author: Kellogg, J.

text:
    In the Matter of the Application of The People of the State of New York, by Jesse S. Phillips, as Superintendent of Insurance, for an Order to Take Possession of the Property of the Casualty Company of America. In the Matter of the Claim of E. W. Bliss Company, Respondent. The Superintendent of Insurance of the State of New York, Appellant.

      (Argued January 14, 1929;
    decided March 19, 1929.)

      Charles B. McLaughlin and Clarence C. Fowler for appellant.
    The referee erred in rejecting testimony shewing that the forgings delivered by the claimant were not that well-known article of trade required by the contract, namely the three-inch Russian shrapnel shells, and showing that the steel furnished was not machineable by ordinary commercial methods. (Sanford v. Brown, 203 N. Y. 90; Industrial & General Trust, Ltd., v. Tod, 180 N. Y. 215; Simon v. Etgen, 152 App. Div. 399; Clafiin’s, Inc., v. Gerber, 214 App. Div. 242; Columbus Spa, Inc., v. Star Co., 216 App. Div. 218; Fleischman v. Furgueson, 223 N. Y. 235; Schoellkopf v. Coatsworth, 166 N. Y. 77; Moran v. Standard Oil Co., Inc., 211 N. Y. 187; Horton on Ev. 962; Gravenhorst v. Zimmerman, 236 N. Y. 22; Fuller v. Robinson, 86 N. Y. 306; Com. Exch. Bank v. Nassau Bank, 91 N. Y. 74; Dana v. Fiedler, 12 N. Y. 40; Hoe v. Sanborn, 21 N. Y. 552; Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Carleton v. Lombard, Ayres & Co., 149 N. Y. 137.)

      Eli J. Blair and George W. Field for respondent.
    The forgings did not make performance impossible. (Traylor v. Crucible Steel, 192 App. Div. 445; Downey v. Shipston, 206 App. Div. 55; Boret v. Vogelstein & Co., Inc., 188 App. Div. 605; 230 N. Y. 573; Town of North Hempstead v. Public Service Corp., 107 Misc. Rep. 19; 192 App. Div. 924; Crown Embroidery Works v. Gordon, 190 App. Div. 472; Richards & Co., Inc., v. Wreschner, 174 App. Div. 484; Krulewitch v. Nat. Importing & Trading Co., 195 App. Div. 544; Froehlich v. K. W. W. Holding Co., Inc., 116 Misc. Rep. 275 ; 201 App. Div. 855; Standard

      Silk D. Co. v. Roessler & Hasslacher Chemical Co., 244 Fed. Rep. 250; Pierson & Co. v. Mitsui & Co., Ltd., 111 Misc. Rep. 388.)
   Kellogg, J.

The claim sets up a contract between the E. W. Bliss Company and the Santo Manufacturing Company; the execution, by the Casualty Company of America, of a bond in the penal sum of $50,000 for the faithful performance of the contract by Santo Company; the non-performance by Santo Company of its contract undertaking to machine finish a stipulated quantity oforgings for Russian shrapnel shells; the performance by Bliss Company of all obligations imposed upon it by the contract; the incurrence of damages by Bliss Company in excess of $150,000; the institution of liquidation proceedings by the State Superintendent of Insurance against the Casualty Company; the entry into possession of all its assets and affairs by such Superintendent; a demand for an allowance of the claim against the Casualty Company in the sum of $50,000. The claim was filed with the State Superintendent of Insurance, who made answer denying its allegations and setting up certain affirmative defenses. The issues were sent to a referee to take proof and report. All the allegations of the claim were established without dispute, with one exception. That Bliss Company, on its part, had fully performed all the conditions and obligations imposed upon it by the contract, expressly or by implication, was vigorously controverted. After various hearings, the referee reported that while Bliss Company had performed on its part, Santo Company had breached the contract to the damage of Bfiss Company in a sum exceeding $135,000. He recommended that the claim be allowed against the Casualty Company in the sum of $50,000. The report was confirmed at Special Term. The order of the Special Term, confirming the report, was affirmed at the Appellate Division.

The contract between Bliss Company and Santo Company was expressed in writings. These consisted of a letter written by Santo Company to Bliss Company, containing offers, and a letter accepting the offers, written on August 4, 1915, by the latter to the former. The letter by Santo Company read, in part, as follows: We agree to machine finish one hundred and twenty-five thousand (125,000) three-inch (3") Russian shrapnel bodies, using forgings furnished by you, in accordance with your drawings and specifications. We will grease and pack the finished cases in ordinary shipping boxes of your design and specifications, and will deliver them f. o. b. New York or Brooklyn, at the price of one dollar and eighty cents ($1.80) each, or if delivery is called for by you to some other point we will allow freight to Brooklyn, N. Y. * * * It is understood that the forgings furnished by you will be of steel that will readily yield the following physical properties: tensile strength not less than 125,000 lbs. per sq. in. Elastic limit not less than 82,000 lbs. per sq. in. Elongation 2" not less than 10%. * * * Deliveries to be as follows: September 20,000; October 30,000; November 35,000; December 40,000.” The contract, shortly after its making, was altered to increase the number of forgings to be machined from 125,000 to 150,000 and slightly to vary the specifications as to monthly deliveries. The contract stipulation that deliveries of all machine finished forgings would be completed before December 31, 1915, remained unchanged.

On August 20, 1915, Bliss Company'and the Vickers Company, Ltd., of England, entered into a formal contract, whereby the former agreed to supply the latter, for a stipulated price, with 925,000 three-inch Russian shrapnel bodies, according to, specifications agreed upon., These specifications were identical with those governing the contract between Bliss Company and Santo Company, with the one exception that the tensile strength, elastic limit and elongation provided for by the Vickers contract was slightly less than the similar physical properties provided for by the contract with Santo Company. While the formal Bliss-Vickers contract was not executed until .after the making of the Bliss-Santo contract, negotiations therefor had been in progress long previously thereto, and the latter contract was clearly made in view of the former and to further its performance.

Prior to December 31, 1915, Santo Manufacturing Company had failed to make substantial performance of its contract obligations. In February, 1916,. Bliss Company, with the consent of the Casualty Company, extended the time for performance to April 30, 1916. On or about May 1st it notified Santo Company that it would receive from it no forgings, which had been machine finished by it after May 13th. On that date all shipments ceased. The number of forgings which had been machine finished and shipped was 46,876. It thus appears that Santo Company had then finished and delivered less than one-third of the number of forgings which it had undertaken to machine.

On the hearing before the referee abundant testimony was given by the appellant to establish the following facts: The forgings, furnished by Bliss Company to Santo Company, with respect to tensile strength, elastic limit and elongation, in general largely exceeded, in some instances by over one hundred per cent, the contract terms specifying the required minimum of such physical properties. The forgings were of chrome alloy rather than carbon steel. From these circumstances, there resulted an extraordinary hardness of the constituent metal, making it difficult, if not impossible, for Santo Company to machine finish the forgings. Tools employed by Santo Company to do the machine finishing broke under the strain of cutting. Not only did the tools consistently break, but the lathes themselves were destroyed. Other difficulties attended the work. The forgings had been unequally tempered by Bliss Company; they were alternately hard and soft. When a cutting tool struck a hard spot the forging would jump back, with the result that the tool barely scratched the surface. Oh the rebound the tool would strike deeply into a succeeding soft spot and tear up the forging. Such were the difficulties in the way of correct machine finishing that prior to February, 1916, Santo Company had finished only a small quantity of the forgings. In that month it secured permission from Bliss Company to submerge the forgings in baths of lead heated to 1,200 degrees Fahrenheit. This method of heat treatment resulted in greatly softening the metal, so that it became more readily machineable. In consequence, Santo Company was enabled greatly to accelerate and increase its deliveries to Bliss Company. However, difficulties still attended the machine finishing. These facts were established without dispute. Upon the subject of machineability the only evidence offered by Bliss Company was to the effect that a large quantity of forgings taken from the same lot as were those supplied to Santo Company had been successfully machine finished by Bliss Company.

It is the settled rule of the common law that where a manufacturer contracts to supply an article manufactured or produced by him, to be applied to a particular purpose, an implied term or warranty on his part, that the article shall be reasonably fit for the purpose, enters into or attends the contract. (Jones v. Just, 3 Q. B. 197; Hoe v. Sanborn, 21 N. Y. 552; Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Carleton v. Lombard, Ayres & Co., 149 N. Y. 137; Bierman v. City Mills Co., 151 N. Y. 482; Heath Dry Gas Co. v. Hurd, 193 N. Y. 255; Kellogg Bridge Co. v. Hamilton, 110 U. S. 108.)

In Hoe v. Sanborn (supra) it was held that a manufacturer who undertook to supply saws to be incorporated in circular saw mills manufactured by another impliedly warranted that the metal of the saws would be sufficiently hard to perform the work designed to be accomplished by the mills.

The implication of a warranty of fitness is not peculiar to the law of sales; it arises in cases of bailment. Thus, one who lets property for hire impliedly warrants that it is suitable for the purpose for which it is hired and is liable for the damages which may result from its unsuitability. (Williston on Contracts, § 1041; Vogan & Co. v. Oulton, 81 L. T. Rep. 435; Hyman v. Nye & Sons, L. R. 6 Q. B. D. 685; Fowler v. Lock, L. R. 7 C. P. 272; Hoisting Engine Sales Co. v. Hart, 237 N. Y. 30.) One who lets a horse and carriage to another, that he may take a particular journey, impliedly warrants that they are suitable for the purposes of the trip and is liable if, through the restiveness of the horse or the breaking of the carriage, the person hiring them is injured. (Hyman v. Nye & Sons, supra; Fowler v. Lock, supra.) A dealer who supplies sacks for bagging peas, in order that they may be unloaded from a ship, is liable for damages if the sacks, in the course of being hoisted, break and a bystander is injured. (Vogan & Co. v. Oulton, supra.) One who hires out a crane for the purpose of lifting heavy pipes impliedly warrants its suitability for the purpose and may not recover the stipulated rental if the boom of the crane breaks in the course of hoisting the pipes. (Hoisting Engine Sales Co. v. Hart, supra.)

These authorities make it clear that, if Santo Company had purchased forgings of Bliss Company, for the purpose of machine finishing them in order that it might itself supply the Vickers Company with finished shells, under a contract with that company similar to the contract between Vickers Company and Bliss Company, Bliss Company impliedly would have warranted the forgings to be suitable for machine finishing. We can perceive no difference in that Santo Company was to machine finish for its bailor, rather than for a purchaser from itself on whose account it had bought the forgings.

The case of Mowbray v. Merryweatlier (1895, 2 Q. B. 640) seems much in point. There a firm of stevedores contracted to discharge a cargo from a ship. The owner of the ship agreed to supply all necessary cranes, chains and other gearing reasonably fit for the purpose. One of the chains supplied was defective. It broke while being used, and, in consequence, a laborer was injured. The stevedores were compelled to pay damages to the laborer, who was one of their employees. It was held that the owner of the ship had impliedly warranted that the chain was suitable for the work in hand and was liable, upon his warranty, to reimburse the stevedores for the damages which they had paid. The only difference between the case cited and the case at bar is this: There the loan was of a tool, so that the borrower might perform work for the lender. Here the loan was of an article to be worked upon by the borrower, for the benefit of the lender. We think that, as in the one case, there was a warranty of the suitability of the tool to perform the stipulated work, so, in the other, there was a warranty that the article loaned was suitable to be worked upon, for the performance of the contract stipulation.

The learned referee expressed the opinion that while the forgings were difficult to machine, they were not unmachineable. His view seems to have been that if the forgings were machineable by any process whatsoever, no matter how difficult and expensive that process might be, Santo Company was obligated to perform the work. Impliedly, the admission is made that Bliss Company did warrant that the forgings could, by some method, be machined. We think that the warranty attaching was a promise that the forgings were machineable, not by extraordinary, but by ordinary means. The warranty in such a case is that the articles are reasonably fit for the purposes for which they were intended ” (Heath Dry Gas Co. v. Hurd, supra); that they are “ reasonably suitable for such use as was contemplated” (Kellogg Bridge Co. v. Hamilton, supra); that they are reasonably fit ” (Jones v. Just, supra). To the same effect are the following: Vogan & Co. v. Oulton (supra); Hyman v. Nye & Sons (supra); Fowler v. Loch (supra). Clearly, that which is “ reasonably ” fit to be manufactured, so that it will assume a particular shape and finish, must be fairly adapted to methods of manufacture commonly practiced. The forgings, as supplied by Bliss Company, were not, in their then condition, machineable. They became machineable, in some instances, when Santo Company, at great expense of time and money, had subjected them to a heat treatment. Even then they were machineable with, difficulty. Under these circumstances we do not think that it can be said as a matter of law that the forgings, as furnished, were reasonably fit and proper ” for machining.

The learned referee was likewise of the opinion that the difficulties in the way of machine finishing constituted no defense for the non-performance by Santo Company. He said: “ When one has made an unconditional agreement, however, difficulty of performance is not a defense for non-performance.” He overlooked the fact that, while impossibility of performance is ordinarily not a defense, such is not the case where the impossibility or difficulty of performance arises directly or indirectly from the acts of the promisee. (Dolan v. Rodgers, 149 N. Y. 489; Patterson v. Meyerhofer, 204 N. Y. 96; Cameron-Hawn Realty Co. v. City of Albany, 207 N. Y. 377.) In Dolan v. Rodgers (supra) it was said: This is upon the principle that he who prevents a thing from being done may not avail himself of the non-performance, which he has, himself, occasioned, for the law says to him, in effect : This is your own act, and, therefore, you are not damnified.’ ” In Patterson v. Meyerhofer (supra) it was said: In the case of every contract there is an implied undertaking on the part of each party that he will not intentionally and purposely do anything to prevent the other party from carrying out the agreement on his part.” It is said by Story in his work on Bailments (§ 425) that where an employer hires another to do work for him there is' an obligation to do everything on his part to enable the workman to execute his engagement.” In this instance, Bliss Company must have been well aware that the forgings furnished by it were machineable with great difficulty. It created the' difficulty by manufacturing forgings, to be supplied, which possessed a tensile strength, elasticity and elongation which were unnecessarily high. No such qualities were required to be present in the finished shrapnel shells which it had agreed to supply to Vickers & Co. Needlessly and purposely, then, it burdened the work to be performed by Santo Company with difficulty and hardship. , If Santo Company could not perform because of the difficulties created by Bifes Company, the latter company should not be heard to complain.

We think it plain that Bliss Company impliedly warranted that the forgings furnished would be reasonably fit for machine finishing. Ample proof was given by the appellant that the forgings were not thus suitable. On the other hand, proof was given by Bliss Company that it had found, by its own experience, that similar forgings were readily machineable. There was thus created a fair question of fact. It becomes necessary to inquire, therefore, whether the referee improperly excluded proof which might have elucidated the issue.

There was excluded by the referee evidence offered by the appellant that the forgings were not commercially machineable; evidence to show the effect of using chrome in steel; evidence to show what efforts Santo Company made to procure tools sufficiently hard to cut the forgings; evidence to show that other subcontractors for Bliss Company, in the manufacture of three-inch Russian shrapnel bodies, had had a similar experience as did Santo Company with similar forgings furnished by Bliss Company; evidence to show that these subcontractors, because of the hardness of the metal, were able to machine finish only a small percentage of the forgings contracted to be machined, The witness Booth testified that the forgings were absolutely unmachineable in a commercial sense. He was asked: “ What do you mean by commercial sense? ” He answered: “ Regardless of expense there might be a way devised either by using abrasive wheels or using special tools of some sort at a great expense and regardless of time and material might be removed but not commercially practicable.” The testimony thus given was stricken out upon motion, and to the ruling an exception was taken. We think that the referee was in error in excluding the evidence to which we have referred. In regard to the exclusion of proof offered concerning the experience of other subcontractors, this may be said: If proof by Bliss Company that it had successfully machined similar forgings was sufficient to create an issue of fact upon the question of machineability, then certainly proof as to the experience of others with forgings of an identical character was likewise material. On the other hand, if the proof given by the Bliss Company was not material, then there was no issue of fact as to machine-ability and the appellant was entitled to dismissal.

The appellant, in addition to claiming that Bliss Company violated an implied warranty that the forgings supplied would be reasonably suitable for machine finishing, also asserted that the forgings furnished were not the articles described in the contract. The articles agreed to be machine finished by Santo Company were three inch (3") Russian shrapnel bodies.” The appellant sought to prove that the expression Russian shrapnel bodies ” possessed a peculiar trade significance; that in the manufacturing world it was well known that such bodies were fabricated not from chrome but from carbon steel; that they were known to possess a maximum of tensile strength, elasticity and elongation which was far less than was possessed by the forgings which Bliss Company supplied. It cannot be said, as a matter of law, that the phrase had not a peculiar trade significance; neither can it be said that Russian shrapnel bodies, as that phrase is understood in the trade, were not composed of a metal which, in respect to tensile strength, elasticity and elongation, was restricted to a certain maximum. That the phrase did have a peculiar trade significance was precisely what the appellant essayed and was forbidden to show. Thus, a witness was asked: “ Were the characteristics of á Russian, shrapnel body known to the trade generally in 1915 and 1916? ” He was then asked: What is that characteristic of? What does it show? ” The witness was not permitted to answer the questions. Other witnesses were asked similar questions, but they were similarly precluded from answering. We think that in respect to these rulings the learned referee was likewise in error.

The order of the Appellate Division and that of the Special Term should be reversed and a rehearing ordered, with costs to abide the event.

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

Orders reversed, etc.


source: Caselaw Access Project

author: Kellogg, J

license: Public Domain

text:
    Tague Holding Corporation, Appellant, v. Sidney Harris, Respondent.
    (Argued February 19, 1929;
    decided March 19, 1929.)

      David Bernstein, Frederick Weiss and Jerome Weiss for appellant.
    The difference between contract price and market value at the time of the breach is not the exclusive measure of damages recoverable. (Lawrence v. Miller, 86 N. Y. 131; Higgins v. Eagleton, 155 N. Y. 466; Zicher v. Smith, 148 N. Y. 558; Levy v. Hill, 70 App. Div. 95; 174 N. Y. 536; Griffin v. Colver, 16 N. Y. 489; Witherbee v. Meyer, 155 N. Y. 446; Mortimer v. Otto, 206 N. Y. 89; Foglino v. Webster, 217 App. Div. 300; Nemrow v. Assembly C. & S. Co., 121 App. Div. 481; Hogan v. Kyle, 7 Wash. 595; Booth v. Milliken, 127 App. Div. 522; 194 N. Y. 533; Volga Realty Co. v. Holt, 104 Misc. Rep. 581.)

      Charles Lincoln Sylvester for respondent.
    Plaintiff corporation never had title to the property it agreed to convey. As it was thus never ready, willing and able to perform its obligations under the contract, the complaint should be dismissed. (Strasbourger v. Leerburger, 223 N. Y. 55; Eddy v. Davis, 116 N. Y. 247; Bernstein v. Jacobson, 129 Misc. Rep. 401; Ewing v. Wightman, 167 N. Y. 107; Reilly v. Steinhart, 174 App. Div. 265; 220 N. Y. 692; Brown v. Lee, 192 Fed. Rep. 817; Grey v. Smith, 76 Fed. Rep. 525; McGehee v. Hill, 4 Port. [Ala.] 170; Wells Fargo v. Page, 82 Pac. Rep. 856; Grandy v. McCleese, 47 N. C. 142; Mix v. Beach, 46 Ill. 311; Peck v. Brighton Co., 69 Ill. 200; Platte Land Co. v. Hubbard, 12 Colo. App. 465.)
   Kellogg, J

On August 1st, 1925, the plaintiff and Daniel R. McDonald entered into a written contract whereby McDonald agreed to sell to the plaintiff, for the sum of $45,000, a certain parcel of land at Rockaway Beach. The plaintiff was to make payments as follows: On the signing of the contract, $2,000 in cash; on the delivery of the deed, $18,000 in cash and $25,000 in the form of a bond secured by a mortgage upon the parcel sold. The plaintiff immediately paid to McDonald the item of $2,000 cash.

On August 2d, 1925, the plaintiff and defendant entered into a written contract, whereby the defendant agreed to buy from the plaintiff, for the sum of $50,500, the parcel of land contracted to be sold to it by McDonald. The defendant was to make payments as follows: On the signing of the contract, $5,050 in cash; on the delivery of the deed, $20,450 in cash and $25,000 in the form of a bond secured by a mortgage on the parcel purchased. The defendant immediately paid to the plaintiff the item of $5,050 cash.

The contract stated in express terms that the plaintiff did not own the title to the parcel; that it had merely contracted for its purchase. It also provided that the $25,000 bond and mortgage, to be furnished, should be executed and delivered by the defendant to the plaintiff's seller, McDonald. Before executing the contract, the defendant was made aware of the precise terms of the McDonald contract.

In each contract, the time named for the delivery of the deed was November 10th, 1925, and the place fixed was the office of Benjamin Kohn at Rockaway Beach. By agreement of all three parties, closing was postponed, first to November 24th at the same place, and then to December 4th. On the latter date an executive officer of the plaintiff attended at the hour and place agreed upon. He had with him, fully made out, a deed purporting to convey the parcel from the plaintiff to the defendant. Also, he had with him the corporate seal. He had been authorized to execute the instrument and to affix the corporate seal. McDonald was likewise present. He had with him a deed, which he had executed, purporting to convey the parcel to an unnamed grantee. He offered to, fill in the blank space left for the name of the grantee with the name of the plaintiff or defendant, as the plaintiff might desire. He was ready, willing and able to convey the parcel. The defendant was absent from the meeting which he had agreed to attend. When called upon the telephone, he responded that he did not intend to appear and would not take title.

The defendant’s default was deliberate and inexcusable. He was aware, when he signed the contract, that the plaintiff had contracted to buy for $45,000, of which sum $2,000 had already been paid, the very parcel which the defendant was then contracting to purchase for $50,500; that, if he defaulted, the plaintiff stood to lose the difference between $50,500 and $43,000, or $7,500, less $5,050 presently paid by the defendant, or $2,450. Thus, the gains prevented, which must have been within the contemplation of the parties, were measurable with absolute certainty. Consequently, they formed a proper basis of recovery. (Griffin v. Colver, 16 N. Y. 489; Witherbee v. Meyer, 155 N. Y. 446.) Therefore, the trial judge was correct in directing judgment in favor of the plaintiff for the sum of $2,450.

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

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

Judgment accordingly.


author: Per Curiam.

text:
    Walter Moore, Respondent, v. Charles T. Wills, Inc., et al., Appellants.
    (Argued February 18, 1929;
    decided March 19, 1929.)

      E. C. Sherwood and H. H. Brown for Charles T. Wills, Inc., appellant.
    Except in exceptional circumstances, none of which was present in the case at bar, a general contractor is not responsible for the negligence of his subcontractor. And the fact, if it was a fact, that an assistant superintendent of Charles T. Wills, Inc., complained when certain work “ was not up to the specifications ” in no wise altered the rule with respect to that defendant’s responsibility. (Hexamer v. Webb, 101 N. Y. 377; Engel v. Eureka Club, 137 N. Y. 100; Uppington v. City of New York, 165 N. Y. 222; Burke v. Ireland, 166 N. Y. 305; Parsan v. Johnson, 208 N. Y. 337; Kelly v. Mayor, 11 N. Y. 432; Herman v. City of Buffalo, 214 N. Y. 316; French v. Vix, 143 N. Y. 90; Haefelin v. McDonald, 96 App. Div. 213; Hawke v. Brown, 28 App. Div. 37; Joyce v. Convent Avenue Construction Co., 155 App. Div., 586; Sartirana v. New York County Nat. Bank, 139 App. Div. 597; Jacoby v. Browning, 105 Misc. Rep. 312.)

      Walter L. Glenney for J. Kresse Co., Inc., appellant.
    The doctrine of res ipsa loquitur was not applicable against the appellant J. Kresse Co., Inc. (Tobias v. Lewis, 182 App. Div. 598; 230 N. Y. 571; Greater New York F. Co. v. C. F. & P. Co., 97 Misc. Rep. 634.)

      Lewis Bassiano, Albert J. Rifkind and Thomas T. Reilley for respondent.
    Defendant J. Kresse Co., Inc., was identified. Its responsibility for the accident was duly established and the doctrine of res ipsa loquitur applied. (Hughes v. Harbor & Suburban Building & Savings Assn., 131 App. Div. 185; Hogan v. Manhattan R. Co., 149 N. Y. 23; Volkmar v. Manhattan R. Co., 134 N. Y. 418; Dahn v. Dawson, 90 Hun, 271; 157 N. Y. 686; Guldseth v. Carlin, 19 App. Div. 588.) The general contractor was properly held liable for negligence in the exercise of superintendence and control reserved, and as the negligence of both defendants concurred, and they are liable without apportionment, there was no inconsistency in the verdict of the jury. (Hughes v. Harbor & Suburban Bldg. & Savings Assn., 131 App. Div. 185; Slater v. Mersereau, 64 N. Y. 138; McGlone v. Angus, 248 N. Y. 197; Flanagan v. Ley & Co., Inc., 241 N. Y. 607; DeLee v. Pardy Construction Co., 249 N. Y. 106; Hancock v. Steber, 208 App. Div. 455; Wold v. Elder, 210 App. Div. 464; Burd v. Bleischer, 209 App. Div. 499.)
   Per Curiam.

The defendant Charles T. Wills, Inc., was the general contractor engaged in remodeling a building. The defendant J. Kresse Co., Inc., was a subcontractor .engaged in. concrete floor work therein. A plank fell to the street and injured the plaintiff, and for such injuries a recovery has been had against both of said defendants. The verdict against the subcontractor, J. Kresse Co., Inc., is founded upon testimony tending to establish that its employees negligently caused or permitted the plank to fall to the street. The verdict of the jury and the affirmance of the judgment by the Appellate Division conclusively established said defendant’s negligence, as the testimony presented raised a clear question of fact.

The verdict against the general contractor, Charles T. Wills, Inc., was based upon the ground that it had general supervision of the work and was negligent in not properly supervising the work as it progressed. We are of the opinion that there is no evidence which justified the submission of that question to the jury. It is not suggested that the plan was not safe and proper, or that the work was not being done in a lawful way. The work being done was not intrinsically dangerous or any more hazardous than the construction of any building on a busy street. No method of doing the work has been suggested which would make for greater safety. The negligence of the subcontractor occurred while it was acting independently of the general contractor, and the general contractor was not in any way connected with the negligent act.

As a general rule a general contractor is not responsible for the negligent acts of his subcontractor. (French v. Vix, 143 N. Y. 90; Hexamer v. Webb, 101 N. Y. 377.)

The plaintiff has failed to bring the general contractor within any exception to the general rule. The fact that the general contractor retained some limited power of general supervision for the purpose of seeing that the work was being properly done by the subcontractor, according to the plans and specifications, did not make it liable for the independent negligent act of the subcontractor. (Upping ton v. City of New York, 165 N. Y. 222; Herman v. City of Buffalo, 214 N. Y. 316.)

The judgment against J. Kresse Co., Inc., should be affirmed, with costs, and the judgment of the Appellate Division and that of the Trial Term against Charles T. Wills, Inc., should be reversed, and the complaint dismissed, with costs in all courts.

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

Judgment accordingly.


author: Lehman, J.

text:
    The City of New York, Appellant, v. The Village of Lawrence et al., Respondents.

      ((Argued February 13, 1929;
    decided March 19, 1929.)

      George P. Nicholson, Corporation Counsel (William E. C. Mayer, J. Joseph Lilly, Thomas W. A. Crowe and Robert J. Culhane of counsel), for appellant.
    The act Laws of 1928, chapter 802, is an unconstitutional legislative enactment passed in violation of article 12, sections 2 and 7, of the Constitution of the State of New York; and it is null, void and of no effect. (Schieffelin v. Warren, 224 App. Div. 115; Browne v. City of New York, 241 N. Y. 120; Matter of City of New York [Ely Avenue], 217 N. Y. 45; People ex rel. Henderson v. Supervisors, 147 N. Y. 1; Matter of Mayor, etc., of New York [Elm St.], 246 N. Y. 72; Hanrahan v. Terminal Station Comm., 206 N. Y. 494; Browne v. City of New York, 241 N. Y. 96; Adriaansen v. Board of Education, 222 App. Div. 320.) The act Laws of 1928, chapter 802, is a local law embracing more than one subject, which are not expressed in its title; and it was passed by the Legislature in violation of article 3, section 16, of the Constitution of the State of New York, and is, therefore, null and void. (Matter of Mayor, etc., of New York

      [Elm St.], 246 N. Y. 72; Economic P. & C. Co. v. City of Buffalo, 195 N. Y. 286; Parfitt v. Ferguson, 159 N. Y. 111; Rathbone v. Wirth, 150 N. Y. 459.) By section 2 of the act Laws of 1928, chapter 802, the Legislature unlawfully assumed to construe and interpret judicially section 1 of the New York city charter; and such construction and interpretation, judicial in its nature, is null and void. (Matter of Richardson, 247 N. Y. 410; Matter of State Industrial Com., 224 N. Y. 13; Matter of Hirshfield v. Cook, 227 N. Y. 297; People v. Jaehne, 103 N. Y. 182.)

      Robert J. Fox, Charles J. Nehrbas and Robert P. Schur for property owners, amici curiæ.

    Chapter 802 relates to the “ property, affairs and government ” of the city and could, therefore, only be passed on an emergency message under section 2, article 12 of the New York Constitution. (Matter of Mayor, 246 N. Y. 72; People ex rel. Rodgers v. Coler, 166 N. Y. 1; Gushee v. City of New York, 42 App. Div. 37; Van Dyke v. City of Utica, 203 App. Div. 26; Matter of Ninth Avenue, 45 N. Y. 729; Matter of Jaquino Realty Corporation v. Ormond, 217 App. Div. 76; 247 N. Y. 528.)

      Edward S. Bentley for village of Lawrence et al., respondents.
    The courts below correctly held that chapter 802 of the Laws of 1928 did not violate article 12, section 2 of the Constitution, the so-called Home Rule Amendment. (Bank of Chenango v. Brown, 26 N. Y. 469; People ex rel. Henderson v. Board of Supervisors, 147 N. Y. 1; People ex rel. McLean v. Flagg, 46 N. Y. 401; Browne v. City of New York, 241 N. Y. 96; McGrath v. Grout, 171 N. Y. 7; People ex rel. Unger v. Kennedy, 207 N. Y. 533; People v. Kerr, 27 N. Y. 188; Hunter v. Pittsburg, 207 U. S. 161; Attorney-General v. Lowry, 199 U. S. 233; Hankins v. Mayor, etc., 64 N. Y. 18; Fragley
      v. Phelan, 126 Cal. 393.) Chapter 802 of the Laws of 1928 does not violate section 16 of article 3 of the Constitution. (Astor v. Arcade Railway Co., 113 N. Y. 93; Sweet v. City of Syracuse, 129 N. Y. 316; Matter of Application of the Mayor of the City of New York, 99 N. Y. 569; People ex rel. Hayden v. City of Rochester, 50 N. Y. 525; Fort v. Cummings, 90 Hun, 481.) Chapter 802 of the Laws of 1928 does not constitute an unlawful attempt to construe and interpret judicially section 1 of the New York charter. (Mulry v. Norton, 100 N. Y. 424; O’Donohue v. Cronin, 62 App. Div. 379; Town of Hempstead v. Lawrence, 147 App. Div. 624; Bechtel v. Village of Edgewater, 45 Hun, 240; 122 N. Y. 649; Matter of City of Brooklyn, 73 N. Y. 179; Decker v. City of New York, 216 App. Div. 334; 245 N. Y. 515; People v. Board of Supervisors of New York, 16 N. Y. 424; Salters v. Tobias, 3 Paige, 338; People ex rel. Champlin v. Gray, 185 N. Y. 196.)

      M. Linn Bruce, Fred Ingraham, Jr., Raymond Ballantine and H. Stuart McKnight for the county of Nassau, respondent.
    Chapter 802 of the Laws of 1928 is presumed to be valid and constitutional, and it cannot be declared or treated as unconstitutional until it has been shown beyond reasonable doubt that it conflicts with the Constitution. (People ex rel. Henderson v. Supervisors, 147 N. Y. 1.) The enactment of chapter 802 of the Laws of 1928 was not in violation of section 2 of article 12 of the State Constitution. (People v. Kerr, 27 N. Y. 188; Hunter v. Pittsburgh, 207 U. S. 161; Browne v. City of New York, 241 N. Y. 96; McGrath v. Grout, 171 N. Y. 7; People ex rel. Unger v. Kennedy, 207 N. Y. 533; Schieffelin v. Warren, 224 App. Div. 115; People ex rel. Cuff v. City of Oakland, 123 Cal. 598; Fragley v. Phelan, 126 Cal. 383; State v. Warner, 4 Wash. 773.) Chapter 802 of the Laws of 1928 does not violate section 16 of article 3 of the Constitution. (People v. City of Oakland, 123 Cal. 598.)

      Hamilton Ward, Attorney-General (Robert P. Beyer of counsel), for the State of New York.
    The legislation in question is not special as affecting the property, affairs or government of the city of New York. (Bank of Chenango v. Brown, 26 N. Y. 467; People ex rel. Henderson v. Board of Supervisors of the County of Westchester, 147 N. Y. 1; People ex rel. McLean v. Flagg, 46 N. Y. 401; Laramie County v. Albany County, 92 U. S. 307; Kelly v. Pittsburg, 104 U. S. 78; Matter of Hollister v. City of Rochester, 41 Misc. Rep. 569; 96 App. Div. 501; 180 N. Y. 518; Reed v. Schmit, 39 Hun, 223; People ex rel. Coney Island Jockey Club v. Purdy, 152 App. Div. 175; 207 N. Y. 695; People ex rel. Welsh v. Dunn, 168 App. Div. 678; 217 N. Y. 688; McGrath v. Grout, 171 N. Y. 7.) The object of the bill was duly expressed in its title. (Economic Power, etc., Co. v. Buffalo, 195 N. Y. 286; People v. Sutphen, 166 N. Y. 163; Sweet v. Syracuse, 129 N. Y. 316; Van Brunt v. Flatbush, 128 N. Y. 50; Astor v. Arcade Ry. Co., 113 N. Y. 93; Matter of Knaust, 101 N. Y. 188; People v. Howe, 177 N. Y. 499; People v. Banks, 67 N. Y. 568; People v. Commissioners, 47 N. Y. 501; Prentice v. Weston, 47 Hun, 121; 11 N. Y. 460.)
   Lehman, J.

The boundary lines of the city of New York are described in the city charter. By chapter 802 of the Laws of 1928, entitled “ An Act to define the boundary line between the city of New York and the town of Hempstead along the eastern and southerly boundary lines of the former village of Far Rockaway,” the Legislature of the State has attempted to change the description of a boundary fine of the city. The act is, undoubtedly, special or local in its terms and in its effect, and it was not passed by the Legislature on a message from the Governor declaring that an emergency exists. The city of New York, in this action, claims that the act relates to the property, affairs or government of the city, and in the absence of such a message violates the provisions of section 2 of article XII of the Constitution of the State of New York.

A municipal corporation must from its nature have definite territorial limits. The State creates the municipality and fixes its territorial limits. Statutory description of these limits may, at times, leave room for dispute as to the exact location of a boundary line; experience may show, at times, that these territorial limits should be enlarged or restricted in the interests of the public. At such times, at least before article XII of the Constitution was adopted in its present form, the Legislature has had power to define anew the territorial limits of a city. It has used this power on several occasions in relation to the boundary line between the city of New York and the town of Hempstead (Chapter 466 of the Laws of 1901; Chapter 692 of the Laws of 1921).

The amendment of article XII of the Constitution commonly known as the Home Rule Amendment, approved by the people at the election of 1923, was intended to vest in the cities of the State increased control of their own property, affairs and government. Power to adopt and amend certain local laws relating to enumerated subjects is expressly conferred upon them. By general laws, the Legislature may confer upon them further powers of local legislation and administration. Enlargement of legislative powers by the city in relation to their property, affairs or government ” is balanced by restriction of the powers of the Legislature within the same field. In relation to such matters the Legislature may not pass any law which is special or local, either in its terms or in its effect,” except on message from the Governor declaring that an emergency exists. In relation to other matters, the provisions of article XII of the Constitution shall not be deemed to restrict the power of the Legislature.” Existing charters must continue in force “ until repealed, amended, modified or superseded in accordance with the provisions of this article.” The description of the boundaries of the city of New York contained in the charter has been modified in accordance with the provisions of article XII if the special bill passed by the Legislature does not relate to the property, affairs or government ” of the city, within the meaning of those terms as used in the Constitution.

The act passed by the Legislature, which the plaintiff challenges in this action, does more than settle the location of a disputed boundary. True, there had been disputes as to the correct line, but there can be little doubt that the line, as defined in the act, is, at least in part, a new line. A strip of land varying in width from 100 to 400 feet and approximately a mile long is declared to be part of Nassau county, and there seems to be no dispute that some of this strip was included within the limits of the city of New York, as defined in the charter. Why the Legislature saw fit to annex to Nassau county any land which had previously been part of the city of New York does not appear in the record. If the Legislature had power to pass the act, the courts may not inquire into the reasons which moved the Legislature to exercise its power. If such inquiry were permissible, we might find indications in this record that the Legislature did not act arbitrarily; for it appears that a committee appointed by the Board of Estimate of the city of New York to confer with a similar committee from the county of Nassau, for the purpose of adjusting the boundary line, agreed upon the line subsequently fixed by the Legislature. Apparently the Board of Estimate failed to accept the report of the committee appointed by it.

By express command of the Constitution, it is the duty of the Legislature to provide for the organization of cities (Article XII, section 1). Such provisions have been inserted in earlier Constitutions of the State and constitute " merely directions for the exercise of an existing authority, and not its creation.” (Bank of Chenango v. Brown, 26 N. Y. 467.) In the absence of express restrictions placed by the Constitution upon the exercise of its legislative powers, the Legislature may create or destroy, enlarge or restrict, combine or divide, municipal corporations. “ Modifications of their boundaries may be made, or their names may be changed, or one may be merged in another, or it may be subdivided and the moities of their territories may be annexed to others.” (Mt. Pleasant v. Beckwith, 100 U. S. 514; Comrs. of Laramie County v. Comrs. of Albany County, 92 U. S. 307.) They are political institutions, erected to be employed in the internal government of the State. Their power may be modified or the corporations themselves abrogated. (People v. Morris, 13 Wend. 325; Matter of Gertum v. Board of Supervisors, 109 N. Y. 170.) The State may determine the territory in which such political subdivisions of the State shall exercise the governmental powers conferred upon them (Hunter v. Pittsburgh, 207 U. S. 161) and the legislative power of the State includes complete discretion in regard to such matters. (People ex rel. Shumway v. Bennett, 29 Mich. 451; Dillon on Municipal Corporations, section 353.)

In some States the Constitution restricts the exercise of this legislative power by prohibitions against special acts creating municipal corporations or conferring upon them corporate powers. It has been held that such prohibitions render invalid a special act providing for the annexation of territory to a city (State ex rel. Attorney-General v. City of Cincinnati, 20 Ohio State, 18), but has no application to special legislation which merely detaches territory; for in the latter event no corporate powers are conferred. (Metcalf v. State, 49 Ohio State, 586.)

The constitutional provision directing the Legislature to provide for the organization of cities and incorporated villages does not in terms provide that the legislation intended to carry out the direction shall be either special or general. Other provisions of the Constitution and the history of legislation in this State may throw light upon this subject. Article VIII, section 1, provides that Corporations may be formed under general laws; but shall not be created by special act, except for municipal purposes, and in cases where, in the judgment of the Legislature, the objects of the corporation cannot be attained under general laws.” Here we have an express recognition of the power of the Legislature to create municipal corporations by special act. The express prohibition against the passage of a private bill to incorporate villages (Article III, section 18) emphasizes that no such limitation was implied in relation to the creation of cities.

The Legislature has, at times, provided by general law systems of governments for cities. (General City Law, chapter 26, Laws of 1909; Second Class Cities Law, chapter 55, Laws of 1909.) It has at times, by general law, given to cities a voice in the determination of the kind of charter which might meet their special needs. (Optional City Government Law, chapter 444, Laws of 1914.) Since the Home Rule Amendment to the Constitution, it has by general law given cities a limited power to frame their own charter. (City Home Rule Law, chapter 363, Laws of 1924.)

None of these general laws have provided for the creation of cities, but merely for their government when created. The creation of the city as a subordinate governmental agency or political institution, and the determination of the territory in which that agency should function, are matters of general public interest, and when the Home Rule Amendment to the Constitution was adopted it was the established policy of the State that the Legislature might by special act exercise its discretion in such matters.

It is difficult to perceive in that amendment any attempt to limit the powers of the Legislature in the creation of new cities or to change, in this respect, the established policy of the State. The provisions of article VIII, section 1, of the Constitution, recognizing the power of the Legislature to form corporations for municipal purposes by special act, have not been expressly repealed or amended. Limitation upon that power must be found, if at all, in the provisions of section 2 of article XII, which prohibits the Legislature from passing a special or local law “ relating to the property, affairs or government of cities,” except on message from the Governor that an emergency exists.

It may hardly be doubted that the creation of a new city and the determination of its boundaries do not relate “ to the property, affairs or government of cities ” as used in the amended Constitution. These words were used in article XII, section 2, of the Constitution before the Home Rule Amendment. Then the Legislature might enact special laws relating to such matters, but after a bill was passed by both houses, it was in such case transmitted to the mayor of the city or cities affected, for acceptance or rejection.' The intent of these provisions of the Constitution was to provide some measure of protection to a city from possible danger of ill-considered interference by the Legislature in its local affairs. Opportunity was afforded to a city to present objections before a special law relating to its property, affairs or government could become effective, but a non-existent city can have no property, affairs or government, and no officers could voice objections in its behalf. The Legislature was free to create, and did create, new cities by special law, and article XII, section 2, of the Constitution in its original form could have no application to laws passed for that purpose.

The Home Rule Amendment to the Constitution, as we have pointed out, has enlarged the legislative powers of cities and restricted the legislative powers of the Legislature within the field of matters relating to the property, affairs and government of cities. It has no operation outside of that field, nor has it changed the description of that field contained in the Constitution before the amendment. Its limits remain as they were before, and the creation of cities and definition of the boundaries of the territory under their jurisdiction remain outside of that field. Here the power of the Legislature is plenary.

The power to enlarge or restrict the boundaries of an established city is an incident of the legislative power to create and abolish municipal corporations and to define their boundaries. (Dillon on Municipal Corporations, sections 355 and 356.) Legislation relating to the boundaries of political divisions of the State is a matter of State concern, and its benefits extend beyond the limits of the property, affairs and government of the city which is affected. Indeed, though it is not uncommon in this country for a State to provide, by its Constitution or by general law, that the determination of whether a particular territory shall be embraced within a municipal corporation should be left under appropriate restrictions to the electors of the territory affected, it is at least doubtful whether a grant to a municipality of power of local legislation in matters relating to its property, affairs or government would include a power to change its boundaries. The boundaries of the territory over which a municipal corporation exercises governmental functions must be definitely fixed. (People ex rel. Underwood v. Patchogue, 171 App. Div. 347; affirmed, 217 N. Y. 466.) Without the sanction of the State, no municipality can annex or disconnect territory within the municipal boundaries. (Dillon on Municipal Corporations, section 356; City of Hastings v. Hansen, 44 Nebraska, 704.) A local law enacted by'a city compelling the annexation of territory would constitute legislation in regard to territory beyond the limits of the city’s territorial jurisdiction when the local law is passed. It would, therefore, clearly extend beyond the property, government and affairs of the city. A local law of a city which compels the disconnection of territory from the city might likewise be subject to similar objections, since exclusion from the territorial limits of the city would ordinarily result in the inclusion of the excluded territory within the jurisdiction of another governmental agency, institution or subdivision.

In the present case it is quite clear that however broad might be the power of local legislation of the city of New York in regard to its own property, government and affairs, it could not have passed the statute of which it now complains. The narrow strip of land excluded from the city of New York cannot be left outside of the governmental subdivisions of the State. Exclusion from the city of New York and the county of Queens must naturally result in inclusion in a contiguous county and town, and, of course, the city of New York has no authority to change the boundaries of other divisions of the State. Undoubtedly, therefore, the act of the Legislature relates to a matter of State concern extending beyond the field where the power of the Legislature to enact special or local laws is restricted. Nevertheless, annexation or disconnection of territory subject to the governmental jurisdiction of a city does in greater or lesser degree affect the property, affairs or government of the city. Our problem reduces itself to the determination of whether in this case, though the act relates to matters of State concern extending beyond the field of the property, affairs or government of the city, it may be said to encroach upon the field as defined in the Constitution, in which the legislative power of the Legislature is restricted.

The Constitution has defined that field in general terms. By the process of inclusion or exclusion in specific cases, the courts may gradually give to such general terms a definite meaning. Perhaps we should not attempt other form of definition when the Constitution uses general terms. (Ex parte Braun, 141 California, 204; McBain, Law & Practice of Municipal Home Rule.) Slight variations in the terms or effect of statutes may bring varying result. The language of the constitutional provision is intended to embody its spirit, and no general judicial definition of that language should enlarge or restrict either the letter or spirit of the Constitution.

The question of whether a law relating to a change of boundaries of an existing city relates to the property, affairs or government of the city has never been presented to this court. Somewhat similar questions have arisen in other States. The Constitution of California provides that cities and towns and their charters are subject to and controlled by general laws “ except in municipal affairs.” It was held that a general law permitting territory to become annexed to and incorporated with a city by the mutual action of the city and the inhabitants of such territory does not relate to municipal affairs.” (People ex rel. Cuff v. City of Oakland, 123 Cal. 598.) In New Jersey the Legislature may not by special or local law regulate the internal affairs of towns. It has been held that in spite of this constitutional restriction, “ existing lines may be changed by local and special laws.” (Miller v. Greenwalt, 64 N. J. L. 197.)

It may be that such decisions where both statute and constitutional provisions are not identical with those involved in our problem can give us little help in its solution. We cite them merely because they show that in other States constitutional provisions intended to provide a measure of home rule for municipal corporations have been held not to apply to legislative measures changing boundary lines. We have found no cases where under similar circumstances similar provisions have been given a wider scope.

In this State we have found no case where the words relating to the property, affairs or government of cities ” have been held to include legislation which does not deal directly with the internal affairs of a city or the functions of its officers, and which affects the welfare of the general public as well as the residents of a city or cities. In McGrath v. Grout (171 N. Y. 7) the courts considered the nature of laws which were entitled: "An act to make the office of (clerk of the county of Kings, or sheriff, or register, of the county) a salaried office and regulating the management of said office.” The county of Kings then, as now, was included wholly within the city of New York, and provision was made in the charter of New York for the conduct of its business. Nevertheless the State retained its sovereign right of control of the county. The law abolishing the fees of county officers consequently related to a matter of State concern. Abolition of the fees of the county officers was joined to a provision that all moneys received by the county officer shall be paid into the treasury of the city and that the expenses of conducting the office shall be a charge upon the city. To that extent, therefore, the law affected the property, affairs and government of the city. Nevertheless the court said: “ The city is only concerned with receiving the moneys and with the duty of paying the expenses connected with conducting the office. In other words, the Legislature has changed the system of compensation from fees, or commissions, to fixed salaries and thus brought the expenses of maintaining the office within the general provisions of the Greater New York charter, which have been adverted to. The act does not affect the city government, its property, or its particular affairs.” The rule in that case was carried a step further in the case of People ex rel. Unger v. Kennedy (207 N. Y. 533). There the court held that a law creating a new county within the limits of the city of New York did not relate to the property, affairs or government of the city.

Other laws which related to matters of State concern and affected the public at large have been held not to relate to- the property, affairs or government of cities, though they conferred new powers upon city officers and imposed new liabilities upon the city of New York. In Admiral Realty Co. v. City of New York (206 N. Y. 110) the validity of the Rapid Transit Act was attacked as a special city law, and the court said: It [the statute] was adopted not only for the benefit of the cities which, of course, would be affected, but of the public at large, and it confers broad powers, including that of the granting of franchises. It is a much more general law than is contemplated by the provision in question.” Again, the court held in Matter of McAneny v. Board of Estimate (232 N. Y. 377) that chapter 134 of the Laws of 1921 amending the Public Service Commissions Law did not relate to the property, affairs or government of the city of New York, though it created a Transit Commission for cities containing a population of more than one million inhabitants, and imposed upon the Board of Estimate and Apportionment the duty of appropriating such sums of money as the Commission shall certify to be necessary to enable it to perform properly the duties imposed upon it.

There are obvious distinctions between the effect of statutes under consideration in these cases and the law which the city now attacks. Nevertheless, the decisions point the way to the solution of our problem. The Constitution both before and after the Home Rule Amendment left the power of the Legislature unrestricted except in matters relating to the property, affairs and government of cities. The Home Rule Amendment, indeed, expressly provides that the “provisions of this article shall not be deemed to restrict the power of the Legislature to enact laws relating to matters other than the property, affairs or government of cities.” (Article XII, section 4.) In this case, as in the earlier cases, the law which is attacked relates to a matter of public concern, and its effect extends beyond the limited field of municipal property, government and affairs. The earlier cases establish, we think, that the power of the Legislature in relation to such matters is not restricted because , as a necessary incident the action by the Legislature may in some degree affect the property, affairs or government of a city. The constitutional amendment does not, we think, enlarge the field of restriction. (See McBain, New York Proposal for Municipal Home Rule, 37 Political Science Quarterly, 655.)

We recognize that, conceivably, in some cases the effect of a change of the boundaries of a city upon its property, affairs or government might be very serious. Disconnection of territory might render the existing form of government of a city inappropriate to meet the needs of its altered boundaries. It might place outside of the altered boundaries property of the city of substantial value. We do not now pass upon such a situation. Perhaps in determining whether a law relates to matters other than the property, affairs or government of a city we must weigh opposing considerations and classify according to the substantial effect of the statute. We do not now attempt to measure such considerations nor assign to each a relative weight, for here the incidental effect of the statute upon the property, affairs or government of the city is so slight as to be almost illusory.

We have pointed out the narrow limits of the territory which is assigned by the act to the county of Nassau. The strip of land is substantially unoccupied. It is stated in the record that “ there are no public buildings or structures of any character or any property of any nature whatsoever of the city of New York in the said territory.” It appears that there is a dirt road within the detached strip. It does not appear whether the title to the fee of the road is in the city. Such title would, in any event, be held in trust for the People of the State, and it would appear that the road is of special benefit to residents of the adjacent territory. There are no sewers in the territory, no city water pipes or city light poles or wires. Under such circumstances we hold that a law relating to a change of boundaries between a city and an adjacent town relates to a matter “ other than the property, affairs and government of cities.” Here the Legislature has exercised the sovereign legislative power of the State upon a political matter which affects not only the city but other parts of the State and the effect upon the city is confined to a slight diminution of the territory subject to its jurisdiction. Where a change in the territorial boundaries of a city brings in its train substantial change in the city’s internal affairs, its property or its government, then the problem would have a somewhat different aspect. We leave the solution of such problems till they arise.

The law provides for the repayment of taxes imposed by the county of Nassau or the town of Hempstead upon lands which are declared to be within the city of New York upon which the city of New York has also levied taxes. It further provides for the annexation to the village of Lawrence of any land which has been disconnected from the city through the new definition. These sections of the law are germane to the subject expressed in the title of the bill: “to define the boundary fine between the city of New York and the town of Hempstead.” All matters fairly and reasonably connected with the general purpose or object as expressed in the title of a local law “ and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act and are germane to the title.” (Economic Power, etc., Co. v. City of Buffalo, 195 N. Y. 286; People ex rel. Corscadden v. Howe, 177 N. Y. 499; Sweet v. City of Syracuse, 129 N. Y. 316.) The act does not violate article III, section 16, of the Constitution.

The second section of the act, providing for the refund of certain taxes by the county of Nassau, is preceded by the words: “It is hereby declared to have been the intention of the Legislature of the State of New York in heretofore establishing the boundary line between the city of New York and the town of Hempstead to fix and establish the same in accordance with the foregoing description.” The Appellate Division has certified the question whether that provision is an “ unlawful assumption of judicial interpretation of the Greater New York Charter.”

The validity of the statute defining the boundary fine between the city of New York and the town of Hempstead does not depend upon the legislative declaration that the Legislature by an earlier statute intended to fix and establish the same line. The Legislature may at its will, subject only to constitutional restrictions, change a boundary line after it has been established. The Legislature has exercised that power in this case. It has placed its own construction upon the earlier statute, but only as a preface to the provison for the refund of certain taxes by the county of Nassau. No existing rights of the city of New York are affected by this provision. Obligation thereunder is confined to the county of Nassau. Doubtless the legislative construction of the earlier statute is without binding force in any judicial proceeding. We cannot say that the Legislature has here attempted to interpose its authority upon the courts in regard to the construction of the earlier statute. In any matter brought before the courts in which rights of any party may be dependent upon the proper construction of the earlier statute, the courts are still free to place their own construction upon it, which may be contrary to the construction placed upon it by the Legislature. The validity of the provisions of the later statute does not depend upon the declaration of the legislative construction of the earlier statute. That declaration may be disregarded by the courts. (People v. Board of Supervisors of New York, 16 N. Y. 424.)

In this case we are not advised of any lack of power in the Legislature to enact all the provisions of the act, though the line defined by the act be a new fine rather than a more accurate definition of an old line. No private rights as distinguished from political rights are affected or created by any provision of the act except possibly the right to recover taxes assessed by the county of Nassau upon land included in the city of New York. If a new obligation is created against the county of Nassau, it does not complain and we are not at the present time called upon to determine whether it might do so if it chose. Indeed, there is not in this record any claim or evidence that any land is now included in the city of New York which was not within its territory under the charter description. It follows that even if the Legislature had unlawfully assumed to give a judicial interpretation to the New York charter, the validity of its action in giving a new definition to the boundaries of the city cannot be challenged on that ground. The answer to the fourth question certified by the Appellate Division is, therefore, not decisive of the appeal.

The order should be affirmed, with costs, and the first, second and third questions certified answered No; ” fourth question not answered.

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

Order affirmed, etc.


text:
    In the Matter of the Application of the People of the State of New York, by James A. Beha, as Superintendent of Insurance, for an Order to Take Possession of the Property of Second Russian Insurance Company. In the Matter of the Application of Second Russian Insurance Company, Appellant; The Superintendent of Insurance of the State of New York, Respondent.
    (Argued March 18, 1929;
    decided March 26, 1929.)

      Robert J. Sykes and Paul Bonynge for appellant.
    The right of the Second Russian Insurance Company to appear as a suitor in the courts of this State has been conclusively settled. (James & Co. v. Second Russian Ins. Co., 239 N. Y. 248; Murphy v. Second Russian Ins. Co., 240 N. Y. 554; Matter of People by Beha v. Second

      Russian Ins. Co., 243 N. Y. 524; Behre v. Second Russian Insurance Co., 223 App. Div. 883.) The Appellate Division erred in denying the authority of the directors of the Second Russian Insurance Company. (James & Co. v. Rossia Ins. Co., 247 N. Y. 262; Joint Stock Co. v. Nat. City Bank, 240 N. Y. 368; Russian Reinsurance Co. v. Stoddard, 240 N. Y. 149; First Russian Ins. Co. v. Beha, 240 N. Y. 601; James & Co. v. Second Russian Ins. Co., 239 N. Y. 248; Matter of People by Beha v. Northern Ins. Co., 223 App. Div. 710; Matter of Russian Reinsurance Co., 223 App. Div. 378.)

      Frederick B. Campbell and Paul C. Whipp for Russian Reinsurance Company et al., amici curiæ.

    It is not the law, as held by the court below, that these Russian insurance corporations which have heretofore transacted business in this State long subsequent to the Russian Revolution with the approval of the Superintendent of Insurance, do not exist even for the purposes of suit and that their surviving directors have no authority to authorize attorneys here to appear for them in the protection of their interests in the funds now in the custody of the Superintendent of Insurance. (Russian Reinsurance Co. v. Stoddard, 240 N. Y. 149; First Russian Ins. Co. v. Beha, 240 N. Y. 601; Joint Stock Co. v. Nat. City Bank, 240 N. Y. 368; Moscow Machine Co. v. Richard, 240 N. Y. 707; James v. Rossia Insurance Co., 247 N. Y. 262.)

      Chester B. McLaughlin and Clarence C. Fowler for respondent.
    The former directors had no authority whatever to commence this proceeding for the company, nor to execute the alleged retainer. (Severnoe Securities Carp. v. Westminster Bank, Ltd., 214 App. Div. 14; Andre v. Beha, 211 App. Div. 380; 240 N. Y. 605; South-worth v. Morgan, 205 N. Y. 293; Electric Fireproofing Co. v. Smith, 113 App. Div. 615; Galland v. Shubert Theatrical Co., 105 Misc. Rep. 185; Banque Internationale v. National City Bank, 133 Misc. Rep. 515.)
   Per Curiam.

A. deSevaux, M. Miller and S. Savitch, who had been directors of the Second Russian Insurance Company before its seizure by the Soviet government, petitioned the court, in the name of the Second Russian Insurance Company, through Bonynge & Barker, attorneys, asking relief as to surplus funds of the Second Russian Insurance Company held by the Superintendent of Insurance of the State of New York. The petition prays for an adjustment of the claims of foreign creditors and payment of the surplus to the petitioner, the Second Russian Insurance Company, or such other relief as to the court seems just and equitable. These Russian insurance companies have heretofore appeared in court, through persons similarly situated as these directors, for the purpose of preserving the property, in this State, of the companies. (James & Co. v. Rossia Insurance Co., 247 N. Y. 262.)

The Attorney-General, in a separate proceeding, has required the attorneys to show their authority to appear for the Second Russian Insurance Company, and the Appellate Division has determined that they and the three directors have no authority to make such petition. The petition and all the papers served in connection therewith have been stricken from the record and the proceeding thus finally terminated.

In view of what has heretofore been decided, the three named directors at least had sufficient standing or apparent authority, under all the circumstances, to petition the court for some equitable relief regarding these funds. We by no means intimate that they personally could receive them on behalf of the Second Russian Insurance Company. (Russian Reinsurance Co. v. Stoddard, 240 N. Y. 149.) However, the Second Russian Insurance Company, its creditors or stockholders, are entitled to these moneys and they cannot ,be held in perpetuity by the Superintendent of Insurance. Some plan or scheme may be devised for their proper disposition. We see no legal objection to these directors applying to the court for the payment of the foreign creditors, if any, and suggesting any other means for the proper disposition of the funds. The merits of such application are in no way before us on this appeal.

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

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

Ordered accordingly.


author: Pound, J.

text:
    The People of the State of New York ex rel. Rufus L. Perry et al., Appellants, v. Charles W. Berry, as Comptroller of the City of New York, Respondent.
    (Argued March 20, 1929;
    decided April 16, 1929.)

      Ephraim Berliner, Joseph J. Zeiger, Rufus L. Perry and Leo Guzik for appellants.
    The assignment was valid and compensation proper. (People ex rel. Acritelli v. Grout, 87 App. Div. 193; 177 N. Y. 587.)

      George P. Nicholson, Corporation Counsel (J. Joseph Lilly, Willard S. Allen and George H. Cowie of counsel), for respondent.
    The specific requirements of the Code must be substantially complied with. It must appear that the accused is without counsel and having been “ asked if he desired the aid of counsel,” expressed himself in the affirmative. (People ex rel. Van Doren v. Prendergast, 214 N. Y. 16.)
   Pound, J.

On March 12, 1928, the County Court of Kings county made an order directing the Comptroller of the city of New York to pay the relators the sum of five hundred dollars each for services as assigned counsel for the defense on the trial of Fred Lacey, who had been indicted on a charge of murder in the first degree. The Comptroller declined to comply with the order on the ground that it had been improperly obtained and that the court was without jurisdiction to make it. The Special Term granted a peremptory order of mandamus directing payment. The Appellate Division reversed and denied the motion, sustaining the Comptroller in his contention.

Code Criminal Procedure, section 308 provides:

“ If the defendant appear for arraignment without counsel, he must be asked if he desire the aid of counsel, and if he does the court must assign counsel. When services are rendered by counsel in pursuance of such assignment in a case where the offense charged in the indictment is punishable by death * * * the court in which the defendant is tried or the action or indictment is otherwise disposed of * * * may allow such counsel his personal and incidental expenses upon a verified statement thereof being filed with the clerk of such court, and also reasonable compensation for his services in such court, not exceeding the sum of one thousand dollars.”

Two irregularities are relied on as showing an absence of jurisdictional facts in Lacey’s application under this section.

First. Lacey did not appear for arraignment without counsel. He was represented by Mr. Perry, one of the relators, on arraignment on January 19, 1928, when a plea of not guilty was entered in his behalf. This objection was held insufficient in People ex rel. Acritelli v. Grout (87 App. Div. 193; affd., on opinion below, 177 N. Y. 587). When counsel is assigned on a proper application, whether at the arraignment or subsequent thereto, and takes part in the defense, he falls sufficiently within the general scope of the section to be entitled to his compensation.

Secondly. It does not appear that at any later stage of the case Lacey appeared without counsel and was asked by the court if he desired the aid of counsel. This is what does appear. Lacey on February 27, 1928, made his affidavit in which he said:

That I am wholly destitute of means with which to employ counsel to defend me upon the trial of said indictment, or to pay such incidental expenses as may be incurred in the conduct of my defense.

“ I therefore respectfully request that the Court assign counsel to aid me in making my defense herein.”

Whereupon, on the same day, the court made the order assigning counsel, which contains the following recital:

The defendant having appeared upon arraignment without counsel, and having been asked by the court if he desired the aid of counsel, and the defendant having stated that he does require counsel, and on reading and filing the affidavit of said Fred Lacey, verified the 27th day of February, 1928, whereby it appears that said defendant is wholly destitute of means to employ counsel or to defray the incidental expenses of his trial on said indictment, now, pursuant to the provisions of section 308 of the Code of Criminal Procedure, * * * ”

The irregularity complained of has been held fatal to the allowance of counsel fees on the authority of People ex rel. Van Doren v. Prendergast (214 N. Y. 16). The cases are quite different. In the Van Doren case nothing appeared to indicate that the accused had made a request for counsel or even that he knew that counsel had been assigned. Here it plainly appears that after arraignment Lacey asked the court to assign counsel on the ground that he was wholly without means to employ counsel. The court might have inferred from such statement and request that he had no counsel. When a defendant informs the court that he is without means to employ counsel and asks to have counsel assigned, it is as if the court had followed the ceremonial form and had asked him if he was without counsel and with the desire to have the aid of counsel. No formula is required if the jurisdictional -facts are sufficiently brought to the attention of the court.

Some point is made of the circumstance that Lacey had had counsel in the person of Mr. Perry on and before the arraignment and that it could not be inferred that Mr. Perry had ceased to act for him in the absence of Lacey’s express statement to that effect. The facts are similar in this respect to the Acritelli case where a minority of the Appellate Division dissented on the ground that the prisoner had appeared by counsel before the court assigned counsel. The objection was held to be of no substance.

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

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

Ordered accordingly.


author: Cardozo, Ch. J.

text:
    In the Matter of Edward J. Reilly, Respondent, v. Charles W. Berry, as Comptroller of the City of New York, Appellant.
    (Argued March 20, 1929;
    decided April 16, 1929.)

      George P. Nicholson, Corporation Counsel (J. Joseph Lilly, Willard S. Allen and George H. Cowie of counsel), for appellant.
    The respondent is not entitled to payment, as a county charge, of the sum of fifty dollars disbursed by his jewelry experts. (People ex rel. Cantwell v. Coler, 61 App. Div. 598; 168 N. Y. 643; People ex rel. Van Doren v. Prendergast, 214 N. Y. 16.) The respondent is not entitled to payment as a county charge of the sum of fifty-five dollars for the services of investigators. (Matter of Waldheimer, 84 App. Div. 336; People ex rel. Van Zandt v. Prendergast, 157 App. Div. 486; People ex rel. Cantwell v. Coler, 61 App. Div. 598; People ex rel. Rand v. Craig, 231 N. Y. 216; People ex rel. Manley v. Craig, 231 N. Y. 574; People ex rel. Smyth v. Craig, 231 N. Y. 575; People ex rel. Goodwin v. Coler, 48 App. Div. 492.)

      Edward J. Reilly, respondent, in person.
    Respondent is entitled to payment as a county charge of the sum disbursed in payment of two jewelry experts and for personal and incidental expenses arising out of the conduct of this trial. (People ex rel. Acritelli v. Foster, 81 N. Y. Supp. 212; People ex rel. Acritelli v. Grout, 87 App. Div. 193; 177 N. Y. 587; People v. Di Medicis, 80 N. Y. Supp. 212; People ex rel. Roth v. Fitch, 51 N. Y. Supp. 683; People v. Nelson, 188 N. Y. 234; People ex rel. Cantwell v. Coler, 61 App. Div. 589; 168 N. Y. 643; People ex rel. Hicks v. Berry, 221 App. Div. 350.) The respondent is entitled to payment as a county charge of the sum of fifty-five dollars for the service of investigators. (Matter of Waldheimer, 84 App. Div. 366.)
   Cardozo, Ch. J.

The petitioner was assigned by the court as counsel for the defendant in a prosecution for murder in the first degree. Thereafter a certificate was granted by the judge presiding at the trial for the payment to counsel of compensation for services and expenses. Included in the expenses was an item of $55 paid to detectives who had been employed to investigate the character of a witness for the People and an item of $50 paid to jewelers who gave testimony as experts concerning the quality of a ring. The Comptroller declined to honor the certificate in so far as it called for the payment of -these items upon the ground that to that extent it was in excess of the jurisdiction of the judge who made it. A petition for a mandamus followed. The Supreme Court at Special Term granted the petition as to the first item, but denied it as to the second. The Appellate Division' held upon cross-appeals that both items were proper, and as to both granted a mandamus. The Comptroller, seeking a construction of the statute, has appealed to this court.

Code of Criminal Procedure, § 308, provides that in a capital cause the court in which the defendant is tried may allow to an assigned counsel his personal and incidental expenses upon a verified statement thereof being filed with the clerk of such court, and also reasonable compensation for his services in such court, not exceeding the sum of one thousand dollars.”

The section was amended in 1918 (L. 1918, ch. 242) by adding a provision that in any case in which experts may be employed as witnesses and in case it shall appear to the satisfaction of the court or a judge thereof that the defendant is not financially able to employ experts, the court to which the indictment is presented or sent or removed for trial or a judge or justice thereof may direct the employment of expert witnesses for the defendant in number not exceeding the number sworn or to be sworn for the prosecution at an expense in the aggregate of not exceeding the sum of five hundred dollars,” which sum was increased to ten hundred dollars by an amendment of later date (L. 1924, ch. 433).

At common law, service as assigned counsel was given without pay (People ex rel. Karlin v. Culkin, 248 N. Y. 465, 471). So it still is, except in criminal actions where the offense charged in the indictment is punishable by death (Code Crim. Proc. § 308). Requital has its origin and measure in the provisions of the statute.

(1) Payments to detectives employed to investigate and report as to the character of a witness are not the personal and incidental expenses ” of counsel, though paid out of his purse. The scope of the statute may have been uncertain at the outset. Judicial construction has combined with long-continued practice to narrow and define it. The section was first considered by this court in People ex rel. Cantwell v. Coler (61 App. Div. 598; affd., on opinion below, 168 N. Y. 643). In that case, decided in 1901, we held that there could be no allowance for the services of expert witnesses whom counsel had employed and paid. The payments, it was said, “ were undoubtedly expenses of a trial, such as would ordinarily be borne by a party to an action.” They were not expenses incidental to the distinctive services of counsel. The personal and incidental expenses for the payment of which provision is made are such as relate to those incurred by counsel on his personal account.” Traveling expenses incurred in attendance at the court, printing charges for the preparation of a brief in accordance with the rules, these are illustrations of disbursements within the purview of the statute. In line with that construction are decisions excluding payments to assistants employed to investigate the facts (Matter of Waldheimer, 84 App. Div. 366), and payments to consultants employed to examine a defendant and advise as to the defense (People ex rel. Van Zandt v. Prendergast, 157 App. Div. 486). The amendment of 1918 which made allowance for the fees of experts, but only under strict conditions, is a recognition by the Legislature of the correctness of the ruling that such expenses were not covered by the statute unamended. Bills for detectives like those for experts mount often into large figures. The State has charged its civil subdivisions with a restricted liability for the services of counsel. It has not charged them as an incident with an unrestricted liability for the services of others, not counsel, employed at a price to ferret out the evidence available against it. “Only clear warrant of law will justify the assumption of a power to control the public purse ” (People ex rel. Rand v. Craig, 231 N. Y. 216, 221).

(2) Error also was "committed in the allowance of the fees of experts.

The statute imposes two conditions before the fees of experts may be made a charge upon a county. The court or a judge thereof must direct the employment of the witnesses. The number must not exceed the number sworn or to be sworn for the prosecution. Neither condition was obeyed. The direction for the employment of experts should have been entered in the court’s minutes or else embodied in a written order signed by the presiding judge (Civ. Prac. Act, § 127; Gen. Constr. Law [Cons. Laws, ch. 22], § 28-a, as amended by L. 1920, ch. 917). Only thus is there a record that is proof against uncertainty. We add, in passing, that even an oral direction the most informal was lacking in the case at hand. If that defect were disregarded, another would remain. No expert witness was called for the prosecution, nor was there ever any thought or expectation that the prosecution would stand in need of such a witness. The order, even if granted retrospectively, would thus violate the statute. The Legislature had in mind what is a matter of common knowledge, that upon the trial of certain issues, such as insanity or forgery, experts are often necessary both for prosecution and for defense. In these and like cases, a defendant may be at an unfair disadvantage if he is unable because of poverty to parry by his own witnesses the thrusts of those against him. The statute restores the balance, and makes the two contending forces equal. If in fairness it should go farther, it has not done so yet.

The order of the Appellate Division and that of the Special Term should be reversed, and the application for a mandamus denied, without costs in any court.

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

Orders reversed, etc.


text:
    The Bradford Company et al., Appellants, v. James H. Dunn, Respondent.

      (Argued March 20, 1929;
    decided April 16, 1929.)

      George H. Engelhard for appellants.
    The power of attorney, exhibited to the Bradford Company before the contract was finally executed, held out the agents as authorized jointly to sign contracts for the purchase of horses. Under a reasonable construction, and in the light of the circumstances then known to the Bradford Company’s officers, that power meant that the agents were authorized to make, by their joint signatures, a contract binding on the defendant and that the Bradford Company need not inquire of the principal whether he approved of the terms agreed upon by his agents. (Forges v. U. S. Mortgage & Trust Co., 203 N. Y. 181; Very v. Levy, 13 How. [U. S.] 345; Evans v. Frenn, 93 App. Div. 346; Winne v. Niagara F. F. Ins. Co., 91 N. Y. 185; Matter of McArthur, 173 App. Div. 517; Sarasohn v. Kamaiky, 193 N. Y. 214; First Nat. Bank of Trenton v. Gary, 63 Mo. 33; Netherlands v. Dunn, N. Y. L. J. Dec. 27,1917.) None of the cables introduced in evidence by the defendant were shown to have been communicated to the Bradford Company. They were, therefore, purely private instructions from principal to agent and could not be used by the defendant to limit as against the Bradford Company the scope of the written power exhibited to the Bradford Company. Moreover, they do not, in fact, contain any limitation on the agents’ power to contract. On the contrary, they show defendant’s realization that he would be bound by a contract signed by his agents. (N. Y. Car Advertising Co. v. Morris Park, 222 N. Y. 552; Lowenstein v. Lombard, 164 N. Y. 324; Newman v. Lee, 87 App. Div. 116; Diamond Soda Water Co. v. Hegeman, 74 App. Div. 430.)

      C. Frank Reavis, Jr., and Martin D. Jacobs for respondent.
    The language of the power of attorney in itself and particularly when considered in the light of the context of the power and of the unusual circumstances surrounding its execution, relates merely to the “ form and manner ” of executing contracts whose terms had been approved and not to the inherent power to make a contract. Such a construction effectuates the purposes of the agency. (Catholic Foreign Mission Society v. Oussani, 215 N. Y. 1; Craighead v. Peterson, 72 N. Y. 279; Forges v. U. S. Mortgage & Trust Co., 203 N. Y. 181; Jacoby & Co. v. Paysom & Adams, 91 Hun, 480; Esdaile v. La Nauze & Heyland, 1 Y. & C. 394; Stokes
      v. Dewees, 24 Penn. Supp. 471; Henry v. Lane, 128 Fed. Rep. 243; U. S. National Bank v. Herron, 73 Ore. 391; Golinsky v. Allison, 114 Cal. 458; Story on Agency, § 68; Hayes v. Ammon, 90 App. Div. 604; Bowen v. Woodfield, 33 Ind. App. 687; Johnson v. American Freehold Land Mortg. Co., 111 Ga. 490.) The context of the power of attorney and the unusual circumstances attending this execution show that the respondent merely intended to delegate ministerial tasks to his agents. (Dunning & Smith v. Roberts, 35 Barb. 463; Trevor v. Wood, 36 N. Y. 307; Johns v. Obscanska, Zalozna, Karline, 212 N. Y. Supp. 557; Selma Savings Bank v. Webster County Bank, 182 Ky. 604; Dykens v. Townsend, 24 N. Y. 57; Moody v. Smith, 70 N. Y. 598; Cohen v. Walker & Co., Inc., 192 N. Y. Supp. 228; Union Bag & Paper Corp. v. Bischoff, 255 Fed. Rep. 187.) The cables put in evidence by the appellant as “ aiding in the construction of the power of attorney ” and those offered by the respondent affirmatively show that the agents had no authority to make the contract put in evidence, but that, to the contrary, respondent retained full control of, and direction over, the negotiation and making of any contract for horses, and that the respondent refused to authorize a provision for the confirmation of the purchase price by a banker, as set forth in the alleged contract. (Apostalico v. Fish, 168 N. Y. Supp. 524; Gratan v. Metropolitan Life Ins. Co., 92 N. Y. 274; Lexow v. Belding, 72 App. Div. 446; Bendingen Manufacturing Co. v. Royal Trust Co., 90 App. Div. 267; Warfield v. Wire Wheel Corp., 107 Misc. Rep. 528; 191 App. Div. 899.)
   Lehman, J.

The plaintiff has brought an action for damages caused by breach of a contract dated May 5th, 1915, and annexed to the complaint. The defendant denied that he entered into the contract. The instrument was signed on behalf of the Bradford Company by its vice-president, and was signed in behalf of the defendant, James H. Dunn, by E. E. Borcham and Frederick R Swift, attorneys in fact. At the trial the court sustained the defendant’s objection to the introduction in evidence of the alleged contract on the ground that the plaintiff had failed to show that the defendant had authorized its execution.

On April 22d, 1915, the defendant, in London, executed a power of attorney which authorized Ernest Eugene Borcham and Frederick R. Swift to jointly sign contracts and agreement relating to the purchase of horses and sign or endorse all or any Bills of Lading and other shipping documents relating to the carriage of horses in the United States of America or elsewhere made out in the name of the undersigned * * * and jointly to do everything relating to such Bills of Lading and other Documents as they may think necessary or desirable,” etc.

The agents named in the power of attorney exhibited it to the Bradford Company. Then they signed and delivered the contract upon which the plaintiff sues. Under the terms of the contract the defendant agreed to purchase twenty thousand horses from the Bradford Company, to be paid for by the National City Bank against delivery of railroad bills of lading. The defendant agreed that the bank would confirm in writing that it would pay the purchase price against delivery of such documents. Each party also agreed to furnish to the other a bond in the sum of $250,000 for the performance of the contract. The contract recites that the defendant had agreed to furnish twenty thousand horses to be delivered to the government of France, and the Bradford Company agreed to deliver horses which would conform to certain printed specifications for French horses and which shall have passed the inspection required by the French government. In certain contingencies the defendant agreed to purchase, and the Bradford Company agreed to sell and deliver, twenty thousand additional horses for the use of the government of France.

The defendant, though he gave to designated agents power “ to jointly sign contracts or agreements relating to the purchase of horses,” now maintains that the power to sign ” a contract does not include the power to enter into a binding contract in his behalf. It is said that a contract cannot be signed ” until there has -been agreement upon its terms, and that the power to sign a contract does not include the power to agree upon its terms or to deliver the contract after it has been signed as to the authoritative embodiment of terms previously agreed upon. Plainly, such a narrow construction of the language of the power would defeat its apparent purpose. In effect, the defendant is contending that though he authorized his agents to sign contracts for him, he did not intend to bestow upon them any power to bind him by their signature. Unless the signing is intended to evidence a completed contract and to embody its terms, it is a futile act. All prior negotiations become embodied in the writing when both parties sign a written contract. The defendant in England bestowed upon his agents power to attest by their signature a contract made in his behalf in the United States. No other meaning can fairly be given to the language of the power of attorney. He might instruct his agents as to the circumstances -under which they might exercise the power, but he chose to place no limitation upon their apparent power to sign contracts or agreements relating to the purchase of horses. He clothed his agents with apparent power to determine what contracts or agreements they would sign. He assumed the risk that they might sign contracts into which he would not be willing to enter. Having bestowed upon them an apparently unlimited power to attest in his behalf by their signature the terms of a written contract, he cannot now, urge that he had not approved of the terms, or that he .did not intend that the signature which they were authorized to append to the contract should have the usual effect of embodying in the writing a completed agreement.

The written power of attorney signed by the defendant and exhibited to the Bradford Company was sufficient evidence of the authority of the defendant’s agents to sign the contract for the purchase of the horses, as a written agreement binding upon the defendant. The burden then rested upon the defendant to produce evidence which would show not only that the defendant had limited the authority conferred by the power of attorney but that such limitations were brought to the attention of the Bradford Company.

Catholic Foreign Mission Society v. Oussani (215 N. Y. 1, 5) holds nothing to the contrary. A corporation was organized under the Membership Corporations Law (Cons. Laws, ch. 35) which contained a provision that all sales and purchases of land should be authorized by a two-thirds vote of the directors. A resolution, adopted by the board, not in view of any particular transaction, not as a power of attorney to be exhibited, but merely as an incident of the internal management of the corporation, was to the effect that the president has authority to sign and execute all documents.” We held that this did not mean that he could negotiate a sale of land. To have held otherwise would have been to abrogate the statute, and give him all the powers vested in the board. There was no evidence that the other party to the contract had seen the resolution, or acted on the faith of it.

Before the contract was signed by the defendant’s agents, the agents sent to the defendant and received from him a number of cablegrams concerning the purchase and shipment of horses to meet the defendant’s engagements to the government of France. After the trial judge ruled that the language of the power of attorney was not sufficiently broad to confer upon the agents named therein authority to bind the defendant, the plaintiff introduced in evidence four of these cablegrams in order to show that the defendant understood and intended that the agents should have such authority. Then the defendant introduced in evidence other cablegrams that had passed between the same parties which might explain the cablegrams introduced by the plaintiff. It was not shown that any of these cablegrams were shown to the Bradford Company before the contract was signed.

These cablegrams are sufficient to remove any possible doubt that the defendant intended that the language of the power of attorney should be given its ordinary meaning, and that the signature to a contract by his agents in the United States should result in the creation of a contract binding on him. There are, it is true, some expressions in the cablegrams from the defendant which might be considered as instructions to his agents to consult him before they actually signed any contract. It is at least doubtful whether such instructions were intended to limit the authority of the agents if, nevertheless, they chose to sign a contract without first obtaining from the defendant approval of its terms. In the absence of evidence that the cablegrams were shown to the Bradford Company, even ' express limitations contained therein could not affect the plaintiff. Parties dealing with the agents might rely upon the written power of attorney exhibited to them.

After the contract was signed, the defendant seems to have objected to the terms of the contract which called for a confirmation by the bank that it would pay for the horses, and also for a surety bond. Now the defendant urges that such terms are so extraordinary .that even an agent with general authority to contract could not agree to them. A contract made here through agents with an individual in England calling for the sale and delivery of twenty thousand horses to be shipped in war time to the government of France is obviously an unusual contract, but concededly the agents had authority to at least sign ” such a contract containing no unreasonable terms. We cannot say that the terms inserted in this unusual contract are on their face unreasonable or extraordinary.

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

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

Judgments reversed, etc.