text:
    Henry S. Hotaling, Respondent, v. A. B. Leach & Co., Inc., et al., Appellants.
    Sale — fraudulent representations —damages —■ purchase of bond for investment on broker’s false representations — purchaser entitled to recover proximate loss — no inference that property was not worth more arises from price for which it was sold by receiver — existence of market where purchaser might have sold does not break continuity of cause and effect — proper measure of damages — participation in plan of reorganization — purchaser not bound to take further risk.
    1. In an action to recover damages sustained by plaintiff through the purchase of a bond for investment, induced by fraudulent representations, the plaintiff is entitled to recover the loss which is the proximate result of the fraud that induced the investment. The proximate loss is the difference between the price he paid and the value of what he received when put to the use contemplated by the parties.
    2. The price for which the bonded property was sold more than two years thereafter leads to no inference that it was worth no more when plaintiff purchased his bond especially where other evidence establishes that its value was much greater at that time.
    3. Plaintiff having purchased for investment, the' existence of a market where he might have sold does not break the continuity of cause, and effect between the original deceit and the ultimate loss. He was not bound to sell.
    4. Where, therefore, some two years after plaintiff purchased his bond, the corporation went into the hands of a receiver who sold the property covered by the trust indenture for an amount, the distributive share of which due plaintiff was but a small part of his investment, the trial judge properly measured the damages by deducting from the price paid for the bond, with interest from the day of payment, the amount which the plaintiff was entitled to receive upon the sale of the property and the interest which was paid to him upon his bond before the sale.
    5. A contention that the plaintiff’s loss should not be fixed by the amount which the plaintiff was entitled to receive upon distribution of the proceeds of the sale of the property covered by the trust indenture, since he chose to participate in the plan of reorganization, cannot be sustained where participation in that plan was dependent upon a further investment. The plaintiff was entitled to take or refuse the opportunity of possible profit, with its attendant risk of possible loss.

      Hotaling v. Leach & Co., 221 App. Div. 756, affirmed.
    (Argued December 7, 1927;
    decided January 10, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 10, 1927, affirming a determination of the Appellate Term which affirmed a judgment of the Municipal Court of the city of New York in favor of plaintiff.

      Harold H. Corbin, Elmer W. Maher and Charles E. Gately for appellants.
    The determination that the plaintiff suffered damage in the difference between the price of the bond and the amount received therefor violates the well-fixed rule of damages in actions for deceit. (Reno v. Bull, 226 N. Y. 546; Falk v. Hoffman, 233 N. Y. 199; Foster v. Di Paolo, 236 N. Y. 132; Ochs v. Woods, 221 N. Y. 335; Urtz v. New York Central & H. R. R. R. Co., 202 N. Y. 170; Hussey v. Flanagan, 237 N. Y. 227; Jones v. Morgan, 90 N. Y. 4; Duryea v. Zimmerman, 121 App. Div. 500.)

      Charles H. Kelby, John B. Doyle and A. Gordon Murray for respondent.
    The measure of damages was correct. (Industrial & General Trust, Ltd., v. Tod, 180 N. Y. 215; Gould v. Cayuga County National Bank, 99 N. Y. 33; Wakeman v. Wheeler & Wilson Manufacturing Co., 101 N. Y. 205; Foster v. Di Paolo, 236 N. Y. 132; Smith v. Duffy, 57 N. J. L. 679; High v. Berrett, 140 Penn. St. 261; Jordan v. Decorative Co., 230 N. Y. 522.)
   Lehman, J.

In January, 1920, the plaintiff purchased from the defendant A. B. Leach & Co., Inc., a bond for the sum of $980. The bond was part of an issue of $5,000,000 of par value 7% first lien serial gold bonds of the National Oil Company of New Jersey, secured by a trust indenture upon its property. For some time the plaintiff received interest on the bond he had purchased. The National Oil Company of New Jersey encountered financial difficulties about January 1st, 1922. A receiver of its property was appointed in May, 1922. Proceedings to foreclose the trust indenture given to secure the bond issue followed. The property covered by the indenture was sold on October 20th, 1922. The property was bought at public sale by the bondholders’ protective committee. The report of the special master states that the price realized was $50,000. Bonds to the value of $4,000,000 had been deposited by the holders with the protective committee at the time of the sale or at least before the purchase price was paid. The protective committee did not pay the full purchase price in cash. After payment of the expenses of the sale the pro rata share of the proceeds of the property distributable upon each bond was only the sum of five dollars and eighty-four cents. The protective committee paid the amount required for such distribution upon the bonds not deposited with it. It received credit for the amount distributable upon the bonds deposited with it and proper indorsement was made upon each bond. The plaintiff deposited his bond with the protective committee in the interval between the sale of the property covered by the trust indenture and the payment of the price. The reorganization plan in which the plaintiff might participate required a payment óf $150 upon each $1,000 bond. Each depositing bondholder became entitled in return to receive $166.66 in new first lien 7% bonds, $1,000 in new 7% preferred stock and $100 in new common stock. In 1924 the plaintiff began this action to recover damages for alleged fraud by the defendants in the sale of the bonds. The trial court found that the defendants had induced the plaintiff to purchase the bond by fraudulent representations.

The pleadings in the case were oral and the trial court did not make any detailed findings of fact. The trial was protracted and much evidence was presented by the plaintiff. Upon this appeal we are not asked by the defendants to review the question of whether there is evidence sufficient to sustain the finding of fraud. The trial judge measured the damages by deducting from the price paid for the bond, viz., the sum of $980 with interest from the date of payment, the sum of $5.84, the amount which the plaintiff was entitled to receive upon the sale of the property covered by the trust indenture, and the interest which was paid to plaintiff upon his bond before that sale. Judgment was awarded to the plaintiff for the difference. The only question we are asked to consider is whether the correct measure of damages was applied.

The damages awarded must represent the loss which the plaintiff sustained through the purchase and continued ownership of the" bond. In return for the bond he gave up the sum of $980. He bought for investment, not speculation. Before payment of the principal of the bond became due, the property subject to the lien of the bond was sold. The plaintiff still held the bond. He was entitled to payment of a pro rata share of the proceeds of the sale, viz., the sum of five dollars and eighty-four cents. That sum, and the 7% interest previously received, represents all that the plaintiff has obtained, or so far as the record shows, could obtain as a direct result of his continued ownership of the bond. The plaintiff should be entitled to recover from the defendants the loss which is the proximate result of the fraud that induced the investment; the defendants should not be held liable for any part of plaintiff’s loss caused by subsequent events not connected with such fraud.

The true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong.” (Reno v. Bull, 226 N. Y. 546.) Ordinarily the actual pecuniary loss sustained as a direct result of fraud which induces a purchase of a chattel is the difference between the amount paid and the value of the article received. The seller’s fraud is ordinarily complete and its effect exhausted at the time of the sale and transfer of the chattel. The buyer might sell or retain what he had bought. Subsequent increase or decrease of value might bring profit or loss to the buyer, but such profit or loss would be the result of subsequent events and of choice by the buyer whether to hold or sell. It would not be the direct result of the seller’s wrong nor increase or diminish his liability. The rule is general that actual pecuniary loss sustained as a direct result of the wrong is the measure to be applied in fixing damages. Varying circumstances must logically require variation in- the application of that measure of damages. In Reno v. Bull (supra) we applied that measure of damages in the case of a sale of corporate stock where there were no extraordinary features. We did not hold that other cases might not require a different application of the rule.

In the present case the evidence produced by the plaintiff shows that the defendants purchased the entire issue of $5,000,000 bonds from the National Oil Company. Included in the consideration received in return for the purchase price was a large amount of corporate stock. The defendants proceeded to sell to others the bonds they had purchased. They issued a circular containing a statement of the past earnings and of the property owned by the National Oil Company and its subsidiaries. In writing and through its salesman the corporate defendant recommended the bonds for investment. Critical examination of the statements contained in the circular leaves some doubt as to whether any of them was literally untrue. As a whole the circular presents a picture which would lead an investor to believe that the security behind the bonds offered was far greater than was the fact. Doubtless the defendants would not themselves have paid more than four and a half million dollars for the bonds and accompanying stock if they had not believed that the oil company would be successful, yet it may be noted that the defendants received for that purchase price, in addition to the bonds, a block of stock so considerable as to suggest that the defendants may have expected large profits upon commensurate risk. Perhaps enthusiasm may have dazzled the defendants and led them to disregard facts which tended to show that the picture as painted for investors was deceptive, if not literally untrue. The evidence may leave room for doubt whether the defendants were guilty of conscious fraud; yet the defendants do not maintain that there is not evidence from which the inference may be drawn that the defendants sold a bond to the plaintiff for investment by means of oral representations and a circular which, both through assertion and concealment, tended to deceive and did in fact deceive.

The evidence shows beyond dispute that the oil company had at that time some property of value, even though the circular may have been to a considerable degree deceptive, and factors which entered into that value were misrepresented. There is no claim that the moneys it received from 'the bond issue were stolen or misapplied by the corporate officers. If conditions in the oil trade had not become demoralized, perhaps the oil company might have been sufficiently successful to pay the principal sum represented by the bond issue. All that is conjecture. The fact is that conditions in the oil trade did become demoralized and the oil company went into the hands of a receiver. The subsequent sale of its property for $50,000 does not lead to any possible inference that its property was worth no more at the time when the plaintiff purchased his bond, over two years before the receiver was appointed. The sale was a forced sale; the only bidder was the bondholders’ protective committee. Other bidders would be compelled to pay the full purchase price in cash; that bidder could be compelled to pay in cash only the proportion of the amount realized on the sale which would be distributable to bondholders who had not deposited their bonds. It may be doubted whether the price paid at such a sale is any evidence of the value of the property sold even at the time of the sale. (Knickerbocker Life Ins. Co. v. Nelson, 78 N. Y. 137; Parmenter v. Fitzpatrick, 135 N. Y. 190; Brady v. Finn, 162 Mass. 260; Koski v. Haskins, 236 Mass. 346; West Skokie Drainage Dist. v. Dawson, 243 Ill. 175; Martinett v. Maczkewicz, 59 N. J. L. 11; Matter of McAusland, 235 Fed. Rep. 173.) .There can be no doubt that it does not permit any inference that the property was worth no more when the plaintiff bought his bond, since other evidence establishes beyond possible doubt that its value was much greater at the earlier period. The master’s report establishes that the plaintiff could not by any legal proceedings obtain a payment of more than $5.84 upon his bond. It establishes nothing else.

If we hold that the plaintiff’s damages are the difference between the market value of his bond at the time of its purchase and the price paid, we deny him all remedy in an action at law for the deceit. The plaintiff was not bound to sell. He had purchased for investment. He had no information which should have led him to believe that the prudent course was to sell. Since he was induced to purchase for investment, the existence of a market where he might have sold does not break the chain of cause and effect between the original deceit and the ultimate loss. The price at which the bond would sell in the market might not even represent its real value. The defendant was at that time engaged in marketing the bond issue it had bought. The market price of the bonds would naturally be affected by the representations contained in the circular. Sales of the corporate securities are not shown to have been unaffected by the defendant’s position. It has been held under somewhat analogous conditions that even though in fixing the plaintiff’s loss, the real value of the plaintiff’s securities at the time they were received by him must be taken as a basis, and events injurious to the company, which occurred not from intrinsic defects in it, but from events which happened after the purchase, cannot be taken into account; if there is no better evidence, the result of the winding up of the company and the amount which will be returned to the shareholders may be taken into account.” (Peek v. Derry, 37 Ch. D. 541. See, also, Twycross v. Grant, 2 C. P. D. 469; Whiting v. Price, 172 Mass. 240.)

In the present case the question is complicated by two circumstances. The property purchased is a bond, a chose in action whose intrinsic value is dependent solely upon the debtor’s ability to pay when payment becomes due, and in addition the bond was recommended as an investment and defendant was informed that it was bought for that purpose. Even if we had evidence upon which a definite estimate might be made of the value of the company’s property which was covered by the trust indenture and constituted security for the bond issue, we should not be able to fix with certainty the value of the bond. The oil company held the stock of subsidiary companies which in turn owned the tangible assets. The stock of the subsidiary companies was pledged, their tangible assets were still at the risk of the business. Probability of payment of the bond issue depended primarily upon the success of the business and its efficient management. Though the company might not have failed if conditions in the oil trade had not become disturbed, there is room for inference upon this record that these disturbed conditions would not have caused the failure if the enthusiastic statements of the value of the company’s assets contained in the circular had been true. On the other hand, if a complete and accurate picture had been given of the oil company’s position, an expectant investor might have hesitated and drawn back with a reasonable fear that any adverse change in business conditions would bring ruin to the company. That ruin came with change of conditions. The effect of the representations of the defendant did not cease with plaintiff’s purchase. He continued to hold the bond for investment in accordance with the defendant’s recommendation. Loss of his investment followed because the weakness of the company had been concealed from him by defendant.

Proximate damages may not be fixed by arbitrary rule. Sometimes other damages flow from fraud in inducing a purchase, besides the difference between the price paid and the value of the article received. Consequential damages may also be awarded. (See Sedgwick, Measure of Damages [9th edition], section 441; Jeffrey v. Bigelow, 13 Wend. 518; Rose v. Wallace, 11 Ind. 112; Merguire v. O’Donnell, 103 Cal. 50; Tuckwell v. Lambert, 5 Cush. [Mass.] 23.) It has been held in some cases that damage should be fixed by taking the value of the article purchased at the time the fraud was discovered. (Smith v. Duffy, 57 N. J. L. 679; Goodwin v. Wilbur, 104 Ill. App. 45.) Such a rule, if unvaryingly applied, might allow a defrauded purchaser to include in his damage a loss which was the result of an intervening cause distinct from the fraud. It has not been generally accepted. At least the plaintiff’s proximate damages should be the difference between the price paid upon the purchase and the value of the bond at that time as an investment, the purpose for which it was understood that the plaintiff was buying. Ultimate loss of the investment was due to weakness inherent in the investment concealed by the defendant. That weakness might not under all circumstances have produced the ruin of the company. It did produce that ruin when conditions demanding greater financial strength arose in the oil trade. The loss proximately caused by the defendant’s fraud is the difference between the price he paid and the value of what he received when put to the use contemplated by the parties. In this case that value must be determined in the light of subsequent events. As long as the fraud continued to operate and to induce the continued holding of the bond, all loss flowing naturally from that fraud may be regarded as its proximate result. Change of conditions may have been a subsidiary cause; it was not an independent cause. The loss sustained is directly traceable to the original misrepresentation of the character of the investment the plaintiff was induced to make.

It is said that the plaintiff’s loss should not be fixed by the amount which the plaintiff was entitled to receive upon distribution of the proceeds of the sale of the property covered by the trust indenture, since he chose to participate in the plan of reorganization. Participation in that plan was dependent upon a further investment of $150. The plaintiff was entitled to take or refuse the opportunity of possible profit, with its attendant risk of possible loss. The record in this case does not show whether profit or loss resulted. In either event it would be the result of a new choice by the plaintiff, to invest, and not of the original choice which was induced by defendants. Profit or loss upon the new investment does not increase or decrease the loss suffered by the original deceit. We speak now only of the circumstances disclosed by this record. It is common knowledge that at times the right of corporate stockholders or bondholders to participate in a reorganization plan is far more valuable than the right to share in the distribution of the proceeds of the sale of the corporate assets. Such value will ordinarily be reflected in the market price either of the corporate securities or of the derivative rights to share in the reorganization. Value, which may be realized by sale without additional risk, may not be disregarded in fixing the loss caused by the original investment. The record here does not admit of any inference that the plaintiff’s right to share in the reorganization plan had in itself any value, or that his bond or rights derived from the bond could have been sold at any price. It does appear that holders of bonds of the value of $1,000,000 did not choose to exercise their right of participation.

For these reasons we find in the evidence sufficient basis for the rule of damages applied.

The judgment should be affirmed, with costs.

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

Judgment affirmed, etc.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    John Widmar, Respondent, v. M. Hure Healey, Appellant.
    Landlord and tenant — real property — action by tenant to recover for injury from explosion of stove — ice in pipe leading to boiler not a defect — lessor not liable for injury from defect in absence of fraud or covenant to repair.
    1. A cause of action, tenant against landlord, for injuries resulting from the explosion of a stove based solely upon allegations that it belonged to the landlord, was a fixture in the kitchen of the leased premises and was broken and in need of repair, is not proved by testimony that the explosion occurred by reason of the presence of ice in the pipe leading from the stove to the boiler. The presence of ice does not constitute a defect.
    2. Even if the allegations of the complaint had been proved no cause of action existed. Neither fraud nor covenant to repair is alleged, and in their absence a lessor does not represent that the premises are tenantable.

      Widmar v. Healey, 219 App. Div. 727, reversed.
    (Argued November 29, 1927;
    decided January 10, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 19, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

      Everett W. Bovard and Norman G. Hewitt for appellant.
    The defendant landlord having put the tenant in full possession of his premises is not hable for personal injuries sustained by reason of the defective condition thereof. (Franklin v. Brown, 118 N. Y. 110; Richmond v. Lee, 123 App. Div. 279; Silverman v. Isaac, 183 App. Div. 542; Steefel v. Rothschild, 179 N. Y. 273; Hirsch v. Radt, 228 N. Y. 100; Vonsden v. United Cities Realty Corp., 194 App. Div. 26; Long v. Warren, 68 N. Y. 426; Renard v. Grenthal, 81 Misc. Rep. 135.)

      Murray Q. Jenkins for respondent.
    In renting an apartment to the plaintiff, the landlady assured him that “ she fixed everything ah right,” and she herself urged him to start a fire immediately after he entered the apartment and for that purpose herself supplied the wood. By her own words, by her own acts with “ full control ” of the premises as she admits in her answer, she is hable for inviting the plaintiff to use her stove in a knowingly dangerous condition. (Swordes v. Edgar, 59 N. Y. 28; Edwards v. New York & Harlem R. R. Co., 98 N. Y. 247; Timlin v. Standard Oil Co., 126 N. Y. 514; Barrett v. L. O. B. Imp. Co., 174 N. Y. 310; Fox v. Buffalo Park, 21 App. Div. 312; 163 N. Y. 559; Junkerman v. Tilyou Realty Co., 213 N. Y. 404; Uggla v. Brokaw, 117 App. Div. 586; O’Malley v. Twenty-five Associates, 178 Mass. 555; Quinn v. Perham, 151 Mass. 162; Cadby v. Hill, 231 N. Y. 323.)
   O’Brien, J.

Plaintiff sued his landlord for injuries resulting from an explosion of a stove. He had leased part of defendant’s premises and was in the act of taking possession when the injury occurred. His cause of action is based solely upon allegations that the stove, belonging to defendant and a fixture in the kitchen, was broken and in need of repair. His own witnesses proved the contrary. During the term of the tenant immediately preceding him, a pipe leading from the stove to the boiler had burst but a new one had been substituted. It was in excellent condition at the termination of the lease. The outgoing tenant left the water turned on in the pipe connecting the stove and boiler but this fact was apparently unknown to plaintiff and to defendant.

Confronted by proof that the pipe had been repaired and was in good condition, plaintiff changed his theory of liability. With the complaint standing unamended, he proved that the explosion occurred not by reason of a broken and defective stove, as alleged in the complaint, but by reason of the presence of ice in the pipe. Plaintiff and his wife had inspected the premises four days previous to the accident. That day was very cold and the wife saw ice in the wash tubs and hanging from the faucets in the kitchen. Plaintiff could have seen it if he had looked. The day of the accident was equally cold and at the suggestion of defendant, plaintiff built a fire in the stove. A quarter of an hour after the fire started, an explosion occurred, the stove burst and flying pieces of iron struck and injured plaintiff. That the accident resulted from the presence of ice in the pipe is conceded. Neither plaintiff nor defendant knew of its existence. Plaintiff made no investigation nor inquiry concerning it. He started the fire without examination. The presence of ice does not constitute a defect. It has nothing to do with the construction of the stove or pipe but is an independent condition resulting from cold weather. Plaintiff’s case, therefore, was not proved..

Even if the allegations of the complaint had been supported by evidence, no cause of action would have existed. No covenant to repair is alleged'. Neither does the complaint state that defendant fraudulently concealed defects. In the absence of fraud or of a covenant, a lessor does not represent that the premises are tenantable and may be used for the purposes for which they are apparently intended. (Jaffe v. Harteau, 56 N. Y. 398; Daly v. Wise, 132 N. Y. 306; Steefel v. Rothschild, 179 N. Y. 273, 277; Vousden v. United Cities Realty Corp., 194 App. Div. 26.)

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

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

Judgments reversed, etc.


author: Lehman, J.

text:
    Marie S. Livingston, as Administratrix of the Estate of Robert L. Livingston, Deceased, et al., Respondents, v. Henry G. Ward et al., Appellants, and Bayard U. Livingston et al., Respondents.
    Trust — will — real property — title — deed of real property in trust to pay income to grantor and wife and on death of wife convey fee to grantor and his heirs — life estate created terminable at death of wife — direction to trustees to convey fee does not transfer any part of estate to heirs of grantor — reversionary estate passes under residuary clause of will of grantor where he predeceased wife — no implication that gift to wife of residuary estate “ in lieu of dower ” is limited thereby to life estate — direction for division of property after wife’s death, if she leave children ■— no intent evidenced to limit gift to life estate in absence of issue, where, in that event, testator “ recommended ” manner in which wife should dispose of property — fee of all property passed to wife determinable only if she left children — property received passed under her will.
    1. By a deed of trust providing that the trustee should hold real property conveyed and out of the net income pay to the wife of the grantor a stated sum yearly and pay the balance of the income to the grantor and his assigns during his life, and after his decease pay the entire income to his wife during her life, and after her death convey the property to the grantor, his heirs and assigns, the grantor cut a life estate out of his fee. He created an equitable interest in the trust property in favor of his wife and himself during the life of his wife. All other legal interest and estate remained in or reverted to the grantor and his heirs. The direction to the trustees to convey the fee is unnecessary and without legal effect and shows no intent by the grantor to divest himself of any part of his estate or to transfer it to his heirs. (Doctor v. Hughes, 225 N. Y. 305, followed.)
    2. The grantor predeceased his wife leaving a will containing a number of specific bequests but mentioning no specific property, real or personal, of the testator. It then provides: “ All the rest, residue and remainder of my estate real and personal, of every name, hind and description which I may own at the time of my decease, wheresoever the same may be situate, I do give, devise and bequeath unto my beloved wife * * * to have and to hold * * * in lieu of dower.” There is nothing in this language which suggests that the testator intended to exclude from his residuary estate the reversion in the trust property. It, therefore, passes under the residuary clause of the will.
    3. A contention that though the estate of the wife is not expressly limited to a life estate, such limitation should be implied because of the provision that the "wife is to have the real and personal estate devised and bequeathed “ in lieu of dower,” cannot be sustained. No ground for such implication may be found in the use of these words and unless it appears from other clauses in the will that the testator intended to give to his wife only a life estate, and intended that the fee should pass to others at his wife’s death, the residuary clause must be construed as giving to the wife an estate in fee which passed to her residuary devisees under her will.
    4. The fact that succeeding clauses of the will unmistakably evidence an intent on the part of the testator not to give to his wife an estate so complete and perfect as to exclude the operation of his will that provision should be made out of the property received by her for any children who might be born to them, does not sustain an argument that the direction for division, after the wife’s death, if she shall leave children surviving, of the property bequeathed to her, evidences an intention that she was to receive an estate only for her life rather than a determinable fee. By other provisions of his will the testator recognized that there might be no issue of their marriage and, in that event, he “ recommended ” to his wife how she should dispose of the property. There were no children, and, where the testator has chosen to leave discretion to his wife, the courts cannot impose a mandatory duty.
    5. The language of the will of the grantor, therefore, requires the construction that he gave to his wife the fee of all his property, determinable only if she died leaving children of the marriage her surviving. The property received by her passed under her will to the legatees and devisees therein named.

      Livingston v. Ward, 216 App. Div. 675, reversed.
    (Argued December 14, 1927;
    decided January 10, 1928.)

      Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 9, 1926, which reversed a judgment in favor of defendants-appellants, entered upon a dismissal of the complaint by the court on trial at Special Term and directed judgment in favor of plaintiffs and defendants-respondents.

      Charles E. Hughes, Herman S. Hertwig, Langdon P. Marvin and Henry B. Closson for Henry G. Ward et al., as trustees, et al., appellants.
    That James Thomson’s trust deed of 49 Broadway “ provided for a conveyance of the reversion to him ” only in case “ Anne D. Thomson should die before the grantor,” and that the “ possibility of such reverter ” was “ a mere naked right, whether called remainder or reversion, which could not pass by his testament,” is plainly erroneous. The deed left in James Thomson a reversion upon the death of his wife which was an expectant estate, descendible, devisable and alienable. (Upington v. Corrigan, 151 N. Y. 143; Doctor v. Hughes, 225 N. Y. 305; Montague v. Curtis, 110 Misc. Rep. 717; 191 App. Div. 904; Matter of Tamargo, 220 N. Y. 225; Guernsey v. Guernsey, 36 N. Y. 267.) The execution by Anne D. Thomson upon her husband’s death of her deed of January 19, 1898, appointing substituted trustees in place of the deceased trustee, in no way altered the devolution of the property provided for in the original trust deed; nor did it evince any doubt by her or her counsel that her husband’s will when proved would vest in her the fee of the property subject only to the estate therein of the trustees for her life. (Matter of Tamargo, 220 N. Y. 225; Montague v. Curtis, 110 Misc. Rep. 717; 191 App. Div. 904; Asche v. Asche, 113 N. Y. 232.) By the words with which the testator begins the disposition of his residuary estate, he devised to his wife all his real property in fee, as indisputably as he thereby bequeathed to her outright all the residue of his personal property. (Real Property Law, § 240, subd. 1; Banzer v. Banzer, 156 N. Y. 429.) This devise to the wife “ of all the rest, residue and remainder of my Estate real and personal, of every name, kind and description, which I may own at the time of my decease, wheresoever the same may be situate,” included the testator’s reversion in No. 49 Broadway, subject to the estate therein of the trustee for the life of the wife. (Banzer v. Banzer, 156 N. Y. 429; Erwin v. Waterbury, 186 App. Div. 569; 231 N. Y. 592; Matter of Barney, 207 App. Div. 25; 239 N. Y. 584; Clay v. Wood, 153 N. Y. 134; Brown v. Perry, 51 App. Div. 11; Bennett v. McLoughlin, 125 App. Div. 172; Hacker v. Hacker, 153 App. Div. 270.) The specific rule that the devise of a fee at the outset of a will cannot be cut down to a life estate by subsequent words “ not in themselves clear, unmistakable and certain ” necessarily controls the general rule, relied upon by the respondents and the court below, that “ effect must be given if possible to each and every phrase and word used; ” simply because the former is the prescribed method of complying with the latter where there are apparently conflicting provisions. (Clay v. Wood, 153 N. Y. 134.) The words of the habendum “ to have and to hold all and singular the real and personal estate hereby devised and bequeathed unto my said Wife Anne D. Thomson, in lieu of Dower,” following the devise to the wife of his real estate in fee thus made by the testator by the first clause of the same article of his will, are far from being sufficiently “ clear and decisive,” “ unmistakable and certain ” to cut down to a life estate the fee devised by the words immediately preceding. (Lewis v. Smith, 9 N. Y. 502; Crain v. Wright, 114 N. Y. 307; Banzer v. Banzer, 156 N. Y. 429; Erwin v. Waterbury, 231 N. Y. 592; Matter of Barney, 239 N. Y. 584; Campbell v. Beaumont, 91 N. Y. 464; Goodwin v. Coddington, 154 N. Y. 283; Roseboom v. Roseboom, 81 N. Y. 356; Washbon v. Cope, 144 N. Y. 287; Benson v. Corbin, 145 N. Y. 351.)

      Louis O. Van Doren, William R. Conklin and Edward S. Bentley for Ladies’ Home Society, appellant.
    The Appellate Division erred in holding that James Thomson by his ante-nuptial agreement conveyed a fee to the trustees therein named, for the reason that said estate, subject to the life estate of Anne D. Thomson, remained in his possession and was capable of being assigned, conveyed and devised. (Doctor v. Hughes, 225 N. Y. 305; Montague v. Curtis, 110 Misc. Rep. 717; 191 App. Div. 904.) The courts below erred in holding that the appellant Baptist Home for the Aged and the other charities named in the 18th paragraph of James Thomson’s will were not entitled to share in the residuary estate. (Tilden v. Green, 130 N. Y. 29; Van Nostrand v. Moore, 52 N. Y. 12; Colton v. Colton, 127 U. S. 300; Phillips v. Phillips, 112 N. Y. 197; Smith v. Floyd, 140 N. Y. 337; Temple v. Russell, 251 Mass. 231.)

      Russell Benedict, William A. Alcock, Williston Benedict, Frederic de Peyster Foster and George N. Whittlesey for Association for Relief of Indigent Females et al., appellants.
    The court at Special Term properly held that under the deed of trust James Thomson, the settlor, reserved to himself the fee of the said premises “ from and after the decease of the said Anne D. Parsons.” (Doctor v. Hughes, 225 N. Y. 305; Matter of Tamargo, 220 N. Y. 225.)

      J. Culbert Palmer, Jr., and Perry D. Trafford for Society for Relief of Poor Widows, appellant.
    The deed of settlement of 1885 left in James Thomson a reversion in the premises capable of being devised. (Doctor v. Hughes, 225 N. Y. 305.)

      Alfred R. Page for plaintiffs-respondents.
    The deed of May 11, 1885, vested in the trustee all of the legal and equitable estate of James Thomson in the premises during the life of Anne D. Thomson, and on her death vested in them a power in trust to convey to James Thomson the fee. (Graves v. Deterling, 120 N. Y. 447; N. Y. Life & Trust Co. v. Hoyt, 161 N. Y. 1; Keteltas v. Keteltas, 72 N. Y. 312; Belmont v. O’Brien, 12 N. Y. 394; Gilman v. Reddington, 24 N. Y. 9; Townshend v. Frommer, 125 N. Y. 446.) The deed of Anne D. Thomson, executed after the death of James Thomson, confirmed the power of the trustees to convey the premises to the heirs of James Thomson, and their right to possession thereof upon her death. (Dreyer v. Schaeffer, 55 N. Y. 446.) The premises No. 49 Broadway were not devised by the will of James Thomson. (Weare & Allison v. Williams, 85 Iowa, 253; Real Property Law, § 240, subd. 3; Matter of Buechner, 226 N. Y. 440; N. Y. Life & Trust Co. v. Hoyt, 161 N. Y. 1; Keteltas v. Keteltas, 72 N. Y. 312.)

      Joseph W. Welsh, Roland L. Redmond, Alfred C. Petté, Philip M. Brett, W. A. W. Stewart and Frank B. Holsapple for defendants-respondents.
    An estate in reversion in the real estate 49 Broadway, conveyed in trust, at all times remained in James Thomson until his death on December 9, 1897, and upon his death such estate passed to his heirs then living as intestate property. (Embury v. Sheldon, 68 N. Y. 227; Crooke v. County of Kings, 97 N. Y. 421; Nearpass v. Newman, 106 N. Y. 47; Montague v. Curtis, 110 Misc. Rep. 717; Van Beuren v. Dash, 30 N. Y. 393; Thurber v. Chambers, 66 N. Y. 42; Matter of Wells, 113 N. Y. 396; Matter of Tamargo, 220 N. Y. 225; Matter of Livingston, 34 N. Y. 555; Watkins v. Reynolds, 123 N. Y. 211; Doctor v. Hughes, 225 N. Y. 305.)

      John N. Drake for Brockholst Livingston, defendant-respondent.
    The grantor reserved a reversion in the trust property which was descendible, devisable and alienable as an expectant estate. (Doctor v. Hughes, 225 N. Y. 305; Montague v. Curtis, 110 Misc. Rep. 717; 191 App. Div. 904.) The majority opinion of the Appellate Division proceeds from an erroneous construction of the deed of trust. (Nicoll v. Walworth, 4 Den. 388; Crooke v. County of Kings, 97 N. Y. 421; Embury v. Sheldon, 68 N. Y. 235; Manice v. Manice, 43 N. Y. 303; Matter of Seebeck, 140 N. Y. 241; Matter of Livingston, 34 N. Y. 557; Watkins v. Reynolds, 123 N. Y. 211; Matter of Tamargo, 220 N. Y. 225; Keniston v. Adams, 80 Me. 290.) The reversion in James Thomson, not having been devised or otherwise disposed of, was property of which he died intestate, and passed to his heirs as of the date of his death. (Tompkins v. Verplanck, 10 App. Div. 572; Clark v. Camman, 160 N. Y. 315; Pomeroy v. Hincks, 180 N. Y. 73; Doane v. Mercantile Trust, 160 N. Y. 494.)
   Lehman, J.

In May, 1885, James Thomson executed .a trust deed of premises known as No. 49 Broadway. The deed recites that a marriage is about to be solemnized between the grantor and Anne D. Parsons, and that the purpose of the conveyance is to make provision for the said Anne D. Parsons pursuant to an ante-nuptial agreement. The deed provides that the trustee should hold the premises from and after the said marriage to the uses and purposes thereinafter declared. The trustee was to pay out of the net rents, income and profits to the said Anne D. Parsons the yearly sum of three thousand dollars “ and the residue of the rents, income and profits to pay to the said James Thomson and his assigns during the term of his natural life, and from and after the decease of the said James Thomson in the lifetime of the said Anne D. Parsons to pay the entire rents, income and profits of the said premises to the said Anne D. Parsons or her assigns during the term of her natural life and from and after the decease of the said Anne D. Parsons to convey the said land and premises to the said James Thomson, his heirs and assigns forever.”

The marriage was solemnized and the terms of the trust deed were carried out during the lifetime of the grantor and his wife. No children were born of the marriage. The grantor, James Thomson, died December 1st, 1897, leaving a last will and testament dated May 18, 1888. The original trustee predeceased the grantor by a few months. After the death of James Thomson, his widow, pursuant to a power granted to her by the trust deed, executed a new trust indenture appointing Henry Galbraith Ward and Charles M. Hough trustees in the place of the deceased trustee. They continued to collect the rents, income and profit and paid them over to the widow, Anne D. Thomson. She died on May 6th, 1923, leaving a last will and testament. The plaintiffs claim that under the provisions of the trust deed the heirs at law of the grantor became entitled to the possession and enjoyment of the trust property after the death of Anne D. Thomson.

The claim of the plaintiffs is disputed by other parties to the action. The executor and the residuary legatees and devisees of Anne D. Thomson urge that the fee of the trust property passed to their testatrix under the will of James Thomson. Some of the defendants are charitable organizations who urge that under that will the grantor and testator bequeathed his residuary estate, including a reversion in the trust property, to them after the death of Mrs. Anne D. Thomson. Another group urges that as to this, property, James Thomson died intestate. They claim by descent as his'heirs at law. The conflicting claims of the parties rest upon varying constructions of the trust deed and the subsequent will of James Thomson. James Thomson died possessed of other property not covered by the trust deed. In the case of Livingston v. Livingston (247 N. Y. 517) the same plaintiffs claim an interest in that property. The questions there raised depend for solution solely upon construction of the will. Judgment upon the pleadings was granted at Special Term in both actions by Mr. Justice Vernon M. Davis in favor of the parties claiming under the will of Anne D. Thomson. We agree with the construction he has placed upon both deed and will.

By the deed of trust the grantor created an equitable interest in the trust property in favor of his prospective wife and himself during the life of his wife. The trustee might hold the property only as long as the wife lived. The grantor cut a life estate out of his fee. All other legal interest and estate remained in or reverted to the grantor and his heirs. (Real Property Law, section 102; Cons. Laws, ch. 50.) In unmistakable language the grantor has evinced an intention that after the life estate had ended, the fee of the property should belong to himself, his heirs and assigns. The direction to the trustees to convey the fee is unnecessary and without legal effect. It cannot result in giving the grantor a larger estate than he already possessed. It does not show any intent by the grantor to divest himself of any part of his estate or to transfer it to his heirs. A similar situation was presented in .the case of Doctor v. Hughes (225 N. Y. 305). All that we said there applies with equal force to the trust deed now under consideration.

The grantor has made a will which was duly probated. If in that will he made a valid devise -of all his property his reversionary estate in No. 49 Broadway has passed to the devisee or devisees named therein. If the grantor died intestate as to this estate it has passed by descent to his heirs. The will of James Thomson, the grantor, abounds in technical legal expressions, but it is evident that the language is that of the educated layman rather than that of the skilled legal draftsman. The will contains a number of specific bequests but mentions no specific property, real or personal, of the testator. After these specific bequests the testator provided: “Fifteenth: All the rest, residue and remainder of my Estate real and personal, of every name, kind and description which I may own at the time of my decease, wheresoever the same may be situate, I do give, devise and bequeath unto my beloved Wife Anne D. Thomson (daughter of George M. Parsons, of Columbus, Ohio), to have and to hold all and singular the real and personal Estate hereby devised and bequeathed unto my said Wife Anne D. Thomson, in lieu of Dower.” There is nothing in the language which suggests that the testator intended to exclude from his residuary estate the reversion in No. 49 Broadway. That passes under the residuary clause of the will.

The testamentary intent of the grantor is embodied in the will read in its entirety. Disposition of property made in one clause of the will may throw light upon the meaning which the testator intended should be given to the language of another clause. If the will contained no provision of any kind for the disposition of the residuary estate except the bequest to the testator’s wife in clause fifteenth, there could be no doubt that the testator intended that Mrs. Thomson should take the fee of the estate as her absolute property. There is no express limitation upon the duration of the estate transferred, and no qualification of the completeness of the bequest and devise is either expressed or implied in the language of that clause. A suggestion is made that though the estate of the wife is not expressly limited to a life estate, such limitation should be implied because of the provision that the wife is to have and to hold all and singular the real and personal Estate hereby devised and bequeathed unto my said Wife Anne D. Thomson, in lieu of dower" We are unable to find any ground, for such implication in the use of these words. Argument is made that the testator must have intended that these words should have some meaning and that he may have intended to indicate by their use that the wife should have and hold ” the property only for the same life period during which she would have enjoyed a right of dower. At most, and even that is doubtful, the use of these words might give rise to a vague suspicion, a possible conjecture that the testator intended so to limit the estate granted to his wife. No inference can be drawn reasonably that the testator so intended. It is said that the testator might more reasonably have inserted the provision that the devise should be in lieu of dower if he intended to devise a life estate than if he intended to devise a fee. The attempted distinction is based only on the assertion of highly technical rules of law of doubtful application to any circumstances which are shown to exist here. It is not probable that such considerations could have affected the intent of the testator. We may not base an implication of intent upon vague conjecture and considerations of slight, if any, probative force where the only reasonable inference from the language used negatives that implication. We cannot find that the testator left to vague and doubtful implication an intention which he might easily have expressed. Unless it appears from other clauses in the will that the testator intended to give to his wife only a life estate, and intended that the fee should pass to others at his wife’s death, the fifteenth clause of the will must be construed as giving to the wife an estate in fee which passed to her residuary devisees under her will.

In the succeeding clauses of the will there is unmistakable evidence that the testator after the bequest and devise of his residuary estate still felt some concern as to the ultimate disposition of the estate, or at least of whatever might remain of it after his death. In the sixteenth clause he provided that: “ I recommend my said wife Anne D. Thomson by any Last Will and Testament * * * to give, devise or bequeath the whole or any part of my real and personal Estate which is hereby devised and bequeathed unto her, among such child or children as may be born unto us in such shares and proportions as she shall deem proper. * * * ” The language used is rather that of advice than of direct command. It is entirely consistent with the view that the testator realized and intended that his wife should hold in fee the property devised and bequeathed to her and that her power of disposition thereof was unfettered except by the moral force of the expression of his desire or advice. ................. ... •-*......... .

In the next clause he provided for the contingency that his wife might not accept the advice. If my said Wife shall die leaving any child or children by me begotten and without exercising the power of distributing the Estate hereby devised to her as aforesaid, among our children by her own last Will and Testament, Then and in such case I do give, devise and bequeath the said Estate or whatever may be the Rest, residue and remainder of the same, after the decease of my said Wife, to such child or children of mine who may survive their mother, my said Wife, to be divided equally among them share and share alike.” Clearly this clause shows that the testator did not intend to give to his wife an estate so complete and perfect as to exclude the operation of his will that provision should be made out of the property received by her for any children who might be born to them. Her estate was to terminate at her death, leaving such children her surviving. The direction for the division among such children of “ whatever may then be the Rest, residue and remainder ” of the estate bequeathed to her is consistent with a construction that under the earlier' clause of the will she received a fee which was defeasible upon the happening of the specified contingency. (Mattef of Gardner, 140 N. Y. 122.) It is urged, however, that the direction for division, after the wife’s death, if she shall leave children her surviving, of the property bequeathed to her, evidences an intention that she was to receive an estate only for her life rather than a determinable fee. - Tn '■ ■ ,-x "x

That suggestion might not be entirely without force if it were not negatived by other provisions of his will.The wife died without children. The testator recognized that there might be no issue of their marriage. If that happened, he “ recommended ” to his wife how she should dispose of the property. Again,, these are. words of advice rather than of command. If she did not see fit to accept his recommendation to “ give, devise and bequeath the Estate real and personal wheresoever situate, hereby devised and bequeathed to her, unto the most worthy male descendant of my late Uncle Henry Walter Livingston,” then the testator recommended that she should devise and bequeath the estate in equal shares among designated charitable corporations or among such of the aforesaid corporations or Societies, as my said Wife in her judgment, will deem most worthy.” Command may at times be couched in words which are not peremptory. At times there may be a duty to follow advice or request which may give to advice or request the same force as peremptory command. Not so here. The testator left to his wife full discretion of whether she should follow the testator’s recommendation ” to devise and bequeath her estate to the most worthy male descendant ” of his late uncle. That recommendation was clearly not intended to have the force of a command. The testator may hardly have intended that his recommendation to his wife to distribute the estate among the named charitable corporations should have greater force. In the contingency that issue of the marriage might survive the wife, and that she might not see fit to follow his recommendation to distribute her estate among them, he made provision by direct gift to such children. In other contingencies no direct gift followed if the wife chose to disregard the recommendation. Where the testator has chosen to leave discretion to his wife, the courts cannot impose a mandatory duty. We do not find in the language of the will any indication of intention on the part of the testator that the named charitable corporations should ultimately share in his estate if the wife chose not to bequeath or devise any share to them.

In support of their conflicting contentions of the construction of the will, the various parties urge other considerations as indications of testamentary intent. Analysis seems to demonstrate that such indications are illusory. We seek to discover testamentary intention by giving to the language of the will the meaning which an educated layman writing his will in the situation in which this will was written would ascribe to the words used. We find that the testator has given to the wife the residue of his estate without words expressly limiting the gift to a life estate. The claim that though no such limitation is expressed the limitation should be implied rests upon an assertion of technical considerations of doubtful force and application. That claim ignores the plain fact that a draftsman who possessed sufficient technical skill and forethought to appreciate that such consideration might be urged to raise the implication that a life estate only was intended would naturally have used that skill and foresight to express any intention he may have had to create a life estate instead of leaving that intention to doubtful implication. We find in subsequent clauses of the will, words which show a recognition that the testator had devised and bequeathed to his wife all his residuary estate, coupled with recommendations as to the manner she should dispose of that estate at her own death. We find that in spite of these recommendations the testator clearly intended to leave to his wife discretion as to the manner in which she should at her death dispose of the estate bequeathed and devised to her. We find that the testator recognized that unless the wife chose to follow these recommendations they were without force. Otherwise he would not have made a direct gift to children, if any, of the marriage who might survive his wife, should she fail to follow his recommendation to distribute the estate among them. We find that in no other contingency did he make any gift over after his wife’s death, and intestacy would follow from any construction that the testator intended that his wife should have only a life estate with a discretionary power of disposition by will in accordance with his recommendations. Perhaps there may remain a lurking suspicion that the testator may have failed to evince by his language a possible intention that either designated charitable corporations or some of his own blood relatives should ultimately receive his property. The language of the will requires the construction that he gave to his wife the fee of all his property, determinable only if she died leaving children of the marriage her surviving. The property received by her passed under her will to the legatees and devisees therein named.

Judgment of the Appellate Division should be reversed, with one bill of costs against the plaintiffs payable to the appellants claiming under the will of Anne D. Thomson and the judgment rendered at Special Term should be affirmed.

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

Judgment accordingly.


text:
    Albany Camardo, an Infant, by Henry D. Quinby, Jr., His Guardian ad Litem, Appellant, v. New York State Railways, Respondent.
    Negligence — railroads — streets — children playing in street — motorman not chargeable with negligence as matter of law for failing to anticipate that child might run in front of car — question of defendant’s negligence properly left to jury — rule that plaintiff has burden of proving freedom from contributory negligence applies alike to adult or infant — care required of immature child — no age fixed at which particular degree of care may be expected as matter of law — child non sui juris as matter of law only when no other reasonable inference is permissible — whether child four years and ten months old non sui juris properly left to jury.
    1. It is not unlawful for children to play in the street but it may not be said, as matter of law, that they have th.e right to play in the part of a street where street ears are operated and motor vehicles are passing; nor can it be said, as matter of law, that a motorman ought to have anticipated that children would play in the street and might run in front of a moving ear.

      2. In an action, therefore, to recover for injury to a child, through her being struck by a street railway ear, while running across the street, where there was evidence to sustain an inference that the motorman could not have avoided the accident by the exercise of caution, the question of defendant’s negligence was properly left to the jury.
    3. The plaintiff in an action for personal injuries always has the burden of proving freedom from contributory negligence. That rule applies alike whether the plaintiff is an adult or an infant.
    4. The care which may reasonably be exacted of an immature child must be measured by a standard which a child may reasonably be expected to attain. A child is not guilty of contributory negligence if it has exercised the care which may reasonably be expected of a child of similar age and capacity.
    5. A recovery may be had, however, for injuries inflicted upon a child by the negligence of another, only where an inference may be drawn from the evidence presented in the particular case that no failure on the part of the child to exercise the care which might reasonably be expected of a child of equal age and capacity contributed to the injury. No rule of law fixes an arbitrary age at which a particular degree of care may be expected, or furnishes a true presumption which takes the place of evidence that a child is not chargeable with contributory negligence. Only where a child is so young that the only reasonable inference is that it was incapable of realizing or avoiding the danger may it be said that it was non sui juris as matter of law.
    6. It cannot be said, therefore, that the trial court erred in letting the jury, under instructions which clearly pointed out the considerations which should enter into the decision, pass upon the question whether an intelligent child of four years and ten months, attending a kindergarten class and instructed as to the dangers of the street, was non sui juris.

      Camardo v. New York State Railways, 217 App. Div. 786, affirmed.
    (Argued November 29, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 30, 1926, aflSrming a judgment in favor of defendant entered upon a verdict.

      John Van Voorhis for appellant.
    The trial court erred in submitting to the jury the question whether the infant plaintiff was sui juris. (Jacobs v. Koehler S. G. Co., 208 N. Y. 416; Government Street Ry. Co. v. Hanlon, 53 Ala. 70; Walters v. Chicago, R. I. & P. R. Co., 41 Iowa, 71; Kunz v. City of Troy, 104 N. Y. 344; Birkett v. Knickerbocker Ice Co., 110 N. Y. 504; Huerzeler v. C. C. T. R. R. Co., 139 N. Y. 493; Mangam v. Brooklyn R. R. Co., 38 N. Y. 457; Johnson v. Bay City, 164 Mich. 251.) The court should have granted plaintiff’s request to charge the jury that in the absence of evidence to the contrary the presumption is that a boy four years old is incapable of actual negligence. (Tucker v. N. Y. Central R. R. Co., 124 N. Y. 308; Zwack v. N. Y., L. E. & W. R. R. Co., 160 N. Y. 362; McDonald v. Metropolitan Street Ry. Co., 80 App. Div. 233; Costello v. Third Ave. R. R. Co., 161 N. Y. 324; Hill v. Baltimore & N. Y. R. Co., 75 App. Div. 325; Hebert v. Hudson River Elec. Co., 136 App. Div. 107; Kaplan v. Metropolitan St. Ry. Co., 208 N. Y. 416; Grealish v. Brooklyn, Queens County, etc., R. R. Co., 130 App. Div. 238; Gerber v. Boorstein, 113 App. Div. 808; Simkoff v. Lehigh Valley R. R. Co., 190 N. Y. 256.) The trial court erred in declining to charge plaintiff’s request “ that the presence of children playing in the street is something which a motorman ought to reasonably anticipate.’’ (Shearman & Redfield on Negligence [16th ed.], ¶ 485bc; Bisogno v. New York State Railways Co., 194 App. Div. 316; Rappa v. Connecticut Co., 114 Atl. Rep. 81; Lederer v. Connecticut Co., 111 Atl. Rep. 785; Kennedy v. Hills Bros. Co., 54 App. Div. 29; Sample v. Consolidated Light & Power Co. 57 L. R. A. 186; Birkett v. Knickerbocker Ice Co., 110 N. Y. 504; Huerzeler v. C. C. T. R. R. Co., 139 N. Y. 490; Dehmann v. Beck, 61 App. Div. 505.)

      Colin McLennan for respondent.
    The law does not fix any arbitrary period when an infant is deemed capable of exercising judgment and discretion. (Stone v. Dry Dock,

      E. B. & B. R. R. Co., 115 N. Y. 105; Simkoff v. L. V. R. R. Co., 190 N. Y. 256; Kunz v. City of Troy, 104 N. Y. 344.) The court’s refusal to grant plaintiff’s requests to charge the jury was correct. (Bello v. Metropolitan St. Ry. Co., 2 App. Div. 313; Simkoff v. L. V. R. R. Co., 190 N. Y. 256; McGrell v. Buffalo Office Bldg. Co., 153 N. Y. 265; Stone v. Dry Dock, E. B. & B. R. R. Co., 115 N. Y. 104; Jacobs v. Koehler S. G. Co., 208 N. Y. 416; Zwack v. N. Y., L. I. & W. R. R. Co., 160 N. Y. 362; Batchelor v. Degnon, 131 App. Div. 136.)
   Lehman, J.

The infant plaintiff was struck by a street car operated by the defendant and sustained serious injuries. At the time of the accident the plaintiff was about four years and ten months old. He attended a kindergarten class at a school in Rochester. An older sister who attended the same school, or the child’s mother, always took the child home after his class "was dismissed. On the afternoon of the accident the child’s sister had been instructed to bring him home. Her class was dismissed a few minutes after the kindergarten class. In the interval the plaintiff unexpectedly and contrary to his custom started from the school without a guardian. His home was on Central avenue. He proceeded safely to Central avenue opposite his home. There he played with some.small companions. For some reason a somewhat larger boy ran diagonally across the street. The plaintiff ran after him. The street car operated by the defendant was approaching near the opposite side of the ■ street. The larger boy passed safely in front of the car. The plaintiff was struck by the car. The accident occurred within, at most, a half hour after the child was dismissed from his kindergarten class. The trial judge submitted to the jury the questions of defendant’s negligence and the infant plaintiff’s freedom from contributory negligence. The jury brought in a verdict in favor of the defendant. Inference that the defendant was negligent might perhaps have been drawn by the jury from the evidence, but the opposing inference that the motorman could not have avoided the accident by the exercise of caution was certainly not excluded. It is not unlawful for children to play in the street, but it may hardly be said as matter of law that children have the right to play in the part of a street where street cars are operated and motor vehicles are passing. Perhaps the jury might have found that a reasonably prudent motorman should have anticipated that children would play in the street and might rim in front of a moving car, but it cannot be said as a matter of law that the motorman ought to have anticipated such possibilities. Upon this branch of the case we find no errors in the charge or in the trial judge’s refusal- to charge in accordance with the requests of the plaintiff. Contention is, however, made that the trial judge erred in submitting to the jury any question as to the plaintiff’s contributory negligence and in his refusals to charge as requested by the plaintiff upon that element of the plaintiff’s cause of action.

The plaintiff in an action for personal injuries always has the burden of proving freedom from contributory negligence. That rule applies alike where the plaintiff is an adult or an infant. (Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 420; Stone v. Dry Dock, E. B. & B. R. R. Co., 115 N. Y. 104; Simkoff v. Lehigh Valley R. R. Co., 190 N. Y. 256.) The care which may reasonably be exacted of an immature child must be measured by a standard which a child may reasonably be expected to attain. A child is not guilty of contributory negligence if it has exercised the care which may reasonably be expected of a child of similar age and capacity. (Thurber v. Harlem B., M. & F. R. R. Co., 60 N. Y. 236; Kunz v. City of Troy, 104 N. Y. 344.) A child may be of such tender years that it lacks the experience which would enable it to realize the presence of a threatening danger, and the judgment which would enable it to avoid the danger. Since no care or caution may under such circumstances be expected of the child, it is incapable of personal negligence. “ At such age the infant is termed non sui juris.” (Jacobs v. Koehler S. G. Co., 208 N. Y. 416.) As the child’s capacity develops, the exercise of some care may reasonably be expected of it. With the approach of maturity the capacity of the normal child gradually approximates the capacity of the normal adult and the exercise of approximately the same care may reasonably be exacted of it.

An infant plaintiff, like an adult, has successfully carried its burden of proving freedom from contributory negligence on its part whenever facts are shown from which the inference is logically drawn that in that particular case the plaintiff has not failed in any duty to exercise that measure of care which the law requires. If conflicting inferences may be drawn, the question is one of fact; if only one inference can be drawn the question is one of law. A child’s age does not alone determine its capacity to care for itself and to avoid dangers which may threaten. The law does not disregard variations in capacity among children of the same age, and does not arbitrarily fix an age at which the duty to exercise some, care begins or an age at which an infant must exercise the same care as an adult. (Kunz v. City of Troy, 104 N. Y. 344; Stone v. Dry Dock, etc., R. R. Co., supra; Zwack v. N. Y., L. E. & Western R. R. Co., 160 N. Y. 362.)

True, there are cases where an infant plaintiff injured by the negligence of another is so young that even though we recognize individual variations in children of the same age, the only reasonable inference is that the child was incapable of realizing or avoiding the danger of injury. Only in such cases may we say that a child is non sui juris as a matter of law.

An examination of the cases in which the courts have decided as a matter of law either that a particular child was non sui juris, or, on the other hand, that in the absence of evidence to the contrary the inference must be drawn that a particular child was capable of exercising some care, or even the same care as an adult, shows that no rule of thumb can be deduced which is applicable to all cases. Determination whether under the particular circumstances in each case reasonable men might differ as to the inferences that can be drawn is decisive of whether upon the evidence a question of fact or of law is presented. It is sometimes said that at least a presumption exists that a particular child is non sui juris, or that another child is not capable of exercising the care which an adult would exercise in the face of the danger which threatened. It would perhaps be more accurate to say that under some circumstances, in the absence of any evidence bearing upon the capacity of a particular child except its age, an inference may be drawn, in the light of common experience, as to the child’s ability to apprehend and avoid the danger which resulted in its injury. (Stone v. Dry Dock, etc., R. R. Co., supra.) Here, too, however, it must be noted that from the cases decided in this court no general rule can be deduced that at a definite and fixed age the basis for an inference that a child is incapable of caring for itself under particular circumstances fails. Under some circumstances an explanation as to the child’s capacity and the care it exercised is required, though in other cases evidence of the defendant’s negligence and the plaintiff’s age present sufficient basis for a finding that the child was free from contributory negligence. (See Simkoff v. Lehigh Valley Railroad Co., supra, and cases there cited.)

The only rule that can safely be drawn from the decisions of this State is that a recovery may be had for injuries inflicted upon a child by the negligence of another only where an inference may be drawn from the evidence presented in the particular case that no failure on the part of the child to exercise the care which might reasonably be expected of a child of equal age and capacity contributed to the injury. No rule of law fixes an arbitrary age at which a particular degree of care may be expected, or furnishes a true presumption which takes the place of evidence, .that a child is not chargeable with contributory negligence. Only where the circumstances admit of only one inference may the court decide as a matter of law what inference shall be drawn.

It may be that in this case if the court could determine questions of fact it would decide that the plaintiff, though an intelligent child of four years and ten months, attending a kindergarten class and instructed as to the dangers of the street, had not sufficient judgment or experience to exercise any care to avoid the defendant’s street car and that it was, therefore, non sui juris. It is difficult to draw distinction between the capacity which a child of four years and ten months may have, and the capacity of a child of five years or five years and two months. There must always be some border line where such distinctions become illusory. Attempts by the courts to fix that border line, regardless of surrounding circumstances, must result in distinctions which at times are arbitrary. If we hold that an intelligent child of four years and ten months is in law not capable of avoiding the dangers of the street, we might be driven to hold, as a logical corollary, that parents are as matter of law guilty of negligence, which must be imputed to the child, in other cases where they voluntarily expose the child to the dangers of the street by permitting it to play there unattended.' Determination of the degree of care which may be expected of children is based upon factors which the jury can weigh in the light of their experience at least as well as judges. It does not require any special training or learning, which judges are supposed to possess in higher degree. Except in cases where the judge can safely decide that reasonable jurors would arrive at the same determination, the question of a child’s capacity to take care of itself should be left to the determination of the jury. The clearer the case, the less possibility there is that the jury would reach a different conclusion from the judge. Though it may well be true that in this case the jury should have, and probably did, decide that issue in favor of the plaintiff, we cannot say that the court erred in letting the jury pass upon the question under instructions which clearly pointed out the considerations which should enter into the decision.

The judgment should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane and O’Brien, JJ., concur; Andrews and Kellogg, JJ., dissent upon the ground that an infant under five years of age is non sui juris as matter of law.

Judgment affirmed, etc.


author: Crane, J.

text:
    Alex M. Hamburg, Respondent, v. Francis A. Cundill, Appellant, Impleaded with Others.
    Contract — services — income tax — income from partnership organized June 1, 1919, improperly included in individual returns for same year — profits as shown for fiscal year should be included in returns for 1920 — agreement to pay for services in obtaining reduction of taxes percentage of amount refunded — payment based upon beneficial amount received not on paper reduction — amount refunded for 1919 by reason of improper inclusion of partnership income, less taxes paid in 1920 on such income, proper basis for computing amount due.
    1. It was improper for members of a partnership, organized June 1, 1919, in making individual income tax returns for the year 1919 to include the income from the partnership received up to the end of that year. They should have waited until they made up their individual returns for 1920 and then included their profits, if any, as shown on the partnership books June 1, 1920.
    2. In making an agreement, therefore, by the terms of which plaintiff agreed to “ handle the case of abatement of taxes for the calendar year 1919 and the fiscal year June 1st, 1919 /1920,” for the members of the partnership, for which the latter agreed to pay twenty-five per cent “ of the amount received,” the parties had in mind the income of 1919 as affected by the improper inclusion of the six months’ partnership income. The amount received is the beneficial amount received, not merely a paper reduction.
    3. Where, therefore, plaintiff succeeded in reducing the 1919 taxes by having the amounts improperly included taken out of the returns for that year, but as a result thereof such amounts were necessarily included in the returns for 1920 so as to increase the taxes payable for that year, in fixing the amount on which plaintiff’s compensation should be based, the amount of the increase in the 1920 taxes should be deducted from the amount refunded as improperly paid in 1919.

      Hamburg v. Cundill, 219 App. Div. 506, reversed.
    (Argued December 5, 1927;
    decided January 10, 1928.)
    Appeal from a judgment, entered March 30, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendant-appellant, entered upon a dismissal of the complaint by the court at a Trial Term and directing judgment in favor of plaintiff.

      J. Madison Blackwell and Brison Howie for appellant.
    Both the trial court and the Appellate Division erred in their construction of the contract. A proper interpretation of it shows that the plaintiff was paid in full. (People ex rel. N. Y. C., etc., R. R. Co. v. Walsh, 211 N. Y. 90; Sanford v. Brown Bros. Co., 208 N. Y. 90; Schoellkopf v. Coatsworth, 166 N. Y. 77.)

      W. M. K. Olcott and Hyman Dominitz for respondent.
    The trial justice correctly found that the contract was unambiguous and that the plaintiffs had fully performed the terms thereof, and consequently had earned thereunder the fixed and liquidated sum of $13,796.52, and the Appellate Division properly concurred in said findings. (Newburger v. American Surety Co., 242 N. Y. 134; Smith v. Goldsborough, 236 N. Y. 344; Chicago, Milwaukee & St. Paul R. Co. v. Clark, 178 U. S. 353; Fire Insurance Assn. v. Wickham, 141 U. S. 564; Laroe v. Sugar Loaf

      Dairy Co., 180 N. Y. 367; Schnell v. Perlmon, 238 N. Y. 362; Nassoiy v. Tomlinson, 148 N. Y. 326.)
   Crane, J.

Francis A. Cundill was an importing merchant in the city of New York. Up to June 1, 1919, he had conducted the business in his own name. Thereafter he formed a partnership under the firm name of Francis A. Cundill & Co., the company being his wife, A. Isabell Cundill, as a limited partner. The members of the firm had made income tax returns for the year 1919, in which they had included the income from the partnership from June 1, 1919, up to December 31 of the same year. Alex M. Hamburg, the plaintiff, is an attorney, and John Bauer, a defendant in name, and a plaintiff in fact, is an accountant experienced in income matters. Both Hamburg and Bauer occupied one of the rooms in the offices of Francis A. Cundill &„ Co. at 63 Wall street, New York city, which they jointly rented from that firm under the name of John Bauer and associates. These two gentlemen undertook to procure a reduction in the income tax of Mr. and Mrs. Cundill for the year 1919, and the courts below have properly found that the agreement between the parties was embodied in a letter dated December 17, 1920, reading as fol ows:

“ Mr. John Bauer,
Mr. Alex Hamburg
“ Gentlemen.— Confirming our verbal understanding, it is now understood between us that you will jointly and severally, handle the case of abatement of taxes for the calendar year 1919 and the fiscal year June 1st, 1919/1920, as follows:
We are to pay you a retaining fee of $100 and also to provide you with such expenses as are necessary for the prosecution of this ease. We further agree that we will pay you 25% of the amount received if the case is successfully prosecuted from which, however, is to be deducted the retaining fee and the actual disbursements that may have been made.' It is understood no expenses are to be incurred outside of those of ordinary detail without the consent and confirmation of the undersigned.
It is further agreed that the above understanding will cover also the case of Mrs. Cundill’s federal tax, and also the State taxes of myself and Mrs. Cundill should it later be mutually agreed that these cases are worth prosecuting.
“ It is hardly necessary to say, as it is understood and agreed, that immediate action and prosecution of this case to a finality, will be taken.
“ Very truly yours,
“ FRANCIS A. CUNDILL & CO.,
“ Francis A. Cundill.”

The plaintiffs procured a reduction in the taxes for 1919 which the Cundills claim was not the actual amount received by them as a reduction within the meaning of the above contract.

The plaintiffs have brought this' action to recover twenty-five per cent of the amount of the reduction made in the 1919 income tax without considering the ultimate benefit received by the defendants. The dispute arises over the following facts.

Cundill and his wife had included in their 1919 return the income from the partnership received from June 1, 1919, when the partnership was formed, up to the end of the year, December 31, 1919. These amounts should not have been included in the 1919 return. The personal income taxes are made up for the calendar year. Income from partnerships included in personal returns are made up according to the fiscal year of the company. The fiscal year of Cundill & Co. ran from June 1, 1919, to June 1, 1920. The individual incomes, therefore, of the partners could not be ascertained until June 1, 1920. During the first six months of the partnership, the company may have made money and have lost it during the last six months, in which case there would have been no profits to put in the income return. In other words, income received during the first six months would not indicate the profits for the entire year. It was, therefore, improper for the Cun dills to make returns of their incomes from the partnership in the first six months. They should have waited until they made up their individual returns for 1920 and then have included their profits, if any, as shown on the books of the company June 1, 1920. What the plaintiffs did in reducing the 1919 taxes was to have the amounts which Mr. and Mrs. Cundill had included as income from the partnership from June 1, 1919, to December 31 of that year taken out of the 1919 returns. This did not mean, of course, that the partners would not be taxed upon their profits from the partnership at some time; it simply meant that the profits, whatever they were, would go in the 1920 return. Such was the fact. The profits from the partnership were included in the 1920 return. The deduction, therefore, which the plaintiffs procured for the defendants did not signify that they had benefited to that extent. The profits for the fiscal year 1919 /1920 were put in the 1920 return by the direction of the plaintiffs. Miss Katherine Sieger, the bookkeeper for Cundill & Co., testified that at the request of Hamburg and Bauer she made up an amended partnership return for the fiscal year ending May 31, 1920, and made up amended returns for the individuals for 1919 and 1920.

The Cundills did not receive the full amount of the reduction. The returns for 1920, upon which they had to pay an income tax, were increased by including in 1920 the amount taken out of 1919, or at least the partnership profit for the fiscal year June 1, 1919, to June 1, 1920. In the year 1920 Cundill had sustained large losses, about $70,000, so that if the income earned by the partnership in 1919 had not been transferred to the year 1920, there would-have been no taxable income. By including this income shifted over from the 1919 return, the income taxes of the Cundills for the year 1920 were increased $16,282.19.

There is no dispute about the figures. The appeal turns upon the interpretation of the agreement. The amended returns filed with and accepted by the departments through the efforts of the plaintiffs reduced the Federal and State income taxes of Mr. and Mrs. Cundill for 1919 by $55,186.10. However, by including in the 1920 returns the income from the partnership during the first six months of the fiscal year, from June 1 to December 31, 1919, the taxes of the defendants for 1920 were increased by $16,282.19. The reason why the taxes for 1920 were not increased by the same amount as was deducted in 1919 is because the income tax is not at a flat rate; the percentage of tax varies according to the amount of the whole income. The undisputed evidence is that taking out the $55,186.10 from the 1919 returns and including it in the returns for 1920 increased the taxes for that year $16,282.19. The respondent in his brief describes the services which the respondent performed under the contract as procuring a change from a calendar to a fiscal year basis of reporting income. This permitted the inclusion of a twelve-month period instead of seven months, and the offsetting of losses of a subsequent period against profits of an earlier one.” He further states in his brief: The resulting tax reduction was brought about by a differential in the rate of tax applied against the income of each period. Whereas, the defendant’s original 1919 returns showed a normal rate of 8% and a surtax rate of 56% or total rate of 64%, the amended return showed a lesser amount of income taxable at lower rates. The total saving on Mr. and Mrs. Cundill’s Federal and New York taxes amounted to $55,186.10.”

This, however, does not answer the appellant’s contention. We must go further and determine whether the defendants received this amount within the terms of their contract with the plaintiffs; whether or not they were benefited by this reduction. The other conceded fact must be taken into consideration; and that is, by taking out the six months’ partnership income, and including it in the 1920 returns, the taxes for that year were increased $16,282.19.

The defendants offered to pay and did pay the plaintiffs twenty-five per cent of the difference between $55,186.10 and $16,282.19.. The plaintiffs insist that they are entitled to twenty-five per cent of the larger amount, and have recovered upon this basis.

What does the agreement mean? The income taxes of the Cundills for 1919 were reduced $55,186.10. The actual benefit to them, or the amount of reduction received by them, was about $39,000, by reason of the facts which I have above stated. That the parties had in mind the partnership profits included in the first six months of the fiscal year is quite apparent from that part of the agreement which reads: “It is now -understood between us that you will jointly and severally, handle the case of abatement of taxes for the calendar year 1919 and the fiscal year June 1st, 1919 /1920.” As we understand it, the parties were not to consider merely the reduction of the'personal income for the year 1919, but also the returns which should be made for the fiscal year of the partnership. This could not be done until after June 1, 1920, and in connection with the returns of the personal income for the year 192U. In making this agreement the parties had in mind the income of 1919 as affected by the improper inclusion of the six months’ partnership income. What the ultimate effect would be in taking this out could not be determined until the lapse of the fiscal year. This is why the period June 1, 1920, was put in the agreement. The effect would show in the personal returns for 1920. The agreement was not in reference to 1920, but the returns for 1920 would be evidence of the benefit received by the defendants in the deduction made in the 1919 returns. This is quite evident from the testimony of Mr. Bauer, which is to this effect: “ Q. Wasn’t the effect of your putting in an amended return for the income tax to shift the income from 1919 to 1920? A. Yes. The effect of it is that.

“ Q. Is it not the fact that by filing an amended partnership return you moved $70,000 of income from Mr. Cundill’s 1919 income tax return to his 1920 income tax return? A. Yes, that is the fact.

“ Q. You wrote a great many letters to the Government in regard to these claims for refund, did you not, Mr. Bauer? A. Yes.

Q. In all these letters you treated the 1919 tax and the 1920 tax in the same letter at the same time, did you not? A. In some of them.

Q. In your 1920 income tax return, which you made out for Mrs. Cundill, you put a claim for credit and a claim for refund on the 1919 tax? A. That is true.

“ Q. Did you, during those conversations (with Mr. Cundill) tell him that you were shifting $70,000 of income from his 1919 to his 1920 return? A. Yes.”

It is the final result achieved for which the plaintiffs are to be paid. They cannot merely consider the personal returns for 1919 and leave out the effect which the returns for the fiscal year of the partnership had upon those returns. The return, therefore, for 1919, and the fiscal year of the partnership ending June 1, 1920, resulted through the efforts of the plaintiffs in a reduction to the defendants of about $39,000. They never received the benefit of a reduction to the extent of $55,000. The amount received ” referred to in the agreement is the beneficial amount received, not merely a paper reduction. The period between June 1, 1919, and June 1, 1920, cannot be divided in determining the amount of reduction which the Cundills actually received.

As we see no ambiguity in this agreement, and find that the plaintiffs have been paid all that they are entitled to, we need not discuss the question of accord and satisfaction, forming a large part of the opinions below.

For the reasons here stated, the judgment of the Appellate Division should be reversed, and the complaint dismissed, with costs in all courts.

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

Judgment reversed, etc.


text:
    Patrick O’Callaghan, an Infant, by Patrick O’Callaghan, His Guardian ad Litem, Respondent, v. Commonwealth Engineering Corporation, Appellant. Patrick O’Callaghan, Respondent, v. Commonwealth Engineering Corporation, Appellant.
    Negligence — streets — children — contractor not bound to place railing on stairs leading to temporary shed over sidewalk so as to make same safe for children playing thereon.
    A contractor engaged in the construction of a building, who erects a shed over the sidewalk with steps leading thereto, not alleged or shown to be unlawful, is under no duty to erect a railing that would make the steps entirely safe for small boys playing thereon. It may not be held liable, therefore, for injuries to a boy six and one-half years of age, who while playing on the stairs fell therefrom and fractured his arm.

      O’Callaghan v. Commonwealth Engineering Corp., 221 App. Div. 776 (2 cases), reversed.
    (Argued November 30, 1927;
    decided January 10, 1928.)
    Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 2, 1927, affirming a judgment in favor of plaintiff entered upon a verdict.

      Franklin Malone and Lewis A. Ackley for appellant.
    This stairway and structure did not constitute an attractive nuisance. (Walsh v. Fitchburg R. R. Co., 145 N. Y. 301; Flaherty v. Metro Stations, Inc., 202 App. Div. 583;
      Parkes v. N. Y. Tel. Co., 120 Misc. Rep. 459; Travell v. Bannerman, 174 N. Y. 47; Beickert v. G. M. Laboratories, 242 N. Y. 168; Robertson v. Rockland L. & P. Co., 187 App. Div. 720.)

      James A. Gray and William S. Butler for respondent.
    Defendant’s negligence in maintaining an almost vertical stairway leading from the sidewalk to a shed fifteen feet above the sidewalk and entirely open and enticing to children of tender years playing about the street, was, under all the circumstances of the case, a question of fact for the jury. (Johnson v. City of New York, 208 N. Y. 77; Robertson v. Rockland Light & Power Co., 187 App. Div. 720; Kunz v. City of Troy, 104 N. Y. 345; McGarry v. Loomis, 63 N. Y. 104; Connelly v. Carrig, 244 N. Y. 81; Beickert v. G. M. Laboratories, 242 N. Y. 168.)
   Lehman, J.

The defendant in August, 1924, was engaged in the construction of a building in the city of New York. In accordance with the provisions of section 191 of the Building Code of the city, the defendant erected a shed over the sidewalk, alongside of the building. The roof of the shed was used in the construction work, and access to the roof was obtained by means of a flight of steps which occupied about one-third of the sidewalk nearest the building. The approach to the roof is described as like a step ladder, the bottom resting on the sidewalk.” The slant of the steps was steeper than upon an ordinary stairway. No balustrade or guard was erected along the side of the steps. At times boys would run up the steps in play. There was no barrier to prevent people from going up and down, but a watchman would drive boys away when he saw them.

At the time of the accident a group of boys were running up the steps to the roof and jumping from the roof to a sand-pile. The infant plaintiff, a boy six and a half years of age, was playing with them. He climbed the steps and when near the top he fell off and fractured his arm. If balustrades or railings had been erected along the side of the steps he would probably not have fallen. A watchman was employed by the defendant to chase small boys away from the shed, but was not present at that time. According to his story he was, at the moment, chasing other boys from the interior of the building.

Although the shed and steps were placed upon the sidewalk, they were erected by permission of the authorities of the city and in accordance with the requirements of the Building Code. Even though there is some evidence that the building which the defendant was erecting was at the time of the accident inclosed and the shed was no longer needed, it does not appear that its removal before the accident was. required either by the terms of the license under which it was erected or by order of the municipal authorities. There is neither pleading nor proof that at that time it was an unlawful encroachment upon the sidewalk and constituted a nuisance. Recovery has been based solely upon a finding that the defendant was negligent in the erection and maintenance of the steps leading to the roof of the shed.

The steps and the absence of a railing along the side created no danger which caused injury to any pedestrian. No invitation, express or implied, was held out to the public to climb the steps, and the defendant was under no duty to exercise care to render the steps safe for any person who chose to use them without invitation, or even permission. It. is said, however, that the plaintiff may recover because he was a child and the defendant should have anticipated that children would play on the street; that they would be attracted by the steps and would climb them, and that the defendant was under an obligation either to prevent the children from using the steps or to protect the children by proper railings from falling off the steps.

Doubtless children may lawfully play on the streets, and it is natural for children, in their play, to climb steps or ladders. The defendant might perhaps have anticipated that children might climb the steps leading from the sidewalk to the roof of the shed. Indeed, in the present case the evidence shows that the defendant had actual notice that children did at times play there unless driven off by a watchman. The infant plaintiff had been warned by his father not to play there, but disobedience by a small boy of such parental commands is not unusual and might not as a matter of law preclude the plaintiff from recovery, if his injury was due to the failure of the defendant to perform some duty which the defendant under the circumstances owed to children who might play on the steps. There is, however, no basis for any finding in this case that the defendant was under any duty to erect a railing that would make the steps entirely safe for the use of small boys.

We do not decide that a person who maintains a structure in the street which makes the street dangerous for children playing in the street may not, under some circumstances, be negligent if he exposes the children to a danger which he might reasonably anticipate would cause them injury. (Johnson v. City of New York, 208 N. Y. 77.) No such question is presented here. Steps without railings, even ladders, are not inherently dangerous objects which make the streets unsafe even for children. Children do often climb in their play upon fences, ladders, or any other object that may be at hand. They do at times fall and break limbs. The play of boys is not without its hazards. For some boys it would otherwise be without zest. Even if there be some duty on one lawfully using the city streets for the construction of a building not to create a condition which is inherently dangerous for. children who might play there, he is not under any affirmative duty to make the place entirely safe for children or to protect them against the ordinary hazards of boyhood. Accidents do happen, and it may hardly be said that the defendant was under a duty to protect the children from possibility of a fall from a flight of steps which presented no dangers greater than boys encounter in their usual play. As well might it be said that an owner who plants a tree on the side of a highway should support the limbs lest they break under the weight of a boy who may climb into it, or that an owner may not place a wall in front of an area lest children walking in play on the top should fall.

Indeed, in this case, if the defendant had placed a rail on the side of the steps it may be doubted whether the game of sliding down the rail would not have been quite as attractive and quite as dangerous as the game of climbing the steps.

The judgments of the Appellate Division and of the Trial Term should be reversed in each case and the complaints dismissed, with costs in all courts.

Cabdozo, Ch. J., Pound, Cbane, Andbews, Kellogg and O’Bbien, JJ., concur.

Judgments reversed, etc.