

These insurance companies and the insured made a contract whereby the steamship Ada was insured against loss from German submarines going from New York to Gothenberg and back. What must the parties have had in mind in making this contract; what was the risk assumed and insured against? This was a war risk. The parties knew that certain waters had become dangerous to ships because of submarine activities. For pay the insurance companies were willing to assume the risk. The risk, however, was limited to one voyage over and back through the danger zone. To get to Gothenberg on the west coast of Sweden, it is necessary for ships to go through the North Sea. Everyone knew at the time that this was a particularly dangerous place, made so by the war. The risk was created by warships. If the Ada went through the North Sea back and forth without being torpedoed, it was the insurer’s gain. If she were destroyed, it was the insurer’s loss. This must have been within the contemplation of the parties, and the chances which they voluntarily took as part of this business transaction. Is it fair to' assume that either party to the policy contemplated that after the Ada had gone into the North Sea and come out again without harm, she would go back and make another trip through the danger zone, and that the policy would cover such a voyage? I think not. The policy reads: From New York to Gothenberg, whilst there and return to United States Atlantic port or ports, Direct or otherwise.” The policy covered two trips through the North Sea, going and coming. It did not cover a third and fourth trip, which of course materially increased the risk. The reasonable interpretation, therefore, of the policies here in question would make of this return trip to Gothenberg a deviation which relieved the insurers of liability. It was a sailing on a different voyage from the one insured. (Robertson v. Columbian Ins. Co., 8 Johns. 383; Audenreid v. Mercantile Mutual Ins. Co., 60 N. Y. 482; Seccomb v. Provincial Ins. Co., supra.) In the Audenreid case this court said: “A deviation is a varying from the route insured against without necessity or just cause after the risk has begun, and the effect of a deviation is to discharge the underwriters whether the risk is thereby enhanced or not. * * * Whenever the insurance is upon a specific voyage, there is an implied condition to be performed by the assured that the ship shall pursue the most direct course, and that the voyage shall be prosecuted to its final termination with a reasonable diligence and without unnecessary delays. Any failure to comply with this condition alters the nature of the risk assumed by the underwriters, and from the instant of such failure terminates the insurance. * * * If the insured may break up a single voyage between the termini named in the policy, at his own pleasure or for his profit or convenience, into several, by stopping at intermediate ports, he may essentially vary the risk, and the estimate of the underwriter will be of no value.”

We do not understand the respondent to differ with this statement of the law as applied to the Ada, if her trip back to Gothenberg had been voluntary. The plaintiff seeks to escape from the natural consequences of this return trip by attempting to bring itself within the rule of departure from necessity. The Ada could not proceed to New York without coal. This was necessary to complete the voyage. Coal could not be procured from the British government which controlled the supply without going back to Gothenberg on another voyage. The cargo which the Ada was carrying to America was thereupon discharged at Bristol. She took on a new cargo and returned to Gothenberg. At Gothenberg she unloaded and reloaded, and again attempted to cross the path of the submarines. On this separate and distinct voyage the owners insured the ship against the risks which they knew she ran, and received additional freight charges. Wherein lies the necessity?

It is not every necessity that excuses a departure. The departure from the contemplated voyage, to be excused, must be one necessary to preserve the ship or cargo from imminent peril or danger. The steamship Ada with her cargo was perfectly safe in Bristol: She was there until April 21, 1917, by the command of the British government. On that date she was free to go. The restraint had been relieved. It was a fact that she could not go to America because her coal supply was depleted, but there is nothing to show that she could not have remained where she was in perfect safety. The coal necessity arose from the desire to complete the voyage, not from any danger to the ship or cargo. In going, therefore, on a separate and distinct voyage back across the danger zone, for which an additional freight was received, and other insurance procured, the owners and the master acted voluntarily, and not from that necessity which permitted such a trip to be considered within and a part .of the original voyage.

These parties, when taking out the insurance policies in New York, knew that a voyage across the seas permitted departures from the usual and customary route, compelled by necessity. Such is the law of marine insurance, applicable to all risks. It is the nature of the contract and of the undertaking which permits this apparent variance from the voyage described. The words of these policies direct or otherwise ” also permitted the Ada to stop at the usual and customary ports, in going from New York to Gothenberg. But neither the rule of necessity nor the words “ direct or otherwise ” covered a separate and distinct voyage back again a third and fourth time through the very danger which was the main cause for the policies in the first instance. As before stated, the defendants and the insured could never have contemplated that the rule of necessity permitting a departure from the course under certain dangers and perils would cover a material increase of the risk for the purpose of getting coal. The leaving of a place of safety, and going into such a known danger for such a cause was either an abandonment of the original voyage or else a deviation which took the risk without the terms and coverage of these policies.

Every policy and every case must be governed by the facts involved. As these vary, so must vary the application of the well-known principles of law applicable to marine insurance. What may be a necessity under one set of circumstances may not be in another. The giving out of fuel or of coal, while on a voyage may, under certain circumstances, require the ship to put into a nearby port for the purpose of replenishing the supply in the same way it can do in order to make repairs necessary to continue the voyage. The application of the rule of necessity, like so many other rules of like nature, must be reasonable and depend upon the degree and circumstances of the departure from the usual route. A departure to get coal may be very reasonable in one case, and very unreasonable, and not within the contemplation of the parties, as we speak of it, in another case. This term, or phrase, “ within the contemplation of the parties virtually means that the thing done or the event which has happened comes reasonably within the fair intent and purpose of the contract. If the master of the Ada, safe in the port of Bristol, but without coal, could go to Gothenberg, a sail of nearly 600 miles or more, amidst war activities, to get coal, and still keep within the limits and terms of the original voyage, he might go with impunity to Calcutta or Hongkong, or any other far distant port, for like purpose.

If a vessel insured to a particular port, having letters of credit, should find on arrival that the parties on whom they were drawn had failed, she could not go to another port for funds and return for her cargo, and be protected by her policy. This was the illustration used by the court in its opinion in Burgess v. Equitable Marine Insurance Co. (126 Mass. 70, 79). We cite that case as showing when necessities will justify departures. The court said:

In this connection it may be well to refer to the necessities which clearly justify a departure. There is no deviation when the master is compelled by force, either to depart from his route, or delay its prosecution by the acts of his crew; Elton v. Brogden, 2 Str. 1264; Driscol v. Passmore, 1 B. & P. 200; Driscol v. Bovil, 1 B. & P. 313; or where he is detained by those in authority, or taken out of his course by a ship of war. * * * In cases of this description there must be a vis major, compelling a departure or delay, which excuses the master. So where the master is obliged to leave his course, or delay by stress of weather or other peril of the sea, or to go into port to repair or refit, or to re-man or recruit his crew disabled by sickness or reduced by casualties, or to avoid capture or to join convoy in time of war, there is no deviation. * * *

Nor is the departure from the route for the purpose of saving human life a deviation; nor is a policy avoided when the ship goes out of her course to obtain necessary medical assistance for those lawfully on board. Bond v. Brig Cora, 2 Wash. C. C. 80. Perkins v. Augusta Ins. Co., 10 Gray, 312. In this class of cases the justification does not rest on the same ground as in those previously noticed. It is allowed from motives of humanity, and cannot be extended to the saving or protection of property.' In all other cases the necessity must be a real and imperative necessity affecting the vessel, such as actual force preventing the master from exercising his will, peril of the sea, danger of capture, want of repair, disability of the crew, or unseaworthiness, occurring under such circumstances that the master, acting upon his best judgment for the interest of all parties, has no alternative, and is forced to leave his route, or delay its prosecution.”

For the reasons here stated we are of the opinion that at the time the Ada was sunk she was not upon the voyage insured by these defendants; that her returning to Gothenberg was a deviation from her route or trip, relieving the insurers.

Coming to this conclusion, it is probably unnecessary for us to consider the other clause in all of the policies excepting the one issued by the National Fire and Marine Insurance Company. That clause reads: “Warranted free from any claim arising from capture, seizure, arrests, restraints, preemption or detainments by the British Government or their Allies.”

On November 25, 1916, the Ada was stopped by a British man-of-war and taken into Stornoway' in the Hebrides, and from there to Bristol, England, where her cargo was discharged, and the vessel and cargo thoroughly searched. She was not released by the British government until about April 21, 1917. During this time of her seizure and detention by the British government, the vessel came within this clause of the policy and was at the risk of the insured for any damage or loss occasioned thereby. If she had been torpedoed during the time of capture or detention, there could have been no recovery on these policies. (Standard Oil Co. of New Jersey v. The United States, 267 U. S. 76; Queen Insurance Co. of America v. Globe & Rutgers Fire Ins. Co., 263 U. S. 487; Andersen v. Marten, App. Cases, 1908, p. 334.) It may be doubtful whether this clause followed the ship after its voluntary departure in April for Gothenberg. This trip, as before stated, was a matter of choice with the master. It was not forced upon him by the British government. True, it was compulsory in the sense that he could not sail for America until he got coal, and he could not get coal without making the trip for the British government. It is also true that his coal supply would not have given out except for the detention in Bristol. Was the loss of the vessel on June seventh, when sunk by a torpedo, due to this detention by the British government? We need not decide this question oj; express any opinion about it, as the other point disposes of these cases. It may be said, however, that the insured claims that the second voyage was occasioned by the British government; that the voyage was not voluntary; that it was forced upon the master and thus became necessary, avoiding the consequences of the deviation. If this be so and the ship at the time it was sunk was proceeding not voluntarily, but under compulsion of the British government, by forte of its orders and commands, or as a direct consequence of its restraints, then this clause does apply, and the insurance companies are not liable. We are inclined to think that the plaintiff by the position which it has assumed, to avoid the consequences of a voluntary departure from the insured* voyage, comes perilously near to making itself an*insurer under the warranty clause.

For the reasons here stated, the judgments below should be reversed, and the complaints dismissed, with costs in all courts.

Cardozo, Pound, McLaughlin, Andrews and Lehman, JJ., concur; Hiscock, Ch. J., not sitting.

Judgments reversed, etc.


text:
    Amelia K. Heck, as Administratrix of the Estate of Albert W. C. Heck, Deceased, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    Negligence — master and servant — railroads — action for death of employee — low bridge over railroad not of itself basis- for finding of negligence — duty of master discharged by warning in absence of defective construction ■—• assumption of risk — ascending grade of road making distance between rails and bridge six inches more at entrance than at farther side — insufficiency of evidence to show that decedent was struck by bridge at one side rather than the other.
    1. The fact that bridges over a railroad are low, standing by itself, does not lay the basis for a finding that the operation of the road is negligent. There must be proper warning, but, where telltales with danglers have been placed at appropriate points, the master’s duty is discharged unless there are defects of construction exaggerating the peril, and even then the servant will be taken to have assumed the risk so far as it is obvious.
    2. In an action to recover for the death of a railroad conductor, killed by striking a low bridge while riding on top of a car, the fact that, owing to ascending grade, the distance between the rails and the girders is about six inches greater at the point of entrance, on the occasion of the accident, than at the farther side, does not help the plaintiff’s case on the theory of defective construction, where there is no causal connection established between the suggested negligence and injury, there being nothing to justify a finding that the decedent was struck by the bridge at one side rather than at the other.
    3. The fact that a brakestick which decedent had held in his hand was found at or near the farther end of the bridge, which was but sixty feet in width, is insufficient to form the basis of a verdict.

      Heck v. Lehigh Valley B. B. Co., 214 App. Div. 758, reversed.
    (Argued October 16, 1925;
    decided November 24, 1925.)

      Appeal from, a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 25, 1925, affirming a judgment in favor of plaintiff entered upon a verdict.

      Thomas R. Wheeler for appellant.
    The plaintiff’s intestate assumed the risk of injury resulting from being struck by an overhead bridge. The defendant’s motions for a dismissal of the complaint should have been granted. (Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 492; Boldt v. Penn. R. R. Co., 245 U. S. 441; Southern Pacific Company v. Berkshire, 254 U. S. 415; Kanawha & Michigan Railway Company v. Kerse, 239 U. S. 576; Williams v. D., L. & W. R. R. Co., 116 N. Y. 628; Gibson v. Erie Railway Company, 63 N. Y. 449; Harrison v. N. Y. C. & H. R. R. R. Co., 195 N. Y. 86; Albring v. N. Y. C. & H. R. R. R. Co., 46 App. Div. 460; Evans v. L. S. & M. S. Ry. Co., 12 Hun, 291; Drake v. Auburn City Ry. Co., 173 N. Y. 466.) The plaintiff failed to show that plaintiff’s intestate met his death through any negligence of the defendant. (Fearick v. L. V. R. R. Co., 210 App. Div. 742.)

      Hamilton Ward for respondent.
    The question of the assumption of risk on the part of plaintiff’s intestate was
    properly submitted to and decided by the jury. (Boston & M. R. R. Co. v. Brown, 218 Fed. Rep. 625; Portland Co. v. Jarvis, 227 Fed. Rep. 8; Benton v. N. Y. C. R. R. Co., 24 App. Div. 303; Barry v. Erie R. R. Co., 209 App. Div. 848; Long v. Payne, 198 App. Div. 667; Kanawaha & M. R. Co. v. Kerse, 239 U. S. 576.) The jury had the right to find that the decedent’s death was brought about by contact with the low part of the Ellicott street bridge. (Harrison Case, 195 N. Y. 86; Marus Case, 170 App. Div. 158; Marland Case, 246 Fed. Rep. 91; Baxter Case, 228 Fed. Rep. 257; Fordham v. Grosvenor Village, 160 N. Y. 541; Stubbs v. City of Rochester, 226 N. Y. 516.)
   Cardozo, J.

The action is under the Federal Employers’ Liabihty Act for injuries resulting in death.

Heck, who was killed, was a conductor in charge of a freight train on defendant’s railroad. Spanning the tracks are two low bridges about 200 feet apart. Heck, standing on top of a car, was seen to stoop as he reached the first of the bridges. He then passed beyond the view of the watchers in defendant’s tower, and later his dead body, the neck broken, was found upon the car. The inference is permissible that he was struck by the second bridge. He had gone over the route many times before. He had in his caboose a time table furnished by the defendant to its employees warning them of the bridges located on its line. He saw the first bridge, for he avoided it. He was traveling in broad daylight, and there was nothing to obstruct his vision of the other. Telltales with danglers had been placed at appropriate points to serve as reminders of the peril (Railroad Law [Cons. Laws, ch. 49], § 71, subd. 2). In such circumstances, the fact that the bridges were low, standing by itself, would not lay the basis for a finding that the operation of the road was negligent (Harrison v. N. Y. C. & H. R. R. R. Co., 195 N. Y. 86, 91; Bell v. N. Y. R. R. Co., 168 Mass. 443). Such bridges are so common that all railroad men expect them. There must indeed be proper warning (Harrison v. N. Y. C. & H. R. R. R. Co., supra). The master’s ckity is then discharged, unless, indeed, there are defects of construction exaggerating the peril. Even then, the servant will be taken to have assumed the risk so far as it is obvious (Southern Pac. Co. v. Berkshire, 254 U. S. 415; Boldt v. Penn. R. R. Co., 245 U. S. 441).

The plaintiff argues that in this bridge there were defects of construction exaggerating the peril, and that they were unknown and invisible. As the tracks go under the first bridge, they descend a little, then run level, and then, as they approach the second bridge, ascend. As a result, the space between the rails and the girder is about six inches greater at the south end of the bridge, which on this occasion was the point of entrance, than it is at the north or farther end. The change is not abrupt or sudden. It is distributed proportionately over a space of sixty feet. The case differs in essentials from Hunter v. N. Y., O. & W. R. R. Co. (116 N. Y. 615), where in the middle of a long tunnel there was an unexpected projection five feet long. For the plaintiff, it is argued that the defendant was negligent in diminishing without warning the space available for employees engaged in work so hazardous. To this the defendant answers that in laying out its road it had no reason to believe that conductors or brakemen, mindful of a bridge, would estimate so nicely the space available for clearance. Its employees, so it argues, were not at liberty to assume, in calculating the risk to be accepted, that any such nicety of adjustment was expected or permissible. Warning of a bridge is warning of variations of the grade not substantial or ■unusual. There is no implied assurance that roadbeds are precisely level. The record does not inform us to what extent irregularities at such locations are in accord with engineering practice.

Choice between these arguments is unnecessary for the disposition of the case before us. Even if the rising grade at such a point were to be classed as negligent construction, resulting in a risk unknown and unforeseen, the plaintiff's case would not be helped. A causal connection is not established between negligence and injury. There is nothing to justify a finding that Heck was struck by the bridge at one end rather than at the other. Indeed, the jury found that he had been guilty of contributory negligence, reducing the verdict for that reason as permitted by the statute. For all that appears he was thrown down upon the car as he went into the tunnel and not as he went out. The plaintiff argues that a brakestick which he had been holding in his hand was found beneath the bridge at the north end or near by. The space between the two ends, however, was only sixty feet. We cannot say how the brakestick, dropping from the nerveless hand, was struck or thrown by the moving car. We have no reason to doubt that it could have been carried sixty feet before it reached the ground. The opposite inference is too tenuous to form the basis for a verdict.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed with costs in all courts.

His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgments reversed, etc.


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    Credit Alliance Corporation, Respondent, v. Sheridan Theatre Co., Inc., Appellant.
    Principal and agent — corporations — money had and received — fraud committed by agent for his own benefit not imputed to principal —■ check to order of corporation obtained by its president through fraud and deposited to its account but immediately withdrawn and deposited to his own account — action against corporation to recover on theory of money had and received cannot be maintained — president not agent of corporation and his knowledge cannot be imputed to it.
    1. When an agent abandons the object of Ms agency and acts for Mmself, by committing a fraud for Ms own exclusive benefit, he ceases to act witMn the scope of Ms employment and, to that extent, ceases to act as agent.
    2. Where the president of a corporation, without its authority, negotiated in its name a loan, giving therefor promissory notes of the corporation and as collateral a certificate for shares of its stock, the name of the treasurer of the corporation on both notes and certificate being forged, and receiving a cheek payable to the order of the corporation deposited it to its credit but immediately drew its check payable to his own order, on wMeh the name of the treasurer was again forged, and deposited the same to Ms own credit, the lender cannot maintain an action against the corporation to recover the amount loaned on the theory of money had and received. The money, having been immediately withdrawn by its president and converted to his own use without the corporation’s knowledge of the transaction or that the funds had ever been placed to its credit, it enjoyed no benefit and exercised no dominion over the same, and as the acts of its president were wholly unauthorized, he was not the corporation’s agent and his knowledge cannot be imputed to it.

      Credit Alliance Corp. v. Sheridan Theatre Co., 210 App. Div. 599, reversed.
    (Argued October 19, 1925;
    decided November 24, 1925.)
    Appeal from a judgment, entered December 4, 1924, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendant entered upon a verdict directed by the court and directing judgment in favor of plaintiff.

      Henry Brill and William Kaufman for appellant.
    The facts as found established that the defendant was in no way responsible for the acts of Spiegel, never exercised any dominion or control over the moneys stolen from the plaintiff nor received any benefit therefrom, and it, therefore, cannot be held liable on the theory of money had and received. (Davenport v. Palmer, 211 N. Y. 596; Miller v. Schloss, 218 N. Y. 400; Chapman v. Forbes, 123 N. Y. 532; Rosenberg v. Block, 118 N. Y. 335; Roberts v. Ely, 113 N. Y. 128; Brundage v. Port Chester, 102 N. Y. 499; National Trust Co. v. Gleason, 77 N. Y. 400; Strahl v. Fink, 132 App. Div. 12; Crown Cotton Mills v. Turner, 42 App. Div. 270; Iselin v. Chem. Nat. Bank, 6 App. Div. 534; Fowler v. Union, etc., Co., 88 Hun, 420; Com. Nat. Bank v. Mfg., etc., Co., 15 N. Y. S. R. 633.) Spiegel was acting for his own benefit in the transaction and ceased to act as an agent of the defendant, and the defendant company was not chargeable with Ids knowledge of the transaction. (Henry v. Allen, 151 N. Y. 1; Prudential Ins. Co. v. Nat. Bank of Commerce, 227 N. Y. 510; Jacobus v. Jamestown Mantel Co., 211 N. Y. 154; Brooklyn Distilling Co. v. Standard D. & D. Co., 193 N. Y. 551; Benedict v. Arnoux, 154 N. Y. 715; U. S. Printing & Litho. Co. v. Powers, 206 App. Div. 114.) Inasmuch as the defendant was innocent in the transaction, had never received any benefit from the plaintiff’s money or exercised any control over it, it should not be penalized, merely because it might have asserted a claim against its own bank.

      jHenry A. Jones and Morgan J. O’Brien, Jr., for respondent.
    Defendant actually received into its possession and control plaintiff’s check and the proceeds thereof, and, having received credit with its bank therefor, is liable for the return to plaintiff of $2,250. No subsequent fraud of Spiegel’s divested defendant of such control or abridged plaintiff’s right to recover. (Standard Steam Specialty Co. v. Corn Exchange Bank, 220 N. Y. 478; Heinrich v. First Nat. Bank, 219 N. Y. 1; Justh v. Nat. Bank, 56 N. Y. 478; Baldwin’s Bank v. Smith, 215 N. Y. 76; Cargie v. Hadley, 99 N. Y. 131; Met. Nat. Bank v. Loyd, 90 N. Y. 530; Ætna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 83; Gen. Fire Assur. Co. v. State Bank, 177 App. Div. 745; Lyons v. Union Exch. Nat. Bank, 150 App. Div. 493; King v. Bowling Green Tr. Co., 145 App. Div. 398; S. R. P. Importing Co. v. Amer. Union Bank, 122 Misc. Rep. 778; Morse on Banking [5th ed.], § 289.)
   McLaughlin, J.

This action was brought to recover money had and received. There is little or no dispute between the parties as to the material facts involved. The appeal presents a question of law only.

At the trial a jury was waived, and the question presented was submitted to the court by the consent of both parties, each agreeing that a verdict might be directed as though a jury were present. The court directed a verdict in favor of the defendant, but on appeal the judgment was reversed and a judgment directed in favor of the plaintiff.

The defendant, a .domestic corporation, had as its president one Max Spiegel, as its treasurer William F. Rafferty, and one Coombs as its secretary. Under a resolution passed by the board of directors of the corporation (the three persons named constituted all of the board of directors) it could borrow money only upon notes signed by the president and the treasurer. Spiegel, asserting that he represented the defendant corporation, applied on its behalf to the plaintiff for a loan of $2,500. The plaintiff agreed to make the loan provided it was paid a bonus of $250. This was agreed to, and thereupon Spiegel delivered to the plaintiff corporation what purported to be five promissory notes of $500 each of the defendant corporation and, as collateral security for the payment of the notes, a certificate for 100 shares of the capital stock of the defendant corporation. The notes and stock purported to be executed by Spiegel as president and Rafferty as treasurer. Rafferty never signed the notes or the certificate. His name was forged in each instance.

When the first note fell due, the same was not paid, and thereupon the plaintiff corporation brought an action in the Municipal Court of the city of New York against the defendant to recover the amount with interest. Rafferty interposed an answer on behalf of the defendant corporation alleging that his signature to the notes and the certificate was forged. Thereupon the plaintiff discontinued that action and brought this one to recover the total amount loaned, on the theory of money had and received. It appeared that when the notes and stock were delivered, the plaintiff, in exchange therefor, gave either to Spiegel or some one representing him a check for $2,250 payable to the order of the defendant corporation. This check Spiegel had certified and then he deposited it in a bank to the credit of the defendant. Almost immediately thereafter he drew a check of the defendant payable to his own order for the amount deposited, again forging the name of Rafferty. This check he deposited in a bank to his own credit.

The trial court, as above indicated, dismissed the complaint holding, as appears from the opinion, that the action could not be maintained for money had and received since the defendant had never had any benefit of the amount deposited or exercised any dominion over it, or ratified Spiegel’s act in making the deposit. The Appellate Division entertained a different view, holding that the defendant was liable because the moment the plaintiff’s check was deposited to the credit of the defendant, that moment the relation of debtor and creditor was created between the defendant and the bank. Obviously, upon the facts, this conclusion does not follow. One cannot be made a debtor any more than he can be made a creditor, except by his consent either expressed or implied. Spiegel, in making the deposit, did not act for the defendant nor did he represent it in any way. When an agent abandons the object of his agency and acts for himself, by committing a fraud for his own exclusive benefit, he ceases to act within the scope of his employment and, to that extent, ceases to act as agent. (Henry v. Allen, 151 N. Y. 1.)

Spiegel was never authorized to borrow any money from the plaintiff on behalf of the defendant. Defendant never knew anything about the transaction until long after it had occurred; it never ratified Spiegel’s act; it had no knowledge whatever either of the transaction itself or of the fact that the money was deposited to its account, unless it can be said that Spiegel’s knowledge was the corporation’s knowledge. But as his acts were wholly unauthorized, he was not the defendant’s agent and his knowledge cannot be imputed to it. (Benedict v. Armour, 154 N. Y. 715; Prudential Insurance Co. v. National Bank of Commerce, 227 N. Y. 510, 515; Brooklyn Distilling Co. v. Standard D. & D. Co., 193 N. Y. 551; Jacobus v. Jamestown Mantel Co., 211 N. Y. 154, 155; Fay v. Slaughter, 194 Ill. 157.)

The money, having been immediately withdrawn by Spiegel and converted to his own use without the corporation’s knowledge of the transaction or that the funds had ever been placed to its credit, it enjoyed no benefit and exercised no dominion over the same.

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

Hiscock, Ch. J., Cardozo, Pound, Crane, Andrews and Lehman, JJ., concur.

Judgment accordingly.